HKSAR v. MIRZA ALAMGIR-AKHTAR

HCMA700/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.700 OF 1999

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J U D G M E N T

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1. The Appellant was charged with an offence of criminal damage, contrary to s.60(1) of the Crimes Ordinance, Cap.200, in that, on 1 July 1999, at Room A, 6/F, Nos.58-66 Canton Road, Kowloon, without lawful excuse, he damaged a window belonging to Chen Hong-li, intending to damage such property or being reckless as to whether such property would be damaged.

2. On 6 July 1999, before Mr Mierczak, Magistrate, the Defendant pleaded guilty, admitted the brief facts of the case, and was convicted. At that time, he was represented by a Duty Lawyer and he had the services of a Punjabi interpreter. He now appeals against conviction. Section 113(1) of the Magistrates Ordinance, Cap.227 provides as follows :

"Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination in manner hereinafter provided to a judge."

3. In the Notice of Appeal filed by the Appellant, it appears that the only ground of appeal raised by him is that he was not the person with the name Mirza Alamgir-Akhtar as appeared on the charge sheet; rather he is known as Malik Zaheer Babar. He tried to explain that his pleading guilty to the charge before the Magistrate was caused by his being beaten up by police officers, and he told me, with the support of a letter, that he made a complaint against policemen, the complaint being made on 17 August 1999.

4. However, when I asked him whether the victim of the case, Chen Hong-li, was his girlfriend, he agreed so. He told me that on the day in question he was drunk but it was a friend of his who broke the glass as shown in the admitted facts. But this story is hard to believe because his friend, according to him, did not bear the same name as that appearing on the charge.

5. It is also relevant to note what the Magistrate said in his Statement of Findings regarding the circumstances under which the Appellant made his plea of guilty. The Magistrate said :

" The Appellant appeared before me on the 6th July 1999 on one count of Criminal Damage. He was represented by Mr. Tse Sau Man, a duty lawyer. There was also a Punjabi interpreter present at the request of the appellant.

The matter was called under the name of Mirza Alamgir AKHTAR. No dispute was raised as to this at any time by any party. When subsequently the criminal record was produced, it was agreed to by the appellant through his counsel. That record was also in the name of Mirza Alamgir AKHTAR.

The appellant pleaded guilty to the charge and admitted the fact. The plea was clear and unequivocal. I was further satisfied that these facts disclosed all the essential elements of the offence. There could be no other inference drawn from those admitted facts other than that of guilt. I accordingly convicted the appellant."

6. Having gone through the transcript and having considered what the Appellant told me today, I am not satisfied that the plea was involuntarily made by the Appellant. He pleaded guilty, according to him, in accordance with the advice and recommendation of the Duty Lawyer. I am not satisfied that there was any mistake on the part of the Appellant. Therefore, I do not find myself being empowered under s.113 to entertain the appeal.

7. In the circumstances, the appeal is dismissed.