HKSAR v. NG CHUNG WAH

HCMA1045/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1045 OF 2003

(ON APPEAL FROM STCC 547 OF 2003)

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J U D G M E N T

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Introduction

1. On 25 June 2003 the appellant pleaded guilty to one charge of theft before Mr Casewell in Shatin Magistracy. The charge alleged that the appellant stole a jar or tube of hair gel in a 7-eleven store at Chun Shek Estate in Shatin on 23 April 2003.

2. The Brief Facts were read out in court and the appellant recorded as having said "Basically I agree to these facts". The essential part of the Brief Facts were in these terms :

" At about 1130 hours on 2003-04-23, when PW1 was working at a working desk in the office room of the above location, he saw the defendant through the CCTV acting in a furtive manner. As PW1 put the defendant under surveillance, he saw the defendant pick up the exhibit from a shelf and put it into the left pocket of his jacket. PW1 maintained continuous observation on the defendant who subsequently left the shop without paying for the exhibit.

2. PW1 followed the defendant out of the shop and stopped him. The defendant threw the exhibit onto the ground and fled. PW1 with others' assistance managed to subdue the defendant about 20 meters from the above shop in the shopping centre. A report was made to police.

3. At 1142 hours, on 2003-04-23, PW2 attended (the) scene and saw PW1 and others subdue the defendant. As the defendant put up a resistance, PW2 handcuffed the defendant and brought him together with the exhibit back to Tin Sum Police Station. PW2 searched the defendant and found that he had $650-HK and RMB 200 with him."

Mitigation

3. The appellant was represented by counsel, Mr Boey Chung, who mitigated on his behalf. The court was informed that the appellant was suffering from schizophrenia and was receiving outpatient treatment at the Li Ka Shing Psychiatric Centre. The court was invited to order a probation report. However, against that background, counsel nevertheless advised the court in terms that :

"... he admit(s) that he knew what he was doing at the material time."

Orders of the court

4. Mr Casewell ordered probation reports and adjourned the matter to 9 July 2003. On 9 July 2003, the defendant was once again represented. The court ordered further reports including a psychiatric report and adjourned the hearing to 1 September 2003. On 1 September 2003 that the defendant was yet again represented, but in the absence of the psychiatric reports the case was adjourned again this time until 22 September 2003. On 22 September 2003 for the fourth time in this series of hearing, the defendant was again represented. Indeed his counsel told the court : "And my instruction is that defendant felt remorseful." Given that the reports indicted that the appellant was suffering from schizophrenia, but that no hospital order was recommended those representing the appellant asked for the imposition of the probation order. The court placed the appellant on probation for 12 months.

5. At no stage in any of those hearings had it ever been raised with the court by those representing the appellant that his plea of guilty was in any way equivocal, one tendered involuntarily, by duress, by fraud or as a result of an uninformed decision.

Notice of Appeal against conviction

6. The appellant's contention is : "Misled by probation staff and that I am not guilty of the offence". The Notice of Appeal is dated 6 October 2003, that is 3 1/2 months after his plea of guilty. However, it is to be remembered that his conviction occurred only when he was sentenced on 22 September 2003.

Right of appeal

7. Section 113(1) of the Magistrates Ordinance, Cap. 227 provides the avenue of appeal to this court upon conviction in the magistracy. It provides :

" (1) 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."

8. In HKSAR v. Wong Chi Yuk [2000] 3 HKLRD 125, the Court of Appeal addressed the circumstances in which an unequivocal plea may be rendered a nullity. In the judgment of the Court of Appeal, delivered by Woo JA, the court conducted a comprehensive review of the relevant authorities before identifying six sets of circumstances in which a guilty plea can be rendered a nullity. [See p.135E-H]. Only three of those sets of circumstances appear to be relevant in this appeal, that is circumstances (4), (5) and (6) and I quote in part from that judgment :

"	(4)	The plea was tendered involuntarily, eg, induced by duress or misrepresentation or was not an exercise of free choice - as in Ma Kam Wing v R [1975] HKLR 612 and HKSAR v Au Yeung Boon Fai [1999] 3 HKC 605;
	(5)	The plea was induced by fraud or made under a fundamental mistake - per R v Peters (1974) 58 Cr App R 328 as referred to in HKSAR v Li Wa San (unrep., HCMA No 379 of 1999, [2000] 1 HKLRD A7); or
	(6)	The plea did not result from a deliberate and informed decision - per R v Wong Wai Leung [1990] 1 HKC 144 as cited in HKSAR v Li Wa San (unrep., HCMA No 379 of 1999, [2000] 1 HKLRD A7)."

9. In the judgment of the Court of Appeal in HKSAR v. Au Yeung Boon Fai [1999] 3 HKC 605, that is one of the cases cited in support of circumstance (4) above, Keith JA said at 610D :

"... A plea of guilty which is a nullity does not amount to a plea at all. A plea which is a nullity, therefore, is not caught by s 113. The classic example of an unequivocal plea of guilty being a nullity is where the plea is tendered involuntarily, for example, where it has been induced by duress or misrepresentation."

The appellant's submissions

10. The appellant appears before me in person. I am conscious of the fact that he was receiving treatment for schizophrenia. I have tried to assist him by questioning him as to the basis upon which he now seeks to make this appeal. It is clear that he has a complaint against a probation officer he remembers being called Mr Lee. That is indeed the name of the probation officer who made the report first ordered on 25 June 2003 and indeed the subsequent report. The appellant's complaint is that Mr Lee was critical in that report of the appellant's candour. It is true that there are such criticisms in the report. The appellant says that Mr Lee undertook to investigate the case for him. I have tried to discover how it is that this complaint is relevant to the plea of guilty tendered on 25 June 2003. On the face of all the information available to me, there was no contact with the probation officer until after the plea of guilty, indeed in consequence of the plea of guilty. The prosecution, at my request, furnished me with details of the appellant's previous convictions. The appellant was convicted in 1995 and in 2000 of two separate offences of theft and on each occasion fined. There is nothing before me to indicate that the appellant was subject to a probation order prior to the one being imposed on 22 September 2003.

11. Accordingly, and in conclusion, there is nothing before me that supports the complaint which would lead the court to conclude that the plea of guilty on 25 June 2003 is to be treated as a nullity.

Conclusion

12. The result of this analysis is that this court cannot entertain the appeal because the condition on which the appeal could have been entertained, namely, that the appellant's plea of guilty was a nullity has not been established. Therefore, this appeal must be dismissed for want of jurisdiction.