HKSAR v. KUSTANTI

HCMA 340/2022

[2022] HKCFI 3501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 340 OF 2022

(ON APPEAL FROM STCC 1255 OF 2022)

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REASONS FOR JUDGMENT

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Background

1.  The appellant Kustanti (the 2^nd defendant) pleaded guilty to one count of “taking employment while being a person in respect of whom a removal order is in force” (“Charge 2”), contrary to Section 38AA (1) and (2) of the Immigration Ordinance, Cap 115 and admitted the Amended Summary of Facts dated 25 August 2022 before Mr David Cheung, Acting Principal Magistrate (“the Principal Magistrate”).

2.  The particulars of Charge 2 read:

“KUSTANI, you are charged that on 14^th of June, 2022 in Hong Kong, while being a person in respect of whom a removal order is in force, took employment, whether paid or unpaid, i.e., as an odd job worker at Central.”

3.  The Principal Magistrate sentenced the appellant to 15 months’ imprisonment. 

4.  The appellant appeals against her conviction. Essentially, the appellant is seeking to reverse her guilty plea.

5.  The appellant was legally represented by the Duty Lawyer Service in the Magistrates’ Court.  She appeared in person in this appeal.

6.  At the end of the appeal hearing, I dismissed the appeal and indicated I would give my reasons later, which I now do.

The Amended Summary of Facts

7.  The Amended Summary of Facts admitted by the appellant reads:

“Amended Brief Facts of the Case [For D2 only]

At around 0845 hours on 14 June 2022, Immigration officers conducted an operation at a restaurant namely ‘Kwan Lok Restaurant’ (transliteration of ‘均樂茶餐廳’) (hereinafter ‘P1’) located at G/F, 4 Cage Street (結志街), Central. PW5 and PW6 disguised as customer and mounted observation at P1. Officers were attended by a Chinese female and had placed their food order. D2, in working gears [Exhibits 3-4], was seen washing vegetable at the kitchen of P1. There was a bucket placed outside the kitchen containing dirty dishes. D2 was seen conveying those dishes to the kitchen repeatedly for thrice. D2 was also seen conveying a bucket with a Chinese male from the kitchen to the cooking area of P1. At around 0914 hours, operation turned overt and officers raided the restaurant. D2 was intercepted. Proof of identity check revealed that D2 was a recognizance form holder. Case was investigated.

2. Upon investigation at scene, the employment record in relation to D2 [Exhibit 5] was seized.

…

4. Record check revealed that D2 had surrendered to the Immigration Department on 27 September 2010 for having overstayed and she was released on recognizance on 30 September 2010. After legal proceedings, D2 was transferred to the Immigration Department on 30 April 2011 and was released on recognizance on 20 May 2011. On 24 July 2018, a removal order was issued against D2 and was served on her on 2 August 2018. Such removal order remained in force against D2 on the material day. D2 was made known that she was prohibited from taking up employment, whether paid or unpaid.

…

6. Records of interview were taken from D2 on 15 June 2022 and 16 June 2022. Under caution, D2 admitted that she was served with a removal order on 2 August 2018. She knew that she was not allowed to take employment, whether paid or unpaid. She worked at P1 responsible for washing dishes and vegetable, working hours from 0800 hours to 1400 hours, with hourly salary of HKD60. At the time of interception, D2 was washing vegetable at the scene (subject matter of charge 2).

Application for forfeiture

D1:

1. One pair of black water shoes

2. One black apron

D2:

3. One pair of black water shoes

4. One black apron

D1 & D2:

5. A piece of paper with wordings ‘菲菲(洗碗)’ and ‘妹妹(洗碗)’”

Criminal Record

8.  In 2011, the appellant was convicted of a charge of “Breach of Condition of Stay” and was sentenced to 2 months’ imprisonment.

Mitigation

9.  The following was said by the duty lawyer representing the appellant in mitigation:

“MR CHEUNG: D2 is 45 years old. She came to Hong Kong in 2005 and she was a torture claimant before. Her torture claim was dismissed and she appealed against that decision but, later, she abandoned the appeal, so she is no longer a torture claimant nowadays. Her husband is 38 years old, a cleaning worker and is a Hong Kong…

COURT: Sorry, ‘Her husband…’? How old is her husband?

MR CHEUNG: Thirty-eight, three-eight.

COURT: Sorry?

MR CHEUNG: Three-eight.

COURT: ‘Three-eight’?

MR CHEUNG: Yes.

COURT: ‘Thirty-eight’?

MR CHEUNG: Thirty-eight, Yes. He is a cleaning worker and is also a Hong Kong identity cardholder.

The Defendant have frankly pleaded guilty to the offence today. I’m told that her husband will file an application for a dependent visa for her to stay in Hong Kong when this case is concluded, so the risk of reoffending is very low, so she pleads for leniency.

Unless I can assist further, this is mitigation.”

The Principal Magistrate’s Reasons for Conviction

10.  The Principal Magistrate states in paragraph 2 of his Reasons for Conviction:

“2. The 2^nd Defendant now appeals against her conviction, despite the fact that she pleaded guilty to the charge.”

11.  The Principal Magistrate states in paragraphs 13 to 19 of his Reasons for Conviction under the heading “Discussion”:

“13. Before the 2^nd Defendant took her plea, her identity and language was confirmed by the Indonesian interpreter. She was also represented by duty lawyer Mr Cheung in this case.

14. Charge was read to the 2^nd Defendant by the interpreter, and the 2^nd Defendant pleaded guilty to the charge, and the facts that supported the charge was also read to the 2^nd Defendant by the interpreter.

15. The 2^nd Defendant admitted to the facts, and I found that the plea was clear and unequivocal.

16. She appeared to me that she understood the charge and she admitted the facts that supported the charge. I therefore convicted her as charged.

17. I also found that the mitigation advanced by Mr Cheung was consistent with the 2^nd Defendant’s guilty plea. I had no doubt to convict her as charged.

18. The strongest mitigating factor in this case is that the 2^nd Defendant pleaded guilty. The Court of Appeal in HKSAR v Usman Butt & Another [2010] 5 HKLRD 452 reviewed the authorities and laid down the guideline sentence of 15 months’ imprisonment upon a plea of guilty in relation to section 38AA offences for the first offender.

19. Applying the above, and there being no other mitigating factor, the 2^nd Defendant was sentenced to 15 months’ imprisonment after plea.”

Grounds of Appeal

12.  The appellant in a proforma “Statement of application for appeal against Conviction” dated 5^th September 2022 states that;

“I request to appeal against conviction and declare that:

I had pleaded guilty.

I insist to raise my application for appeal against conviction.”

13.  Since the appellant lodged her “Notice to appeal to a judge against conviction” (Form 101) dated 5 September 2022, she had filed no grounds of appeal or written submissions.

14.  At the appeal hearing, the appellant raised 2 grounds of appeal against conviction:

(1)  the appellant is suffering from HIV; and

(2)  the appellant is in need of medication but she does not know how she can get the medication she needs.

15.  The appellant said the Correctional Services Department is not aware of her health problems.  She had missed her medical appointment scheduled on 19 September 2022 because of her incarceration.

The Respondent’s Submissions

16.  Mr Mak Kam Hung, Public Prosecutor, for the respondent submitted that the matters raised by the appellant do not render the guilty plea of the appellant a nullity.

Consideration

17.  I have considered all the materials before me, including the charge, the amended Brief Facts of the case and the transcripts of proceedings for the hearing on 25 August 2022.

18.  The appellant sought to reverse her guilty plea essentially on the sole ground that she is a person with HIV.

19.  In HKSAR v Chan Chi Ho Lincoln (2018) 21 HKCFAR 588 the Court of Final Appeal set down the legal principles on the reversal of guilty pleas. 

(1)  A plea is equivocal if a defendant adds to his plea of guilty a qualification which, if true, may show that he is not guilty of the offence charged.  An equivocal plea cannot be accepted and cannot form the basis of a conviction.  A conviction resulting from the erroneous acceptance of an equivocal plea is a nullity and must be set aside; no discretion is involved.

(2)  Whether a plea is equivocal is to be determined at the time it is made: anything that is said or comes to light after conviction cannot and does not retrospectively turn an unequivocal plea into an equivocal one; it instead may form the basis of an application to invoke the court’s discretion to allow a reversal of plea.

(3)  A “conviction” is not complete, and the court does not become functus, until sentence is passed.  Where it emerges after conviction but before sentence that there are matters which might show that the defendant is not guilty, the court has a discretion to allow a change of plea and should, whether on application or on its own initiative, consider exercising it.

(4)  The discretion that the court has to allow a change of plea is an unfettered one.  The way the court exercises it must turn on the facts, and the overriding consideration must be the interests of justice.  Further, while an equivocal plea is defined by the threshold of a qualification that, if true, may show that the defendant is not guilty of the offence charged, for the purposes of invoking the court’s discretion on allowing a reversal of plea, the threshold could be lower.  Depending on the facts, even in a case of doubt about the merits of the defendant’s case (as per his story), the court may still think that its discretion should be exercised in favour of allowing a reversal of plea, so that the matter can be properly tried at trial, bearing particularly in mind that in deciding an application to change plea the court should avoid conducting a mini-trial on the merits of the case on the basis of what the defendant now asserts before it.

20.  In my judgment, the guilty plea made by the appellant was unequivocal, no qualification of the kind as envisaged by the court in Chan Chi Ho Lincoln was made by the appellant or her counsel at the time.  The amended Brief Facts of the case admitted by the appellant fully supported the offence charged.  The guilty plea was also consistent with the mitigation advanced on the appellant’s behalf by the duty lawyer representing her.  In my judgment, the appellant’s guilty plea was plainly unequivocal.  The Principal Magistrate was right to accept the appellant’s plea of guilty.

21.  As the respondent rightly pointed out, the appellant was legally represented by a duty lawyer when she appeared before the Principal Magistrate on 25 August 2022.  With the assistance of an Indonesian interpreter, she pleaded guilty to the charge and admitted the amended “Brief Facts of the Case”.  Upon conviction, the duty lawyer representing the appellant made mitigation submissions on her behalf.  In my judgment the appellant’s guilty plea was unequivocal and should not be considered a nullity.

22.  In HKSAR v Wong Chi Yuk [2000]3 HKLRD 125, it was held that an unequivocal plea can be rendered a nullity if any one of the following circumstances is applicable:

(1)  the facts admitted by the defendant do not amount to the offence with which he is charged;

(2)  the admitted facts are equivocal as to guilt;

(3)  the plea was tendered to a charge which was defective on its face or invalid or unclear;

(4)  the plea was tendered involuntarily, e.g. induced by duress or misrepresentation or was not an exercise of free choice;

(5)  the plea was induced by fraud or made under a fundamental mistake; or

(6)  the plea did not result from a deliberate and informed decision.

23.  On the materials before me, none of the circumstances as identified by the court in Wong Chi Yuk existed in the present case.  There is no justification for the appellant’s unequivocal guilty plea to be rendered a nullity.

24.  In my judgment the appellant’s guilty plea was unequivocal, and there is no justification in nullifying the same.  The health issues of the appellant and her need to receive medical treatment do not affect the validity of her guilty plea.  The Principal Magistrate was right to convict the appellant on her plea of guilty and admission of the amended summary of facts.  The matters raised by the appellant, whether taken separately or collectively, do not render the guilty plea a nullity.

25.  For the reasons given, I dismissed the appellant’s appeal against conviction.