HKSAR v. CHEN ZHI QIANG

(English Translation)
HCMA 514/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 514 OF 2000

          (On appeal from FLCC 741 of 2000)

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JUDGMENT

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1. The appellant pleaded guilty at the Fanling Magistracy to a charge of possession of a forged Hong Kong Identity Card (contrary to section 42C(1) and (4) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong) and another charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully (contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong).  He was sentenced to imprisonment for 10 months.  Having been granted leave by the magistrate, the appellant now appeals against the conviction on the second charge.  The ground of appeal is that he did not enter Hong Kong illegally as he arrived holding a two-way permit.

2. According to the relevant transcript, after the court interpreter at the magistracy read out the first amended charge to the appellant in Punti dialect, he pleaded guilty to the charge.  Then the second charge was read out to him in Punti dialect, and he again pleaded guilty to the charge.  The court interpreter then read out the brief facts of the case to the appellant and asked him if he agreed to them.  He answered, “Agree.”

3. In granting leave to the appellant to appeal out of time, the magistrate gave the following explanation in his Statement of Findings.

After the appellant pleaded guilty to the charge in court on 10 April, the brief facts of the case, which were very simple and easy to understand, were read out to him.  He admitted that when the police stopped and searched him, he produced a forged identity card as his own identity card (the first charge) and he was then arrested.  Under caution, he admitted that he bought the identity card in the mainland for RMB 3,000.  Subsequently, on 4 April 2000 he took a boat and entered Hong Kong illegally.  After the court read out the facts of the case to the appellant, he agreed to them and had nothing to add.  If he did “illegally enter” Hong Kong by boat, then he would not have entered Hong Kong through an immigration counter at the border, which means he would not have been able to use the two-way permit [to enter Hong Kong] lawfully.  Counsel for the appellant, who acts on the instruction of the Duty Lawyer Scheme, has advised me that the appellant has no criminal record in Hong Kong.

4. This was what happened at the magistracy.  Today the appellant told this court that his real name is Deng Yong Jian and that he entered Hong Kong with a two-way permit.  He explained that he admitted to the charge because he did not have the two-way permit with him when he was questioned by the police and, being flustered and out of fear, he gave a false name and admitted to illegal entry.  In fact he is a native of Qingyuan County, Guangdong Province and he came to Hong Kong with a two-way permit, so he did not enter Hong Kong illegally and the second charge against him could not have been established.

5. Counsel for the prosecution pointed out that, in a recent judgment on 31 March in HKSAR v. Wong Chi Yuk, HCMA 381/1999, the Court of Appeal stated that an appellant may only lodge an appeal pursuant to section 113 of the Magistrates Ordinance, and section 113 only applies where a defendant did not plead guilty and was convicted after trial.  The appellant in the present case pleaded guilty to the charge, and therefore he must prove that his guilty plea was a nullity before he can pursue an appeal.   It is clear from the above judgment of the Court of Appeal that only in certain circumstances would the court treat a guilty plea as a nullity.  In essence, these circumstances are: when the facts admitted by the defendant do not amount to the offence as charged; the admitted facts are equivocal as to guilt; the plea was tendered to a charge which was defective; the plea was tendered involuntarily, induced by fraud or made under a fundamental mistake; or the plea did not result from a deliberate decision.  The circumstances of the case in Wong Chi Yuk were virtually the same as the present case.  That case also involved a mainlander who came to Hong Kong with a forged document.  At trial, he admitted to illegal entry into Hong Kong, but on appeal, he said he came to Hong Kong lawfully with a two-way permit.  Having considered the decided cases, the Court of Appeal held that there was no valid ground for nullifying the defendant’s guilty plea.  It followed that section 113 of the Magistrates Ordinance was not applicable at all, and therefore the appeal had to be dismissed.  For the same reason, the appellant in the present case fails to put forward sufficient grounds for overturning his guilty plea, and therefore his appeal must be dismissed.

6. The Court of Appeal in Wong Chi Yuk pointed out that if the appellant believed there were circumstances worthy of sympathy or reconsideration, for instance, he came to Hong Kong legally and not unlawfully, then he could petition to the Chief Executive for a pardon for early release so that he could then be repatriated.  It is, of course, up to the appellant to decide whether he wishes to explore this avenue. 

The appellant in person.

Ms Rosaline Leung, Senior Government Counsel, for the respondent.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor