HKSAR v. CHAN LAI NA

HCMA1184/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1184 OF 1999

(ON APPEAL FROM SPCC 6799 OF 1999)

----------------------

-------------------------

J U D G M E N T

-------------------------

1. The appellant, Chan Lai Na, also known as Lin Qiao Ying, pleaded guilty to possession of a forged travel document, contrary to section 42(2)(c)(i) of the Immigration Ordinance, Cap.115. She was sentenced to four months' imprisonment.

2. The subject matter of the charge was a People's Republic of China Passport which was found on the appellant on 9 October 1999 at the Hong Kong International Airport when she was checking in for a flight bound for New York. The airline staff suspected that the passport she produced was a forgery and reported the matter to the Immigration Department.

3. The appellant was taken into custody and under caution, she admitted that the passport did not belong to her and that the original photograph of the passport holder was removed and was substituted with her photograph. She was charged with the present offence and brought before a magistrate.

4. On 12 October 1999, she pleaded guilty to the charge in San Po Kong Magistracy and admitted the Summary of Facts supporting the charge. She was sentenced to four months' imprisonment on the same day. On 29 November 1999, she was granted leave by the magistrate to file a Notice of Appeal against conviction out of time and was admitted to bail pending appeal.

5. In the meantime, the appellant applied to the Director of Legal Aid for assistance. Mr Osmond Lam of counsel was assigned by the Director of Legal Aid to represent her in her appeal which was listed for hearing on 31 January 2000.

6. Shortly before the appeal, the Director of Legal Aid filed three Notices of Motion pursuant to section 118(1)(b) of the Magistrates Ordinance for leave to admit fresh evidence for the purpose of the appeal. The evidence consist of three affirmations together with their exhibits by a family friend of the appellant; the elder brother of the appellant and by the appellant herself. At the hearing, the Motions were not opposed by the Secretary of Justice. It would be useful to note that neither the truth of the contents of the affirmations nor the authenticity of the attached exhibits were in dispute.

7. There were two grounds of appeal. The first ground was that the conviction of the appellant was unsafe and unsatisfactory in the light of the fresh evidence. Her plea of guilty was not voluntary and was made under duress. Counsel for the appellant argued on the second ground that the case should be remitted to the magistracy with a view to set aside the conviction in the light of the fresh evidence admitted.

8. I do not propose to go into the detail of the contents of the affirmations. Suffice it for me to say that the account given by the appellant of her experience and the treatment she received when she was detained in the airport, and subsequently prior to entering a plea of guilty to the charge clearly constituted a case of duress. The truth and accuracy of her account was never in issue. In the light of such evidence, Mr Patrick Cheung, Senior Assistant Director of Public Prosecutions, in his usual fairness, conceded the appeal.

9. There was also produced before this court, by consent of both parties, a report by Ms Leung Yee Mei, who is a Document Examiner in the Questioned Documents Section of the Forensic Science Division of the Government Laboratory. According to Ms Leung, she examined the subject passport and found no evidence of forgery or photo-substitution, nor that the passport had been tampered with in any way. This finding was in contradiction to what the appellant had allegedly confessed to when she was interviewed under caution.

10. One aspect of this case which caused some concern to the parties was that since the appellant in this case pleaded to the charge, she could not bring her appeal under section 113(1) of the Magistrates Ordinance as the section only applies to those appellants who did not plead guilty or admit the truth of the information or complaint. In this regard, I find the case of HKSAR v. Au Yeung Boon Fai, MA120 of 1999 to be of great assistance and I am guided by Keith JA's judgment of the Court of Appeal :

"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 section 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."

In the light of the above passage, this court has jurisdiction to entertain an appeal under section 113(1) if the guilty plea in the court below was entered as a result of duress or misrepresentation. As I have indicated earlier, the contents of the appellant's affirmation shows a clear case that her plea of guilty was induced by duress. This being the case, and upon concession by the respondent, all that was left for this court to do is to allow the appeal and quash the conviction. The sentence of four months' imprisonment is hereby set aside.

11. I might venture to add that in allowing this appeal I am in no way critical of the manner in which the learned magistrate had handled the case when the appellant appeared before him. Based on the available evidence before him at the time, he took the only appropriate course open to him which was to convict the appellant on her own plea.