HKSAR v. FOK SIU WING

HCMA 55/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 55 OF 2014

(ON APPEAL FROM KTCC 3841 OF 2012)

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J U D G M E N T

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BACKGROUND

1.  On 20 July 2012, the Appellant was convicted by the magistrate upon his own plea of one charge of “gambling in a gambling establishment” and was fined HK$500.

2.  At the time when the Appellant entered his plea, he said this, “Guilty, but we didn’t gamble.”  When the magistrate further enquired with him as to why he pleaded guilty, the Appellant, who was acting in person, replied, “Being taken to the court by force, how can (one) plead not guilty (?)”  Thereafter, the magistrate asked the Appellant to listen to the facts of the case.  The facts were then read out and the Appellant admitted them.  Afterwards, the magistrate proceeded to convict the Appellant and passed sentence when mitigation had been advanced.

3.  Subsequent to the conclusion of the proceedings, the Appellant was granted legal aid and sought to challenge the validity of his conviction by way of judicial review.  Leave was originally granted to the Appellant but, on the Secretary for Justice’s appeal to the Court of Appeal, leave was set aside.  In brief, the Court of Appeal noted that leave should not have been granted to the Appellant as there were no exceptional circumstances in this case which warranted the engagement of the supervisory jurisdiction by way of judicial review as opposed to challenging the conviction by way of appeal (see Fok Siu Wing v SJ CACV 105/2013, 13 January 2014, unreported).

4.  The matter now comes before me after the Appellant was granted an extension of time to appeal his conviction.

GROUND OF APPEAL

5.  The sole ground of appeal relied on by Mr Edward Fan, counsel for the Appellant, is that since the Appellant denied gambling, his plea was equivocal.  The conviction is therefore unsafe and unsatisfactory.

THE RESPONDENT’S STANCE

6.  Mr Cliff Ip, Public Prosecutor for the Respondent, made it clear in his written submissions that given the facts of this case, the Appellant’s plea was equivocal.  Mr Ip pointed out that at the time when the Appellant entered his plea of guilty, he had told the court that he did not gamble.  A similar claim was also made by the Appellant after he had been cautioned at the scene.

7.  There is no dispute that the act of gambling is an essential element of the offence in respect of which the Appellant was convicted.  Therefore, when the Appellant denied having gambled at the material time, his denial might render his plea equivocal.  In the circumstances, the magistrate should have inquired into the matter and sought clarification from the Appellant before deciding whether his plea could be accepted.  In HKSAR v Ng Chi Wai [2012] 3 HKLRD 356, 361, Hartmann JA referred to what O’Connor J said in P Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751 in the context of whether a plea is equivocal :

“A court cannot accept an equivocal plea of guilty: it has no discretion in the matter; faced with an equivocal plea, the court must either obtain an unequivocal plea of guilty or enter a plea of not guilty. For a plea to be equivocal, the defendant must add to the plea of guilty a qualification which, if true, may show that he is not guilty of the offence charged. …”

CONCLUSION

8.  In the light of the utterances made by the Appellant in the proceedings before the magistrate and the fact that the magistrate had not examined whether the Appellant’s plea was equivocal, I find that the conviction was unsafe and unsatisfactory.

9.  For the reasons set out above, the Appellant’s appeal is allowed.  His conviction is quashed and the sentence set aside.  I also order that the matter be referred back to the Magistrates’ Courts for re-trial before another magistrate.  The Appellant does not object to this.