R. v. LEE CHIU LAM

IN THE COURT OF APPEAL

1995, No.712
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this matter faced one charge of perverting the course of public justice. That charge was particularised in the following way - that he, on 20th July 1994 inside Hei Ling Chau Detention Centre, did an act tending to pervert the course of public justice, namely made false allegations of theft against Wu Hoi-biu intending that he should be prosecuted, or knowing that he might be prosecuted, and intending that the course of justice should thereby be perverted. He pleaded guilty to that charge and admitted the following facts. On the 19th April 1994 a madam Ng Wing-yi made a report of theft to the police. She stated that she discovered property which included a TV set, a karaoke Hi-fi and other equipment was missing and that Wu Hoi-biu, a friend of her boyfriend, who was the applicant and who was then in Stanley Prison, had absconded. She said that she went to visit the applicant in Stanley before making a report to the police. Wu was arrested, charged with theft and pleaded not guilty. The applicant, upon being interviewed, stated firmly that he had not allowed his friend Wu to take property from his house. The trial was adjourned at its first fixed date on 8th July and on the 20th July the applicant admitted to an investigating detective that he had borrowed $5,000 from a friend and that Wu had guaranteed that loan. He insisted, however, that he had not given consent to Wu to take his property. The Crown then proceeded with the trial on 7th September 1994. In the course of the trial the applicant changed his version saying that he had consented to Wu selling his property in order to repay the loan. The charged was dismissed and Wu was acquitted.

2. On 28th November the applicant under caution admitted that he had allowed Wu to put his property in pledge if he failed to settle the debt and he admitted lying to the policeman when he gave his statement.

3. The applicant comes before us today seeking to have his plea of guilty declared a nullity. He does so upon the ground that he did not, in fact, commit the offence and that he only pleaded guilty because his counsel had, to put the matter shortly, told him that, at worst, he would get imprisonment for three months and, at best, receive a concurrent sentence.

4. In R. v. Peace (1976) C.L.R. 119 the Court of Appeal held as follows:

"That an accused who pleaded guilty following and adopting the advice of his counsel albeit unhappily and with reluctance could not be said to have lost his power to make the voluntary and deliberate choice and thus say this plea amounted to a nullity.

We are quite satisfied that his plea cannot properly be regarded as a nullity even if the circumstances were as he states them to have been.

5. We need deal finally with his application for leave to appeal against sentence. He has asked to be discharged sooner saying that he has to look after his elderly grandmother.

6. The sentence imposed was a light one. The judge, when imposing it, said that he recognised the charge was a serious one but bore in mind that the defendant was nearing the end of a lengthy sentence at the time it was imposed. He considered that the proper sentence would have been one of 15 months but bearing in mind the plea and the mitigation he was prepared to impose a sentence of ten months. He ordered that to be consecutive to the sentence being served. Nothing can be urged to suggest that that was not a proper sentence.

7. Neither the application for leave to appeal against conviction nor that to appeal against sentence has any merit whatsoever. Both are refused and it is ordered that the applicant lose two months of time.