R. v. LAM YIN

MAGISTRACY CRIMINAL APPEAL NO. 1592 OF 1994

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

____________

__________________

J U D G M E N T

__________________

1. On 12th November 1994 at Western Magistrates' Court, the Appellant pleaded guilty to six charges of aiding and abetting six people to break the conditions of stay imposed on their entry into Hong Kong. He was sentenced to 15 months' imprisonment concurrent on each charge. The Appellant applied to the magistrate to review his decision. That application was heard on 24th November, and on that occasion the Appellant applied for leave to change his pleas to ones of not guilty. That application was refused, and the basis of his appeal against conviction is that the application to change his pleas should have been granted. He originally appealed against his sentences as well, but that appeal has now been abandoned.

2. The Record of Proceedings shows what actually happened when the Appellant appeared in court on 12th November. He was not represented. The six charges were read to him and he entered pleas of guilty. The magistrate then considered whether to accept the pleas tendered by the Appellant. Accordingly, the brief facts were read. They recorded that the Appellant had admitted that he had been asked to accommodate the six people to whom the six charges related in a flat which he rented. He had admitted that he had been aware that they were overstayers in Hong Kong, and that arrangements were being made for them to go to the United States. He had also admitted that he was to receive US$12,000.00 as payment. The Record of Proceedings shows that the Appellant said two things. First, he said that he was not a snake-head. Secondly, he agreed that he had been aware - presumably of the fact that the six people to whom the charges related were overstayers. He did not say in terms that he had accommodated them, but the magistrate was entitled to assume from the fact that he did not have any other comment to make on the brief facts that the Appellant was admitting that as well. In those circumstances, there can be no question of the Appellant's pleas of guilty being anything other than unequivocal, and no fault can possibly be attributed to the magistrate for convicting the Appellant on his pleas.

3. The Appellant complains that the magistrate did not warn him of the seriousness of the charges he faced, or inform him that he could, if he wished, apply for an adjournment to obtain legal representation. I do not think that it was necessary for the magistrate to mention either of those things to him. A magistrate is entitled to assume that a defendant knows whether the charge he faces is a serious or a trivial one. It is only if there is something about the case which causes the magistrate to suspect that the defendant might not realise the gravity of the charge he faces that there is a duty on the magistrate to inform the defendant of its seriousness.

4. As for legal representation, a magistrate is entitled to assume that a defendant is aware of his right to representation. Indeed, in his Statement of Findings, the magistrate referred to the fact that when a defendant is charged, he receives a document which explains, amongst other things, what his rights of representation are. The magistrate did not attach a copy of that document to his Statement of Findings, and it was therefore necessary for my clerk to obtain a copy of it from the Magistracy yesterday. Although the document refers to a defendant's right to have legal representation, it does not actually say that a defendant can, if he wishes, apply for an adjournment to obtain legal representation. However, the document warns a defendant of the consequences of attending court without a lawyer having previously told the court that he wanted a lawyer. The inference which any defendant should be able to draw from that warning is that he can apply for an adjournment to obtain legal representation if he wants to.

5. The magistrate's observation assumed that the Appellant had indeed been given a copy of the document to which the magistrate referred. Mr. Wesley Wong for the Crown has told me that none of the immigration officers or the police officers involved in the Appellant's case, nor the duty lawyer, themselves handed the document to the Appellant. Unlike the magistrate, I am not prepared to assume that the Appellant received the document. Having said that, though, I am not prepared to say that whenever an unrepresented defendant first appears before a magistrate, the magistrate is obliged to tell him that, if he wishes, he can apply for an adjournment to obtain legal representation. It is, in my view, for the magistrate to decide in each individual case whether the case is such that the defendant should be expressly told that. I have not discerned anything in this case which might have led the magistrate to conclude that the Appellant may have been unaware that he could, if he wished, have asked for the case to be adjourned for him to obtain legal representation.

6. However, although I reject the criticisms levelled against the magistrate's conduct of the proceedings on 12th November, the fact remains that the Appellant was saying through his counsel on 24th November that he had been unaware of the seriousness of the charges. That was because one of the immigration officers who had arrested him had told him that as he had no previous convictions, and as he was a permanent resident of Hong Kong, and as he had not received any money from the six people to whom the charges related, he would only be fined if he pleaded guilty. Although the Appellant's case was that he had never known that the six people had been overstayers, he claims that he was told by the same immigration officer that he had no defence to the charges. Accordingly, he decided to plead guilty because he thought he had no defence, and because he thought that if he did so, he would only be fined. His decision to plead guilty, it is said, explains his admission in court that he had been aware that the six people had been overstayers.

7. It is axiomatic that a plea of guilty should be entered voluntarily. If, at the time a defendant is required to plead, he is subjected to such pressure that he does not genuinely have a free choice between pleading guilty and not guilty, his plea is a nullity. The same is true if the defendant pleads guilty only because the true facts have been seriously misrepresented to him: see, for example, the decision of Woo J.in Li Yuen Chu (MA 331/93). What the Appellant claims he was told by the immigration officer is, in my view, capable of being regarded as a misrepresentation to him of the true facts to such an extent as to deprive him of a free choice of plea. Whether the immigration officer actually said what the Appellant claims, and what its impact on the Appellant actually was, however, were issues of fact which had to be determined before the magistrate could have decided whether the original pleas could be characterised as nullities.

8. That was an enquiry which the magistrate did not embark upon. What the magistrate said in his Statement of Findings was this :

"[The Appellant] had been told by an Immigration Officer that [the] outcome of a guilty plea would be a fine. There was no evidence of this being said. The burden is upon the Appellant to put forward reasons why the plea should be set aside. The Court would expect to hear evidence of this alleged conversation if it had taken place."

As it was, there was no evidence of the conversation because the magistrate did not tell the Appellant's counsel that without evidence he was not prepared to accept what the Appellant claimed he had been told. Had he done so, the Appellant could have given evidence himself. However, the immigration officer would not have been in court on 24th November to give evidence himself. What the magistrate should have done in those circumstances, therefore, was to adjourn the application for leave to change the pleas to a date upon which both the Appellant and the immigration officer could give evidence about the alleged conversation. The magistrate's failure to do that meant that he was not in a position to determine whether the allegations made on the Appellant's behalf by his counsel were true, and what their impact on the Appellant had been.

9. What course should I take now? A similar situation arose in Wong Kam Chu (MA 427/93). In that case, I ordered the appeal to be adjourned to a date to be fixed when I would hear the evidence of the Appellant and the police officer whom the Appellant had alleged had induced him to plead guilty, and decide the issues of fact myself. Mr. James Kynoch for the Appellant invites me not to take that course. A hearing on the issues would, since the case against the Appellant was based principally on admissions, amount to a hearing akin to the trial itself. To save time and costs, Mr. Kynoch asks me to allow the appeal, quash the convictions and order a retrial. That is what Huggins V.-P. did in Law Hau On (CA 578/82).

10. I do not think that that would be an appropriate course. If I took that course, it would be tantamount to assuming that the Appellant was told what he says he was told by the immigration officer. I have no doubt that an enquiry of the kind that I have mentioned should take place. In the United Kingdom, the enquiry is conducted by the Crown Court (see R. v. Plymouth Justices ex p. Hart (1986) 83 Crim. App. R. 81), and in my view that accords with the view I reached in Wong Kam Chu. Since the enquiry relates to whether the convictions should be quashed, the enquiry should be conducted by the appellate court rather than by the court of first instance.

11. For these reasons, this appeal will be adjourned to a date to be fixed when I will hear the evidence of the Appellant and the immigration officer, and decide the issues of fact to which the application for leave to change the pleas relates.