R. v. LAI KA YI and Others

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 828 OF 1995

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REASONS FOR ALLOWING APPEAL

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1. This matter first came before Ryan J. in Magistracy Appeal No. 828 of 1995. By a certificate dated 26 October 1995 Ryan J. directed that the appeal be argued before the Court of Appeal in pursuance to section 118(1)(d) of the Magistrates Ordinance, Cap. 227. On 29 February, the Court of Appeal (Power V-P, Liu J.A. & Wong J.) remitted the appeal to a High Court Judge for determination.

2. On 7 March 1996, an Amended Ground of Appeal was filed in substitution of the original grounds filed previously. This contains only one ground and it is as follows :

"That the Appellant's plea of guilty to the information dated 17th March 1995 alleging the commission of an offence contrary to s. 6 Gambling Ordinance, Cap. 148 on 19th January 1995 was induced by legal advice by his counsel that were he to plead guilty to the offence he would nonetheless have the right to appeal to the High Court against his conviction. Such advice was erroneous and meant that the Appellant was not fully informed about the consequences of a guilty plea. In the circumstances the plea of guilty may be set aside and the case remitted to a magistrate for the purpose of a valid hearing in accordance with the requirements of s. 19(1) Magistrates Ordinance, Cap. 227."

In an affirmation dated 14 February 1996, Chung Kwok Wing, D11, deposed that that was the advice given to him and other Defendants by their counsel at the trial. In response to a direction of the Court of Appeal, Mr. C.P. Pang who was counsel for the Defendants wrote on 4 March 1996 and the relevant part of his letter read :

"I was the trial counsel of the above-named appellants. Before the appellants pleaded guilty to the offence of gambling under S. 6 of the Gambling Ordinance, I had taken a preliminary point that S. 6 had been repealed being inconsistent with the Bill of Rights Ordinance. The learned Magistrate ruled against me and held that the offence was bill-consistent and had not been repealed. The defendants were not satisfied with this ruling. I advised that they could appeal against this ruling. On appeal, if the appellate court were to find that the offence had been repealed, such an offence would be unknown to law and therefore their convictions would not stand. These were the advice I gave to the defendants so far as I could remember, although I have no particular impression of the above-named appellants."

3. Even one accepts what is said here, the advice is ambiguous and could have caused confusion and misunderstanding in the mind of a layman. It is on this basis and in the interest of justice that the appeal was allowed and a new trial ordered in respect of Chung Kwok Wing, D11 and Tang Wing Fong who were both present at the hearing before me to pursue the appeal. D11 was represented by Mr. Philip Dykes of counsel.

4. No fault is attributed to the trial Magistrate and there is no criticism of him.