HKSAR v. CHONG KA CHUN

HCMA226/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.226 OF 2000

(On Appeal from NKCC 4921 of 1999)

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J U D G M E N T

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1. The appellant was charged with the following offence :

CHARGE :-	Attempted to escape from lawful custody
Statement of offence :-	Contrary to Common Law, and Section 159G of the Crimes Ordinance, Cap.200, Laws of Hong Kong.
Particulars of offence :-	CHONG Ka-chun, you are charged that on the 11th day of August, 1999, at Room 2, 2nd Floor, Cedar House of O Pui Shan Boys' Home, Kau Wa Keng, Lai Chi Kok, Kowloon, in Hong Kong, being a person in the lawful custody of O Pui Shan Boys' Home, you did attempt to escape from the lawful custody of the said Boys' Home.

2. The appellant pleaded guilty to the charge. He was duly convicted by the learned magistrate and was sentenced to the training centre. The appellant subsequently sought to appeal against the conviction. Leave was granted by the magistrate for the appellant to lodge his appeal out of time.

3. The perfected grounds of appeal contained four main points. In the first ground, it was stated that the common law offence of attempting to escape from lawful custody does not exist in the law of Hong Kong so the guilty plea was erroneously accepted by the magistrate and the conviction was a nullity. In the second ground, it was argued that the facts admitted by the appellant could not support the charge. In this connection, it was raised that the appellant's confinement was in contravention of the Reformatory School Rules, the Bill of Rights Ordinance and international instruments on human rights. Hence, the appellant had been placed under unlawful custody when the alleged offence took place. The third ground of appeal related to the trial of the appellant's co-accused. He pleaded not guilty to a similar charge and was acquitted after trial. The magistrate actually ruled that there was no case to answer. The appellant submitted that such a finding was relevant to his case. Finally, the appellant relied on the formal ground of the conviction being unsafe and unsatisfactory. The main issue is clearly the validity of the charge.

4. The background of this case required some explanation. In this regard the learned magistrate had given a clear summary of what had transpired. The following paragraphs are taken out from his Statement of Findings :

"1. On 27th August 1999 the appellant (D1) appeared before Principal Magistrate Saunders in Court 1, North Kowloon together with one LAW Kau-wing, aged 14 years (D2).

2. Each faced a charge of having attempted to escape from the custody of the O Pui Shan Boys' Home. This was charged as being 'Contrary to section 159G of the Crimes Ordinance, Cap.200 and Section 17(a) of Prisons Ordinance, Cap.234, Laws of Hong Kong.'

3. The appellant and D2 were represented by the Duty Lawyer Scheme throughout.

4. Both the appellant and D2 pleaded guilty and agreed to the Brief Facts before Principal Magistrate Saunders who then remanded the matter until 10th September for reports from O Pui Shan Boys' Home.

5. On 10 September, in the absence of Principal Magistrate Saunders on other duties, the appellant and D2 came before me in Court No.1.

6. Each confirmed their earlier pleas of guilty and agreement with the Brief Facts on 27th August.

7. I further remanded the matter until 30th September and called for the full range of reports, in keeping with submissions from the Duty Lawyer Scheme representative.

8. On 30th September, having considered the reports and the submissions thereon, I sentenced the appellant to Training Centre and transferred D2's case to be dealt with by the Juvenile Court Magistrate at Kwun Tong.

9. On 8th October both the appellant and D2 were back before me. This was upon the application of the prosecution who submitted the original charges had been discovered to be defective. The prosecution tendered amended charges, the amendment being the addition of reference to 'Contrary to Common Law ...'

10. The prosecution applied to have the existing conviction and sentences set aside and for pleas to be taken on the amended charges.

11. The Duty Lawyer expressed agreement with this proposal.

12. I set aside the conviction I had entered on 27th August. The Training Centre sentence upon the appellant was also set aside. D2 had not yet been sentenced by the Juvenile Court.

13. The amended charges were put to the appellant and D2. The appellant pleaded guilty. D2 pleaded not guilty. D2's case was once again remanded back to the Juvenile Court at Kwun Tong, for trial.

14. Following the appellant's plea of guilty he again agreed to the Brief Facts. I entered a conviction.

15. I duly re-sentenced the appellant to Training Centre."

5. Against such a background, the first hurdle the appellant had to meet in this appeal was the fact that he had pleaded guilty to the offence. The appeal was brought under section 113 of the Magistrates Ordinance, Cap.227. The section stipulates that :

" Any person aggrieved by any conviction ... of a magistrate ..., who did not plead guilty or admit the truth of the information, may appeal from the conviction ... to a judge."

Hence, the question to ask was whether the appellant had the right to appeal against conviction when he, having had the benefit of legal advice, chose to plead guilty to the charge in the first place.

6. The latest authority regarding this subject appears to be the case of HKSAR v. Wong Chi Yuk, HCMA381/1999. Mr Justice Woo, JA, giving judgment of the court, held that "it is settled law that a person convicted of an offence by his own plea of guilty cannot appeal against that conviction pursuant to section 113(1) of the Magistrates Ordinance". However, it was also held that an unequivocal guilty plea could be rendered a nullity in the following instances :

"(1) The facts admitted by the defendant do not amount to the offence with which he is charged - as in CHAN Wai Lam and LI Tung Hing;

(2) The admitted facts are equivocal as to guilt - CHAN Ching Chi;

(3) The plea was tendered to a charge which was defective on its face or invalid or unclear - as in CHAO Tse Yun (No 2), CHEUNG Kwok Cheung and LUI Yiu Shing;

(4) The plea was tendered involuntarily, eg, induced by duress or misrepresentation or was not an exercise of free choice - as in MA Kam Wing and per AU YEUNG Boon Fai;

(5) The plea was induced by fraud or made under a fundamental mistake - per R v Peters as referred to in LI Wa San; or

(6) The plea did not result from a deliberate and informed decision - per WONG Wai Leung as cited in LI Wa San."

7. Counsel for the appellant argued that the first three situations referred to in Wong Chi Yuk would be applicable in the present case and the main problem being that the Reformatory School Ordinance, Cap.225, had repealed the common law offence of escape from lawful custody. Therefore there was no valid offence for the appellant to plead to.

8. One of the basic arguments advanced by the appellant was that that the Ordinance made no express stipulation that such conduct would be a criminal offence, whereas by contrast, the Prison Ordinance, Cap.234, had done so. It was counsel's submission that the intention of the legislature behind the Reformatory School Ordinance was clear. The purpose of the institution was not to serve as a penal regime, it should be governed like a school. Hence, there were no statutory offences written in the Ordinance except the offence of aiding escape, which was necessary as it sought to control the outsiders who tried to assist or encourage inmates to escape (section 31).

9. What counsel tried to say was that the Ordinance intended the school to impose discipline only and not to criminalize the inmates' conduct, even for their escape. Counsel further pointed out that penalties for juvenile offenders were always clearly defined. The fact that it was not so referred to or defined in this Ordinance would strengthen the argument that the legislature must have intended to repeal the common law offence, at least in the context of the reformatory school.

10. I have taken time to go through counsel's submissions; however, having carefully considered the provisions of the Reformatory School Ordinance as a whole, I found I could not agree with counsel's conclusion that the common law offence of escaping from legal custody had been repealed by the Ordinance.

11. I noted that counsel relied heavily on sections 28 and 29 of the Ordinance to argue that the escaping of an inmate would only be a disciplinary matter as the sections stated that the fugitive boy could be apprehended without warrant and be taken back directly to the reformatory school. Then if the Director of Social Welfare Department considered that the boy was unsuitable for further detention in the school, an application could be made to the magistrate for the inmate to be detained in the training centre, or detention centre, or to commute the unexpired period of detention in the school to a term of imprisonment.

12. In relation to the above provisions, I take the view that the Ordinance is simply giving authority to a police officer or the staff of the school to efficiently apprehend the boy and take him back to the school. This appears to be merely a procedural authority. I am not convinced that the arrangement could be taken to imply that a substantive common law offence is to be taken as repealed.

13. Furthermore, it does not seem to be the case that the Ordinance aims to remove all criminal sanctions from the operation of the school and to leave everything to discipline. Section 21(2) of the Reformatory School Ordinance provides that :

" Any youthful offender who is bound (as an apprentice) as aforesaid and who absconds from the service of his master shall be liable to be arrested without warrant and brought before a court of competent jurisdiction and shall be liable to imprisonment for 3 months ..."

Hence, for an inmate who absconds from the service of his master, he can be subjected to criminal sanction. Apparently, the Ordinance has to provide this specifically because there is no common law offence to cover this kind of conduct.

14. In considering the authorities and materials submitted, I found some useful references in the Craise on Statute Law (7th Edition), Chapter 14. Under the heading that "Where common law and a statute conflict, the latter prevails", the learned author stated in p.339 that :

"... If it is clear that it was the intention of the legislature in passing a new statute to abrogate the previous common law on the subject, the common law must give way and the statute must prevail; but there is no presumption that a statute is intended to override the common law. In fact the presumption, if any, is the other way, for 'the general rule in exposition is this, that in all doubtful matters, and where the expression is in general terms, the words are to receive such a construction as may be agreeable to the rules of common law in cases of that nature, for statutes are not presumed to make any alteration in the common law further or otherwise than the Act does expressly declare.' 'It is a well-established principle of construction that a statute is not to be taken as affecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion.' And if, as Coleridge J. said in R. v. Scott, there is 'a seeming conflict between the common law and the provisions of a statute,' it is not right to begin 'by assuming at once that there is a real conflict and sacrificing the common law'; we ought rather to proceed in the first place ' by carefully examining whether the two may not be reconciled, and full effect given to both.' 'It is a sound rule,' said Byles J. in R. v. Morris, 'to construe a statute in conformity with the common law rather than against it, except where and so far as the statute is plainly intended to alter the course of the common law.'" (emphasis added)

15. As I said earlier, sections 28 and 29 only seek to provide an efficient way for the absconding inmate to be taken back to the school and, where necessary, an application could be made for the inmate to be sent to one of the two centres or even prison. This summary procedure does not support the argument that the common law offence is therefore repealed. The Ordinance should be construed to be in conformity with the common law.

16. In fact, if an inmate could be ordered by the court to go to training center or prison by way of a disciplinary procedure, one may justifiably ask why then is it necessary for the legislature to repeal the common law offence whereby the inmate could also be sentenced to prison by the court. Of course, there may be a difference in practical terms. Arguably, if the court simply orders the inmate to be sent to the training centre under section 28, there may not be a criminal record, whereas if the inmate is sentenced to the training centre, he would have a record.

17. But even if this is correct, it may be recalled that according to section 28, an inmate could only be transferred if the Director of Social Welfare Department considers him no longer suitable for detention in the school. This could be a drastic action to take in some instances. If the school authority does not want to take that particular course, then they can only keep him in the school with no other alternative except imposing disciplinary punishments. By the common law charge, however, the inmate could be brought to court, presumably before a Juvenile Magistrate, who has the whole range of sentencing options available to him in dealing with the situation. In an appropriate case, the magistrate could even consider discharging the boy under section 15 (1) (a) of the Juvenile Offenders Ordinances Cap. 226. In that event, he would have no criminal record also.

18. Furthermore, I consider that the existence of this common law offence would not affect or weaken the disciplinary authority of the school. On the contrary, it would serve as an effective back-up to be invoked when it is necessary and appropriate to do so. In each case where an inmate escapes, which I presume is not very often, it would be a matter for the school authority and the prosecution to choose between disciplinary measures or criminal sanction. I do not think that the legislature would wish to limit the methods of dealing with a young offender by repealing the offence. Had the legislature really intended to do away with the offence, it would have been made in clear and unambiguous terms.

19. It is my conclusion that that the offence to which the appellant has pleaded does exist, and the charge is a valid one.

20. The next issue raised by counsel was that the admitted facts did not really support the charge. In this regard, I will quote the admitted facts here in full :

" Defts are inmates of O Pui Shan Boys' Home. Due to their poor behavior. Defts were placed inside two isolated rooms (room 2 & 4) at 2/F. At 0020 hours on 11-AUG-99, PW1 was on duty and suddenly found Defts escaped from their rooms. Upon seeing PW1, Defts at once returned to their rooms. PW1 then alerted another staff (PW2) and after checking, it was revealed that Defts broke the bed stands inside their rooms and used them to remove the glass on the wooden door to escape. A report was made and Defts were arrested by PW3-4. Under caution. Defts admitted the offence.

2. Defts were formally charged with the offence to appear Juvenile Court of Kwun Tong Magistracy on 27-AUG-99."

Also, according to the information available on the admitted facts, the location involved was Room 2, 2/F, Cedar House, O Pui Shan Boys' Home, Kau Wa Keng, Lai Chi Kok. In this regard, Counsel for the appellant had helpfully provided further information about the place in paragraphs 27 of his written submission. However, such details were not really part of the agreed facts.

21. Counsel argued that the confinement in the room was unlawful. It was said that the place immediately outside the rooms was also an unlawful detention area ("the living area"). Counsel pointed out that the facts showed only that the appellant had come out to the living area from the room, so there was no sufficient basis to charge the appellant with the offence.

22. As I understood the position, counsel submitted that if confinement of the appellant in the 2nd floor of Cedar House, and particularly inside the room, was unlawful, then the appellant's conduct of leaving the room and getting into the living room would not constitute the offence. There was simply no legal custody for him to escape from. However, counsel had rightly accepted that if the appellant was actually trying to leave the school compound, then the offence might be constituted provided that his acts could satisfy the law of attempt. This should be the case because even if the appellant might be entitled to leave any place of unlawful detention, but he would not be entitled to leave the school altogether.

23. I noted that the charge was not in relation to the appellant's escape from the room into the living area where they were seen. If that was the case, the charge would have been having escaped from legal custody and the issue of lawfulness of the detention might be relevant. But here, the basis of the offence was clearly that the appellant was attempting to escape from the school. And that was the charge he had pleaded guilty to.

24. Counsel had argued strongly that the admitted facts only disclosed a case of preparation and not attempt. In response to the court's query, counsel proposed that unless the boy had reached the main gate of the school, otherwise, it would still be in the preparatory stage only. I do not agree with this submission. The admitted facts disclosed that the appellant had used some tools in order to get out of the room. Although the admitted facts did not state how far the appellant had to go before reaching the main gate, the clear inference would be that he had taken actual steps to carry out his escape and not simply preparing for it. The appellant might have to cover further distance and overcome other obstacles to complete his venture, but he had already taken steps, albeit initial steps, for the purpose of his escape.

25. In any case, whether it was a case of "preparation" or "attempt", it should be a question of fact and inference for the magistrate. The Magistrate was satisfied that it was a case of attempt regard when he accepted the plea. In the circumstances, I found no merit in the argument that the admitted facts did not support the charge.

26. As to the relevance of the learned magistrate's finding in relation to the other inmate, I am of the view that it is irrelevant to the present case. The other inmate chose to contest his case. The trial magistrate, having heard the evidence and submissions, made findings regarding the issues of law and facts as raised before him. That should only have application to the case before him.

27. Of course, I could see that there are similar or even identical features between the two cases and the magistrate had taken strong views regarding the unlawful confinement point. However, once it could be established that the admitted facts in the present case showed that the appellant was attempting to escape from the school, in light of counsel's concession, whether the original confinement in the 2nd floor of Cedar House was unlawful became unimportant.

28. Having considered the grounds of appeal and all the submissions, I am not persuaded that I should quash the conviction or to allow the appellant to reverse his plea. I can find no reason to disturb the magistrate's decision to accept the plea and to convict the appellant. I would therefore dismiss the appeal accordingly. There was no argument as to the appropriateness of the sentence imposed; therefore the training center order shall stand.

29. I wish to thank both counsel for their very helpful assistance and submissions on an important subject matter.