HKSAR v. LAU CHI CHUN

HCMA 715/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 715 OF 2000

(On Appeal from Fanling Magistracy No. FLCC 946/2000)

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J U D G M E N T

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1. The Appellant was convicted on 6 May 2000 on his own plea of one charge of remaining in Hong Kong without the authority of the Director of Immigration, one charge of possession of a forged identity card, and one charge of using a forged identity card. He was sentenced to a total sentence of 21 months' imprisonment.

2. The Appellant subsequently through his lawyer applied for a review of the sentences. The application was heard on 26 May 2000. After hearing submissions, the magistrate affirmed the sentences.

3. On both appearances in Court, the Appellant was legally represented. On the first occasion, he was represented by the Duty Lawyer Scheme. On the second occasion, he was represented by private lawyer.

4. The Appellant now applies to appeal against conviction out of time in relation to the first charge of remaining in Hong Kong without the authority of the Director of Immigration. The reason he gave was that he entered Hong Kong in September 1998 on a valid two-way permit, and that he did not enter Hong Kong unlawfully. He said he realised after the review hearing that he should not have pleaded guilty to the first charge, hence this application.

5. The prosecution's case on the first charge was that the Appellant entered Hong Kong unlawfully on 4 May 2000. This was stated in clear terms in the brief facts, which had been admitted by the Appellant at his first appearance in Fanling Magistracy. The Appellant now explains that this part of the case was all made up by him. According to him, he was confused upon being arrested, and he mistakenly thought that he would be repatriated had he admitted to being an illegal immigrant. He therefore authored the story of sneaking into Hong Kong on 4 May 2000 upon being investigated by the police.

6. According to the Appellant, it was only at the review application that he told his private lawyer that he came on a two-way permit. In fact, this was mentioned by his lawyer during the submissions at the review hearing. Thereupon, the magistrate quite rightly and properly invited the lawyer to consider applying to reverse the guilty plea. This however was not taken up. Instead, the lawyer decided to withdraw the part of the submission regarding the Appellant coming to Hong Kong on a two-way permit. That, in my view, is understandable because the further mitigation made during the review went this way. What was said was the Appellant's mother was critically ill, having suffered from bile duct cancer, and this motivated the Appellant to sneak into Hong Kong in April of this year to seek employment. The main thrust of the mitigation at the review hearing was that the mother was dying and the magistrate was urged on humanitarian ground to reduce the Appellant's sentence to enable an early release. Had the Appellant insisted on his case that he came on the two-way permit in September 1998, this part of the mitigation would be lost.

7. In deciding the application for appeal out of time, there are two relevant considerations. The first is whether the allegation of the Appellant, namely, that he came to Hong Kong on a two-way permit in 1998 and has since then remained in Hong Kong, true. The second relevant consideration is whether, on the basis that the allegation of the Appellant is true, does it afford a ground of appeal against conviction.

8. With respect to the first consideration, the Appellant had raised this ground for the first time in the course of the hearing of the appeal. He had made no reference to this at all as a ground of appeal in his application for time nor his notice of appeal against conviction. Naturally the prosecution has no opportunity to verify or confirm the truth or otherwise of his suggestion that he entered to Hong Kong on a two-way permit in September 1998 and has since then remained in Hong Kong. In any event, it would not be possible for the prosecution to verify whether he had, after coming to Hong Kong in 1998, left and re-entered Hong Kong unlawfully in April or May of this year.

9. Nevertheless, I have to say I entertain grave reservation as to the truth of the Appellant's suggestion that he had since September 1998 remained in Hong Kong on the strength of the two-way permit. Had his allegation been true, it will be difficult to understand why he did not relate this to his lawyer on his first appearance in Court. Further it would be difficult to understand why he would subsequently, through his lawyer, offer the mitigation relating to his mother's medical condition at the review hearing.

10. Secondly, even assuming that the allegation of the Appellant is true, it does not afford him a reason or an arguable ground in law for appealing against his conviction.

11. In the case of HKSAR v. Wong Chi Yuk HCMA No.381/1999, the Court of Appeal had to deal with an appellant who had pleaded guilty to an offence of remaining in Hong Kong without the authority of the Director of Immigration, but who contended at the appeal that he in fact arrived in Hong Kong on a two-way permit. The Court of Appeal observed 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 s.113(1) of the Magistrate's Ordinance. The Court of Appeal went on further to consider whether the plea tendered by the Appellant in that case amounted to a nullity. The Court of Appeal held that an unequivocal guilty plea can be rendered a nullity only if any one of the following circumstances applies:

(1) the facts admitted by the defendant do not amount to the offence with which he is charged;

(2) the admitted facts are equivocal as to guilt;

(3) the plea was tendered to a charge which was defective on its face or invalid or unclear;

(4) the plea was tendered involuntarily, for example, being induced by duress or misrepresentation or was not an exercise of free choice;

(5) the plea was induced by fraud or made under a fundamental mistake; or

(6) the plea did not result from a deliberate and informed decision.

12. It is quite clear that the Appellant in this case does not fall within any of the circumstances outlined by the Court of Appeal. The Appellant was the author of his own predicament. He had, first of all, chosen to lie to the police officer upon arrest. He then chose to enter guilty plea to the offence and also to admit the brief facts when he first appeared in Court. Thirdly, through his legal representative, he had opted not to pursue any application for reversal of plea, and also to proffer a mitigation which runs entirely contrary to his case that he came to Hong Kong in 1998 on the two-way permit and had remained in Hong Kong since then.

13. In the circumstances, the Appellant's guilty plea is an unequivocal plea supported by the facts to which he had admitted. There is, therefore, no question of this plea being a nullity in law. On the basis of the Court of Appeal's authority, there is no ground on which the Appellant could have successfully challenged his conviction even if he did enter Hong Kong lawfully.

14. In addition, no injustice would result from the Appellant having to serve a sentence for an offence to which he did not commit, assuming that he indeed entered Hong Kong lawfully.

15. For the reasons indicated above, the application for leave to appeal out of time against conviction is dismissed.