HKSAR v. LI WA SAN

HCMA 379/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 379 OF 1999

(On appeal from NKCC 338 of 1999)

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J U D G M E N T

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1. At North Kowloon Magistracy on 18 January 1999, the Appellant was convicted on his own plea of an offence of Remaining in Hong Kong without the authority of the Director of Immigration after having unlawfully landed in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115.

2. He was sentenced to 15 months imprisonment to be served concurrently with a similar sentence imposed upon him at the same time for an offence of Possessing a Forged Identity Card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap. 177 to which he had also pleaded guilty.

3. He now appeals against his conviction in respect of the offence of Unlawfully Remaining contrary to section 38(1)(b) of Cap. 115 on the basis that he falsely pleaded guilty in respect of that charged offence simply so as to be able to be repatriated to China and because he thought his defence would not be accepted by the court as he had lost his two-way entry permit which recorded his lawful entry into Hong Kong.

4. He has filed an Affirmation in this regard which was accepted in evidence by me pursuant to the provisions of section 118(1)(b) of the Magistrates Ordinance and which says his real name is WONG Sap-yee, and that he used the name LI Wa-san under which he was convicted as a pseudonym and that he had in fact come to Hong Kong legally on 13 July 1998 through the Lo Wu Check Point upon his presentation of a valid two-way permit in his name issued under the authority of the PRC.

5. He further says that it was a condition of his admission into Hong Kong that he was permitted to stay only until 9 August 1998. He remained in Hong Kong in breach of that condition until 15 January 1999 on which day he was arrested for the present offences.

6. He says also that in about November 1998, he lost his two-way permit and no longer has it. Apparently, it was that loss which led him to the conclusion that any defence he mounted to the charge would be futile.

7. His Grounds of Appeal against his conviction rely upon the above factual allegations so as to claim his conviction of the offence contrary to section 38(1)(b) of Cap. 115, is unsafe and unsatisfactory.

8. As a preliminary matter, counsel for the HKSAR informs me that she accepts that the position is indeed as set out in the Appellant's affirmation as to his having come legally into Hong Kong and, as a consequence, also accepts that he could not have committed the offence to which he pleaded guilty, that is, the offence contrary to section 38(1)(b) of Cap. 115.

9. On the face of it, the Appellant's conviction in these circumstances of an offence it is accepted he did not commit is, to say the least, unsafe and unsatisfactory.

10. The difficulty the subject of the arguments before me is that the Appellant brings his appeal pursuant to the provisions of section 113(1) of the Magistrates Ordinance, Cap. 227.

11. That sub-section says:

"Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in manner hereinafter provided to a judge." (Emphasis Supplied)

12. It is apparent that in the normal course of events an appellant who has pleaded guilty to an offence cannot bring an appeal to this court under the provisions of section 113(1) of the Ordinance as it specifically exempts convictions following pleas of guilty from its operation.

13. It may well be that this appeal could have, at an earlier stage, been brought pursuant to the provisions of section 105 of Cap. 227. That section does not exempt convictions after a plea of guilty from its operation. Indeed, in the scheme of the legislation relating to appeals under Part VII of Cap. 227, section 105 is the primary method of bringing an appeal to this court. Section 113 is an alternative procedure presumably incorporated into Part VII as a more convenient and perhaps faster way of allowing convicted persons of bringing an appeal. Perhaps unsurprisingly, it is now the most common provision used so far as persons who have been convicted of offences are concerned.

14. Nevertheless, it cannot be overlooked that section 113(1) does not apply to persons who have pleaded guilty to an offence so as to allow them to bring an appeal to this court.

15. But there is an exception, if that be the right word, to that simple statement of the law. Where the plea of guilty is regarded in law as being a nullity, then the proviso to section 113(1) preventing appeals following pleas of guilty does not apply. In other words, there has been, in law, no plea of guilty and so section 113(1) continues to operate so as to allow an appeal against conviction.

16. In HKSAR v. Au Yeung Boon Fai, HKMA 120/99, the Appellant had pleaded guilty before a magistrate to an offence of theft of a chose in action. He appealed against his conviction on the ground that he could not in law have been convicted of the offence with which he had been charged. The matter was directed by the Court of First Instance to the Court of Appeal pursuant to section 118(1)(d) of the Magistrates Ordinance.

17. In the course of his judgment, Keith J.A. dealt with the question of jurisdiction when an appeal, following a plea of guilty before a magistrate, is brought pursuant to section 113(1) of the Magistrates Ordinance, on the face of it, contrary to the provisions of that section.

18. He said:

"A plea of guilty which is a nullity does not amount to a plea at all. A plea which is a nullity therefore is not caught by section 113(1)."

19. The question in the present case is whether the Appellant has established that his plea before the magistrate should be treated as a nullity.

20. In R v. Medway, (1975) 62 Crim. App. Report 85, the English Court of Appeal had occasion to consider whether to allow an appellant leave to withdraw his notice of abandonment of appeal. The court concluded they could do so only if the notice of abandonment could be considered a nullity.

21. Mr Justice Lawson in the course of his judgment cited with approval, on this point, the statement of Lawton L.J. in R. v. Peters, (1973) 58 Crim. App. Report 328, to the effect

"there must be something which makes the giving of a notice of abandonment not the applicant's true act. If there has been fraud, then clearly what he does is not his true act. If there has been fundamental mistake .... then what he does has not been his true act."

22. In R. v. WONG Wai Leung, (1990) 1 HKC 144, Silke, V.P. in dealing with the same question as to whether a notice of abandonment could be treated as a nullity adopted as the applicable test, that

"...... where the abandonment did not result from a deliberate and informed decision, in other words, where the mind of the Appellant did not go with his act".

23. That seems to me to be the applicable test as to what renders a plea a nullity. It covers circumstances such as a plea being entered by a fraud on a defendant or by his fundamental mistake. Obviously a plea obtained by duress would also result in a defendant's mind not having truly gone with his act. Further, a plea would not have been entered as the result of a deliberate and informed decision where, for example, it was not to an offence known to the law, perhaps in circumstances where the charge was defective and did not state any offence or where the admitted facts did not reveal any offence.

24. In the present case in his affirmation, the Appellant gives, very briefly, his reasons for pleading guilty to the section 38(1)(b) offence of Unlawfully Entering and Remaining in Hong Kong. He says:

"I pleaded guilty to the unlawfully remaining charge without telling the court my true status as I thought I have lost my two-way permit and further I wrongfully thought that I would be repatriated to China soon after the sentence."

25. There is no suggestion, in the Appellant's reasons for his pleading guilty to the offence, that he did so as a result of any force or fraud perpetrated on him or from any mistake as to the nature of the offence charged.

26. His reasons for pleading guilty were a combination of convenience, that is, he wished to be repatriated, and belief he would not be able to mount a sustainable defence, that is, he had lost his two-way permit. It may well be that he was in error in his judgment on the outcome of both these matters in that he was not repatriated and may have had a sustainable defence in any event.

27. But he was not under any fundamental mistake or misapprehension as to the underlying facts of his case. He knew he was not guilty of the charged offence and pleaded guilty anyway as a matter of expedience.

28. During the course of the proceedings before the magistrate, the charge and the facts of the case were both put to the Appellant and he said he understood them.

29. He was asked if he agreed the admitted facts. He did not expressly state that he did agree the facts but his answer, albeit tangential, was such that the magistrate apparently took it that the Appellant was agreeing those facts.

30. It may have been better to have obtained a specific answer to that question, but in the circumstances of this case and from the Appellant's answers to other questions put to him by the magistrate, it is apparent he appreciated those facts and that he was to be convicted upon them. This was not a case where the Appellant was mistaken or under any misapprehension as to the facts of the case. Indeed that was at no stage suggested to me in the course of this hearing. His failure to expressly agree the facts does not, in my view, render his plea mistaken or in any way less than deliberate and informed. Indeed his plea was a calculated one and he was well aware of both the true facts of the case and the facts upon which the charge was based.

31. In my view, the Appellant's plea of guilty to the offence of Unlawfully Entering and Remaining in Hong Kong, whilst it may have been wrong, was not a nullity.

32. There is no doubt that the circumstances of his plea renders his conviction unsafe and unsatisfactory such that that conviction should be set aside. But the procedure to do that is not pursuant to the provisions of section 113(1).

33. In my view, the plain words of the sub-section apply so as to deny this court jurisdiction and accordingly, the appeal is dismissed for that reason.

34. I might add that, in my view, in cases of this sort where there is any doubt as to this court's jurisdiction, the proper course would be to proceed pursuant to section 105 of the Ordinance. I appreciate that may well now be difficult in this case given the time that has elapsed and perhaps for other reasons.

35. The provisions of section 113A provide a safety net for this sort of situation and, failing any other available remedy, seem to me to be properly available to bring this matter back before the court.