HKSAR v. WONG CHI YUK

HCMA 381/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO. 381 OF 1999

(ON APPEAL FROM TMC 933/99)

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J U D G M E N T

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Hon Woo JA (delivering the judgment of the Court):

Introduction

1. This is an appeal against conviction.

2. On 23 March 1999, the Appellant with legal representation from the Duty Lawyer Scheme, was convicted on his own plea of two offences by Mr T S Jenkins, a Magistrate, namely:

(A) Possession of a forged identity card, contrary to s 7A(1) of the Registration of Persons Ordinance, Cap 177; and

(B) Remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully in Hong Kong, contrary to s 38(1)(b) of the Immigration Ordinance, Cap 115.

The charged date of the commission of both offences was 20 March 1999 when the Appellant was accosted and later arrested by the police.

3. In respect of the first offence, he was given 18 months of imprisonment and in respect of the second offence, he was given 21 months of imprisonment, both to run concurrently.

4. By a notice of appeal to a judge against sentence dated 29 March 1999, the Appellant lodged an appeal against his sentences.

5. However, on 4 June 1999, the Appellant made an application to the Magistrate for extension of time to appeal against conviction. In this application, the Appellant stated that when he was interviewed by his lawyer regarding his appeal against sentence, he revealed to the lawyer that he did not enter Hong Kong illegally as alleged in the second charge because he had entered through the Lo Wu Border Point with a two-way permit into Hong Kong.

6. In the meantime, on 9 June 1999, the Appellant appeared before Pang J for his appeal against sentence, when he produced his two-way permit. The judge adjourned the hearing for the Respondent to make enquiries.

7. On 16 June 1999, the Magistrate heard the application for extension of time. Upon the Prosecution on 22 July 1999 confirming that the Appellant had entered Hong Kong and been granted permission to stay until 8 December 1998, the Magistrate granted the application, extending the time to appeal against the conviction of charge (B) only.

8. Pursuant to the leave granted by the Magistrate, the Appellant filed a notice of appeal dated 30 July 1999 to a Judge of the Court of First Instance against conviction in respect of charge (B). Meanwhile on 20 November 1999, the Appellant filed a petition to the Chief Executive pursuant to s 113A of the Magistrates Ordinance. By a notice of abandonment dated 1 February 2000, the Appellant abandoned his appeal against the sentences.

9. On 13 March 2000, Beeson J, before whom the appeal against the conviction was listed, directed that the appeal be argued before this Court, apparently on the joint application of counsel for the Appellant and for the Respondent. This is the history explaining how this appeal has come before this Court. The reason of counsel for both sides asking the judge to refer the matter to this Court was that there were conflicting Court of First Instance decisions on the point proposed to be argued.

The factual basis of the appeal

10. The factual basis of the only ground of appeal is that although the Appellant pleaded guilty to the charge of remaining in Hong Kong illegally without the authority of the Director of Immigration having landed unlawfully in Hong Kong, he in fact had entered Hong Kong lawfully. He was remaining in Hong Kong when he was arrested by the police on 20 March 1999 during his stay in breach of the condition of stay granted by the Director of Immigration when he entered through Lo Wu on 11 November 1998. The Respondent accepts that the Appellant had lawfully entered Hong Kong and therefore an essential element of the offence prohibited by s 38(1)(b) of the Immigration Ordinance under which the Appellant was convicted, namely, having landed unlawfully in Hong Kong, was not present.

11. However, the conviction of the offence in issue was as a result of the Appellant pleading guilty to it and admitting the summary of facts read to him before the Magistrate. After referring to the fact that the identity card produced by the Appellant to a police officer was a forged one bought by him from the Mainland prior to his sneaking into Hong Kong, the admitted facts also contained the following:

"PW(2) [an officer different from the one to whom the identity card was produced] conducted further inquiry to the case. Under caution administered by PW(2) to the Def, the Def admitted that the Exh. was brought (sic) in Sanwei of Mainland China with $1400-RMB and he sneaked into Hong Kong looking for a job on 17.3.1999 by climbing hill via Sha Tau Kok area."

On the basis of the Appellant's own plea and the facts that he admitted, there is no doubt that he was properly convicted of the offence in issue. While it is accepted by the Respondent and by this Court that the Appellant could not have been convicted of the offence in issue if he had entered Hong Kong lawfully, a legal issue arises for the determination of this Court because of his plea of guilty.

The statutory provisions

12. The application for extension of time to appeal against conviction was pursuant to s 114 of the Magistrates Ordinance, Cap 227. Section 114 provides as follows:

"Where a person is authorized by section 113 to appeal to a judge, the following provisions shall apply-

(a) the appellant shall, within 14 days after the day of his conviction or the order or determination by the magistrate or within such extended time as may be ordered upon application made in accordance with section 114A, give to the magistrates' clerk notice in writing of his appeal, ......"

Section 114A of the same Ordinance provides:

"(1) Where it appears to a magistrate or to a judge, on application made in accordance with subsection (2), that any person wishing to appeal against any conviction, order or determination by any magistrate has failed to give the notice of appeal required by section 114 within the period of 14 days prescribed by paragraph (a) thereof, the magistrate or the judge, as the case may be, may, on good cause being shown by the applicant, order that such notice may be given within such further time as shall be specified in such order."

It can be noted that s 114 is only applicable when a person is authorised by s 113 to appeal to a judge. Section 113 of the Ordinance provides as follows:

"(1) 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.

(2) Any person who after pleading guilty or admitting the truth of the information or complaint is convicted of any offence by a magistrate may appeal to a judge against his sentence unless the sentence is one fixed by law." (emphasis added)

13. 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 Ordinance. This interpretation of s 113(1) of the Ordinance is that adopted in a long line of cases in Hong Kong, eg, CHAN Kam Wah v R [1957] HKLR 464, LEUNG Kam Fai v R [1962] HKLR 740 and HO Chik Chuen v R [1966] HKLR 356 and in the more recent decisions of R v LI Tung Hing [1992] 2 HKC 427, HKSAR v AU YEUNG Boon Fai, HCMA 120/99 (CA, 16 June 1999, unreported), HKSAR v HUI Chun Man, HCMA 1229/98 (30 July 1999, unreported) and HKSAR v LI Wa San, HCMA 379/99 (22 September 1999, unreported).

Should the plea be treated as a valid plea?

14. However, it is argued by counsel for the Appellant that in the circumstances of the present case, the Appellant is not and should not be precluded from appealing against the conviction pursuant to s 113(1) of the Ordinance. It is the submission of the Appellant, as accepted by the Respondent, that the authorities are in conflict with respect to the guilty pleas covered by s 113(1) of the Ordinance, or in other words, under what circumstances a guilty plea is not encompassed by s 113(1) so as not to debar the person who is convicted upon the plea from appealing against the conviction.

15. We start briefly with the cases before 1990. In CHAO Tse Yuen (No 2) [1963] HKLR 121, as the plea of guilty was to a charge which was defective on its face, the Full Court (the equivalent of the present Court of Appeal) treated the plea as a nullity. In CHAN Ching Chi v R [1965] HKLR 598, the High Court (the equivalent of the present Court of First Instance) quashed a conviction resulting from a plea of guilty and facts admitted since those facts might be equivocal regarding whether the applicant had knowledge that the bag he possessed contained dangerous drugs. MA Kam Wing v R [1975] HKLR 612 was a case where Yang J, as he then was, held that the plea of guilty was a nullity because the accused had not been able to exercise a free choice. In CHAN King Hong v R, Cr App No 310/80 (20 June 1980, unreported), Roberts CJ quashed a conviction consequent upon a plea because the appellant misunderstood what was said to him by the interpreter before the magistrate and because he had never intended to plead guilty to the offences of attempted theft and going equipped. In LUI Yiu Shing v R, Crim App No 888/80 (21 November 1981, unreported), where the facts admitted to found the conviction upon a plea were unclear, again Roberts CJ quashed the conviction. In all these cases, a retrial was ordered. CHAN Wai Lam v R [1981] HKLR 139, where the admitted facts on a plea did not support the offences, the Court of Appeal quashed the convictions. In CHEUNG Kwok Cheung v R [1982] HKLR 126, the Court of Appeal held that a plea of guilty to a defective charge did not amount to a valid plea.

16. Now we turn to the more recent cases. Each of the four recent cases cited above dealt with the question whether a plea of guilty could be treated as a nullity. LI Tung Hing was where the appellant had pleaded guilty to four charges of indecent assault. He admitted that he had given a girl $300 demanding to caress her breasts. He also admitted that he demanded that she masturbate him. After referring to the English cases of R v Forde [1923] 2 KB 401, R v Shannon [1974] 2 All ER 1009, and R v Lee [1987] 1 All ER 1080, Leonard J held that upon the admitted facts, the appellant could not in law have been convicted of the offences charged. He therefore entertained an appeal pursuant to s 113(1) of the Magistrates Ordinance, quashed the convictions and remitted for trial de novo the charges before another magistrate.

17. AU YEUNG Boon Fai was an appeal brought under the same s 113(1), and was directed by the Judge of the Court of First Instance, similar to the present case, to be heard before this Court, differently constituted. There, the Court examined the plea of guilty by the appellant and the facts admitted by him before the magistrate in order to consider whether those admitted facts could amount to the offences as charged. Keith JA, in delivering the judgment of the Court, regarded the English authorities cited by Leonard J in LI Tung Hing as not being helpful because they were decided under statutory regimes that were very different from s 113. Keith JA then said at p 6 of the judgment:

"However, there is, in our judgment, another route by which Leonard J.'s conclusion can be justified. 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. The classic example of an unequivocal plea of guilty being a nullity is where the plea is tendered involuntarily, for example, where it has been induced by duress or misrepresentation. But a plea of guilty presupposes that on the admitted facts the defendant is in law guilty of the offence to which he pleads guilty. Accordingly, a plea of guilty is, in our view, a nullity if, upon the admitted facts, the defendant could not in law be convicted of the offence for which he is charged. That will happen only very rarely. After all, for it to happen at all, prosecuting counsel, defence counsel and the court will all have failed to appreciate the true ingredients of the charge to which the defendant pleaded guilty."

18. The facts of the other two cases, HUI Chun Man and LI Wa San, are quite similar to those pertaining in the present appeal. In each of those cases, the appellant was convicted on his own plea of remaining in Hong Kong without the authority of the Director of Immigration, having entered Hong Kong unlawfully. However, the appellant in each of the cases, as accepted by respondent, had entered Hong Kong lawfully. In HUI Chun Man, after referring to AU YEUNG Boon Fai, Recorder Ching Y. Wong SC, had this to say at p 4 of his judgment:

"I would respectfully add another example to those given by Keith JA; and that is when an unequivocal plea of guilty was tendered under a mistake or a misunderstanding of the law. This may come about because of the incorrect legal advice given to the Appellant on the plea or indeed the personal misunderstanding of the Appellant who did not have the benefit of legal advice."

The appellant before the Recorder alleged that he pleaded guilty because, inter alia, the police had assaulted him at the police station and threatened to detain his wife if he pleaded not guilty. The Recorder rejected this allegation, but was of the view that the appellant's guilty plea must have been tendered because of a misunderstanding of the law which justified his finding that the plea was a nullity. As a result, he quashed the conviction under s 38(1)(b) of the Immigration Ordinance, and substituted therefor the offence under s 41 of the same Ordinance, being breach of condition of stay.

19. In LI Wa San, the appellant appealed against his conviction in respect of the offence of unlawful remaining contrary to s 38(1)(b) of Cap 115 on the basis that he falsely pleaded guilty in respect of that 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 permit which recorded his lawful entry into Hong Kong. Deputy Judge McMahon in his judgment referred to AU YEUNG Boon Fai. Although his attention was not drawn to HUI Chun Man, he referred to authorities dealing with applications for leave to withdraw notices of abandonment of appeal for consideration whether a guilty plea, as analogous to a notice of abandonment of appeal, should be treated as a nullity. He referred to the statement of Lawton LJ in R v Peters (1973) 58 Crim App Rep 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."

20. The Deputy Judge also referred to R v WONG Wai Leung (1990) 1 HKC 144 for the following judgment of Silke VP:

"... 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."

The Deputy Judge then said:

"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."

21. The Deputy Judge examined the reasons given by the appellant for entering the guilty plea. He said:

"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.

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."

22. The Deputy Judge came to the conclusion that the appellant's 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". He therefore found that while the guilty plea to the offence of unlawfully remaining in Hong Kong had been wrong, it was not a nullity. He therefore decided that he had no jurisdiction under s 113(1) of the Magistrates Ordinance and dismissed the appeal.

23. Counsel for both the Appellant and the Respondent contend that there is a conflict between the decisions of HUI Chun Man and LI Wa San. We agree. The conflict does not only lie in the approach but also in the width of the jurisdiction of the Court of First Instance to entertain an appeal from the magistrates' court where the conviction was consequent upon a plea of guilty. In our view, Deputy Judge McMahon's approach was to follow the authorities on the subject closely, and he correctly drew assistance from cases dealing with withdrawal of abandonment of appeal. On the other hand, while citing this Court's decision in AU YEUNG Boon Fai, Recorder Wong did not refer to any authority in support of his widening of the scope of invalid guilty pleas to include "an unequivocal plea of guilty ... tendered under a mistake or a misunderstanding of the law." If the words "of the law" were intended to qualify the word "mistake" as they qualify "misunderstanding", we must say that the ratio is wrong. Even if they do not so qualify, we do not think that any kind of mistake should be readily treated as a ground for nullifying a guilty plea. The mistake must be fundamental. In other words, the circumstances and the extent of the mistake must be sufficient to vitiate the intent of the defendant in pleading guilty, making the act of the plea not his true act.

24. Moreover, we do not regard a misunderstanding of the law as sufficient to vitiate the intent of a defendant in tendering a guilty plea. A misunderstanding of the law will nullify a guilty plea only in situations where the facts as admitted do not amount to the offence in respect of which the plea is tendered or where the charge for which the plea is entered is defective. In all other circumstances, a misunderstanding of the law should not be treated as being able to nullify a plea, just as a mistake of law on the part of a contractor in a contract case does not vitiate his intent in entering into the contract (see generally Chitty on Contracts, 28th Ed., Chapter 5). The Recorder in HUI Chun Man decided that as the appellant before him was not aware that "unlawful entry" was an essential element of the offence under s 38(1)(b) of the Immigration Ordinance, the appellant's guilty plea tendered because of a misunderstanding of the law amounted to a nullity. We think that he was wrong and overrule HUI Chun Man.

25. An unequivocal guilty plea can be rendered a nullity if any one of the circumstances is applicable, according to the cited decisions:

(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.

Cases on withdrawal of abandonment of appeal

26. As Deputy Judge McMahon in LI Wa San drew assistance by analogy from cases of withdrawal of abandonment of appeal, similarly we have been referred to a number of cases on that subject. A great number of features are similar in the courts' ways in dealing with applications to withdraw a notice of abandonment as with applications to treat a plea of guilty as ineffective. The circumstances surrounding an abandonment of appeal and a guilty plea, by their nature, must be vastly different. When a guilty plea is entered, there will usually be a simultaneous admission of the facts underlying the offence to which the plea is made, whereas a person issuing a notice of abandonment of an appeal does not usually set out in the notice or otherwise any reason, let alone facts, based on which he issues the notice. We are, however, of the view that despite the differences in circumstances, the law should be the same regarding these two matters, that is, whether the notice of abandonment or the guilty plea, as the case may be, is vitiated by the lack of voluntary intent or by mistake of a fundamental nature. This view is borne out by the cases on nullifying a guilty plea referred to above, and by the cases on abandonment of notice of appeal below.

27. We have already referred to the English case of R v Peters. The English authority that was followed by the Hong Kong Court of Appeal on the subject is R v Medway [1976] 62 Cr App R 85 (CA comprising the Lord Chief Justice, Stephenson LJ, O'Connor, Lawson and Jupp, JJ). Lawson J delivering the judgment of the court first explained the meaning of "nullity" in the authorities. He said at p 89:

"... we do not think that the expression 'nullity,' which, as will be seen, has been employed in a number of relevant cases, necessarily indicates the presence of factors which would be required to establish that from the point of view of the civil (as opposed to the criminal) law a transaction was null and void as distinct, for example, from one which was voidable, such as a contract procured by fraudulent representation or undue influence. The cases in fact illustrate that the expression 'nullity' has been used in a very wide sense indeed."

28. Lawson J then extensively examined the cases on the subject, starting from Pitman (1916) 12 Cr App R 14 to Wilkinson in 1975, unreported in order to discern what the law should be. He concluded that apart from the "nullity" test, the Court had no inherent jurisdiction in any other special or exceptional circumstances to grant leave to withdraw a notice of abandonment. He went on at p 98:

"In our judgment the kernel of what has been described as the 'nullity test' is that the Court is satisfied that the abandonment was not the result of a deliberate and informed decision, in other words that the mind of the applicant did not go with his act of abandonment. In the nature of things it is impossible to foresee when and how such a state of affairs may come about; therefore it would be quite wrong to make a list, under such headings as mistake, fraud, wrong advice, misapprehension and such like, which purports to be exhaustive of the types of case where this jurisdiction can be exercised. Such headings can only be regarded as guide lines, the presence of which may justify its exercise."

29. It should be noted, while Recorder Wong in HUI Chan Man purported to extend the circumstances for nullifying a guilty plea by including "misapprehension of law", Lawson J at p 99 of Medway expressly excluded it. Lawson J said:

"... we do not think that a deliberate decision to abandon taken as a result of advice which is founded on a mistaken view of the law is in itself capable of vitiating the effectiveness of the notice to abandon so as to enable the Court to treat it as a nullity."

30. It is interesting to note that in Moore (1957) 41 Cr App R 79, which was referred to in Lawson J's judgment at p 91, the Court of Appeal gave the reason for not lightly granting leave to withdraw a notice of abandonment of appeal, thus:

"No doubt, if a case could be made out that a prisoner had in some way or another been fraudulently led or induced to abandon his appeal, the Court in the exercise of its inherent jurisdiction would say that the notice was to be regarded as a nullity; but where there has been a deliberate abandonment of an appeal, in the opinion of the Court, there is no power or right to allow the notice of abandonment to be withdrawn and the appeal reinstated because, the appeal having been dismissed, the Court has exercised its powers over the matter and is functus officio. ..."

31. Medway was followed in Chan Tak-kwong v The Queen [1983] HKLR 391, where this Court held that the fact that the applicant had received erroneous advice from fellow prisoners was not a sufficient ground for permitting an abandonment to be withdrawn, and that it would not be proper to allow notices of abandonment to be withdrawn merely because, at the time of abandonment, the applicant had received no legal advice, even if he subsequently received legal advice to the effect that his chances of successful appeal were good. The Court distinguished the case of R v Keating which is reported very briefly in [1982] Cr Law Review 228 where an abandonment was allowed to be withdrawn on the ground that the applicant received wrong advice from counsel to make the abandonment.

32. The Court of Appeal in TAM Kwok [1984] HKC 184 also followed Medway. Accordingly, it held that the applicant's reasons for abandoning his appeal, that he could not raise sufficient money to engage a lawyer, and that he believed the absence of a lawyer made it impossible to win an appeal were insufficient grounds. However, the co-defendant with whom the applicant was charged and convicted had his conviction quashed earlier by another division of the Court, whereby the Court said that

"we find ourselves obliged (?) to allow D2 (the applicant's) application to withdraw his notice of abandonment. We will, however, grant him immediate bail without conditions, until this matter is brought before us by the alternative method, of a reference by the Crown to the Governor under s 83P of the Criminal Procedure Ordinance (Cap 221), which we strongly suggest is a course which should be adopted."

33. On the other hand, in WONG Wai Leung, the applicant abandoned his appeal for the reason that he was advised by a clerk of his trial solicitor that it was the opinion of more than one counsel that his prospects of a successful appeal were so slim that he should abandon it. The clerk also told him that the sentence would be likely to be increased if the applicant proceeded with his appeal against conviction. The Court of Appeal, following Medway, ruled that the abandonment was not a nullity. It also held that even in that case, the Court had jurisdiction to advise and assist the applicant to petition the Governor for a reference to be made to the Court if the Court was satisfied that injustice would ensue if the matter was not dealt with. Having examined the grounds of appeal, the Court found them not raising any valid issue as to injustice and refused to advise a reference to the Governor.

34. The above cases were followed by this Court in R v WONG Yiu Lun [1990] 1 HKC 164, where the reason for the applicant abandoning his appeal against sentence was that he erroneously believed that if his appeal against conviction was allowed, his appeal against sentence need not be dealt with by the Court and therefore two appeals could not be heard at the same time. The Court rejected that as being sufficient to satisfy the nullity test in Medway as adopted by the Hong Kong courts.

35. The last case of this Court that applied Medway was R v NG Po Yau, Cr App No 81/91 (11 August 1994, unreported) where it pointed out that

"It is important to note that there is a difference between a mistake as to his act [ie, the applicant's act of abandonment] and a mistake as to the prospects of success of an application which leads to an abandonment. It is unlikely in the latter case that leave would be granted."

36. As we indicated before, there seems to be no reason why that the law dealing with withdrawal of an abandonment of appeal should not equally apply to whether a plea of guilty should be regarded as a nullity, albeit the circumstances surrounding each may vastly differ. Both deal with an act of the accused, whether his act of abandonment is his true act or whether his act of pleading guilty is his true act. If his mind does not go with his act, then the act is a nullity.

The relevant facts of the present appeal

37. We now turn to the present appeal. An affirmation of the Appellant was only filed on 20 March 2000, just a couple of days before the date fixed for the hearing of this appeal, with a notice of motion pursuant to s 83V of the Criminal Procedure Ordinance, Cap 221 to seek our leave to allow the affirmation to be considered as evidence as to why the Appellant pleaded guilty to the unlawful remaining charge and admitted the facts read to him before the Magistrate. Shortly, he says that after he was arrested and taken back to the police station, he was seriously assaulted by a police officer forcing him to admit to sneaking into Hong Kong though he had told the officer that he had come to Hong Kong with a two-way permit, but the permit was kept by a "relative". This officer was present when a cautioned statement of the Appellant containing the false confession was later taken by another officer. The Appellant did not know the difference between the offences of overstaying and unlawfully remaining in Hong Kong. The police officers later told him to plead guilty to the charges and he did so for fear of further assaults.

38. The only other place where we can find his reasons for making the guilty plea is in his petition dated 20 November 1999, exactly four months before he filed his affirmation, to the Chief Executive pursuant to s 113A(1) of the Magistrates Ordinance. The reason stated in the petition was that when he was brought before the Magistrate on 23 March 1999 and pleaded guilty, his travel document was kept by his "friend" and he was unable to produce it as proof of his immigration status, namely, that he entered Hong Kong on 11 November 1998 with a valid two-way permit. There was a conspicuous silence about this story of assaults now told in his affirmation in any of the prior proceedings. It did not appear in his petition nor indeed was it mentioned in his application for extension of time to appeal against conviction before the Magistrate. It is agreed by the parties that before Beeson J on 13 March 2000, the Appellant complained for the first time that his guilty plea was induced by duress.

39. At the commencement of the hearing before us, we dealt with the application to adduce the Appellant's affirmation as evidence. Having heard arguments, we dismissed the application because we held the view that the evidence sought to be adduced was not likely to be credible. We thought it was but a recent invention. Our reasons can also be seen from what follows.

40. There are at least three matters that made the story about force and duress unlikely to be credible. Even if the Appellant had entered Hong Kong lawfully on 11 November 1998 and was allowed to stay in Hong Kong until 8 December 1998, it does not necessarily follow that when he was arrested on 20 March 1999, he must have by that date entered Hong Kong lawfully. He confessed to the police that he sneaked into Hong Kong via the Sha Tau Kok hills on 17 March 1999. Save as to what he says in his affirmation, there is lack of evidence that he was on 20 March 1999 merely overstaying in breach of the permission to stay till 8 December 1998. If he had sneaked into Hong Kong on 17 March 1999 as he confessed under caution, his plea of guilty was proper and was under no mistake whatsoever, and there would have been no reason why his confession was induced by force or duress. Secondly, despite his affirmation, the Appellant has so far not explained why before the Magistrate he admitted, rather than denied, the facts containing his untrue confession that he has so recently alleged was obtained from him by force and threat. Thirdly, in his affirmation he says he pleaded guilty because his travel document was kept by his relative and he was unable to produce it as proof of his immigration status. This shows that he appreciated the significance of the particular item of proof, which tends to show that he knew the difference between unlawful remaining and overstaying.

41. Ms Remedios, for the Appellant, in her written arguments, criticizes the police for not having checked with the Immigration Department whether the Appellant had entered Hong Kong lawfully. We think this criticism unjustified. When he was caught, the Appellant produced an identity card bearing the name of WONG Chi-fai. As shown in the brief facts of the case prepared by the Prosecution, the Appellant was known as WONG Chi-yuk with another name WONG Man-hiu. His travel document, however, bears the name of WONG Chi-hiu, without any alias. The immigration record shows that a Mr WONG, CHI HIU (the same name as that on his travel document) entered Hong Kong on 11 November 1998 through Lo Wu and that limitation of stay granted was 8 December 1998. As the name by which the Appellant entered Hong Kong had not been provided by him to the police, neither the police nor the Immigration Department could have possibly verified that he had lawfully entered Hong Kong in that name. Moreover, when the Appellant confessed to the police at the scene and again in the police station later that he had recently sneaked into Hong Kong, we do not think it reasonable to expect the police to check if he had in fact entered Hong Kong lawfully months earlier. Otherwise, a lot of police and Immigration manpower and effort might have to be employed and likely wasted.

42. The alleged assaults and involuntary confessions having been considered by us unlikely to be credible and thus not admitted in evidence, what is left of the Appellant's situation is quite similar to that before the Deputy Judge in LI Wa San. As stated earlier, the Appellant in the present case admitted before the Magistrate the summary of facts read to him which included the fact that under caution, he admitted to a policeman that he sneaked into Hong Kong looking for a job on 17 March 1999 by climbing hills via the Sha Tau Kok area. Had he entered Hong Kong lawfully by a two-way permit, which was the case according to him, there was no reason for him to have made such a confession to the policeman and further admitted that confession before the Magistrate. He therefore must have lied to the police and admitted his guilt because his travel document was kept by a friend or relative. Pausing here, it is to be noted that a friend is different from a relative, and no credible reason was given by the Appellant why the friend or relative could not be contacted. Based on what he states in the petition, it appears that the only reason for his guilty plea and the admission of the facts was that since he did not possess his two-way permit which was kept by a friend, he thought there was nothing he said that would be believed by the police or the court. When dealing with sentence, it was revealed to the Magistrate and accepted by the Appellant that the Appellant had between September 1989 and August 1992 two similar convictions in respect of the possession of a forged identity card offence and three similar convictions in respect of the offence of unlawful remaining in Hong Kong after having landed unlawfully in Hong Kong. It is clear that the Appellant was not a person without experience with our courts or with the charges that he faced before the Magistrate. Yet, he chose to plead guilty and admitted the summary of facts. His choice must have been deliberate. It is true that usually the sentence for unlawful remaining after entering unlawfully is heavier than that for the breach of a condition of stay which usually attracts a few months of imprisonment for a first offender, and therefore the longer imprisonment term for the unlawful remaining offence can be considered as a misfortune for the Appellant. Nonetheless, the Appellant was the author of his own misfortune. He then proceeded, all because of his lies to the police which were confirmed by his plea in court, with various procedures, involving various courts, obtaining legal aid, etc. We consider these proceedings to have been a waste of public resources in Hong Kong all because the Appellant chose to lie, either through his ignorance, which we do not believe, or deliberately for his own untold purposes. We do not consider his case as worthy of any sympathy.

Conclusions

43. In all the circumstances of this case, we are of the opinion that the Appellant's guilty plea made before the Magistrate is not a nullity. As a result, we must dismiss the appeal launched pursuant to s 113(1)(a) of the Magistrates Ordinance, because the Appellant is not entitled to so appeal.

44. For the reasons set out above, though it appears that the Appellant was convicted of illegally remaining in Hong Kong after having landed in Hong Kong unlawfully which he should not have been by the strength of his entry with a two-way permit, we do not feel any injustice has occurred in this case or that the Appellant should harbour any legitimate grievance because the conviction arose out of his own deliberate plea of guilty. Since this is not a conviction on indictment, s 83P of the Criminal Procedure Ordinance, a reference by the Chief Executive of the case to this Court, is not available.

Will Chief Executive's reference under s 113A(1)(a) save the situation?

45. We are also asked by Ms Remedios to suggest that the Chief Executive make a reference of this case to a Judge of the Court of First Instance so that the difficulty posed by s 113(1)(a) by reason of the guilty plea will not debar the appeal from being considered by that Judge, especially in view of the fact that the Appellant has already petitioned the Chief Executive to do so.

46. The relevant part of s 113A provides as follows:

" (1) Where any person has been convicted by a magistrate of an offence ... the Chief Executive may, if he thinks fit, at any time thereafter either-

(a) subject to subsection (2), refer the whole case to a judge and the case shall then be treated as an appeal to that judge by that person; or

(b) ...

(c)

(2) The Fifth Schedule shall have effect for the purpose of regulating references to a judge under subsection (1)(a) in respect of the sections specified in that Schedule."

Section 1 of the Fifth Schedule provides:

"1. ... where the Chief Executive has referred a whole case to a judge under section 113A(1)(a) the case shall be treated for all purposes as an appeal to the judge under section 113(1) or (2), as the case may be, by the person in respect of whom the case is referred." (emphasis added)

47. Examining the provisions carefully, we are of the view that the s 113A(1)(a) route whereby the Chief Executive refers the case to the Judge of the Court of First Instance does not seem to help the situation where a guilty plea cannot be treated as a nullity, for s 113A(1)(a) is expressly subject to s 113A(2) which incorporates the Fifth Schedule. The Fifth Schedule makes clear provision that a case referred by the Chief Executive pursuant to s 113A(1)(a) "shall be treated for all purposes as an appeal to the judge under s 113(1) or (2), as the case may be, by the person in respect of whom the case is referred". It will be noted that no similar provisions are made in s 83P of the Criminal Procedure Ordinance, Cap 221. Where a person appeals under s 113(1), as he shall be so treated by virtue of the Fifth Schedule on a reference by the Chief Executive under s 113A(1), this expressly excludes an appeal against a conviction in respect of which he has pleaded guilty. Such a reference by the Chief Executive does not seem able to empower the judge to disregard the Appellant's guilty plea in considering the case so referred to him, because it is incumbent upon him to treat the case for all purposes as an appeal by the Appellant under s 113(1). We know that this view is contrary to that expressed by Deputy Judge McMahon in LI Wa San, but he made that remark in passing and, in our view, per incuriam.

Any alternative avenue?

48. This Court in AU YUENG Boon Fai and Deputy Judge McMahon in LI Wa San both mentioned an alternative route of resolving wrong convictions, which was by way of seeking a case stated by a magistrate pursuant to s 105 of the Magistrates Ordinance. Section 105 is only applicable to a case where a conviction is challenged on the ground that it is erroneous in point of law or in excess of jurisdiction. In the present case, it has never been argued, nor is it open for argument, that on the facts as presented to the Magistrate and admitted by the Appellant, the conviction can be attacked as wrong in law or in excess of jurisdiction. We do not think that s 105 helps the Appellant.

49. The only avenue that appears to be left open is for the Appellant to petition to the Chief Executive for a pardon under Article 48(12) of the Basic Law, as suggested by Mr Chapman. We, however, are not inclined to make any suggestion as to how the Chief Executive should exercise his prerogative in that area, having regard to the particular circumstances of this case.

50. Lastly, we would like to express our appreciation to counsel for both sides for their courteous and articulate presentation of the arguments before us and their careful and diligent preparation of this case, which is exemplary especially in view of the short time available to them after Beeson J directed this appeal to be heard by this Court.