HKSAR v. HUI CHUN MAN

HCMA 1229/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

Appellate Jurisdiction

Magistracy Appeal No HCMA 1229 OF 1998

(On appeal from NKCC 7879 of 1998)

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JUDGMENT

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History

On 25th November 1998, the Appellant, who was represented by counsel instructed by the Duty Lawyer Scheme, was convicted by a Magistrate sitting at the North Kowloon Magistracy of 3 offences upon his own pleas and admission of the facts. One of these 3 offences, namely Charge 3, was of "Remaining in Hong Kong without the authority of the Director of Immigration" contrary to S.38(1)(b) of the Immigration Ordinance Cap.115. For this conviction, he was sentenced to a term of 15 months' imprisonment. The total term of imprisonment for the 3 offences was 18 months.

This Charge 3 to which the Appellant had pleaded guilty was in fact an amended charge. The Particulars of the amended Charge 3 read:

"HUI Chun-man, you are charged that on 12th day of November, 1998 at Tai Kok Tsui, Kowloon, in Hong Kong, having landed in Hong Kong unlawfully, you remained in Kong (sic) Kong wiohout (sic) the authority of the Director of Immigration."

I pause here to remind those who are responsible for drafting the charges that they have a duty to ensure that both the Statement and Particulars of Offence are correct; not only as to contents but also as to spelling.

On 8th December 1998, the Appellant filed a notice of appeal against the total sentence of 18 months. In the statement which accompanied the said notice, he mentioned for the first time, so far as I know, that he did not "sneak" into Hong Kong but had entered Hong Kong by using his passport. He further 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'.

On 2nd February this year, a further notice of appeal, this time against the conviction on Charge 3, was filed upon the learned Magistrate granting the application to appeal out of time; no doubt because the learned Magistrate had wanted to act as fairly as he could to afford this Appellant every opportunity to air his grievances.

In early March this year, the Appellant's Notices of Abandonment in respect of his appeal against sentence on all the convictions were filed.

On 18th May this year, the hearing of this appeal was adjourned upon the application of the Respondent for the purpose of authenticating what was called "the passport".

On the 2nd of this month, this appeal was further adjourned after submissions were heard; the learned judge giving leave for the filing of further affirmations.

Grounds of Appeal

1. This appeal is brought under S.113(1) of the Magistrates Ordinance Cap.227.

There were two grounds of appeal in the original 'Perfected Grounds' which later became 3 grounds in the "Re-perfected" grounds. They are :

"1. The Appellant alleges that he landed in Hong Kong lawfully and would seek to produce fresh evidence, namely, a passport issued by the Chinese Government which shows that he landed in Hong Kong with the permission of the Director of Immigration of Hong Kong. The conviction of the 3rd Charge is therefore unsafe and unsatisfactory.

2. The Appellant did not enter a plea of guilty voluntarily. The plea was a result of police assault and under the circumstances that the Appellant would not be able to produce the aforesaid passport evidence.

3. In all the circumstances, the conviction of the 3rd Charge is unsafe and unsatisfactory."

Mr.CHAN Siu-ming, who appeared for the Appellant on this appeal but not below, conceded that, prima facie, the Appellant did not have the right to appeal against conviction under S.113(1) because he had pleaded 'Guilty'. However, he cited the case of R v Huntingdon JJ Ex p Jordan (1981) 73 Cr App R 194, a decision of the Divisional Court in England. On that authority, he submitted that where the plea was equivocal or sui generis, an appellate court had jurisdiction to inquire and remit the matter to the lower court to hear the case. Both Mr.CHAN and Ms.Lily Wong for the Respondent have drawn my attention to the very recent Hong Kong case of HKSAR v AU YEUNG Boon-fai MA120 of 1999, where the Court of Appeal held that unless the plea (of guilty) was equivocal or was nullified by an established legal principle, a person convicted upon his guilty plea has no right to appeal against conviction under S.113 of the Magistrates Ordinance.

Jurisdiction of this Court

The jurisdiction of this Court sitting in its appellate jurisdiction to hear appeals from a magistrate are entirely contained in the Magistrates Ordinance Cap.227. The only avenues open to a party for bringing an appeal from a magistrate to this Court is via the use of either S.105 or S.113 of the Magistrates Ordinance Cap.227. Section 113(1) provides:

"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 added).

Section 113(2) provides:

"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."

These two sub-sections therefore clearly set out the basis upon which appeals may be brought under S.113.

In this case, the 'Notice of Appeal against Conviction' was filed under S.114A of the Magistrates Ordinance which deals with the "Extension of time for giving notice of appeal under section 114". S.114 lays down the "Procedure for appeals under section 113 prior to entry of appeal" and provides:

"Where a person is authorized by section 113 to appeal to a judge...".

It is plain therefore, that sections 114 will only become operative when an appeal was brought on the basis that S.113 applied. However, in AU YEUNG Boon-fai, Keith JA when giving the judgment of the Court of Appeal said (at page 6H to K):

"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." (emphasis supplied).

Upon this dictum, it is clear that this Court does have jurisdiction to entertain an appeal under S.113 of the Magistrates Ordinance if it were found that the 'Guilty' plea tendered was a nullity. As I understand it, this is on the basis that the nullity would mean that no plea had been entered in which case, as with an accused standing mute, a plea of 'Not Guilty' was bound to be recorded by the magistrate.

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. This is different to the situation that pertained in R v LI Tung-hing [1992] 2 HKC 427, where it was held by Leonard J. that this Court could entertain an appeal against conviction under S.113, even when an apparently unequivocal plea of guilty had been recorded, if upon the admitted facts that appellant could not in law have been convicted of the offence with which he had been charged.

The question in the present case is whether there is sufficient evidence before me to justify a finding of any of the above situations and accordingly rule that the unequivocal plea of guilty tendered was a nullity.

Duress

As I have indicated, on the last occasion this appeal was heard, it was adjourned for affirmations to be filed by both parties. The Appellant has filed two affirmations; one dated 5th May 1999 and another dated 13th July 1999, the latter since the last hearing of this case. Indeed even before those affirmations, he had filed a statement with his 'Notice of Appeal against Sentence' wherein he mentioned many of the things he did in his said affirmations. The Respondent has filed an affirmation dated 27th July 1999 of Police Constable 52703 Mr.YUEN Chi-wai in which the allegation, inter alia, of duress made by the Appellant in his affirmations was denied. I am asked by both counsel to decide upon the issue of duress by relying upon the said affirmations. Having given the matter anxious consideration, I find that the Respondent has satisfied me that there was no duress as alleged or at all. It is unbelievable that if there were such duress that the Appellant would not have mentioned it at all to either the officers of the Duty Lawyer Scheme who always handle every case it deals with conscientiously, or to his Duty lawyer during the conference before his appearance in court for plea.

However, that is not the end of the road for the Appellant because as I have indicated, the finding of nullity may be based upon reasons other than duress.

Section 8(1)(b) Immigration Ordinance Cap.115

2. The offence under Charge 3 of "Remaining in Hong Kong without the authority of the Director of Immigration" contrary to S.38(1)(b) of the Immigration Ordinance Cap.115 requires proof, inter alia, of the accused "having landed in Hong Kong unlawfully". The Respondent has conceded that the Appellant is the genuine holder of the Chinese passport numbered 142675175, that the holder of it used it to enter Hong Kong lawfully on 21st November 1996 and was permitted to remain until 28th November 1996 (as is evident from the stamp and condition on page 17 of the passport). In the Appellant's affirmation dated 5th May this year, he affirmed that:

"On 21st November 1996, I used a Chinese Passport to come to Hong Kong. Since then I had overstayed and remained in Hong Kong until I was arrested by police officer on 12th November 1998."

This has not been challenged by the Respondent in any way. Therefore this constitutes evidence of the Appellant having entered Hong Kong lawfully. With this additional evidence, the offence under Charge 3 cannot be proved.

That being the situation, the next matter to consider is the reason why the Appellant had pleaded guilty to Charge 3 and furthermore admitted the facts when they clearly stated, inter alia, that he had sneaked into Hong Kong on 25th May 1998. On the basis that the Appellant had entered Hong Kong lawfully and knew that he did, the only reason for his willingness to plead 'Guilty' and admit the facts in respect of Charge 3 must have been that he was not aware that 'unlawful entry' was an essential element of the offence under S.18(1)(b). As I have indicated, on the day of his plea, the Appellant was represented by a lawyer under the Duty Lawyer Scheme. Therefore how it was that he would not have known of this essential ingredient is somewhat a mystery. Be that as it may, I am sure that if it was made known to him that 'unlawful entry' was an essential ingredient of the offence, he would not have tendered a plea of guilty to Charge 3 nor admit the facts pertaining thereto knowing that he had entered Hong Kong lawfully. In the circumstances, I am of the opinion that his 'Guilty' plea must have been tendered because of a misunderstanding of the law. This constitutes a ground upon which I may properly find that the plea of guilty is a nullity; I so find. The Appellant is to be treated as if he had not entered any plea at all in respect of Charge 3 and therefore has to be considered as having entered a plea of 'Not Guilty' to that charge.

Powers of this Court

When hearing Magistracy Appeals, this Court's powers are limited by, inter alia, S.119(1)(d) as to what orders it may make. S.119(1)(d) provides (so far as relevant to this case):

"In the case of any appeal to which section... 113 applies -

(d) the judge may by his order confirm, reverse or vary the magistrate's decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised; ..." (emphasis added).

Since the order sought to be appealed against is the conviction, the only alternatives available are either to confirm or reverse it; 'varying' a conviction not being possible. The other powers under S.119(1)(d) are only available in this case when the conviction was reversed. [Vide: R v. Fai Ma Trading [1989] 1 HKLR 582 CA.]

The Conviction

3. Since the Appellant is to be treated as having pleaded 'Not Guilty' to Charge 3, and for the reasons I have given, his appeal against conviction is allowed. The conviction is hereby reversed and quashed; the sentence of 15 months' imprisonment set aside.

Further Order

The matter does not end with these orders because as I have indicated, I have the power to make further orders upon reversing the conviction and by such orders exercise any powers which the learned Magistrate might have exercised.

What the Appellant had said in his affirmation dated 5th May, as quoted, is a clear admission to the offence of 'Breach of Condition of Stay' contrary to S.41 of the Immigration Ordinance Cap.115. That being the situation, I exercise my powers under S.119(1)(d) and substitute a conviction for the offence under S.41 as I have no doubt that the learned Magistrate would have done in exercise of his powers under S.27 of the Magistrates Ordinance Cap.227.

4. I shall now proceed to hear submissions on sentence.