THE QUEEN v. LI YUEN CHU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 331 OF 1993

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J U D G M E N T

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1. This is a case where the appellant had pleaded guilty before the magistrate on 2nd April 1993 to two offences, namely (a) using an unlawfully obtained travel document for the purpose of Part II of the Immigration Ordinance, contrary to s.42(2)(b) of the Immigration Ordinance, Cap. 115; and (b) making a false representation to an Immigration Officer lawfully acting under Part II of the Immigration Ordinance, contrary to s.42(1)(a) of the Ordinance. He pleaded guilty before the magistrate, Mr Candy, who upon taking the plea and the admission of the brief facts of the case by the appellant, sentenced him to 9 months imprisonment on each of the charges, to run concurrently.

2. On 15th April 1993, the appellant, through counsel, applied to reverse his plea. The grounds were that the defendant was misled by Immigration Officers that the charges were merely trivial and would be dealt with by light sentence, probably a fine on plea of guilty and the defendant would then be sent to the destination that he wanted. It was also mentioned by counsel to the magistrate that the defendant was not given any opportunity to consult a lawyer regarding the serious nature of the offences. It was also said that the defendant was overborne by the fact that the defendant’s friend was in court and attempted to get an adjournment for the defendant but was told to sit down by the police officer in court. His friend wanted to apply for a duty lawyer under the Duty Lawyer Scheme for the defendant. But his friend was told that if an adjournment was granted, the case would be forwarded to headquarters.

3. To sum up, the grounds for the application before the magistrate were that the defendant was overborne by what he was told by the Immigration Officers and the fact that his friend’s attempt to seek an adjournment failed; the defendant then thought that he had no alternative but to plead guilty.

4. The magistrate refused the application on the ground that he was satisfied that the defendant had clearly understood the charges and the facts which were stated in simple language and were translated for the defendant into Mandarin, the language that he spoke. The magistrate went on:-

“I was satisfied that the defendant’s plea was unequivocal and that the only matter about which the defendant might have been under any misapprehension was regarding the sentence which might be imposed.”

5. I was referred by Mr Ho for the appellant to two cases for the proposition that it was for the Court to enquire whether the grounds of the application for withdrawal of a plea were true or without substance. The two cases are Wong Ching Wah v R. [1976] HKLR 412 and the unreported judgment of Garcia J. in Criminal Appeal No.1597/83, R. v Lee Kwok Sum. Both of the cases cited to me held that an enquiry should be held to ascertain the facts of the allegations which formed the basis of the application for withdrawal of a plea before the court should exercise its discretion whether to permit the withdrawal. However, Mr Ho did not inform me that these two cases dealt with situations where sentence had not been passed.

6. After Mr Tong for the Crown had drawn my attention to this fact, Mr Ho then referred me to the case of Law Hau On v R., Crim App No.578/82 where Sir Alan Huggins V-P allowed the appellant there to have his plea reversed on the ground that he might have been misled to believe that the sentence that would be passed on him was but a fine instead of a disqualification from holding a driving licence, although apparently, sentence had already been passed on the appellant.

7. Although the grounds of the appeal rely on the allegations of coercion, oppression and duress under which the appellant was compelled to enter a plea of guilty, such grounds are not supported by any facts on the record, or even in the affirmation of the appellant filed in this Court in support of his application for bail pending appeal as late as 22nd April 1993. However, what does give rise to concern here is that the ground of inducement on misrepresentation alleged to have been made by Immigration Officers of the likely sentence of only a fine without a term of imprisonment was mentioned to the magistrate, and it appears to me that no enquiry was made as to the veracity or otherwise of this allegation before the application was rejected.

8. In the circumstances, for the sake of justice being seen to be done, I would allow the appeal and remit the case to the magistracy for such matters, being the basis of the withdrawal of the plea, to be investigated in a manner as a magistrate thinks proper. I wish to mention that the enquiry should not be held before the same magistrate for fear that it might be seen that he would have prejudice against the appellant.

9. In the result, the conviction is quashed, the sentence set aside and the case remitted to a magistrate for hearing and enquiring the application to withdraw the guilty plea.