THE QUEEN v. WONG PAK KI

IN THE SUPREME COURT OF HOKG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 981 OF 1987

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J U D G M E N T

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1. On 10th December 1987, I allowed this appeal against conviction and promised to give my reasons in writing which I now do. The appellant who was unrepresented when she first appeared before the learned magistrate on the 24th October 1987, was charged with two offences - one for theft and the other for making a false report to a police officer of the commission of an offence. She then pleaded guilty to both offences after the charges were read to her and was convicted after the brief facts of the case were read to and admitted by her. In his notes, the magistrate recorded "I convict the defendant on her own plea". The appellant has a clear record and in mitigation stated "I am 18, 1 am a student". The matter was then adjourned by the magistrate to 6th November 1987 so that a probation officer's report might be obtained before imposing sentence. On the 6th November 1987 when the matter came up before him after the probation officer's report had been obtained, the appellant, who was now professionally represented, made an application to reverse her pleas on the ground that she had been misled by her arresting officer into pleading guilty to the two offences. She stated that the latter had told her that the result of her doing so would be a bindover and that probably no conviction would be recorded, the matter would be dealt with once and for all and her parents would not hear of the matter. The magistrate rejected her application on the ground that the pleas she entered on the 24th of October were unequivocal, the appellant having fully admitted the facts which were read out to her. Unfortunately the magistrate was not apprised of the fact that there are two cases in Hong Kong which are directly to the point, namely R. v. Wong Ching Wah[1] and R. v. Law Hau On[2] (unreported), both cases having been decided by Sir Alan Huggins, V.P. (as he then was). In Wong Ching Wah's¹ case, a girl of 16 years of age, who was also unrepresented at her trial, was convicted of blackmail upon pleading guilty to the charge, when the matter resumed for sentence, the appellant who had by then secured the services of a solicitor, applied to have the plea reversed on the grounds, inter alia, that she had been persuaded by a police officer to admit the offence. In his judgment, the learned judge stated "what however worries me is that the learned magistrate did not apparently make any proper enquiry into the facts at the time that Mr. Gunston made this application. The question was then one of fact whether or not the plea was her plea or whether it was a plea made under duress. That, in my view, was a matter which should have been investigated as a matter of fact and probably on oath. No enquiry was made. The magistrate merely says that under the circumstances, he was satisfied that the plea should not be allowed to be withdrawn. His conclusion may have been right but in my view, there was not sufficient enquiry. I am not going to embark upon an enquiry at this stage and justice requires this girl be given the opportunity to reverse her plea and make her defence."

2. In Law Hau On², the appellant was charged with permitting his co-defendant to drive his private car for hire or reward, and also permitting him to use the same car without third party insurance. When he appeared before the magistrate, he was not professionally represented and after the charges had been put to him, pleaded guilty and admitted the facts of the case. The appellant was fined and disqualified from holding or obtaining a licence to drive. He applied on review, this time professionally represented, to reverse his pleas on the ground that he had been misled by a police officer into thinking that at most he would be fined $500 and that no question of disqualification would arise. In refusing the application, the magistrate decided that it was unnecessary to enter upon the enquiry required in Wong Ching Wah's¹, case because he was of the opinion that even assuming the words had been said, the appellant's will had not been overborne. Upon appeal, it was held by Sir Alan Huggins V.P: (as he then was) that justice required that the appellant's plea be declared null and void and that there should be a venire de novo stating that "it is easy to be wise after the event but it must be said that in the event, it is unfortunate that the magistrate did not inquire into the allegation for we would then know the real facts. As it is there is a possibility that the appellant pleaded guilty when he would not have done so had he not been induced by the circumstances which he could now reasonably believe to have amounted to a trick. However remote that possibility, I think that justice requires that this plea be declared null and void and that there should be a venire de novo."

3. In my view, similar circumstances arise in this case, and the magistrate was under a duty to embark upon an enquiry into the allegation made by the appellant as justice requires. I respectfully echo the words of the learned judge "it matters not that the magistrate may well have been right when he said that on the basis of the admitted facts it would have been difficult for anyone to advise the appellant to do otherwise than enter a plea of Guilty: the appellant was entitled if he wished to have the case formally proved against him."

4. Accordingly, I allow the appeal and remit this case to the magistrate for trial of the two charges against the appellant.