HKSAR v. NG YAU FUNG TOM

HCMA1291/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1291 OF 2000

(ON APPEAL FROM STCC 247 OF 2000)

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J U D G M E N T

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1. The appellant Ng Yau Fung, was charged with an offence of possession of a dangerous drug. The amount involved was 0.27 grammes of mixture containing heroin hydrochloride. According to the record, the appellant had pleaded guilty and was convicted by the learned magistrate. He was placed on probation supervision for 12 months. Now the appellant appeals against the conviction.

2. The respondent opposed the application and pointed out that the grounds raised was not sufficient to upset the conviction, particularly when the appellant had not filed any affirmation to substantiate the allegations regarding his mental state at the material time. However, having heard the appellant and considered the situation as revealed in the transcript, although there was no affirmation before me, I was satisfied that the case should be sent back to the magistrate for plea to be taken again. I have given a brief oral judgment in court and I shall now reduce the reasons in writing.

3. The leading authority on the issue of appeal on conviction after entering a plea of guilty before the magistracy is the Court of Appeal case of HKSAR v. Wong Chi Yuk [2000] 3 HKLRD 125. It was held that a person convicted of an offence by his own plea of guilty could not generally appeal against that conviction, pursuant to section 113(1). An unequivocal guilty plea could not be rendered a nullity if any of the following circumstances was applicable : (a) the facts admitted by the defendant did not amount to the offence with which he was charged; (b) the admitted facts were equivocal as to guilt; (c) the plea was tendered to a charge which was defective on its face or invalid or unclear; (d) the plea was tendered involuntarily, eg induced by duress or misrepresentation or was not an exercise of free choice; (e) the plea was induced by fraud or made under a fundamental mistake; or (f) the plea did not result from a deliberate and informed decision. These would be the guiding principle in such type of cases.

4. Returning to the present case, the transcript reveals that after the charge was read to the appellant, he said he would plead not guilty and wanted to explain. He said he had just picked up the folded banknote at the bus stop. It was not his property. He picked it up out of greed. In other words, he denied knowledge of the drug contents found inside the banknote. He further said that when he unfolded the banknote and saw the white substance, he was about to throw it away but the officer then appeared and had arrested him.

5. The case was then stood down as the learned magistrate had to deal with another matter. Later, the magistrate proposed to adjourn the case as it might not be reached that day. Apparently eager to avoid an adjournment, the appellant asked the magistrate whether he would receive a light sentence if he plead guilty while still maintaining that the drugs was not for his consumption, and that he had really just picked it up. The learned magistrate then took the plea again. Before that, he did remind the appellant to think about it and to make a decision himself. Then the appellant pleaded guilty and admitted the facts. Having convicted the appellant, the magistrate called for a probation report and ordered a urine test.

6. On the returned day, the magistrate noted that the urine test result was negative. In sentencing the appellant to a term of 12 months probation, the learned magistrate made certain remarks indicating that he actually accepted the appellant's explanation in relation to the picking up of the item, which so happened to contain dangerous drug inside. At the end, the magistrate even advised the appellant not to pick things up in the street so casually anymore. The problem is, in view of his acceptance of the appellant's account, the learned magistrate could not have been satisfied that the appellant had proper knowledge about the presence of dangerous drug inside the banknote, and knowledge is, of course, a basic element in the offence of possession of dangerous drug.

7. Applying the principles in Wong Chi Yuk against this background, and in view of what the appellant had said before the learned magistrate, I consider that the present case either fell into (a) or (b) or perhaps even (d), if the appellant pleaded just to avoid a possible adjournment.

8. The respondent had rightly pointed out that the appellant's grounds of appeal did not really state the proper grounds pursuant to the authority. I agree that the proposed grounds of appeal might not be sufficiently precise and cogent, however, as I had pointed out in my oral judgment, I found I should not be hindered in making the appropriate order in view of the problem involved.

9. In the circumstances, I would quash the conviction, set aside the sentence and order that this case be sent back to the magistracy for plea to be taken again.