HKSAR v. HAN XINJIA (韓新嘉)

Press Summary (English)

Press Summary (Chinese)

FACC No 11 of 2023

[2023] HKCFA 38

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 11 OF 2023 (CRIMINAL)

(ON APPEAL FROM HCMA NO 311 OF 2022)

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J U D G M E N T

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Mr Justice Lam PJ:

1.  This is the judgment of the Court. Leave to appeal to this Court was not contested and the Appeal Committee granted leave on 14 June 2023 on the following ground:

“it is reasonably arguable that the Applicant had suffered substantial and grave injustice from not having been provided with a statement and particulars of the offence charged and a summary of the facts of the case against her before she was arraigned in court which involved a departure from accepted norms.”

2.  Since then, the Respondent indicated on 21 August 2023 that it is prepared to concede the appeal. The requisite directions[1] were given. The parties filed their Joint Printed Case on 4 October 2023 inviting this Court to allow the appeal. Having read the papers and considered the legal principles involved, we are of the view that the appeal should be allowed and the Appellant should be permitted to reverse her guilty plea.

3.  The Appellant came from the Mainland and she married a Hong Kong permanent resident on 27 December 2015. Before that, she had come to Hong Kong to pursue education for her master’s degree and she lived here since 2008. After her marriage, she had worked as a teacher in Hong Kong for a while. She gave birth to a son in August 2018 and since then she stopped teaching. Notwithstanding so, she had to obtain permission from the Director of Immigration to stay in Hong Kong from time to time as she was not (and she still is not) a permanent resident.

4.  She obtained a One-Way Permit issued by the Mainland authority on 15 January 2020 to allow her to settle in Hong Kong. However, because of the travel restrictions during the COVID-19 pandemic, she did not return to the Mainland to complete the formalities until 2022. Before that, the Director’s permission for her to stay in Hong Kong expired on 28 March 2022. She was found to have overstayed in Hong Kong for 1.5 months when she applied for an extension of stay on 12 May 2022.

5.  She attended an interview with an Immigration Officer on 2 June 2022 concerning her overstaying. Without informing her that she would be charged with the offence of breach of her condition of stay by overstaying, she was told to report to the Prosecution Section of the Immigration Department at the Shatin Magistrates’ Courts on 9 June 2022. No charge sheet or other document suggesting that she would be prosecuted for a criminal offence was given to her. She was not arrested.

6.  When she reported to the Prosecution Section on 9 June 2022, she was brought before a magistrate. Even at that stage, she had not been provided with any charge sheet or brief facts. The charge and the brief facts were only read out to her for the first time inside the courtroom when plea was taken from her. The Appellant laboured under the mistaken belief that pleading guilty for what she thought to be a regulatory offence would not give rise to a criminal record. This was of great importance to her as she intended to resume teaching in the future.

7.  She pleaded guilty before the Acting Principal Magistrate Mr David Cheung. The Magistrate sentenced her to 6 days’ imprisonment suspended for 12 months.

8.  Subsequently, she sought legal advice and then applied to reverse her plea. On 10 August 2022, her application was refused by the Magistrate. Her appeal against that decision was dismissed by Johnny Chan J on 20 January 2023.

9.  In the Joint Printed Case, counsel submit that as a result of her not having been provided with the charge sheet and brief facts she could have suffered from a self-induced and fundamental misconception as to the nature of the proceedings and the potential consequences. It is further accepted that she might have believed that she was not facing a formal criminal charge but a violation of a regulation which would not result in a custodial sentence or a conviction. In the special circumstances of this case, had the Appellant not pleaded guilty, it was acknowledged that she had a good chance of having her case to be disposed of by the prosecution offering no evidence against her on condition of her agreeing to be bound-over.

10.  Article 11(2) of the Hong Kong Bill of Rights provides:

“In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality —

(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) …

(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; …”

11.  These are minimum guarantees for a person charged with a criminal offence. In the present case, they were infringed since she had not been informed promptly of the nature and cause of the charge against her, not having been provided with the charge sheet and brief facts of the case before she was brought into the courtroom on 9 June 2022.

12.  The purpose of the requirement of providing the charge and its particulars to a defendant promptly was explained in the authorities. In Hau Tung Ying v HKSAR[2]Chan PJ said:

“In a criminal trial, an accused has the right to know, in sufficient time, the case which the prosecution wishes to prove against him. This includes the acts which he was alleged to have committed and also the nature of the accusation. Such information is necessary to ensure that he can have a fair trial.” (emphasis supplied)

13.  Even in cases where a defendant is considering a guilty plea, the requirement of promptitude is essential to give the defendant sufficient time to consider his position and to seek legal advice if he so wishes. This is a prerequisite for the effective exercise of the rights under Art 11(2)(b) and (d)[3]. Unless a person has been adequately informed of the criminal charge preferred against him, he may not be able to decide whether to engage a lawyer and to choose the course to take in facing the charge.

14.  This was what happened in the present case. When she attended the Prosecution Section on 9 June 2022, the Appellant did not know that she would be charged with a criminal offence which could lead to a prison sentence and a criminal record. She was deprived of the opportunity to consider whether to consult a lawyer and to assess her options with the benefit of such advice. Hence, her rights under Art 11(2)(b) and (d) were also curtailed by the way in which the Immigration Department handled this prosecution.

15.  The reading of the charge and brief facts to her by the court clerk at the hearing after she had been arraigned is not sufficient to meet the requirement of Art 11(2)(a). First, this only occurred after the Magistrate had asked if she would plead guilty and she had answered in the affirmative. Second, the reading of the charge and the brief facts there and then did not provide her with an opportunity before the taking of plea to consider the matter with a lawyer if she so wished.

16.  There is no suggestion that the Magistrate was aware that she had not previously been given any charge sheet or brief facts. If he was so aware, in light of the fact that the Appellant was not legally represented, he should at least have explained to her the serious nature of the proceedings and should also give her an opportunity to consult a lawyer before a plea was taken.

17.  A guilty plea constitutes a formal admission of guilt to the crime charged and it displaces the presumption of innocence and the right under Art 11(1) of the Hong Kong Bill of Rights to have one’s guilt to be proved by the prosecution before a conviction is warranted. The law requires a valid guilty plea to be voluntary, unequivocal and informed before such fundamental rights are displaced. In light of the minimum guarantee under Art 11(2), a defendant does not make an informed plea if she has not been given a charge sheet or other document setting out the particulars of the offence giving her the opportunity to consult a lawyer before pleading to the charge. Such a plea is therefore not a valid plea.

18.  Applying these principles in the present case, as the Appellant had not been given an opportunity before her plea to discover that she faced a criminal prosecution which could bring about serious consequences, her plea was not an informed one. We are satisfied that she would have pleaded not guilty had she been aware of the serious consequence of a conviction.

19.  In these circumstances, since the minimum guarantee under Art 11(2) had not been met, the Magistrate should have allowed her to reverse her plea even though she only applied to do so after sentencing. Her guilty plea on 9 June 2022 was a defective one and it could not displace her right under Art 11(1) to have the charge proved against her.

20.  We accordingly allow the appeal and permit the Appellant to reverse her plea. The matter should be remitted to the magistrates’ court for the plea to be retaken. We would also make an order for costs as requested by the parties in para 52 of the Joint Printed Case.

Joint Written Submissions by: