HKSAR v. LEE CHI LUN

HCMA346/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.346 OF 2000

(ON APPEAL FROM ESCC 412 OF 1999)

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J U D G M E N T

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1. The appellant was convicted on 11 February 1999 of one charge of theft. He entered a plea of guilty on that date to that charge and admitted the facts presented in court supporting the charge were true. He now comes before me firstly with an application that he be permitted to change his plea from one of guilty to not guilty, and to proceed upon an appeal against conviction on the basis on that change of plea. Secondly, he seeks to have place before me fresh evidence in the form of a medical report showing the possible effects that certain drugs that he said he was taken at the time when the alleged offence occurred might have had upon him and the effect that it could have had upon his mental state.

2. The first matter that I must consider is whether or not the plea was properly entered. I have heard evidence from Mr Bernard Chung, his counsel, on the date of the hearing, and I have heard evidence from the appellant himself. I have also had the opportunity to consider fully the contents of the report which Mr Chan seeks to place into evidence on behalf of the appellant. I took all that evidence and considered the report de bene esse.

3. The most recent authority in Hong Kong in respect of a change of a plea of guilty is that of HKSAR v. Wong Chi Yuk HCMA381/1999, which was heard upon reference by the Court of Appeal. In his judgment, Woo JA set out the various factors which could render an otherwise unequivocal plea of guilty a nullity, and they were these

"(1) The facts admitted by the defendant do not amount to the offence with which he is charged;

(2) The admitted facts are equivocal as to guilt;

(3) The plea was tendered to a charge which was defective on its face or invalid or unclear;

(4) The plea was tendered involuntarily, that is induced by duress or misrepresentation or was not an exercise of free choice;

(5) The plea was induced by fraud or made under a fundamental mistake;

(6) The plea did not result from a deliberate and informed decision."

4. In the matter before me, the appellant admits that he was fully aware of the charge which he faced; he admits that the facts as alleged by the prosecution were known to him prior to his plea of guilty; and he accepts that upon those facts being read out in court, he admitted that they were true. The first point to make is that those facts do amount to the offence with which he was charged, and secondly, there is no equivocation in those facts and they are a clear statement of guilt if accepted.

5. I have considered the charge itself and there is nothing on the face of it which is defective and nothing which is invalid or unclear. In his evidence before me, the appellant had said that he received advice from Mr Chung and that he made the decision alone as to whether to plea guilty or not guilty. He says he was under stress at the time but not under any duress, the nature of the charge or the facts were not misrepresented to him, and that he was entirely free to make the decision as to which plea to enter guilty or not guilty.

6. The next matter to consider is whether the plea was induced by fraud or made under a fundamental mistake. Again, knowing the facts and knowing the charge, being aware of circumstances surrounding the decision to be made, the appellant cannot be said to have been induced by fraud, or made his decision under any fundamental mistake.

7. The last matter to consider is whether the plea resulted from a deliberate and informed decision and it is this : that Mr Petrus Chan urges upon me was the situation here.

8. The facts that the appellant admitted were that on 5 February 1999 at 1400 hours, he was in Sogo Department Store at 555 Hennessy Road, that a salesgirl working inside the shop saw him take a belt, which was a "Salvatore Ferragamo" belt, from the shelf and concealed it inside the right sleeve of his jacket. Thereafter, he left the shop without making payment. The salesgirl informed security to stop the appellant. He was stopped and the exhibit, the belt, was recovered. Another witness was summoned to arrest the appellant and, under caution, the appellant admitted the offence. The belt was stated to be valued at $850 in the charge and the appellant had his possession $380 at the time of the offence. He was charged on 5 February 1999 and told he would appear at Eastern Magistracy on 11 February 1999.

9. Prior to entering his plea, the appellant firstly was interviewed by a liaison officer of the Duty Lawyer Scheme and subsequently interviewed by Mr Chung. In his affirmation in support of his application, the appellant said this :

"He explained to me my right to plea and advised me that I should plead not guilty if I was affected by drugs."

10. It is clear from the affirmation of the appellant that he was fully advised that if he had any instructions to give that he were under the influence of drugs, then he ought to enter a plea of not guilty. In the evidence given by Mr Chung, which I accepted, Mr Chung asked him whether or not at the time of the alleged offence he had been affected by his illness or medication in any manner which might have affected his men reas. Mr Chung in his evidence said the appellant said that he was not so affected. Further assistance is gleened from a note made by Mr Chung who re-interviewed the appellant when he came to the Duty Lawyer Scheme on 27 February 1999, some 16 days after the event. Having spoken to the appellant, Mr Chung had made a note which he annexed to his affirmation filed with this court before he gave evidence. In that note he said this :

"I confirmed with him that on 11 February 1999 when I interviewed him before court he had admitted that he was not affected by his illness or the medicine he was taking at the relevant time. He was greedy."

11. I am satisfied that firstly, the appellant was fully aware of the nature of the charge and defences open to him. Secondly, that the plea was a deliberate and informed decision. Thirdly, that no responsibility falls upon Mr Chung for the failure to obtain any report concerning either the illness or the medication taken by the appellant. When counsel is told, having a indicated to an appellant or defendant that if he were affected by medication he should plead not guilty and was then told by the defendant that he was not so affected. No obligation rests with counsel to undertake further investigation of the matter.

12. In all the circumstances, the conduct Mr Chung was perfectly proper, and the application for the plea to be declared a nullity must fail. The matter does not end there.

13. I have further considered whether in the interest of justice I should permit this appeal to go ahead on the basis that the report given to me by Mr Chan on the drugs taken by the appellant were such that a miscarriage of justice might otherwise take place. I am satisfied given what I have found to be the events of 11 February 1999, and given the evidence of Mr Chung of counsel that the report would be of little assistance there being an admission by the appellant that he was not affected by the drugs at the time of the offence.

14. I decline, therefore, to admit that report into evidence, it being one that could have been obtained should the accused wished at the time but no necessity was seen for it. This appeal fails and is dismissed.