THE QUEEN v. CHAN KAM TAI

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JUDGMENT

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1. Mr. CHAN Kam-tai pleaded guilty before a magistrate to seven charges of obtaining property by deception.  It is unnecessary for the purposes of this appeal to set out the facts of the case, though I note that the brief facts of the case, as put before the magistrate, were sufficient to justify him in accepting pleas of guilty to the charges as these were amended by the Crown.

2. The defendant, unrepresented, appeared in front of the magistrate on 6th June, 1984. The charges were read and explained to him. In reply to each charge, he answered "I admit". The summary of facts was also put to him, which he admitted.

3. The magistrate adjourned for seven days, because he thought that the particulars of offence in each charge should be amended, to give the Crown an opportunity to amend them.

4. On 13th June, the prosecutor presented amended chargers, which made the allegations which had been laid against the appellant somewhat clearer,  though I do not  think that he had been prejudiced by the particulars which had been set out in the earlier version.

5. The amended charges were read and explained to the defendant, who replied "I admit" in answer to each of them. The defendant was asked to confirm that the summary of facts, which had been read and interpreted to him at the previous hearing, was correct, and he did so.

6. He was asked if he had anything further to say. He replied that he had not; and was sentenced to fifteen months' imprisonment on each charge to run concurrently.

7. Three weeks' later, however, on 4th July, counsel, who appeared before the magistrate on an application for bail pending appeal, informed him that the defendant, since he had been sentenced, had told his instructing solicitors that he had not meant to plead guilty, but had done so because the officer in charge of his case, when taking his cautioned statement had shown him a similar offence committed by a travel agent, in which a six months' suspended sentence was passed. There next appears in the record the phrase "He was told that he did not want any trouble, that was why he pleaded guilty." Counsel submitted that "this matter which took him to plead guilty must be investigated:"

8. The magistrate refused the application, though he recorded no reasons for doing so. He could not have exercised his power of review, since the time limit of 14 days permitted for this procedure had expired.  And it is difficult to see how he could have made, an appropriate order, even if persuaded that the defendant's story had substance, on a bail application.

9. I therefore consider that he was correct to refuse the request made by the defendant on 21st, since he had no power to do so on a bail application.

10. In his notice of appeal of 23rd June, 1984, the defendant puts forward, as his main grounds, that his plea was equivocal and that he had intended to plead not guilty to the charges.

11. I was referred to three cases which establish that it is open to an appellate court to enquire as to whether or not an apparently straightforward unequivocal plea of guilty had been proffered as the result of duress, coercion or persuasion of some kind.

12. In R. v. Crown Court at Huntingdon and Other ⁽¹⁾, a wife pleaded guilty before the magistrate, but alleged in her appeal that she had done so as a  result of threats and pressure put upon her by her husband, who was jointly charged with her.

13. The cases of WONG Ching-wah v. R.⁽²⁾ and LAW Hau On v. R. ⁽³⁾ decide that where there is an allegation of duress or persuasion, the correct course is for the magistrate to make a proper inquiry into the allegation. In the Wong Ching-wah Case⁽²⁾, a girl of 16 asked to be allowed to change her plea when she was represented by a solicitor for the first time, asserting that she had been wrongly induced by the arresting officer to enter a plea of guilty. The magistrate did not make any enquiry into the facts at the time when the application was made to him. On appeal, Huggins, J. thought that this should have been investigated, as a matter of fact and probably on oath. No enquiry was made by the magistrate, who merely stated that he was satisfied that the plea should not be allowed to be withdrawn.

14. In Law Hau On⁽³⁾, a solicitor appeared on behalf of a defendant, who had pleaded guilty, on an application for review. It was asserted that the officer in charge of the case had told the appellant that it was a minor matter and the defendant had better plead guilty and at most he would be fined $500. Huggins, J. observed that if the appellant was led into thinking that at the most he would be fined $500, that "could mean that he had been misled into thinking that no question of disqualification arose". He added that he thought it was unfortunate that the magistrate did not inquire into the allegation and that there was a possibility that the appellant pleaded guilty when he would not have done so had he not been induced by circumstances which he could now reasonably believe to have amounted to a trick.

15. Crown Counsel submitted, with some justification, that the record as it stands does not contain a sufficiently clear indication that any threat or inducement was offered by the officer in charge. It could be interpreted as showing no more than that the officer in charge had told the appellant that  in a similar sort of case a travel agent had been given a six month suspended sentence.

16. On the other hand, it might be possible to construe this passage as implying some degree of persuasion, when coupled with the rather puzzling sentence " He was told that he did not want any trouble".

17. I am therefore left with the feeling that, although there may very well prove to be no substance in the allegations by the appellant, they are of such a nature that the magistrate should have investigated them further, if he had been in a position to do so which, as I have found, he was not.

18. Where such allegations are made,  the correct course is for the magistrate to take evidence on oath from the defendant and from the officer against whom such allegations are made. If, having taken such evidence, he is satisfied that the defendant's allegations were not substantiated,  he would be justified in refusing to accept a reversal of plea.

19. Because I think there is a possibility, and I put it no higher than that, that the appellant was induced either by a threat or by a form of inducement to plead guilty when he would otherwise have not have done. I consider that he should be allowed to reverse his plea. This can only be achieved by allowing the appeal, quashing the conviction and ordering a retrial. Because of the history of the case, this involves no criticism of the magistrate, who was not at fault.

20. The appellant will be released on bail of $10,000. He must surrender his travel documents and report twice weekly to Yuen Long Police Station.