THE QUEEN v. CHEUNG CHI-KEUNG

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JUDGMENT

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1. This is an appeal from the decision of a magistrate not to permit a reversal of a plea of guilty.

2. The appellant, who was charged with robbery in company with six other young man, appeared before a magistrate on 7th November. All seven defendants pleaded guilty to the charge.

3. The facts were read over to them and none of the defendants expressed any disagreement with those facts which, if accepted, established the offence with which they were charged.

4. The appellant, who was the fifth defendant, was unrepresented at that stage. On 17th November, however, he appeared again in front of the magistrate represented by a solicitor who sought, by way of review, an order by the magistrate reversing the plea of guilty and substituting for it a plea of not guilty.

5. He put forward, in support of this submission, two arguments: Firstly, that a police officer had misinformed the defendant as to the effect of a plea, having told him that "if the old man was okay it would not be regarded as a serious matter".

6. The second ground, though this is not in the record but appears in a note kept by the defendant's solicitors, was that the brief facts on which the plea was accepted were inaccurate as to whether or not the defendant had admitted the offence in a cautioned statement.

7. The magistrate refused to exercise his power of review and reverse the plea, although it is not disputed that a magistrate does have power to reverse a plea on review. The magistrate expressed himself as satisfied that the defendant pleaded guilty because he was guilty, he looked guilty, he wanted to plead guilty "because he knew was guilty", and the application was refused.

8. The case was referred by that magistrate to the Juvenile Court magistrate at Tsuen wan for sentence on 21st November.

9. On 21st November it appears, though the Tsuen Wan case file is not available, that the appellant was required to enter a recognizance, under which he was obliged to appear before the Tsuen van Juvenile Court within three days of "the decision of the Appeal Court for sentence or to fix a trial date, whichever is applicable".

10. It must be inferred from the terms of this recognizance that the Juvenile Court magistrate knew that an appeal had been lodged against the refusal of the first magistrate to amend the appellant's plea of guilty.

11. The Crown has taken a preliminary objection to the jurisdiction of the High Court to this attempted use of section 113(1) of the Magistrates Ordinance, arguing that that section cannot be used until a criminal trial has been completed by a Magistrates Court.

12. In this instance, the argument runs, the Magistrates Court is still seized. of the case, in the sense that a finding of guilty, based on a plea, has been recorded but that sentence has not yet been passed. Only after sentence, it is said, can an appeal be properly lodged under section 113.

13. I accept the argument that section 113 is intended to give a right of appeal to the High Court against a conviction, order or determination of a magistrate only at the conclusion of proceedings before him. It cannot have been intended to be used to overturn rulings or determinations reached in the course of the trial and before its conclusion. The only way of challenging interim rulings is by way of judicial review.

14. I am therefore forced to the conclusion, which I regret because of the inconvenience that it causes to the appellant, his legal advisers, and those who are having to bear the costs of these proceedings, that the wrong procedure has been adopted and that the correct course is for the Juvenile Magistrate at Tsuen Wan to call the appellant for sentence. When that has been passed, it will be open to the appellant, if he is so advised, to take advantage of section 113 and appeal against both his conviction and sentence.

15. I might, perhaps, observe in passing that the wording of section 113(1) on the face of it, does not permit an appeal against conviction in the case of someone who pleaded guilty. Nevertheless it is well established, by a number of cases to which I have referred, the most recent of which was R. v. LAW Hau On⁽¹⁾ that where it is alleged that a plea of guilty was the result of fraud, duress, or mistake, it is open to this court on appeal to consider substituting a plea of not guilty for a plea of guilty.

16. I dismiss the appeal and return the case to the Juvenile Court at Tsuen Wan, with a direction that the defendant should be called for sentence as soon as may be possible.

⁽¹⁾   Crim. App. 578/82