HKSAR v. LI SHU MAU

HCMA 896/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 896 OF 2001

(ON APPEAL FROM TWCC 184 OF 2001)

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J U D G M E N T

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1. On 19 January 2001 the appellant appeared before a magistrate sitting in the plea court at Tsuen Wan Magistracy facing three charges. He was then represented by solicitors and counsel. He pleaded guilty to two of the charges and not guilty to the third. He having admitted the prosecution's summary of facts relating to the two charges to which he pleaded the prosecution offered no evidence on the third. But he was not then sentenced because he was one of six defendants facing a number of related charges and, the others all having pleaded not guilty, he gave notice that he was willing to testify against them. As is proper practice, his sentencing was adjourned to be dealt with by the magistrate appointed to try his co-defendants after that trial. By this means the appellant came to be before Ms Kelly Shui, magistrate, on 18 June 2001.

2. But the trial of the co-defendants did not proceed because on this day they entered pleas of guilty and agreed amended facts and were convicted. The appellant, this time unrepresented, repeated his plea to what were in fact the 1st and 13th charges and his agreement to the facts first put to him in January. The charges are as follows, the appellant being D1:-

"1st Charge (Against D1 only)
Statement of the Offence

Conspiracy to offer advantages to an agent, contrary to sections 9(2)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.

Particulars of Offence

LI Shu-mau, between 1 October 1998 and 31 January 2000, in Hong Kong, conspired together with CHEUNG Yiu-yuen and CHEUNG Chi-kin to, without lawful authority or reasonable excuse, offer advantages, namely gifts, loans, fees, rewards, or commissions consisting of HK$1,600.00 a week to agents, the said CHEUNG Yiu-yuen and CHEUNG Chi-kin, employees of Cathay Pacific Catering Services (HK) Limited, as an inducement to or reward for or otherwise on account of the said CHEUNG Yiu-yuen and CHEUNG Chi-kin doing an act in relation to their principal's affairs or business, namely taking newspapers away from Cathay Pacific Catering Services (HK) Limited and supplying the same to the said LI Shu-mau.

13th Charge (Against D1, D2 and D3 only)

Statement of Offience

Conspiracy to steal, contrary to section 9 of the Theft Ordinance, Cap. 210 and contrary to sections 159A and 159C of the Crimes Ordinance, Cap. 200.

Particulars of Offence

LI Shu-mau, CHEUNG Yiu-yuen and CHEUNG Chi-kin, between 1 October 1998 and 30 March 2000, in Hong Kong, conspired together to steal newspapers belonging to Cathay Pacific Catering Services (HK) Limited."

3. The prosecution's summary of facts with which the appellant on two occasions agreed revealed that Cathay Pacific Catering Services (HK) Limited ("Cathay Catering"), a subsidiary of Cathay Pacific, purchases two packs of overseas newspapers for Cathay flights destined for Hong Kong. One is left unopened for use on flights departing Hong Kong, the other is opened and its contents are distributed to passengers on that flight. After a flight arrives in Hong Kong, Cathay Catering staff are directed to collect all newspapers, including those apparently read, for their employer. Cathay Catering regards all these papers as its property. The staff are under their terms of employment not allowed to take away company property including papers read or otherwise, and they are prohibited from soliciting or accepting advantage from others in connection with Cathay Catering's business.

4. At the material time, the appellant was running several canteens within the restricted area of the Hong Kong Airport at Chek Lap Kok and the five co-defendants were employed as catering staff by Cathay Catering.

5. In October 1998, knowing that the two co-defendants named in the 1st charge were engaged in boarding Cathay aircraft to perform their duties, the appellant reached an agreement with them, the terms of which comprised his offering them $1,600.00 per week for their passing newspapers taken from the aircraft to him. This gave rise to the 1st charge.

6. Between October 1998 and March 2000, the appellant and the same two co-defendants reached an agreement that they steal foreign newspapers from Cathay Catering during the course of their performing their duties inside the aircraft. Each night they took turns to place them in a bag at a designated place for collection by the appellant. Each night the appellant collected them and delivered them to a newstand in Admiralty for sale. This gave rise to the 13th charge.

7. The schemes were uncovered during an ICAC investigation following which the appellant and the two co-defendants admitted their roles. The other three co-defendants did likewise, but they do not otherwise feature in this appeal. Following his pleas and agreement to the facts, the magistrate convicted the appellant and remanded him in custody for a background report. When he was back before her for sentencing on 3 July he was represented by counsel, Mr Chandler, who is before me representing him in this appeal. Prior to sentence, counsel made application for severance because he had instructions the appellant might want to apply to reverse his pleas. The magistrate granted severance and remanded him to come back before her on 27 July for further consideration. On that day, Mr Chandler announced his instructions were that the appellant wanted to apply to have his pleas reversed.

8. The application was made under three grounds: the first which related to the 1st charge that the facts submitted did not amount to the offence; the second which went to the 13th charge that the admitted facts were equivocal as to guilt and the third that the pleas were made involuntarily.

9. Mr Chandler told the magistrate, as the transcript reveals, that the decision to make an application to reverse the plea was on the basis of advice he gave his client.

10. The appellant was called to give evidence to support the third ground. He said that during the course of the enquiry, ICAC officers told him that his role was a minor one; he should plead and testify against the others and if he did so, he would not go to prison. He believed them and instructed his solicitors that he was going to plead. What then transpired was that there was a conference involving the appellant, his solicitors and counsel, not at that time Mr Chandler. He was told that there was a possibility of prison. He told them what the ICAC officers had told him. He was told that if they had done so, that amounted to an inducement and was not proper conduct. But he insisted on pleading guilty. Having done so, he confirmed that he would give evidence and put his name to a witness statement which the prosecution later accepted was instrumental in the co-defendants changing their pleas. He said his decision to apply to reverse his plea was not arrived at because of the spectre of a prison sentence.

11. Following that evidence and submissions, the magistrate in exercise of her discretion found that the appellant's pleas were not involuntary and that the facts as submitted did prove the offences for which he was charged. She thus refused the application and then proceeded to sentence the appellant. He was sentenced to imprisonment of 6 months on each charge to be served concurrently.

12. The appellant appeals his convictions on three grounds, all or any of which go to establish that his pleas of guilty were nullities. The three grounds are as follows:

1. the pleas were tendered involuntarily, i.e. were induced by duress or misrepresentation or were not in exercise of a free choice;

2. the facts submitted by the appellant did not amount to the offence with which he was charged; and/or in the alternative

3. the admitted facts were equivocal to guilt.

In pursuing his appeal, Mr Chandler relies on the judgment in HKSAR v. Wong Chi-yuk 2000 3 HKLRD 125. In that case, Woo JA said at p. 135 :

"An unequivocal guilty plea can be rendered a nullity if any one of the circumstances is applicable according to the cited decisions:

1. the facts submitted by the defendant do not amount to the offence with which he is charged;

2. the admitted facts are equivocal as to guilt;

3. .......................

4. the plea was tendered involuntarily, e.g. induced by duress or misrepresentation or was not an exercise of free choice;

........................"

There are other grounds not relevant to this appeal.

13. Dealing with the first ground, Mr Chandler submitted before me that the magistrate failed to exercise her discretion reasonably in that she refused to accept the plea was involuntary. He reviewed her finding which was in effect that if there was inducement, it was canceled out by the legal advice when the appellant was told it was improper for ICAC officers to offer inducement, that if he was convicted he would go to prison. He said this ignores the appellant's evidence that it was because of the inducement that he pleaded guilty. He was still under the influence of what he had been told, that was why he pleaded guilty.

14. I do not accept that to be the case. The gravamen of an involuntary plea is that at the time it is given the accused is under the influence of improper advice or instruction and is not exercising his free will in making his plea. I cannot accept that the appellant was, as it were, still under the spell of the ICAC officers, having been exposed on a number of occasions, in the following months, to those legally qualified and appointed to represent his interests, and this included the three-way conference held before he was required to answer the charges. His decision to plead guilty in the light of that was, as I find, freely made; the magistrate's decision to turn down his application to reverse his plea under that head was in the proper exercise of her discretion.

15. Before leaving this ground, I note in her ruling the magistrate said:

"I have the distinct impression that it is the likely sentence that he is going to receive that that is what he doesn't like and that really triggers off the present application."

If that was a mere speculation on her part, then with respect to her, she should not have stated it. If it was a finding of fact, then there was not, in the face of the appellant's denial, anything before her to justify it. And it does violence to Mr Chandler's opening that it was his advice that was the trigger. But having said that, I do not doubt that her finding that his plea was voluntary was justified in the circumstances.

16. The second and third grounds may be dealt with together. When she dealt with these, she, the magistrate, said:

"Section 9(2)(a) of the Ordinance seems to me wide enough to cover the facts under the 1st charge. That's the 1st charge he faces. The word agreement and the word "stole" used in brief facts are simple ordinary words that any layman can understand. The 1st defendant clearly understood the facts and accepted them. In my view, any further legal argument should not be argued. It should be argued not here, not in the Magistrates Court any more but in the high court."

17. Again with respect this is wrong. As the court faced with an application to reverse pleas on the grounds that the facts admitted did not amount to the offence or were equivocal as to guilt, she had a duty to deal with the application on the basis that it was a decision for her to make; not, in effect, to pass the same on to another court. As was said in Li Tung-hing [1992] 2 HKC 427 by Leonard J at p.49:

"Nevertheless, it was the magistrate's responsibility to enquire into the facts and to satisfy himself that they supported the charges. He should not have accepted the pleas of guilty without making further enquiry."

18. I deal first with the 1st charge.

19. I have already recorded the offence and particulars and summarized the facts. An essential ingredient of an offence under section 9(2)(a) is that the offer made must be for a corrupt purpose. The offence is committed once the offer is made, regardless of what happens next. So the guilty intent of the offeror is to be judged independently as at the time of making of the offer. Thus it is that a section 9 offence focuses on the mind of the offender. For authority of this proposition, I turn to the judgment of Liu JA in HKSAR v. Su Kam-tin [1997] HKLRD 1123.

20. This is a conspiracy charge requiring therefore the element of an agreement between the accused and at least one other to pursue the course of conduct which amounts to a corrupt offer on his part under section 9(2)(a). Do the facts disclose in that agreement a corrupt intent on the part of the appellant? On the part of the co-offenders, perhaps the answer is 'Yes' given the terms of their employment as the facts disclose. But as for the appellant, I can find nothing that is conclusive of that.

21. Mr Lee representing the prosecution here as in the court below says that his corrupt intention can be inferred from the facts. But I do not believe it can. The background report reveals that to make ends meet the appellant collects waste and sells it. The facts are as consistent with his going about his normal business as that they disclose an ulterior motive. Whatever was on the minds of the co-accused, the facts are silent as to the appellant's state of mind. This is sufficient in my view to render the plea for charge 1 to be a nullity as the facts fail to amount to the offence in charge 1. But there is another feature which in my view renders the admitted facts equivocal as to guilt, and that is that it is not clear as a matter of law as to whether a reward or inducement offered to induce acts of theft by others from their employer could be said to be an inducement for them to do an act in relation to their employer's affairs or business.

22. I come now to the 13th charge.

23. That part of the summary of facts going to the charge states:-

"between 1 October 1998 and 30 March 2000 the appellant and the co-offenders referred to in charge 1 reached an agreement that the co-offenders stole the foreign newspapers from Cathay Catering for the appellant when they performed their duties in the cabin. ........."

24. Of course, the appellant agreeing these facts as part and parcel of pleading to charge 13 was admitting guilt to the offence of conspiracy to steal. But the use of the word "stole" was a convenient shorthand and in my view an inappropriate one, for it presupposed the presence of all the necessary ingredients that make up the offence of theft. That is a matter not of fact but of law for the adjudicating court to have to decide and not the author of the summary. And the particular difficulty that is thrown up by the inappropriate use of the word derives from the background facts:-

"Every flight destined for Hong Kong carries two parcels of foreign newspapers, one pack of newspapers will be opened by the cabin crew for distribution to the passengers on that flight, the other pack which is labelled "Ex HK Use" would be collected by Cathay Catering staff on arrival in Hong Kong for forwarding to another outbound staff. Cathay Catering regards all these newspapers, no matter read or unread or left over by passengers in the cabin, to be its properties."

25. What was not disclosed in the facts pertaining to the 13th charge was which category of newspapers were those that were stolen. Whilst those in the unopened pack and any left over and not distributed from the opened pack clearly remained the property of Cathay Catering, it is at least arguable that those distributed to passengers became passenger's property at that point and, if left aboard the aircraft, became property abandoned by the former owner, the passenger. If it is this third category of newspaper that was the subject of the facts going to the 13th charge, then whatever title in them Cathay Catering might have claimed, it is at least possible, as a matter of law, that they were not capable of being stolen. With that essential ingredient not established, the result is that this charge, too, was grounded on facts which are equivocal as to guilt, rendering the plea for charge 13 a nullity also.

26. I have found that the appellant's pleas of guilty to both charges 1 and 13 are nullities. The resulting convictions cannot stand; the appeals are allowed. The convictions are quashed and the sentences imposed go with them. I further order that the case be remitted back to the Tsuen Wan Magistracy for trial before another magistrate.

(Submissions heard)

27. Costs of the application to reverse pleas in the court below and to this appeal to the appellant, taxed if not agreed.