HKSAR v. WU YAT KWONG

1997, NO. MA 750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. This is an appeal against conviction and sentence. The appellant pleaded guilty to an offence of employing a person not lawfully employable contrary to s.171(1) of the Immigration Ordinance, Cap.115. The grounds of appeal against conviction are that the appellant's plea was a nullity because the seriousness of the charge had been misrepresented to him and he has been deprived of a free choice of plea. The plea thus was involuntary and in all the circumstances the conviction is unsafe and unsatisfactory. The appellant now seeks to reverse his plea and quash the conviction.

2. The perfected grounds of appeal state that the misrepresentations were made by a police officer of the Organised Crime and Triad Bureau, by a clerk Tsang Kwok Chu of Gary K.W. Tam, solicitors, the former solicitors of the appellant and by Mr McGuinniety, the appellant's former counsel.

3. The sequence of events according to the record is as follows :

4. The appellant was arrested by police for the offence of employing a person not lawfully employable on 17^th February 1997. He was charged with the offence on 6^th May 1997.

5. On 11^th July 1997, the appellant appeared before a magistrate represented by Mr Christopher Grounds. The charge was slightly amended as to the date of the offence. The amendment was from "an unknown date in October 1996" to "between October 1996 and 17^th February 1997". After Mr Grounds indicated to the magistrate that he had no objection to the amendment, the amended charge was put to the appellant.

6. The record clearly shows that the appellant pleaded guilty to the charge as put in no equivocal terms. The brief facts were read out in Court. These included the fact that a Two-way China permit holder Cheung Man Chun was found working in the appellant's yard when the police visited the yard on 17^th February 1997. On the same day, in two separate cautioned statements, the appellant admitted he employed this person Cheung and he knew Cheung was unemployable in Hong Kong and that he employed Cheung because of manpower shortage. The brief facts were admitted by the appellant in Court in no equivocal terms.

7. After the facts were admitted, the magistrate pronounced in Court that the appellant was convicted as charged.

8. Up to that stage of the proceedings and prior to mitigation and sentence, the appellant had neither by his legal representative nor by himself indicated in any way that he pleaded guilty involuntarily or he was not sure of his plea of guilty.

9. In his submission in mitigation on behalf of the appellant, Mr Grounds told the magistrate the appellant was very co-operative with the police and in his cautioned statements frankly admitted that he was responsible for employing the person Cheung. It was also submitted that there was no element of exploitation in such employment. Later in his submission, Mr Grounds told the magistrate this :

" In his cautioned statement he was asked about this matter and having admitted his guilt, he indicated that he thought that it would be a fine. He's now had the opportunity to take legal advice and realises that its much more seriously regarded by the courts from that. He is extremely remorseful ..."

10. It would appear from this plea of mitigation that the appellant once more indicated that he admitted the offence and had done so right from the beginning of the events and after he had taken legal advice but before he pleaded to the charge, he realised that the likely penalty would be more serious than a fine.

11. After submission in mitigation, the magistrate proceeded to sentence the appellant to nine months imprisonment. The conviction was then complete.

12. It is clear as day light that the appellant realised his guilt and admitted the charge and when he considered pleading guilty, he was fully aware that the likely penalty would not be limited to a fine as he first thought it might be and his plea was motivated by his remorse. This was after he had legal advice.

13. On 11^th July 1997, after the appellant was sentenced, he instructed Mr Grounds to apply for bail pending appeal against sentence. On 28^th July 1997, his solicitors wrote to the Appeal Clerk giving notice of appeal against sentence. There was no application before the magistrate to reverse plea between 11^th July 1997 and the service of the Notice of Intention to Appeal against Sentence only. It was not until sometime later that the appellant appealed against conviction.

14. The appellant has filed an affidavit in support of his claim of misrepresentation. In his affidavit he said that the police officer who took the cautioned statements from him told him that admission of the offence would not result in custodial sentence. He said after he was charged by the police, Mr Tsang Kwok Chu, clerk to Gary K.W. Tam solicitors, assured him that the offence was trivial and would only attract a fine. Subsequently when he had conference with counsel Mr McGuinneity, through Mr Tsang, Mr McGuinneity told him that the most probable consequence of a conviction on this offence was a fine or a suspended sentence. Mr McGuinneity did not tell him the possibility of a custodial sentence. Mr Tsang also told him his case was a weak one. He was thus misled into believing the penalty would be a fine only if he pleaded guilty. Subsequently, he had conference with Mr Christopher Grounds. The change of counsel was arranged by Mr Tsang. During the conference, he was only asked about his personal particulars and was advised as to some matters concerning his mitigation. After he pleaded guilty before the magistrate and the case was adjourned for sentence, Mr Grounds told him that the case was very serious and that he might face a jail term. He was alarmed because he was never aware of that possibility but he instructed Mr Grounds that if the Court imposed a custodial sentence, he would appeal the decision on sentence and instructed Mr Grounds to apply for bail pending appeal. He then signed a Notice of Appeal against Sentence.

15. The law as to when a plea can be withdrawn or reversed is set out clearly in paragraph 2-195 of Archbold 1997 edition :

" If a plea of 'guilty' tendered in a Magistrates' Court was an unequivocal plea (ie a plea which could not be described as 'guilty but ...' plea), then once sentence has been passed by the magistrates and the conviction is accordingly complete, it is too late for any court to entertain an application for a change of plea : R v. McNally 38. Crim. App. R. 90.

The Crown Court is entitled to inquire into the question of whether the plea entered before the magistrate was equivocal. But unless it is told something which prima facie raises the issue of an equivocal plea having been tendered before the magistrate, it ought not set about making an inquiry."

16. In McNally, Goddard LCJ had this to say on plea change :

" If a prisoner has pleaded guilty in circumstances from which the court can see that there is no question of mistake, the court is not bound to allow a prisoner to withdraw his plea.

If certain grounds are shown or the court can see that there are grounds as, for instance, where a prisoner has pleaded guilty to a charge of receiving stolen goods and then says 'I pleaded guilty and I received them but I did not know they were stolen', then it becomes entirely a matter of discretion for the learned judge ........

The court desires to say this : The question whether a plea is to be withdrawn or not is entirely a matter for the learned judge, the judge is not bound to allow it to be withdrawn. If he came to the conclusion that there was a question of mistake or misunderstanding or that it would be desirable on any ground that the prisoner should be allowed to join issue, not doubt, he would allow him to do it."

17. Mr Rodway SC for the appellant submits that there is an abundance of evidence for an enquiry to be ordered and he asks me to adjourn the case for inquiry. He refers to two cases : R v. Li Yuen Chu [1994] 2 HKC 621 and R v. Lam Yin [1995] 2 HKC 74.

18. In the first case, the appellant pleaded to two charges under the Immigration Ordinance and was sentenced to nine months imprisonment. He later, through counsel, applied to change plea on the ground that he was misled by immigration officers as to the likely penalty on conviction and that he was not given any opportunity to have legal advice before his plea. His friend sought an adjournment for him to see a lawyer but the adjournment was refused. The magistrate refused to allow the appellant to withdraw his plea on the ground that his plea was unequivocal. On appeal, Woo J. held an inquiry should be made as to the alleged inducement by the immigration officer.

19. In the second case, the appellant appealed on the ground that he pleaded guilty because he was misled by immigration officers that he had no defence to the charge and the likely penalty on conviction was a fine but the magistrate refused to allow him to change his plea. Keith J. held that if the plea was not genuinely of the appellant's free choice, the plea is a nullity and the claim that he was misled by the immigration officer was capable of being regarded as a misrepresentation to him of the true facts as to deprive him of a free choice of plea.

20. In both cases, the appellants there pleaded without the benefit of legal representation and they applied to change plea before the magistrate subsequently through counsel.

21. In the present case, the appellant's claim that he had been misled by three persons, including his solicitors, might or might not be so. Be that as it may, he subsequently had the service of a second legal advisor Mr Grounds. He had submitted, through counsel, that he realised the seriousness of the offence after taking legal advice. Whatever misrepresentation which might have been made to him earlier would have been vitiated as a result of his second legal opinion. This is not a case as Lam Yin where the appellant pleaded guilty because the true facts were misrepresented to him.

22. The appellant in his affidavit stated that the ground on which he asked the Court to reverse his plea was that he thought it would be a fine or he would receive a non-custodial sentence. However, he said in the same affidavit that pending sentence he came to know the case was very serious and that he might face a jail term and in the light of that possibility, he instructed Mr Grounds to appeal against sentence. On his own evidence, even at that stage, he never indicated in any way that had he known that the sentence would be a custodial one, he would not have pleaded to the charge. From what had subsequently transpired and from the mitigation submission made by Mr Grounds, the appellant cannot now say that he was misled as to the likely penalty and he was induced into his plea of guilty.

23. All these indicate that he pleaded voluntarily and not under any misrepresentation as to the facts and after he had had legal advice. The fact that the sentence turned out to be heavier than he expected does not mean that it is prima facie evidence showing he was misled or induced to enter his plea. There is no prima facie evidence capable of showing the appellant pleaded equivocally before the magistrate and there is no prima facie case of the appellant not having a free choice when he entered his plea.

24. The appeal against conviction is dismissed.

25. On sentence, it is submitted for the appellant that the sentence was manifestly excessive because the appellant has a record which could be considered to be a clear record and there was no multiple employment or exploitation. In addition, the overstayer was given a lesser sentence than the appellant and this was unfair to the appellant.

26. Ms Tse for the Government submits that the normal sentence in circumstances similar to the present case for an offence of this kind is 15 months and a sentence of nine months after plea cannot be said to be manifestly excessive.

27. The sentence of nine months after discounting from 15 months for the appellant's plea is not manifestly excessive or wrong in principle. The magistrate followed AG v. Wong Chun Lee AR 10/96 to arrive at that sentence and her decision cannot be faulted. The appeal against sentence must also be dismissed.