THE QUEEN v. WONG KAM CHIU

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(MAGISTRACY APPEAL NO. 427 OF 1993)

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J U D G M E N T

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1. [On 6th May 1993 at South Kowloon Magistrates' Court, the Appellant pleaded guilty to a charge of accepting an advantage as an agent. He was remanded in custody to 20th May for a report on his suitability for an Order that he be detained in a detention centre. When he appeared in Court on 20th May, he applied for leave to change his plea to one of not guilty. That application was refused, and the basis of his appeal against his conviction was that the application to change his plea should have been granted. In the event, he was on 20th May sentenced to detention in a detention centre, and he appealed, so far as was necessary, against his sentence as well.

2. The appeal came before Keith J. on 30th July. It was common ground that the Appellant's plea of guilty was an unequivocal one. What was asserted, as it had been asserted to the magistrate, was that the Appellant had pleaded guilty because of what he had been told by Kwok Wing Por, an officer of the ICAC who was prosecuting him.

3. Keith J. held that what the Appellant claimed that he was told by Mr. Kwok was capable of being regarded in law as amounting to such pressure on the Appellant as to deprive him of a free choice of plea. Whether Mr. Kwok actually said what the Appellant claimed, and what its impact on the Appellant actually was, however, were issues of fact which had to be determined before his original plea could be characterised as a nullity. Accordingly, Keith J. adjourned the appeal to a date to be fixed for them to give evidence.]

4. Having seen and heard both the Appellant and Mr. Kwok, my findings of fact are these:

(i) the Defendant believed on 31st March that he was guilty of the offence with which he had been charged;

(ii) he believed on 31st March that he would be found guilty of the offence with which he was charged if he pleaded not guilty;

(iii) Mr. Kwok told the Defendant on 31st March that he thought that the Appellant was likely to get a suspended sentence of imprisonment, and as a result of being told that the Appellant believed that that was what would happen to him;

(iv) his ultimate decision to plead guilty, however, was based on a combination of all three factors;

(v) he informed Mr. Kwok on 31st March that he was intending to plead guilty.

5. However, I do not have to decide whether, in those circumstances, the Appellant was placed under such pressure to plead guilty that he was deprived of a free choice in the matter. That is because I also find on the balance of probabilities that the Defendant would have pleaded guilty even if Mr. Kwok had not said to him those things which resulted in the Appellant believing that he would get a suspended sentence. I say that because of my findings that the Appellant believed that he was guilty, and that he would have been found guilty if he had pleaded not guilty, and because of what I think the Appellant's response would have been had he sought advice. He would undoubtedly have been advised that if he pleaded not guilty and was convicted, he would lose the discount which he would otherwise get for pleading guilty, for having cooperated with the ICAC and for his expressed willingness to give evidence against his co-accused in the future. That advice, coupled with his statement under caution, was likely to have resulted in him being advised to plead guilty. His likely response in those circumstances would have been to plead guilty.

6. Since there was, on these findings, no true causal connection between what he was told by Mr. Kwok and his eventual plea of guilty, there is no basis upon which the Appellant should have been permitted by the magistrate, or should be permitted by me, to change his plea.

7. That does not cause me concern in this case. After the Appellant pleaded guilty, the magistrate put the case back to enable the Appellant to speak to a duty lawyer. He did so. According to the magistrate's record of the proceedings, the duty lawyer subsequently told the magistrate that the Appellant confirmed his guilt and admitted the brief facts. I know how busy duty lawyers can become, but I do not believe that the duty lawyer on this occasion would have told the magistrate that the Appellant confirmed his plea of guilty and admitted the brief facts if she had not been told that. Since the brief facts amounted to the offence charged, the Appellant was admitting his guilt to her. Although there has not been a trial on the merits, those facts lead me to conclude that this is not a case where the absence of a trial has left .a lurking doubt that an innocent man might have been convicted.

8. For all these reasons, the appeal against conviction must be dismissed.

9. I turn to the appeal against sentence. At the conclusion of the hearing before me, I allowed the Appellant's appeal against sentence, I set aside the order for the detention of the Appellant in a detention centre, and I ordered that sentence on him be deferred until after the conclusion of the trial of his co-accused. Since it was then 1.20 p.m. on a Saturday afternoon, I said that I would reduce my reasons into writing. This I now do.

10. The brief facts, which the Appellant admitted on 6th May, were that he  worked as a clerk at a hotel. He admitted taking from the hotel credit card information about the hotel's guests, and supplying that information to a former colleague for reward. He thought that the information would be used to make forged credit cards and passports, though by the date of his arrest he had not received any money. Accordingly, the Appellant's offence involved breach of trust and the misuse of credit cards.

11. The magistrate cannot be faulted for ordering the detention of the Appellant in a detention centre. Mr. McLanachan had conceded that the Appellant's breach of trust warranted a custodial sentence of immediate effect, and his aim was to persuade the magistrate to follow the recommendation contained in the Detention Centre Suitability Report and to secure for the Appellant an order that he be detained in a detention centre rather than be sent to prison. The magistrate acceded to what Mr. McLanachan was asking for.

12. The Appellant's mitigation was (i) his plea of guilty (though his unsuccessful attempt to withdraw his plea had rendered that element of his mitigation less compelling), (ii) his clear record, (iii) his cooperation with the ICAC in having confessed his own role and having given information relating to his co-accused, and (iv) his willingness to give evidence against his co-accused at their eventual trial in the District Court. The magistrate does not refer in his Statement of Findings to any of those mitigating features, save to refer to the latter two features in the context of what he had been told by Mr. Kwok on 6th May. However, the Record of Proceedings shows that on 6th May the magistrate was alive to all four features of the mitigation, and I must assume that he took them all into account on 20th May when he sentenced the Appellant.

13. The difficulty is with the fourth of these features. A defendant's willingness to give evidence against his co-accused is not a mitigating factor. Actions speak louder than words. It is therefore inappropriate to discount a defendant's sentence to take into account a promise which he may choose not to fulfil. In those circumstances, the appropriate course is for the sentencing court either to defer sentence until the defendant has had the opportunity to live up to his promise, or to sentence him there and then, ignoring the promise, but leaving it to the appellate court or to the Governor-in-Council to give the appropriate discount once the defendant has complied with his promise: see R. v. SZE Tak-hung [1991] 1 HKLR 109 explaining R. v. NG Hon-kit [1991] 1 HKLR 56.

14. I do not suppose that the magistrate addressed the question as to which of these two courses he ought to take. I do not criticise him for that. Mr. McLanachan's request that the Appellant be ordered to be detained in a detention centre led the magistrate to assume that the Appellant ought to be sentenced there and then. The obvious injustice of adopting that course was that the Appellant would almost certainly have been released from the detention centre by the time he was due to give evidence in the District Court. Having served his sentence, there would have been no route by which the Appellant could then have been rewarded for giving evidence by an appropriate discount on his sentence. Unless, therefore, the circumstances made it imperative for the Appellant to be sentenced there and then, his sentence, in my view, should have been deferred.

15. It was only if an order for detention in a detention centre would have been the appropriate sentence even after the Appellant had complied with his promise that it was appropriate for the magistrate to make such an order when he did. I do not know whether that is what the magistrate would have done. It is not something which I can second guess. If I were to decide now whether an order for detention in a detention centre would have been the appropriate sentence even after the Appellant had complied with his promise, I would be substituting my own view for that of the magistrate. That is permissible when the magistrate has addressed the relevant question, but answered it in a way with which the appellate court disagrees. It is not permissible when the magistrate has not addressed the question at all.

16. I put these considerations to Mr. McLanachan and Mrs. Riley for the Crown. Mr. McLanachan adopted them as his submissions. Mrs. Riley told me that she thought that the course which the Court proposed was the wisest one.

17. These, then, were the reasons which prompted me to make the order I did. The Appellant will therefore be sentenced for the offence to which he pleaded guilty by a magistrate sitting at South Kowloon Magistrates' Court after the conclusion of the trial of his co-accused. I direct that the magistrate be any magistrate other than the magistrate who sentenced him. That is to prevent that magistrate being accused of having already made up his mind as to the appropriate sentence. Accordingly, the proceedings will be de novo, save that the Appellant's plea of guilty will stand.