THE QUEEN v. LI TUNG HING

MA No. 618 of 1992

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HEADNOTE

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criminal law and procedure - Magistrate - guilty plea not supported by admitted facts.

The admitted facts did not support pleas of guilty accepted by a magistrate.

Held: Pleas a nullity.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO.618 OF 1992

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REASONS FOR DECISION

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1. The appellant was given leave to appeal out of time against four convictions of indecent assault which were entered on his tendering pleas of guilty before a magistrate. He also appealed against sentence.

2. Section 113(1) of the Magistrate Ordinance, Cap. 227 provides that:-

"Any person aggrieved by any conviction; order or determination of the magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in manner hereinafter provided to a judge."

3. Since it appears from the record that the appellant pleaded guilty, it might be thought that it was not open to him to appeal against conviction. His case, however, is that his plea was a nullity, There is ample authority for the proposition that a conviction based upon an equivocal plea is invalid. This is one of the rare cases where the questioned plea of guilty was on the face of it unequivocal. The appellant, who was legally represented before the magistrate, after pleading guilty, admitted through his legal representative the accuracy of a written statement of the facts of the case put forward by the Court Prosecutor.

4. The alleged victim of the indecent assaults which occurred on four different dates was a girl of 13 years of age. The material part of the statement of facts reads as follows:-

"On above four dates. Deft. gave her $300-HK demanding to caress her breasts. In addition, Deft. demanded PW1 to masturbate for the former on (B-D) time which PW1 did so."

5. Upon those admitted facts, the appellant could not in law have been convicted of the offences charged. By demanding to caress the breasts of the girl, the defendant could not commit an offence of indecent assault. If the girl masturbated the appellant at his request, then the appellant did not thereby commit an indecent assault on the girl. The facts showed indecency but no assault by the appellant.

6. It was held in Fairclough v. Whipp (1951) 35 Cr. App. R. 138 DC that where a man invited a young girl to touch his person and she did so there was no assault by the man. That decision was followed in R. v. Burrows (1951) 35 Cr. App. R. 180.

7. In R. v. Forde (1923) All ER 99, Avory J., sitting in the English Court of Criminal Appeal said, at page 102,

"The first question that arises is whether this court can entertain the appeal. A plea of guilty having been recorded, this court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it; or (2) that upon the admitted facts he could not in law have been convicted of the offence charged."

8. That dictum was considered by the House of Lords in R. v. Shannon (1974) 2 All ER 1009 and, though the court found that the powers of the Court of Criminal Appeal had been more extensive than the dictum suggested, it did not contradict the proposition that, where a plea of guilty had been recorded, an appeal could be entertained upon the basis that upon the admitted facts the appellant could not in law have been convicted of the offence charged. The same dictum was referred to by the Court of Appeal, Criminal Division in R.v. Lee (1984) 1 All ER 1080, where it was not followed only because it constituted too narrow a definition of the circumstances in which an appeal could be entertained where a plea of guilty had been recorded.

9. I am satisfied that this court can entertain an appeal against conviction where an apparently unequivocal plea of guilty has been recorded but upon the admitted facts, the appellant could not in law have been convicted of the offence charged.

10. Before the magistrate, the prosecution was represented by a Senior Court Prosecutor and the appellant was represented by a barrister who was serving as duty lawyer. It was the duty of the Senior Court Prosecutor to ensure that the version of the facts which he placed before the magistrate was intelligible and supported the charges. It was the duty of the duty lawyer also to ensure that the admitted facts supported the charges. 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.

11. An example of a similar situation to that which arose before the magistrate in this case may be found in The Queen v. Ng Yau-fai (1987) HKLR 405. That was a case where the appellant pleaded guilty before a magistrate to three offences. There was nothing in the agreed facts to support the first charge. The magistrate asked one question of the defendant who answered it in a way which enabled the magistrate to accept the plea of guilty to that charge and the conviction was upheld on appeal.

12. In the present case, each plea of guilty was a nullity because the admitted facts did not support the charges.

13. I therefore ordered that each conviction be quashed and that the case be remitted for trial de novo before another magistrate. The sentences fell with the convictions.