HKSAR v. CHEUNG CHEUK HUNG AND ANOTHERS

HCMA404/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 404 OF 1998

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J U D G M E N T

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1. The 1st Appellant pleaded guilty to the offence of employing a person not lawfully employable and was sentenced by Mr Simon Jenkins to 10 months' imprisonment on 13th March 1998.

2. After he had been sentenced, he appeared in Court on 23rd March 1998 with Counsel and sought leave to reverse his plea on the basis that his original plea was not a voluntary and unequivocal plea. He gave evidence before the learned Magistrate and the thrust of his evidence was that he had been told by a CID officer that he would receive, because of the triviality of the offence, only a fine. The learned Magistrate properly conducted an inquiry into those allegations and the CID officer concerned was asked to appear before the Magistrate to give his evidence on what he had allegedly said to the 1st Appellant. He denied ever having said to the 1st Appellant that the 1st Appellant would receive only a fine.

3. The evidence and Counsel's address on the application to reverse the plea concluded before the learned Magistrate at 1:01 p.m. on 2nd April 1998. The learned Magistrate deferred his decision until the afternoon when, according to the Court record, he resumed at 2:28 p.m. When he resumed, he gave reasons for refusing leave to reverse the earlier plea, and this is what he said :

"After considering the evidence, I am satisfied that the Defendant's plea to the charge of employing an employable person was voluntary and unequivocal. I do not find his claim so credible that he had been induced or misled by the police as to the likely penalties for the offence upon the plea of guilt."

He then dealt with the second limb of Counsel's argument that the admitted facts did not disclose the offence charged.

4. Mr Adams, appearing for the 1st Appellant today, has raised as a ground of appeal, inter alia, that the use of the phrase "so credible" by the learned Magistrate implies that the Magistrate appeared to regard the 1st Appellant as under a duty to prove beyond a reasonable doubt that he had been induced or misled by the police. I do not agree that the use of that phrase necessarily goes as far as Mr Adams said, and Mr Adams subsequently agreed that perhaps that is putting it a bit too high. However, I do agree with Mr Adams that when the Magistrate said : "I do not find his claim so credible", that is capable of meaning that he found the 1st Appellant's claim credible but not so credible as to be able to meet a certain standard of proof. As was stated in the English case of R. v. Plymouth Justices, Ex parte Hart [1986] 1 QB 950, all that is required for an appellant to be able to successfully obtain leave to reverse his plea is credible prima facie evidence tending to show that the plea was equivocal.

5. In the learned Magistrate's Statement of Findings, which was obviously written up after the event and which bears no date, the learned Magistrate said in relation to the application to reverse the plea :

"After considering the evidence, I found no substance in D1's allegation. I did not find D1's claim credible and concluded that D1's plea to the charge was voluntary and unequivocal."

When the learned Magistrate gave his reasons in open Court on 2nd April 1998, and when he wrote up his reasons for finding, he did not deal with the police officer's evidence at all. He did not say on either occasion whether he accepted or rejected the police officer's evidence that there was no such conversation with the 1st Appellant.

6. The other matter which has given me some cause for concern is what the 1st Appellant had been told by his Duty Lawyer before he entered the plea of guilty. Mr Philip Swainston, who was the Duty Lawyer on 27th May 1998, wrote to Mr Adams to inform Mr Adams of what had happened prior to the plea being tendered. What was said in the letter was :

".... I told him that the offence would be viewed seriously by the Court and he was facing a custodial sentence. I cannot remember advising him as to the length of sentence and whether he was told of this by the Legal Aid Clerk assisting me."

7. Prior to his seeing Mr Swainston, the 1st Appellant had been asked to sign a form by the staff of the Duty Lawyer Service, and the form says that :

"I, ...., having been explained in detail by the Duty Lawyer about the charge against me and the contents of the Brief Facts of the Case as well as the possible consequences if I pleaded guilty to the charge, hereby confirm that the contents of the Brief Facts of the Case are the true account of what had happened and I will plead guilty to the charge against me in Court."

That unfortunately does not tell us very much about what he had been told by the Duty Lawyer Service staff.

8. Enquiries by Mr Delaney, who at one time acted for the 1st Appellant in his application to reverse his plea, were unfruitful as regards what the Duty Lawyer staff might have said to the 1st Appellant.

9. When the 1st Appellant gave evidence before the learned Magistrate, he said that he was asked to sign the form in question by the staff in the Duty Lawyer Office. He also said that he had been told by the staff that he "might go to jail or a suspended sentence and that's all".

10. In my view, it is not absolutely clear what it was that he had been told by either Mr Swainston or by the staff of the Duty Lawyer Office. At any rate, on 16th March 1998, after the 1st Appellant had been sentenced by the learned Magistrate to 10 months' imprisonment, the spontaneous reaction by the 1st Appellant was he said in open Court : "Do I have immediate imprisonment?" That appears to lend some weight to the allegation that somehow or another the 1st Appellant was labouring under the misapprehension that he would not receive an immediate custodial sentence. The combination of all these facts has led me to conclude that this would be a suitable case for the 1st Appellant to be given leave to reverse his plea. It needs hardly be said that reversals of pleas of guilty should not be encouraged, and should only be sparingly granted where there is credible evidence that the plea is not one which is voluntary and unequivocal.

11. In the event, I allow the appeal against conviction and the conviction is quashed.