CHENG SHU WAI v. THE QUEEN

Criminal procedure - acceptance of guilty pleas from unrepresented juvenile defendant - obligation to have facts read to and admitted by juvenile - equivocal pleas - risks when issue of guilt and sentencing are dealt with by different magistrates in different courts where a juvenile jointly charged with an adult is after conviction remitted to the juvenile court for sentencing – Held: 1. Summary of facts neither read to nor admitted by juvenile defendant during several appearances in magistrate's court nor before sentence in juvenile court; 2. Admissions in magistrate's court in the circumstances merely provisional pleas; 3. Convictions and sentence on provisional pleas quashed and remitted to juvenile court for new pleas - Section 3F Juvenile Offenders Ordinance, Cap. 226; Section 28 Magistrates Ordinance, Cap. 227.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 982 of 1985

________________________

REASONS FOR JUDGMENT

________________________

1. This appeal highlights the procedural difficulties and sentencing deficiencies which can arise where juvenile defendants, jointly charged with adults in a Magistrate's Court, after entering pleas of guilty, are remitted for sentence to a juvenile court, pursuant to Section 3F of the Juvenile Offenders Ordinance, Cap. 226.

2. The appellant, then aged 15 years 3 months was jointly and variously charted with 5 other defendants of Charge A - Theft; Charge B - Robbery; and Charge C - Theft. The remaining defendants ages were then 16 years 5 months, 15 years 4 months; 14 years 6 months; 17 years 7 months; and 16 years 2 months. As three of the defendants were adults, all six defendants appeared together in the Magistrate's Court for plea on 7th June 1985. The appellant pleaded guilty to Charges A and B but pleaded not guilty to Charge C. Apart form also two other defendants who pleaded guilty to Charge A, pleas of not guilty were entered by the defendants to all the other charges.

3. When the original pleas were taken on 7th June 1985 in the plea Court, the prosecutor applied for the pleas of guilty to be dealt with at the trial of the defended charges. The plea Court Magistrate granted that application.

4. No doubt because of that application being granted, the facts in relation to the charges to which the appellant and two other defendants had pleaded guilty, were not put to them or admitted in the plea Court. On 3rd July 1985 all six defendants, including the appellant, appeared before another magistrate for the trial of the charges to which they had pleaded not guilty and for sentence on the charges to which they pleaded guilty. Fresh pleas were taken which resulted in the original pleas being maintained except that one of the other defendants changed his prior plea of not guilty on Charge B to guilty. Unfortunately a witness was not available and the proceedings had to be adjourned. However, before granting the adjournment the learned Magistrate agreed to an application by the 6th defendant, who had pleaded guilty to the only charge he faced, to be sentenced forthwith. The brief facts were read out to and solely admitted by the 6th defendant. The proceedings against the 6th defendant were then adjourned for a Probation Officer's Report.

5. The adjourned proceedings against the appellant and the other defendants came on for hearing before a third magistrate on 1st August 1985.   Witnesses were not available in relation to Charge B and that charge was dismissed against those defendants who had earlier entered pleas of not guilty. The appellant maintained his plea of not guilty to Charge C but after trial was convicted. The trial magistrate then ordered that the appellant be sent to the juvenile court for sentence. This was a course open to the learned magistrate under Section 3F of the Juvenile Offenders Ordinance. Although at one stage it was more common for a Magistrate who had convicted a juvenile jointly charged with adults also to go on and sentence that juvenile, it seems that present practice more closely conforms with the spirit of Section 3F. This Section requires that such a case be remitted to a juvenile court for sentence 'unless' the convicting magistrate is "satisfied that it would be undesirable to do so ..."

6. The appellant appeared before a juvenile court for sentence on 2nd August 1984 when the presiding magistrate adjourned sentence for 14 days to 16th August 1985 for probation and training centre reports. On 16th August 1985 those reporrts were available when the appellant, now represented, appeared in front of a different presiding magistrate in the juvenile court. The new magistrate was at that stage reluctant to sentence the appellant to training centre and further adjourned sentence to 6th September 1985 to enable a reformatory school report to be prepared. On 6th September 1985 the appellant reappeared in the juvenile court before the same magistrate. The appellant was again represented. The reformatory school report was adverse and the appellant was sentenced on Charges A, B and C to training centre.

7. The first ground of appeal in relation to Charges A and B is that the appellant, who has at all times been a juvenile, merely replied 'I admit' to Charges A and B in the plea Court and similarly only pleaded 'Guilty' when the charges were again put to him before the second magistrate on 3rd July 1985. It was submitted that no conviction was entered by any magistrate on those pleas. I accent that the record does not expressly indicate that any convictions were recorded. Mr. Gunston further points out that while a Certificate of Conviction pursuant to Section 28 of the Magistrates Ordinance, Cap. 227 was issued in respect of Charge C none were issued for Charges A and B. Counsel recognises that the issue of a certificate of conviction is not mandatory but submits that their non-issue for Charges A and B, contrasted with the issue of a certificate for Charge C, reinforces his submission. The issue and non-issue of certificates also corresponds with the contents of the notes of proceedings.

8. Mr. Gunston's criticism goes beyond the mere omission from the notes of proceedings that convictions were entered for Charges A and B. In his submission as the appellant was a juvenile, any mere pleas of guilty should not have been accepted, as unequivocal pleas of guilty. The proper course, for at least one of the several magistrates involved to have adopted before sentence was imposed, would have been for the summary of facts to have been put to the appellant. Only if the appellant admitted those facts and the magistrate was satisfied that they established the charge, should any conviction have been entered or sentence imposed on those pleas. I was referred to the judgment of the Divisional Court in R. v. Blandford Justices (1966) 2 WLR 1232 on the importance of a Court taking particular care in the case of an unrepresented juvenile to ensure that a plea of guilty is unequivocal before it is accepted and a conviction entered. In particular I was taken to that part of the judgment of Widgery J., as he then was, appearing at page 1240, which declares.

If the defendant is represented, if the defendant ... is a man of mature years who clearly understands what is being put to him, it may well be that the magistrate can accept the plea in the sense that he can regard it as being a satisfactory plea upon which he can safely act without further enquiries. But in cases where the defendant is not represented or where the defendant is of tender age or for any other reason there must necessarily be doubts as to his ability finally to decide whether he is guilty or not, the magistrate ought, in my judgment, to accept the plea, as it were, provisionally, and not at that stage enter a conviction. He ought, in my judgment, in these cases to defer a final acceptance of the plea until he has a chance to learn a little bit more about the case and to see whether there is some undisclosed factor which may render the unequivocal plea a misleading one. I have no doubt that experienced magistrates in fact do in these cases wait until they have heard the facts outlined by the prosecution and wait until they have heard something of what the accused has to say.

 

        If at that stage the magistrate feels that nothing has been disclosed to throw doubts on the correctness of the plea of guilty, he properly accepts it, enters a conviction and that is the end of the matter so far as this point is concerned.

 

        If, however, before he reaches that stage he finds that there are elements in the case which indicate that the accused is really trying to plead not guilty or, as Lord Goddard C.J. put it "Guilty but" (1952) 2 QB 1, then the magistrate has, in my judgment, no discretion, but must treat the plea for what it is, namely, a plea of not guilty. "

9. The procedure set forth by Widgery J., is the procedure which has for long generally been followed by Magistrates in Hong Kong. Our Magistrates properly have a well earned reputation for the care which is invariably taken to ensure that an unrepresented defendant understands the nature of his plea. The enquiries customarily made by a magistrate to ensure that a plea is unequivocal are adverted to in R. v. Lee Fu-yuen (1978) HKIR 522, 524. The similar principles which apply where a former unrepresented young offender wishes to reverse a guilty plea are set out in R. v. Tang Wan-ming Cr. App. No. 54/79

10. The present difficulties which have arisen, are in part due to the succession of magistrates involved and the exercise of the discretion by the ultimate trial magistrate after the issue of guilt had been determined to remit the separate and subsequent sentencing issue to a juvenile court. The record does not indicate that the facts on Charges A and B were at any stage ever put to the appellant. Nor is there any recorded admission of those facts. In the normal course it is not unusual for the plea court magistrate merely provisionally to accept the pleas of guilty when granting a prosecution application to transfer all matters to a trial court. However, I would have expected one of the trial magistrates to have satisfied himself that the pleas of guilty on Charges A and B could properly be accepted. The first trial magistrate could obviously have dealt with this issue. I appreciate that, after plea, he was immediately asked to further adjourn the trial and that may be why he did not do so but was content to sentence the 6th defendant from whom he obtained satisfactory admissions, after the summary of facts were read out to that defendant alone.

11. The second trial magistrate appears to have considered at the stage the proceedings reached him, that he was primarily concerned only with the pleas of not guilty. Nevertheless, it is a useful rule of practice before a magistrate proceeds at a substantive hearing with charges defended by only some of several defendants before him, first to satisfy himself that the remaining defendants pleas of guilty are acceptable. If this practice is followed it at least reduces to a minimum the occasional need for a further trial of the same charges consequent upon a belated change of plea.

12. When the appellant reached the juvenile court for sentencing on Charges A, B, and C, the presiding magistrate of that court was at least entitled to proceed to sentence on Charge C without being concerned with the issue of guilt. No doubt because of that fact and the long record of prior successive appearances before other magistrates, she did not embark on her own enquiry whether there existed satisfactory pleas of guilty to enable sentencing to proceed. I am conscious too, that in terms of Section 3F, the appellant could as a matter of law only reach the juvenile court after issues of guilt had been determined elsewhere. However, it would still have been possible for prior oversights to have been detected and corrected, once the proceedings reached the juvenile court. I would also record that the summary of facts tendered on a plea of guilty should form part of the documents remitted by the convicting magistrate to the juvenile court under the certificate referred to in Section 3F(3). The record does not indicate whether this happened in this case. The importance of the convicting magistrate supplying such material to the juvenile court, was emphasised by the Registrar of the Supreme Court in a circular reprinted in(1977) 4 Obiter Dicta' 61.

13. In the result a juvenile, initially unrepresented, was sentenced on pleas of guilty, without any summary of facts being put to him or admitted or any other enquiry made by any of several magistrates into the nature of the pleas. However, I reject the appellant's submission that those pleas were nullities. But I am equally well satisfied that, in Widgery J.'s terminology, they never advanced beyond being merely provisional pleas of guilty. Having that limited status the pleas were by themselves insufficient to enable convictions to be entered and still less to permit sentences to be imposed thereon. Accordingly the convictions and sentences on Charges A and B are quashed.

14. The conviction imposed on Charge C followed a trial after the appellant's plea of not guilty. After considering the evidence adduced in the light of the learned magistrate's statement of findings and both counsels submissions, I am satisfied it was open to the magistrate to hold that Charge C had been established beyond reasonable doubt. The appeal against conviction on Charge C is accordingly dismissed. The appeal against sentence on Charge C is rather more difficult. In the juvenile court the learned magistrate sentenced the appellant to Training Centre on Charges A, B and C. Charges A and C were theft charges but Charge B was the more serious offence of robbery. The sentencing magistrate properly approached sentencing in relation to the combined effect of all three offences. It is open to this Court to uphold for Charge C alone the sentence imposed for all three charges or to impose a lesser sentence.

15. In relation to Charges A and B the proceedings, I have already held, only properly reached the stage of provisional pleas of guilty. I am satisfied, having upheld the appeals on those charges, that the proper course on the instant facts, is for Charges A and B to be remitted back to the juvenile court so that in accordance with the procedure of that Court, the appellant may be re-tried on three charges. Having arrived at that conclusion I am further satisfied that as the matter is being remitted to the juvenile court, that the appellant should also be returned to that court for sentence on Charge C. I accordingly so order. I further order that the remitted proceedings on Charges A, B and C should be heard in the juvenile court by a magistrate other than the four magistrates who have earlier been seized of these proceedings. Finally, I request that a fixture for the further hearing be accorded urgency so that it may be heard as soon as possible. The appellant will be remanded in jail custody pending the further hearing in the juvenile court.