THE QUEEN v. LAM HAU HING AND OTHERS

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HEADNOTE

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         AFFRAY - elements of charge Counsel seeking indication as to sentence before plea. Wrong for Magistrate to give a defendant before plea expectations which are not fulfiled after guilty plea entered. Need for Magistrate to keep an accurate record of such pre trial discussions.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1512 OF 1989

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JUDGMENT

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1. The 1st, 2nd, 4th, 5th, 6th and 7th appellants pleaded guilty before Mr G.A. Andree-Wiltens to a charge of affray. They were each sentenced to two months' imprisonment. The 6th appellant pleaded guilty to a wounding charge under section 19 of the Offenses Against the Persons Ordinance and was sentenced to 6 months' imprisonment. The 3rd appellant pleaded not guilty to a charge of affray but was convicted after trial and sentenced to 3 months' imprisonment. The 3rd appellant now appeals against conviction and all of the appellants appeal against sentence.

2. I dismissed the appeal against conviction but allowed the appeals against sentence. I now give my reasons for having done so.

3. The brief facts were that 15 off duty police officers attended a Brandy Promotion dinner at the Sun Yick Restaurant on the 11th May 1989. The appellants were among a group at another table at the dinner. Shortly after 11 p.m. there was an exchange between one of the group and a waiter. Some of the police party tried to mediate, an argument developed and the appellants' group, stirred on by Chan Chi Ho, a narcotics agent for the Philippine Government (who later absconded while on bail) attacked the police party with chairs and bottles. The 6th appellant hit one of the police officers on the head with a bottle causing a larceration. He seems to have been the only casualty.

4. The 3rd's appellant appeal against conviction.

In his Statement of Findings, the Magistrate had this to say:

"There is no question that anyone of reasonable firmness at the Restaurant at the time would have been in terror - in grave fear of injury, either from bottles or chairs. The fact that the police had to draw their revolvers, proves this."

5. The defence complain that the Magistrate was wrong to draw this inference, there being no evidence from a by-stander other than PW1, DPC Leung who gave no specific evidence of having been in terror at the time. DPC Leung gave detailed evidence of the incident and of the fracas having developed to a stage where the assailants advanced on him in such a way as he felt the need to draw his revolver.

6. In Bruce John Plastow (1988) Cr. App.48, the Court of Appeal considered the ingredients of the charge of affray. Walkins, L.J. at page 51 had this to say:-

"We turn therefore to see what are the ingredients which the prosecution had to prove with regard to affray. They had to establish that:-

 

That we have taken from the most recent authority on the subject which is the Attorney General's reference (No. 3 of 1983) (1985)80 CR.APP.R. 150, (1985) Q. B.242 in which the Lord Justice Lord Lane gave the judgment. That case did not involve a consideration of whether or not the conception of terror embraced not only a single by-stander but also his feelings for another by-stander or even for a person involved in the fighting itself. It was concerned with the point as to who was capable of being held to be, in any given circumstance, a by-stander. It was held that a person actually involved in the fighting could be a by-stander along with others. In the course of giving judgment, the Lord Chief Justice included a reference to observations of Lord Reid in Taylor v. D.P.P. [1973]57 Cr. Appr.915; [1973] AC 964. In the course of his speech at p. 97 and pp. 989, 990 respectively Lord Reid said:-

 

'The question of terror does not arise in this case but as it was much referred to in argument and is an essential element of the offence, I think that I must say a word about it. Undoubtedly, if people are present, it is not necessary to prove by their evidence that they were terrified. It is enought if the circumstances are such that ordinary people like them would have been terrified. I say 'would' not 'might' have been, but I am much more doubtful about suggestions in some cases that no one but the combatants need be present at all or even with in earshot .. that it is enought that, if some one had been present, he would have been terrified. As terror is an essential ingredient of the offence, I think that there can be no difference in principle between violence in a public or a private place. But that is a matter which can be decided when it arises.'"

7. The Magistrate had before him the evidence of DPC Leung that when under attack by a group of men armed with chairs and bottles he felt the need to draw his revolver. DPC Leung, an innocent party to the fighting, was in law a by-stander. There can be no criticism of the Magistrate's finding that he was in terror. In addition, there was evidence of there being groups of persons at other tables, also in attendance at the promotion dinner. In the circumstances of the case, it was entirely proper for the Magistrate to find that the element of terror had been proved. The appeal against conviction by the 3rd appellant was accordingly dismissed.

8. Appeals against sentence.

9. The first ground of appeal was that in respect of the 1st, 2nd, 4th, 5th, 6th and 7th appellants, in view of the indication given by the Magistrate in Chambers before the appellants pleaded guilty, justice was not seen to be done and the appellants had a genuine and legitimate grievance.

10. The appellants sought leave to adduce additional evidence by way of affidavit and I granted the application. At the hearing before the Magistrate the Crown was represented by Mr P. O'Brian and the appellants by Mr M.K. Wong.

11. The affirmation of Mr Wong states that on the morning of the 9th November 1989, prior to pleas being taken, he and Mr O'Brian went to see the Magistrate in Chambers. A copy of the facts showing the Crown case was shown to the Magistrate. Mr Wong stated that the charges were excepted offences and asked whether a plea of guilty on the facts presented would attract a fine or a custodial sentence. He told the Magistrate that none of the appellants were on suspended sentences and that the 6th appellant, who faced the wounding charge, had a clear record. Mr O'Brian said that if a fine was imposed, the Crown would not seek a review. The Magistrate, according to Mr Wong, stated that he could not clearly indicate until he knew details of the criminal records of the appellants, but that in his view the whole incident was only a storm in a tea cup. He added that the recent appeal decision in the case of Nguyen Quang Thong did not apply to the present case. Having left the Magistrate's Chambers, Mr Wong asked Mr O'Brian if he had got the impression that at least for those appellants who had clear records the Magistrate would impose a fine on a plea of guilty. Mr O'Brian confirmed that he had such an impression.

12. Mr Wong advised his clients as to what had happened in the Magistrate's Chambers and indicated that for those with clear records or records of a trivial nature, the chances of a fine were very high, although there was no absolute guarantee. In the result, the 1st, 2nd, 4th, 5th, 6th and 7th appellants pleaded guilty.

13. Mr O'Brian, in response to a letter from the appellants' solicitors, confirmed Mr Wong's recollection as to what had transpired in the Magistrate's Chambers. Mr O'Brian further stated that he did advise the Magistrate in respect of those appellants with clear records he did not see himself recommending a review if a fine was imposed. He pointed out that while the Magistrate took the view that it was a storm in a tea cup there were other matters which should not be discussed in Chambers. After the Chambers dicussion he expected a fine for those with clear records. Mr Wong later told him that one of the appellants was not prepared to plead guilty as no absolute guarantee of a fine could be given.

14. In a letter to the appellants' solicitors the Magistrate confirmed that there had been a Chambers discussion in which an indication as to sentence had been sought. A summary of the facts was presented to him. It is his recollection that he told the parties that he could not give an indication until the facts were agreed and until he knew the backgrounds of the appellants. He also recalled saying that the case appeared less serious than the Vietnameses case which had been reported in the S.C.M.P. the previous day (the Nguyen Quang Thong case). In relation to the comment he was alleged to have made as to the seriousness of the case the Magistrate stated:-

"I certainly did not say, to my recollection, that the facts reveal only a storm in a tea cup.".

It is unfortunate that the Magistrate did not make a record of the discussion which took place in his Chambers. However, having regard to the very clear recollection that both Mr Wong and Mr O'Brian have as to what the Magistrate said, I am satisfied that the Magistrate is wrong in his recollection. It is on the basis of this statement that both Mr Wong and Mr O'Brian formed the view that, at least in respect of those with clear records, a fine would be imposed on a plea of guilty. The Magistrate did not say this in as many words but this was the impression Counsel were left with. It was the duty of Mr Wong to disclose this discussion to his clients and he did so. I do not doubt that the content of the discussion had an influence on the decision of the appellants to plead guilty. After having been told that the Magistrate regarded the case of minor significance, a storm in a tea cup, the appellants are entitled to feel a genuine grievance that justice has not been seen to be done.

15. The facts of this case highlight the need to exercise great care in dicussions in Chambers as to likely sentences. It is wrong to give to a defendant before plea expectations which are not fulfilled after a guilty plea has been entered.

16. For these reasons I allowed the appeals against sentence in respect of the 1st, 2nd, 4th, 5th, 6th and 7th appellants. Some of the appellants had clear record some did not. The Magistrate did not differentiate between them when imposing sentence and I do not consider it appropriate for me to now do so. The six appellants had served five days in custody and, as the sentence could not be suspended, I decided to impose a term of five days imprisonment in substitution for the two months' imprisonment imposed by the Magistrate in respect of the affray charge. I substituted a fine of $5,000 for the term of imprisonment imposed on the 6th appellant in respect of the wounding charge.

17. The 3rd appellant was convicted after trial. He is aged 20 with a clear record. He was not able to put forward the same argument as that advanced by the other appellants. He had however served ten days' imprisonment and I decided having regard to my order in respect of the other appellants that the interests of justice would be served by substituting a term of imprisonment of ten days in lieu of the three months' imprisonment imposed by the Magistrate.