THE SECRETARY FOR JUSTICE v. YUEN LIT PING

1998 HCAL No. 77

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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J U D G M E N T

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Introduction

1. This application for judicial review relates to a trial in the District Court. The judge set aside the convictions which he had recorded against the Respondent a few days earlier, and he also set aside the sentences which he had passed. The circumstances are unusual, and they show how easily things can go wrong even when a judge conscientiously endeavours to be as fair as possible to a defendant. I shall refer to the Applicant and the Respondent as the prosecution and the Defendant respectively, and all dates in this judgment are dates in 1998.

The facts

2. The Defendant appeared at the District Court on 8th June. He faced three charges: two of burglary (charges 1 and 2) and one of remaining in Hong Kong without the lawful authority of the Director of Immigration (charge 3). The charges alleged that the burglaries had been committed on 21st February. The Defendant, who was represented, pleaded guilty to all three charges. The Summary of Facts was then read, and the Defendant admitted that the facts were correct. The judge then convicted the Defendant on all three charges.

3. After the Defendant's solicitor had addressed the judge in mitigation, the judge stood the case down for a short while to consider the appropriate sentences. When he returned to court, he pointed out that there was a discrepancy over the date of one of the burglaries. Whereas the charge sheet had alleged that the burglary to which charge 2 related had been committed on 21st February, the Summary of Facts recorded it as having been committed on 21st January. Counsel for the prosecution said that he thought that the date in the Summary of Facts was a mistake. It is not disputed that counsel for the prosecution was correct. The Defendant's solicitor in mitigation had said that the two burglaries had been committed on the same night, i.e. on 21st February, in support of his contention that the sentences on the two burglary charges should run concurrently with each other. In those circumstances, counsel for the prosecution asked the judge for "leave to amend" the Summary of Facts, so as to make the burglary to which charge 2 related refer to the correct date. The judge granted leave to amend.

4. The judge took the view that the safest course to take then was to set aside his conviction of the Defendant on charge 2. Charge 2 was then read to the Defendant again. The Defendant again pleaded guilty to it. The Summary of Facts, with the date of the burglary to which charge 2 related having been changed from 21st January to 21st February, was read to the Defendant again. Again, he admitted that the facts were correct. This time, though, the judge did not say that he convicted the Defendant on charge 2. The judge simply proceeded to sentence the Defendant to terms of 27 months' imprisonment on each of the two burglary charges to run concurrently with each other, and to 15 months' imprisonment consecutive on charge 3.

5. A judge in the District Court has no power of review in criminal cases. Despite that, 4 days later on 12th June, the case was re-listed for hearing at the judge's request. The judge was worried by the fact that he had not announced that he had convicted the Defendant on charge 2 again. Having discussed the matter with counsel, the judge decided to set aside the sentence on charge 2. He then asked the Defendant to confirm that he had pleaded guilty to charge 2. The Defendant declined to do so, saying that he had been assaulted by a police officer and had been told by him to plead guilty. The case was then stood down for a short while to enable the Defendant's solicitor to take instructions from his client. When the court reconvened, the Defendant's solicitor said that he was having difficulty in obtaining instructions from the Defendant. Having discussed the matter with counsel again, the judge said that he was not able to accept any of the pleas tendered by the Defendant as he was not satisfied that they were voluntary. He had already set aside the sentence on charge 2 (on the basis that no conviction had been recorded on that charge), and he then set aside the convictions and sentences on charges 1 and 3.

6. On 7th September, the case was listed for trial before another judge. Different counsel appeared for the prosecution. He asked for the trial not to proceed, on the basis that the previous judge had had no jurisdiction to make any order in respect of the case once sentence had been passed. The judge agreed with that submission, and he suggested that the case should be remitted to the previous judge so that he could revoke the orders he had made on 12th June. However, counsel for the prosecution pointed out that the previous judge would not have any jurisdiction to do that either. The case was then adjourned to allow the Department of Justice to decide what course of action should then be taken.

Functus officio

7. There must come a time in any proceedings when the court must be regarded as having completed its task. When that time is reached, the court is said, to use the Latin phrase, to be functus officio. Once that stage has arrived, the court has no further jurisdiction over the case. In criminal proceedings in which the defendant has either pleaded guilty or been found guilty, that time will be reached when he has been sentenced. Purely administrative matters, such as awards of costs to witnesses and orders for the disposal of exhibits, may be dealt with after sentence - indeed, they usually are. But the judge's power to make orders of substance in criminal cases in which the defendant has pleaded guilty or been found guilty ends once the defendant has been sentenced. This has been the position both in the United Kingdom (see Sell (1840) 9 C. & P. 348 and R. v. McNally (1954) 38 Cr. App. R. 90) and in Hong Kong (see R. v. Man Lim Ping [1985] 1 HKC 61).

8. I have not overlooked what was said in R. v. Cross [1973] 2 All E.R. 920 by Lord Widgery C.J. at p.922d-e:

"It is well recognised that a court of record has power to alter a judgment or order which it has made within certain limits. The limits set in general appear to be that the power to alter the judgment ceases when the judgment is, in the words of the civil courts, drawn up. In other words, the general principle seems to be that when once the judgment has been finally recorded, then the inherent power to vary it is lost."

The District Court is a court of record. The only provision about records in criminal cases in Hong Kong to which I have been referred is section 79(1) of the Criminal Procedure Ordinance (Cap. 221), which provides:

"A record (whether made by means of shorthand notes, by mechanical means or otherwise) kept in accordance with rules made under section 9, or such other record as the trial judge may direct, shall be taken of the proceedings at the trial of any person on indictment who, if convicted, is entitled or may be authorized to appeal to the Court of Appeal."

No rules have been made under section 9 relating to the keeping of a record of proceedings. Since the proceedings in this case were taped, it was the tape which constituted the record, and since the tape came into existence contemporaneously, it follows that, in the absence of any other statutory provision, that was when the proceedings were finally recorded. Accordingly, the judge was functus officio once he had pronounced the sentences on 8th June.^*

9. There is a line of cases to which I have been referred which suggests that a failure to follow rules of court or well established practice might justify an appellate court assuming jurisdiction in a criminal appeal when it would normally be regarded as functus officio. The power to re-open such an appeal is also said to arise where it is necessary to rectify an injustice done to a defendant. But whatever may be the practice on appeal, I am dealing with a judge's powers at first instance, and there is no warrant for importing into hearings at first instance, contrary to well-established authority, considerations which might apply to an appeal.

10. In concluding that he was not functus officio, the judge had in mind a passage in S. v. The Recorder of Manchester [1971] AC 481. At p.506A, Lord Upjohn said:

"The primary meaning of the word 'conviction' denotes the judicial determination of a case; it is a judgment which involves two matters, a finding of guilt or the acceptance of a plea of guilty followed by sentence. Until there is such a judicial determination the case is not concluded [and] the court is not functus officio."

This passage was recently cited and followed by the Court of Appeal in HKSAR v. Ho Tung Man [1997] 3 HKC 375. The judge in the present case seems to have thought that his failure to announce that he convicted the Defendant on charge 2 again meant that there had not been an acceptance of a plea of guilty.

11. I do not agree with that view. First, the acceptance of a plea of guilty does not require a formal acknowledgement by the court to that effect. In theRecorder of Manchester case, Lord Morris said at p.501B-C:

"Though reference is often made to the 'acceptance' of a plea there is no necessity for any formal pronouncement. All that is denoted by such an 'acceptance' is that a court is proceeding to consider what is the appropriate course to take in regard to a person who, as the court thinks, with full appreciation of what he is doing and with adequate understanding of what is involved in and what are the ingredients of a charge preferred against him, has fully and freely acknowledged and confessed to the court that he is guilty of the charge."

Secondly, on the facts of this case, the judge had accepted the Defendant's plea of guilty to charge 2 on 8th June. The fact that the Summary of Facts was changed to correct a minor error did not affect the wording of the charge to which the Defendant had pleaded guilty. Accordingly, the absence of a formal announcement by the judge - after the date in the Summary of Facts had been changed - that he was convicting the Defendant did not invalidate the conviction, because the judge was clearly intending to accept, and had accepted, the Defendant's plea of guilty to charge 2. The fact that the judge then proceeded to sentence the Defendant on charge 2 shows that he was accepting the Defendant's plea of guilty to charge 2.

12. Indeed, even if the judge had been correct to conclude that he had not accepted the Defendant's plea of guilty to charge 2, and was therefore not functus officio in respect of that charge, there was no basis on which he could conclude that he was not functus officio on charges 1 and 3. There is no doubt that the judge "accepted" the Defendant's pleas of guilty on 8th June to those charges. Accordingly, the factor which the judge regarded as decisive on charge 2 simply did not apply to charges 1 and 3.

13. Accordingly, having sentenced the Defendant on all three charges on 8th June, the judge did not have the power to make any substantive orders in the case on 12th June. In particular, he had no power to set aside the sentences on the three charges, and he had no power to set aside the convictions on charges 1 and 3.

Other matters

14. There are three other matters I want to mention. First, the problems which arose in this case all stemmed from the judge's belief that where a defendant has pleaded guilty, a judge nevertheless has to convict the defendant. I confess that that is not a practice which I have encountered outside Hong Kong. I have always thought that the practice adopted in Hong Kong is unnecessary, because rightly or wrongly I have always supposed that the conviction of a defendant who pleads guilty is constituted either by the plea of guilty itself or by the passing of the sentence by the court. The latter, I think, is the more preferable view in the light of the statement in R. v. Cole [1965] 2 QB 388 at p.394F (cited with approval in Wong Cho Kui v. R. [1965] HKLR 575 at p.577) that "a plea of guilty ... only ranks as a conviction when the defendant is sentenced". However, although my personal view is that it is not necessary for a judge or magistrate to announce the conviction of a defendant who pleads guilty, the outcome of this case is not dependent on a resolution of that issue, and it would not be appropriate for me to express a concluded view on the topic.

15. Secondly, there was no need for the judge on 8th June to set aside the Defendant's conviction on charge 2, simply because of an error in the Summary of Facts. The Defendant had unequivocally pleaded guilty to charge 2, there was no problem with the way charge 2 had been framed, and there was no suggestion that the error in the Summary of Facts had caused the Defendant to plead guilty to charge 2 when he might otherwise not have done so. His conviction on charge 2 could not have been vitiated in any way by the fact that the Summary of Facts had contained a minor error which had been put right by agreement.

16. Thirdly, even granted the judge's concern that he had not announced the Defendant's conviction on charge 2 on 8th June for a second time, there was no need for the judge to go as far as he did on 12th June. If he wanted to set aside the sentence on charge 2, and then convict the Defendant again on charge 2 so that he could re-sentence the Defendant having convicted him again, he could have done just that without inviting the Defendant to do anything at all. In particular, there was no need for the judge to ask the Defendant to confirm his plea of guilty to count 2.

Conclusion

17. It should be said to the judge's credit that he sought the views of counsel at each stage of the process which I have described. It should also be said in the judge's defence that there does not appear to have been any dissent from counsel then appearing for the prosecution or the Defendant's solicitor. Indeed, the judge should be applauded for attempting to ensure at all times that the Defendant's interests were being properly protected. However, for the reasons I have given, the order made by the judge on 12th June purporting to set aside the Defendant's conviction on charges 1 and 3 and the sentences on all three charges cannot stand as the judge was functus officio when he purported to set them aside, and I therefore make an order of certiorari quashing the judge's order. I have not referred to the Defendant's conviction on charge 2 in quashing the judge's order, because the judge's view was that once the conviction on charge 2 had been set aside on 8th June, the conviction had never be re-instated. As I have said, I take a different view from the judge, and the course which I propose to take to give effect to my view that the Defendant had been properly convicted and sentenced on 8th June on all charges is to make a declaration to that effect.

18. Finally, I should add that the Defendant was unrepresented today because his legal aid certificate has recently been discharged. But since it was discharged so soon before today's hearing, counsel who had been instructed to represent the Defendant, Mr. Johannes Chan, and his instructing solicitor have appeared today, albeit on a pro bono basis, to give me such assistance as I might require. I have treated Mr. Chan as an amicus curiae, and I have been

grateful to him for drawing my attention to various authorities which have helped me form the conclusion which I have reached.

Note:

* Since delivering judgment in this case, but before the order was drawn up, I have noticed that there is another provision in the Criminal Procedure Ordinance which is of greater relevance than section 79(1)(which really relates to the record of the proceedings, rather than to the record of any order made). That is section 86(1), which provides:

"At the end of each day's sitting of the court, the Registrar shall deliver to the Commissioner of Correctional Services or his deputy a certificate, in Form 5 of Schedule 1, of all sentences passed by the court during that day."

A statutory provision is presumed to have been complied with unless there is an assertion to the contrary. It has not been asserted that this provision was not complied with on 8th June. Accordingly, the judge was functus officio once the certificate recording the sentences passed by him had been prepared on 8th June.