THE QUEEN v. FONG CHI WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 84 OF 1987

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JUDGMENT

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1. The appellant was charged with six others for the offence of robbery. He is 16 years and the majority of his co-defendants were aged between 13 and 14 years. He, with them, on the 18th of October, entered premises belonging to Chan Kwong-chuen and robbed him of $170. At his trial, the appellant, who was unrepresented, pleaded guilty. That was on the 7th of November 1986. The facts were read over to this appellant, and he admitted those facts. They showed that on the 18th of October at 5 p.m., the victim was alone in his store in Lung Mei Village, Tai Po, when the 3rd, 4th, 7th defendants and the appellant entered that store whilst the 1st, 2nd and 5th defendants remained outside acting as look-outs. The 4th defendant grabbed the victim by the neck and took him into the kitchen where his pockets were searched and $170 taken from him. At the time this occurred the appellant was quite content to go on ransacking another part of the premises with the 5th defendant. Those facts were clearly read out to the appellant and admitted by him. The facts, however, did go further and indicate that this unfortunate victim had suffered trespassers on three earlier occasions when his store had been entered and burgled in his absence. Twice that had occurred in the winter of 1985 and again early in February 1986. There was nothing to show that this appellant was involved on any of the earlier occasions, and it would be supposition to imagine that this appellant had been informed of those earlier burglaries and had been led to believe that burglary of the shop was "easy pickings", and not likely to involve the use of force or threat of force in order to acquire property on the occasion in question.

2. Robbery is committed by anyone who steals and at the time uses force or the threat of force in order to acquire property. On the 21st of November, the appellant re-appeared before the magistrate, then represented by his solicitor who asked the Court for permission to allow the appellant to change his plea because of his age and because he was not represented on the first occasion. It is fair to say that the solicitor asked the Court to afford him an opportunity to address him fully as to the grounds on which the application was being made, and the magistrate fixed a hearing date for that to take place on the 29th of December. However, without more ado, he sentenced the appellant to detention in a Detention Centre.

3. On the 29th of December, the appellant's representative addressed the Court saying that there was absence of evidence of any common design and that there was no evidence to support a conclusion that the appellant knew the others would use actual force on that occasion. That may well be true, but robbery, as I have indicated, includes the use of force or the threat of force and this was, one must remember, a gang of seven youths, three of whom were left outside to act as look-outs whilst four entered the premises which was a small store.

4. The magistrate heard what the appellant's solicitor had to say and he dismissed the application stating that whatever the situation it would not make any difference to the sentence. This of course was not the proper approach because the issue then before him was whether or not in the exercise of his discretion, he felt that the type of offence to which the appellant had pleaded guilty was correct in all the circumstances. In dismissing the application for review he said "the appellant looked guilty and ashamed of himself." I see nothing wrong in the magistrate taking into account the demeanour of the appellant at the time of his plea. It is also argued in this appeal that the magistrate overlooked the fact that the appellant was only 16 years of age and unrepresented. I see no merit in this ground of appeal. Such was only too obvious to the magistrate.

5. The issue before this Court is whether it is shown that the magistrate wrongly exercised his discretion in refusing to allow the appellant to change his plea, which after all, was in unequivocal terms. There are a number of cases on this point and it is not necessary to go into them. They begin with the case of McNally[1]; then there is the House of Lords' case S (An Infant) v. Recorder of Manchester[2] and R. v. South Tameside Magistrate's Court, ex-parte Rowland[3].

6. In Rowland's case, the applicant, who was charged with burglary, was unrepresented and after the charge was read to her admitted her guilt and asked for it to be dealt with summarily. A plea of guilty was entered and the magistrates adjourned the case for sentence. In the meantime, she obtained the services of a lawyer who, on her re-appearance, asked the magistrates for permission to change her plea. The magistrates refused to allow it on the ground that they considered that the reason why she advanced that application was because she wanted to avoid a custodial sentence. It was held by the Divisional Court that the magistrates were entitled to balance the instructions the applicant had given her solicitor after the first hearing against the prospect of the applicant changing her story because of the possibility she might receive a custodial sentence. It was held that the magistrates were entitled to exercise their discretion not to allow the applicant to withdraw her unequivocal plea of guilty.

7. That case is not an authority binding on this Court inasmuch as it involved a matter concerning the exercise of a discretion. I have considered the evidence in this case very carefully to weigh whether there is a reasonable chance that the appellant did not know that the offence he was setting out to commit that night was one of robbery or likely to become robbery as opposed to a simple straight forward case of burglary. I cannot say that the magistrate erred in the exercise of 'his discretion refusing the appellant leave to change his plea. This was a gang of youths who to achieve their object, would  have had to put the owner of the premises in fear. Their number alone might well have done that and this would have been known to the appellant, who was afterall, much older than most of his co-defendants. It is true that in a confession he made to the police after his arrest he said he was a look-out at the doorway but that did not accord with the facts he agreed to at the time of the trial when he stood next to all the others involved in the same joint enterprise. Accordingly, this appeal is dismissed.

[1]  [1954] 38 C.A.R. page 90

[2]  1970]  2 W.L.R. page 21

[3]  A decision of the Court of the Queen Bench Division in 1983, 3 All E.R. 689