香港特別行政區 訴 陳楚鎮

HCMA 647/2000

香港特別行政區

高等法院

原訟法庭

高院裁判法院上訴2000年第647號

（原本案件編號：北九龍裁判法院案件2000年第1925號）

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判 案 書

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1. 於今年4月5日，被告人承認一項在香港非法入境後未得入境事務處處長授權而留在香港的控罪而被定罪。兩個多月後，他申請逾期上訴，推翻定罪的裁決。他聲稱他本持雙程證來港，其後，逾期居留。他以為逾期居留與非法入境控罪無異，所以承認控罪。

2. 被告人的案情與HKSAR v. Wong Chi Yuk [2000] 2 HKC 158 CA 大致相同。在該案中，上訴庭作出以下的裁定：

“(1) A mistake of any kind should not be readily treated as ground for nullifying a guilty plea. The mistake must be fundamental, meaning the act of the plea was not the defendant's true act.

(2) A misunderstanding of the law was not sufficient to vitiate the intent of a defendant in tending a guilty plea. It would only nullify a guilty plea where the facts as admitted did not amount to the offence, or where the charge for which the plea was made was defective. In all other circumstances, a misunderstanding of the law should not be treated as being able to nullify a plea.

(3) An unequivocal guilty plea could only be rendered a nullity if:

* the facts admitted by the defendant did not amount to the offence with which he was charged;

* the admitted facts were equivocal as to guilt;

* the plea was tendered to a charge that was defective on its face or invalid or unclear;

* the plea was tendered involuntarily, eg induced by misrepresentation or duress;

* the plea was induced by fraud or made under a fundamental mistake;

* the plea did not result from a deliberate and informed decision;

(4) The law in relation to whether a guilty plea should be regarded as a nullity and applications to withdraw a notice of abandonment as ineffective should be the same, even though the circumstances surrounding each might vastly differ. Both dealt with whether the act of the defendant was his true act. If his mind did not go with his act, the act was a nullity.

(5) The appellant's alleged confession to entering Hong Kong illegally under duress was unlikely and appeared to be a recent invention. The appellant's affirmation as to why he pleaded guilty, being unlikely to be credible, would not be admitted.

(6) It was not reasonable to expect police to check with the Immigration Department whether the appellant had entered Hong Kong lawfully, after he had confessed to entering unlawfully.

(7) The appellant's plea before the magistrate was not a nullity. The appeal launched pursuant to s 113(1)(a) of the Magistrates Ordinance would be dismissed as he was not entitled to so appeal, having pleaded guilty at trial.

(8) Although it appeared that the appellant had been convicted of illegally remaining in Hong Kong after having landed in Hong Kong unlawfully which he should not have been because of his entry on a two-way permit, no injustice had occurred as the conviction arose out of the appellant's deliberate plea of guilty."

3. 按Wong Chi Yuk一案，被告人對兩項控罪的誤解不足以撤消他提出認罪答辯的意圖。他所承認的案情足以構成控罪所指的罪行。所以他的認罪答辯不可視為無效。因此，他不可根據《裁判官條例》第113條提出上訴。

4. 此外，有關他持雙程證來港的說法亦不可信。他向警方提供的姓名與出生日期與他的朋友代他呈交警方的證件亦不相符。所以駁回他的上訴對他亦無不公允之處。鑑於上述的理由，本席駁回他的上訴。