HKSAR v. FASHION FORCE (HONG KONG) LTD.

HCMA 628/2000

HEADNOTE

Appeal from Magistrate's Court to High Court against conviction reached upon admission of truth of information - Contention by appellant, disputed by respondent, that admission was a nullity - Issue whether admission resulted from deliberate and informed decision - Additional evidence received on appeal on that issue - Issue resolved in appellant's favour following cross-examination by respondent's counsel of appellant's main witness on issue - Held accordingly that admission was a nullity - Appeal allowed and conviction quashed - Order that case be heard de novo in Magistrate's Court.

HCMA 628/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 628 OF 2000

(ON APPEAL FROM KTS 16866 OF 1999)

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J U D G M E N T

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1. The appellant is a limited company. It was summonsed to appear in the Kwun Tong Magistracy on 6 January 2000 to answer to an Information of furnishing false or misleading information in a licence application, contrary to s.36(1)(a) of the Import & Export Ordinance, Cap. 60. The Summons set out the information as follows:

"Information has been laid THAT YOU on or about 9 November 1998 in Hong Kong, in respect of an application for the issue of a licence, furnished information which was false or misleading in a material particular, namely in an application for the issue of Export Licence (Textiles) Form 4 numbered 8HK009861, you furnished false or misleading information that the fabric described in the said application, namely, 240.20 square metres 60% linen 40% cotton woven fabric, was formed in Hong Kong"

2. Another limited company, Monetpool Weaving & Dyeing Factory Limited ("Monetpool") was the manufacturer of the fabric in question. The appellant was the exporter to the United States of the fabric. By a separate Summons, Monetpool was summonsed in terms similar to the terms in which the appellant was summonsed.

3. Both summonses were dealt with by G Tallentire Esq. in the Kwun Tong Magistracy at the same time on 6 January 2000. Neither Monetpool nor the appellant were legally represented. For each there was a lay person in court representing or purporting to represent it. Each of these lay persons admitted or purported to admit the Information against the company which he or she represented. I speak of admitting an Information rather than of pleading guilty to a Charge because, as we shall see, the Magistrates Ordinance, Cap. 227 speaks of admitting the truth of an Information or Complaint. It also speaks of pleading guilty, which would of course be pleading guilty to a Charge. In fact, both before the Magistrate and before me, people have spoken of a guilty plea. The distinction is without any difference in the present circumstances. But I will speak in terms of admitting the Information thus following the terminology of the Ordinance and the fact that the present instance happened to be one of an Information rather than of a Charge. The Magistrate fined each company $1,000.

4. I propose to set out the entire "Statement of Findings/Reasons for Sentence" prepared by the Magistrate. In it the appellant is variously described as "the company", "the Appellant" and "D2". It reads:

"1. The company via its properly authorised representative Ms. Lai Kit Wah entered a plea of guilty to a single summons for furnishing false or misleading information in an application for the issue of an Export Licence contrary to S.36(1)(a) of the Import and Export Ordinance Cap. 60. On behalf of the company she admitted the brief facts and I convicted the company thereon.

2. The facts of the case were very simple. The Appellant appeared therein as D2. The Trade Department received an application for an Export Licence (Textiles) on the 9th of November 1998 in respect of 240.20 sq. metres of woven fabric (60% linen and 40% cotton). Both defendants declared it to have been woven in Hong Kong whereas in fact it was woven in Mainland China. The F.O.B. value was some $4,620HK.

3. D2 was of clear record.

4. Despite an invitation to enter mitigation, D2 declined.

5. This offence is covered by the guidelines of A.G. v. Marvels Clothing Co. Ltd. [1987] H.K.L.R. 839, 842 (C.A.) which provides for fines of about 40% of the F.O.B. value of the goods. As a matter of practice it is now accepted widely that 30% is the approximation used for a plea of guilty. In this case there were two defendants and the F.O.B. value was somewhat less than $5,000. Therefore I fined each a rounded up figure of $1,000. I did comment to the Trade Department that prosecution where the amount of goods was relatively small, as here, could perhaps be dealt with by way of a caution or warning where the defendant was of previous good character instead of prosecution. However a prosecution had been instituted, the offence admitted and one had to consider this a serious matter in view of the international damage to the reputation of Hong Kong as a centre of honest trading. To a large extent the fine was nominal.

6. On the 13th of May an application for leave to appeal out of time was lodged. I considered that application on the 16th instant. I resolved that the applicant had failed to show any good cause to extend the time for the giving of notice of appeal (S.114A(1) Magistrates Ordinance, Cap. 227 applies) and that moreover there was no right of appeal against the conviction in any event, as the Company had pleaded guilty to the summons on the 6th of January 2000. S.113 (1) provides for an appeal against conviction by any person 'who did NOT plead guilty or admit the truth of the information or complaint'." Accordingly I refused the application.

7. On the 12/6/2000 the Honourable Mr. Justice Pang did allow the above application to the extent that the applicant was to file notice of appeal within 14 days.

8. Therefore I submit my findings."

5. The appellant's Perfected Grounds of Appeal against Conviction and Sentence should also be set out in full. They read:

"1. The said Miss Lai kit-wah did not have the authority of the Appellant to enter a plea of guilty and therefore she was not a "representative" within the meaning of section 49(4) of the Criminal Procedure Ordinance (Cap.221), thereby the Appellant did not properly enter a plea at all.

2. The plea purportedly made by the said Miss Lai kit-wah on behalf of the Appellant was a nullity:-

(a) The said Miss Lai kit-wah misunderstood what was said to her by the interpreter and the Appellant had never intended to plead guilty : Chan King Hong v R Cr App No.310/80 (20 June 1980, unreported);

(b) The plea tendered by the said Miss Lai Kit-wah was not an exercise of free choice : HKSAR v Wong Chi Yuk [2000] 2 HKC 158 at 168G;

(c) The plea tendered by the said Miss Lai kit-wah was made under a fundamental mistake : HKSAR v Wong Chi Yuk [2000] 2 HKC 158 at 168H;

(d) The plea entered by the said Miss Lai kit-wah did not result from a deliberate and informed decision : HKSAR Wong Chi Yuk [2000] 2 HKC 158 at 168H;

(e) The plea tendered by the said Miss Lai kit-wah was made under a misunderstanding of the law : Kleinwort Benson Ltd v Lincoln City Council & Others [1999] 2 AC 349;

(f) The Appellant did not authorise the said Miss Lai kit-wah to enter a plea of guilty on behalf of the Appellant, thereby the said plea was not an exercise of free choice by the Appellant : HKSAR v Wong Chi Yuk [2000] 2 HKC 158 at 168G;

(g) The Appellant did not authorise the said Miss Lai Kit-wah to enter a plea of guilty on behalf of the Appellant, thereby the said plea did not result from a deliberate and informed decision : HKSAR v Wong Chi Yuk [2000] 2 HKC 158 168H.

3. The learned magistrate wrongly disposed of Summons KTS16866/1999 laid against the Appellant together with Summons KTS16865/1999 laid against Monetpool Weaving & Dyeing Factory Limited without consolidating the aforesaid Summonses while the Appellant and the said Monetpool Weaving & Dyeing Factory Limited were not jointly charged.

4. The learned Magistrate erred in law in adopting the guidelines of AG v Marvels Clothing Co. Ltd. [1987] HKLR 839 in the circumstances of the case."

6. At the hearing of the appeal before me, the appellant invited me to exercise my power under section 118(1)(b) of the Magistrates Ordinance to receive additional evidence in the form of affirmations of Ms Lai Kit Wah, who had attended before the Magistrate on the appellant's behalf, Mr Taketoshi Kunugiza, the appellant's President and Managing Director, and Mr Cheung Cheung Yuen Frederick, the Managing Director of Prosperous Piecegoods Limited from which the appellant had ordered the fabric in question.

7. Section 118(1)(b) empowers the appeal judge to receive additional evidence in the case of any appeal to which sections 105 and 113 applies. Section 105 certainly does not apply here since that section has to do with appeals by way of case stated, and the appellant brings or purports to bring this appeal under section 113. Subsection (1) of section 113 confines the right to bring an appeal against conviction under that section to persons "who did not plead guilty or admit the truth of the information or complaint". In the present case, the appellant was summonsed to answer an Information. On the face of it, the appellant's representative admitted the truth of the Information. However, it is contended that the circumstances were such that that admission was a nullity. If that be right, the appeal would come within section 113. Plainly the power of the court under section 118(1)(b) must include receiving additional evidence to see whether or not the appeal comes within section 113. If such evidence was not admitted, the issue of whether the appeal comes within section 113 would be shut out. Admitting the evidence , on the other hand, does not shut out the argument that that appeal does not come within Section 113. All that it does is to enable the Court to determine whether or not the appeal comes within that section.

8. Accordingly, I had power to accede to the appellant's application for additional evidence and, in all the circumstances, I considered it appropriate to exercise that power to admit the additional evidence sought, especially since the respondent was agreeable to my doing so provided that the appellant tendered Ms Lai for cross-examination, which the appellant was agreeable to doing.

9. So the additional evidence, from Ms Lai and Mr Kunugiza and Mr Cheung was admitted, and Ms Lai was cross-examined by Mr Andrew Bruce S C for the respondent.

10. In all the circumstances and upon the whole of the additional evidence, including what Ms Lai said under cross-examination, I have come to the following view of the facts.

11. The appellant never made a deliberate or informed decision to admit the Information. It sent Ms Lai to the Magistrate's Court as its representative there, but not for the purpose of admitting the Information. In any event, even if it had sent her there with a free hand, it is clear from her evidence that she did not make a deliberate or informed decision to admit the Information. She was confused and in her confusion gave the Magistrate the inaccurate impression that the appellant was admitting the Information.

12. In HKSAR v. Wong Chi Yuk [2000] 2 HKC 158 at p.168 F-I the Court of Appeal said:

"An unequivocal guilty plea can be rendered a nullity if any one of the circumstances is applicable, according to the cited decisions:

(1) The facts admitted by the defendant do not amount to the offence with which he is charged - as in Chan Wai Lam and Li Tung Hing;

(2) The admitted facts are equivocal as to guilt - Chan Ching Chi;

(3) The plea was tendered to a charge which was defective on its fact or invalid or unclear as in Chao Tse Yun (No 2), Cheung Kwok Cheung and Lui Yiu Shing;

(4) The plea was tendered involuntarily, eg, induced by duress or misrepresentation or was not an exercise of free choice - as in Ma Kam Wing and per Au Yeung Boon Fai;

(5) The plea was induced by fraud or made under a fundamental mistake - per R v Peters as referred to in Li Wa San; or

(6) The plea did not result from a deliberate and informed decision - per Wong Wai Leung as cited in Li Wa San."

13. As I have indicated, the view which I have formed of the facts in all the circumstances and upon the whole of the additional evidence is that the appellant never made a deliberate or informed decision to admit the information. What the Court of Appeal said about a guilty plea (to a Charge) must apply also to an admission of the Information or Complaint. Accordingly, the appellant's admission of the Information was a nullity and the appellant must succeed on Ground 2(d) of the grounds of appeal so ably argued on its behalf by Mr John Griffiths S C. There is no need to decide any of the other grounds.

14. The appeal is allowed. I quash the conviction and exercise my power under section 119(1)(d) of the Magistrates Ordinance to "direct that the case be heard de novo by a magistrate". That is the course which Mr Griffiths accepts is the correct one if the appeal is allowed.