HKSAR v. CHAN HO

HCMA 891/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 891 OF 2003

(ON APPEAL FROM NKCC 5608/2003)

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J U D G M E N T

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1. The Appellant appeals against his conviction on one count of Possession of an Offensive Weapon, contrary to section 17 of the Summary Offences Ordinance, Cap. 228. He was found guilty on 18 August 2003 and sentenced to 8 months imprisonment on charge 1, 7 months of which was ordered to run consecutively to a sentence on a second charge, which conviction the Appellant does not appeal. Leave to appeal out of time against conviction was granted on 11 December 2003.

2. The transcript [B 11 - B 12] shows that on 18 August 2003 when plea was taken the Appellant pleaded guilty to Charge 1. This surprised the Duty Lawyer who advised the court the plea was inconsistent with his instructions and the case was stood down for enquiries. About an hour later, the plea was retaken. The Appellant pleaded guilty to both charges and admitted the Summary of Facts which was interpreted to him in Putonghua, the Appellant being a Mainlander.

The facts

3. The facts showed that the Appellant was seen by police on mobile patrol. One of the officers walked towards the Appellant, who did not notice his approach. When the officer was about ten feet from the Appellant, he revealed his identity and the Appellant turned to look at him. At the same time, the officer saw an opened, folding knife drop from the Appellant's right hand. The folding knife was 11 cm long, with a 5 cm blade and had attached to it a metal earpick about 8 cm long. The Appellant ran away into a rear lane, but was intercepted after a short chase. When asked why he ran away on seeing the police, the Appellant said "Give me a chance; I'll go back to the Mainland." He had no proof of identity on his person.

4. A handwritten note was added to, and formed part of, the Admitted Facts. It read as follows:

"The Defendant admitted that he hid himself in the rear lane and possessed E1, E2 with the intent of earning a meal there"

(E1 was the folding knife and E2 was the earpick)

5. The Notice of Appeal against conviction dated 16 December 2003 referred to the general grounds of appeal set out in the Appellant's affirmation of 2 December 2003.

6. The Magistrate noted in his Statement of Findings (B10) that the Appellant had admitted the facts without equivocation. He was seen at 5:30 a.m. in a rear lane holding a knife, he immediately dropped the knife when confronted by police and ran. When caught he admitted he had the knife having hidden himself in the lane with the intention of earning a meal there. The Magistrate said that there was only one inference to be drawn from those facts and he drew it. He found the Appellant was in possession of the knife for an unlawful purpose.

7. The Appellant now requests permission to withdraw his plea, on the basis that his plea was equivocal. His affirmation sets out his situation and his reasons for applying to reverse his plea.

Appellant's Affirmation

8. The Appellant was a Mainlander aged 19. He had a clear record in China and in Hong Kong. He speaks Putonghua, not Cantonese, which he could scarcely understand. He had been carrying the knife for some 3 years since leaving school because once he had been robbed and he felt it would allow him to protect himself against further attacks. He also used it for cutting up food and similar tasks. He came to Hong Kong hoping to find a job and was arrested on his 5th day in Hong Kong, while he was looking for food. He claimed: "I was not carrying the knife, nor was it open. In fact it was closed and in my trouser pocket". That conflicts with the facts he admitted before the Magistrate.

9. The Appellant claims police found the knife when searching him and he told them he used it for cutting food. He thought they might have misunderstood what he said; he denied saying that he had the knife "with the intent of earning a meal there".

10. The Appellant was charged on 16 August 2003 and brought to Court on 18 August 2008. He affirmed that the Duty Lawyer who represented him had not explained the meaning of "unlawful purpose", with which phrase he was unfamiliar, nor did he remember his going through the facts in detail before he went into court.

11. The Duty Lawyer recommended that he plead guilty to both charges. The Appellant complained that although he told the Duty Lawyer he had the knife to scare the people away he was not asked to explain why. He also told the Duty Lawyer he cut food with the knife. The Duty Lawyer said the court would not believe him and he would be sent to prison.

12. When the Appellant went to court, he initially pleaded guilty to Charge 1. The hearing was adjourned so the lawyer could speak to him. He was told, allegedly, that the judge would be angry because of the trouble he caused the court and would give him a heavy sentence. He repeated that he possessed the knife to scare people away because he had been robbed before; again the lawyer told him the judge would not believe him.

13. For those reasons he pleaded guilty to Charge 1. He said that when the Summary of Facts was read to him he objected to the part which said he had dropped the knife from his right hand. The interpreter told him it was not important and there was no need for him to challenge it. Therefore he agreed to what had been read without making his objection known to the court.

14. He was told that his lawyer told the Magistrate he had the knife to scare people away, but had no specific intention to commit other offences with the knife. The Appellant has been advised that was inconsistent with his plea.

15. The Appellant claims he stated (B3) that he did not intend to attack people with the knife, nor commit other unlawful acts. He was told the second part was translated wrongly into English.

16. The Appellant applied for legal aid for his appeal. He explained what had happened in court to a Legal Aid Clerk and was assigned counsel. Counsel told him his reasons for having the knife could possibly provide a defence in law to Charge 1, but it was a matter for the court whether he was given leave to appeal out of time against his conviction and whether it would allow him to reverse his plea.

Duty Lawyer Affirmation

17. The Duty Lawyer filed an affirmation setting out the DLS attendances on the Appellant. Following usual practice, the court liaison officer took initial instructions from the Appellant and informed counsel that the Appellant would plead not guilty to Charge 1, but guilty to Charge 2. A copy of the Duty Lawyer's record of the personal particulars and initial instructions of the Appellant was annexed to the affirmation.

18. That record confirms that his initial instructions were to plead not guilty to Charge1, that no bail application was to be made, and that he had no complaint about his treatment since his arrest. All that counsel need do was fix a trial date. Before the plea was taken, counsel did not give the Appellant any advice or recommendation.

19. When the case was stood down the Duty Lawyer interviewed the Appellant with the assistance of Ms Ng, a DLS court liaison officer who was fluent in both Punti and Putonghua and who served as interpreter.

20. Having refreshed his memory from DLS's records, counsel confirmed that he explained the POOW charge, explained the brief facts to the Appellant and noted his admission that he was carrying the knife for the purpose of scaring people. He advised the Appellant of the consequences of pleading guilty, informing him of the sentencing discount and told him that if a not guilty plea was entered the case would be adjourned to a date for trial.

21. The Appellant asked about his chances of success at trial. Counsel informed him that based on his instructions and the information available, he did not rate his chances of success very highly. He stressed that any decision to plead guilty must be the Appellant's own and pointed out that the Appellant could still plead guilty on the date of trial, even if he entered a plea of not guilty on the plea day.

22. The Appellant said he would plead guilty to both charges. He agreed the facts and counsel took instructions for mitigation. The Appellant pleaded guilty to both charges and, the pleas being consistent with his instructions, counsel mitigated for him.

Respondent's Submission

23. The Respondent sought leave, which was granted, for the statements of the court prosecutor, Lai Ka Man, Gladys and the statement and the supplemental statement of Ng Kiu Ming, Rebecca, the court liaison officer to be admitted on appeal as additional evidence.

24. Ms Ng confirmed the procedural history. She read the brief facts to the Appellant in Putonghua and he confirmed he did not dispute them. She understood that counsel told him Charge 2 usually attracted a sentence of about 15 months, while Charge 1 would attract a custodial sentence after conviction.

25. In a supplemental statement, Ms Ng confirmed that having perused documents at the DLS office, she found there were two versions of the facts. One, (Referred to as enclosure 1) is quoted above; the second, enclosure 2, had been crossed out, but she did not know why. She thought it possible that the uncrossed brief facts was the version read in court. The other one was crossed out, possibly signifying that it had not been used. Enclosure 1 was the facts without the handwritten addendum.

Affirmation Lai Ka-man

26. Ms Lai the court prosecutor on plea day perused the charge and the facts and returned the file to the police to find out whether there was more evidence to support Charge 1. Sometime before the case was called she received the papers with amended facts attached; the amendment being the hand-written addendum. A copy of the amended facts was served on the Liaison Officer whose attention was drawn to the additional facts about Charge 1. Ms Lai confirmed that when the plea was taken initially, a plea of guilty was entered by the Appellant.

Argument

27. The Appellant's counsel submitted that the Appellant's plea was involuntary and induced by fraud or fundamental mistake and asked the court to find it a nullity. The Respondent argued that the Appellant had to make out the grounds on which it was alleged the equivocal plea had been made. The Appellant was required to bring forward sufficiently persuasive material to persuade the court.

28. Discrepancies between the affirmations of the Appellant and of trial counsel were examined by the Respondent, particularly the Appellant's claim that he was pressured into admitting the offence. Such pressure was denied by counsel and there is no indication from any other source that such pressure was exerted. The facts had been explained and given that the parties were proceeding on those facts, even if the written addition had not been noted or considered, there remained sufficient facts on which the Magistrate could find the Appellant guilty.

29. That the Appellant was an illegal immigrant, carrying an opened folding knife in the street, in the early morning, who turned and ran when police approached him, was said by the Respondent to enable the Magistrate to infer irresistibly that the Appellant had the weapon for an unlawful purpose.

30. The Appellant claimed the mitigation was inconsistent with his plea and the passage referred to was "that the Appellant came to Hong Kong to find a job and earn some money and go back to China as soon as possible." He carried the knife to scare people away. He did not have any specific intention to commit other offences with the knife.

31. Counsel for the Appellant referred to a number of authorities and relied in particular on HKSAR v Wong Chi Yuk [2000] HKCFI 428, where the cases relevant to an application such as this were examined in some detail. A summary of those authorities set out the circumstances any one of which, if applicable, could render an unequivocal guilty plea a nullity.

32. Counsel submitted that three of those circumstances pertained:

"(4) The plea was tendered involuntarily e.g. induced by duress or misrepresentation or was not an exercise of free choice.

(5) The plea was induced by fraud or fundamental mistake; or

(6) The plea did not result from a deliberate and informed decision."

I do not accept that (4) is applicable despite Appellant's assertions. I have considered the circumstances surrounding the advice given and the plea and believe that there is uncertainty as to whether the hand-written addendum was brought to the Appellant's attention before he pleaded to the facts.

33. Having considered the submissions I note the following:

The Appellant was aged 19 years and spoke Putonghua only. Although the facts were read to him prior to his entering a plea before the Magistrate it is not clear which of the two versions was read. The transcript (B2U) shows that the facts were paraphrased by the interpreter when they were put to the Appellant in court and there is no dispute that the hand-written addendum, which sheets home the element of unlawful purpose, was not put to him at all when he entered his plea.

34. It is possible that the Appellant would have maintained his original course and entered a plea of Not Guilty if he had been aware of the existence and gravamen of the hand-written addendum.

35. For these reasons, although I do not accept wholly all that the Appellant puts forward in his affirmation, I consider it is in the interests of justice that the Appellant be granted leave to reverse his plea. Accordingly, I allow the appeal, quash the conviction and order a retrial before another Magistrate. As the appeal against conviction has been allowed, it follows that the appeal against sentence is allowed also and the sentence on Charge 1 is quashed. An early date for trial is to be given.

36. In adopting this course I wish to make it very clear that no blame attaches to the Duty Lawyer Scheme staff, or counsel, or the Magistrate all of whom carried out their functions in an entirely proper manner.

37. However, I must comment that it is highly undesirable for court interpreters to paraphrase or abridge something as important as the brief facts, as apparently was done here. Normally the Magistrate and counsel would follow the brief facts in the English version, so if a dockside interpretation was being done, as it often is, sotto voce, differences in the version put might not be noticed even by bilingual Magistrates, counsel or prosecutors.