THE QUEEN v. CHAN SHUN

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1272 OF 1990

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BETWEEN

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JUDGMENT

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1. The appellant appeared in the Magistrate's Court on 8th August 1990 charged with the offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, an offence contrary to s.38(1) (b), of the Immigration Ordinance. The record of what happened reads as follows:

"Charge read and explained to defendant in Punti.

 

Plea: I plead guilty.

 

Statement of Facts agreed.

4. The facts with which the appellant agreed read as follows:

"On 23rd July 1990, the defendant was arrested by the Police at Wanchai for being an illegal immigrant from China. He was referred to the Immigration Department for further investigation.

 

In an interview under caution, the defendant admitted that he entered Hong Kong illegally from China on 21st July1990 and had since remained here without permission. (Subject matter of the charge) He also admitted that this was his third attempt of sneaking into Hong Kong.

 

Record check confirmed that the defendant had previously sneaked into Hong Kong from China on the following occasions: -

5. The defendant was charged on 7th August 1990."

6. He now seeks to appeal against conviction, and attempts to jump the hurdle provided by S.113 of the Magistrate's ordinance, which prohibits an appeal where the appellant has pleaded guilty, by contending that his plea was equivocal.

7. In the Magistrate's Court the appellant was unrepresented. Here he is represented by Mr. Philip Wong, of counsel, who contends on the basis of the Queen v. Durham Quarter Sessions ([1952] 1 Queen's Bench 466), and the Queen v. Blandford Justices ([1966] 1 All England Reports 10210 that the plea having been equivocal, his conviction should be quashed, and that he Should be sent for trial as if he had pleaded not guilty.

8. Mr. Bailey for the respondent has referred me to S(an infant) v. Recoraer of Manchester ([1971] A.C. 481) and P. Foster (Haulage) Ltd. v. Roberts ([1978] 2 All E.R. 751). Although the infant's case is a House of Lord's decision, I will reada passage from Foster because it encapsulates the principles enunciated in the House of Lords' decision to the extent that they are applicable in this case. At pages 754 to 755 of Foster, O'Connor, J., who delivered the judgment of the court said:

"A clear distinction must be drawn between the duties of a court faced with an equivocal plea at the time it is made and the exercise of the court's jurisdiction to permit a defendant to change an unequivocal plea of guilty at a later stage of the proceedings. A court cannot accept an equivocal plea of guilty: it has no discretion in the matter; faced with an equivocal plea the court must either obtain an unequivocal plea of guilty or enter a plea of not guilty. For a plea to be equivocal the defendant must pad to the plea of guilty a qualification which, if true, may show that he is not guilty of the offence charged. An example of this type of qualification is found, where a man . charged with handling a stolen motor car pleads 'guilty to handling but I did not know it was stolen'. It is not every qualification which makes a plea of guilty equivocal; for example, the burglar charged with stealing spoons, forks and a camera, who pleads 'guilty but I did not take the camera' is making an unequivocal plea to burglary.

 

Once an unequivocal plea of guilty has been made, then the position is entirely different. From this stage forward until sentence has been passed the court has power to permit the plea of guilty to be changed to one of not guilty, but the exercise of this power is entirely a matter of discretion. This is clearly stated by all of their lordships in S (an infant) v. Manchester City Recorder."

Later, he continues as follows:

                 "three questions have to be asked:

9. Now dealing with those questions in turn I say that the answer to question 1 is that the plea was unequivocal. The appellant said that he was guilty in answer to the charge, and admitted the proof of the facts which constituted the offence charged. He added nothing by way of qualification which, if proved, would have shown that he was not guilty of the offence charged. The learned magistrate dealing with what the appellant said in mitigation, said this in his Statement of Findings:

"The record shows that he said am not guilty". This was after he had pleaded guilty and agreed the facts, and after he had purported to ask for political asylum and advance his grounds therefor. I took the statement am not guilty? delivered at this point, as being an assertion of moral blamelessness. It clearly was not and could not be the raising of any defence."

I, therefore, agree with Mr. Bailey when he submits that this appellant's remarks could not be interpreted as an equivocal plea.

10. As to question 2, the material thing that happened was that the appellant said he wanted political asylum and was not guilty. It was solely a matter for the learned magistrate's discretion whether an opportunity to reverse plea should then have been allowed. In dealing with that development, the learned magistrate said this:

"If the appellant cane here to apply for political asylum, that would not maze his landing lawful. Had he landed unlawfully and then surrendered at the first opportunity and asked for asylum, this might have raised the issue of whether the offence was completed, but the facts as admitted by the appellant showed that he had been arrested on 23rd July after landing on 21st July. In other words, having landed unlawfully, he had remained in Hong Kong for 2 days without the authority of the Director of Immigration."

11. Whether or not one agrees with the learned magistrate's observation that if the appellant had surrendered at the first opportunity and asked for asylum, that this might have raised the issue whether the offence was completed, there was no point in allowing a change of plea in any event. The acceptance of the appellant's assertion could maze no difference on the basis of the admitted facts as regards the question of his guilty.

12. It therefore follows that the answer to question 3 is that the learned magistrate did not exercise his discretion wrongly by proceeding to sentence without inviting the defendant to change his plea to one of not guilty.

13. On the basis of the answers I have given to the questions proposed in Foster's case I find that there is no basis for allowing the appeal against conviction in this case. It must accordingly dismissed.