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Yeung Wai Hung v The Queen

Judgment Cited authorities 14 Cited in Precedent Map Related
Vincent
Judgment Date23 July 1990
Year1990
Judgement NumberHCMP1541/1990
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP001541/1990 YEUNG WAI HUNG v. THE QUEEN

HCMP001541/1990

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 1541 OF 1990

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IN THE MATTER of an application for Judicial review

and

IN THE MATTER of Order 53 of the Rules of the Supreme Court

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BETWEEN

YEUNG WAI HUNG

 Applicant

AND

THE QUEEN

 Respondent

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Coram: Hon. Liu, J. in Court

Date of hearing: 29 June & 3 July 1990

Date of delivery of judgment: 23 July 1990

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JUDGMENT

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1. The applicant stood charged with two offences before Mr P.J. Line, a magistrate. He pleaded guilty to the first charge and the second charge as amended. His pleas were "vacated" by the magistrate. He took the magistrate to appeal on a Case Stated. The Case Stated was reserved for the consideration of the Court of Appeal. The points of law stated in the Case did not arise from a final adjudication. The applicant was held to have no right to apply for a Case to be so stated. The appeal was dismissed. The applicant invoked s.128 of the Magistrates Ordinance and the supervisory jurisdiction of this Court for judicial review pursuant to leave granted by Deputy Judge Suttill. This court was moved by Mr Miu. The motion was resisted by Mr Marshall for the magistrate.

2. I was exhaustively assisted on a broad spectrum. In the final analysis, I conclude, this motion falls to be decided within a very narrow compass, resting on the nature of the action taken by the magistrate, the applicant's alleged grievance and the relief prayed for in this review. The magistrate "vacated" the applicant's pleas. The complaint is that he had no power to "vacate". A mandamus is applied for to direct the magistrate to restore to the record the pleas of the applicant's. It is exclusively upon these substantive issues, the alleged wrongful act, the complaint and the desired remedy that this motion must be entertained. They should not be allowed to be clouded by the subsidiary prayers. The subsidiary prayers would, if granted, require the magistrate to proceed to sentence the applicant on the basis of the said pleas, to desist from trying the applicant on the amended charge of Assault Occasioning Actual Bodily Harm, and to make consequential declarations. They are procedural measures designed to implement the applicant's objective if and when it is achieved. Shortly put, the complaint is that the magistrate had no power to "vacate" the applicant's pleas, and the remedy sought is a mandamus ordering the magistrate to restore to his record these two pleas. In essence, these matters pertain to jurisdiction. Mr Miu, counsel for the applicant, raised belatedly also a question of prejudice. There are then only these relatively plain questions to which the Court must address itself.

3. On the 29th November 1989, the applicant and his co-defendant appeared before the magistrate jointly charged with an offence of common assault. He alone faced an additional charge of assaulting a police officer which was amended to resisting arrest for plea. He pleaded guilty to common assault and assisting arrest. His co-defendant pleaded not guilty to the joint charge of common assault.

4. The record kept by the magistrate was not made available. The parties before me were content to rely on the statements contained in the previous Case Stated and the papers filed in this motion.

5. Categorizations of the stages in the plea procedure may conveniently be taken from the judgment of Watkins L.J. in R v. Telford Justices, ex parte Darlington (1988)87 Cr. App. R. 194 at pp. 198 and 199. "Upon a plea of guilty being tendered to" a magistrate or "the making of a plea of 'Guilty' ", he may "accept (it) and cause (it) to be entered upon the record". He may refuse to accept "that plea and (order) a plea of 'Not Guilty' to be entered" upon the record.

6. What transpired here before the magistrate was described by him in paragraph 4(a) of his Case State :

"The (applicant) entered a plea of guilty to the offence of common assault and to the amended charge of resisting arrest." (Emphasis added).

It is worthy of note that the plea of the co-defendant was similarly described in paragraph 4(b) of the Case Stated :"The (applicant's) co- accused entered a plea of not guilty to the joint charge of common assault". (Emphasis also added) The trial of the co-defendant on the offence of common assault was thereupon proceeded with and evidence was heard. The "Not Guilty" plea of the co-defendant must have been accepted and entered on the record. The question that immediately leaps to mind is whether or not the applicant's pleas had likewise been accepted.

7. The magistrate was given the brief facts of the joint charge as the opening for the trial against the co-defendant for common assault. There was no indication as to whether the prosecution also submitted the same summary account of the facts for the charge against the applicant. In reality, for a joint charge, it may reasonably be inferred that the facts were not dissimilar. But "the (applicant) was not asked to agree any facts" though the magistrate had apparently taken the brief facts as applicable to him. The magistrate explained in paragraph 4(g) of his Case Stated thus :

"I was not minded to deal with the (applicant) on the scant information in the brief facts when I was about to hear evidence concerning the incident which both the (applicant) and his counsel were going to hear as well."

8. In the same sub-paragraph, the magistrate concluded :

"I did not accept his plea of guilty. I did not convict him."

9. The circumstances as given by the female victim of the assault were aggravating. She was yet to be cross-examined. However, the magistrate enquired of the prosecution as to why the joint charge was merely one of common assault. It was explained that the extent of the injuries and the contents of medical report had been unknown to the prosecution.

10. In paragraph 4(j) of his Case Stated, the magistrate set out his mental process :

"I was of the opinion that prima facie the charge was not appropriate. I considered the fairest course was to order a trial de novo before another magistrate, after an adjournment in which a medical report on the victim could be obtained, and that the (applicant's) pleas should be vacated and that there be opportunity to amend or substitute a new charge that reflected the gravity of the prosecution case. I consequently made the order directing the pleas be vacated and a trial be heard before another magistrate."

11. Thereupon counsel for the applicant objected to the proposed course with a submission "that the court had no jurisdiction to vacate a guilty plea after it was entered on the record and the trial of a co-defendant has commenced". The Case Stated did not challenge the accuracy of this basis of counsel's submission.

12. After the pleas had been "vacated", the applicant required the magistrate to state a Case, and it was thought more appropriate to re-list the case before the same magistrate on its return date, the 16th January 1990. It is now no longer felt aggreived that the case was re-listed before the same magistrate. Thereafter, the prosecution tendered an amended joint charge of Assault Occasioning Actual Bodily Harm in place of the charge of Common Assault. Under s.27(4) of the Magistrates Ordinance, the power to amend includes the power to substitute another offence for the one alleged in the information. The magistrate "amended" the joint charge accordingly as can be seen in paragraph 6(a) of the applicant's Notice of Application for leave for judicial review.

13. In the same sub-paragraph, the applicant encapsulated his substantive complaint :

"It is submitted that the magistrate erred in law in ordering the vacating of the guilty pleas which were unequivocal and there were (sic) no application by the applicant to withdraw or change the pleas to not guilty."

14. S.19(1) of the Magistrates Ordinance is a re-enactment of s.13(1) of the Magistrates Ordinance 1932, except for the word "reply" which has been amended to "rebuttal". Our former S.13 drew heavily from s.14 of the Summary Jurisdiction Act, 1848 (Jervis' Act) in which almost identical language was used, namely "if he thereupon admits the Truth of such Information or Complaint". These words, in effect, prescribe the magisterial plea taking process as known to us in this territory. See p.77 Stone's Justices' Manual Vol. 1, 1947 edn. (the earliest edition available in the Supreme Court Library).

15. What is the effect of a plea "entered by the (applicant)"as given in the magistrate's Case Stated?

"In the case of a summary trial, (once plea) had been taken .... that .... would clearly be treated as the beginning of the trial." See R. v. Phipps, Ex parte Alton [1964] 2 Q.B. 420 at p.427 per Lord Parker, C.J. When a defendant appears and pleads to a charge, he "appears to take his trial; although no evidence is offered by the prosecutor, that is still a hearing." See Tunnicliffe v. Tedd 136 E.R. 995 at p.998; (1848) 5 C.B. 553 at p.560 per Coltman, J. The hearing begins with the defendant pleading to his charge. How is his plea taken to be dealt with? A plea of guilty tendered to a magistrate shall be, if accepted, entered by him upon the record as implicitly directed by s.19(1) of the Magistrates Ordinance : "then the magistrate shall convict him or make an order against him according". Under s.19(1), we have throughout followed the English magisterial practice. At least as far back as 1954, the entering of a plea upon the record was noted as signifying its acceptance :

"If there is any...

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