HKSAR v. HUANG DONG PING
- Citation
- HKSAR v. HUANG DONG PING
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of First Instance
- Decision
- 18 February 2010
- Posture
- Criminal Appeal From Magistrates' Court / Determination of Appeal by Court of First Instance (judgment)
- Case number
- HCMA1024/2009
- Language
- English
More details
- Court
- Court of First Instance
- Decision
- 18 February 2010
- Posture
- Criminal Appeal From Magistrates' Court / Determination of Appeal by Court of First Instance (judgment)
- Case number
- HCMA1024/2009
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appeal is dismissed because the appellant failed to demonstrate that his guilty pleas were a nullity; the pleas were taken in Putonghua with an experienced solicitor confirming the pleas and facts, and the appellant's assertions (nervousness, denial, partial admission, lack of recollection, unwillingness to be punished) were insufficient to invalidate the pleas.
Court disposition
Appeal dismissed
Orders
- Appeal dismissed.
- Convictions and sentences confirmed: 15 months' imprisonment for the immigration offence and two weeks' imprisonment for the theft offence to be served concurrently.
02
Material facts
Parties
HKSAR
Respondent Counsel: Ms Anna LaiAmounts and remedies
- Immigration Sentence (months): 15
- Theft Sentence (weeks): 2
03
Procedural history
Posture
Criminal Appeal From Magistrates' Court / Determination of Appeal by Court of First Instance (judgment)
04
Questions and positions
Legal issues
- 01
Whether a guilty plea can be set aside as a nullity permitting appeal
- 02
Whether the appellant's statements (nervousness, denial, partial admission, ignorance of plea) invalidated his guilty pleas
Party arguments
- Applicant
- The appellant, in person, asserted he refused to admit guilt, was very nervous, admitted one charge but not the other, did not know what he had pleaded to and did not wish to be punished.
- Respondent
- Prosecution confirmed that the appellant, represented by an experienced solicitor, pleaded guilty to both charges after the summary of facts establishing the elements was read and admitted; the pleas were valid and convictions and concurrent sentences were appropriate.
05
Court’s reasoning
Legal principles
- 01
Court of First Instance judgment in this matter
A plea of guilty is ordinarily final and can only be impugned where the plea is shown to be a nullity.
- 02
Magistrates' sentencing procedure as reflected in this judgment
A valid conviction based on a guilty plea requires that the accused understand the charge and that the essential elements are established by the summary of facts.
- 03
Court of First Instance judgment in this matter
The burden is on the appellant to demonstrate good reason why a guilty plea should be treated as a nullity enabling appeal.
06
Ratio, limits and disposition
Ratio decidendi
The appeal is dismissed because the appellant failed to demonstrate that his guilty pleas were a nullity; the pleas were taken in Putonghua with an experienced solicitor confirming the pleas and facts, and the appellant's assertions (nervousness, denial, partial admission, lack of recollection, unwillingness to be punished) were insufficient to invalidate the pleas.
Obiter and limits
- Notionally an appeal is possible after a guilty plea if the plea is shown to be a nullity.
- Personal nervousness, equivocal denials or claimed lack of recollection do not automatically render a guilty plea a nullity.
Court disposition
Appeal dismissed
- Appeal dismissed.
- Convictions and sentences confirmed: 15 months' imprisonment for the immigration offence and two weeks' imprisonment for the theft offence to be served concurrently.
Source and reliance status
Court of First Instance · 18 February 2010
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of First Instance
Judgment· 18 February 2010
bjbj qgs^) __ Before: Hon. Wright J in Court Date of Hearing and Judgment: 18 February 2010 ___
JUDGMENT ___ On 30 November 2009 the appellant appeared before Ms Bina Chainrai at Eastern Magistracy. He was represented by Mr Solomon Chong, an experienced solicitor, acting on the instructions of the Duty Lawyer Scheme. The appellant faced one charge of unlawfully remaining in Hong Kong without the permission of the Director of Immigration contrary to s. 38(1)(b) of the Immigration Ordinance, Cap. 115, and one charge of theft contrary to s. 9 of the Theft Ordinance, Cap.
210. Each charge was put to the appellant in Putonghua. He entered a plea of guilty to each. The summary of facts, which established the essential elements of each offence, were read to the appellant who admitted them. Mr Chong confirmed both the pleas and the agreement of the facts. Unsurprisingly, the Magistrate convicted the appellant. She sentenced him to undergo imprisonment for 15 months on the immigration offence and two weeks on the theft charge, the sentences to be served concurrently. The appellant appeals his conviction. Notionally, it is possible to appeal even where conviction has resulted from a plea of guilty. This course is open where, for good reason, the plea can be shown to be a nullity. The appellant has singularly failed to demonstrate that in this matter saying, variously, that he still refuses to admit being guilty; that he was very nervous on the day he appeared in the magistracy; that he admits one charge but not the other; that he does not know to what it was he pleaded guilty; that he does not wish to be punished. The appeal is dismissed. (A R Wright) Judge of the Court of First Instance High Court Appellant in person Ms Anna LAI, Senior Public Prosecutor of the Department of Justice for the HKSAR
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