HKSAR v Chan Chi Ho Lincoln
 HKCFA 64
Court of Final Appeal
FACC No. 18 of 2018
Ma CJ, Ribiero PJ, Fok PJ, Cheung PJ, Phillips NPJ
21 December 2018
The Appellant was driving a private car when his offside front wheel pressed against the left foot of a pedestrian who was crossing the road from a safety island. The Appellant pleaded guilty to a charge of careless driving. After the summary of facts was read out and agreed, the Appellant was convicted by the Magistrate.
During mitigation, the Appellant admitted that he was careless, but he contended that the pedestrian had unexpectedly extended her foot onto the road and so he could not avoid her and he had already stopped the car immediately.
The court adjourned the hearing to obtain a community service report before sentencing. In the report, the Appellant insisted he was innocent and that he only pleaded guilty in order to save time. During the adjournment, the Appellant obtained legal advice and at the resumed hearing made an application to the court to reverse his guilty plea on the ground that his plea was equivocal and the conviction could not stand.
The Magistrate agreed that the injured pedestrian may have been partly responsible for the accident, however it did not mean that the Appellant was not driving carelessly at the time. There was thus no inconsistency with the guilty plea, the plea was unequivocal and the Appellant’s application was dismissed.
On appeal, the Court of First Instance upheld the Appellant’s conviction, the Judge observing that the only issue was whether the Appellant’s plea was equivocal. As the Magistrate had clarified with the Appellant during his mitigation submission and confirmed his admission of driving carelessly, there was nothing improper with the way that the Magistrate dealt with the matter.
The Appellant brought a further appeal to the Court of Final Appeal against the decision of the Court of First Instance.
The Court of Final Appeal clarified the legal principles on the reversal of guilty pleas:
A plea is equivocal if the defendant adds to his plea of guilty a qualification which, if true, may show that he is not guilty of the offence charged. The Court cannot accept an equivocal plea – it has no discretion.
Whether a plea is equivocal is to be determined at the time it is made. If, after conviction, the defendant says to the court during mitigation, or to a probation officer preparing pre-sentence reports, something that if it had been said at the time of the plea would amount to a qualification, this does not turn the unequivocal plea into an equivocal one.
A conviction is not complete, and the court does not become functus until sentence is passed. So, in the scenario described in 2 above where something emerges after conviction but before sentence which if true may show that the defendant is not guilty of the offence charged, the court has a discretion to allow a change of plea.
The discretion to allow the reversal of an unequivocal plea after conviction is an unfettered one although it should be exercised in clear cases and very sparingly. The way the court exercises its discretion must turn on the facts, and the overriding consideration must be the interests of justice.
Held, allowing the appeal, that:
Although the plea was correctly decided as unequivocal, this was not the end of the matter. What emerged during mitigation and before the probation officer should have been considered by the Magistrate in exercising her discretion when deciding whether it was in the interests of justice to allow the application to reverse the plea. The matter was not remitted back to the Magistracy for trial as the Defendant had completed his community service order.
This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: Equivocal Pleas