Introduction

In some rare scenarios where a defendant is legally represented but is not properly advised by his legal representatives before making a guilty plea (or a defendant is unrepresented), the defendant may find himself in need of making an application to reverse his plea on the ground that when the guilty plea was made, it was not made unequivocally. In the recent case of HKSAR v Chan Chi Ho Lincoln [2018] HKCFA 64 (the “Chan Case”), the Court of Final Appeal (“CFA”) clarified the principles governing the court’s exercise of discretion in relation to the defendant’s application for reversal of guilty plea.

Background facts

In the Chan Case, the defendant was charged for careless driving and it was the police’s case that the defendant failed to pay sufficient attention when driving pass a safety island. As a result the head of the defendant’s vehicle hit and injured a pedestrian who attempted to cross the road at the material time.

At the Magistrates’ Court level, the defendant pleaded guilty before the Magistrate by admitting the brief facts provided by the police and he was convicted accordingly. However, during the defendant’s submission for mitigation, the defendant made several allegations which, taken together, were contradictory with the police brief facts. The same allegations were repeated during the defendant’s interview with the community service officer. The defendant then made an application to the Magistrate to reverse his guilty plea on the basis that his plea was equivocal and the court should not have accepted the same.

The Magistrate refused the application on the sole basis that the guilty plea was not equivocal. The defendant appealed to the Court of First Instance (“CFI”) and the Magistrate’s decision was upheld by the CFI judge. The defendant further appealed to the CFA.

Laws governing reversal of guilty plea

The CFA was of the view that the rulings from local courts regarding the exercise of discretions for the application of reversal of guilty plea are far from consistent and it is therefore necessary to clarify the relevant principles.

The starting point is that the court must not (and does not have discretion to) accept a guilty plea that is equivocal in nature. This means that where the guilty plea is qualified or is made subject to certain conditions at the time it is made by the defendant, the court must not accept such guilty plea. The question as to whether a guilty plea is equivocal in nature shall be determined at the time when the plea is made. In other words, if the relevant qualifications are not attached to the plea when it is made, the plea would be unequivocal in nature even if any of such qualifications is raised in later occasions.

As the CFA pointed out, two common mistakes shared by the local courts and Magistrates are, first, that they consider their discretion to allow reversal of guilty plea cease at the point when the defendant is convicted for the relevant charge (even before sentencing is passed). Secondly, it is also wrong to consider an equivocal plea as the only basis on which a reversal application should be allowed. As a result of these common misconceptions, some of the judges have over the years resorted to an artificial practice by twisting an unequivocal guilty plea into an equivocal one based on the defendant’s assertions raised after his plea is made. The CFA emphasised that the process of “conviction” does not complete at the moment the defendant is convicted for his charge but only ends after the passing of sentence and the court is entitled to exercise its unfettered discretion regarding the defendant’s application of reversal any time before the passing of sentence (even after the defendant is convicted) if, for example, there is material produced after the conviction (but before sentencing) showing that the defendant may not be guilty for the charge.

Other examples of situations where the court will likely exercise its discretion to allow withdrawal of guilty plea include the scenario where, after an unequivocal plea of guilty is made, it becomes apparent that the defendant did not appreciate the elements of the offence to which he was pleading guilty. In addition, justice will normally demand that the defendant be permitted to reverse its plea if the defendant has pleaded guilty to a charge which the prosecution failed to establish.

To this extent, the CFA held that while the magistrate was correct in ruling that the defendant’s guilty plea was unequivocal in nature in the Chan Case, she was wrong, as a matter of approach, in refusing the defendant’s application of reversal solely on the basis that the guilty plea is an unequivocal one, without considering how her discretion should be exercised in light of the defendant’s assertion made during mitigation and his discussion with the community service officer.

Conclusion

The Chan Case serves as a good clarification of principles governing the court’s exercise of discretion regarding the defendant’s application to reverse his guilty plea. Importantly, it is now clear that the court’s discretion to permit withdrawal of guilty plea does not cease unless and until the sentence is passed and it is entitled to take into account materials that transpire after the conviction is made in determining whether to allow the defendant’s withdrawal of plea.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.