HKSAR v TO Kit-yan（杜潔恩）

CACC 43/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 43 OF 2014

(ON APPEAL FROM HCCC NO. 507 OF 2013)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1. The applicant pleaded guilty on 22 November 2013 before a magistrate to a charge of trafficking in a dangerous drug, namely 143.09 grammes of a crystalline solid containing 102.28 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She was committed to the High Court for sentence where, on 5 February 2014, having confirmed her plea of guilty, she was sentenced by Deputy Judge D’Almada Remedios to 6 years and 4 months’ imprisonment.

2. On 11 February 2014, the applicant gave notice of her intention to apply for leave to appeal against sentence.  Notice was properly made within the prescribed time.  On 14 April 2014, the applicant gave further notice of her intention to apply for leave to appeal against conviction.  By that stage, she was more than 5 weeks out of time since the confirmation of her plea in the High Court.

3. Her applications for leave to appeal against sentence and conviction out of time were heard before the Single Judge[1] on 27 March 2015, and leave in respect of both applications was refused on the same day.

4. The applicant renewed both of her applications on or about 1 April 2015, but abandoned the renewal of her application for leave to appeal against sentence on 26 January 2016.  However, she has proceeded with her application for leave to appeal against conviction out of time, although no further grounds of appeal have been submitted in addition to those filed with the court for the purpose of her previous leave application.

5. On 3 February 2016, we refused the applicant leave to appeal against conviction out of time and said we would hand down our reasons later.  These are our reasons.

The facts

6. On 27 July 2013, at around 12:42 pm, the applicant left Hong Kong through Lok Ma Chau Control Point and subsequently returned from the Mainland about two hours later, whereupon she was intercepted by police officers.  Upon being searched, the applicant admitted that she was carrying five pellets of white powder in her private parts.  In a subsequent video recorded interview, the applicant further admitted that she agreed to bring heroin into Hong Kong for HK$500 for a person named “Ah Hung”.  The estimated retail value of the seized drugs was HK$117,619.

Grounds of appeal against conviction out of time

7. The applicant filed her notice of application for leave to appeal against conviction more than 5 weeks out of time from the expiry of the appeal notice period.  The reason given for the delay in filing the notice of application was, according to her affirmation sworn on 14 April 2014, that “there is discrepancy between my documents and the contents of the court’s judgment I received on 4^th and 8^th April”.

8. In a further affirmation dated 20 August 2014, the applicant asserted that she had been misled by the police and her lawyers into pleading guilty.  She was told to plead guilty in order to obtain a discount on sentence.  Subsequently, she found that there were some inaccuracies in her record of interview.  She also complained that her counsel at trial did not have sufficient time to prepare her case.  Further, the Deputy Judge did not allow an adjournment for further medical reports to be submitted at her hearing.

9. On 19 September 2014, the applicant applied for an order to adduce additional evidence for the purpose of her appeal, namely two statements addressed to the Bar Free Legal Service Scheme, and two medical reports from Queen Elizabeth Hospital and Castle Peak Hospital dated 28 January and 19 February 2014 respectively.

Respondent’s submissions

10. With regard to the applicant’s appeal against conviction out of time, Mr Cheng, for the respondent, submitted that there had been ample opportunity for the applicant to study the case before entering her guilty plea and admitting the summary of facts.  There was also nothing to suggest that the applicant had not been fit to plead or that the plea did not result from her deliberate and informed decision.  Therefore, there was nothing to suggest that the conviction was either unsafe or unsatisfactory.

11. As for the late application for leave to appeal against conviction out of time, Mr Cheng submitted that no good reason has been given as to why leave should be granted out of time in circumstances where there is nothing unsafe or unsatisfactory about the conviction.

Consideration

12. The record of proceedings before the magistrate’s court shows that the applicant was represented by Senior Legal Aid Counsel on 22 November 2013, on which date she pleaded guilty before a magistrate.  On that occasion, a Summary of Facts was read to her and she confirmed that she had read and fully understood the contents.

13. More than 10 weeks later, on 5 February 2014, the applicant confirmed her plea of guilty and the same Summary of Facts before the High Court.  On that occasion, she was represented by a different counsel and solicitor.  Following that hearing, on 11 February 2014, the applicant made a timely application for leave to appeal against her sentence.  However, it was not until 14 April 2014 that the applicant indicated for the first time that she wished to appeal against her conviction.  Her applications for leave to appeal against sentence and conviction out of time having been refused by the Single Judge, the applicant now renews her application for leave to appeal against conviction out of time only.

14. The reasons which have prompted this application for leave to appeal against conviction are as follows:

(i)   The applicant was misled by the police and her lawyers into pleading guilty;

(ii)  There were inaccuracies in her record of interview;

(iii)  The applicant did not have enough time to discuss the case with her counsel before the High Court hearing on 5 February 2014;

(iv)  Certain medical reports were not produced in time for the hearing on 5 February 2014, and the Deputy Judge did not permit an adjournment for the reports to be obtained.

15. In respect of the first complaint, we note that the applicant pleaded guilty and agreed the Summary of Facts when she was properly represented in the magistrate’s court, and then waited 10 weeks before confirming her plea of guilty and the same Summary of Facts in the High Court when she was differently represented.  She then waited a further 9 weeks before lodging notice of her intention to appeal against conviction out of time, by which time she was more than 5 weeks out of time.  In the light of that chronology, we can see no justification whatsoever for allowing the applicant to change her plea on the basis that her mind and intention did not go with her actions in pleading guilty to the offence.  If, as she claims, she was told she would benefit from a discounted sentence if she pleaded guilty, then she was given proper advice.  In any event, she can hardly have been ignorant of the benefits of pleading guilty given her extensive criminal record going back to 1998, during which time she has been sent to prison on several occasions.

16. Furthermore, the evidence against the applicant was overwhelming. The applicant admitted that she had a substantial quantity of dangerous drugs inserted in both her anus and vagina and she in fact discharged a total of 5 pellets of heroin from her body whilst in custody in hospital.  It is difficult to see what conceivable defence she could have had, and none has been advanced before us in this application.

17. As for any inaccuracies in the applicant’s record of interview, the applicant has not explained what they are or why they are of any consequence.  In any event, a brief summary of what she had said in her video recorded interview was incorporated in the Summary of Facts and the applicant was well aware of the effect of that summary, having pleaded guilty on the basis of the Summary of Facts and subsequently confirmed its truth and accuracy.  Whatever she said in her record of interview did not change the essential fact that she had crossed the border with a substantial quantity of heroin concealed in her person.

18. In relation to the applicant’s complaint that she did not have enough time with her counsel before the hearing in the High Court, she accepts that she saw her counsel about 10 days before the hearing at Tai Lam Centre for Women.  Given that this was a plea of guilty transferred from the magistrate’s court to the High Court, and given that no notice of her intention to change that plea was given until 9 weeks after the hearing in the High Court, her conference with counsel was entirely appropriate and unexceptional in preparation for her plea in mitigation.

19. Finally, in respect of the two additional medical reports, we agree that it was unfortunate the reports were not before the Deputy Judge in addition to the one from Tai Lam Centre for Women, which was before the court. However, Mr Cheng properly does not object to us now having them before us and, having read them, we do not think they take the matter any further.  Such psychological problems as the applicant may have cannot provide any excuse or mitigation for such a serious offence.  Moreover, there is no doubt that the applicant will receive the kind of psychological help she may need whilst she is in custody.

Conclusion

20. For the above reasons, we did not find any merit in the applicant’s grounds of appeal nor was there any reason to hold that her plea was in any way equivocal.  Accordingly, we refused to grant her leave to appeal against conviction out of time.

Mr Raymond Cheng SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person