HKSAR v. Dong Juan

CACC 242/2019

[2020] HKCA 441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 242 OF 2019

(ON APPEAL FROM HCCC NO 371 OF 2018)

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BETWEEN

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Before:  Hon Macrae VP in Court

Date of Hearing:  2 June 2020

Date of Judgment:  2 June 2020

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J U D G M E N T

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1.On 7 August 2019, the applicant pleaded guilty before Deputy Judge Bruce SC (“the judge”) to a single count of unlawfully trafficking in a dangerous drug; namely, 55 grammes of a crystalline solid containing 50.1 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She had been committed to the High Court for trial on 26 November 2018, having indicated her intention before a magistrate of pleading not guilty to the charge. It was only at a case management hearing some 6 months later, on 20 May 2019, that she signalled for the first time her intention of pleading guilty to the charge. Having pleaded guilty in accordance with her earlier indication, the judge sentenced the applicant to 7 years’ imprisonment.

2.Having filed Notices of Application for Leave to Appeal (by way of Form XI) on 13 August 2019 in respect of sentence, and on 24 December 2019 in respect of conviction, the applicant subsequently filed a Notice of Abandonment in respect of her application for leave to appeal against sentence, on 11 March 2020.  Under Rule 39 of the Criminal Appeal Rules, Cap 221A, her appeal against sentence was thereby deemed dismissed.  She now applies for leave to appeal against conviction out of time only.

The facts admitted before the High Court

3.On the evening of 30 April 2018, the police intercepted the applicant as she was entering a building at 50 San Tsuen Street in Tsuen Wan, New Territories (“the building”) and, upon a search of her person, discovered beneath her trousers two red packets each containing a transparent re-sealable plastic bag of dangerous drugs.  One of the bags was later found to contain 25.1 grammes, while the other was found to contain 25 grammes of “Ice” narcotic, together making the quantity particularised in the indictment.  Upon her arrest and caution, the applicant admitted that she had carried the drugs from the Mainland for a reward of HK$1,500.  The admission was post recorded by WPC 16014 (“PW1”) in her notebook and signed in confirmation by the applicant.

4.In a subsequent video recorded interview (“VRI”), the applicant explained her involvement in the offence.  She said, inter alia, that she was inveigled by a female acquaintance, whom she referred to as ‘Big Sister’, into carrying things from the mainland, and threatened that if she refused to do so her family would be harmed.  She said that out of fear, she complied.  All along, she claimed that she did not know the contents of the red packets and had never opened them.  However, when the police officers showed her the dangerous drug seized, the applicant said it looked like ‘white powder’.

5.The detail of the story she gave in her VRI was as follows.  At about 7 pm on 30 April 2018, the applicant was approached by an unknown person giving her an instruction from Big Sister. Accordingly, she went to Shenzhen via Lo Wu and took a taxi to Huanggang Port as instructed.  She was told that she would be followed during her journey.  Upon arriving at Huanggang Port, an unknown woman approached her and instructed her to pick up a black plastic bag in a planter next to the ladies’ washroom.  She picked out two red packets from the bag and put them in her trousers, before disposing of the bag.  Accompanied by the same woman, the applicant then returned to Hong Kong across the Huanggang border and took a shuttle bus back to Tsuen Wan.  When she alighted from the shuttle bus, another woman approached the applicant and instructed her to wait at a particular 7-11 convenience store in Tsuen Wan, where someone would collect the items from her. She was told she would earn HK$1,500 when she had completed the task.  The applicant waited in the store but nobody approached her.  She was then informed by yet a third woman that she was to wait at the rooftop of the building where she resided.  Accordingly, she was in the process of returning home when she was intercepted by police. 

6.In pleading guilty before the judge, the applicant specifically admitted knowingly possessing the “Ice” in question for the purpose of unlawful trafficking.

Mitigation

7.In mitigation, the applicant’s counsel acknowledged that, even though the applicant claimed that her family had been threatened, she complied with Big Sister’s demand when she knew she could have reported the matter to the police.  It was expressly accepted that the applicant had no defence to the charge.  It was further submitted that when the quantity was viewed arithmetically, a quantity of 50.1 grammes of “Ice” narcotic would attract a starting point of 9 years and 8 months’ imprisonment in accordance with the guidelines in HKSAR v Tam Yi Chun[1].

8.As for the discount, counsel accepted that the applicant had not pleaded guilty at the first available opportunity, but on the first day of her trial.  Nevertheless, she had thereby allowed an 8-day case to be vacated from the court list and was entitled to a discount of between 20 and 25%, pursuant to the guidelines set down in HKSAR v Ngo Van Nam[2]. Counsel urged the court to give the applicant a discount of 25% for her plea.

9.In respect of the cross border/international element, the judge was invited to exercise his discretion and give the applicant a nominal enhancement only for that factor. 

The judge’s sentence

10.The judge noted that the applicant was 45 years of age and of clear record.  She had arrived in Hong Kong from the Mainland in 2008. She was married but separated with three children aged between 7 and 25.

11.Applying the Tam Yi Chun guidelines, the judge adopted a starting point of 9 years and 6 months’ imprisonment, which he enhanced by two months for the international/cross-border element, in accordance with the principles laid down in HKSAR v Chung Ping Kun[3].  

12.As for the discount for her late plea, the judge gave the applicant a discount of 27% from the enhanced starting point.  The resulting sentence passed on the applicant was 7 years’ imprisonment.

The applicant’s grounds of appeal

13.By way of four letters dated 13 and 27 November 2019, 2 December 2019 and 9 March 2020, the applicant has set out her grounds of appeal.  These grounds concern conviction, although the applicant did not in fact file the relevant Form XI Notice in respect of conviction until 24 December 2019. 

14.With respect to what is now alleged by the applicant, it is necessary to mention certain further matters surrounding the applicant’s arrest and her dealings with the police.  On 30 April 2018, the applicant was arrested together with a man called Wang and a woman called Ng. Other than the present charge in relation to the dangerous drugs found in her own possession, the applicant was originally jointly charged, together with Wang and Ng, with trafficking in certain dangerous drugs found in Room B on the 2^nd Floor of the building which the applicant was entering when she was arrested (“the premises”).  However, the charge in relation to the drugs found in the premises was withdrawn in the magistrate’s court on 25 July 2018. Following three return dates, the charge in respect of the dangerous drugs found on her person was committed to the High Court for trial on 26 November 2018. 

15.The gist of what the applicant alleges in her letters is that the police fabricated the case against her, because there never were any dangerous drugs found on her person.  She claims that she was assaulted and threatened by a male police officer to make admissions.  Further, she alleges that “the lawyer had me plead(ed) guilty, (saying that) it would be a wise choice (and that) the chances of winning were slim.  In the end, conflicted (and confused), I had no choice but to admit to such ridiculous charge”[4].

16.The applicant has filed no affidavit/affirmation to explain her reasons for delay in filing a Notice of her application for leave to appeal against conviction.  However, she has asserted in her letter of 13 November 2019 that she did not know which department to approach, so she intended to wait until she was granted legal aid, when she could discuss with the lawyer the application for leave to “appeal for a re-trial”[5].

17.The contents of the applicant’s various letters may be summarised as follows.  In her letter dated 13 November 2019, she claims that the case originally involved 112.2 grammes of “Ice” narcotic and three defendants, namely, the applicant, Wang and Ng.  The applicant and Wang rented the premises jointly, with the applicant lived in the east room of the premises, whilst Wang and Ng lived in the west room.  On the day of the incident, she was repeatedly urged by Wang over the telephone to return to the premises, saying that he would pay her the rental and give her some “goods of high quality to consume”.  On arriving at the premises, she saw some police officers together with Wang and Ng[6]. When she walked inside, the red bag she was carrying, which contained snacks and soft drinks, her key(s) and her mobile telephone, were seized by a female police officer.  Another police officer used her key to gain access to the east room.  They then conducted a body search on the applicant and a search of the east room, yet no dangerous drugs were found.  She saw that all the drugs involved in the case had been placed on a table in the west room, with scales, inhalation device(s), telephone(s) and charger(s). 

18.From the time she was taken to the police station, the applicant was not shown the dangerous drugs; the police officers did not weigh the drugs in front of her, despite their claims to the contrary, nor did she sign to acknowledge their seizure.  The applicant alleges that she did not sign on PW1’s notebook, and that the police had forged her signature on it. Since she was the person signing the lease of the premises, police officers beat her up prior to the taking of the VRI, and threatened and coerced her into admitting that the drugs involved in the case were split equally between the three defendants.  She made the confession in the VRI out of panic and fear. 

19.The applicant queries why Wang and Ng were acquitted on 25 July 2018, and why the charge was amended with the applicant only being charged with trafficking in 50.1 grammes of “Ice” narcotic. At the time, she found it questionable and therefore, on 29 July 2018 she lodged a CAPO complaint[7] about the course of events in which police officers had assaulted and threatened her to secure a confession.  She claims to have told the duty lawyer about how she was assaulted and threatened by the police, and to have shown the lawyer her injury, which was allegedly caused by the bumping of her head against the table by police officers; she told him that she believed that any CCTV evidence of the street in question and a handwriting expert could prove her innocence.  However, her trial counsel told her that the evidence she was seeking was not available.  Moreover, the medical report showed that she had sustained no injuries.  In those circumstances, she was advised by her counsel that, following her confession, the chances of acquittal were not high and she was urged to plead guilty. 

20.In her letters of 27 November and 2 December 2019 (with sketch attached), the applicant refers to the contents of the witness statements given by the police officers and provides her own version of events leading to her arrest, with further details.  She denied possession of any dangerous drugs.

21.In her letter dated 9 March 2020, the applicant again describes what happened on the date of the incident.  At the time of her arrest, five police officers, as well as Wang and Ng, were inside the premises.  Prior to conducting the VRI, she was assaulted and threatened by PC8456, and intimidated by PW1.  She was scared and in pain; accordingly, she admitted the offence in the way she had been taught by the police officers.  She suggests that the court should conduct voir dire proceedings to determine if her admissions were made voluntarily.

The respondent’s submissions

22.Ms Chit, on behalf of the respondent, submits that the applicant has filed no affirmation or affidavit in respect of, nor provided any satisfactory explanation for, her delay in filing her application for leave to appeal against conviction out of time.  Ms Chit further cited the decision in HKSAR v Shum Chiu[8], subsequently referred to in HKSAR v Manjaiarraya Natthasiri[9], to the effect that section 82(1) of the Criminal Procedure Ordinance is equally applicable to a conviction entered upon a person’s own plea: the ultimate question for an appellate Court is whether the conviction is unsafe or unsatisfactory, whether by reason of facts giving rise to nullity concerns, or for any other reason.  However, this jurisdiction of the Court should be cautiously employed.  As the Court in HKSAR v Nur Mei Lina[10] stated:

“It would be rare indeed for an applicant to succeed in showing that a conviction is unsafe or unsatisfactory where an unequivocal plea of guilty has been properly entered”[11].

23.Ms Chit submits that the applicant is effectively asking for the Court to find that the proceedings before the judge were a nullity.  She has reminded me that the principles which enable an unequivocal guilty plea to be rendered a nullity are set out in the case of HKSAR v Wong Chi Yuk[12]. In order to assess whether the applicant can argue that her guilty plea was a nullity, it was suggested that the applicant be directed to file an affirmation detailing her allegations together with a signed waiver of legal professional privilege, should she intend to advance any allegation against her counsel.

Consideration

24.The evidence against the applicant was very strong: it involved physical possession of dangerous drugs, immediate admissions under caution and a later confession during the VRI.  Yet it is now claimed by the applicant that she never had possession of any dangerous drugs, never signed any admissions and made an involuntary confession.  She makes claims against the police that she was framed up; and against her counsel at trial that she was misled by his advice into pleading guilty to an offence she did not commit.

25.However, the history of this case and the transcripts of proceedings before the court paint a rather different picture. First, the applicant was present in the High Court at a case management hearing on 20 May 2019 when her counsel informed the court, in her presence, that she would be pleading guilty to the charge.  Accordingly, the matter was set down for plea and sentence on 7 August 2019.  On that day, the applicant duly entered a plea of guilty to the indictment, notwithstanding that she had earlier made a complaint to CAPO concerning the conduct of the police on 29 July 2018.

26.Defence counsel would not have told the court, in the applicant’s presence on 20 May 2019, that the applicant was now intending to plead guilty unless he had firm instructions to do so.  Indeed, the applicant does not suggest otherwise.  In any event, the applicant then had more than 11 weeks after the case management hearing to change her mind and insist on pleading not guilty, or changing her counsel, if she had really wanted to do so.  She did not and, on 7 August 2019, she duly pleaded guilty to the indictment.  I am bound to observe from my experience with the applicant this morning that she is someone who knows her own mind and is more than capable of putting her position forcefully and fully, as the various letters to the Court further make clear, and as her previous complaint to CAPO perhaps confirms.

27.Secondly, the facts which the applicant accepted in open court were an unequivocal acceptance of her guilt, including the final paragraph of the Summary of Facts to the effect that the applicant “admits her guilt to the offence of trafficking in the dangerous drugs, subject of para 1 above, and the captioned charge against her”[13].

28.Thirdly, on 13 August 2019, the applicant filed her Form XI Notice of application for leave to appeal in respect of sentence only; indeed, the part applying for ‘leave to appeal against conviction’ was struck through.  It was not until her first letter of 13 November 2019 that the applicant raised for the first time the question of her intention to appeal against conviction as well, culminating in another Form XI Notice being signed and filed on 24 December 2019, this time in respect of conviction.  Even giving the applicant the benefit of the doubt as to her real intention to appeal her conviction, and advancing the first indication of that intention to 13 November 2019, she was by then more than two months out of time.

29.Fourthly, at no stage during the sentencing hearing of 7 August 2019 was there the slightest hint from her experienced counsel or, indeed, from the applicant herself (through the interpreter or her assigned solicitors) that she was not fully intending to plead guilty.  Having read the transcript of mitigation, the applicant received the benefit of very competent oral submissions, which counsel had taken the trouble to preface with comprehensive written submissions earlier provided to the court.  It is noteworthy that the judge commented to defence counsel, at the conclusion of his mitigation, that “you have made a difference this morning”[14].  Indeed, counsel must have done so because, despite his submission that the applicant could properly be sentenced to 7 years and 3 months’ imprisonment, the sentence the judge in fact passed was 7 years’ imprisonment.

30.Finally, it should be remembered that whatever the applicant may have felt about her treatment in respect of the admissions and the VRI, the evidence was that she was found in physical possession of a substantial quantity of dangerous drugs.  That possession was unequivocally set out in para 1 of the Summary of Facts which she admitted in open court[15].  As for her rather involved assertions of duress, she also admitted that she would be paid $1,500 for carrying the drugs.  It is to be noted that the judge said of these two contentions – that is duress on the one hand and the offer of a reward on the other – that it was unclear “how the two sit together”[16]. 

31.I find no reasonable argument, or indeed any basis at all to suggest, that defence counsel was in any way flagrantly incompetent, if that is what the applicant is alleging: to be fair, it does not seem that the applicant is going that far.  His advice to her that her chances of acquittal were not high was, given the strength of the evidence, entirely correct.  And he would not have been performing his duty to advise his client properly, if he had not brought to her attention the advantages of pleading guilty in light of the applicable sentencing guidelines.  I do not see any basis for saying that he removed from the applicant her free choice of pleading not guilty to the offence.  As I have pointed out, she had more than 11 weeks to change her mind.

32.Nor do I see any basis for saying that the applicant’s plea was equivocal.  The applicant was clear in her desire to plead not guilty upon committal, which was consistent with her earlier complaint to CAPO.  But defendants can change their minds, faced with the strength of the evidence and the likelihood of conviction when advised by their lawyers.  That is what seems to have happened and there is nothing exceptional or untoward about it.

33.Finally, I can see no reasonable argument that this conviction is either unsafe or unsatisfactory.  I do not find any reasonable basis under the criteria in Wong Chi Yuk for an appellate Court to find that the applicant’s true intention did not go with her plea of guilty to the indictment.

34.Accordingly, I refuse the application for leave to appeal to the Court of Appeal out of time.  In doing so, I advise the applicant that she has the right to renew her application for leave to appeal out of time against conviction to the Court of Appeal.  I should nevertheless give the applicant this warning.  If the Court of Appeal were to come to the view that there was no justification for the renewal of her application for leave to appeal against conviction out of time, the Court would have the power to make an order for the loss of any time which the applicant has spent in custody pending her appeal; in other words, that such time as the Court specifies will not count towards the serving of her sentence.  That power may be exercised where the applicant is applying, as she is here, for leave to appeal out of time: see HKSAR v Wong Lin Hung[17]. And the Court also has power to order loss of time on an unsuccessful and wholly unmeritorious application to treat an earlier abandonment of an appeal as a nullity: see HKSAR v Okafor Charles Chukwuemeka[18].  It seems to me that by the same principle an application made on appeal to treat a plea of guilty as a nullity should also attract a loss of time order where it is found by the Court to be unsuccessful and wholly unmeritorious.

35.Finally, if the applicant is suggesting that her counsel was flagrantly incompetent, which, to be fair to her, is by no means clear from the letters she has written, then the applicant should be aware that “an unwarranted assertion of incompetence will normally attract an order for loss of time”: see Practice Note (Crime: Sentence: Loss of Time)[19].

36.I draw these matters to the applicant’s attention, not with the intention of dissuading her from renewing her application for leave to appeal, but so that she is fully advised of the powers of the Court of Appeal when she is reviewing her options.

Ms Noelle A Chit SPP (Ag), of the Department of Justice, for the Respondent

The Applicant appeared in person