HKSAR v. Dong Juan

CACC 242/2019

[2021] HKCA 991

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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Before: Hon Macrae VP, Pang & Zervos JJA in Court

Date of Hearing: 6 July 2021

Date of Judgment: 6 July 2021

Date of Reasons for Judgment: 12 July 2021

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R E A S O N S   FOR   J U D G M E N T

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

1.By a notice dated 8 June 2020, the applicant who was acting in person renewed her application for leave to appeal against conviction (out of time) of a single count of unlawfully trafficking in 50.1 grammes of ‘ice’ in 55 grammes of crystalline solid,[1] which application was refused by the single judge on 2 June 2020.[2]  Having heard submissions on 6 July 2021, we refused the application and dismissed her appeal.  These are our reasons.

Procedural History

2.Then legally aided,[3] the applicant was committed to the Court of First Instance for trial on 26 November 2018.  At a case management hearing on 20 May 2019, the court was informed of her intention to plead guilty.  Following her plea on 7 August 2019, the applicant was formally convicted and sentenced to 7 years’ imprisonment.

The Facts

3.Briefly, the facts which the applicant admitted were that on 30 April 2018, whilst entering a building in Tsuen Wan, she was intercepted by the police and found to be carrying the ‘ice’ in question under her trousers.

4.The facts went on to say that when first cautioned, the applicant admitted to have carried the drug over from the Mainland for a reward of $1,500, that she claimed she was threatened into committing the offence in a subsequent interview, and that she “admits her guilt to the offence of trafficking in the dangerous drug … and the captioned charge against her”.

5.The last statement on the admission of guilt appeared at the end of the agreed facts.  It consisted of a freestanding paragraph that had nothing to do with the applicant’s statements under caution.

Before the Single Judge

6.Contained in four letters dated 13 November 2019, 27 November 2019, 2 December 2019 and 9 March 2020, the applicant’s homemade grounds of appeal were that this case was but a complete concoction, that there was never any dangerous drug on her, that she had never made any verbal admission nor signed on any police notebook, and that she made the video confession only after being assaulted and threatened by the police.  She also said she was misled into pleading guilty by defence counsel.

7.In his detailed judgment, the single judge reviewed the history of the case and pointed out that for eleven weeks after the case management hearing on 20 May 2019, the applicant had neither withdrawn her indication to plead guilty nor replaced her legal representation; and regardless of her complaint to CAPO about the police officers in this case, the applicant did proceed to enter a plea of guilty on 7 August 2019.  Of the last mentioned procedure, the single judge was also satisfied that the facts admitted were unequivocal as to guilt, that at no stage during the hearing was there any hint that the applicant was not fully intending to plead guilty, and that although the applicant filed her notice of appeal in respect of sentence in August 2019 she did not raise her intention to appeal against conviction until 13 November 2019.[4]

8.Regarding that delay of more than two months, it was noted that the applicant had failed to file any affidavit or affirmation by way of explanation.  All she did was to assert in her letter of 13 November 2019 that she did not know which department to approach, that her plan was to wait until legal aid was granted, and that she would then discuss her appeal with her lawyer.

9.On the question of professional standards, based on the transcripts and other material that were available, the single judge remarked that it was clear the applicant was competently represented by a counsel whom the sentencing court had in fact complimented.  The single judge went on to say that given the strength of the evidence and the unlikelihood of an acquittal, defence counsel would be failing in his duty if he had not brought to the attention of the applicant the advantages of pleading guilty.  He said there was no basis to suggest that in doing so, counsel had removed from the applicant the free choice of pleading not guilty.

10.On the claim of duress made during the applicant’s video interview, the single judge noted that it was made without any retraction of her co-contention that there would be a reward for her to commit the offence.  Quoting the sentencing court, he said it was unclear as to how the two would “sit together”.

11.All in all, the single judge was unable to find any ground for suggesting that defence counsel was flagrantly incompetent.  He did not see how it can be said that the applicant’s plea was equivocal.  Nor did he find any justification for saying that the plea was a nullity, in the sense that the applicant’s mind was not ad idem with her action: Wong Chi Yuk.^[5]  A warning on the loss of time was given to the applicant, in the event of an unsuccessful renewal of her application for leave to appeal.

In this Court

12.The applicant repeated the bulk of her alleged grievances to the Court of Appeal in three further letters dated 17 June 2020, 7 September 2020 and 21 September 2020.  Only this time, she characterised the prosecution of this case as an abuse of process and said she would apply for judicial review.  She also claimed that she had told the sentencing court that she was innocent to no avail.

13.During oral submissions, the applicant raised other complaints as to what took place at the sentencing stage, such as how she was deprived of her counsel of choice by legal aid and how the prosecution had failed to disclose the result of her CAPO complaint.

Our View

14.Having ourselves examined the history and all the material there is to the case, we see no merit in this application. Specifically in relation to the question of duress we are also guided by the following exchange during mitigation, between court and counsel :[6]

“ MR CHEUNG: On this occasion, she was being asked by Big Sister to bring the drug from mainland to Hong Kong for a reward of $1,500. And as I have also mentioned in the skeleton and confirmed with the defendant that since he(she?) actually confirmed and realized that at that time that although she said her family’s safety was being threatened, that she knew that she could have a choice to go to the police but instead she carried out and complied with the request when she has(had?) opportunity and chances.

COURT: This is one of the parts of the facts of this case I don’t truly understand at the moment. On the one hand, she is getting money for carrying drugs.

MR CHEUNG: Yes.

COURT: On the other hand, she is doing it because she’s threatened...

MR CHEUNG: Yes.

COURT: ...and I’m not quite sure how the two sit together. Is the threat just part of the sort of background of the case?

MR CHEUNG: Exactly, it’s just the background of the case as to what had been said to her, threatening by word as to “you’d better do it, otherwise”...

COURT: Yes, “and you’d better take $1,500”.

MR CHEUNG: ...and then -- exactly, and therefore she was offered this thing to do.

COURT: All right.

MR CHEUNG: And as I confirmed that with her, I explained to her the effect of this line of explanation to the court as background that...

COURT: Yes.

MR CHEUNG: ...she confirmed that she did have a choice at that time to approach the police.

COURT: I understand that, yes.

MR CHEUNG: Yes.

COURT: All right.

MR CHEUNG: But nevertheless that he(she?) committed the present offence.

COURT: Yes.

MR CHEUNG: And therefore she has no defence out of it.

COURT:     No.”

Accordingly, we refused the applicant’s application and dismissed her appeal.

Loss of Time

15.Having invited and without receiving any helpful submissions from the applicant as to why we should not so order, we imposed on her a loss of time of one month.  The reasons for making such an order, which we explained to the applicant, were that she had unequivocally pleaded guilty to the offence; her application for leave was out of time; and she had received a detailed judgment from the single judge refusing leave, in which all of her complaints had been fully addressed.  Yet she had persisted with her application, which was wholly without merits, notwithstanding that she

had been clearly warned as to the consequences of so doing.

The Applicant appeared in person

Ms Noelle A Chit, SPPof Department of Justice, for the Respondent

[1] She abandoned her application for leave to appeal against sentence on 11 March 2020.

[2] Macrae VP.

[3] The applicant was legally aided at trial, but was refused legal aid for her appeal.

[4] 13 November 2019 is the date of her first letter to this Court (see paragraph 6 of this judgment). The applicant did not formally file her Form XI in respect of conviction until 24 December 2019.

[5] HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125.

[6] AB 12R – 13T.