HKSAR v. Ho Ping Fai

HCCC 191/2020

[2021] HKCFI 1827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 191 OF 2020

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Before:  Deputy High Court Judge D Yau in Court

Dates of Hearing:  21 and 22 June 2021

Date of Ruling:  22 June 2021

Date of Reasons for Ruling:  25 June 2021

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REASONS  FOR  RULING

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Ruling on the defendant’s application to reverse plea

1.The defendant faces one count of trafficking in dangerous drugs. Particulars are that he on 23 May 2019 at Lok Ma Chau Control Point unlawfully trafficked in a solid containing 1,683 grammes of fluorodeschloroketamine.

2.On 17 August 2020, the defendant entered a plea of guilty and admitted to a set of summary of facts before Magistrate Ho Chun‑yiu and was committed to the Court of First Instance for sentence.

3.At the hearing on 18 December 2020, before his plea was confirmed and before sentence, the defendant formally applied to reverse his plea, relying on the contents of his affirmation.

4.Since the defendant had affirmed to matters involving the conduct of his previous legal representatives, time was granted for them to prepare their affirmations in reply.

5.At the mention hearing on 17 March 2021, parties confirmed that some of the affirmed witnesses are required to appear in court to be questioned and a date for their attendance was fixed.

6.The hearing took place on 21 June 2021. I gave my ruling on the following day, granting the defendant’s application. These are my reasons.

Ground of application

7.The defendant’s ground of application, at its core, is that he never knew that a plastic bag in the vehicle he was in contained some kind of dangerous drugs and that, therefore, to not allow him to reverse his plea would not be in the interests of justice.

Applicable legal principles

8.There is no dispute that the applicable principles on the reversal of plea are as stated in the Court of Final Appeal case of HKSAR v Chan Chi Ho Lincoln [2018] HKCFA 64; FACC 18/2018.

9.There the Court of Final Appeal confirmed, among other things, that even in the case of an unequivocal plea of guilty, there is an unfettered discretion to allow the reversal of plea after conviction but before sentence, which is to be exercised with the overriding consideration of the interests of justice.

10.In the present case, Mr Cheung for the defendant stated clearly at the outset that he accepts that the defendant’s plea of guilty before the magistrate was an unequivocal one.

11.The defendant seeks for this court to exercise its unfettered discretion in the defendant’s favour on the ground that it would be in the interests of justice to do so.

12.Both the prosecution and the defence agree that in deciding how to exercise the discretion, I am entitled to consider all the affirmations filed for the purpose of this application, as well as the evidence of three of the affirmed witnesses who entered the witness box.

13.Ms Chan for the prosecution agreed that I am entitled to consider the defendant’s written affirmation as evidence in support of his application, despite the fact that he had chosen not to give evidence in the witness box.

Matters taken into consideration

14.According to the defendant’s affirmation, at the time he was found to be in possession of the black plastic bag near him inside the vehicle that he was aboard when entering Hong Kong, he did not know that there was some kind of dangerous drugs inside. He had been told by a friend of his that they were some kind of scented essence or chemical spice (香精).

15.It is the defendant’s case that prior to his pleading guilty on 17 August 2020, he had always been telling his legal representatives, solicitor Mr Lam and barrister Mr Lau, that he did not know there were drugs inside the bag that he was bringing into Hong Kong.

16.It is also the defendant’s case that Mr Lam had said to him words to the effect that no one would believe the defendant about his lack of knowledge, and that there was only a 5% to 10% chance of him ‘winning’ the case. He also alleged that Mr Lam said that if the defendant elected to go to trial, Mr Lam said he would stop acting for the defendant since he did not want to lose a friend.

17.It was based on the above understanding of his situation that the defendant said he entered a plea of guilty.

18.Mr Lam, Mr Lau and Mr Chan, clerk at Lam’s law firm, came to court to give evidence and had adopted their affirmations as part of their evidence.

19.Mr Lam confirmed that the defendant had on more than one occasion mentioned that he had no knowledge of the nature of the substance, and that he was only bringing in the substance for a casual friend of his whom he met in mainland China. The defendant told him that he thought they were scented essence and had “proclaimed of his lack of knowledge”.

20.Mr Lau said the defendant was always polite and humble. He recalled and confirmed in court about the defendant telling him he did not know that he was in possession of drugs but rather of scented essence at their first conference held on 25 November 2019.

21.At the second conference about two months later on 20 January 2020, the defendant asked Mr Lau to write to the Department of Justice to ask them to amend the charge to that of possession instead of trafficking in dangerous drugs.

22.Mr Lau remembered explaining to the defendant that even if they did amend the charge to possession, the defendant would still have to admit that he had knowledge of the dangerous drugs at the time of the offence. The defendant then said to him that if the Department of Justice was willing to amend, he would plead guilty and also admit that he had knowledge of the dangerous drugs at the time of the offence accordingly.

23.Mr Lau told the defendant that it was likely to be a futile attempt but the defendant insisted and so Mr Lau did write, and the Department of Justice did refuse, to have the charge amended.

24.Mr Lau states in his affirmation that he found it a bit strange that the defendant would consider admitting to knowledge but only for a possession charge. He felt that the defendant was trying to explore other options and on that, he thought there was no harm to do so.

25.At their third conference held some three months later on 6 April 2020, the defendant was informed of the Department of Justice’s refusal to amend. Mr Lau asked if the defendant wanted him to explain anything further and in particular the law relating to his case. The defendant said there was no need to do so. The defendant then said he was told by someone that his possible sentence was two to three years and asked Mr Lau if that was correct. Mr Lau advised him that a likely starting point would be 17 years. The defendant did not ask further question. Mr Lau asked the defendant if he had decided on his plea and the defendant said he still had not decided yet and needed more time to consider and the court granted his application.

26.Mr Lam exhibited a WhatsApp message he received from Mr Lau on 25 May 2020, after the hearing that took place that day which says:

“…Client asked if he PG, can he used ‘no knowledge of drug’ as mitigation. I tell him that ‘no knowledge of drug’ is a defence. If he said so, he cannot PG. Court will not accept ‘no knowledge of drug’ as a mitigation factor, but will ask client to ‘PNG’ if he says so. Client understands now. He will further consider his plea.”

27.Mr Lau remembers the above exchange between himself and the defendant which took place at the court detention cell that day, when the defendant asked Mr Lau the above question of relying on “no knowledge” as a ground of mitigation. Mr Lau said he explained to the defendant that if he was to plead guilty, he could not use lack of knowledge as his mitigation, because it would amount to a defence and the defendant should enter a plea of not guilty. The defendant did not ask anything else and said he would continue to consider his plea during the adjournment pending the preparation of expert report by the prosecution.

28.On 13 July 2020, slightly less than two months later, Mr Lau had another conference with the defendant at the detention cell Eastern Magistrates’ Courts. The expert report was explained to the defendant and Mr Lau asked the defendant how he intended to plea. This was the occasion when the defendant told Mr Lau that he would plead guilty to the charge of trafficking in dangerous drugs. Mr Lau said he was “a bit surprised” by the defendant’s decision because the defendant had so far maintained that he had no knowledge about the dangerous drugs at the time of the offence.

29.Mr Lau ascertained and confirmed with the defendant his instructions to plead guilty, explaining again the elements of the offence, including the “presumption of knowledge of dangerous drug on the part of the defendant and evidential burden on the defendant to prove to the contrary under s47 of the Dangerous Drugs Ordinance (Cap 134)…”

30.Having so explained, Mr Lau asked the defendant whether he had knowledge or not of the dangerous drug at all material times, including at the moment when he imported the dangerous drug across the border from mainland China into Hong Kong. Mr Lau said the defendant clearly confirmed that “he in fact knew that it was a dangerous drug”.

31.The defendant’s decision was then recorded in Mr Lau’s own notes and a written confirmation to plead guilty was also prepared by the instructing solicitors and signed by the defendant.

32.It is Mr Lau’s evidence that after this 25 May 2020 hearing, the defendant had never indicated to him that he wanted to reverse his plea of guilty to the trafficking charge.

33.On 17 August 2020, Mr Lau continued to represent the defendant and he explained the contents of the summary of facts to the defendant who confirmed to him that he understood and agree. The facts the defendant did admit to are as follows:

“1. At about 7:35pm on 23 May 2019, Customs officers intercepted a 7‑seater vehicle numbered RT2236 at Lok Ma Chau Control Point. D was the only passenger on the vehicle. He sat on the right side of the middle row of the passenger seat. D stated that he had nothing to declare. RT2236 was directed for further check.

2. Upon vehicle search, a black plastic bag was found on the passenger seat on the left of the middle row. When asked about the black plastic bag, D admitted that it belonged to him. Inside the said black plastic bag were some clothes and another black plastic bag containing a red recycle bag. Two silver bags containing two plastic bags with a total of 1,961 grammes of a solid containing a total of 1,683 grammes of fluorodeschloroketamine were inside the said red recycle bag.

3. D was arrested and cautioned after the Customs officers conducted narcotics test on the solid which showed that it contained illegal drug. D refused to answer any question under caution.

4. D had two mobile phones and HK$2,792.2 with him when he was arrested.

5. The street value of the drug seized was estimated to be HK$1,102,082.

Dated this 31^st day of July, 2020”

34.It is noted that the set does not state specifically that the defendant knew that there was some kind of dangerous drugs inside the black plastic bag that he said belonged to him. Nor is there the statement that the defendant was in possession of the drugs for the purpose of trafficking at the material time, which is usually included in the summary of facts dealing with an offence of trafficking in dangerous drugs.

35.The defendant subsequently pleaded guilty to the charge before the magistrate as he had indicated he would do, and was committed to the Court of First Instance for sentence.

Considerations

36.As I pointed out above, the fundamental ground of the defendant’s application, regardless of his accusations against Mr Lam, is his assertion that he did not know that he was in possession of some kind of dangerous drugs and that this was the truth.

37.If this is the truth, or maybe the truth, it does not matter what had happened in all the meetings between the defendant and his lawyers, or whether the defendant’s allegations against Mr Lam are substantiated. It would still be in the interests of justice to allow the defendant the opportunity to challenge the prosecution’s evidence and to, if he so wants, put forward his own evidence for the jury’s consideration.

38.The unfettered discretion that I have to exercise must be exercised within the ambit of the evidence presented before me, while being mindful that I am not conducting a mini‑trial of the issue of the defendant’s knowledge.

39.The defendant has raised the issue of him having no knowledge of the drugs. The set of summary of facts that he admitted to are silent on the specific issue of the defendant’s knowledge. While the summary of facts as set out does not render the defendant’s plea an equivocal one, it also does not contradict with the defendant’s stance that he did not know there was drugs inside the bag he admitted to be in possession of. If the facts had explicitly stated that the defendant knew that there were drugs when he brought the bag into Hong Kong, there is a possibility that the defendant may not be able to admit to the facts without raising the issue. It is not uncommon that once the defendants hear the facts read out in court, they would say they admit to the facts and then qualify their answers. We do not know what might have happened had the facts been more accurate and explicit in setting out the alleged state of mind of the defendant.

40.It is not disputed that had changed his mind after he learned that the Department of Justice had refused to amend the charge to possession of dangerous drugs. However, whatever the reason may be for his decision to plead guilty despite not knowing about the drugs, the fundamental question must be whether his assertion that he did not know he was in possession of some kind of dangerous drugs is true or maybe true.

41.This is not a case where it is obvious that the defendant was making up his story of his lack of knowledge after he had entered his plea of guilty. The evidence of Mr Lam and Mr Lau support the defendant’s assertion that he had all along been telling his own lawyers that he did not know about the drugs inside the bag. There is a real possibility that what the defendant is saying about his lack of knowledge may be true.

42.If what the defendant says is true, or maybe true, to disallow him to reverse his plea would be to deny him the opportunity to place his case in front of the jury, to allow the tribunal of facts to make a proper finding after a fair trial.

43.I find that, given the seriousness of the offence, the lengthy sentence upon conviction, and the fact that the defendant had in the initial conferences held with his legal representatives clearly maintained that he did not know about the presence of the drugs, the interest of justice demands that the defendant be allowed to reverse his guilty plea.

44.Whether the defendant is telling the truth and whether the prosecution can prove that the defendant knew that he was in possession of the drugs are matters that should be left to the jury, and not be decided by the judge sitting alone and not having had the benefit of hearing all the relevant evidence.

Conclusion

45.Having made my inquiries, based on my finding that the defendant is or maybe telling the truth when he states in his affirmation that he did not know that he was carrying some kind of dangerous drugs over the border, I find that it is in the interests of justice that the defendant’s application to reverse plea should be allowed and I do allow it.

Ms Chan Sze Yan, SPP of Department of Justice, for HKSAR

Mr Michael Cheung, instructed by Chan & Ho, assigned by the Department of Legal Aid, for the Defendant