HKSAR v. Fang Gencheng

CACC 91/2023 [2025] HKCA 72

On appeal from [2023] HKCFI 1140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 91 OF 2023

(ON APPEAL FROM HCCC NO 257 OF 2020)

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J U D G M E N T

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Background

1.The applicant was charged with trafficking in a dangerous drug, namely 9,967 grammes of a crystalline solid containing 9,741 grammes of methamphetamine hydrochloride (commonly known as Ice), contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance (Cap 134).  He first appeared before the Magistracy on 26 April 2019 and after numerous adjournments, on 27 October 2020, he pleaded guilty to the charge, and admitted a Summary of Facts.  He was committed to the High Court for sentence.[1]  He was to appear before Campbell-Moffat J (the judge)  for sentencing on 28 May 2021, but the hearing was vacated.  After numerous adjournments and change of counsel, his case was listed for a reversal of plea on 16 November 2022.  However, as legal aid had been discharged, the matter was adjourned for him to make another application for legal assistance.  There were further adjournments of his case in which he appeared in person.  He was eventually granted legal aid and assigned counsel who represented him in the hearings of the application for a reversal of plea on 20 and 21 February 2023, 25 and 26 April 2023.  However, on 26 April 2023 after the judge refused his application, the applicant discharged his counsel and represented himself in his sentence. 

2.On the issue of the reversal of plea, counsel for the parties presented detailed submissions to the judge, including testimony from the applicant and his counsel, after which she gave a lengthy and considered decision.  She found that the applicant had entered an unequivocal plea on 27 October 2020, and was satisfied that there were no grounds upon which to exercise her discretion to reverse his plea.[2]  The judge then sentenced the applicant to a term of imprisonment of 21 years.

3.On 9 May 2023, the applicant filed a notice of application for leave to appeal against conviction and sentence.  He appears in person in this application, having had legal aid refused on 7 August and 30 November 2023.  He had also been refused legal assistance by the Legal Clinic at the University of Hong Kong on 12 December 2024.

4.At the outset of the leave hearing, the applicant stated that he wished to abandon his appeal against conviction and asked that he be given a one third discount to his sentence.  He acknowledged that he was guilty of the offence and confirmed that he entered a guilty plea. He did not receive a one third discount to his sentence because of his application to reverse his plea, which was refused by the judge.  In support of his application for a reversal of his plea, he made allegations of professional impropriety against his legal representatives, which were rejected by the judge in refusing his application.  The position he has taken today would indicate that there was no justification for the basis of the application to reverse his plea.

5.In abandoning his appeal against conviction, the applicant’s appeal is dismissed.  I will nevertheless address the grounds against conviction for the sake of completeness, which I find are without merit.  The applicant proceeded with the leave application against sentence but obviously on a completely misconceived basis that he should still receive a one third discount having confirmed his plea of guilty.  I have also addressed his initial grounds against sentence, which I find are without merit. 

The applicant’s conviction

6.When the applicant pleaded guilty to the charge, he admitted a Summary of Facts that outlined the factual basis of the offence. The brief facts are as follows. 

7.On 19 April 2019, Customs officers intercepted a parcel from the United States of America and found inside the Ice particularised in the charge.  The recipient’s name was “Ada” and the address stated was the office of a logistics company in Yuen Long.

8.On 23 April 2019, Customs officers conducted a delivery operation of the parcel to “Ada” at the company’s office.  A Customs officer posing as a post office worker delivered the parcel, which was collected by Ms Jin (“Ada”), a staff member of the company.  She said she collected the parcel for a customer named “Robert”.  Ms Jin then took part in a controlled delivery operation and informed “Robert” to collect the parcel at the company’s office.

9.The applicant, who was a resident of mainland China, entered Hong Kong on 23 April 2019.  On the next day, 24 April 2019, the applicant attended the company’s office to collect the parcel.  A Customs officer posing as a company staff member handed the parcel to the applicant, who paid RMB100 to Ms Jin.  After receiving the parcel, the applicant was arrested and cautioned by the Customs officers.  He claimed that he collected the parcel for a friend, “Ah Gor”, and had no knowledge of the contents of the parcel.  He said he was supposed to deliver the parcel to Shatin Regal Hotel for a reward of RMB10,000 and “Ah Gor” would find someone to collect the parcel from him.

10.The applicant agreed to participate in a controlled delivery operation.  He was taken to Shatin Regal Hotel where he received a call from “Lo Ka” on WeChat.  He told the Customs officers that the call was irrelevant to the case and did not answer it.  The applicant then received a message from “Lo Ka” on WeChat asking if he was there.  About half an hour later, “Lo Ka” called the applicant on WeChat again, but the applicant did not pick up the call.  The applicant messaged “Ah Gor” on WeChat, but ignored the WeChat messages and calls from “Lo Ka”.  He informed “Ah Gor” that he was in hotel room 1113, and “Ah Gor” asked him why he did not reply to “his friend”.  Only at this stage did the applicant disclose to the Customs officers that “Lo Ka” was the “friend”, who was also involved.  He said that “Lo Ka” introduced the applicant to “Ah Gor”.  Moments later, “Lo Ka” called the applicant, and the Customs officers instructed him to take the call.  He spoke with “Lo Ka” in the Hakka dialect, which the Customs officers did not understand.  Shortly afterwards, “Ah Gor” was no longer on the applicant’s WeChat friend list.

11.In a subsequent cautioned video recorded interview, the applicant said that he was in debt but refused to disclose the amount involved.  He said he knew “Lo Ka” for some 5 or 6 years, who introduced him to “Ah Gor”.  He never met “Ah Gor” and only contacted him via WeChat.  He sent a photograph of his passport to “Ah Gor”, which showed his personal particulars. “Ah Gor” requested the applicant to collect the parcel from the logistics company in Yuen Long for a reward of RMB10,000.  He thought it may contain something bad but did not realise it would be so serious.  The applicant received two photographs from “Ah Gor”, which depicted a parcel on an electronic scale and the address in Yuen Long.

The applicant’s sentence

12.The quantity of Ice that was imported into Hong Kong was very large, with a street value of HK$5.7 million.  The applicant was a resident of mainland China, and the immigration records revealed that he essentially came to Hong Kong to receive the parcel, containing the drugs.  He entered Hong Kong on 16 April and left on 20 April 2019, and entered again on 23 April 2019, after Ms Jin had notified him that the parcel from overseas had arrived and was available for collection.  Even though he was involved in a controlled delivery, the judge rightly found that he had deliberately sought to undermine the operation and was not entitled to any discount on his sentence. 

13.The judge applied the guidelines in HKSAR v Abdallah [3] and adopted a starting point of 28 years’ imprisonment.  It appears that, on the urging of the prosecution, the judge did not enhance the sentence for the aggravating feature that the drugs were imported into Hong Kong.  She reduced the discount for the applicant’s guilty plea to 25% by reason of the time and expense taken up with an unsuccessful reversal of plea.  This resulted in a sentence of 21 years’ imprisonment.

The grounds of appeal against conviction

14.The applicant sets out three grounds of appeal against conviction.  However, as I have indicated, the applicant now abandons his appeal against conviction, but I have nevertheless addressed them.  The grounds centre on his attempt to reverse his guilty plea, which he confirmed at the outset of the leave hearing was properly entered by him.  It is necessary to examine these grounds to show the lack of justification in the position the applicant took in the court below and before this court.  The grounds of appeal were without merit and unjustified.

15.By Ground 1, he avers that he did not know the parcel he collected contained dangerous drugs and he would not have pleaded guilty.  By Ground 2, he claims that even though he had told his counsel that he did not know the parcel contained dangerous drugs and would not plead guilty, he refused to help him contest his case.  As a result, he employed a third counsel, who did not provide him with professional legal advice and misled him into pleading guilty.  By Ground 3, he complains that the trial was unfair.

Ground 1

16.The applicant pleaded guilty to the charge before a magistrate and confirmed that it was voluntary.  The Summary of Facts was read out to him in open court, and he admitted the facts that supported his guilty plea.[4] When addressing the applicant’s application for a reversal of plea, the judge had before her statements from the applicant’s legal representatives, including testimony from counsel, who confirmed the applicant’s instructions to plead guilty to the charge.  He testified that he explained the effect of the plea to the applicant and read out the Summary of Facts to him.  The judge accepted this evidence and gave a detailed ruling refusing his application.  She found that the applicant’s guilty plea was unequivocal and her reasons for rejecting his reversal of plea are unassailable.  It is clearly apparent that he made an informed decision to plead guilty to the charge, and he cannot substantiate this ground of appeal by merely stating that he did not know there were drugs in the parcel.  He entered a plea of guilty and agreed a Summary of Facts in which it was stated that he admitted that at the time he was unlawfully trafficking in the dangerous drugs.  As mentioned by the judge, in her detailed reasons for refusing the reversal of plea, a document was produced by the applicant’s legal representatives in which he wrote that he was willing to plead guilty voluntarily to the charge and agreed the Summary of Facts.

Ground 2

17.The applicant alleges that he was misled by his counsel in entering a guilty plea to the charge.  He claims that counsel advised him that the guilty plea was temporary and could be changed, and that was why he chose to plead guilty to give himself some “flexibility”.[5]  As the proceedings unfolded before the magistrate, he was clearly aware that he was entering a plea of guilty and admitting the offence with which he was charged.  In fact, the case was stood down so that he could consider whether or not to plead guilty to the charge.  He returned before the magistrate and pleaded guilty. He also confirmed that his guilty plea was voluntary.  He admitted the Summary of Facts that had been read out in open court. 

18.As already noted, the applicant wrote out a statement in which he understood the facts of the case and the possible sentence, and was willing to plead guilty voluntarily to the charge and agreed the Summary of Facts.  It is dated 14 September 2020.[6]  Furthermore, counsel denied the allegation that he had advised the applicant that his plea of guilty was temporary.  He referred to their discussion in a conference on 14 September 2020.  He explained that the applicant was still unsure about whether to plead guilty, and he told him that if he entered a plea of guilty, it would be difficult to reverse because he had been legally represented.  At the end of the conference, the applicant decided to plead guilty and made a declaration on his back sheet which he signed.[7]  

Ground 3

19.The applicant’s application for a reversal of plea was properly and thoroughly considered by the judge and it was clear in the circumstances that his plea was unequivocal and voluntary.  None of the circumstances laid down in HKSAR v Wong Chi Yuk [8], to reverse a guilty plea arose in this case.  Moreover, there was no good reason for the judge to exercise her discretion to allow the reversal of plea according to the relevant legal principles: HKSAR v Chan Chi Ho Lincoln [9]; HKSAR v Cheung Tsz Hong [10].

The grounds of appeal against sentence

20.As already noted, the applicant sought to obtain a one third discount to his sentence by abandoning his appeal against conviction and acknowledging that he had properly entered a plea of guilty to the charge.  However, this only confirms the position taken by the judge when sentencing the applicant. 

21.The applicant sets out three grounds of appeal against sentence.  By Ground 1, he alleges that the judge did not give him sufficient time to prepare the information for mitigation, and that he was only given 30 minutes to consult his lawyers.  By Ground 2, he states that he immediately assisted the Customs officers when they apprehended him.  Even though the controlled delivery operation was unsuccessful, he should have been given a sentencing discount, as reflected in other cases.  By Ground 3, he avers that he was denied a fair trial by the judge, who should have given him a one third discount instead of the one fourth discount.

Ground 1

22.At the time of his sentencing, the applicant discharged the services of his legal representative, and so his complaint that he did not have time to consult his lawyer is fatuous.

Ground 2

23.The quantity of Ice contained in the parcel was very large, and the judge applied the relevant sentencing guidelines when determining the sentence to be imposed on the applicant.  She adopted a starting point of 28 years’ imprisonment, which she discounted by 25% for his guilty plea to 21 years’ imprisonment.  In normal circumstances, the applicant would have received a one third discount for his plea of guilty at the earliest opportunity, but he sought to reverse an unequivocal and voluntary guilty plea.  The judge rightly reduced the percentage discount he would have otherwise received for an early guilty plea because of his application to reverse his plea based on unfounded allegations against his legal team.

24.The starting point of 28 years’ imprisonment was in accordance with the sentencing guidelines, and needs to be considered in light of his role and culpability, particularly in importing drugs into Hong Kong and entering Hong Kong to commit a crime, although the judge did not enhance his sentence for the international element.  Moreover, the 25% discount for his guilty plea could have been less as a result of the unsuccessful application for a reversal of plea, particularly given his acknowledgement that he had properly entered a plea of guilty to the charge.

25.An appellate court will look at the ultimate sentence passed on the applicant and ask itself whether it was, in all the circumstances, either manifestly excessive or wrong in principle.  In my view, even if the starting point was less than 28 years’ imprisonment, it would have made little difference to the resultant sentence when allowing for a more appropriate discount of 20% for the applicant’s plea of guilty after an unsuccessful reversal.

Ground 3

26.The judge considered that the applicant had deliberately assisted his criminal colleagues and sought to pervert the course of public justice in relation to the controlled delivery operation.  As rightly pointed out by the judge, in those circumstances, he was not deserving of any discount whatsoever. 

27.This ground of appeal is completely devoid of merit.

Conclusion

28.The applicant’s appeal against conviction is dismissed upon his abandonment of the appeal.  The applicant’s grounds of appeal against sentence were not reasonably arguable and his application for leave is refused.

29.The applicant is nevertheless informed that he has the right to renew his application for leave to appeal against his sentence before the Court of Appeal, but he is also informed that the Court of Appeal has the power to order the loss of any time which he has served in custody pending the appeal if the Court were to come to the view that there was no justification for the renewal of the application.

The applicant appeared in person