Lam Ming Chai v. R.

CACC000299/1992

IN THE COURT OF APPEAL

1992 No. 299
(Criminal)

HEADNOTE

Applicant appealed alleging that he had changed his plea from one of not guilty to guilty as a result of pressure from his counsel. He filed an affidavit stating that his counsel told him that he had no chance to win, that he would receive a sentence of eight to twelve years. Counsel in an affidavit denied pressuring the applicant in that he had clearly and expressly confirmed his wish to plead guilty. After the plea, counsel mitigated, stating "obviously ..... he had been lured into participating ..... (and) obviously he is not the mastermind ....." The applicant made no reference to the mitigation in his affidavit. In his grounds of appeal which he drafted himself, he stated "I was used by others and my role was trivial."

Court was satisfied that this "admission ..... was a clear and voluntary one of guilt to the offence charged. Upon the basis of the totality of the material before us, we have no hesitation in rejecting the applicant's suggestion ..... that he was overborne." Application refused.

IN THE COURT OF APPEAL

1992, No. 299
(Criminal)

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Coram: Hon. Power, V.-P., Macdougall, V.-P. and Litton, J.A.

Date of hearing: 1 February 1994

Date of judgment: 1 February 1994

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J U D G M E N T

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Power, V.-P (giving the judgment of the court):

1. The applicant faced a charge that on 12th November 1991 at Room 2, Flat C, 2nd floor, No.209-213, Lai Chi Kwok Road, Shamshuipo, he had in his possession a dangerous drug, namely 791.82 grammes of a mixture containing 464.97 grammes of salts of esters of morphine for the purpose of unlawful trafficking therein. He pleaded not guilty at trial but on the fifth day reversed his plea and was sentenced to imprisonment for thirteen years. He now seeks leave to appeal against that conviction out of time.

2. It is submitted that there was "a material irregularity in the course of the trial in that the appellant was induced by counsel then representing him to change his plea in mid trial from one of 'not guilty' to 'guilty' as a result of pressure applied from counsel aforesaid so that he did not genuinely have a free choice between 'guilty' and 'not guilty' and that his change of plea aforesaid was therefore involuntary and is a nullity."

3. In his affirmation in support of his application he states:

"I instructed both Solicitors and Counsel that I was 'not guilty', and upon arraignment I entered that plea on 7 Jul 1992, a plea that I maintained until 2:30p.m. on Monday 13 Jul 1992 when I reversed that plea and entered a plea of 'guilty'.

The case for the prosecution concluded at lunch-time on Friday 10 Jul 1992 and the Court adjourned until 2:30p.m. that afternoon when I was scheduled to testify in my own defence. I was on bail.

I had previously been a heroin addict and at the time of my trial I was undergoing methadone treatment. During the lunch- time adjournment I took an overdose of methadone, believing that that would calm my nerves and allow me to give my evidence smoothly, eloquently and with conviction.

I have no independent recollection of what happened thereafter except that some time on what I now believe was Sunday 12 Jul 1992 I became aware that I was in hospital. I now know that in fact I was an 'in-patient' at the Queen Elizabeth Hospital, Kowloon and suffering from the effects of methadone overdose.

I was discharged from hospital late on the morning of Monday 13 Jul 1992 and brought to the Supreme Court.

For approximately 30-40 minutes prior to the Court reconvening at 2:30 p.m. I was in conference with my Barrister Mr. Peter C T LEE. This conference took place in the lobby outside of the Court and to the best of my recollection Mr. TSANG from John Massie and Co. was not present although he may from time to time have been in the vicinity. Mr. LEE spoke to me in Cantonese.

From the very outset he attempted to persuade me to change my plea to one of 'guilty'. This was in stark contrast to the attitude that he had displayed up to the time that I 'went missing' on Friday 10 Jul 1992 when he was at all times advising me that I had a good chance and encouraging me to plea 'not guilty'.

Mr. LEE told me that I 'had no chance to win', that my 'cautioned statement was fatal', that I had 'breached my bail', and that this would 'look bad in the eyes of the jury'. He kept mentioning over and over that I would now definitely be convicted and that my only chance was to plead guilty. He told me that if I pleaded guilty he would be able to obtain a sentence for me of between eight to twelve (8-12) years whereas if I did not plead guilty but was found guilty I could expect a much heavier sentence than that.

I was ignorant of the law and trusted my Counsel and although I was unhappy at pleading guilty and despite the fact that I repeatedly expressed that unhappiness to my Counsel I eventually agreed to plead guilty on his recommendation because I believed that that was the only realistic course open to me and represented the lesser of two evils.

At no time did Mr. LEE ever explain to me that if I gave evidence on the afternoon of Monday 13 Jul 1992 and was thereafter cross-examined by Crown Counsel that this would cause my trial to be adjourned to Wednesday 15 Jul 1992 and that that would then cause him a problem with his professional diary because he had a three(3) day case commencing on Wednesday 15 Jul 1992."

4. Mr. Egan, having taken us through the transcript, submits that in the context which that transcript reveals, the account of the applicant has the ring of truth. He points particularly to the suggestion that defence counsel wished to bring the trial to an early conclusion because he was already committed to a hearing later in that week. We bear in mind the submissions made by Mr. Egan.

5. Defence counsel filed an affidavit in which he said:

"In reply to paragraphs 11 to 13 of the Affirmation, I recall that upon returning to Court in the afternoon of the 13th July 1992, I had been informed by Mr. Tsang Hing Wah, the instructing Solicitors' representative that the Appellant was desirous to change his plea of not guilty to a guilty one. I therefore spoke to the Appellant who clearly and expressly confirmed to me that he indeed would like to plead guilty to the charge. In the presence of Mr. Tsang Hing Wah, the Appellant requested that I mitigated on his behalf and I agreed so to do. Grounds of mitigation including the background of the Appellant were taken and confirmed with the Appellant by Mr. Tsang Hing Wah. I fail to understand why the allegations were made against me."

6. The matter does not, however, end there. In the plea in mitigation counsel said:

"When working, my Lord, defendant, or by occupation, so to say, the defendant is a taxi-driver, having qualified about two years, and he was able to earn up to eight thousand, or in the region of eight thousand to ten thousand dollars a month. And then in the course of last year, he was lured into gambling firstly, and then he was introduced to drugs. And through these, one might say, very distasteful activities, the defendant became running into debts. And obviously, as a result, he had been lured into participating, or assisting rather, into this white powder business.

My Lord, obviously he is not the mastermind as your Lordship had the chance of reading the cautioned statement. He is only small, one might say, a minor character in the operation."

7. The judge, having heard the mitigation, when sentencing, said:

"You became a drug addict and you sell drugs, and you know that selling drugs is a very serious offence. Although you are not the mastermind, as Mr. LEE has submitted on your behalf, of this business of selling drugs from the premises, you have assisted in perpetrating such trade and you do not know how much harm you have caused to the public in so doing, so you only have yourself to blame for all the consequences of such an offence."

8. The appellant makes no mention of the mitigation which counsel made on his behalf which counsel has sworn in his affidavit was made on instructions. The matter, however, still does not end there. The applicant in his grounds of appeal against sentence which he drafted and filed himself said:

"I pray your Lordship to take into consideration that I did not have any previous criminal record in relation to dangerous drugs, and it was my first offence in which I was used by others and my role was trivial. Moreover, I was willing to plead guilty and want to turn over a new leaf. On these grounds, I hope the appeal will lead to a shorter term of custody."

9. It is true that, in his affidavit, he sought to explain the words "I was willing to plead guilty and want to turn over a new leaf" by saying:

"When I filed my home made grounds of appeal against sentence I was provided with assistance from officers of the Correctional Services Department and when I wrote the words: 'I was willing to plead guilty', I was merely following a precedent in another set of appeal papers that were provided to me as guidance. I reiterate that I was never willing to plead guilty but did so for the reasons that I have set out in detail above."

10. His admission in his grounds of appeal was a clear and voluntary one of guilt to the offence charged. Upon the basis of the totality of the material before us, we have no hesitation in rejecting the applicant's suggestion, upon which the submission that the plea was null and void is based, that he was overborne. In those circumstances his application for leave to appeal against conviction out of time is refused.

11. The applicant in this matter also seeks leave to appeal against the sentence of 13 years' imprisonment that was imposed upon him. The trial judge when sentencing said:

"The only mitigating factor that may be taken into account in your favour is your plea of guilty, after a trial which has taken over three days. Your plea came at a very late stage but it is still not too late to have a discount to be given in your favour. So in the circumstances I impose a sentence of 13 years' imprisonment."

12. Given the guidelines in Lau Tak-ming to which the judge paid heed, nothing can be suggested which would indicate that that sentence of 13 years was in any way improper. Indeed, it was in our view a correct one in the circumstances. The application for leave to appeal against sentence is therefore also refused.

Representation:

Mr. D.G. Saw (Crown Prosecutor) for the Respondent.

Mr. Kevin Egan (Messrs. Oswald Wong & Heung) for the Applicant.