HKSAR v. TANG YIU CHEONG, JACKIE

CACC 202/2021, [2023] HKCA 692

On Appeal From [2021] HKCFI 2772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 202 OF 2021

(ON APPEAL FROM HCCC NO 324 OF 2020)

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REASONS FOR JUDGMENT

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Historical background

1.  By a Form XI Notice filed on 15 September 2021, the applicant sought leave to appeal against his conviction in respect of a single count of trafficking in a dangerous drug, namely 2,980.59 grammes of a solid containing 2,584.25 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Since the conviction resulted from his own plea, followed by an unsuccessful application to reverse that plea, it is necessary to understand the background to these proceedings.

2.  On 14 December 2020, the applicant, represented by counsel, Mr Victor Ho, pleaded guilty to the charge before a magistrate and verbally admitted the Summary of Facts. However, having been committed to the High Court for sentence on 1 June 2021, the applicant, who was by now represented by different counsel, Mr Bernard Yuen, indicated to Barnes J that he intended to reverse his earlier plea. Accordingly, Barnes J adjourned the hearing to 21 June 2021 for psychiatric and psychological reports on the applicant, at the request of defence counsel. At the resumed hearing, albeit considered fit to plead by both psychiatrist and psychologist, the applicant embarked on the application to reverse his plea, the hearing of which was re-fixed to 24 August 2021. Barnes J also directed that affirmation evidence and written submissions be filed prior to the hearing.

3.  On 24 August 2021, the applicant appeared before Toh J (“the judge”), who had replaced Barnes J as judge, and who, having considered the papers and received oral submissions from defence counsel, refused his application to reverse his plea. On 26 August 2021, the judge accordingly convicted the applicant and sentenced him to 14 years and 7 months’ imprisonment.

The facts of the case

4.  The applicant arrived in Hong Kong on a flight from Kuala Lumpur in Malaysia on 21 January 2020. At Arrival Hall A of Hong Kong International Airport, Customs officers conducted a search of his suitcase and discovered 7 boxes of purported food products containing a piece of paper and 90 tinfoil packets concealing the ketamine in question. The dangerous drugs were valued at HK$1.5 million.

5.  Upon arrest and caution, the applicant told Customs officers that a person called “Hung Jai” had instructed him to bring the drugs to Hong Kong from Malaysia. In a subsequent video-recorded interview (“VRI”) by police officers, he explained he was in financial difficulties at the time and that Hung Jai, whom he had known for about 18 months, had promised him a reward of HK$10,000 to traffic in the drugs hidden in the boxes; which he duly did.

Grounds to reverse plea

6.  The application to reverse his plea before Toh J was mounted on the following grounds (it having been indicated at the hearing that the applicant would not be testifying in person[1] but would be relying on his affidavit, dated 5 July 2021):

(a)  the applicant was subjected to misconduct such as threats, inducement, coaching and misrepresentation by persons in authority before incriminating himself;

(b)  his family members (in particular, his mother and younger brother), as well as his counsel Mr Ho, had all told him to plead guilty, which he was duly persuaded to do.

Reliance was placed on the decision in HKSAR v Chan Chi Ho Lincoln (2018) 21 HKCFAR 588; the judge was accordingly invited to exercise her discretion to allow the applicant to reverse his plea.

7.  In respect of (b) above, it was contended that Mr Ho had improperly advised the applicant that his case was “doomed and hopeless”[2], a suggestion which counsel denied in his own affidavit[3]. Mr Ho further countered that the applicant had been duly advised not only as to the strength of prosecution evidence and the sentencing discount he could expect on pleading guilty, but also that the admissibility of the VRI (which it was said the applicant refused to watch) could be challenged in voir dire proceedings, failing which the same challenge could be made again before the jury. Mr Ho also stated that the applicant had specifically admitted to him that he had previously served a sentence of 4 years’ imprisonment in Australia for trafficking in dangerous drugs and that he had knowingly trafficked in the dangerous drugs in the present case, although the actual quantity was larger than he expected[4]. Realising that the applicant’s family members wanted him to plead guilty, Mr Ho had emphasised to the applicant that he should make his own choice in the matter[5].

The judge’s ruling on 24 August 2021

8.  The applicant had been assessed as fit to plead by both the psychiatrist and the psychologist in their expert reports furnished to the court. The judge further relied not only on the evidence of Mr Ho, who said he had had no difficulty in communicating with the applicant, and did not think he was suffering from any mental condition[6], but also on the psychiatric and psychological reports, both of which respectively confirmed that the applicant was fully orientated, mentally sound and was not affected by any psychiatric illness (including Asperger’s Syndrome, from which he claimed to suffer)[7].

9.  The judge noted that the applicant was a 47-year-old adult and rejected the contention that family influences would have played a major role in his plea[8].

10.  In response to the defence submission that the complaint against the police was not a recent fabrication, the judge noted that such complaint had first been made on 5 July 2021[9], some 18 months after his arrest. The judge found that Mr Ho had given proper, professional advice to the applicant[10]. She accepted counsel’s recollection of events[11], finding that the applicant had not been pressurised by anyone into pleading guilty.

11.  The judge referred to the six circumstances in which an unequivocal plea could be rendered a nullity, as set out by the Court of Appeal in HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125. She went through each circumstance in the context of the present case, holding[12]:

“ ‘(a) The facts admitted by the defendant do not amount to the offence with which he is charged’, that doesn’t apply here. ‘(b) The admitted facts are equivocal as to guilt’, that does not apply here. ‘(c) The plea was tendered to a charge which was defective on its face or invalid or unclear’, that does not apply here.

“ ‘(d) The plea was tendered involuntarily, e.g., induced by duress or misrepresentation or was not an exercise of free choice.’ Now, Mr Yuen bases his submission on this paragraph (d) in that he says, he submitted, that because of the alleged police improprieties prior to the taking of the caution statement and the video-recorded interview, therefore, his plea was rendered a nullity and was not an exercise of free choice, and I beg to differ because this paragraph is about the plea was being tendered involuntarily. It is not about what happened previously, what was taken in the -- in the voir dire.

If counsel had applied pressure on him, if counsel had misrepresented to him what was clearly not the facts or the law and put pressure on him that he should plead guilty or else, then that may amount to an exercise of free will, but that didn’t seem to be the case here. All the defendant alleges is that the counsel said to him that his case was hopeless. And even that Mr Ho has categorically denied, and I accept Mr Ho’s recollection in his affidavit. He did everything properly. If he had told the defendant that it was hopeless why would he need to explain to him that if he fought the case there would be a voir dire and that if -- and that it could be repeated before the jury. It just didn’t make sense.

Now, going on with the other circumstances identified by the Court of Appeal, ‘(e) The plea was induced by fraud or made under a fundamental mistake.’ Clearly, that is not the case here. And, ‘(f) The plea did not result from a deliberate and informed decision.’ Again, that is not the case here. As Mr Ho fully explained in his affidavit he took time to explain and also obtained the defendant’s signature that he had -- he had known nothing that -- to say against the Summary of Facts which had been explained to him and read to him.

Now, the -- it is also clear that the defendant in no way suffered any unfair treatment. He was properly represented by an experienced counsel and every time counsel saw him there was an instructing solicitor present. Now, there was no evidence that Mr Ho had misinformed or improperly advised the defendant. In fact, he told the defendant that no one can make him plead. He -- it is his own choice at the time when he relayed to the defendant his family’s wish that he should consider pleading guilty in order to gain the discount. So it is -- it was clear Mr Ho had stressed to him that he made the plea. It is his own choice. And as Mr Chan pointed out, the defendant is of full age and sound mind, and an intelligent man, according to the medical reports.”

12.  The judge also considered the overall interests of justice, saying[13]:

“Mr Yuen, then submitted that it would be in the interests of justice to allow him to reverse his plea. I asked the rhetorical question: what does he mean by interests of justice? The interests of justice requires that cases do not -- do not get stuck in the system for years or months or weeks. If defendants were allowed to willy-nilly at their own pleasure play the system in changing and reversing their pleas then the whole court system would be thrown into disarray. Time will be wasted. Court proceedings will be delayed for others who are waiting for trial.

As in this case, we have spent so much time. There were two adjournments in the Court of First Instance. One to obtain psychologist and psychiatric reports. Secondly, it was adjourned again to today in order for the preparation for a reversal of plea. Now, all this time could have been taken up by another defendant awaiting trial.”

13.  In the result, the judge refused the application to reverse plea.

Grounds of appeal

14.  For present purposes, the applicant has averred three homemade grounds of appeal in his Form XI Notice:

“(1) On 24 August, the day of the hearing, the trial judge was changed without notifying me in advance.

(2) The trial judge conducting the hearing that day did not follow the information and/or info and mode of the previous trial judge in handling my hearing that day.

(3) The trial judge treated me in a completely unfair way.”

15.  On 18 February 2022, the Court received from the Correctional Services Department a further affidavit from the applicant dated 16 February 2022. Much of what he has said comes down to an assertion that he is innocent of the offence. It is sufficient nevertheless to highlight two matters in that affidavit. First, the applicant claimed (as he had done in his previous affidavit[14]) that he was actually helping Hung Jai bring some jade stones, not dangerous drugs, from Malaysia to Hong Kong[15]. Secondly, he criticised the judge for unfairly ignoring the fact that he suffered from Asperger’s Syndrome[16]; which seems to form the real basis of the complaint in Ground 3.

16.  In respect of the first matter, Mr Ho and the trial solicitor, Mr Tang Siu Man, have each filed affidavits explaining that the applicant had never mentioned in his instructions, or at any stage of his dealings with them, that he was asked to carry jade stones[17].

Respondent’s submissions

17.  Regarding Ground 1, Ms Christal Chan, for the respondent, submitted that there is no provision or requirement which gives a defendant a right to be notified in advance of any change of the presiding judge. The proper focus should rather be on whether there was apparent bias on the part of the judge presiding over the case, in accordance with the test set out by the Court of Final Appeal in HKSAR v Md Emran Hossain [2017] 1 HKC 534. Ms Chan argued that no apparent bias could be said to exist in the present case.

18.  In respect of Ground 2, Ms Chan contended that the judge correctly applied the principles in Wong Chi Yuk, having taken into account all the evidence and submissions relevant to the application before her, and having given detailed reasons for refusing such application. Ms Chan submitted that the judge specifically and correctly considered the interests of justice.

19.  Ms Chan pointed out that Ground 3 was not elaborated upon by the applicant at all; in any event, there was nothing to show that the judge had treated the applicant unfairly.

Consideration

20.  Ground 1 can be disposed of very simply. A defendant/applicant does not have a right to choose his/her judge and cannot reasonably expect to be informed of a change of judge. In Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281, the Appeal Committee of the Court of Final Appeal held, at [38]:

“Judges must be wary of unjustified applications for their recusal motivated by tactical or forum-shopping considerations. By its very nature, it is generally in quite exceptional cases that recusal is called for. As Kwan JA noted, judges can generally be expected to exercise proper judicial standard even after they have found it necessary to criticize wayward legal representatives. Judges should accordingly feel confident of appellate support if they continue with the case where there are no reasonable grounds for apprehending a risk of bias. On the other hand, if there is a real possibility that a risk of bias might objectively be apprehended, this should be recognized and they should prudently arrange for a colleague take over the proceedings. To press on with hearing the matter in such cases poses a risk of costs being thrown away if, on appeal, it is held (as in the present case) that the judge should not have continued to hear the case. Even if there is a suspicion that forum shopping motivates an application, the fact and appearance of judicial impartiality must have priority and the prudent course should be followed where a real risk of apprehended bias exists.”

21.  As to the test for apparent bias, it was held in Md Emran Hossain that:

“36. The test for apparent bias in Hong Kong is the reasonable apprehension of bias test applied by the Appeal Committee in its determination in Deacons v White & Case Ltd Liability Partnership & Ors at [18] to [21], namely:

‘The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility ... that the tribunal was biased.’

Although that was said in the context of a civil case, the position of a civil judge is in principle the same as that of a criminal judge in this regard and there is no reason why the same test should not apply where it is said that there is apparent bias on the part of a judge in a criminal case: see O’Neill v HM Advocate (No.2) (supra.) at [51].

37. The test of apparent bias is an objective one and the issue is considered from the viewpoint of an observer who is both fair-minded and informed....”

22.  The present matter was originally expected to proceed to sentence in the High Court; the hearing of the application for a reversal of plea was fixed only as a result of the applicant’s change of position on 1 June 2021. No objection was ever taken to a different judge presiding over the hearing of the application, or at all; and such objection would have been rightly rejected if it had been. The applicant has never alleged that there was, nor can there be seen to have been, any apparent bias on the part of the judge hearing the case. Ground 1 discloses no reasonably arguable ground of appeal.

23.  In respect of Ground 2, the judge considered that the alleged police misconduct had nothing realistically to do with whether the applicant had tendered his plea voluntarily before a magistrate 11 months later. The judge was also entitled to find as a matter of fact (and common sense) that the pressure from his family members was not sufficient to cause the applicant to enter an involuntary plea.

24.  As to the alleged misrepresentation by counsel, a major plank of the applicant’s complaint is that, had he not been advised by Mr Ho that his case was “doomed and hopeless”, he would not have pleaded guilty but would have chosen to proceed to trial. In this regard, a distinction should perhaps be drawn between legal advice regarding the merits of a case, and legal advice regarding the effect of an act done during the proceedings: see HKSAR v Chak Kong Fai (Unrep., CACC 353/2019, 22 February 2023). The validity of such act may be challenged only if the legal advice falls within the second category. In any event, Mr Ho has categorically denied giving the alleged advice and the judge accepted his denial.

25.  Having found that there was no valid basis on which the applicant’s unequivocal plea could be reversed or treated as a nullity, what ultimately fell to be considered was whether the judge should have exercised her discretion to allow a reversal of plea where it might be in the interests of justice to do so; for example, where there was something which tended to suggest that the defendant may not in fact be guilty of the offence: see Chan Chi Ho Lincoln (supra), at [44]-[45].

26.  The central issue in the case was knowledge, on which the applicant had made a full confession. In seeking to reverse his plea, the applicant attempted to challenge the voluntariness of such confession on the basis of police oppression and misconduct. An underlying allegation under the complaint was that he was in fact carrying, or told he was carrying, jade or jade stones only; however, the police did not believe him and, knowing of his previous conviction for trafficking in Australia, enticed him into admitting the offence[18]. A similar allegation was reported in the psychiatric report of Dr Amy Liu on 16 June 2021[19]; and in his own affidavit dated 16 February 2022, at [11]. However, the judge rejected the allegation as part of his overall complaint against the police. It is perhaps strange, if this really was his belief, that he never saw fit to mention it to Mr Ho, or his solicitor (or, for that matter, to anyone else) at any stage of their representation of the applicant; indeed, it did not emerge until some 18 months later.

27.  Ground 2 is not reasonably arguable.

28.  As to the applicant’s purported Asperger’s Syndrome condition, Dr Liu recorded in her report that, “Tang said that he was suspected to have a condition namely Asperger Syndrome during a period of stay in Australia in early 2010’s”[20]. However, Dr Liu was of the view that there was no evidence the applicant was in fact suffering from any psychiatric illness[21].

29.  I can see no reason to disturb this piece of medical evidence. Finally, there is nothing whatsoever in the bare assertion that the judge treated the applicant unfairly. Ground 3 is also not reasonably arguable.

30.  Finally, in deference to the letter from the Faculty of Law of the University of Hong Kong, which the applicant has brought to my attention, I consider that the case of Chan Chi Ho Lincoln, on which reliance is placed, has not, with respect, been properly understood or applied to the circumstances of this case. In particular, the author of the letter relies on the statement in the judgment in Chan Chi Ho Lincoln, that[22]:

“In the type of case under consideration, where there is material appearing in mitigation or the reports, which tends to suggest that the defendant may not be guilty of the offence charged, the interests of justice would, in a normal case, weigh heavily in favour of allowing a reversal of plea.”

On the face of it, this is a rather wide statement by the Court, which the author of the letter has interpreted as capable of incorporating counsel’s written submissions before Toh J alleging police improprieties prior to the applicant’s admissions in the VRI, which might have rendered his admissions inadmissible, and which “could be relevant to the issue of whether (the applicant) might not be guilty of the offence charged”[23]. Furthermore, the author then asserts that the claims of innocence by the applicant recorded by the authors of the psychological and a psychiatric reports (both written on 16 June 2021, some 6 months after the applicant had pleaded guilty) might also qualify as “material appearing in… the reports which tends to suggest that the defendant may not be guilty of the offence charged”[24].

31.  If this interpretation of what the Court said in Chan Chi Ho Lincoln were correct, it would lead to considerable uncertainty in the criminal law, because any defendant or applicant who has a change of heart about his plea of guilty could simply point to his later instructions to new lawyers, or to what he subsequently told a medical expert or, indeed, anyone else to the effect that he was not guilty, in order to ground an application to reverse his plea and instigate an enquiry by a judge. Such “material”, all of which in this case has emanated from, and been entirely self-generated by, the applicant himself well after the plea of guilty had been entered, cannot surely have been what the Court of Final Appeal had in mind. It should be remembered that the Summary of Facts, which the applicant verbally accepted before the magistrate in open court on 14 December 2020 included a detailed paragraph incorporating the clear admissions of knowledge in his VRI[25] and his earlier confession to a Customs officer[26]. I have further inspected the lower court file and I note that the applicant himself verbally told the Magistrate, “I admit the facts”. In response to the Magistrate’s subsequent question, “Is your plea made voluntarily”, he said “Yes”.

32.  It will be noted that the appellant in Chan Chi Ho Lincoln, who was not legally represented at trial, had pleaded guilty to a charge of careless driving, which he then put in issue in mitigation by suggesting that the victim’s negligence had made the accident unavoidable. The Community Service report called for by the magistrate also reported the appellant’s version of events and that the appellant thought he was innocent. It is in that context that the Court went on, in the same passage, to say:

“Of course, where, for instance, the court has a real doubt that what is subsequently asserted is only a recent fabrication to avoid the consequence of, say, a heavy sentence following a guilty plea, the court may certainly probe deeper into the matter before deciding how its discretion should be exercised.”

33.  All of the so-called “material” relied upon before me emerged well after the applicant’s original plea, which itself was based on facts amounting to a clear, unequivocal confession of knowledge that he was carrying dangerous drugs, and well after the offence itself in January 2020. As I have said, it was entirely self-generated material. Nevertheless, the judge clearly considered it and had no qualms whatsoever about refusing the application. She also plainly realised she had a discretion, because she said so in terms, having been specifically referred by Mr Yuen in his written submission to paragraphs 43, 44 and 46 of the judgment in Chan Chi Ho Lincoln[27]. Yet the judge declined to exercise her discretion in favour of allowing the applicant to reverse his plea. She expressly found[28]:

“In all the circumstances, having considered all the documentation in front of me, counsel’s submissions, I have no doubt that the defendant made his plea unequivocally and admitted the facts unequivocally before the learned magistrate, and that there is nothing before me for me to exercise my discretion in favour of the defendant’s application for a reversal of plea”.

34.  I too have examined the material that was before the judge and listened to the applicant’s extensive oral submissions before me. I see no reasonably arguable ground of appeal to the effect that the judge’s discretion has miscarried. For the sake of completeness, there is no “material” at all, let alone evidence, supporting the applicant’s assertion that he suffers from Asperger’s Syndrome. On the contrary, the psychiatrist said in terms in her report[29]: “There is so far no evidence of any psychiatric illness including Asperger’s Syndrome”. The applicant may think he has Asperger’s Syndrome but, even if he did have such a condition, I do not see how that could assist him in his application to change his plea entered some 11 months after the commission of the offence.

35.  The application is refused. The applicant can of course renew his application before the Court of Appeal. However, he should also clearly understand that that Court has the power to order loss of any time he has spent in custody pending his appeal, if it were to come to the conclusion that there was no justification whatsoever for the renewal of the application.