HKSAR v. IKA PUTRI PRAPTANINGRUM

HCCC 135/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 135 OF 2017

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REASONS FOR RULING

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1.  The applicant pleaded guilty to one count of trafficking in dangerous drugs contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 before the Eastern Magistrate’s Court on 18 April 2017. She appears today by way of Notice of Motion dated 12 September 2017 represented by Mr Bullett, on an application to reverse that plea on the basis that it was tendered involuntarily by reason of duress or not being an exercise of free choice.

Background facts of alleged offence

2.  The applicant was arrested by Customs and Excise officers on 14 July 2016 when she accepted delivery of a parcel from Brazil, which was found to contain 319 grammes of cocaine.  The applicant accepted that her name and contact details were on the parcel and that she had previously rung the post office to arrange for delivery of the parcel to her at a false address.  Upon arrest and caution and later in interview, she said she had agreed to receive the parcel for a friend named Gita and had been told the parcel was dangerous but when she queried that comment, she was instructed that it contained Indonesian clothes.  She was to give the parcel to her boyfriend who would pass it on.  She suspected it was not clothes but drugs because the parcel was from Brazil.  She had previously accepted three other parcels for Gita which were from the Philippines and Brazil.  Whilst she suspected that there were dangerous drugs in the parcel, she did not actually know what was in it.

Background facts of applicant

3.  The applicant is a 26‑year‑old Indonesian passport holder who first entered Hong Kong in 2012 to work as domestic helper.  At that time, she was separated from her husband and had a 2‑year‑old son, who is now seven years of age.  She divorced her husband in late 2012.  Her employment as a domestic helper lasted only one year.  Thereafter, she remained unlawfully until she filed a torture claim in 2014.  She met her boyfriend “Supriadi” in 2014.  She lived with him and was supported by him until the time of her arrest.  He was also a Form 8 holder but was nevertheless in a position to provide her with $6,000 to 9,000 per month which she sent to Indonesia for the upkeep of her son.

The application

4.  The papers before the court include an affirmation dated 11 September 2017, to which was appended a letter from Supriadi dated 27 July 2016 [Exh IPP-1] which was shortly after her arrest and remand in custody.  That affirmation maintained that the content of the letter was such that the applicant believed that Supriadi was threatening to harm the applicant’s sister and son if she did not plead guilty to this offence.  She relies upon the following:

“…please do not worry about matters back home. Dewi and Nanda will still be looked after by me”.

Dewi refers to the applicant’s younger sister and Nanda is a reference to her son.  In her affirmation at paragraphs 18 and 20, the applicant maintains that she did not understand this to mean that her boyfriend would indeed maintain her son and sister because he had “never really taken care of my son and during the time we lived together he rarely mentioned about my son…”, but that he was in fact threatening harm to her son.  It was the threat of harm to her son which formed the basis of the duress:

“As I was fearful of what Supriadi might do to threaten the safety of my son, I decided to do as he told me to do. On 6 April 2017 [incorrect date], I indicated at the committal hearing at the Eastern Magistrates’ Court that I would plead guilty to the charge….”

This, she said, must be read against the abusive relationship she had with Supriadi and the violence he had previously used against her.

5.  Even upon the face of the letter of 27 July 2016, the applicant faced some difficulty.  There is no explicit reference to any harm to her son.  Indeed, at page 2 of the translation, the letter goes on to say once again that he wishes to help her sister on her wedding day and to look after Nanda.  The letter also includes advice to the applicant to say that she did not know about the contents of the parcel.  It does not suggest at any stage that she should plead guilty.

6.  The applicant chose to give evidence to support her affirmation.  The oral evidence of the applicant supports a plain and simple reading of the letter.  She confirmed that throughout their relationship up to the time of her arrest, her boyfriend had given her between $6-9,000 per month to maintain her son.  After her arrest money was still sent to her family and it could not have come from anywhere else but from her boyfriend.  He had continued to do so until a month ago when she had last seen him.  He had also paid for her younger sister’s wedding in the intervening period after her arrest and after the date of the letter.

7.  When first asked about her understanding of the reference to Dewi and Nanda by Mr Bullett, she answered:

“In September, Dewi was to be married. If I admit the goods, he would help financially. Whereas Nanda is my son, he would give him financial assistance in the future. I had no choice”.

That answer does not support the suggestion that she was focusing on a threat to her son.  Indeed, it supports Mr Bullett’s argument that he was continuing to help her financially to ensure that she pleaded guilty, but that of course would not found a basis for this application under duress.

8.  In answer to Mr Cheng on behalf of the prosecution, the applicant accepted initially that she had pleaded guilty to ensure the boyfriend continued the financial support to her son.  She accepted that on the day of plea, she had no reason to believe her son was the subject of immediate harm and there had been no direct threat.  She also mentioned that she had hoped to receive a discount in sentence for her plea.  In re‑examination, she explained that she had never discussed the threat with her boyfriend when he visited her in prison which had been between April 2017 and July 2017. I note that he had not visited her before her plea but he had written to her.  Those letters contained nothing of value in this application.  She maintained they never discussed the issue of providing financial support to her son.  I am somewhat surprised by that if she was as concerned about her son’s welfare as she says she was.  She said that she had wanted only to discuss the facts behind the case and he had refused.  The applicant said that around the time of his third visit to her in May of this year, she had decided to ask to reverse her plea but had not told him about this decision or discussed it with him.  She told the court she had changed her mind about her plea because she did not want to be a fool and felt she was a victim.  This is in conflict with her earlier evidence in chief which suggested that the pivotal moment had come when she had been able to ensure that her ex-husband would return to his family home from Malaysia in order to take care of his son.  The difficulty she has with that suggestion is that he had not yet returned home to Indonesia in May 2017 nor at the stage it was indicated to the court that this application was to be made, which was on 2 August 2017 before Anthea Pang J. On 2 August 2017 therefore, so far as she was concerned, nothing had changed in respect of the domestic vulnerability of her son.

Relevant legal principles for reversal of plea

9.  Where a defendant has entered a plea of guilty but seeks to change that plea from guilty to not guilty, the court has the discretion to allow the plea to be withdrawn.

10.  This discretion must be exercised judicially: R v Dodd (1981) 74 Cr App R 50.

11.  The circumstances in which a defendant may be allowed to withdraw a plea of guilty may include when the plea is found to be involuntary because of unfair pressure on the defendant.  That is because a plea of guilty must be entered voluntarily.  If, at the time she pleaded guilty, the accused was subject to such pressure that she did not genuinely have free choice, the plea would be a nullity: R v Turner [1970] 2 QB 321. 

12.  In my view the reference to duress within the authorities provided is not intended to suggest that the test for reversal of plea be on the same footing as that for the defence of duress in criminal law.  The test is simply that of involuntariness as it is understood generally and that involuntariness may come about in several ways.  In this instance it is suggested that it comes about because of undue pressure placed upon the applicant by her boyfriend in the form of a threat to harm her sister and son.  It is against the background of that complaint that the court is asked to consider the circumstances in which the plea of guilty was entered by the applicant. 

13.  In HKSAR v Shum Wan Foon (2014) 17 HKCFAR 303, Fok PJ summarised the relevant principles in relation to an application to reverse a guilty plea as follows:

“11. It is a self-evident proposition that a plea of guilty should be entered voluntarily. A guilty plea made under duress, inducement or misrepresentation is a nullity: see, for example, The Queen v Lam Yin [1995] 2 HKCLR 124 at p 127 lines 20-24; R v Li Yuen Chu [1994] 2 HKC 621; and HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125 at p 135.

12.  A magistrate has a discretion to allow a defendant to change a plea of guilty to one of not guilty at any time prior to passing sentence.  This is the case even where the guilty plea is unequivocal.  The discretion must be exercised judicially.  For these propositions, see Chan Wah v The Queen [1967] HKLR 254; S (An Infant) v Recorder of Manchester [1971] AC 481 (HL) esp. per Lord Reid at pp 488H and 491A-E and Lord Upjohn at p 507E-H; and Eric Henry Dodd and Others (1982) 74 Cr.App.R. 50 at p 57.”

14.  Fok PJ then went on to explain the procedure to be followed by the court when dealing with such an application and emphasised that it was incumbent on a court to make sufficient inquiries to ascertain the basis of the defendant’s wish to reverse his plea and to decide if the basis was sound in fact and in law.  He said:

“13. Where a defendant applies to change his plea from guilty to not guilty, it is incumbent on a magistrate to make sufficient inquiries to ascertain the basis of the defendant’s wish to reverse his plea and to decide if that basis is sound in fact and in law. Authority for this proposition can be found in the judgment of Huggins JA (as he then was) in Wong Ching-wah v The Queen [1976] HKLR 412 where he said, at pp 413-414:

‘What, however, worries me is that the learned magistrate did not apparently make any proper enquiry into the facts at the time that [the defendant’s solicitor] made his application. The question was then one of fact, whether or not the plea was her plea or whether it was a plea made under duress. That, in my view, was a matter which should have been investigated as a matter of fact and probably on oath. No enquiry was made: the magistrate merely says that in all the circumstances he was satisfied that the plea should not be allowed to be withdrawn. His conclusion may have been right, but in my view there was not sufficient enquiry. I am not going to embark upon an enquiry at this stage and justice requires that this girl be given the opportunity to reverse her plea and make her defence.’ (Emphasis added)

14. In The Queen v Lee Kwok Sum, unrep., HCMA 1597/1983 (7 February 1984), Garcia J held, citing Wong Ching-wah as authority, that the discretion to allow a reversal of a plea cannot be exercised judicially without a hearing to inquire into allegations of duress.

15. There are other examples of the application of this principle where the issue is not one of duress but of inducement and misrepresentation: see, Law Hau On v The Queen, unrep., CACC 578/1982 (3 August 1982); R v Li Yuen Chu [1994] 2 HKC 621; and The Queen v Lam Yin [1995] 2 HKCLR 124. As Sir Alan Huggins VP held in Law Hau On v The Queen (at p 4):

‘It is easy to be wise after the event but it must be said that in the event it is unfortunate that the magistrate did not inquire into the allegation, for we would then know the real facts. As it is, there is a possibility that the Appellant pleaded Guilty when he would not have done so had he not been induced by circumstances which he could now reasonably believe to have amounted to a trick. However remote that possibility I think that justice requires that his plea be declared null and void and that there should be a venire de novo. It matters not that the magistrate may well have been right when he said that on the basis of the admitted facts it would have been difficult for anyone to advise the Appellant to do otherwise than enter a plea of Guilty: the Appellant was entitled, if he wished, to have the case formally proved against him.’ (Emphasis added)

16.  What will amount to sufficient inquiries will depend on the circumstances of the case and the basis on which it is alleged the defendant should be permitted to reverse his plea.  In The Queen v Lam Yin [1995] 2 HKCLR 124 Keith J (as he then was) considered that it would be necessary for the magistrate to adjourn the application for leave to change the pleas to a date upon which the appellant and immigration officer could give evidence about the alleged conversation said to be the basis of the misrepresentation inducing his guilty pleas (see pp 127-128).  In that case, whether the immigration officer actually said what the appellant claimed, and what its impact on the appellant actually was, were issues of fact which had to be determined before the magistrate could decide if the original pleas were nullities.  In other cases, the magistrate’s duty to inquire may not require the adjournment of the case if any factual issues that need to be resolved in order for the magistrate to exercise a fully-informed discretion can fairly be determined there and then.”

For that reason the court took into account the affirmation of the defendant but was also assisted by her oral evidence upon which the court could place more weight.

15.  I note that Fok PJ also emphasised that the discretion to permit a defendant to reverse his plea should be exercised very sparingly and only in clear cases.

Conclusion

16.  As has been said, the question of whether the applicant’s plea was made as a result of duress is a question of fact and law.

17.  I do not find on a balance of probabilities, that the applicant entered her plea of guilty on 18 April 2017 involuntarily as a result of suffering from duress or lack of freedom of choice in that she believed if she did not do so then some harm would befall her son at the hands of Supriadi or his associates.

18.  It is more likely that the applicant was motivated in her plea by the offer of continued financial support to her family which she accepted continued throughout her remand in custody.  I find this to be the case because the opportunity for financial support for her family was something that had prompted her continued relationship over a number of years with a man whom she said regularly abused her.  There can be no other reason why she would have remained with him if what she said was true.  The hope of financial support does not amount to undue pressure in the circumstances of this case because the child was already being looked after by his father’s family.  There is no evidence before me that he was not being well cared for in all respects.  The applicant simply wanted more financial security.  She clearly understood what it was she was doing when she entered her plea of guilty and was motivated by the desire to obtain the maximum discount off her sentence as she readily admitted in evidence.  Her change of heart and desire to withdraw her plea comes about because she realises she has been used by Supriadi, something she did entirely voluntarily.

19.  Accordingly I will not allow her to withdraw her plea of guilty entered on 18 April 2017 before the Eastern Magistrates’ Court and this matter will be listed for sentence on 19 October 2017.