HKSAR v. LAM WING HIN

HCCC 217/2019

[2020] HKCFI 2366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 217 OF 2019

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REASONS FOR JUDGMENT

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1.  This is an application by the defendant to reverse his plea of guilty to one of not guilty.

2.  On 24 June 2019 the defendant pleaded guilty before a magistrate at the Eastern Magistracy to a charge of conspiracy to traffic in dangerous drugs contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance and 159A Cap 200.  Having pleaded guilty and admitted the Summary of Facts he was committed to the Court of First Instance (“CFI”) for sentence on 3 February 2020.

3.  On 30 January 2020 the solicitors for the defendant (Messrs C.O.  Yu & Co) assigned by the Director of Legal Aid (DLA) informed the Court by letter that the defendant intended to change his plea to not guilty.  Given the Covid 19 pandemic and the Court’s General Adjournment Period (GAP) the case was adjourned and re-fixed to 30 March 2020. The Legal Aid Certificate previously issued to the defendant was discharged on 16 March 2020.

4.  At the re-fixed hearing on 30 March 2020 the defendant was privately represented by Mr Mak Kin-ming counsel instructed by Messrs Littlewoods.  Mr Mak informed the Court of the defendant’s application to change his plea to not guilty, however as he was only instructed that morning he requested and was granted an adjournment for three months for him to take instructions from the defendant.  After a mention hearing on 15 July 2020 the application was set down for the hearing.

The prosecution case as admitted by the defendant in the Summary of Facts

5.  The Summary of Facts which was admitted by the defendant revealed that on 8 December 2017 at around 7.05 pm police officers spotted the defendant entering Metropolitan Storage (the Storage Centre) located at Unit 1203 on the 12^th Floor of the Building located at Nos 40‑44 Kwai Wing Road, Kwai Chung, New Territories (the Building).

6.  About 5 minutes later the defendant walked out from the Storage Centre with a black plastic bag in his right hand.  He was intercepted by police officers for investigation and search.  Upon search of the black plastic bag the defendant was holding was found 100 foilpacks containing 1,000 tablets containing 2.60 grammes of phenazepam.

7.  Upon arrest and caution the defendant confessed that Yip Chai asked him to retrieve the bag of No 5 from the Storage Centre and he was delivering the No 5 for Yip Chai.  Upon further enquiry he told them that the No 5 was retrieved from the Unit 291 of the Storage Centre and that Yip Chai gave him the key card and key to it.

8.  With the key card and key found and seized from the defendant, the police gained entry to Unit 291 inside the Storage Centre.

9.  When the police conducted a Search of Unit 291, found inside were 12,989 grammes of a solid containing 10.809 grammes of cocaine with an estimated street value of HK$15,132,185 (E2) and 7,250 foilpacks containing 72,500 tablets containing 164.68 grammes of phenazepam (E3), 1 electronic scale, 1 pair of scissors, 3 boxes of resealable plastic bags and 30 boxes of soda powder.

10.  The defendant was further cautioned and admitted that Yip Chai had told him to retrieve the drugs inside the Unit 291.

11.  In a subsequent cautioned video recorded interview, he admitted inter-alia that Yip Chai had recruited him about 2-4 weeks ago to deliver No 5 and cocaine for reward and he agreed.  They key card and key to Unit 291 was given to him by Yip Chai.  He had asked him to check the quantity of the drugs inside.  On 1 December 2017 he went to the Unit with others to bring 2 suitcases to Unit 291.  He went to Unit 291 on 3 and 6 December 2017 as instructed by Yip Chai to “pack stuff” both times he saw dangerous drugs inside and noticed the quantity of drugs decreasing.

12.  On 8 December 2017, before he was arrested Yip Chai gave him a plastic bag containing packets of cocaine inside.  He went to Unit 291 and stored them inside there.  He then retrieved E1 whilst he was inside Unit 291, then when he left he was arrested.

13.  CCTV captured the defendant and 3 men entering and leaving the Storage Centre at the material times.

14.  Fingerprints lifted from the door of the locker of Unit 291 positively matched the left index and left middle finger of the defendant.

15.  DNA analysis showed the defendant’s DNA from a plastic bag containing cocaine.

16.  The defendant now admits and accepts that at all material times he conspired together with the person known as Yip Chai and a person known as Yau Wai-shun to unlawfully traffic in cocaine and phenazepam.

Chronology of court hearing dates and legal representation

17.  According to the Return Day records[1] on the first return day at Eastern Magistracy the defendant was first represented by Legal Aid Counsel on 29 October 2018.  On 10 December 2018 Mr Ricky Yu Chung On (Mr Yu) was the solicitor assigned by DLA to act for the defendant.  He represented the defendant until his discharge on 12 January 2020.

18.  Mr Kevin Wong counsel (1^st barrister) was assigned by DLA and represented the defendant at the hearings of 21 January 2019 and 4 March 2019.

19.  At the following hearing on 23 April 2019 the defendant was represented by Ms Vivian Wong counsel (2^nd barrister). Ms Wong continued her representation and at the hearing of 24 June 2019 the defendant pleaded guilty and admitted the summary of facts in open court.

20.  The Legal Aid Certificate issued to the defendant was discharged on 16 March 2020 after the defendant wrote to the DLA on 12 January 2020 that he wanted to reverse his plea.

21.  From 30 March 2020 onwards the defendant has been represented by Mr Mak and Messrs Littlewoods.

Evidence adduced in the defendant’s application to reverse his plea of guilty

22.  Ms Sheroy Tam Senior Public Prosecutor and Mr Mak agreed that there would be no oral evidence to be heard and relied on the evidence filed in the affirmations.  The evidence before this court was:

(i)  The affirmation of the defendant dated 29 June 2020;

(ii)  The affirmation of Kevin C.W.  Wong dated 6 August 2020 (1^st barrister);

(iii)  The affirmation of Ricky Yu Ching On dated 11 August 2020 (solicitor);

(iv)  The affirmation of Vivian Wong Wing Man dated 11 August 2020 (2^nd barrister); and

(v)  The affirmation of Yiu Chuk-shum dated 11 August 2020 (Senior Legal Aid Counsel)

The defendant’s evidence

23.  The defendant’s case from the outset is that the alleged confession to the charge was made involuntarily as it was obtained by the improper and violent behaviour of the police officers on him during and after his arrest in the hallway and lobby of the 12^th floor of the Building and before being returning into the Storage Centre with the police officers.

24.  The defendant asserts that the CCTV footage of the hallway and the lobby on the 12^th floor of the Building would support his case of the police improprieties.

25.  To support his case of the improprieties by the police officers, the defendant requested Mr Yu to ask for the CCTV footage from the management office for the 12^th floor lobby and hallway and also to request the shops situated along the 12^th floor.  However, Mr Yu told him that as the footage was recorded a long time ago it would not be able to be recovered.  Mr Yu informed him that he would ask the police if they had the footage.  Sometime later Mr Yu informed him that the police did not have it.

26.  The defendant claims that although Ms Wong (the 2^nd barrister) had explained the amended charge and summary of facts prior to his confirmation of his guilty plea he was reluctant to plead guilty.  He did so because he was told the CCTV footage of the 12^th floor lobby and hallway was not available.  The absence of the CCTV exerted pressure on him influencing him into believing that there would be an uphill battle to convince the jury at trial that the police had assaulted him without the CCTV footage.

27.  Further, it is the defendant’s case that since 4 March 2019 some three months before his plea of guilty, the defendant had expressed his wish to discharge his whole legal team.  Firstly by informing the magistrate at the hearing on 4 March as can be evidenced in the return day record[2] where it is recorded “I want to change solicitor.”  Secondly, he wrote to the DLA on the same date exhibited in his affirmation[3] stating the following:

“I am Lam Wing Hin … I had expressed my decision of changing Counsel and solicitor to the magistrate of Court 7, Eastern Magistracy. The magistrate allowed my application, now I hope the counsel be replaced by Wong Wing Man (female), concerning the solicitor, to be arranged by the Director of DLA, grateful for arrangement.”

28.  After the DLA received his letter, the 1^st barrister was changed to the 2^nd barrister however DLA did not change the solicitor Mr Yu.

29.  After his plea of guilty and as a result of the DLA rejecting his request for a change of solicitor he found himself in a dire and unfair situation and therefore made the application to change his plea to one of not guilty.

30.  Additionally, the defendant had not seen any letters written to the management office or to the shops by Mr Yu or any replies by the same.  He was of the view that he had been deprived of the opportunity to put forward a credible defence based on the CCTV footage.

31.  On 12 January 2020 the defendant wrote to the DLA[4] (see paragraph 55 below) informing them of his decision to reverse his plea of guilty owing to Mr Yu deliberately declining to follow his instructions to obtain the CCTV footage as requested by him.

The prosecution evidence

32.  Mr Yu confirmed on 5 December 2018 the defendant had informed him he had been assaulted by the police during his arrest outside the Storage Centre and the defendant wanted to obtain CCTV footage relating to this.  Mr Yu advised him that as the alleged incident happened on 8 December 2017 almost one year ago, from his experience and belief, there would not be any CCTV footage in existence, unless they were seized by the police at the material time.  Mr Yu on the other hand advised the defendant that the CCTV footage seized by the police could show the time when the defendant left the Storage Centre to when he was brought back by the police to the Storage Centre. Mr Yu said[5] as a remedy he would take a more realistic and practical way to write to the Department of Justice to make inquiries on the CCTV seized and see whether there would be any CCTV footage for use in support of the defendant’s alleged assault.  Mr Yu said the defendant accepted his advice.

33.  The following day Mr Yu wrote to the DOJ asking for the CCTV and made enquiries as to whether any other CCTV relating to the 12^th floor had been seized.  On 20 December 2018 the police called Mr Yu’s office – but did not speak to Mr Yu.  Mr Yu came to know that the police only had the CCTV of where the captured photographs were taken (the Storage Centre) and did not have any CCTV footage for the other areas of the 12^th floor.

34.  Thereafter, Mr Yu collected the CCTV footage that the police seized.  He watched the footage and noted that there was a time interval of about 10 minutes after the defendant walked out from the Storage Centre to when he was brought back to the Storage Centre by the police.  He believed this information was very helpful to the defendant for at least there was evidence showing that the police had taken an undue long time outside the Storage Centre before the defendant was brought back to Storage Centre.

35.  On 2 January 2019 he and Mr Kevin Wong had a conference with the defendant.  Mr Yu gave his advice about the CCTV to the defendant.  The defendant accepted his advice that the 10 minutes’ interval was helpful and supported his allegations of being assaulted by the police outside the Storage Centre.  The defendant did not give any further instructions about obtaining other CCTV footage.  The defendant was unable to decide upon his plea.

36.  On 23 February 2019 Mr Kevin Wong and Mr Yu had a conference arranged with the defendant but Mr Wong did not appear because of some unexpected cause.  Mr Yu had the conference with the defendant alone.  The defendant gave him instructions to obtain other documents.  He does not recall the defendant giving him any further instructions to obtain CCTV footage.  He however told the defendant that he would not be able to attend on the return day on 4 March as he had another engagement.  The defendant told Mr Yu that he would ask the court to change his counsel at the next hearing.  There was nothing said by the defendant to him that he did not want him to act for the defendant.

37.  In the meantime, the defendant had given Mr Yu written instructions to change counsel dated 23 February 2019.

38.  Mr Yu’s litigation clerk and Mr Kevin Wong attended the return day on 4 March 2019.  Mr Yu was informed by his litigation clerk that the defendant informed the court that he wanted to change his counsel.  As Mr Yu had received the defendant’s written instruction of 23 February regarding change of counsel, Mr Yu understood that the defendant’s change of “legal representation” meant counsel.  Mr Yu then informed the DLA accordingly.

39.  On 14 March 2019 Ms Vivian Wong was assigned as counsel.  On 6 April 2019 Mr Yu, Ms Wong and her pupil had a conference with the defendant.  Nothing was mentioned about other CCTV footage.  In conference with Ms Wong the defendant decided and confirmed that he would plead guilty to the charge.

40.  On 24 June 2019 prior to the hearing Ms Wong and Mr Yu went to the cell to see the defendant to confirm the summary of facts.  Thereafter on the same day, in open court the defendant pleaded guilty.

41.  Thereafter Mr Yu had three conferences with the defendant.  No mention was made of CCTV footage nor was he told that the defendant did not want him to represent him.

42.  It was only on 24 January 2020 when Ms Wong and Mr Yu visited the defendant, did the defendant first mention as there was no CCTV footage he wanted to reverse his plea.

43.  Mr Yu [6] stated that so far as he can recall the defendant had not instructed him to ask or to write letters to obtain the CCTV from the management office and the shops alongside the hallway.  Mr Yu states that since he first gave advice to the defendant on 5 December 2018 relating to the CCTV footage and his report to him on 2^nd of January 2019 about the position of the CCTV he had never had any notice that the defendant made any allegations and accusations against him for not following his instructions as alleged until he read the defendant’s affirmation filed in support of this application.

44.  The first time he had heard of the complaint about the CCTV footage was on 24 January 2020 when he went to see the defendant with Ms Wong.

Submissions by the defence and prosecution

45.  Mr Mak counsel for the defendant submitted that the evidence shows that at the time the defendant agreed to plead guilty he had no genuine consciousness of guilt.  He did so believing that there was no CCTV footage of the hallway or the lobby to support his case.  However it is clear that the management or the shops were never asked for CCTV and the defendant therefore made his plea without full consideration.

46.  Ms Sheroy Tam for the prosecution submitted that the defendant made his decision to plead guilty voluntarily.  It was a deliberate and conscious decision made with legal advice.  There is no merit in his allegations against Mr Yu.  His application should be refused.

Discussion

47.  There is no dispute by Mr Mak that the defendant’s plea was an unequivocal plea of guilty.  In HKSAR v Chan Chi Ho Lincoln[7], Cheung PJ explained that there was an unfettered discretion to allow the reversal of an unequivocal plea after conviction but before sentence and emphasised that the overriding consideration in the exercise of the discretion must be in the interests of justice.

48.  What is not in dispute between the prosecution and defence are the following facts:

(a)  Mr Yu did not request the management office in the Building or the shops for CCTV footage on the 12^th floor;

(b)  The defendant specifically requested for change of solicitor before the magistrate on 4 March 2019;

(c)  The defendant requested for change of his whole legal team (including Mr Yu) by letter dated 4 March 2019 to the DLA;

(d)  DLA changed the 1^st barrister and instructed the 2^nd barrister on 4 April 2019 but Mr Yu remained and continued to represent the defendant until January 2020; and

(e)  The defendant wrote to DLA on 12 January 2020 informing DLA of his decision to reverse his plea of guilty as Mr Yu did not request for CCTV footage and therefore sought a discharge of his whole legal team[8].

49.  As to the change of legal representation Mr Yiu, Senior Legal Aid Counsel stated at para 5 of his affirmation that the defendant in his letter of 4 March 2019 made no request for change of assigned solicitor and simply stated that the solicitor could be anyone arranged by the DLA.  Although this was Mr Yiu’s understanding of the letter, with respect, the letter by the defendant is unambiguous as to his seeking to engage another solicitor see paragraph 27 above.  This was an unfortunate and regrettable misinterpretation.

50.  Although the defendant did not inform Mr Yu that he did not want him to represent him in the numerous conferences held, it is clear that the defendant had requested for a change of solicitor as early as 4 March 2019.  The DLA only permitted change of counsel and Mr Yu remained assigned which was contrary to the defendant’s clear request.

51.  Although Mr Yu may have been correct in his view that CCTV footage would probably no longer be available after one year had passed, Mr Yu with respect, should have requested the management office and shops for the footage.  This was not done. 

52.  The defendant has a legitimate unease that Mr Yu did not ask the management office and shops if CCTV existed.  Without asking, it was incorrect for Mr Yu to come to the conclusion and inform the defendant that none existed.  Moreover, there was no evidence that the police officers had made any enquiries with the building management or the shops as to the footage of the hallway or lobby.

53.  Should CCTV footage have existed or exists of the hallway and lobby this may have or could prove the alleged improprieties of the police officers and lend support to the defendant’s involuntariness in making the alleged admissions.

54.  Although the defendant entered an unequivocal plea of guilty I accept that he did so as he was influenced by the fact that he was told by Mr Yu there was no CCTV footage but also by the fact that his legal representation had not been changed despite his request.  I am satisfied that his request for the CCTV and his change of legal representation is not a recent fabrication by the defendant.

55.  In the defendant’s letter to DLA on 12 January 2020[9] he wrote:

“I, Lam Wing Hin … have an urgent matter to inform you. I hereby decide to reverse my guilty plea and dismiss the current legal team. The reasons are as follows: my solicitor Mr Yu Chung On Ricky did not issue a lawyer’s letter for me to obtain CCTV footage I requested. He only told me in a perfunctory manner that it was probably not retrievable after such a long time. This CCTV footage had greatly affected my tendency to plead guilty, causing me to be unable to make a proper choice. Please inform, on my behalf, the Judge of the Court and my current legal team that I must dismiss my present solicitor and counsel. … Thank you.”

56.  Given the above facts, I am satisfied the defendant’s plea of guilty was made on the basis that there was no CCTV footage of the lobby and hallway relying on what Mr Yu had been informed from the prosecution and the police.  The defendant entered his plea without knowing of the possibility of the availability of the requested CCTV footage taken by the management office or the shops.  In the circumstances, the defendant has been deprived of his right of a full consideration before his guilty plea.  His fundamental request for the CCTV footage had never been fulfilled.  On this basis in the interests of justice, the defendant’s application to reverse his plea of guilty to not guilty is granted.