HKSAR v. MOK SHU PIU

HCCC 101/2020

[2023] HKCFI 937

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 101 OF 2020

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REASONS FOR RULING

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1.  The defendant pleaded guilty on 25 May 2020 to Charges 1 and 3, both trafficking in a dangerous drug offences in Eastern Magistrates' Courts during his fourth committal hearing.  He pleaded not guilty to Charge 2, manufacturing a dangerous drug.  The trial for Charge 2 is listed to commence on 28 April 2023.

Facts of The Case and Three Charges

2.  A short summary of the facts will suffice for this application.  The police were watching a building on Waterloo Road in the evening of 4 October 2018 when they saw the defendant come out of the building onto the street.  He looked nervous and was carrying a purple paper bag.  He was intercepted.  He struggled and resisted police officers.  He was eventually subdued and handcuffed.

3.  In his bag, there were 11 bags of cocaine totalling 262 g.  He was arrested and admitted going to sell the cocaine in the bag.  He had keys and mobiles on him.  One set of keys opened the doors to Room A of a unit upstairs on the 3^rd floor.  There was also a pass code for that lock on the door.

4.  The defendant was taken upstairs and escorted into Room A.  It was a one-room studio.  The police found a lot more cocaine, the cocaine of Charge 3.  There was also plenty of evidence of manufacturing drugs in the form of kitchen utensils, cooker, scales, bags, bowls, an air conditioner filter with traces of cocaine.  The police found a plastic bottle and a cigarette butt with the defendant’s DNA on them.  A fingerprint of the defendant was found on the inside surface of the glass bathroom door.

5.  The defendant was initially charged with trafficking the dangerous drugs he was carrying when he left building and manufacturing dangerous drugs in Room A.  Later, an additional charge was laid, Charge 3, trafficking in the cocaine found inside Room A.

6.  In October 2021, the defendant indicated an intention to apply to reverse his plea to both charges.  On 2 November 2021, in a mention hearing, directions were given as to a timetable for affirmations to be filed.

7.  The defendant filed an affirmation to support his application dated 28 December 2021whilst unrepresented and prior to receiving legal aid.  His first application for legal aid was denied but successful after a second application.

8.  There are affirmations from four of the defendant’s former legal team.  The defendant’s affirmation in reply to those affirmations was filed on 28 February 2023.  The parties involved include Ms Olivia Tsang, Counsel assigned by the Legal Aid Department for the applicant.  Her instructing solicitor from Boase, Cohen and Collins (“BCC”)  was Ms Erica Chong. Ms April Kong, a trainee solicitor from the same firm visited the applicant as did Ms Angie Liu a legal trainee.

Chronology of Events and Legal Visits

9.  I have taken a chronology from the five affirmations filed by the defendant’s former legal team of material events and visits.

10.  15 October 2019 – Ms Chong visited the applicant. Her instructions were to prepare a plea-bargaining letter to send to the Department of Justice.  The defendant would plead guilty to Charge 1 if the prosecution offered no evidence against Charge 2.  At that time, Charge 1 was trafficking dangerous drugs and Charge 2 was manufacturing dangerous drugs.

11.  28 October 2019 – Counsel Ms Tsang sent the first plea-bargaining letter to the Department of Justice.

12.  28 October 2019 – the first committal hearing with Ms Chong who saw the defendant in the cells.  He wanted to adjourn the committal hearing to consider his plea.  He told her he would probably plead guilty to Charge 1 but plead not guilty to Charge 2.

13.  31 October 2019 – Department of Justice rejected the first plea-bargaining offer.  They also informed the defendant that there would be a 3^rd charge of trafficking a dangerous drug, the drugs found inside the premises.

14.  29 November 2019 – Mr Tong a legal clerk of BCC and Miss Tsang interviewed the defendant via a video link.  Counsel informed the defendant of the Department of Justice’s rejection of his plea bargain and the additional 3^rd charge.  He was informed of the likely sentences and merits of the evidence.  The defendant instructed Counsel to send a second plea-bargaining letter.  He would plead guilty to Charges 1 and 3 if the prosecution offered no evidence against Charge 2.  He told Counsel that even if the second offer was rejected he would more than likely still plead guilty to Charges 1 and 3.

15.  3 December 2019 and 6 December 2019 – the respective dates when the second plea-bargaining letter was sent and rejected.

16.  9 December 2019 – the second committal hearing.  Ms Chong saw the defendant in the cell and informed him the Department of Justice rejected his second offer.  The defendant requests a further adjournment to consider his plea.  He told her he was inclined to plead guilty to Charges 1 and 3.

17.  14 January 2020 – Ms Chong saw the defendant via a video link.  The defendant requests a third plea-bargaining letter be sent with the same offer again.

18.  17 January 2020 and 29 January 2020 – the respective dates when the third plea-bargaining letter was sent and rejected.  This time, the Department of Justice counter offered; if the defendant pleaded to Charges 1 and 2, they would offer no evidence against him for Charge 3.

19.  6 March 2020 – Miss Tsang and Ms Kong visited the defendant.  Counsel explained the Department of Justice counter offer.  Counsel explained the merit of each charge again and the likely sentences as well as the strength of the prosecution’s evidence.  That includes inferences to be drawn from the fingerprint and DNA found inside the premises as well as the key to the premises being found on the defendant.  The defendant wanted CCTV footage of the area outside Room A for days before the arrest date which “could possibly show” another person other than himself going in.  He told Counsel that he went there almost every day to get dangerous drugs.  Counsel went on to explain to him the pros and cons of obtaining additional CCTV footage from previous days and it was for him to decide if he instructed them to proceed and request it.

20.  By the end of this legal visit, the defendant told Counsel that he intended to plead guilty to Charge 1 but not Charges 2 and 3.  He would challenge the admissibility of the verbal admissions.  He would consider further whether he would instruct them to proceed and request additional CCTV footage.  There is a note signed by the defendant confirming instructions in Ms Kong’s affirmation at KKMA 1-2.

21.  25 March 2020 – Miss Lui visits the defendant to get instructions whether or not he wanted them to proceed and request additional CCTV footage.  The defendant told him he did not want them to request CCTV footage from outside the premises.  He said he intended to change his plea again and plead to Charges 1 and 3 but not the manufacturing dangerous drugs charge, Charge 2.  These instructions are recorded and exhibited in Miss Lui’s affirmation at LYTA-1.  The defendant also wanted to provide a non-prejudicial statement to the police.

22.  30 March 2020 – letter to the Department of Justice informing them of the defendant’s pleas and to request the summary of facts for the next committal hearing on 1 April 2020.  The Department replied on the same day.

23.  31 March 2020 – Miss Lui visited the defendant with the proposed summary of facts from the Department of Justice.  During the interview, the defendant proposed amendments to the summary of facts for a plea to Charges 1 and 3.  Those amendments were recorded and exhibited in her affirmation at LYTA-2.

24.  1 April 2020 – the third committal hearing.  Miss Tsang and Miss Lui attended court.  The hearing was adjourned to deal with amendments to the summary of facts.

25.  23 April 2020 – a letter was sent to the Department of Justice with the amendments to the summary of facts for a plea to Charges 1 and 3 as instructed by the defendant.

26.  20 May 2020 – Miss Liu visits the defendant to inform him that the Department of Justice agreed to the amendments.  The summary facts were explained to him again and he signed a note confirming his agreement, see affirmation LYTA- 3.

27.  25 May 2020 – the fourth committal hearing.  Ms Tsang and Ms Lui saw the defendant in the cells before the hearing.  The defendant confirmed his plea to Charges 1 and 3.  In court, the defendant pleaded to Charges 1 and 3, agreed the summary of facts read to him and was convicted.  He was committed to the Court of First Instance for sentence.  He pleaded not guilty to Charge 2 and committed to the Court of First Instance for trial without a preliminary enquiry.

28.  8 June 2020 – Ms Lui visited the defendant to take instructions on the antecedent statement and the disposal of exhibits list. There was no mention of an intention to reverse his pleas.

29.  19 June 2020 – Ms Tsang and Ms Lui visited the defendant to go through the notice to admit facts from the Department of Justice. Ms Tsang requested the defendant to prepare written instructions for the defence of Charge 2.  There was no mention of an intention to reverse his pleas.

30.  A case management hearing was set down for 24 August 2021 and a trial of 8 days for Charge 2 set down for 15 November 2021 but both were re-fixed due to the pandemic.  The case management hearing was re-fixed to 2 November 2021 and trial refix to 11 March 2022.

31.  23 September 2021 – Ms Tsang and Ms Lui visited the defendant.  Counsel had not yet received any written instructions from the defendant for the defence of Charge 2.  On this visit, the defendant changed his instructions.  Contrary to his previous instructions, he said he did not know that there were drugs inside the premises and that he was arrested on his first visit to the premises.  Previously for the purposes of his plea, he had admitted knowledge of the drugs inside the premises, Charge 3.  Counsel asked him why he pleaded guilty if he did not know there were drugs inside the premises and he explained.  Counsel said he replied that he did not want to risk losing the one third discount for his sentence so he pleaded guilty to Charge 3.  Counsel advised the defendant that in light of the contradiction between his defence for Charge 2 and the basis for his plea for Charge 3 he might want to come reconsider his plea to Charge 3.  She did advise him of the slim chance that the court would accept an application to reverse his guilty plea previously entered.

32.  21 October 2021 – defendant wrote to the Legal Aid Department indicating an intention to reverse his plea for Charge 3.

33.  27 October 2021 – the defendant indicated his intention to plead not guilty to all 3 charges, an intention to apply to reverse his plea for Charges 1 and 3.

34.  28 October 2021 – Ms Tsang wrote to the court to withdraw her representation of the defendant.

The Defendant’s Grounds

35.  There are two grounds set out in written submissions, MFI-1.  The first ground is that it is in the interest of justice to permit the defendant to reverse his pleas.  The second ground is his decision to plead guilty to both Charges 1 and 3 was not a deliberate and informed decision.

36.  The defendant has filed two affirmations and in these affirmations he said his pleas were involuntary.  They were involuntary because he did not receive or view the CCTV footage that he requested his former legal team to obtain.  They were involuntary because he was not given legal advice about the mysterious whereabouts of his car key.

37.  The disappearance of his car key assists his case to discredit the police officers.  The CCTV footage was requested as he set out in his first affirmation to prove his assertions that the police officers took him in and out of other rooms in the premises not just Room A and that PC 16502 was lying about not taking the defendant inside Room A where clear evidence of manufacturing drugs was found.

38.  There was further elaboration by the defendant in his affirmations that the CCTV footage he wanted obtained would prove that he was assaulted by the police, which was very important to whether or not he pleaded guilty or not guilty.  The CCTV footage therefore was very important.  He wanted to view it but his previous counsel, Ms Tsang, misunderstood what CCTV footage he wanted her to obtain, failed to obtain it and therefore gave him inadequate advice before plea.  He had no choice because of this but to plead guilty.

39.  At paragraph 16 in Defendant’s first affirmation, the Defendant says that his previous legal team did not thoroughly discuss the facts of the case with him before he pleaded guilty.

40.  He says in his affirmation that his instructions from the very beginning to his previous legal team was that he did not know there were dangerous drugs inside Room A and the day he was arrested was the first time he had been to room A.  This means that Ms Tsang and Ms Kong perjured themselves in their affirmations.

Applicable Legal Principles

41.  The legal principles governing whether an application to reverse a guilty plea ought to be granted was laid out by the Court of Final Appeal in HKSAR v Shum Wan Foon (2014)  17 HKCFAR 303.  The Court of Final Appeal stated that a guilty plea must be entered voluntarily, unequivocally and not made under duress, inducement or misrepresentation.  An unequivocal guilty plea can also be rendered a nullity if it did not result from a deliberate and informed decision.

42.  A crucial distinction exists between an equivocal plea and an unequivocal plea of guilty.  This is because only an unequivocal plea can be accepted by the court.  A plea is equivocal if the defendant added to his plea of guilty a qualification which, if true, might show that he was not guilty of the offence charged.  Whether a plea was equivocal was to be determined at the time it was made, and if it was so determined, the court could not, and should not, accept it.  However, if a defendant only made such a qualification after conviction, that did not turn the unequivocal plea into an equivocal one.

43.  If the plea was determined to be unequivocal then there is a discretion to allow the reversal of such a plea after conviction but before sentence.  That discretion should be exercised in clear cases and very sparingly.  However, the overriding consideration in the exercise of the discretion must be the interests of justice.  I have referred myself to HKSAR v Chan Chi Ho Lincoln 2018 HKCFA 64.

44.  The defendant agrees his pleas were unequivocal. There was no qualification at the time.

45.  This application by the defendant to reverse his pleas requires the court to make sufficient enquiries to ascertain the defendant’s wish to reverse his pleas, in other words, what are his reasons for his desire to reverse his pleas or what is the basis for that wish to reverse his pleas.  Then the court should go on to decide if that basis is sound in fact and in law.

46.  The question to be asked for the purposes of making sufficient enquiries is whether the pleas were a nullity; were they either made under duress, inducement or misrepresentation or did the pleas result from a deliberate and informed decision.

47.  In answering those questions, it would not be proper to dwell on the proposed defence and whether the proposed defence had merits.  It is not proper to conduct a mini trial in this application to determine whether or not to exercise that discretion.  An extensive examination on the merits of any defence proposed is the wrong approach.  What is of paramount importance is what happened in the lead up to the pleas.

48.  Therefore, the fact he challenges his verbal admission made at the scene is relevant but not to the extent that I will look into the merits of it.  Much has been made of it and the grounds of objections annexed to the submissions MFI-1 but the fact the verbal admissions and the post recorded statement are challenged is not new and was known to all parties from an early date, earlier than the date of plea.  In any event, it is not a defence as such, it is a challenge to the admissibility of a piece of direct evidence.

The Application to Reverse Pleas Hearing

49.  No oral evidence was called during the hearing.  The defendant elected not to give evidence, relying solely on his affirmations.  I am entitled to consider all the affirmations filed for the purpose of this application.

Matters Taken into Account

50.  It is alleged by the defendant that mistakes were committed by his then legal representatives and there are serious allegations of negligence and misconduct against them as well as serious allegations that they have lied in their affirmations.

51.  In his first affirmation, the defendant says he requested his former solicitor Ms Chong to ask the police for the CCTV footage capturing the inside of Room A for the period of time after his arrest.  His instructions were not followed and a colleague of Ms Chong lied to him about the CCTV footage when there was no request for it.

52.  This CCTV footage was required to discredit the police because it would show that not only did PC 16502 take the defendant inside Room A after his arrest but also in and out of the other rooms in the same unit.  It will show that PC16502 lied when he said the defendant was held outside of Room A.

53.  The defendant has specifically said in his 1^st affirmation that he knew the police had this CCTV footage because it is in the exhibits list yet a colleague of Ms Chong told him that this footage was not in the exhibits list.

54.  In his second affirmation, he confirms that the only CCTV footage he wanted was the CCTV footage listed in the exhibits list. In paragraph 6, “I wished to obtain ‘the CCTV footages on the list of exhibits’ in order to prove that during the arrest and investigation, the police used force and improper acts on me so that I made a confession involuntarily.”  The CCTV footage in the list of exhibits was important to his defence and to his decision whether to plead guilty or not.  But it was never obtained as requested for viewing nor was he given any legal advice on its contents.  His plea did not come from an informed decision.

55.  The defendant’s case is that on the very first legal visit from Ms Chong, he gave clear instructions to her to obtain “the CCTV footages on the list of exhibits”.  In contrast, Ms Chong affirms that in this visit on 15 October 2019, the defendant was only concerned about a plea bargain to put to the Department of Justice; he would plead guilty to trafficking dangerous drugs if they offered no evidence against the manufacturing dangerous drugs charge.

56.  In that same paragraph in his second affirmation, paragraph 8, the defendant seeks to discredit Ms Chong by referring to Ms Liu’s affirmation where she said in early March 2020 she was instructed by Ms Chong to visit the defendant and take instructions regarding the CCTV footage therefore, suggesting this proves the defendant had requested it on 15 October 2019.

57.  This is deliberately misleading because there were five prison visits, cell visits or video-conference calls between 15 October 2019 and 25 March 2020 before Ms Liu did visit the defendant to specifically get instructions on whether or not he wanted solicitors to proceed and request CCTV footage.

58.  This was in response to the most recent meeting of 6 March 2020 when the defendant for the first time raised a request for CCTV footage.  He wanted to request from the police CCTV footage of the area outside the premises to show another person other than himself going in and out of Room A prior to his arrest.  After having been given some legal advice on the pros and cons of obtaining that CCTV from Counsel Ms Tsang, they gave him time between 6 March and 25 March 2020 to think and make up his mind.

59.  The defendant suggests that there was a lack of communication and his instructions were not effectively and properly followed which confused Counsel Ms Tsang into thinking he wanted additional CCTV footage not the CCTV footage from the exhibits list.  As a result, she provided inadequate legal advice or wrong legal advice.

60.  It is hard to work out what exactly he is accusing his previous legal team of from his two affirmations relating to CCTV footage but he suggests he never asked for additional CCTV footage but only asked for the footage referred to in the list of exhibits.  He suggests because of Ms. Chong’s confusion, Ms Tsang gave him inadequate legal advice.  He suggests because she did not view the CCTV in the list of exhibits, her opinion was not thorough and he had no other alternative but to plead guilty under such “helpless and frustrated circumstances”.  This means his pleas did not result from a deliberate and informed decision.

61.  In considering whether the basis of his wish to reverse plea is sound in fact and in law, I have taken into account the affirmations of Ms Tsang, Ms Chong, Ms Kong and Ms Liu.  As far as the CCTV footage is concerned, the first mention from the defendant of obtaining any CCTV footage was on 6 March 2020 when Ms Tsang and Ms Kong visited the defendant in prison, both support each other’s evidence in their affirmations.  I accept this is the truth.  It is very different to the defendant’s version of events.

62.  The defendant was given legal advice as to the pros and cons of obtaining CCTV to see if there were other people who went inside Room A and it was for him to decide if he instructed his legal team to proceed and request it from the police.  In that 6 March visit, the defendant told Ms Tsang that he intended to plead guilty to Charge 1 but not Charges 2 and 3.  His instructions were that he would challenge the admissibility of the verbal admissions for the trial of Charge 2 and 3 and he wanted time to consider whether he would request that CCTV footage.

63.  In the next prison visit, 25 March, Ms Liu visited and asked what was his decision about obtaining CCTV footage.  He decided he did not want to obtain police exhibits number 90 and 91, that is CCTV footage of the scene on the date of arrest.  He signed to confirm his instructions and that declaration is exhibited at LYTA1-1 of Ms Liu’s affirmation.  He, on paper, confirmed he did not want to obtain that footage and understood the pros and cons of obtaining it.  He specifically did not require that CCTV footage.  In that document, he signed to confirm that he now intended to plead guilty to Charges 1 and 3, both trafficking in dangerous drugs charges.

64.  Even if I were to accept all he has said about instructions to obtain CCTV footage, this declaration signed by the defendant on 25 March 2020, two months prior to his pleas, is irrefutable confirmation that he did not want to obtain the CCTV footage he claims to be very important to his decision whether to plead guilty or not guilty.

65.  In the absence of any explanation for this declaration, I see no basis in his ground that his pleas did not result from a deliberate and informed decision because there was no CCTV as requested to view before he decided.  I see no basis for or truth in his helplessness and hopelessness.  The basis of this ground is not sound in fact.

66.  In any event, the CCTV has now been obtained and viewed by his new legal team, I have considered the affirmation of Mr Lee Hung Sang, dated 7 February 2023.  A viewing of CCTV footage of a particular camera shows that camera outside Room A but inside the unit was manually tilted away from the door when police entered with a search warrant.  This in itself does not assist the defendant’s assertions that he was taken inside Room A after his arrest, he was beaten by police officers, other people access to the premises or he was taken to other rooms in the unit not just Room A.  It does not suggest innocence or assist a defence.

67.  As for his car key, whether or not the previous legal team failed to make enquiries about his car key does not support the ground that his pleas did not result from a deliberate and informed decision because there was no information about a car key before he decided.  The basis of this ground is not sound in fact.

68.  The defendant accuses counsel, Ms Tsang of lying in her affirmation when she says that the defendant told her he wanted CCTV footage from a camera monitoring the area outside flat because it could possibly show there had been other people entering the premises.  She was lying when she said the defendant told her that he went to that flat almost every day to take drugs from the premises for the purposes of trafficking.

69.  The defendant accuses her of lying when she said the defendant had told her that he knew there were dangerous drugs inside the flat and went there every day when the truth was, his instructions to her all along was, that he did not know there were dangerous drugs inside Room A and that that day was the first time he had gone to room A.

70.  I am sure it was because the defendant did tell her he went there every day, Ms Tsang warned him of the pros as well as the cons of getting CCTV footage of the same cameras but from previous days from the police, alerting them to additional evidence against him.  Only the defendant knows the true facts and I am sure this is why he took the legal advice not to ask for the CCTV footage he wanted; it would have shown him entering daily or often as he told his legal team.  That’s why he signed the declaration confirming his instructions on 25 March.

71.  I won’t repeat all submissions, as I said submissions for the defence to support this application are MFI-1 with exhibits annexed and the prosecution’s written submissions are MFI-2, with a comprehensive chronology annexed to those submissions.

72.  Miss Cheung for the defendant stresses the overriding consideration here despite the defendant’s unequivocal pleas is that I should consider whether materials exist to indicate the defendant’s innocence; exist to persuade a jury of the defendant’s innocence.  The fact the police redirected the camera in the doorway of the unit was material that could indicate his innocence.  She submits that in the interests of justice, I should find he was not in a position to make a deliberate and informed decision because he did not see the CCTV footage he requested nor did counsel peruse it for herself as she should have considered appropriate and necessary.

73.  Mr Delaney for the prosecution submits that unless it can be shown to a balance of probability that the unequivocal pleas are a nullity then this application should fail.  In fact, a discretion to allow such an application where plea is unequivocal should be exercised only in very clear cases and very sparingly.  No weight should be attached to the defendant’s unsubstantiated accusations of perjury and misconduct against his previous legal team.

74.  He highlights the fact that as soon as the defendant’s former legal team began to represent him, the first order of business as directed by the defendant was an attempt to plea bargain with the Department of Justice.  This indicates the defendant was fully aware of the facts, evidence and the likely sentences.  The fact that the police officers who entered the unit on the 3^rd floor to get to Room A were confronted with a CCTV camera pointing at the door who then moved it, does not go to the merit of any defence, or any way towards indicating innocence nor does it affect the ample and proper legal advice received by the defendant.

Conclusion

75.  The defendant has failed to convince me on a balance of probabilities that his unequivocal pleas were a nullity; There is no basis in fact or law to show they were either made under duress, inducement or misrepresentation.  I am sure, based on the diligent representation by the previous legal team, his pleas were as a result of a deliberate and very informed voluntary decision.

76.  I can see no truth in the allegations that counsel and solicitors and members of the defendant’s previous legal team have lied about his instructions, have lied about his change of instructions and ignored any requests he made in relation to obtaining evidence which coupled with no or poor legal advice made him feel hopeless and without choices.

77.  On the other hand, I can see why he has alleged his previous legal team have lied about his instructions, knowledge of the drugs and proximity to Room A on a regular basis.  He has to in order to raise the ground that his pleas were not informed or deliberate decisions.  This is a case where I find it obvious that the defendant has made up the allegations in his affirmations to support his wish to reverse his pleas.

78.  I have considered whether in the interests of justice I should exercise my discretion and allow this application.  I have considered the defendant’s affirmations and considered the fact that the first affirmation was filed without the benefit of legal representation and assistance.  

79.  Nevertheless, I have no doubt the defendant entered his pleas with full knowledge of the evidence against him.  I am sure he entered his pleas having been given proper legal advice.

80.  In the circumstances, not even in the interests of justice, do I allow the defendant’s application to reverse his pleas of guilty to not guilty.  Having made my enquiries, I am satisfied there is no basis to allow this application either in law or on the facts.