HKSAR v. CHAN YIP FAI

CACC 154/2021

[2022] HKCA 1394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 154 OF 2021

(ON APPEAL FROM HCCC NO 165 OF 2020)

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REASONS FOR JUDGMENT

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Introduction

1.  This case is an application for leave to appeal against the conviction of one count of trafficking in dangerous drug[1] to which the applicant has pleaded guilty. The drugs involved in the case was 2,086 grammes of a mixture containing 901.1 grammes of heroin hydrochloride.

2.  His application to reverse that plea was refused by D Yau DHCJ (“the judge”) on 8 July 2021 and he was sentenced to 185 months’ imprisonment.

3.  The applicant applies for leave to appeal his conviction.  After the hearing, I refused to grant leave.  I now state my reasons.

History of the lower court case

4.  A guilty plea was entered by the applicant in the Magistracy on 27 July 2020 with an admission to the summary of facts[2]. The applicant was intercepted by the police in possession of a parcel which he had received some 50 minutes earlier.  The parcel contained heroin with a street value of HK$780,352.6 packed in tinfoil concealed inside 14 packs of purported Thai noodles.  Messages in the applicant’s mobile telephone mentioned “Cannabis”, “Coke”, “Perfume” and “Powder” etc.  and the applicant “now admits that he possessed the drug found in P1 at the material time for the purpose of unlawful trafficking”.

5.  Before sentencing took place at the Court of First Instance, the applicant, through his counsel Mr Mak, applied for a Newton hearing on the basis that the applicant mistakenly believed the narcotic nature of the drugs to be a less potent drug, that the applicant had all along thought that he was trafficking in cannabis instead of heroin[3].

6.  Subsequently, the applicant did not proceed with the Newton hearing and applied for reversal of plea instead.  By then Mr Cheung took over to represent the applicant.  By an affirmation, the applicant claimed to have received the parcel on behalf of one “Ah Chun” who told him the parcel contained (real) turtle(s) and had no knowledge or suspicion that the parcel contained any kind of dangerous drug.   He explained that he pleaded guilty because he mistakenly thought that by mitigating on the grounds of mistaken belief in trafficking in cannabis (a less potent drug), he can  avoid the risk of a conviction after trial for trafficking in heroin.  The applicant stated that as he became aware before the adjourned hearing that his claim of “mistaken belief” was not accepted by the prosecution, he was worried that he would not receive a discount in sentence.

7.  The applicant also relied on a number of WhatsApp messages between him and someone else which show that there was a discussion about ‘turtles 烏龜’.  He claimed that he was labouring under the thoughts that it was real turtles when he received the parcel and had no knowledge of any drugs.

8.  These are the factual basis put forward by the applicant before the judge urging that he be allowed to reverse his plea despite his plea before the Magistrate was unequivocal.

Ruling by the judge

9.  The judge found that the plea entered by the applicant was an unequivocal plea.  He considered the following authorities: HKSAR v Wong Chi Yuk[4] , HKSAR v Chan Chi Ho Lincoln[5], and whether the guilty plea was made under a fundamental mistake or did not result from a deliberate and informed decision[6].  The judge went through the chronology of events and ruled against the applicant, and refused the application to reverse his plea.

Grounds of Appeal and submissions

10.  Two grounds are advanced, namely that: (1) the judge erred in rejecting the applicant’s claim on the basis that he did not inform his former legal team of his belief the parcel contained real turtle; and (2) the judge erred in finding that the reference in “turtle” in the message was a reference to drug in the absence of expert evidence.

11.  Mr HY Wong, appearing for the applicant, went through the applicant’s assertion in his affirmation.  It is contended that the applicant had maintained a lack of knowledge of the drugs throughout.  As the applicant was adamant to plead guilty and to rely on “mistaken belief” of the narcotic contents in mitigation to gain a greater discount, it was only natural that he did not tell his former legal team his belief that the parcel contained real turtles.  It is further submitted that in the absence of expert evidence that “turtle” is a common street name for heroin, the judge erred in finding that those words were used as a code for some kind of dangerous drugs, likely to be heroin.[7]Mr Wong referred the judge to the following authorities:  HKSAR v Shum Chiu[8] and HKSAR v Khan Asif Ali[9].

Respondent’s submissions

12.  Ms Chan Sze-yan, SPP, appearing for the respondent, submits that the judge was entitled to examined the history of the case to consider whether the explanation afforded by the applicant for the shift in position was reasonable and to assess his credibility.

13.  It is further submitted that as the WhatsApp and WeChat messages were included in the committal bundle and served on the applicant before the end of February 2020, with legal advice, there could not be any room for mistake in the understanding of the strength of the evidence against him.  The messages were properly considered by the judge and he was entitled to consider the content and the context of the messages as a whole to come to the conclusion that “turtle” was a code for some kind of dangerous drug instead of real turtle as alleged by the applicant, and reject the applicant’s claim that he believed that the parcel contained real turtles.

14.  Ms Chan submits that the two cases relied on by the applicant, contain exceptional circumstances and can be distinguished from the present case.

Discussion

15.  The jurisdiction of this court to entertain appeal against conviction when an applicant has pleaded guilty was examined in the case of Shum Chiu, approved in HKSAR v Manjaiarraya Natthasiri[10] and cited in HKSAR v Jatinder Singh[11]:

“27. S.82(1) of the Criminal Procedure Ordinance, Cap. 221, directs that:

“A person convicted of an offence on indictment may appeal to be Court of Appeal against his conviction.”

28. …It matters not whether the conviction was obtained by way of verdict after trial or by way of a plea. …

29. …for the appellant to succeed on appeal it was therefore necessary for him to establish some ‘overriding factor’ which rendered his conviction unsafe and unsatisfactory.”

16.  The overriding factor has to be demonstrated and “must lead to the finding that it would be inconsistent with the due administration of justice to allow the plea of guilty to stand”[12].  The Court of Appeal has, on various occasions, remarked that where an unequivocal plea of guilty has been properly entered, it would be rare for an applicant to succeed in showing that a conviction is unsafe or unsatisfactory: HKSAR v Nur Mei Lina[13].

17.  In Shum Chiu, the Court of Appeal found that the overriding factor was that by an election of a severance and pleading guilty, the applicant was deprived of the success of appeal as entitled by his co-defendants on the basis of a permanent stay of proceedings.  In Khan Asif Ali, it was the failing to place the WhatsApp messages before the judge for consideration albeit that they were available at the hearing of the application to reverse plea.

18.  So what is the overriding factor relied on by the applicant in the present case?  Mr Wong submits that is the nullity of the unequivocal plea, under the following circumstances as identified in HKSAR v Wong Chi Yuk[14]:

“…(5) The plea was … made under a fundamental mistake… or

(6) the plea did not result from a deliberate and informed decision.”[15]

19.  Mr Wong complains that the judge wrongly rejected the applicant’s claim of lack of knowledge of drugs inside the parcel and thought it contained real turtles on the basis that he had not informed his former legal team of such.

20.  It is submitted by Mr Wong that the applicant had throughout maintained a lack of knowledge of heroin inside the parcel.  However, it is clear that there has been a shift in stance by the applicant from knowledge of drugs, albeit of a lesser type, to a complete lack of knowledge, the former being a mitigating factor and the latter a defence.  In light of such, the judge was entitled, as he did, to go through the chronology and contents of events to decide whether to accept the applicant’s assertion that he thought the parcel contain real turtles as a basis to allow the reversal of plea.

21.  The circumstances leading to his guilty plea were recited in the Ruling:

“12. The defendant said that after he had heard Mr Mak’s legal opinion, on the one hand, the defendant applied to the Legal Aid Department to examine the phone evidence, on the other hand, he was worried that he might not be able to win his case. At this time, the defendant heard from someone while he was being detained in Lai Chi Kok Detention Centre that if the narcotic nature of the drug being trafficked is less serious, the sentence will be lighter.

13. Therefore, the defendant himself decided to plead guilty and use trafficking in cannabis as mitigation, hoping to receive a lighter sentence as well as a reduction in sentence. The defendant said in his affirmation that his fighting the case would be without hope and without meaning.

14. The defendant said that he also lacked the faith to maintain a not guilty plea because the proseuction was saying that the messages found in his mobile phone were very detrimental to his case.

15. That was why the defendant agreed to plead guilty on 20 June 2020, and confirmed his plea on 27 July 2020, hoping to use his belief that he was trafficking in cannabis and not heroin as mitigation.”[16]

22.  The WhatsApp and WeChat messages were served on the defence on 6 December 2019 and 25 February 2020 respectively, long before the applicant entered his guilty plea.  He had the benefit of legal advice from two counsel, the first that he had rejected and disagreed with[17], and the second (Mr Mak) was instructed not just to represent him at the time of the entering of his plea but also to advance on his behalf, the necessity of a Newton hearing.  The applicant confirmed through his third counsel (Mr Cheung) that he makes no allegation against Mr Mak[18].

23.  It is clear that by the time he entered a guilty plea, the WhatsApp and WeChat messages had already been served on him. However, not only that at no time did the applicant disclose any belief that the parcel contained real turtle to Mr Mak, such claim was made only first by way of affirmation some 10 months after the tentative submissions for a Newton hearing.  With all these undisputed chronology of facts, the judge’s findings that the applicant understood the opinion of his different legal representatives[19] and Mr Mak acted in accordance with the instructions given by the applicant[20] cannot be faulted.  The judge demonstrated that he has analyzed the situation in detail:

“50. If the defendant had believed that they were real turtles inside at the time of his receiving the parcel, it is inconceivable that he would not have told Mr Mak. If the defendant had told Mr Mak, it is equally inconceivable that Mr Mak would not have advised the defendant that he could not plead guilty if that is the truth.”[21]

24.  The applicant mentioned about relying on what he heard whilst in remand that if the narcotic nature of the drug being trafficked is less potent, the sentence would be lighter.  Even if the applicant, with this information in mind, decidedly withhold his position from Mr Mak (that was not the findings of the judge), the entering of the guilty plea was still be a deliberate and informed decision by the applicant. It was a calculated decision in an attempt to get the most out of a guilty plea.  I agree with the judge that there was no fundamental mistake sufficient to vitiate the intent of the defendant in pleading guilty, making the act of the plea not his true act.  It was an informed decision after full discussion with two different legal teams.  The fact that he changed his mind later and wished to be tried is not sufficient to warrant a granting of withdrawal of a plea which is otherwise unequivocal.  In the present case, the judge found that the belief that the parcel contained turtle was but a recent invention[22].

25.  In the case of Khan Asif Ali, supra, WhatsApp messages which “could be said to have the character of material suggesting that the appellant may not be guilty of the offence” were, although available, not placed before the judge for consideration of his application for reversal of plea.[23] That was the narrow issue that the Court of Appeal had to decide and the probative value of those message “lies with others to assess”.  In our case, not only were such messages containing the word “turtle” before the judge, he had assessed them in context of other messages[24].  Having done that, the judge as a sole finder of facts was entitled to form the view that the terms 香水、可樂、植物 and烏龜were all pseudonyms or code for various kinds of drugs even in the absence of expert evidence.

26.  Given the shift in stance, the time gap and the inherent improbabilities, the judge rightly rejected the applicant’s assertion that he believed there were real turtles inside the parcel and found that the applicant was making up the “turtle” part of his story to try to have his plea reversed[25]. As no fundamental mistake was made out and there is nothing to suggest that the plea was entered as a result other than a deliberate and informed decision, the judge found it was in the interest of justice not to allow the application for reversal of guilty plea.

27.  The burden of proof to establish facts which would justify a plea of guilty being withdrawn is upon the accused.  The judge’s findings that the applicant failed to discharge that burden and his decision to reject the applicant’s claim is sound and reasoned.  No overriding factor which would render the conviction unsafe and unsatisfactory is established.  I find the two grounds not reasonably arguable and leave is refused.

28.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal.  If the Court were to conclude that there was no justification for the renewal of his application, the applicant may face the consequences of a direction for any loss of time spent in custody pending his appeal.

[1] contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134

[2] Appeal Bundle p.5A-P

[3] Appeal Bundle p.13N-Q

[4] [2000] 3 HKLRD 125

[5] [2018] HKCFA 64

[6] Appeal Bundle p.10G-H, paragraph 24

[7] Appeal Bundle p.16 I-K, paragraph 54

[8] [2011] 2 HKLRD 746

[9] [2020] 1 HKLRD 749

[10] [2017] HKEC 1871

[11] [2019] 2 HKLRD 130

[12] Shum Chiu, paragraph 61

[13] [2018] HKCA 383

[14] [2000] 3 HKLRD 125

[15] p.135

[16] Appeal Bundle p.7J-8C

[17] Appeal Bundle p.7F-G

[18] Appeal Bundle p.11A-B

[19] The applicant affirmed that he rejected the opinion of the first Legal Aid assigned counsel Mr Yiu, and he heard and received the legal opinion of the second counsel Mr Mak.

[20] Appeal Bundle p.15D-G

[21] Appeal Bundle p.15L-N

[22] Appeal Bundle p.15R-S

[23] At paragraphs 42 and 43.

[24] Appeal Bundle p.15T-16J

[25] Appeal Bundle p.15R-S