HKSAR v. NWANERI TOCHUKWU GODWIN

CACC329/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 329 OF 2007

(ON APPEAL FROM DCCC NO. 644 OF 2007)

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REASONS FOR JUDGMENT

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Hon McMahon J (giving the judgment of the Court) :

1. On 6 September 2007 the applicant, a citizen of the Republic of Guinea Bissau, and his co-defendant (D2) were convicted on their own pleas by Deputy District Judge Thomas of a joint offence of fraud, contrary to section 16A of the Theft Ordinance, Cap. 210.  Each was sentenced to 24 months’ imprisonment.  Both sought leave to appeal their sentences.  D2 subsequently abandoned his application and it was dismissed.

2. The applicant’s application for leave in respect of sentence went before Yeung JA (setting as a single judge) on 28 January 2008.  At that hearing the applicant informed the court that he wished to apply out of time for leave to appeal his conviction also.  The matter was adjourned so as to allow the unrepresented applicant to file a notice to that effect.

3. The matter next went before Tang JA on 9 May 2008, but there had still been no notice filed by the applicant in respect of his conviction.  The court refused the applicant leave to appeal his sentence, and on the basis of the oral representations by the applicant waived the necessity for the formal filing of a notice of an application for leave to appeal against conviction out of time and dealt with the matter on its merits, refusing leave in respect of conviction also.

4. The unrepresented applicant renewed his applications in respect of both sentence and conviction before us.  He filed a formal notice of his application for leave to appeal his conviction out of time on 27 June this year.  At the hearing he abandoned his application regarding sentence and it was dismissed.

5. At the conclusion of the hearing, we dismissed also his application to appeal his conviction out of time and now give our reasons.

6. The applicant relied primarily upon the following explanations as to why his application for leave to appeal conviction was out of time.  He claimed that he was never advised by his instructing solicitor or counsel after his conviction that he had a right to appeal that conviction; that a welfare officer at Lai Chi Kok Reception Centre advised him that as he had pleaded guilty he could only appeal his sentence; that he was depressed and psychologically upset (being transferred to Siu Lam Psychiatric Centre) as a result of being imprisoned, and so did not act promptly to ascertain his rights regarding leave to appeal conviction; that he had no access to the documents in the case as they remained with his solicitors; that he had no access to writing materials and that this court did not inform him until his appearance before Yeung JA that his application was out of time.

7. The merits of the applicant’s appeal against conviction rest mainly on the following assertions contained in a 68-page submission provided by the applicant with attachments; that he was pressured into pleading guilty though he knew he was not; that he was not provided with a summary of facts before agreeing to plead guilty and that generally he was not properly advised as to his position in law.

8. We have allowed to be placed before us, apart from the applicant’s submissions, a supporting affirmation from his wife, Mrs Vicki Smith.  That affirmation contains little more than a series of complaints concerning the behaviour of the initial counsel involved in the case, Miss Valerie Lim, and of a “legal executive” Mr Ben Ho who first approached Mrs Smith in Lai Chi Kok Reception Centre whilst she was waiting to visit the applicant with an offer to find legal representation for her husband.

9. The contents of Mrs Smith’s affirmation, it is fair to say, have little relevance to the narrow issues as to whether the applicant was pressurised by the behaviour of his legal representatives into pleading guilty, or whether he understood the charge to which he pleaded guilty and whether he intended to admit his guilt.  The major part of her evidence related to what she claimed were misleading statements as to fees to be paid, made by Miss Lim and Mr Ho who, according to Mrs Smith, conducted himself as a solicitor when he was not.

10. Her affirmation, however, undermined one crucial aspect of the applicant’s submissions.  It produced a number of documents evidencing that Miss Lim kept her informed of a sequence of negotiations between Miss Lim, acting on behalf of the applicant and D2, and the Department of Justice, the climax of which was that on 17 August 2007 it was agreed that the applicant and D2 would plead guilty to the offence of which they were convicted on 6 September 2007.

11. We say “a crucial aspect” because it was the applicant’s fundamental submission before us that the undue pressure placed upon him to plead guilty came about in this way : On 17 August his instructing solicitor came to see him and D2 at Lai Chi Kok Reception Centre, and in the course of a visit of only three minutes showed them a letter from the Department of Justice which agreed to accept their pleas to the charge of fraud and leave another charge the applicant and D2 were facing “on the court file”.  That letter dated 14 August 2007 stated that “this offer (will) lapse by close of business on 17^th August 2007”.

12. The applicant’s position before us was that this was the first occasion he had been asked to consider a plea of guilty and that he had only three minutes to do so in circumstances in which it seemed to him he was expected to accept the offer.  He then agreed to plead guilty and signed, with D2, written instructions to that effect.  He claimed that during this visit he had not been shown a summary of facts for the case.

13. An affirmation filed by the applicant’s instructing solicitor, Mr Lee Wai Ming and a further affirmation made by a staff member of his firm, Mr Ricky Iu were both accepted in evidence for the purpose of the hearing before us.  Mr Lee’s affirmation detailed a history, from late July 2007 of his firm’s dealings with the applicant.  He set out in his affirmation the facts surrounding his meeting with the applicant and D2 on 17 August 2007, and particularly referred to the applicant and D2 having been provided with copies of the summary of facts relating to their case and of his explaining the prosecution’s offer of accepting their plea in respect of one charge on the indictment (that is, the section 16A charge of fraud) and of not proceeding on the other charge.  He was told by both that they wished to accept the prosecution’s offer and he then took the sensible precaution of setting out their instructions in that regard in writing and having them sign that document which was produced before this court.

14. Mr Lee’s affirmation went on to describe the following : on 21 August the case was mentioned in the District Court.  The applicant and D2 were present.  So was Mr Lee.  Miss Lim appeared.  Before court commenced Mr Lee spoke to the applicant and D2 in the dock.  He asked them whether they had any questions.  Both replied in the negative.  Their cases were set down for plea and sentence at 2:30 p.m. on 6 September 2007.

15. During the intervening period Mrs Smith, the applicant’s wife, became concerned at the possible sentence her husband might receive and there was some discussion as to a more senior counsel being retained in addition to Miss Lim.  Mr Niall Stirling was briefed.

16. On 6 September 2007 Mr Lee did not attend court for the plea and sentence.  Mr Ricky Iu, a member of Mr Lee’s firm, did.  His affirmation was to the following effect; prior to the hearing Mr Stirling spoke to the applicant and D2 in the dock.  Miss Lim was also present.  She introduced Mr Stirling to both the applicant and D2, and they had agreed that he mitigate for them.  Mr Stirling went through the summary of facts, which had been amended in some way, with them.  They confirmed their guilty pleas.  Mr Stirling warned them that the offence was serious and would attract a custodial sentence.  On Mr Iu’s evidence Mr Stirling acted entirely properly.

17. It seems to us that the evidence of Mr Lee and Mr Iu was incontrovertible given also the support it received from the transcript of the proceedings we have seen.

18. That transcript relates that when the judge came into court he explained in his own words the charge the applicant and D2 faced and then asked if they understood it.  Both replied that they did.  It was only then that the charge was read and their pleas were taken and both pleaded guilty.

19. Following that (after the other charge had been ordered to lie on the court file) the summary of facts was read.  Before the reading took place the court said this :

“COURT:   Yes.  Defendants, sit down and listen carefully to the facts as they are presented to me by the prosecution, and after the facts have been read, I shall ask you if those facts represent the truth of what occurred.”

The facts were read.  Each of the applicant and D2 was asked to stand and each was asked whether the summary of facts represented the truth of the case.  Both replied unambiguously, the applicant saying “Yes, it does.”  There has never been any suggestion the applicant does not understand English.  Indeed, before us, he expressed himself fluently and loquaciously.  There was nothing equivocal about his plea of guilty.

20. The applicant has utterly failed to raise any basis for his assertion that he was pressurised into pleading guilty.  We accept what Mr Lee and Mr Iu say transpired in terms of the instructions the applicant gave as to his intention to plead guilty.  We thought it unnecessary to seek any evidence in this regard from either Mr Stirling or Miss Lim.  

21. We should add that the only matter which had any semblance of merit in the applicant’s submissions was that of the six occasions referred to in the summary of facts when the applicant and others were said to have met the victim of the fraud; the first two occasions, the 19 and 20 May 2007, took place when Immigration Department records established the applicant was not in Hong Kong.  He was in Hong Kong on the dates of the other meetings set out in the summary of facts and indeed was meeting with the victim on 15 June 2007 when he and D2 were arrested.  We did not think that this error in the summary of facts is of sufficient materiality to in any way vitiate the applicant’s plea of guilty.  Indeed, he has told us he was aware of the error when he agreed the truth of the summary of facts.  The error in the summary of facts did not render the charge bad in law and the remaining facts agreed clearly established the offence.

22. While it was understandable that a lay-person foreign to these shores in the circumstances related by the applicant may not have understood that he was entitled to appeal a conviction, even though it followed upon his plea of guilty, we were entirely satisfied that there was in any event no viable basis for the applicant to argue that his plea of guilty and consequent conviction should be set aside.

23. For these reasons, we dismissed the application regarding conviction.

24. We might add that the applicant has made a series of allegations of misconduct against his counsel and solicitors.  He makes particular allegations against Mr Ho.  Those allegations had no relevant bearing upon the application concerning conviction, but of some concern is an allegation that a letterhead of a firm of solicitors which once employed Mr Ho (not Mr Lee’s firm) was used by Mr Ho after his employment had ceased, to gain access to Lai Chi Kok Reception Centre for the purpose of interviewing the applicant.

25. We understand the Bar Association and Law Society are dealing with these complaints and it would be inappropriate for this court to express any view based on the material before us.  We order, however, that the applicant’s written submissions in their entirety and the other evidence produced to this court be made available to both bodies.