HKSAR v. AGARA ISAIAH BISHOP

CACC 76/2015

CRIMINAL APPEAL NO 76 OF 2015

(ON APPEAL FROM HCCC 1 OF 2014)

------------------------

------------------------

-------------------------------------

REASONS FOR JUDGMENT

-------------------------------------

Hon McWalters JA (giving the reasons for judgment of the court):

INTRODUCTION

1.  The applicant appeared in the High Court on an Indictment containing one count of trafficking in a dangerous drug, namely 198.21 grammes of a solid containing 196.75 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The offence was particularised as having taken place on the evening of 15 December 2011 at No.48 Pei Ho Street, Sham Shui Po, Kowloon.

2.  The applicant appeared before Toh J (“the judge”) and pleaded guilty to this offence.  Prior to sentencing he discharged his legal representatives and unsuccessfully applied to reverse his plea of guilty.  Consequently, at his sentencing hearing he was without representation. As the applicant was claiming he had been entrapped into committing the offence, a Newton hearing was held.  After calling one witness the applicant addressed the judge and thereafter the judge delivered her Reasons for Sentence at the end of which she sentenced the applicant to 7 years and 4 months’ imprisonment. 

3.  The applicant now seeks leave to appeal against both his conviction and sentence.  At the hearing of the applications we dismissed them and said we would hand down our reasons for doing so at a later date. This we now do.

PROCEDURAL HISTORY

4.  This was a re-trial of the applicant.  After his conviction in his first trial he appealed to the Court of Appeal and his ground of appeal was that he had been unlawfully denied information on the police informer by reliance on section 57(2) of the Dangerous Drugs Ordinance, Cap 134 which, on appeal, the applicant’s counsel argued was unconstitutional.  On 31 December 2013 the Court of Appeal struck down section 57(2) and said that the common law applied to the right of an accused to know the identity of an informer and explained the common law principles in this area of the law.  The Court of Appeal ordered a re-trial and left it to the judge presiding at the re-trial to determine whether, by application of the common law principles, the applicant was entitled to know the identity of the informer.  The Court of Appeal’s decision is reported as HKSAR v Agara [2014] 2 HKLRD 648. 

5.  On 14 July 2014 the applicant appeared before the judge for a pre-trial review hearing on his re-trial at which time his counsel foreshadowed he would be making an application for an order compelling the prosecution to disclose the identity of an informant whose assistance had enabled the police to be at the location where the applicant was arrested when the applicant was in possession of the drugs the subject of the charge.  At this time the applicant was represented by Mr James McGowan of counsel whose instructing solicitors were Messrs Vidler and Co, assigned by the Director of Legal Aid.

6.  The application for disclosure of the informant’s identity was made on 29 August 2014, a day set aside for that purpose.  At the conclusion of the hearing the judge delivered her ruling refusing the application.  The case was then adjourned to 15 September 2014 for trial by jury.  

7.  The applicant’s arraignment took place on 15 September 2014 and proceeded quite normally.  The applicant pleaded guilty to the charge through an Igbo interpreter and admitted the Summary of Facts that was read into the record by prosecuting counsel.  Upon admission of these facts he was convicted by the judge.  Mr McGowan asked to reserve his mitigation until 16 December and, with the agreement of the judge, the case was adjourned to this date.  However, on that day the sentencing hearing did not proceed and it was adjourned to 23 January 2015.

8.  Before his sentencing hearing, the applicant wrote letters to the court dated 23 December 2014 and 15 January 2015, in which he alleged that he had been “misadvised and misrepresented” by Mr McGowan at the hearing of 15 September 2014, and he sought leave to reverse his guilty plea to one of not guilty. 

9.  On 23 January 2015 the judge granted leave to the applicant’s legal representatives to be discharged from further representing the applicant and then proceeded to hear the applicant’s application to reverse his plea.  On this application the applicant represented himself.  The judge refused the application.  Next, the prosecutor suggested to the judge that a Newton hearing would be necessary as the applicant was asserting in mitigation that he had been entrapped.  The applicant indicated he wished to call a witness to give evidence and so the judge adjourned the hearing to 9 February 2015 to enable the applicant’s witness to testify.

10.  On that day the applicant again represented himself and in support of a claim that he was entrapped into committing the offence he called his witness, Mr Ejegi Godspower, a person in custody.  This was followed by the applicant addressing the judge in mitigation.  Thereupon, the judge delivered her reasons for sentence in the course of which she said she would not attach much weight to the evidence of Mr Godspower and rejected the applicant’s claim of entrapment.

THE SUMMARY OF FACTS

11.  The Summary of Facts which the applicant admitted for the purpose of sentencing revealed that in the late afternoon of 15 December 2011, acting on information, the police intercepted the applicant at the corner of Lai Chi Kok Road and Pei Ho Street, and found hidden in his socks and the pockets of his jackets a total of 4 packets of suspected dangerous drugs.  In addition, another packet containing 10 transparent resealable plastic bags was found inside one of his jacket pockets.  The suspected dangerous drugs were subsequently found to be 198.21 grammes of a solid containing 196.75 grammes of “Ice”, the average retail value of which was, at that time, $151,630. 

THE APPLICATION FOR DISCLOSURE OF THE INFORMANT

12.  Unsurprisingly the Court of Appeal’s decision in Agara was at the forefront of counsel’s submissions and the judge’s ruling and the application for disclosure was made and determined in accordance with the common law principles set out in that case. 

13.  The effect of the Court of Appeal’s judgment is that the identity of an informer should not be disclosed unless it is necessary or right to show the defendant’s innocence.  The burden is on the defendant to satisfy the court that is so necessary or right and even if that burden is discharged disclosure is permitted of only as much information as is essential to the defendant to establish his innocence.  The main judgment in the case was delivered by Yuen JA but in a separate concurring judgment Stock JA (as he then was) made the point that this burden is not discharged by “speculation that the information may assist.”  He went on to issue the warning to trial judges to “be alert to the real danger … that judgments (such as the present), which recognise the sole exception to the privilege, tend to result in a proliferation of unmeritorious applications for disclosure of information about the informer”.  He concluded by emphasizing the point made by Yuen JA in her judgment that informers were commonly employed in drug trafficking investigations and were often crucial to the success of those investigation.

14.  It now fell to the judge to apply the principles set out in the Agara judgment to the facts of the case before her.  The prosecution’s position was that the police could not confirm or deny that the informant was a person called Junior whom the applicant maintained had given him a parcel for safe keeping on the night of 14 December 2011.  It was conceded that he may have been the informant and the judge was satisfied that this concession was “more than sufficient to assist the Defence in this case and it is a question for the jury whether at the end of the day they decided that the informant was Junior and whether the informant or Junior had duped the Defendant and framed him up.”[1]  The judge concluded her ruling by saying:

“I have not been persuaded that disclosure of the identity of the informant is necessary to avoid a miscarriage of justice or to put forward ‘a tenable case in its best light’. (Mustill LJ in R v Vincent Raymond Agar (1990) 90 Cr App R 318)”

THE APPLICATION FOR REVERSAL OF HIS PLEA

15.  As previously mentioned, the application for reversal of plea took place on 23 January 2015.  In his letter to the court of 23 December 2014, the applicant wrote:

“I made the guilty plea earlier because I was misadvised and misrepresented at the court by my defence team whom I no longer work with now in the defence of my case. I’ve fired them.”

16.  In a letter to the court dated 15 January 2015 the applicant wrote:

“Dear sir,

   I want to seek a leave of nullity to reverse the guilty plea I made at the court on 15-9-14. This is because I was misadvised and misrepresented by my legal representatives.

I was made to know that this act is among the circumstances under which a guilty plea can be rendered nullity as addressed by the Court of Appeal in HKSAR v WONG CHI YUK (2000) 3 HKLRD 25.

   This is how I was misrepresented;

(1) After the judge ruled at the viore dire not to allow the identity of the informant on 29-8-14, I asked my defense team of the fastest and safest guaranteed way of getting out of jail. And I was advised it’s a guilty plea, as they can’t guarantee I will be acquitted at trial owing to the judge’s ruling on the informant’s identity. They said they will make sure I get all the necessary discounts am entitled to for guilty plea. Then my lawyer (Mr Vidler) asked me to recount my account of event on the case again to which I did. The account indicated I only knew the substance I had was drugs when the officer who arrested me said I was under arrest for trafficking in dangerous drugs. He (my lawyer) said the prosecution cannot accept that as a guilty plea. That I have to admit I knew they were drugs before the police arrested me.

   This is not proper. It is bending the fact to suit what the prosecution would accept. Had he presented my account of events as it really was, and the prosecution rejected it, I will have no option but to plead not guilty and fight the case.

(2) My counsel – Mr McGowan failed to clarify to the judge at the court on 16-12-14 that I was returning the package to the same person who gave it to me when she (the judge) sort his clarification on that. The judge said that if that was the case (i.e., I was returning the drug to the person that gave it to me), he (my counsel) should advice me to re-consider my guilty plea. She was even generous enough to give him 30 minutes to confer with me during which I instructed him to clarify to the judge and that I want to withdraw my guilty plea. But he failed to make the clarification making me not to change the guilty plea right at the court when the judge gave the chance.

   Please refer to my account of events at the first trial on August 2012, it indicated I only knew the substance was drugs after I was arrested, and I was returning the package to the person who gave it to me. I hope this reason is strong enough for the court to nullify and reverse my guilty plea, coupled with the fact that I can’t live with pleading guilty to the offence I did not commit. I have other reasons but I can’t present them comprehensively due to my limited knowledge about law. Thanks.

Yours sincerely,

Agara I Bishop”

17.  At the hearing on 23 January 2015, the applicant addressed the court in person.  He repeated his complaint of being misadvised and misrepresented and pressed his application for a reversal of his plea, arguing that his guilty plea had been induced by duress or misrepresentation and was therefore an involuntary plea, one that did not come about as a matter of free choice and was therefore within the exceptions as laid down in HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125.

18.  The judge engaged the applicant in order to clarify what he was alleging and why he was saying he should be allowed to reverse his plea.  The following exchanges took place:

“COURT: Yes. Now, the misadvice and misrepresentation which you have set out in your letter deals with the fact that you had asked your defence team what was the fastest and safest guaranteed way of getting out of gaol. Is that right?

APPLICANT/ACCUSED: Yes, your Honour.

COURT: Now, from what you have written out here with the advice you got from Mr McGowan does not appear to me to be a misrepresentation at all of the situation. Have you got anything else you wish to add to support your application that this was a misrepresentation?

APPLICANT/ACCUSED: Yes, your Honour.

COURT: What?

APPLICANT/ACCUSED: At the voir dire, when you ruled that the identity of the informants will not be allowed, I had a witness, an eye-witness who was at the occasion when the informant gave me the package, as I told the court earlier.

COURT: Yes, I know. We have been through that. Your counsel had informed me of that, that it was your allegation that you were told by the informant to deliver the package to him. Now, that was your allegation. But the fact is, if you wish to take advantage of the plea and get out of gaol as soon as possible, then, as you were rightly advised, if you pleaded with mitigation etc. he will do his best to get you a sentence which is conducive to shortening your time in prison because, as he properly advised you, you get a discount if you plead guilty. Now, Mr Bishop...

APPLICANT/ACCUSED: Yes.

COURT: This case that you have brought to my attention, HKSAR v Wong Chi Yuk, states very correctly various grounds that are allowed for you to change your plea.

APPLICANT/ACCUSED: Yes.

COURT: From what you have told me of the alleged misrepresentation and the alleged misconduct of Mr McGowan, in your letter, I cannot see anywhere that he has misrepresented or misconducted himself in your representation.

Now, you have to satisfy me that the circumstances are such that you fall under the categories as elicited under Wong Chi Yuk, so if there is anything else, apart from the fact that it is your contention that you didn’t know what you were carrying, is there anything else that causes you to make a plea that did not go with your mind?

APPLICANT/ACCUSED: Yes. What I mean there is my solicitor told me that if I should -- if he should present to the court or to the prosecution that I had no -- that I only knew the package was drug before the police arrested me -- or after the police arrested me, that the prosecution will not take it as a guilty plea; that I had to admit I knew.

COURT: That is also true, as I told you in open court.

APPLICANT/ACCUSED: Yes. Now, what I mean is...

COURT: And I told your counsel in open court.

APPLICANT/ACCUSED: Yes. What I mean is, had he presented my account to the prosecution, and then the prosecution rejected it as a guilty plea, then I will plead not guilty because that is the fact.

COURT: No, Mr Bishop. It was made clear in the proceedings in court, and also in the facts that you admitted to, that you admitted that you knew those were drugs. Now, whatever you may allege now, it was certainly very clear that you only had two options: either you claimed you didn’t know what was in the package and then you pleaded not guilty; or, if you pleaded guilty, then you had the advantage of the discount.

But you cannot continue with your insistence that you didn’t know what was inside the package. Now, that was the matter that your counsel had properly advised you on, which you put in your letter, so I cannot see how Mr McGowan had misrepresented or misconducted himself. Now, is there anything else?

APPLICANT/ACCUSED: I said misadvised.

COURT: Or misadvised you.”

19.  There were further exchanges with the judge but they essentially consisted of the applicant asserting his innocence because he did not know that what he had in his possession were dangerous drugs, and asking for a trial by jury.  

20.  The judge rejected the applicant’s claim that he had been misadvised and misrepresented, and found his guilty plea to be a voluntary one.  In refusing the application the judge said:

“The defendant, in his hand-written letter dated 15 January this year, had alleged that he had been misadvised and misrepresented by Mr McGowan, and that Mr McGowan had misconducted himself and therefore leading him to plead guilty.

The facts which he had disclosed in his letter does not disclose any misadvice or misrepresentation, nor that Mr McGowan had misconducted himself, so I have asked the applicant today to tell me if there is any other matter which he would pray in aid to support his application to reverse his plea.

Mr Bishop says time and time again about how he did not wish to plead guilty. He wanted a trial because he didn’t know what was in the package. Now, it was made clear on the last occasion that there cannot be a plea of guilty if he didn’t know what was in the package. And the fact of the matter is, as the applicant himself in his letter disclosed, he asked his defence team - and I quote – ‘the fastest and surest and safest guaranteed way of getting out of gaol.’

So as his adviser, Mr McGowan obviously had to put all his options in front of him, and in order to get out of gaol the fastest would be if he had pleaded guilty and taken advantage of the discount. There was no misrepresentation. These were the facts and the defendant clearly understood it because he admitted to the facts which was read out to him in open court.

I have given the applicant a chance to satisfy me that there were grounds in support of his application to reverse plea today but he has not given me any new grounds of support. He merely claimed that he would come under the fourth condition as specified in Wong Chi Yuk; basically that the plea was tendered involuntarily and that he was induced by misrepresentation or duress.

I cannot see any of that here at all. Thus, after having considered this, I have decided that there is no grounds whatsoever to support this application to reverse plea.  It was clear the plea was taken in an open and well-understood manner.  There was no chance of any inducement by mistake or involuntariness involved.  The application is refused.”

21.  In her later Reasons for Sentence the judge adverted to her decision refusing to allow the applicant to reverse his plea and summarised her reasons as follows:

“I had considered his application and refused it, on the grounds that he had made a voluntary plea at the time, when he was fully conscious of what he was doing, he had very good counsel representing him, and the facts were also admitted by him.”

The case was then adjourned to 9 February 2015 for the sentencing hearing.

THE SENTENCING HEARING

22.  On 9 February 2015, Mr Godspower gave evidence on the applicant’s behalf.  He said that on 14 December 2011, he was at a gathering of friends in Tsim Sha Tsui and saw a person named “Junior” give the applicant an envelope prior to escorting another person to the police station to make a report of missing property.  At that time, Junior and the applicant spoke with each other in a language which Mr Godspower did not understand.  Then Junior left.  Mr Godspower said in evidence: “Yes, I would say Junior, yes, did hand over an envelope to you, maybe with the intention of him coming back to get it from you or whatever, you know.  I just…” According to Mr Godspower, Junior had not returned by the time Mr Godspower himself left the gathering.

23.  Under cross-examination Mr Godspower revealed that he was also in custody for trafficking in dangerous drugs and that his defence was a claim that he had been set up by another person.  However, he had since pleaded guilty to the charge he faced.  He said that since he became aware of the applicant’s troubles he had formed the view that Junior was somehow involved in them.  He also said that he had “issues” with Junior and he agreed that it was well known that Junior was connected to drugs and the drug world way back in December 2011.  

24.  In response to questioning by the judge Mr Godspower confirmed that the applicant and Junior spoke to each other in the Igbo language and that he, Mr Godspower, could not understand what they said to each other as he did not speak this language. 

25.  The applicant did not call any other evidence and did not, himself, testify in the Newton hearing.  The applicant then addressed the judge.  He repeated his assertion that he was innocent and had been badly advised by his lawyers and again requested that he be tried by a jury.  He said that he had been given the drugs by a third person who had lied to him and told him they were uncut stones.  He said that the refusal of the prosecution to reveal the identity of the informant was unfair to him.

26.  The applicant then referred to the hardship that his incarceration caused to his family back in Africa and his wife here in Hong Kong and also to the fact that he is a Christian and has been behaving himself in prison.

THE REASONS FOR SENTENCE

27.  Immediately after the applicant concluded his mitigation, the judge delivered her Reasons for Sentence.  In them she discussed the evidence of Mr Godspower which she described as being “really very limited”.  This was because Mr Godspower could not speak the Igbo language and so could not understand and relate what was said by Junior and the applicant to each other.  The extent of his evidence was simply that he saw Junior hand an envelope to the applicant.  The judge said she would not attach any weight to the hearsay evidence given by Mr Godspower. 

28.  In concluding that she could not give much weight to Mr Godspower’s evidence the judge said:

“The fact of the matter is that Mr Ejegi had been in custody and he had spoken to the defendant, and it is not exactly clear under what circumstances that conversation had emerged, and exactly what was said between the two of them. The fact that even if he did see the envelope being handed over to the defendant, I cannot be sure if that particular envelope was the one that the defendant claimed that he thought contained diamonds, he said, and not dangerous drugs. But whatever the case, the problem is this witness did not know what was said between Junior and the defendant so his evidence, I am not prepared to give much weight to.”

29.  The judge then referred to the applicant’s mitigation.  The applicant, who had no criminal record in Hong Kong, was 38 years old at the time of his sentence.  He had received education in Nigeria up to secondary level.  He was married in Hong Kong on 13 May 2011 and his incarceration had had a devastating effect on his wife.  His family in Africa was dependent on him, and his father was an aged person.

30.  In sentencing the applicant, the judge noted that the applicant was not just carrying packets of dangerous drugs with him, he had separated them and concealed them in various parts of his body, that is, in his socks and his jacket pockets and that the “Ice” was of high purity.  Furthermore, he had with him a packet containing 10 transparent resealable plastic bags.  The judge said she could see no reason why if, as the applicant claimed, he had been given a packet by another to temporarily retain, it was necessary for him to open the packet, separate the contents and conceal those contents on different parts of his body.  She said that the facts did support the charge. 

31.  The judge then referred to the leading case of AG v Ching Kwok Hung [1991] 2 HKLR 125 in which the Court of Appeal said that trafficking in 70 to 300 grammes of “Ice” should warrant a starting point between 10 to 14 years’ imprisonment.  For the quantity of “Ice” concerned, the judge chose a starting point of 11 years’ imprisonment.[2] Giving the applicant the full one-third discount for his guilty plea, the judge sentenced him to 7 years and 4 months’ imprisonment.  The judge exercised her discretion not to reduce the usual one-third discount despite the applicant’s failed attempt to reverse his plea and to establish entrapment as a mitigating circumstance.

THE GROUNDS OF APPEAL AGAINST CONVICTION

32.  In his home-made Grounds of Appeal attached to the Notice of Application for Leave to Appeal Against Conviction and Sentence filed on 2 March 2015, the applicant insisted that he was innocent and asked for a trial by jury which, he argued, was his right under the Basic Law of Hong Kong.  He complained that his right to be represented by competent counsel had been violated, as was his right to reverse his plea in accordance with the decision of the Court of Appeal in the Wong Chi Yuk case.  He said the judge had invited him to go to a higher court and alleged that the judge probably knew she had violated the applicant’s rights, including his right to know the identity of the informant.

33.  In his home-made written submissions dated 14 September 2015, the applicant repeated he had no knowledge that the substance he had in his possession was “Ice” as he had been told it was uncut stone, which he took for gemstone.  He argued that the facts which he had admitted before the judge did not amount to the offence charged.  He submitted that his plea of guilty was made under duress arising from the judge’s refusal to compel the prosecution to disclose the informant’s identity, which refusal, he argued, was contrary to the common law principles set out in, among other cases, HKSAR v Agara [2014] 2 HKLRD 648.  He referred to Article 10 of the Hong Kong Bill of Rights and alleged that the judge had denied him the right to a fair trial by a jury when she dismissed his application to reverse his plea. 

THE GROUNDS OF APPEAL AGAINST SENTENCE

34.  In his statement attached to the Notice of Application for Leave to Appeal against Conviction and Sentence, the applicant complained that the judge had erred in refusing to take entrapment into account in sentencing him.  The applicant remarked that the prosecution had failed to put him in the witness box to cross-examine him.

35.  In his written submissions, the applicant claimed that the judge had used the wrong standard of proof in respect of entrapment in the context of a plea in mitigation and referred to HKSAR v Cheung Yun Kei [2001] 4 HKC 52.  In this respect the applicant complained of the statement by the judge when she said:

“that even if he [Mr Godspower] did see the envelope being handed over to the defendant, I cannot be sure if that particular envelope was the one that the defendant claimed that he thought contained diamonds, he said, and not dangerous drugs .”

36.  The applicant also argued that there was no evidence that he would have committed the offence in the absence of the informant’s involvement or encouragement and referred to R v Birtle (1969) 53 Cr App Rep 469.  He said that but for the informant’s conduct, the applicant would never have been in possession of the packet at all. 

37.  Finally, the applicant sought to argue that the 11-year starting point was excessive, saying that the guideline in the Ching Kwok Hung case concerned cases involving over 600 grammes of “Ice”.

DISCUSSION

The application for leave to appeal conviction

38.  At the hearing of this application the applicant informed the court that he wished to amend his grounds of appeal concerning the refusal by the trial judge to allow him to reverse his plea by deleting from it any reference to incompetent legal advice.  He still maintained that the guilty plea he entered was not freely made but was made under duress as a consequence of an erroneous ruling on his application for disclosure of the informer’s identity and because he did not, in fact, know that he was in possession of dangerous drugs.  Apart from the points he had already made he said he had nothing further to add. 

(1) The application for disclosure of the informant’s identity

39.  There was no error by the judge in the directions she gave herself on the law.  Applying the legal principles laid down in Agara she had to decide whether the applicant had discharged the burden that he bore of showing that disclosure was necessary in order to establish his innocence.  “Necessity” is a high hurdle and is much more than showing that proof of his innocence would be assisted by or benefit from knowing the identity of the informer.  That is why the exception is known by the shorthand term of “the innocence at stake” exception.  The applicant must be able to demonstrate that without the information he has no realistic prospect of proving his innocence. 

40.  Here, the information the applicant sought would only go towards enhancing the credibility of his claim, not to proving it. Furthermore, he would be relying on the information only to confirm an inference that he would be asserting in any event was the only inference to draw from the primary facts. 

41.  On the facts of this case the judge was perfectly entitled, to come to the view, indeed we would say bound to do so, that disclosure of the identity had not been demonstrated by the applicant to be necessary to prove his innocence.

42.  The applicant also claimed in respect of this application that the judge did not have the opportunity to hear from his eye-witness, Mr Godspower, whose testimony, the applicant claimed, would have had an impact upon the judge’s decision.  

43.  The applicant was represented by Mr McGowan at the time this application was made.  The applicant has now specifically withdrawn any criticism of Mr McGowan’s performance as his counsel.  The decision as to what evidence should be called on this application was very much a tactical decision of counsel after the exercise of his professional judgment.  There is no merit in this complaint.   

44.  We can see no error in the judge’s adjudication of this application.

(2) The application to reverse plea

45.  The applicant having withdrawn his allegation of incompetence against his legal representative had little left to complain about in respect of the adjudication other than the unfavourable outcome. Nevertheless, because he is aggrieved by the outcome which he claims was erroneously arrived at we examined the transcript of the proceedings in order to determine if they in any way miscarried or any error by the judge was apparent on the record. 

46.  The duty of a judicial officer when faced with an application to reverse plea was discussed by the Court of Final Appeal in HKSAR v Shum Wan Foon (2014) 17 HKCFAR 303.  In that case the trial judicial officer, a magistrate, was also dealing with an unrepresented defendant.  Fok PJ, in giving the judgment of the court, said at page 309, paragraph 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.”

And at page 310 paragraph 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.”

47.  In concluding his discussion of the authorities Fok PJ issued the following warning at page 310, paragraph 18:

“It should not, however, be thought that the discretion to permit a defendant to reverse his plea should be exercised lightly and magistrates will have to be wary of applications to reverse pleas which are merely being used as a delaying tactic. As Lord Upjohn said in S (An Infant) v Recorder of Manchester at p.507G:

‘… this discretionary power is one which should only be exercised in clear cases and very sparingly.’”

48.  It is apparent from the transcript of the application that the judge went to considerable effort to ensure she fully understood the basis of the applicant’s application.  Furthermore, she clearly revealed the course of her thinking so that the applicant could address her concerns.  We are satisfied that the judge made sufficient enquiries into the basis of the applicant’s application.  

49.  The law relating to treating an unequivocal guilty plea a nullity was set out by Woo JA, in giving the judgment of the Court of Appeal in HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125.  At page 135D-I he said:

“ An unequivocal guilty plea can be rendered a nullity if any one of the circumstances is applicable, according to the cited decisions:

(1) The facts admitted by the defendant do not amount to the offence with which he is charged - as in Chan Wai Lam & Others v R [1981] HKLR 139 and R v Li Tung Hing [1992] 2 HKC 427;

(2) The admitted facts are equivocal as to guilt - Chan Ching Chi v R [1965] HKLR 598;

(3) The plea was tendered to a charge which was defective on its face or invalid or unclear - as in Chao Tse Yuen v R (No2) [1963] HKLR 121, Cheung Kwok Cheung v R [1982] HKLR 126 and Lui Yiu Shing v R (unrep., Crim App No 888 of 1980, 21 November 1980);

(4) The plea was tendered involuntarily, eg, induced by duress or misrepresentation or was not an exercise of free choice - as in Ma Kam Wing v R [1975] HKLR 612 and HKSAR v Au Yeung Boon Fai [1999] 3 HKC 605;

(5) The plea was induced by fraud or made under a fundamental mistake - per R v Peters (1974) 58 Cr App R 328as referred to in HKSAR v Li Wa San (unrep., HCMA No 379 of 1999, [2000] 1 HKLRD A7); or

(6) The plea did not result from a deliberate and informed decision - per R v Wong Wai Leung [1990] 1 HKC 144 as cited in HKSAR v Li Wa San (unrep., HCMA No 379 of 1999, [2000] 1 HKLRD A7).”

50.  In adjudicating the application the judge considered whether the applicant could bring himself within any of these grounds and concluded he could not.  In our view she was right to so conclude.

51.  Firstly, we are of the view that changing one’s plea in response to an unfavourable ruling when made, as happened here, after receipt of legal advice, cannot be said to have been made involuntarily or under duress.  Certainly it is influenced, and perhaps prompted, by the unfavourable ruling but that does not strip it of its character of being an informed and considered decision, freely made.  The pressures a defendant feels to make hard decisions in response to the evolving and unfolding exigencies of a criminal trial cannot constitute duress or render those decisions involuntary.  There is no basis for treating such a plea as a nullity.

52.  Secondly, it is quite apparent from the court record and from the contents of his letter that the applicant was well aware that pleading guilty would require him to acknowledge that he knew he was in possession of dangerous drugs and that by his plea he was making such an admission.

53.  Thirdly, there was nothing in the Summary of Facts inconsistent with the elements of the offence of trafficking in a dangerous drug.  The absence in it of an assertion that the applicant had knowledge of the drugs is irrelevant.  It is irrelevant because his admission of such knowledge was contained in his guilty plea.  The plea of guilty was an admission to all of the elements of the offence and necessarily included an admission of knowledge that he had drugs in his possession.  The Summary of Facts supports the offence and though somewhat bare in its contents was an adequate basis for sentencing. 

54.  There is nothing in the contents of the document or in the arraignment process to suggest that the applicant’s guilty plea may have been equivocal.

55.  In our view it is clear that what has happened is that after losing his application for disclosure of the informant’s identity the applicant was prompted to review his position.  This is hardly surprising and perfectly normal.  The loss of this application would prompt him to consider what impact it might have on his chances of being believed by the jury and of being acquitted by them.  He had to balance his chance of acquittal against the loss of the one third sentencing discount which he would receive should he plead guilty.  He obviously formed the view that his chance of acquittal had been lessened by the adverse ruling and that the best course available to him was to plead guilty.  What comes through very clearly from the transcript is that the applicant had a change of mind and had decided he would rather take his chance with the jury than face the certainty of a lengthy prison term.

(3) Appealing a guilty plea

56.  It is the applicant’s claim that his plea of guilty was tendered involuntarily and was not an exercise of free choice because it was forced upon him by an unfavourable ruling from the judge on his application for the prosecution to disclose the informant’s identity.  We have already said that there was nothing erroneous in the judge’s decision to refuse the application for disclosure of the informant’s identity.  However, even if we are wrong in this regard the applicant would face other hurdles in having his conviction quashed. 

57.  Apart from arguing that the plea should be regarded as a nullity there is another way by which a defendant who has pleaded guilty can ask an appellate court for the conviction flowing from that plea to be quashed, and this is on the ground that his conviction, based on that plea, is unsafe and unsatisfactory.  It is recognised that a guilty plea can be so regarded when it is founded upon an adverse erroneous trial ruling which ruling is the basis for the appeal.  As to when a plea of guilty can be said to be founded upon an adverse erroneous ruling was the subject of discussion by the English Court of Appeal in R v Chalkley [1998] QB 848.  In rejecting the argument that the adverse ruling need only influence the decision to plead guilty the Court of Appeal said at page 861G-862A of the report:

“ In our view, the early authorities to which we have referred and others to which we are about to refer demonstrate the logical imperative of the first, narrow, construction of the expression ‘founded upon’ in this context. It is only where an erroneous ruling of law, coupled with the admitted facts, makes acquittal legally impossible that a plea of guilty can properly be said to have been ‘founded upon’ the ruling so as to enable a successful appeal against conviction. The fact that an erroneous ruling of law as to the admissibility of certain prosecution evidence drives a defendant to plead guilty because it makes the case against him factually overwhelming will not do. It does not make it impossible for him to maintain his innocence as a matter of law or of fact, it merely makes it harder.”

58.  The Court of Appeal went on to say at page 864F-H of the report:

“ In appeals against conviction following a plea of guilty, the somewhat mechanical test of whether a change of plea to guilty was ‘founded upon’ a particular feature of the trial, namely a wrong direction of law or material irregularity, gives way to the more direct question whether, given the circumstances prompting the change of plea to guilty, the conviction is unsafe. However, even when put that way, the good sense of preferring the narrower interpretation, which we have identified, of the expression ‘founded upon’ lingers on. Thus, a conviction would be unsafe where the effect of an incorrect ruling of law on admitted facts was to leave an accused with no legal escape from a verdict of guilty on those facts. But a conviction would not normally be unsafe where an accused is influenced to change his plea to guilty because he recognises that, as a result of a ruling to admit strong evidence against him, his case on the facts is hopeless. A change of plea to guilty in such circumstances would normally be regarded as an acknowledgement of the truth of the facts constituting the offence charged.”

59.  Here the applicant’s defence was that he had been given temporary custody of an envelope by an acquaintance and at the place of his arrest he was expecting to meet the acquaintance for the purpose of returning the envelope to him.  He believed that the envelope contained valuable gemstones and so he removed the contents of the envelope and distributed them around his person.

60.  This was a defence which the applicant could still advance by testifying in support of it.  As we have already said, confirmation from the police that Junior was the informant may, and only may, have been regarded by the jury as enhancing the credibility of the applicant’s claim but the applicant’s claim was ultimately dependant on how the jury assessed his credibility, not on proof that the informant was Junior.

61.  This was an archetypal case where the adverse ruling did no more than, at its highest, make the defence more difficult to advance and, thereby, to lessen the chance of an acquittal.

62.  We find nothing unsafe or unsatisfactory in respect of the applicant’s conviction based upon his impugned plea of guilty.

63.  Much was made by the applicant of what he claimed was the denial to him of his right to trial by jury.  That he was denied such a right is correct, but the denial of this right followed from the judge’s refusal to allow him to reverse his guilty plea.  That refusal, we have found, was in accordance with law.  There was, therefore, nothing unlawful in the denial to the defendant of his right to jury trial.  There is no breach of any of his rights under the Bill of Rights Ordinance.  

The application for leave to appeal against sentence

64.  At the hearing of this application the applicant maintained his claim that he did not know that there were drugs in the packets until he was told so by the arresting officer.  This, he said, was a claim he had consistently made from the time of his arrest.  He also repeated his assertion that he had been entrapped.

65.  The applicant had the carriage of the Newton enquiry as it was held to investigate an allegation that he was advancing, namely that he had been entrapped into committing the offence.  The judge was right to conclude that the evidence of Mr Godspower provided little support for the allegation.  Since the applicant did not, himself, give evidence in support of his allegation it is hardly surprising that the judge rejected it. 

66.  Now the applicant claims that he was not given an opportunity to testify and blames the prosecutor for not cross-examining him on the Newton hearing.  However, it is clear from the record that the applicant, who hitherto had never been slow to assert himself, had never told the judge that he wished to give evidence.  Furthermore, before us the applicant admitted that the judge explained the nature of and reason for the Newton hearing and how he would have an opportunity to testify on it in support of his claim to have been entrapped.

67.  In addition to the explanation from the judge the applicant also received the benefit of an explanation from the prosecutor, Mr Raffell, on the relevant legal principles. This occurred because on the day of the sentencing hearing, 9 February 2015, Mr Raffell had a conversation with the applicant before the court hearing.  This took place at the applicant’s request and after it was over Mr Raffell reported to the court what had taken place.  He said that he had informed the applicant that he, the applicant, bore the burden of proof to the standard of the balance of probabilities to show that he was entrapped.

68.  The applicant cannot now shift the responsibility onto the shoulders of the prosecution for his failure to testify.  It was he who was advancing the allegation as part of his mitigation and so it was for him to satisfy the judge, by evidence, that it was true.

69.  We are satisfied that the applicant must have known that as he was the party making the claim of entrapment it was for him to substantiate it by the giving of evidence.  This, after all, was the reason he was calling Mr Godspower.

70.  However, we should say that we find it difficult to see how the applicant could establish a case of entrapment in the circumstances that he relied on.  Once the denial of knowledge is put to one side then the applicant is in knowing possession of dangerous drugs given to him by another for the purpose of him keeping safe custody of them until such time as he was required to return the drugs to that other person.  When called upon to return them the applicant concealed them about his person.  He was given possession of the drugs on the evening of 14 December 2011 and was arrested with the drugs in his possession at 5.28 pm the next day.

71.  The applicant’s claim that the judge applied the wrong standard of proof is without substance.  We have carefully read her reasons for sentence and there is nothing in them to suggest that the judge misapplied the burden or standard of proof in relation to the Newton enquiry. 

CONCLUSION

72.  For the reasons set out herein we refused both the application for leave to appeal against conviction and the application for leave to appeal against sentence.

[1] Paragraph 8 of the Ruling of Toh J on the application for disclosure of the informant’s identity.

[2] This was in fact the same starting point as was adopted by the trial judge in the applicant’s first trial.