HKSAR v. TO KIT YAN

CACC 43/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 43 OF 2014

(ON APPEAL FROM HCCC NO. 507 OF 2013)

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J U D G M E N T

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Introduction

1. The applicant pleaded guilty before a magistrate on 22 November 2013 to a charge of trafficking in a dangerous drug, namely 143.09 grammes of a crystalline solid containing 102.28 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  She was committed to the High Court for sentence where, on 5 February 2014, she was sentenced by Deputy Judge Remedios to 6 years and 4 months’ imprisonment.

2. On 11 February 2014, the applicant filed a notice of application for leave to appeal against sentence.  On 14 April 2014, the applicant filed another notice of her intention to seek leave to appeal against conviction out of time; by which time, she was more than five weeks out of time from the expiry of the appeal notice period.  The reason given for the delay in filing a notice of appeal against conviction was, according to an affirmation sworn by the applicant on 14 April 2014, that “there is discrepancy between my documents and the contents of the court’s judgment I received on 4^th and 8^th April”.

3. By two further letters to the Bar Free Legal Service Scheme, dated 18 August and 8 September 2014, the first of which is attached to an affirmation sworn by the applicant on 20 August 2014, she also avers that she was misled by the police and her lawyers into pleading guilty and seeks to set aside her plea of guilty on the basis that it was a nullity.

4. On 19 September 2014, the applicant applied for an order to adduce the following additional evidence for the purpose of her appeal:

(1)  The affirmation made by the applicant at Lo Wu Correctional Institution on 20 August 2014;

(2)  A medical report on the applicant by Dr Julia Chan Pui Shan from Queen Elizabeth Hospital[1]; and

(3)  A psychiatric report on the applicant by Dr Grace Chan Yuen Ching from Castle Peak Hospital[2].

The facts

5. At 12:42 hours on 27 July 2013, the applicant left Hong Kong via Lo Wu Boundary Control Point and returned two hours later with the dangerous drugs, the subject-matter of the count, in the form of five pallets, hidden in her anus and vagina[3].  Upon being searched at the scene, the applicant admitted that she was carrying five pallets of white powder in her private parts.  In her subsequent interview, the applicant further admitted that she carried the dangerous drugs into Hong Kong for a reward of $500 from one “Ah Hung” because of her financial difficulties.  She had only come to know “Ah Hung” a few days before the incident.  The estimated retail value of the dangerous drugs concerned was HK$117,619.

The judge’s sentencing approach

6. In sentencing, the Deputy Judge considered the applicant’s background and the mitigation which had been put forward on her behalf[4], including a recent medical report from the Medical Officer of Tai Lam Centre for Women dated 30 January 2014.  It was stated in the medical report that other than the dizziness[5], for which the applicant had refused treatment and insisted on discharging herself against medical advice, the applicant’s overall health condition was satisfactory[6].

7. Relying on the sentencing guidelines set out in R v Lau Tak-ming and others [1990] 2 HKLR 370, the court adopted a starting point for the quantity concerned of 9 years’ imprisonment.  The Deputy Judge also considered the international element revealed by the facts and enhanced the starting point by 6 months, relying on HKSAR v Abdallah [2009] 2 HKLRD 437.  Given her guilty plea warranting the usual one-third discount, the Deputy Judge imposed a sentence of 6 years and 4 months’ imprisonment on the applicant.

Grounds of appeal against conviction

8. In respect of her appeal against conviction out of time, the applicant, in her affirmation dated 20 August 2014, has asserted that she had been misled by the police and her lawyers into pleading guilty.  She was effectively told to plead guilty in order to obtain a discount on sentence. However, she subsequently found that there were some inaccuracies in her record of interview. She has also complained that her counsel at trial, Mr David Boyton did not have sufficient time to prepare her defence, she having been interviewed only once before the hearing on 5 February 2014.

9. The threshold for a change of plea made out of time is a high one.  The relevant principles have been recently restated in HKSAR v Chan Siu Kuen (Unrep) CACC 300 of 2013:

“The circumstances in which a defendant can recant his unequivocal plea of guilty are equally well settled: HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125. Such a plea becomes null if it can be shown that (i) the facts admitted by the defendant do not amount to the offence with which he is charged; (ii) the admitted facts are equivocal as to guilt; (iii) the plea was tendered to a charge which was defective on its face or invalid or unclear; (iv) the plea was tendered involuntarily by duress or misrepresentation or was not an exercise of free choice; (v) the plea was induced by fraud or made under a fundamental mistake; or (vi) the plea did not result from a deliberate and informed decision.”

10. The applicant has not been able to bring herself within any of these tests.  Significantly, she was content to plead guilty to the charge before a magistrate on 22 November 2013, wait more than 10 weeks and then confirm her plea in the High Court on 5 February 2014.  If she was told, as I would hope she was, that a plea of guilty would attract a significant discount from the appropriate starting point after trial, then she was given correct advice.  Looking at her criminal record, she hardly needed to be informed of this practice, given the number of times she has appeared before the courts.

11. I see nothing equivocal about the terms of the plea or the facts to which she pleaded.  Indeed, no conceivable defence to the charge has been suggested to me by the applicant.  I can see no basis for allowing her to change that plea or to appeal out of time against her conviction.  Leave to appeal against conviction out of time is therefore refused.

Grounds of appeal against sentence

12. Regarding her appeal against sentence, the applicant claims in effect that her counsel had failed to obtained sufficient information, namely the two medical reports she is now seeking to adduce at her appeal, in support of her mitigation prior to sentence.

Consideration

13. I am prepared to admit these two medical reports for the purposes of this application.  However, although they are perhaps fuller and give a more complete picture about the applicant’s mental health than the medical report from the Medical Officer at Tai Lam Centre for Women dated 30 January 2014, which was before the Deputy Judge, I do not believe that they take the matter much further.  They do not afford the applicant, even accepting them at full face value, the kind of mitigation which would have any impact upon a proper sentence for what is an extremely serious offence.  Moreover, I am confident that she will receive the kind of psychological intervention she requires while in custody.

14. The starting point adopted by the Deputy Judge in respect of 102.28 grammes of heroin hydrochloride narcotic was within the range of sentence set out in R v Lau Tak-mingfor between 50 and 200 grammes.  Furthermore, the enhancement of sentence by 6 months was similarly appropriate for carrying this quantity of dangerous drugs across the border into Hong Kong.

15. I am not prepared to grant the applicant leave to appeal against her sentence. Accordingly, the application is refused.  The applicant is duly advised of her right to renew her application to the Court of Appeal, and the consequences of so doing, which may include a direction for the loss of time spent in custody, if the Court comes to the conclusion that there was no justification for the renewal of the application.

[1] This medical report gives similar comments as those stated in the report from the medical officer of Tai Lam Centre for Women, which the judge had already considered.

[2] This report gave more details about the psychiatric treatment received by the applicant since 2007.  In gist, the applicant was diagnosed with a) Dysthymia, a low grade mood disorder and b) an emotionally unstable personality disorder, borderline subtype.  She did not have any active problem related to substance abuse. The applicant required regular psychiatric treatment which comprised medication and psychological intervention.  With treatment, it was said she would be expected to improve her mood regulation and develop a more positive attitude to life.

[3] Appeal Bundle: p.IV Paragraph 6 of Admitted Facts

[4] Appeal Bundle: p.1T-2O

[5] The applicant was referred to A & E Department of Queen Elizabeth Hospital and hospital of Tai Lam Centre for observation.

[6] Appeal Bundle: p.9