HKSAR v. NUR MEI LINA

CACC 250/2017

[2018] HKCA 383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 250 OF 2017

(ON APPEAL FROM HCCC NO 77 OF 2017)

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.  The applicant pleaded guilty to two offences of drug trafficking for which she was sentenced to a total term of imprisonment of 15 years and 10 months. She applied for leave to appeal against sentence. However, shortly before the hearing of the leave application to appeal against sentence, the applicant applied for an extension of time to apply for leave to appeal against conviction. The applicant was directed to make the application at the hearing of the application for leave to appeal against sentence.

2.  At the conclusion of the hearing, we refused both the application to extend time and the application for leave to appeal against sentence.  We said that we would hand down our reasons in due course which we now do.

3.  In addressing this case, it is necessary that we descend into some detail in relation to the background of the applicant, the history of the proceedings and the entering of the pleas of guilty to the charges by the applicant which are particularly relevant to the application to extend time.

The background of the applicant

4.  The applicant is an Indonesian female who is now 33 years of age.  On 30 December 2011, she came to Hong Kong to take up employment as a domestic helper but her contract was terminated prematurely on 2 January 2012.  As a consequence, she was required to leave Hong Kong within 14 days but instead she remained and overstayed.  She was eventually arrested and, following her conviction for breach of condition of stay on 25 March 2013, she was sentenced to 8 weeks’ imprisonment which was suspended for 3 years.  In the meantime, on 9 April 2013, a removal order was issued against her. 

5.  The applicant did not leave Hong Kong and she was convicted of taking up employment while a removal order was in force.  On 25 July 2014, she was sentenced to 13 months’ imprisonment and her previous suspended sentence of 8 weeks’ imprisonment was also activated.

6.  In October 2014, the applicant made a non‑refoulement claim, and it would appear that after she served her sentence she was released on her own recognizance. 

The history of the proceedings

7.  On 16 July 2016, the applicant was arrested for drug trafficking by Customs officers together with two other Indonesian females, whose names were Darsem, and Dwi Maryanti.  

8.  It was alleged that the applicant received a parcel addressed to her at her place of residence which was found to contain a quantity of cocaine.  Customs officers posing as postmen delivered the parcel to her.  After she acknowledged receipt of the parcel, she was arrested and taken inside the premises, where the other two women were present.  Customs officers searched the premises and found a further quantity of cocaine in a cabinet drawer.

9.  The applicant was charged with attempting to traffic in a dangerous drug in relation to the drugs contained in the parcel (Charge 1), and with trafficking in a dangerous drug in relation to the drugs found in the premises (Charge 2).  The two other women, Darsem and Dwi Maryanti, were also charged separately with trafficking in a dangerous drug in relation to the drugs found in the premises (Charges 3 and 4 respectively). 

10.  The three women came before the magistrate’s court on 21 July 2016.  Each of them was denied bail and the case was adjourned to 29 July 2016.  On that day, the case was adjourned to 15 September 2016 and bail was again denied to them.  The case was further adjourned to 13 October 2016.  On that day, the prosecution withdrew the charges against Darsem and Dwi Maryanti and they were released from custody. 

11.  The case against the applicant proceeded, and a return date was fixed for committal proceedings on 18 November 2016.  She was remanded in custody.  On that day, a return date was reappointed to 23 December 2016 to enable the defence to peruse the papers. 

12.  On 23 December 2016, the applicant was represented by legal aid counsel who indicated to the Magistrate that the applicant would plead guilty.  The case was adjourned to 6 February 2017, which was further adjourned to 6 March 2017, to give the defence time to discuss a plea with the Department of Justice. 

13.  On 6 March 2017, the applicant, who was represented by a solicitor assigned by the Legal Aid Department, pleaded guilty to the two charges that she faced after the magistrate had explained to her the offences and their ingredients.  The particulars of the charges were attempting to traffic in a dangerous drug, namely 969.3 grammes of a powder containing 717.6 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and section 159G of the Crimes Ordinance, Cap 200 (Charge 1), and trafficking in a dangerous drug, namely 965 grammes of a powder containing 556 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Charge 2). 

14.  It was noted on the court record that the legal representative for the applicant and the applicant herself confirmed that the summary of facts submitted by the prosecution had been read to the applicant in full which she understood, and was also read in full to her in court which she confirmed she understood.  It was further noted on the court record that the applicant stated that she admitted the facts and that she agreed that her pleas were made voluntarily.

15.  Throughout all her court attendances, the applicant had the benefit of an Indonesian interpreter. 

The summary of facts

16.  The summary of facts to which the applicant agreed when she pleaded guilty to the two charges, briefly stated, is as follows.

17.  On 16 July 2016, a parcel that had originated from Brazil was selected for mail examination and clearance.  On the airway bill attached to the parcel, the consignee was in the name of the applicant and the delivery address was the applicant’s residential address, a room in premises at Shanghai Street, Mongkok. 

18.  The Customs officers opened the parcel and found inside a wooden box containing 17 candles.  In each of the candles was a pellet which were later confirmed to contain a total quantity of dangerous drugs of 969.3 grammes of a powder containing 717.6 grammes of cocaine (Charge 1).  The estimated retail value of the cocaine was $1,098,200. 

19.  A controlled delivery was carried out by Customs officers on 19 July 2016.  Two Customs officers, posing as postmen, delivered the parcel to the applicant at the delivery address.  The applicant answered the door and confirmed her name was the same as the consignee shown on the airway bill. She was asked to sign on a copy of the airway bill which she did to receive the parcel.  Before the applicant took possession of the parcel, the Customs officers arrested and cautioned her.  The Customs officers displayed a pellet from one of the candles to the applicant, who said that she had no idea what it was.  She also denied owning the parcel and knowing who sent it to her. 

20.  She had in her possession the keys to the room of the premises of which she was the tenant at the time.  The Customs officers retrieved the keys from her which they used to gain entry to the premises.

21.  Although it was not mentioned in the summary of facts, when the Customs officers entered the premises there were two other Indonesian females, Darsem, and Dwi Maryanti, also present.

22.  The Customs officers searched the premises and found inside a drawer of a cabinet in a room, a transparent plastic bag which was later confirmed to contain a quantity of dangerous drugs of 965 grammes of a powder containing 556 grammes of cocaine (Charge 2).  The estimated retail value of the cocaine was $1,093,300. 

23.  The applicant was again cautioned and in response she said that the plastic bag did not belong to her and she did not know what it was.  Upon further questioning, she said that the bag belonged to her friend who put it there and she did not know how to find her. 

24.  In a subsequent video recorded interview, the applicant denied any knowledge of the cocaine found in the parcel and in the cabinet drawer at her home. 

25.  The summary of facts concluded, notwithstanding what had been stated previously, that she admitted her guilt of the offences for which she was charged.

“16. The accused now admits and accepts that she attempted to traffic in the cocaine found in the first seizure and she trafficked in the cocaine found in the second seizure.”[1]

26.  The reference to the first seizure was in relation to the cocaine found in the parcel and to the second seizure was the cocaine found in the drawer of the cabinet.

The sentencing of the applicant

27.  Following her pleas of guilty, the applicant was committed for sentence to the Court of First Instance which was fixed for hearing on 9 May 2017.  At that hearing, the applicant appeared before Wong J for sentence.  She was legally represented by counsel assigned by the Legal Aid Department.  An application was made to adjourn sentencing on the basis that the applicant wished to assist the authorities by providing information.  The judge adjourned the sentencing to 18 July 2017 and directed that if any special procedure was required in relation to the provision of assistance to the authorities, the defence were to inform the court 7 days before the adjourned hearing date. 

28.  A non‑prejudicial statement was taken from the applicant on 30 June 2017.  We were informed by Mr Andrew Cheng, counsel for the respondent, that the applicant merely stated that she was not ready to provide information.  The matter was left on the basis that the solicitors for the applicant would contact Customs officers if she had any information that she wished to provide them, but no contact was made.  Instead, a letter from the applicant’s solicitors dated 6 July 2017 was sent to the court in which they stated that no special procedures on sentence were required and that they would proceed to mitigate on behalf of the applicant on 18 July 2017.

29.  At the adjourned hearing, the applicant was legally represented by the same counsel as before.  She provided brief background particulars of the applicant and submitted that the applicant was remorseful for what she had done in committing the offences.  She also submitted that the applicant committed the offences out of stupidity “to help a friend” and was never promised or to receive a reward for doing so.  She described the applicant as “a small fish” who played a minor role in the transaction. She added that the applicant realised what she did was wrong, and therefore early in the proceedings in the magistrate’s court she indicated her intention to plead guilty and confirm the facts of the case.  She asked for a lenient sentence for the applicant.  

30.  The judge referred to the appropriate sentencing guidelines laid down in R v Lau Tak Ming[2] and HKSAR v Abdallah[3]where the appropriate starting point for trafficking in cocaine of 400 to 600 grammes is in the range of 15 to 20 years’ imprisonment, 600 to 1,200 grammes is in the range of 20 to 23 years’ imprisonment, and 1,200 to 4,000 grammes is in the range of 23 to 26 years’ imprisonment. 

31.  The judge noted that in relation to Charge 1, the applicant had been charged with attempting to traffic in a dangerous drug but correctly decided that the usual sentencing tariff should apply in the circumstances of the case.  As for Charge 1, he adopted a starting point of 20 years and 6 months’ imprisonment for 717.6 grammes of cocaine narcotic.[4] As for Charge 2, he adopted a starting point of 18 years and 6 months’ imprisonment for 556 grammes of cocaine narcotic.[5] 

32.  The judge acknowledged the aggravating factors of the international element in relation to Charge 1 (the importing of the dangerous drugs from overseas), and the applicant’s status as a non‑refoulement claimant in relation to Charges 1 and 2.  He therefore enhanced the starting point on Charge 1 by 15 months to 21 years and 9 months’ imprisonment, and on Charge 2 by 9 months to 19 years and 3 months’ imprisonment.  He noted that there were no other mitigating factors except for the applicant’s plea of guilty and he reduced the starting point on each charge by one-third, resulting in a sentence on Charge 1 of 14 years and 6 months’ imprisonment, and on Charge 2 of 12 years and 10 months’ imprisonment. 

33.  The judge followed the guidance given by another division of this court in HKSAR v Touray Edrisa[6] that in cases of multiple trafficking in dangerous drugs that are connected closely in time and fact, it is appropriate for the sentencing court to have regard to the overall quantity of the narcotic.  He combined the quantity of cocaine in the two charges, which was 1,273.6 grammes, and adopted a starting point of 23 years’ imprisonment.[7]  He enhanced the starting point by 9 months to 23 years and 9 months’ imprisonment on account of the aggravating factors and then reduced the sentence by one‑third for the applicant’s guilty plea to 15 years and 10 months’ imprisonment.  To achieve this sentence, he ordered that 1 year and 4 months of the sentence on Charge 2 of 12 years and 10 months’ imprisonment was to run consecutively with the sentence on Charge 1 of 14 years and 6 months’ imprisonment. 

34.  We note that in each instance when the judge determined the starting point, he adopted one that was slightly less than an arithmetic calculation according to the guidelines, and that when he determined the enhancement for the aggravating factors he took into account the risk of excessive enhancement.  He arrived at a figure for the enhancement of 9 months for the aggravating factors which was rather generous given that he had determined an enhancement of 15 months for both the international element and the status of a non‑refoulement claimant in relation to Charge 1.

The applicant’s appeal against sentence

35.  On 14 August 2017, the applicant filed a Form XI in which she applied for leave to appeal against sentence only.  The form also allows for a person to appeal against conviction but this part of the form was not completed by the applicant.  In a letter dated 22 August 2017, written by the applicant, she complained that her sentence was excessive.[8]  According to the translation of her letter, she said:

“I have admitted all my wrongdoings and, apart from that, I have also provided information about the ownership of the said prohibited drugs…”

36.  The applicant went on to state that she expected a lenient sentence would be handed down to her for the information she provided.  She asked that her sentence be reduced.

37.  On 25 September 2017, the Director of Legal Aid refused the applicant’s application for legal aid in relation to an application to appeal against sentence. 

38.  On 17 January 2018, the applicant’s application was brought up for mention in order to fix a date for the hearing of it.  The applicant appeared in person and confirmed that she would represent herself and was ready to proceed to hearing. 

39.  On 5 February 2018, a direction was issued by the court to the respondent to provide a response in relation to the value of the applicant’s purported assistance as mentioned in her Form XI. 

40.  On 20 February 2018, the respondent replied by stating that the applicant had provided a non‑prejudicial statement to the Customs and Excise Department on 30 June 2017 which was the only information provided by her, but it did not contain anything useful.  

41.  On 23 April 2018, the Director of Legal Aid refused the applicant’s application for legal aid and the Notice of Refusal of Legal Aid referred to an application to appeal against both conviction and sentence.  

42.  By notice dated 27 April 2018, the applicant’s appeal was listed to be heard by the Court of Appeal on 6 July 2018.

The letter of 19 June 2018

43.  On 19 June 2018, a lengthy letter was submitted to the court on behalf of the applicant by a fellow prison inmate together with attachments.  In the letter, the applicant applied for an extension of time to apply for leave to appeal against conviction.  This was the first time that the court had been informed that the applicant wished to make such an application.

44.  When the court received the letter, directions were issued dated 29 June 2018 that the applicant must apply for an extension of time in which to apply for leave to appeal against conviction and that this would be heard on 6 July 2018.  It was further noted that the court did not have certain correspondence mentioned in the letter which was provided by a letter dated 5 July 2018. 

45.  The purpose of the 19 June 2018 letter was to provide grounds for an application by the applicant for an extension of time to appeal against conviction, as well as address her leave application to appeal against sentence which was made within time. 

46.  The author, at the outset of the letter, acknowledged that she is not a lawyer and that there is no substitute for proper legal representation.  She embarked on a reassessment of the case against the applicant but at no time is it suggested that when the applicant pleaded guilty to the offences of drug trafficking and agreed the summary of facts in the magistrate’s court, it was other than an informed and considered decision by her.

 (i) Three factual matters

47.  In her reassessment of the case, the author of the letter noted three factual matters about the case. 

48.  The first is that the Customs officers arrested the applicant after she signed the airway bill but before she took physical possession of the parcel.  It was submitted that she had no opportunity to inspect the contents of the parcel or do anything with it at all. 

49.  The second is that the rental agreement of the premises where the dangerous drugs were found was in the name of the applicant, but she lived there together with Darsem, whilst Dwi Maryanti was a visitor. It was noted that this was stated by the applicant in her video recorded interview.  It was also noted that, after the arrest of the three women, Darsem had provided a statement in which she said that she was responsible for both the parcel that was addressed to the applicant and the drugs that were found in the premises.  This was a reference to a letter purportedly from Darsem to Father John Wotherspoon dated 20 September 2016.

50.  The third is that the applicant denied that she was expecting a parcel or knew what was contained in it, or that she had any knowledge of the drugs found in the premises.  It was noted that she maintained this position in her video recorded interview.  It was submitted that except for the applicant’s guilty plea, there had not been any admissions of guilt by her either in the prosecution case or to the court.  This assertion is clearly not correct, because in the summary of facts admitted by the applicant it was stated that she admitted and accepted that she attempted to traffic in the cocaine found in the first seizure and she trafficked in the cocaine found in the second seizure.

51.  It was argued that the only explanation given during mitigation for the offence was that she was “helping a friend”.  It was contended that it was never expanded upon how she was helping a friend, or what was meant by helping a friend.  That was part of the applicant’s mitigation, and it was a matter for her if she wanted to elaborate upon it.  It is not without significance that even when the applicant was given the chance to provide information to the authorities prior to the sentencing hearing she declined to do so.

52.  It was also argued that the prosecution’s summary of facts made no mention of what the applicant knew or did not know about the dangerous drugs, and the court would be entitled to assume that the applicant’s legal representatives would have advised her of the ingredients of the offence before her plea.  In this context, it was submitted that there was no mention of the applicant’s knowledge of the dangerous drugs in open court that might have alerted her to the extent to which she was admitting to something of which she was unaware. 

53.  If it is being suggested that it was not apparent to the applicant that she was admitting to possession of the dangerous drugs, then the answer is that the particulars of the two offences to which she pleaded guilty set out clearly that the allegation against her was that she was attempting to traffic and trafficking in the dangerous drugs in question which she also acknowledged in the summary of facts to which she agreed. 

(ii) The first offence

54.  In respect of the first offence, it was submitted that there was inconclusive evidence that the applicant had taken possession of the parcel.  She denied expecting the parcel or having knowledge of what was contained in it.  It was further submitted that she was given no opportunity to inspect the contents of it but was instead immediately arrested. 

55.  It was contended that because the Customs officers never placed the parcel in the applicant’s hands, it was arguable that this did not amount to her having custody and control of it.  It was submitted that there was insufficient evidence to constitute possession of the parcel.  It was further submitted that the prosecution case depended entirely upon drawing the inference that because the parcel was addressed to the applicant she must have known what it contained, and that she was going to keep it.

56.  As already noted, this attempt to re-evaluate the facts and circumstances of the case ignores that the applicant pleaded guilty and agreed the summary of facts in which it was stated that she accepted and admitted that she was attempting to traffic the dangerous drugs in the parcel.  It may have been the case that at trial the prosecution would be asking a jury to draw the only reasonable reference that she knew the contents of the parcel were dangerous drugs, but the fact remains that she admitted that she knowingly attempted to traffic the dangerous drugs in the parcel. 

(iii) The second offence

57.  In respect of second offence, it was submitted that the dangerous drugs were found in the premises which the applicant occupied with Darsem, and that Darsem had made a statement in which she claimed responsibility for the dangerous drugs in the premises and for providing the applicant’s name and address without her permission to the sender of the parcel. 

58.  This leads us to examine the letter from Father Wotherspoon in which he mentions and attaches a copy of a letter purportedly from Darsem which was posted on one of his websites.

(iv) The letters of Father Wotherspoon and Darsem

59.  It was submitted that Father Wotherspoon provided a letter dated 5 May 2017 to the defence lawyers which was to be produced to the court as part of the applicant’s mitigation. 

60.  In his letter, Father Wotherspoon stated that the applicant was one of a number of asylum seekers who had been recruited by a fellow asylum seeker.  He named the person and noted he was also known as “Lucky” and “Phillip”.  He claimed that “Lucky” would sacrifice persons to the authorities and this was common knowledge.  He stated that the applicant had been introduced to the “Lucky” by Darsem who had for a period of about 8 months worked for him.  He further stated that in a letter to him dated 20 September 2016 written by Darsem, as part of his anti‑drug campaign and put on one of his websites, she indicated that the applicant’s role in the story was not that of the main character.  He attached an original copy of the letter.  He concluded by expressing the hope that Darsem’s letter, and the fact that the applicant was one of a group of vulnerable people who had been targeted by “Lucky”, would be of use in the applicant’s mitigation.

61.  The suggestion from Father Wotherspoon was that the applicant was not the main character and that others were involved.  That may be so, but the applicant had admitted her guilt to being involved in trafficking the two lots of cocaine.

62.  The provenance of Darsem’s letter is not clear. It is handwritten in English, although poorly, and addressed to Father John, (spelt “Jhon”).  Darsem asked for Father Wotherspoon’s help so that her two friends, the applicant and Dwi Maryanti, could be released. 

63.  If what follows is a little confusing, it is because of the way the letter was written and expressed.  Darsem said that Customs had found cocaine inside her room and also in a parcel.  She explained that two months before receiving the parcel, a friend by the name of “Philip” asked for her address and full name because he wanted her to receive a parcel at her home for him which he was to give to his wife.  She agreed and gave the address but used her friend’s name, the applicant, because she did not have “Id or refuge”.  She said the parcel did not come and she did not ask “Philip” about it.  After one month, “Philip” asked her to keep something for him.  She said she did not know it was drugs until Customs had come to their home and brought the parcel.  She said that she had no idea from whom or where the parcel came. She asked Father John whether he could help her to let her two friends get out as they did not know anything about the matter.  She said that she used the name of her friend, the applicant, because she did not have “Id & address”.  She also said that Dwi Maryanti was just a visitor that day.  She added that she would be guilty for the matter because she did not know how to find her friend, and that she would be guilty if that was the only way to let her two friends get out very fast. 

64.  The letter is dated 20 September 2016 by way of a stamped chop.  The relevance of this date is that it was at a time when Darsem was in custody together with the applicant and Dwi Maryanti, and prior to when the charge against her was withdrawn on 13 October 2016.  It would appear to be the case that at no stage did Darsem make the admissions contained in her letter to the authorities, nor was her letter passed on to them. 

65.  We were informed by Mr Cheng that Darsem was also a non‑refoulement claimant but since 2015 she has not reported to the Immigration Department as required by her recognizance, and her whereabouts is unknown.

(v) The conviction and sentence

66.  In respect of the applicant’s convictions for the two offences, it was submitted that even if the applicant knew that Darsem was storing the dangerous drugs in the room, that would not amount to dealing in them, although it was acknowledged that it would constitute an offence contrary to section 37(1) of the Dangerous Drugs Ordinance, Cap 134, which has a lesser maximum penalty to the offences for which she was convicted.  As far as relevant to the present case, section 37(1)(a) provides that no person shall, being the tenant or occupier of premises, permit such premises or any part thereof to be kept or used for storage of a dangerous drug. 

67.  We can only view this reference to section 37(1) as yet another instance of disregarding, when there is no reason to do so, the applicant’s unequivocal guilty pleas and admission of guilt to attempting to traffic and trafficking in the dangerous drugs in question.

68.  It was further submitted that prior to the sentencing hearing, the applicant indicated to her legal representatives that she wished to change her plea but was told that it was too late because she had already pleaded guilty to the two charges, and her case had been transferred to the Court of First Instance.  It was claimed that despite repeated requests by the applicant to defence counsel that the judge be shown the letters from Father Wotherspoon and Darsem, she was told that it could not help her because of her guilty plea.  It was further claimed that the reason that the applicant wished to change her plea at that stage was because she only found out about the letter from Darsem at that time, having received Father Wotherspoon’s letter in which he referred to the letter and attached a copy of it.  

69.  We point out that Father Wotherspoon’s letter was dated 5 May 2017 which was before the two sentencing hearings (9 May and 18 July 2017), that when the applicant was given the opportunity to provide information to the authorities on 30 June 2017 she did not do so, and that after the applicant was sentenced she maintained her guilt of the offences in her letter of 22 August 2017 when she said she admitted all her wrongdoings in relation to the case.

70.  In any event, the author of the letter submitted that there was a possibility that a miscarriage of justice had occurred, given that the evidence against the applicant consisted of her being the addressee of the parcel and the tenant of the delivery address, in circumstances where Darsem also lived at that address and had admitted sole responsibility for the presence of the dangerous drugs.  On this basis, she requested that an extension of time be granted to allow the applicant to appeal against conviction together with her appeal against sentence.

71.  In respect of the sentence passed on the applicant in relation to the two offences, it was complained that the letters of Father Wotherspoon and Darsem were not produced to the judge for him to consider when sentencing the applicant.  It was argued that even though sentencing was adjourned to investigate the assistance the applicant could provide the authorities about who was responsible for trafficking the dangerous drugs, no follow‑up interview was conducted with the applicant and no mention of her assistance was made at the hearing on 18 July 2017.  This assertion is incorrect because there was a follow up interview but no assistance was provided by the applicant.

72.  As already noted, the respondent in its letter dated 20 February 2018 confirmed that the applicant made a non‑prejudicial statement on 30 June 2017 which was assessed as not useful because she did not disclose any information.

(vi) Application for legal aid

73.  It was finally requested on behalf of the applicant that she be given legal aid to conduct her application for leave to appeal against conviction and sentence. 

74.  On 25 September 2017, the Director of Legal Aid notified the applicant that her application for legal aid to appeal against sentence was refused.

75.  It appears that the applicant applied again for legal aid in April 2018, but this time in order to appeal against conviction and sentence.  On 23 April 2018, the Director of Legal Aid notified the applicant that her application was refused.  It was explained to the applicant that the reasons for the refusal were based on the merits of the application.

Application for extension of time to apply for leave to appeal against conviction

76.  In determining an application for an extension of time, the court will consider the grounds for the delay, the likelihood of a successful appeal if the extension is granted and whether by refusing leave, the court is shutting out a substantial and plainly arguable ground of appeal.

The question of delay

77.  It is first necessary to note the period of delay involved in making the application for leave to appeal against conviction.

78.  The applicant pleaded guilty to the charges on 6 March 2017. Before doing so, the legal representatives for the applicant indicated that she would plead guilty and requested further time so that they could discuss the matter with the Department of Justice.  The court record revealed that the offences to which the applicant pleaded guilty were explained to her as were the summary of facts and that she voluntarily admitted her guilt.

79.  The sentencing of the applicant was fixed for 5 May 2017, but was adjourned to 18 July 2017 to enable her to provide information to the authorities.  The applicant was sentenced on 18 July 2017, which she considered excessive and filed an application for leave to appeal against sentence on 14 August 2017.  It was available to her to also seek leave to appeal against her conviction but she did not do so.  She made it abundantly clear in her letter of 22 August 2017 that she was not disputing her guilt but rather complaining about the excessiveness of her sentence.

80.  The leave hearing was fixed for 6 July 2018, but it was not until the letter of 19 June 2018, that the applicant raised for the first time the question of an appeal against conviction.  The delay is some 10 months. 

81.  At the leave hearing, the applicant was unable to provide any valid reason for the delay.  She first said that she was unaware of the avenue to appeal against conviction, but as was pointed out to her, the Form XI that she filed in respect of her appeal against sentence also made provision for her to apply for leave to appeal against conviction.  She then said that the reason for the delay was that she was awaiting receipt of the letter of Father Wotherspoon.  She said the relevance of the letter was about the information of “the owner of the goods”.  However, it was pointed out to her that the letter from Father Wotherspoon was dated 5 May 2017, and she agreed that she had received it before she was sentenced on 18 July 2017.  In fact, in the letter of 19 June 2018, it is stated that the letter of Father Wotherspoon was in possession of the applicant’s legal representatives by at least 8 May 2017 which was the first time when the applicant became aware of it.  So she had known of it for all that time, and more particularly on 30 June 2018, when she declined to provide information to the authorities.

82.  The applicant then said that the reason for the delay was that she was trying to discuss her case with a lawyer.  It would appear that legal aid was refused to the applicant in relation to her appeal against sentence in September 2017, and it was after her appeal had been fixed for hearing that she applied for legal aid to appeal against conviction and sentence which was refused in April 2018. 

83.  The applicant was unable to provide a satisfactory explanation for the delay in making the application for leave to appeal against conviction. 

The question of appealing a conviction on a guilty plea

84.  We turn to consider the likelihood of a successful appeal, but before we do, we should briefly mention some of the relevant principles that apply when an accused seeks to change a guilty plea to a not guilty plea.

The relevant principles

85.  It is well recognised that a court has discretion to permit an accused to change his or her plea at any time before sentence: R v Dodd (1981) 74 Cr App R 50.  However, a court should not permit an accused to withdraw a guilty plea simply because of concern about the sentence to be passed.  Once sentence has been passed, the only remedy open to an accused is an appeal, but again an appellate court would not interfere with an otherwise proper plea of guilty merely because of dissatisfaction with the sentence.

86.  The jurisdiction of the Court of Appeal to entertain an appeal from a conviction on a guilty plea was explained by Hartmann JA (as he then was) in giving the judgment in HKSAR v Shum Chiu.[9]  He said:

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

(1) A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.

28. On the plain reading of those words, the only qualifying provision is a conviction on indictment. It matters not whether the conviction was obtained by way of verdict after trial or by way of a plea. As was said by this Court in HKSAR v Yip Kai Foon [1999] 1 HKLRD 277, 282:

We accept that the applicant is not debarred from appealing by reason of his [guilty] plea. If, however, an applicant is to have any chance of success in his appeal, he must, as was done in R v Lee (Bruce) [1984] 1 WLR 578, establish that there is some overriding factor which makes the conviction founded on the unequivocal plea unsafe and unsatisfactory.” (Emphasis added.)

29. On the authority of HKSAR v Yip Kai Foon, 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.”

87.  In determining whether there is an overriding factor, McWalters JA in HKSAR v Manjaiarraya Natthasiri,[10] explained that the ultimate question for the Court of Appeal is whether the conviction is unsafe or unsatisfactory, whether by reason of facts giving rise to nullity concerns or for any other reason.[11]

88.  It has been noted, however, that this jurisdiction should be cautiously employed because of the potential for abuse where a person has a change of heart after sentence.  This was explained by Stock JA (as he then was) in HKSAR v Yu Chi Wing,[12] where he said:

“24. It will be rare for an application to succeed on the basis that an appellant did not appreciate the nature of the charge; and the courts will always treat such suggestions after a plea of guilty and sentence with considerable circumspection, for it is an obvious avenue of potential abuse. But if in the rare case it can be proved, then it affords grounds for saying that a conviction is neither safe nor satisfactory: see R v Forde (1923) 2 KB 400, 403; R v Liberti (1991) 55 A Crim R 120; R v Ferrer-Essis (1991) 55 A Crim R 231 and R v Pauli (1991) 55 A Crim R 297. . . . ”

89.  It would be rare indeed for an applicant to succeed in showing that a conviction is unsafe or unsatisfactory where an unequivocal plea of guilty has been properly entered.

The applicant’s oral submission

90.  At the hearing, the applicant was unable to give any reason for why her conviction was wrong.  At best, she said that she discussed her case with a fellow prison inmate, who said that something was wrong.  As a result, the fellow prison inmate wrote the letter of 19 June 2018 on her behalf. 

91.  The applicant confirmed that on 6 March 2017, she voluntarily entered pleas of guilty to the charges and admitted the summary of facts.  She said that she believed that her sentence would not be severe, but after she was sentenced she felt that it was, and that was the reason why she sought to revisit her conviction. 

92.  It is not without significance that the applicant as part of her sentencing sought to provide information to the authorities in order to receive a reduced sentence.  A non‑prejudicial statement was taken from her on 30 June 2017.  It was recorded in Indonesian and signed by her.  We were informed that she said to the Customs officers who took the statement that the information that she was to provide was not ready at the time, and that she hoped that if the information was ready, she would contact the Customs officers again. 

93.  To put things in perspective, it is worth noting that by this time, the applicant had the letters of Father Wotherspoon dated 5 May 2017 and of Darsem dated 20 September 2016, but she did not refer to or produce them on this or any other prior occasion.

The applicant’s written submission

94.  It is by the letter of 19 June 2018 that the applicant questioned her convictions on her own pleas.  We have already addressed the contents of the letter and made comments where necessary, so we will focus our remarks on the following key points.

95.  First, the applicant questioned her guilt for the two offences by analysing the facts that she admitted when she entered her pleas of guilty.  Of the drugs found in the parcel, the applicant contended that the parcel was not handed over to her or in her physical possession when she was arrested.  But this ignores that she acknowledged that she was the consignee and signed the airway bill for the parcel, and the delivery address was that of the premises that she rented.  Also found inside the premises was a bag containing the same type of dangerous drugs as contained in the parcel.  In the agreed summary of facts, she admitted and accepted that she was trafficking in the drugs contained in the parcel and the drugs found in her premises, notwithstanding the account that she gave to the Customs officers when first confronted about the two lots of drugs.

96.  Secondly, the applicant relied on the letter purportedly from Darsem dated 20 September 2016, in which she said she was responsible for the parcel being delivered to the premises and storing the bag of drugs found inside there.  She pointed out that Darsem lived in the flat with her.

97.  In the letter, Darsem stated that the parcel that had been sent to the premises in the applicant’s name was done by her for a friend called “Philip”.  She used the particulars of the applicant because she did not have “Id or refuge”.  She also stated that the cocaine in a bag found in the premises was inside her room which she was asked to store for “Philip”.

98.  The applicant claimed that she was not aware of Darsem’s letter of 20 September 2016 until she received Father Wotherspoon’s letter in which he referred to and attached a copy of it.  It should be noted that Father Wotherspoon stated in his letter that he knew the applicant ever since she was arrested and visited her regularly.  He addressed the letter to the judge and explained that he would not be in attendance at the sentencing hearing on 9 May 2017 and submitted Darsem’s letter as part of the applicant’s mitigation.  It has been acknowledged that the applicant was aware, at least on 8 May 2017, of the letters of Father Weatherspoon and Darsem.  However, the sentencing hearing was adjourned to 18 July 2017 in order for the applicant to provide information to the authorities. 

99.  As already noted, when Customs officers took the non‑prejudicial statement from the applicant on 30 June 2017, she stated that she was not yet in a position to provide information as she was still considering her position.  Significantly, she did not mention or produce a copy of the letters of Father Wotherspoon or Darsem to the Customs officers.  It seems she did not put any weight on the purported admissions of Darsem to exonerate her of her involvement in these crimes. 

100.  Thirdly, the applicant claimed that she wished to change her pleas, just prior to the sentencing hearing on 9 May 2017, based on the contents of Darsem’s letter.  The applicant entered her pleas of guilty in the magistrate’s court on 6 March 2017 when she was then represented by a solicitor assigned by the Legal Aid Department.  It is noted on the court record that the applicant understood and admitted the summary of facts and confirmed her pleas were made voluntarily.  In the final paragraph of the summary of facts, the applicant admitted and accepted her involvement in the two offences.  Significantly, at no time has the applicant complained that her guilty pleas to the offences in the magistrate’s court were entered improperly.  Furthermore, it has not been suggested by her that her guilty pleas were other than voluntary and unequivocal, or that she did not understand and agree the summary of facts.

101.  In a letter to the court received on 22 August 2017, after filing the Form XI, the applicant stated that she admitted all her wrongdoings and provided information about the ownership of the drugs and that her complaint was that she should have received a more lenient sentence for having done so. 

102.  Nothing the applicant has submitted in support of her application establishes any of the grounds for rendering her guilty pleas a nullity or for causing us to harbour any doubts that the convictions may be unsafe or unsatisfactory.

103.  It was clear to us that the applicant sought to revisit and reargue her convictions simply because she was dissatisfied with her sentence.  Her complaint, therefore, really comes down to her sentence being too severe and if the letters of Father Wotherspoon and Darsem had been produced during her mitigation her sentence would have been reduced.

104.  In our view, the contents of the letters would not have raised or advanced any matters that would have had a meaningful bearing on the sentence of the applicant, in light of the fact that she had admitted that she was involved in trafficking the dangerous drugs as alleged in the two offences.

Application for leave to appeal against sentence

105.  There can be no complaint with the starting point for the sentence adopted by the judge in relation to the two quantities of drugs as specified under each charge.  They followed the sentencing guidelines and were slightly under an arithmetic calculation of the term of imprisonment according to the quantity of narcotic content. 

106.  Nor can there be complaint about the approach taken by the judge in combining the quantities of the drugs.  He did so in accordance with authority and again adopted the starting point that was slightly under an arithmetic calculation of the term of imprisonment according to the quantity of narcotic content. 

107.  He also gave a generous allowance for the aggravating factors of the international element and the applicant’s status as a non‑refoulement claimant from 15 months to 9 months when enhancing the starting point.

108.  The resultant sentence that was imposed on the applicant of 15 years and 10 months’ imprisonment for the two charges was in accordance with the sentencing guidelines and entirely appropriate in the circumstances of the applicant and the offences.

Conclusion

109.  In light of the foregoing reasons, we refused the application to extend time in order to enable the applicant to file an application for leave to appeal against conviction and we refused the application for leave to appeal against sentence and dismissed the appeal.