HKSAR v. TANG SZE LAM

CACC 423/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 423 OF 2013

(ON APPEAL FROM HCCC NO. 189 OF 2013)

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J U D G M E N T

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1.  Following her plea of guilty in the High Court before Deputy Judge Yau (as he then was) (“the judge”) on 2 December 2013, the applicant was convicted of a single count of trafficking in a dangerous drug, namely 57.91 grammes of methamphetamine hydrochloride (Commonly known as ‘Ice’), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She was sentenced on the same day to 6 years and 2 months’ imprisonment.

2.  The applicant initially applied for leave to appeal against sentence on 5 December 2013 but subsequently abandoned her application on 12 August 2014, as a result of which it was dismissed on the same day pursuant to Rule 39 of the Criminal Appeal Rules, Cap 221A.

3.  By way of a notice of application for leave to appeal (Form XI) and her affirmation in support both dated 13 May 2016, the applicant has now sought leave to appeal against her conviction out of time.  It follows that her leave application (in respect of conviction) was made about 2 years and 5 months out of time.

4.  The applicant appears in person before me.  Initially, she applied for an adjournment so that she could instruct private lawyers.  I refused her application, since I cannot see any realistic prospect of her being able to do so and, indeed, no steps have been taken since May of this year to obtain lawyers on a private basis, legal aid having been refused on 24 June 2016.  Furthermore, the facts giving rise to the applicant’s arrest occurred in January 2013, and she was sentenced on 2 December 2013.  Were I to grant the adjournment, there is every prospect that she would not come back before me or reach the Court of Appeal until early 2017, by which time she will have served 4 years of a 6 years and 2 months’ sentence of imprisonment and be due (subject to good behaviour) for imminent release.

The indictment

5.  The particulars of the offence were that the applicant unlawfully trafficked in a dangerous drug, namely 92.30 grammes of a crystalline solid containing 57.91 grammes of ‘Ice’ on 5 January 2013 near the junction of Bute Street and Shanghai Street, Mongkok, Kowloon.

6.  On pleading guilty to the offence on 2 December 2013, the applicant confirmed that she both understood and admitted the Summary of Facts which had been read to her.

Summary of facts

7.  The facts, which the applicant accepted when she pleaded guilty to the offence, were as follows.

8.  On the date and at the venue particularised in the indictment, the applicant was intercepted by two police officers shortly after midnight at 00:37 hours.  Upon searching the paper bag she was carrying, the officers found a paper box containing a transparent re-sealable plastic bag (“the Hello Kitty bag”) further containing the dangerous drug in question within two layers of transparent re-sealable plastic bags.  The paper box was covered by some snacks. The applicant had with her at the time HK$435 in cash.

9.  Having been arrested and cautioned, the applicant responded “I have nothing to say”.  In a subsequent video recorded interview, she stated, inter alia, that: (i) she was carrying the paper bag and the snacks at the location concerned; (ii) she did not want to talk about the Hello Kitty bag and the dangerous drugs; (iii) she had been a bartender earning around HK$9,000 per month, but was fired a week before her arrest and was accordingly unemployed at the time; (iv) the cash found in her possession was part of her savings; (v) she did not have the habit of taking dangerous drugs; and (vi) she had no fixed place of abode.

10.  The retail value of the dangerous drugs in question was estimated to be HK$66,363.  The applicant admitted in terms that she had unlawfully trafficked in the dangerous drugs seized.

Ground of appeal and reason for applying out of time

11.  In her affirmation attached to her Form XI, the applicant stated that she applied for leave to appeal against conviction out of time because she had recently found “a precedent/s”.  However, she did not condescend to provide that precedent, and nor has it been produced this morning.  The applicant also indicated her wish to apply for legal aid.

Respondent’s submissions

12.  In his written submissions in response to the application for leave to appeal against conviction out of time, Mr Daryanani, SPP on behalf of the respondent contended that the applicant was legally represented at her sentence.  Accordingly, her counsel and solicitors, assigned by the Legal Aid Department, must have taken proper instructions from her before allowing her to plead guilty and before plea was taken.  Mr Daryanani also pointed to the applicant’s 8 previous convictions and submitted that, given her previous experience before the courts since 2006, she must have meant to plead guilty and appreciated the consequences of what she was doing.

13.  He submitted that in order to reverse a plea of guilty, the onus would be on the applicant to persuade the Court of Appeal that the plea had been a nullity.  According to HKSAR v Wong Chi Yuk[1], a plea of guilty could be rendered a nullity if any of the following circumstances apply:

(a) The facts admitted by the defendant do not amount to the offence with which he is charged;

(b) The admitted facts are equivocal as to guilt;

(c) The plea was tendered to a charge which was defective on its face or invalid or unclear;

(d) The plea was tendered involuntarily, for example, induced by duress or misrepresentation or was not an exercise of free choice;

(e) The plea was induced by fraud or made under a fundamental mistake; and

(f) The plea did not result from a deliberate and informed decision.

14.  Mr Daryanani further pointed out that the Court in Wong Chi Yuk had stressed that, in order to establish grounds for nullifying a plea of guilty, the mistake must be “fundamental”.  This meant that the circumstances and the extent of the mistake must be sufficient to vitiate the intent of a defendant in pleading guilty, making the act of the plea not his/her true act.  He submitted that a misunderstanding of the law would nullify a guilty plea only in situations where the facts as admitted did not amount to the offence in respect of which the plea was tendered or where the charge was defective.

Consideration

15.  No reason, let alone a good one, has been put before me to explain why the applicant’s plea of guilty before the judge was a nullity.  Nor has the applicant explained what the precedent(s) is/are or whether and how it relates to the issue of nullity or conviction.  However, in exploring the issue with the applicant this morning, the basis of her application seems to be more concerned with the length of the sentence passed upon her and derives from her assertion that some of the dangerous drugs were for her own consumption.

16.  On the record, the applicant pleaded guilty, while she was properly represented, to facts which clearly established the offence of unlawful trafficking in dangerous drugs.  The judge addressed her immediately after her plea had been entered as follows:

“Ms Tang, since you pled guilty to the charge, the counsel of the prosecution will read out the Summary of Facts in open court. You listen to them very carefully. In a moment, the court will ask you whether you admit to – whether you understand those facts and admit them. Do you understand?”

The applicant responded affirmatively and later, upon those facts being read out in open court, confirmed her admission of the Summary of Facts, which contained this sentence:

“5. The Defendant now admits that she was unlawfully trafficking in the “Ice” seized.”

17.  Moreover, an examination of the court file reveals that on 27 August 2013, the applicant wrote to the court in her own hand explaining that she had decided to plead guilty and asking for the case to be brought on so that she could do so.  She wrote:

“法官大人：
	本人鄧詩琳 案件編號：HCCC-189-2013
本人經過再三考濾後，現在決定認罪，望法官大人可盡快安排本人上庭。
28-7-2013”

18.  When her counsel mitigated before the judge on 2 December 2013, he handed up to the court a letter, again written in the applicant’s own hand in Chinese characters, expressing among other things her remorse, the fact that she had learned a great lesson, her understanding that she would have to go to prison for many years and her resolve to use her time in prison to make something of her life.

19.  I can see no basis whatsoever for the applicant to be allowed to change her plea and none has been advanced before me.  I see nothing equivocal about the facts set out in the Summary of Facts or in the applicant’s plea of guilty or acceptance of those facts.  Nor, in the light of her clear admission of the Summary of Facts and the abandonment of her appeal against sentence resulting in the dismissal of her appeal more than 2 years ago, is there any realistic avenue open to the applicant at this stage to appeal her sentence.

Conclusion

20.  The application for leave to appeal against conviction out of time is refused.  The applicant is duly advised that she has the right to renew her application for leave to appeal against conviction out of time, but she is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

21.  Furthermore, since this application really seems to be concerned with sentence rather than conviction, I should in the circumstances of this particular application draw the recent decision of the Court of Appeal in HKSAR v Mchabu Charles Sunday (unrep., CACC 307/2009, 29 June 2016) to the applicant’s attention so that she can properly consider her options.  The Court concluded its judgment as follows:

“We have reluctantly decided not to do so (ie order loss of time), but we take this opportunity now to sound a warning to others who are disposed to try and resuscitate appeals they have abandoned years after the event without any reason at all, let alone a good one, that this Court has the power under section 83W Criminal Procedure Ordinance, Cap 221 and will use it in appropriate cases to direct that the time, or part of the time, during which an appellant has been in custody pending the determination of his appeal may not be reckoned as part of the term of any sentence to which he is subject.”