HKSAR v. ZILINSKAS VALDAS

HCCC 475/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 475 OF 2014

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RULING ON REVERSAL OF PLEA

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Introduction

1.  This ruling concerns a reversal of plea by the defendant who had previously entered a plea of guilty to trafficking in a dangerous drug in the Magistrate’s Court. 

Procedural history

2.  The defendant is a 30-year-old Lithuanian national.  On 21 March 2014, he was arrested at the Lok Ma Chau Control Point for trafficking in a dangerous drug consisting of 1.92 kg of a solid containing 1.81 kg of ICE with an estimated street value of $1,006,080.

3.  On 24 March 2014, he was brought before a magistrate at Fanling Magistrates’ Courts.  The case was adjourned to the following day because of the unavailability of a Lithuanian interpreter even though the defendant could speak a little English.  On the next day, 25 March 2014, he appeared before the magistrate with the aid of a Lithuanian interpreter.  He was legally represented and the charge was explained to him and the case was adjourned to 19 May 2014.  On the return date a Lithuanian interpreter was not available and the case was adjourned to 26 May 2014 which was further adjourned to 16 June 2014.  On both of those occasions a Lithuanian interpreter was present in court and the defendant was legally represented.  The adjournments were granted for legal advice and consideration of the case against the defendant.

4.  On 21 July 2014, the defendant appeared before a magistrate.  He was legally represented and a Lithuanian interpreter was present in court.  The charge was explained to the defendant and he was informed that his case would be set down in the High Court.  The case was adjourned to comply with committal requirements.

5.  At the defendant’s next appearance on 29 August 2014, he was represented by a senior Legal Aid counsel who confirmed that the committal bundle had been served on the defendant and an adjournment of 4 weeks was requested to peruse and consider the papers.  It was granted and the return date for the committal was fixed for 26 September 2014.  By this stage, the defendant was represented by Mr Chan Siu Chung, solicitor, of Messrs S.C.Chan and Co.  The proceedings were interpreted in Lithuanian for the benefit of the defendant.  On this occasion, Mr Chan indicated that the defendant would plead guilty and the case was adjourned for 3 weeks to prepare a summary of facts.  

6.  On the adjourned date of 7 November 2014, the defendant was represented by Mr Chan who informed the court that the defendant would plead guilty.  The charge was then read to the defendant and interpreted to him in Lithuanian.  He then entered a plea of guilty.  The prosecution submitted a summary of facts upon which the charge was based to the court which Mr Chan acknowledged was agreed to by the defendant.  The defendant himself also acknowledged that it had been read to him and that he understood the facts.  The defendant confirmed that he admitted the facts and that his plea was voluntary.  However, as will be apparent later, there was some confusion about his plea and he seemed to be indicating that he was unaware that he was in possession of drugs at the time of the offence.  There were repeated requests about the voluntariness of his plea which he eventually agreed was voluntary when it was put to him.

7.  The defendant was committed to the Court of First Instance for sentence.  The case came on before the Criminal Listing Judge of the Court of First Instance on 3 December 2014.  Mr Chan was in attendance and the case was set down for sentence at 9:30 am on the 13 February 2015.

8.  On the eve of the sentencing hearing on 13 February 2015, a letter was received by the court from the solicitors for the defendant that there had been a sudden development in the case and that the defence would be asking for an adjournment in order to obtain a recording and transcript in respect of the committal proceedings at Eastern Magistracy.  It was also mentioned that defence counsel was of the opinion that the Government Chemist’s certificate did not have all the necessary information contained in it.  However, that issue seem to be abandoned.  Defence counsel was Mr Robert Tibbo.

9.  At the hearing on 13 February 2015, Mr Tibbo, on behalf of the defendant, informed the court that he had seen the defendant at the beginning of the week and that he claimed he did not know there were drugs in the rucksack and that he had only agreed to the charge in order to get the one third discount to his sentence.  It was noted that Mr Tibbo’s instructing solicitor represented the defendant when he indicated he would plead guilty on 26 September and when he entered his plea of guilty on 7 November 2014.  Mr Tibbo requested an order for a copy of the recording of the proceedings on 26 September and 7 November 2014 so as to decide whether to make an application to reverse the defendant’s plea. The order was made and the case was adjourned.

10.  At the hearing on 23 March 2015, Mr Tibbo acknowledged that the defence had received the audio recording for the proceedings on 26 September and 7 November 2014.  He confirmed the accuracy of the recordings and submitted that the defendant stated in court that he did not know what was in the rucksack and that his plea was equivocal.  He submitted that the defendant would make an application to reverse his plea and requested a transcript of the proceedings on 7 November 2014.  This was ordered and the case was adjourned to 24 April 2015.  It was also confirmed through Mr Tibbo that the defendant for the purposes of his application waived legal professional privilege in order for those persons involved could fully address the issue.

Affirmation of the solicitor

11.  In light of the comments by Mr Tibbo, Mr Chan filed with the court an affirmation dated 19 March 2015.  He set out in detail his dealings with the defendant.  He explained that the defendant could only speak and understand Lithuanian and accordingly he used two Lithuanian interpreters at different times in his communications with him.  He further explained that judging from his communications with the defendant through the interpreter, he was of the view that he understood the interpretation.  He listed the number of attendances he had with the defendant by way of visits and court appearances and the discussions, which were several, between them concerning his plea of guilty.  He said he saw the defendant on 6 November 2014 who informed him that he would plead guilty.  The defendant confirmed his decision in a handwritten note in which he stated that the summary of facts had been explained to him and that he agreed with what was stated there, except for two matters that he corrected which were that he did not have US$500 on him and that the name of the person was “Laimis” and not “Laimas”.  This resulted in the summary of facts later being amended.  On 1 December 2014, he saw the defendant together with an interpreter and the amended summary of facts were interpreted to him which he agreed and signed.

The Summary of Facts

12.  I have set out in full the summary of facts because of the relevance of it to his understanding of them and his communications with Mr Chan. 

13.  It stated that at about 2:10 pm on 21 March 2014, the defendant was one of four passengers on board a seven seater private car that had entered Hong Kong from Mainland China via the Lok Ma Chau Control Point.  The car was directed to the Private Car Clearance Depot for customs clearance.  At the Depot, all four passengers including the defendant were asked in English to take back their own baggage for clearance.  All passengers then got out of the car and took back their belongings.  The defendant was seen taking a rucksack from the boot of the car.  He was then taken together with the rucksack to a room for a search.  The rucksack was found to be sewn unevenly at the back and it was discovered that there was a concealed compartment.  It was cut open and inside the compartment was one plastic bag containing the drugs as charged.  The defendant simply shook his head, when he was asked what was the substance that had been found in the rucksack.  He was arrested and cautioned in English and again shook his head without saying anything.

14.  Also found in the rucksack were personal items such as a comb, a nail clipper, clothing and a pair of trainers.

15.  The movement record of the defendant showed that he arrived in Hong Kong on 16 March 2014 and two days later he left for Mainland China via the Shenzhen Bay Control Point.  He returned to Hong Kong on the day of his arrest.

16.  It was mentioned in the facts that due to the unavailability of a Lithuanian interpreter he was not able to be interviewed before being charged.  Subsequently on 17 July 2014, he was interviewed under caution with the assistance of a Lithuanian interpreter.  He admitted that he possessed the rucksack that had been seized. He said that a friend in Lithuania suggested that he come to Hong Kong to meet another Lithuanian whom he had not met before by the name of “Laimis” who would offer him a job.  He said that after he arrived in Hong Kong, Laimis arranged transportation for him to go to Mainland China.  This was his first time in this part of the world.  He said that he stayed in a hotel room which was paid for by a black man and that subsequently, Laimis came to the hotel with a rucksack.  He told him that it was time to go and while he was taking a shower, Laimis had put his personal belongings inside the rucksack.  They left the hotel room together with Laimis carrying the rucksack for him.  When they reached the private car departing for Hong Kong, Laimis told the defendant to sit next to the driver and he then gave him the rucksack.  He said that he placed between his legs and he did not check the rucksack when it was given to him.  He said that he did not notice anything special with the rucksack.  He claimed he did not receive any reward for carrying the rucksack but he was given $500 for buying food by Laimis.  He said that Laimis told him that he could get him a job in Thailand as a car repair worker earning US$2000 a month and that he would take the plane at Hong Kong airport.  He said that Laimis did not get in the car with him.

17.  The defendant in the concluding paragraph 13 of the summary of facts admitted and accepted that he possessed the dangerous drugs seized for the purpose of trafficking.

Submissions on reversal of plea

18.  Mr Tibbo on behalf of the defendant makes application for him to change his plea from guilty to not guilty.  He submitted that the defendant at all times up to 6 November 2014 was representing to his lawyers and to law enforcement officers that he had no knowledge of carrying any dangerous drugs in the rucksack.  He said that it was only on 6 November 2014 that the defendant told Mr Chan that he would plead guilty to the charge. He said that the defendant only knew for the first time that he had carried dangerous drugs about a week after customs officers found the drugs concealed in the rucksack. 

19.  Mr Tibbo submitted that the summary of facts did not expressly allege that the defendant had knowledge of the drugs in his possession when they were discovered.  He claimed that he did not understand at the time that paragraph 13 of the summary of facts meant that he knew he had drugs in his possession before they were seized from him.  He confirmed that paragraphs 9 to 11 of the summary of facts were accurate and truthful in that they disclosed that he had no knowledge of carrying the drugs.  I note that the facts as stated in these paragraphs deal with the defendant’s dealings with Laimis and the handing over of the rucksack to him.  It is stated that the defendant did not check what was in the rucksack. 

20.  Mr Tibbo submitted that at the hearing before the magistrate the defendant agreed the summary of facts because he misunderstood that after a plea of guilty he could also get a lower sentence based on explaining that he had no idea he had dangerous drugs in his possession.  He said when the defendant was asked by the magistrate whether his plea of guilty was voluntary he stated that he did not know as he had not checked. He said that what the defendant meant by this was that he had no knowledge of having the drugs in his possession before being stopped because he did not check the contents of the bag.  It was noted that the magistrate asked the defendant twice about whether his plea was voluntary and on each occasion he said he did not check or that he had no idea.  He submitted that the defendant wanted to tell the court that he did not know that the drugs were in his bag. 

21.  Mr Tibbo also submitted that the defendant did not understand what was meant by voluntary and that he only answered the question in the affirmative because he felt he had no choice as he was being repeatedly asked to answer.  The defendant filed an affirmation which contained his account as submitted on his behalf by Mr Tibbo. 

22.  It is necessary to examine in detail the transcript of the proceedings before the magistrate on 7 November 2014. The proceedings commenced by Mr Chan informing the court that he had explained the summary of facts to the defendant, that the defendant had agreed to them, and that he would plead guilty to the charge.  The proceedings from there were as follows:

“COURT: Thank you.

Yes, Defendant, please, listen carefully.

In relation to the charge against you, you are not obliged to say anything or you may choose to plead guilty. In that case, your case will be committed to the Court of First Instance for sentence. Unless you plead guilty to the charge, your case will be committed for trial. After the committal, you have the right for Legal Aid and to apply once for discharge before the trial starts if you consider there is insufficient evidence against you.

Your lawyer says you wish to plead guilty. Do you confirm that?

DEFENDANT: (In English) Yes.

LITHUANIAN INTERPRETER: He agrees.

COURT: You are now being charged with an offence of trafficking in a dangerous drug. The element of the offence including importing into/exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug or possessing it for the purpose of trafficking. You understand the element of the offence?

DEFENDANT: (Lithuanian)…

COURT: Yes.

LITHUANIAN INTERPRETER: He understands.

COURT: Please, listen to the charge and tell us whether you plead guilty or not guilty.

CHARGE READ

COURT: So plead guilty or not guilty?

DEFENDANT PG TO THEIR CHARGE

COURT: Yes, please, listen to the summary of facts to see whether you admit or not admitted.

(Summary of facts read)

LITHUANIAN INTERPRETER: He understands … (inaudible) …

COURT: Sorry, may I have the – the facts admitted or not?

DEFENDANT: Admitted.

COURT: Yes, Defendant, is your guilty plea wontry?

LITHUANIAN INTERPRETER: … (inaudible) …

COURT: Is your guilty plea woluntary?

DEFENDANT: (Lithuanian) …

LITHUANIAN INTERPRETER: He says he didn’t check. He didn’t know, so nobody had … (inaudible) …

COURT: So, again, just answer me “Yes” or “No”. Is your guilty plea woluntary?

LITHUANIAN INTERPRETER: No.

COURT: “No”?

LITHUANIAN INTERPRETER: Sorry, “Yes”, he said … (inaudible) …

COURT: “Yes” or “No”? It’s very important.

LITHUANIAN INTERPRETER: Voluntary.  It’s – he says, “Nobody; he had no idea.”

COURT: No, I cannot accept it. And ask you again, is your guilty plea woluntary?

Please, translate it to the defendant.

LITHUANIAN INTERPRETER: “Voluntary”?

COURT: Voluntary.

DEFENDANT: It is voluntary.

LITHUANIAN INTERPRETER: Sorry… (inaudible) …

COURT: Yes.  I am satisfied that the defendant understood the nature of the charge, plead guilty woluntary and admitted the facts which supported the charge.  I now commit the defendant to the Court of First Instance for sentence.”

23.  It is acknowledged by Mr Lenny Cheng, counsel for the prosecution, that the plea entered by the defendant on 7 November 2014 might be regarded as equivocal.  He further submitted that the audio recording reinforced that suggestion. 

24.  Notwithstanding this concession, Mr Cheng submitted that the defendant was legally represented throughout the proceedings and no objection was raised at any time about his plea.  He referred to the affirmation of Mr Chan where he stated that after being informed by the defendant that he did not know that ICE was contained in the rucksack, he “told him in clear words that if he did not known (sic) there was ‘ice’ he should plead not guilty.  I told him such a knowledge was very important.  I told him the court would not accept a guilty plea if he insisted he had no such knowledge”. 

25.  He submitted that on 6 November 2014, Mr Chan stated that he was informed by the defendant that he would plead guilty.  He noted that the defendant confirmed his plea in writing and added that “I have been explained the Summary of Facts in Lithuanian today and I agree with it except I did not on (sic) the time of arrest have US$500 on me and ‘Laimas’ is typo for ‘Laimis’.”.  This was written by the defendant in Lithuanian and subsequently translated into English. 

26.  He took issue with the defendant’s claim that he did not understand the meaning of paragraph 13 of the summary of facts as this was in conflict with Mr Chan’s account that the summary of facts were confirmed with him and that upon making some corrections he agreed with them.  He submitted that the defendant could not be taken to have not understood the meaning of paragraph 13 and its legal consequences given that he was advised on the matter by his solicitor. 

Relevant legal principles

27.  Where a defendant seeks to change his plea from guilty to not guilty, the court has discretion to allow the plea to be withdrawn.  This discretion must be exercised judicially.  The circumstances when a defendant should be allowed to withdraw a plea of guilty may include when the offence is not known to law or is a nullity, when the plea is equivocal in that it was made under a misapprehension of the law as to the nature of the offence or when the plea is not voluntary because of unfair pressure on the defendant or material misunderstanding between the defendant and his legal representative when taking legal advice.

28.  In HKSAR v Shum Wan Foon (2014) 7 HKCFAR 303, Fok PJ, who gave the judgment of the court, summarised the relevant principles in relation to an application to reverse a guilty plea as follows:

“11. It is a self-evident proposition that a plea of guilty should be entered voluntarily. A guilty plea made under duress, inducement or misrepresentation is a nullity: see, for example, The Queen v Lam Yin [1995] 2 HKCLR 124 at p.127 line 20-24; R v Li Yuen Chu [1994] 2 HKC 621; and HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125 at p.135.

12. A magistrate has a discretion to allow a defendant to change a plea of guilty to one of not guilty at any time prior to passing sentence.  This is the case even where the guilty plea is unequivocal.  The discretion must be exercised judicially.  For these propositions, see Chan Wah v The Queen [1967] HKLR 254; S (An Infant) v Recorder of Manchester [1971] AC 481 (HL) esp. per Lord Reid at pp.488H and 491A-E and Lord Upjohn at p.507E-H; and Eric Henry Dodd and Others (1982) 74 Cr.App.R. 50 at p.57.”

29.  Fok PJ then went on to explain the procedure to be followed by the court when dealing with such an application and emphasised that it was incumbent on a court to make sufficient inquiries to ascertain the basis of the defendant’s wish to reverse his plea and to decide of the basis sound in fact and in law.  He said:

“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. Authority for this proposition can be found in the judgment of Huggins JA (as he then was) in Wong Ching-wah v The Queen [1976] HKLR 412 where he said, at pp.413-414:

‘What, however, worries me is that the learned magistrate did not apparently make any proper enquiry into the facts at the time that [the defendant’s solicitor] made his application. The question was then one of fact, whether or not the plea was her plea or whether it was a plea made under duress. That, in my view, was a matter which should have been investigated as a matter of fact and probably on oath. No enquiry was made: the magistrate merely says that in all the circumstances he was satisfied that the plea should not be allowed to be withdrawn. His conclusion may have been right, but in my view there was not sufficient enquiry. I am not going to embark upon an enquiry at this stage and justice requires that this girl be given the opportunity to reverse her plea and make her defence.’ (Emphasis added)

14. In The Queen v Lee Kwok Sum, unrep., HCMA 1597/1983 (7 February 1984), Garcia J held, citing Wong Ching-wah as authority, that the discretion to allow a reversal of a plea cannot be exercised judicially without a hearing to inquire into allegations of duress.

15. There are other examples of the application of this principle where the issue is not one of duress but of inducement and misrepresentation: see, Law Hau On v The Queen, unrep., CACC 578/1982 (3 August 1982); R v Li Yuen Chu [1994] 2 HKC 621; and The Queen v Lam Yin [1995] 2 HKCLR 124. As Sir Alan Huggins VP held in Law Hau On v The Queen (at p.4):

‘It is easy to be wise after the event but it must be said that in the event it is unfortunate that the magistrate did not inquire into the allegation, for we would then know the real facts. As it is, there is a possibility that the Appellant pleaded Guilty when he would not have done so had he not been induced by circumstances which he could now reasonably believe to have amounted to a trick. However remote that possibility I think that justice requires that his plea be declared null and void and that there should be a venire de novo. It matters not that the magistrate may well have been right when he said that on the basis of the admitted facts it would have been difficult for anyone to advise the Appellant to do otherwise than enter a plea of Guilty: the Appellant was entitled, if he wished, to have the case formally proved against him.’ (Emphasis added)

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.  In The Queen v Lam Yin [1995] 2 HKCLR 124 Keith J (as he then was) considered that it would be necessary for the magistrate to adjourn the application for leave to change the pleas to a date upon which the appellant and immigration officer could give evidence about the alleged conversation said to be the basis of the misrepresentation inducing his guilty pleas (see pp.127-128).  In that case, whether the immigration officer actually said what the appellant claimed, and what its impact on the appellant actually was, were issues of fact which had to be determined before the magistrate could decide if the original pleas were nullities.  In other cases, the magistrate’s duty to inquire may not require the adjournment of the case if any factual issues that need to be resolved in order for the magistrate to exercise a fully-informed discretion can fairly be determined there and then.”

30.  It was also emphasised by Fok PJ that the discretion to permit a defendant to reverse his plea should be exercised very sparingly and only in clear cases. 

Conclusion

31.  Having taken into account the submissions from the parties, I have decided that the application can be determined on the papers filed with the court.  I have also played in open court the audio recording of the proceedings on 7 November 2014 and have come to the conclusion that the plea entered into by the defendant was equivocal.  I have further concluded that the defendant may have laboured under a misapprehension of the law as to the nature of the offence.  The defendant is a Lithuanian national and it would appear that during the course of the proceedings and in his dealings with his solicitor that there were difficulties in communicating.  It would also appear that he did not have an appreciation of the legal system in Hong Kong and may have been under a misapprehension about the offence and the legal procedures.

32.  I make the following findings in my determination of the application:

1.  The defendant is a Lithuanian national.

2.  He is not familiar with the legal system and procedure in Hong Kong.  It was his first time in Hong Kong.

3.  There were difficulties in obtaining an interpreter to assist him in his communication with others.  There was confusion and misunderstanding when he communicated with his legal representative and the court.

4.  The record of the proceedings on 7 November 2014 reveals that he was confused despite the fact that he pleaded guilty.  His conduct and his comments at the time displayed a misunderstanding of procedure and indicated that his plea was equivocal.

5.  The defendant was seeking to inform the court that his plea was entered on the basis that he did not know that drugs were in his rucksack at the material time.

6.  The defendant was under a misapprehension as to the elements and nature of the offence to which he entered a plea of guilty.

33.  I accordingly grant the application and allow the defendant to withdraw his plea of guilty to the charge of trafficking in dangerous drugs which he entered in the Magistrate’s Court on 7 November 2014.