HKSAR v. CHAN YIP FAI

HCCC 165/2020

[2021] HKCFI 2037

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 165 OF 2020

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R U L I N G

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RULING ON THE DEFENDANT’S APPLICATION TO REVERSE PLEA

1.  On 27 July 2020, the defendant pleaded guilty to one count of trafficking in a dangerous drug before Magistrate Mr Cheang Kei-hong, admitted to the set of summary of facts prepared by the prosecution in support of the offence, and was committed to the Court of First Instance for sentence.

2.  The facts the defendant admitted to before the learned Magistrate are as follows:

“1. On 23 July 2018, police officers conducted an anti-drug operation at 5/F, Sau Ming House, Sau Mau Ping Estate, No 101 Sau Ming Road, Sau Mau Ping, Kowloon, Hong Kong.

2. At about 11:38 a.m. on the same day, a postman came with a brown parcel (“P1”)  and waited outside Room 519, 5/F, Sau Ming House, Sau Mau Ping Estate. The postman knocked on the door of Room 519 but no one answered. D then opened the door of Room 518, 5/F, Sau Ming House, Sau Mau Ping Estate and asked if the parcel was for Room 518. The postman called the contact number of the recipient who confirmed that P1 should be delivered to Room 518. D then received P1 and returned to Room 518. Subsequent investigation revealed that “So Cho-yiu” was stated as the recipient of P1. The recipient’s address was Room 519, 5/F, Sau Ming House, Sau Mau Ping Estate.

3. At about 12:27 a.m. on the same day, D left Room 518 with P1. He was intercepted by the police outside Room 518. Upon search, P1 was found to contain 75 packs of snacks and 14 packs of purported Thai noodles. The purported Thai noodles contained a total of 14 foil packs of a total of 2,086g of a solid containing 901.1g of heroin. D was arrested and he denied the offence under caution.

Phone examination

4. Suspicious messages were found in D’s phone upon check. The messages revealed that D received a few thousand (dollars)  rewards for collecting parcel. “Cannabis”, “Coke”, “Perfume” and “Powder” etc. were mentioned in the messages.

5. The street value of the drug seized in the present case is HK$780,352.6.

6. D now admits that he possessed the drug found in P1 at the material time for the purpose of unlawful trafficking.

Dated this 8^th day of July, 2020”

3.  The defendant now seeks to reverse his guilty plea.

4.  In support of his application, the defendant filed one set of affirmation.  The defendant states that the reason for applying to reverse his plea is because he is not the owner of the parcel containing the white powder.  He was receiving it on behalf of one “Ah Chun”, who told the defendant that “it was turtle”, therefore the defendant had never considered that it was cannabis or any kind of dangerous drug inside the parcel.

5.  At the hearing of the reversal application, Mr Adonis Cheung for the defendant confirmed that what the defendant meant in his affirmation was that he thought they were real turtles inside the parcel.

6.  The defendant said in his affirmation that he pleaded guilty because he mistakenly thought that he could use trafficking in cannabis as a ground of mitigation, so as to avoid the risk of being convicted after trial for trafficking in heroin, which would result in a much longer sentence.

7.  The defendant confirmed in his affirmation that he understands that he has the right to request his previous legal representatives to give evidence or for them to file affirmations in support of his application.  The defendant, however, has chosen not to do so and demands that his previous legal representatives to keep their privileged communications confidential.  The defendant understands that this decision of his would result in the defendant not having the support of their evidence, and he will shoulder the consequences.

8.  The defendant then talks about how he had previously applied in person for bail in the Court of First Instance before M Poon J (as she then was)  and was refused, with the prosecution stating “strong evidence” as one of the grounds of objection to the defendant’s bail application.

9.  The defendant renewed his bail application before Yau J, later, again in person, and was also refused.

10.  The defendant’s later bail application in the Eastern Magistracy was also unsuccessful.

11.  The defendant then talked about the history of his case.  He said in his affirmation that ever since the case was transferred to the committal court in July 2019, he had never admitted to the offence of trafficking in heroin.  The defendant was assigned Legal Aid counsel Mr Yiu Tai Wah but because the defendant rejected and disagreed with Mr Yiu’s legal opinion, a different counsel, Mr Mak Kin Ming, was assigned to the defendant’s case in January 2020. According to the Return Day Record, Mr Mak was the defendant’s legal representative when the defendant entered his guilty plea.

12.  The defendant said that after he had heard Mr Mak’s legal opinion, on the one hand, the defendant applied to the Legal Aid Department to examine the phone evidence, on the other hand, he was worried that he might not be able to win his case.  At this time, the defendant heard from someone while he was being detained in Lai Chi Kok Detention Centre that if the narcotic nature of the drug being trafficked is less serious, the sentence will be lighter.

13.  Therefore, the defendant himself decided to plead guilty and use trafficking in cannabis as mitigation, hoping to receive a lighter sentence as well as a reduction in sentence.  The defendant said in his affirmation that his fighting the case would be without hope and without meaning.

14.  The defendant said that he also lacked the faith to maintain a not guilty plea because the prosecution was saying that the messages found in his mobile phone were very detrimental to his case.

15.  That was why the defendant agreed to plead guilty on 20 June 2020, and confirmed his plea on 27 July 2020, hoping to use his belief that he was trafficking in cannabis and not heroin as mitigation.

16.  The defendant confirmed that his legal representatives had filed submissions on the issue of using this mistaken belief as a ground of mitigation on 3 August 2020, and that the prosecution was aware that the defendant had pleaded guilty on the basis of his belief that he was trafficking in cannabis and not heroin.

17.  The defendant was to be sentenced on 12 October 2020 before ST Poon J, but the case had to be re-fixed since a Newton hearing was required.  During the adjourned period, the defendant received submissions from the prosecution and he realized that the prosecution do not accept that the defendant believed that he was receiving cannabis.

18.  The defendant said that he, therefore, was worried that the court will not sentence him on the basis of his mistaken belief that he was trafficking in cannabis.

19.  The defendant states that because he did not traffic in heroin, he only received a parcel, so he understands that he cannot plead guilty to a charge of trafficking in heroin on the basis of his mistaken belief that he could use his mistaken belief that he would receive a discounted sentence for trafficking in cannabis instead of heroin[1], and he applies to reverse his plea.

APPLICABLE LEGAL PRINCIPLES

20.  It has been established in the Court of Final Appeal case of HKSAR v Chan Chi Ho Lincoln（陳子豪） [2018] HKCFA 64; FACC 18/2018, that even in the case of an unequivocal plea of guilty, there is still an unfettered discretion to allow the reversal of plea after conviction but before sentence, which is to be exercised by the judge with the overriding consideration of the interests of justice.

21.  The parties agree that in exercising the discretion, the court should consider the factors as set out in the case of HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125:

“25. 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…;

(2)  The admitted facts are equivocal as to guilt…;

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

(4)  The plea was tendered involuntarily, eg, induced by duress or misrepresentation or was not an exercise of free choice…;

(5)  The plea was induced by fraud or made under a fundamental mistake…; or

(6)  The plea did not result from a deliberate and informed decision…”

22.  Wong Chi Yuk was referred to in Shum Wan Foon[2], which in turn was confirmed in Chan Chi Ho Lincoln by the Court of Final Appeal to be good law regarding a guilty plea made under duress, inducement or misrepresentation being a nullity.

23.  The judgment of Wong Chi Yuk must, of course, be read with the CFA decision in Chan Chi Ho Lincoln in mind.  The exercise of my discretion is to be governed by the overriding consideration of the interests of justice.

24.  Mr Cheung submitted that it is the defendant’s case that his plea of guilty was made under a fundamental mistake and that the plea did not result from a deliberate and informed decision, that is to say, items (5)  and (6)  quoted above.

25.  It is the defendant’s case that, applying Chan Chi Ho Lincoln, an unequivocal plea entered into as a result of duress, inducement or misrepresentation would in substance be a nullity, “and the court’s discretion may only be judicially exercised by allowing a change of plea.[3]” It is, therefore, the defendant’s case that his application should be allowed.

THE REVERSAL HEARING

26.  On the day of the hearing of the defendant’s reversal application, Mr Cheung for the defendant and Ms Chan Sze Yan for the prosecution confirmed, respectively, that the defendant will not be entering the witness box and that the prosecution did not need to cross-examine the defendant.  The defendant relies solely on his affirmation in support of his application.

27.  Mr Cheung confirmed at the hearing that the defendant does not allege that any mistakes had been committed by his then legal representatives, nor are there any allegations of misconduct against them.

28.  Mr Cheung confirmed at the hearing that the defendant accepts that the knowledge that the prosecution is required to establish in a charge of trafficking in a dangerous drug is that the defendant knew that there was some kind of dangerous drug inside the parcel when he took possession of it, and that the prosecution does not have to prove specifically that the defendant knew that it was heroin inside.

29.  Mr Cheung accepted that the plea entered by the defendant on the Return Day before the learned Magistrate was an unequivocal plea.  Based on the affirmation of the defendant, I would also make the same finding.

30.  It is noted that in the written submissions prepared by the defendant’s previous legal representative, Mr Mak, it was never mentioned that the defendant had believed that what was inside the parcel he received was real turtles.  Those submissions were prepared for the Newton hearing that was supposed to be held to deal with the defendant’s assertion that he thought he was trafficking in cannabis and not heroin.

31.  Be that as it may, it is now the defendant’s case that, when he received the parcel, he believed that there were real turtles inside.  The defendant’s affirmation is silent as to whether he thought they were live turtles or dead ones.

32.  Through Mr Cheung, the defendant points to certain WhatsApp messages where he had discussed with someone about ‘turtles 烏龜’, which he says support his assertion that he thought it was real turtles when he received the parcel.  The prosecution’s position is that the defendant was using the word ‘turtle’ as code word for heroin.  They, however, do not have any expert evidence on that at the time of the hearing.

33.  It follows that the defendant is now saying that he did not know that there was any kind of dangerous drugs inside the parcel, and so he would not be guilty of the offence, since he lacks the requisite knowledge.

34.  The defendant’s factual basis has, therefore, shifted from his choosing to plead guilty because of his mistaken belief that he could ask for a discount in sentence on the basis that he thought he was receiving cannabis, as put forward by Mr Mak in the Newton hearing written submissions, to that of the defendant never knowing that there was any kind of dangerous drug inside the parcel, as put forward by the defendant in his affirmation and through Mr Cheung at the reversal application hearing.

35.  Since it is not the defendant’s case that his plea was equivocal, it would appear that, in putting forward this factual basis, the defendant is now saying that it would be in the interests of justice for the court to exercise its unfettered discretion in favour of him and rule that he be allowed to reverse his plea, given that he did not have the required knowledge.

36.  Since this factual basis put forward by the defendant through Mr Cheung will affect the defendant’s mitigation, if his application is unsuccessful, I asked Mr Cheung if the defendant is aware of his situation.

37.  Mr Cheung told the court that the defendant understands that, should his application be refused, he will be sentenced on the basis that he had trafficked in heroin.  Mr Cheung confirmed that the defendant will not be seeking a discount in sentence on the basis that he thought he was trafficking in cannabis, and as such no Newton hearing will be necessary, if his application is unsuccessful.

CONSIDERATIONS

The Wong Chi Yuk factors within the context of the interests of justice

38.  I deal first with whether the defendant’s plea was made under a fundamental mistake.

39.  I find, first of all, based on the defendant’s affirmation, that the defendant was not under any mistake when he thought that he would be able to ask for a discount in sentence for thinking that he was receiving cannabis.

40.  In the written submissions of Mr Mak Kin Ming dated 19 October 2020, prepared for the purpose of the Newton hearing that was to be held before ST Poon J on 5 November 2020, Mr Mak stated clearly that what was in dispute was that the defendant had mistakenly believed the narcotic nature of the drugs, the defendant had all along thought that he was trafficking in cannabis and not heroin.

41.  That was the sole ground put forward by Mr Mak on behalf of the defendant for the purpose of the proposed Newton hearing.

42.  Mr Mak then proceeded to submit on the law regarding sentencing on the basis of the defendant’s belief that he was trafficking in a less potent drug, citing the case of HKSAR v Yip Wai Yin, CACC 80/2003. The general principles are that where a defendant establishes to the satisfaction of the court that he thought the drugs were of a less potent type, he will still be sentenced in accordance with the tariff for the more potent drug, but be given a discount on account of his mistaken but genuinely held belief that the drugs were of the less potent type.

43.  Mr Mak’s submissions are dated 19 October 2020.  The defendant’s plea of guilty before the learned Magistrate was on 27 July 2020.  The defendant had 84 days to consider his position.  Yet, he had chosen not to tell his counsel Mr Mak that he thought they were real turtles inside the parcel.  It was not until his affirmation in 6 May 2021, 10 months after Mr Mak’s written submissions, that the defendant first mentioned that he thought they were real turtles.

44.  It is unfathomable that a counsel of Mr Mak’s experience would make his written submissions without the full consent and knowledge of the defendant.  It must also be the case that Mr Mak must have explained the above sentencing principles to the defendant.

45.  One must remember that, according to the defendant’s own affirmation, he is someone who was able to “reject and disagree” with the opinion of the first counsel assigned by the Legal Aid Department, Mr Yiu.

46.  Mr Mak was the second counsel assigned to his case and the defendant stated in his affirmation that he had heard and received (聽取)  the legal opinion of Mr Mak.

47.  There is no allegation by the defendant, either in his affirmation or through his counsel, that he had been misinformed by Mr Mak, or that Mr Mak had wrongly stated the defendant’s position, or that Mr Mak had not explained to him his legal position at any time or stage of proceedings while Mr Mak was representing the defendant.

48.  It must, therefore, be the only reasonable inference that the defendant has always been able to fully understand the opinions of his different legal representatives.  It would also be the only reasonable inference that Mr Mak had always acted in accordance with the instructions given by the defendant.

49.  Based on the written submissions of Mr Mak made for the prospective Newton hearing, it must be the only reasonable inference that the defendant was fully aware that he was putting forward his case as being mistaken in the nature of the drugs, and not that he never knew that there were any drugs inside the parcel, or that he thought they were turtles inside.

50.  If the defendant had believed that they were real turtles inside at the time of his receiving the parcel, it is inconceivable that he would not have told Mr Mak.  If the defendant had told Mr Mak, it is equally inconceivable that Mr Mak would not have advised the defendant that he could not plead guilty if that is the truth.

51.  The fact that Mr Mak not only did not mention that the defendant had thought they were turtles in his written submissions, but put forward the positive case of the defendant believing that he was trafficking in cannabis must indicate that the defendant is making up this part of his story to try to have his plea reversed.

52.  In relation to the WhatsApp messages that the defendant says support his then belief that it was real turtles in the parcel that he was to receive, I find first of all that the defendant had clearly talked about different kinds of dangerous drugs using their common street names in other messages.

53.  I note that when the term ‘turtle’ came up in the communications, the defendant never asked if they were real turtles, live turtles or dead turtles. He never asked how he should deal with them if they were live real turtles. I find that any reasonable person would have felt surprised if he truly thought he was going to deal with real turtles and would have asked questions about them.  The defendant did not.

54.  I find that, upon a proper reading of the WhatsApp messages, the communications were never about real turtles, and the words ‘烏龜’ was being used as a code for some kind of dangerous drug, likely to be heroin, the drugs that were later found in the parcel.

55.  The defendant’s latest assertion through his affirmation that he thought they were real turtles inside the parcel is obviously not the truth, and I reject this factual basis he now puts forward.

56.  I find that there was no mistake when the defendant put forward the less serious narcotic nature mitigating factor through Mr Mak.  There was no misunderstanding on the defendant’s part as to what he was putting forward. The defendant was fully aware of his legal position, which is that, if the court accepts this ground of mitigation of him thinking that he was trafficking in cannabis and not heroin, he will likely be given a sentencing discount.

57.  Just as the defendant had admitted to in the summary of facts, the defendant was in possession of the drugs inside the parcel for the purpose of trafficking.  Whether he thought they were cannabis or heroin, he would still be guilty of the offence and his legal representatives must have made that clear to him.  That was why the defendant decided to enter his unequivocal guilty plea before the Magistrate.

58.  I find that the defendant has not made out that his plea of guilty was entered under a fundamental mistake.  There was no mistake, let alone a fundamental one.

59.  I next deal with whether the defendant’s plea did not result from a deliberate and informed decision.

60.  For the same reason and based on the matters discussed above in relation to the ground of fundamental mistake, I find that the defendant’s plea was made after much deliberation on his part, and after the defendant had been informed of his legal position by both Mr Yiu and, most importantly, Mr Mak.

61.  The defendant has, therefore, failed to make out this ground as well.

DECISION

62.  Having made the requisite inquiries, I find that the defendant had entered his plea of guilty unequivocally, voluntarily, and while fully aware of all his rights and legal position.

63.  He knew that even if he thought the drugs inside the parcel were cannabis he would still be guilty of the offence.  He tried to put forward the factual basis of him believing that they were cannabis and not heroin inside as a ground of mitigation, knowing that the law is that he may be able to be given a certain amount of discount on this basis.  When he realized that the prosecution is challenging that assertion, he made up a different story to avoid a lengthy sentence based on him having trafficked in heroin.

64.  For the reasons given above, I find that his assertion that he believed they were just real turtles inside the parcel when he received them cannot be the truth.

65.  Taking into consideration all the circumstances, I find that it is in the interests of justice to not allow the defendant to reverse his plea of guilty.  I also find that it would not be against the interests of justice to refuse his application to reverse his guilty plea.

66.  The defendant’s application to reverse his guilty plea is refused.  The defendant is convicted duly upon his previous plea of guilty and admission to the summary of facts.