HKSAR v. KHAN ASIF ALI

HCCC 236/2017

[2018] HKCFI 2359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 236 OF 2017

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J U D G M E N T

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1.  This is an application by the defendant to reverse his plea of guilty to one of not guilty.

2.  On 24 July 2017 the defendant pleaded guilty before a magistrate at the Eastern Magistracy to a charge trafficking in dangerous drugs contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance.  Having pleaded guilty he was committed to the Court of First Instance (“CFI”) for sentence on 18 October 2017.  The sentence hearing was adjourned to the 2 February 2018. 

3.  Eight months after he entered his plea of guilty on 2 February 2018 prior to the defendant being sentenced, the defendant applied to Deputy High Court Judge Brian Keith to withdraw his plea of guilty to one of not guilty. 

4.  An inquiry was held before me to consider whether to refuse or allow the defendant to reverse his plea of guilty.

The law

5.  The application to reverse a plea of guilty made before a magistrate on the return day of committal proceedings can only be made to a judge of the Court of First Instance[1]. A judge may in the exercise of his discretion allow or refuse the withdrawal of a plea of guilty at any time before the defendant is sentenced see R v Chan Wah[1967] HKLR 254 and HKSAR v Shum Wan Foon [2014] 17 HKCFA 303[2].

6.  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[3].

7.  Where a defendant applies to change his plea from guilty to not guilty, it is incumbent on the magistrate (or judge) to make sufficient enquiries 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 Shum Wan Foon[4].

8.  There must be some credible evidence before the court upon which the court may exercise the discretion.  The burden of proof to establish facts which would justify a plea of guilty being withdrawn is upon the defendant.

The Facts of the prosecution case in the trafficking charge

9.  The defendant is a Hong Kong permanent resident.  He arrived in Hong Kong in 2002.  On 4 November 2016, the defendant was returning to Hong Kong from the Mainland at the Lo Wu Control Point.  He was stopped and searched by Customs and Excise officers at the end of the Green Channel.  Inside the pockets of his vest, 2 packets containing a total of 651 g of a solid containing 547 g of cocaine were found.  Also in the pockets of his trousers, 5 packets containing a total of 1,338.4 g of a solid containing 1,124.6 g of cocaine were found.  There was a total of 7 packets of drugs in the defendant’s physical possession. 

10.  The defendant was immediately arrested.  Under caution, he claimed that he did not know what the packets found were.  He added that the packets had been given to him earlier by an unknown Indian male at a KFC restaurant in Shenzhen in the Mainland.  He was instructed to deliver the packets from Shenzhen to Fanling in Hong Kong.  His reward for this job would be $6,000.  The estimated street value of the dangerous drugs seized was $2,194,308.20.

Chronology of court hearing dates and legal representation

11.  On the first appointed return day before the Eastern Magistrates Courts on 20 February 2017 the defendant was represented by Mr Thomas Leung of Legal Aid Counsel.  No plea was taken.  There was no bail application.  He was remanded in jail custody and has continued to be remanded in custody. 

12.  On 8 March 2017 Mr John Massie (“Mr Massie”), a solicitor of Massie and Clement, received instructions from the Director of Legal Aid (“DLA”) to represent the defendant in the committal proceedings at Eastern Magistracy. 

13.  Mr Massie represented the defendant on the re-appointed return days at Eatern Magistracy on 27 March, 8 May and 12 June 2017.  No plea was taken on any of those days. 

14.  On 12 June at the re-appointed return day, the defendant informed the magistrate that he did not want Mr Massie to represent him. Mr Massie was given leave to withdraw from representing the defendant.

15.  By 19 July 2017 the defendant was represented by his second team of legal representatives comprising of Mr Richard Donald, counsel, instructed by Messrs Mohnani & Associates assigned by DLA. 

16.  On 24 July 2017 on the re-appointed return day, the defendant pleaded guilty to the charge and admitted the summary of facts.  The defendant was committed to the CFI for sentence. 

17.  On 18 October 2017 the sentence hearing was held before Deputy High Court Judge (“DHCJ”) Johnny Chan.  Mr Donald for the defence and Ms Grace Chan for prosecution made a joint application to adjourn sentence to enable the defendant to give a non-prejudicial statement (“NPS”).  Sentence was adjourned to 2 February 2018.

18.  At the hearing on 2 February 2018 Mr Donald informed DHCJ Keith the defendant wished to reverse his plea of guilty and further applied to change his legal team.  A mention hearing was set down to deal with the defendant’s application for reversal of his plea of guilty.

19.  At the mention hearing before me on 30 May 2018, the defendant’s third team of legal representatives, Ms Nisha Mohammed, counsel, instructed by B. Manek & Co assigned by DLA appeared for the defendant.  Directions were given to the parties.  The hearing to consider the application for the defendant’s reversal of plea was set down for 26 and 27 September 2018.

20.  At this hearing on the application for reversal of plea the defendant again changed his counsel, this time to Mr John McNamara, his solicitors however remained the same. 

Evidence adduced at the inquiry of the defendant’s application to reverse his plea of guilty

21.  The evidence before this court to enable my discretion to be exercised was:

(i) The affirmation of the defendant dated 28 June 2018;

(ii) The affirmation of John Massie dated 28 August 2018 (solicitor);

(iii) The affirmation of Sajid Khalil dated 30 August 2018 (interpreter);

(iv) The affirmation of Mohnani Dheeraj Suresh dated 11 September 2018 (solicitor);

(v) The affirmation of Richard Donald dated 30 July 2018 (counsel);

(vi) The viva voce evidence of:-

(a)  The defendant;

(b)Mr Massie and

(c)  Mr Khalil.

The defendant’s case

22.  The basis of which the defendant wishes to reverse his plea of guilty to not guilty is as follows:-

(a) Mr Massie :

1)    pressurised him to plead guilty;

2)    told him the chances of winning his case were slim;

3)    could not get him his Whatsapp messages and other material which the defendant needed to support his innocence;

4)    told him the jury will never believe the messages in the Whatsapp messages;

5)    misrepresented to him that he had to plead guilty in order to get his Whatsapp messages;

6)    was not convinced with the defendant’s explanation;

7)    showed no interest in his defence and

8)    told him that he could not give an NPS unless he pleaded guilty.

(b) Both Mr Massie and Mr Donald:

1)    did not explain to him the difference between pleading guilty and not guilty and

2)    did not inform him that he should plead not guilty if he did not know the packets contained drugs.

(c) By reason of the above matters, the defendant opined Mr Massie did not believe the defendant was innocent and as the defendant felt hopeless he decided to plead guilty. 

23.  The defendant’s defence to the charge he says is that he did not know there were drugs in the packets he brought into Hong Kong from Mainland.  He however needed the Whatsapp messages in his mobile phone to prove or support his contention that he did not know what was inside the packets.  The messages were in the form of voice messages or text messages from the person, by the name of Naeem, his boss, who sent him to collect the packets. 

24.  As the Whatsapp messages were important to his defence he made a request for Mr Massie to obtain them.  He insisted on receiving them as they could prove his innocence.  On 28 March 2017 Mr Massie told the defendant he could only get the Whatsapp messages once he had pleaded guilty.  He therefore thought he had to plead guilty to obtain the Whatsapp messages. 

25.  On 10 June 2017 Mr Massie went to LCK to see him with the call records only of his mobile phone but not the Whatsapp messages. Mr Massie told him it would take 3-4 months to obtain the Whatsapp messages. Mr Massie told him frankly that these voice Whatsapp messages had no relevance in drug cases.  Further that the Whatsapp messages would need to be translated and this would take time.  He said that in any event the jury will never believe the messages.  Mr Massie asked him whether he wanted to plead guilty or not guilty.  He felt very hopeless.  He then said okay I will plead guilty.  Mr Massie replied “good decision.”  The defendant did not say anything and just signed the paper he was asked to sign. He could not read what he wrote. The interpreter explained it to him.  Mr Massie informed him that they would be another team taking over his case and that if he wanted to retain Mr Massie’s services he should make that request to the DLA.  It was at that stage that the defendant decided he did not want Mr Massie to represent him however he waited for his next court appearance to inform the court and Mr Massie.

26.  He informed the magistrate that he wanted to discharge Mr Massie at this hearing on 12 June 2017.  Thereafter he was assigned his new lawyers who were Mr Mohnani and Mr Donald. 

27.  When the defendant first saw Mr Donald at LCKRC on 19 July 2017 he confirmed his plea of guilty to Mr Donald as a result of what Mr Massie told him previously.  He thought that once he got the evidence (including the Whatsapp messages) that he been requesting he could use it as mitigation to show that he did not know that they were drugs.

28.  It is the defendant’s case that neither Mr Donald nor Mr Massie had advised him that if he did not know the packets contained drugs he should plead not guilty.  He only learned that from his present legal representatives (Mr McNamara and Ms Manek).

29.  It was also Mr Donald’s view that the evidence against the defendant was strong and he was of the firm view that the defendant should maintain his plea of guilty.  He therefore maintained his plea of guilty.

30.  It is the defendant’s case that on 24 July 2017 when he pleaded guilty before the magistrate, that he was compelled to do so and he was told that only after his plea of guilty would he be able to get information (the Whatsapp messages) he needed to prove his innocence.  He pleaded guilty despite the fact that he was at all times desperate to show he was not involved in drug trafficking.

31.  It is the defendant’s case that all along after his plea of guilty he continued to requesr for the Whatsapp voice messages in order to prove his innocence. He wanted to show from these messages that it was not him who trafficked in dangerous drugs but was Naeem. 

32.  When the defendant gave his NPS after the sentence hearing was adjourned the defendant reiterated what he had said all along that he did not know that there were drugs in the packets. 

33.  When he saw Mr Donald after he had given the first NPS he told Mr Donald that he was never told they were drugs inside the packets and he never knew there were drugs inside the packets.  He told him the reason he knew of drugs was because the Customs and Excise opened the packets in his presence and they said it was drugs.  He accepted what they said. 

34.  Mr Donald told him he should admit that he knew there were drugs in the packets.  It is his case that Mr Donald never told him if he did not know he should plead not guilty.

35.  In the defendant’s third NPS dated 13 December 2017 he was shown his Whatsapp messages.  According to the defendant they showed that he did not know they were drugs and that he was innocent.  He informed Mr Donald about this however Mr Donald informed him no one would believe that Naeem would give him $6000 in return for delivering memory cards and gold chips.  Despite the defendant telling Mr Donald to listen to the Whatsapp messages Mr Donald ignored him.

36.  In view of the Whatsapp messages supporting his defence, and Mr Donald not properly advising him on the issue of knowledge, he sought for a new legal team to represent him and to apply to reverse his plea.  

37.  In the meantime between 30 March and 8 April Naeem visited the defendant at LCK on a few occasions.  Naeem also told him to plead guilty and promised to give the defendant information pertaining to names and amounts of drugs which he could use to give to the police to help him get a reduced sentence.

38.  In the meeting between the defendant and Mr Massie on 6 May 2017 the defendant told Mr Massie about Naeem’s visit, however Mr Massie told him he was not convinced with his story.  Mr Massie told him nothing could be done now.  He just mentioned a case on sentencing discount and said that the Whatsapp messages were of no value.  Mr Massie repeatedly told the defendant that the jury would not believe that the defendant did not know about the drugs.  The defendant wanted to obtain CCTV footage of KFC in Mainland and to get information about his car as Naeem was using his car to traffic in drugs.  He could then show that Naeem was the one on the Whatsapp voice messages. 

The prosecution case

39.  Mr Massie, Mr Donald, Mr Khalil and Mr Mohnani denied all the allegations made by the defendant.  It is the prosecution case that the defendant was properly advised and legally represented by Mr Massie, Mr Donald and Mr Mohnani.  The defendant’s plea was not a nullity.

40.  Mr Massie was instructed by the DLA to represent the defendant in the committal proceedings only.  His instructions were therefore to determine whether there was evidence sufficient to warrant the defendant’s case to be transferred to the Court of First Instance for trial. He opined there was ample evidence to support the defendant’s committal to the CFI for trial and there was no basis to request DLA to fund a preliminary hearing and informed the defendant accordingly at his first meeting with the defendant on 18 March 2017 at Lai Chi Kok Reception Centre (“LCKRC”). 

41.  Mr Massie stated that the real option was for the defendant to decide whether he would proceed to trial on a not guilty plea or whether he wished to plead guilty before the magistrate and be committed to the CFI for sentence.  He advised the defendant of the sliding scale discount for guilty pleas if made at the time of committal right up to the date of trial.  He informed the defendant of the likely length of sentence plus the enhancement for the international element in the event that the defendant was convicted by a jury after trial.  In the circumstances the defendant was to decide on his plea at the committal stage particularly if he wanted to obtain the full one third discount. 

42.  The defendant told Mr Massie that he believed that in the packets were phone messaging cards and gambling chips.  Mr Massie advised him if that was right then the defendant should plead not guilty.  He explained to the defendant that lack of knowledge of drugs in the packets was a defence to the charge. 

43.  The defendant understood the evidence against him was strong but did not want to make a decision yet but wanted to follow up by asking a person to be his witness and obtaining his Whatsapp messages on his mobile phone.  Mr Massie was instructed to apply to adjourn the return day on 27 March 2017 and for no plea to be taken and for the Whatsapp messages to be obtained. 

44.  On 27 March 2017 Mr Massie and Mr Sajid went to see the defendant in the cells at Eastern Magistracy.  The defendant told him that he was no longer able to gain the assistance of his proposed witness but still wished to obtain his Whatsapp messages.  The following day on 28 March, Mr Massie wrote to the Department of Justice requesting for the Whatsapp voice and text messages and call records. 

45.  On 21 April 2017 Mr Massie received a letter from the defendant requesting about plea bargaining and NPS with the DOJ, if he pleaded guilty. 

46.  On 6 May 2017 Mr Massie and Mr Sajid went to see the defendant at LCKRC.  He informed the defendant that the Whatsapp messages were not available yet.  He informed him that for the NPS the defendant would have to disclose evidence or information that was of some assistance to the prosecution in order to get an extra discount beyond that of the one third for his plea of guilty.  The defendant said however he was not ready to make a decision on his own plea yet and wanted to wait to receive the Whatsapp messages and other material that had been requested from the prosecution. 

47.  Mr Massie explained to the defendant that the requests for disclosure of the materials from the prosecution were matters of trial preparation which could be dealt with after committal if the defendant was pleading not guilty and were not valid reasons to keep postponing the committal and the evidence already disclosed was more than sufficient to put him on trial. 

48.  The return day hearing on 8 May 2017 was adjourned as the requested information was not available and it was relisted to 12 June 2017.

49.  On 10 June 2017 two days prior to the relisted return day Mr Massie and Mr Sajid visited the defendant at LCKRC.  At this conference Mr Massie explained to the defendant that at this stage the issue was whether the defendant would be committed for trial or sentence.  He told the defendant that it would be very difficult to get another adjournment for him to decide on his plea.  The defendant knew best whether he was guilty or not guilty and the evidence supplied to him was enough for him to make that decision.  Upon the defendant asking for the explanation again, Mr Massie informed him of the sentence tariff and the full one third discount for his plea of guilty at the committal stage and a further discount for his co-operation depending on its value to the prosecution.  The defendant then said he was going to plead guilty. 

50.  Mr Massie confirmed his instructions that he was going to plead guilty in writing with the defendant[5] which was translated to the defendant and signed by him.

51.  As the defendant informed Mr Massie he was going to plead guilty Mr Massie explained to the defendant that he was going to need to agree a set of facts.  He specifically explained to the defendant that because the defendant had said he did not know about the drugs, on the defendant’s plea of guilty he was admitting that he knew it was drugs.

52.  The defendant told Mr Massie he would make a NPS but he was not to communicate this to the prosecution until the defendant confirmed it in writing to him. 

53.  On 12 June 2017 at the Eastern Magistracy when the defendant’s case was called the defendant informed the magistrate he was not pleading guilty and that he did not want Mr Massie to represent him. Mr Massie was given leave to withdraw.  He had no further dealings with the defendant. No plea was taken.

Mr Sajid Khalil –Interpreter

54.  Mr Khalil is a registered court interpreter translating Urdu, Punjabi into English and vice versa.  He was the interpreter accompanying Mr Massie in his conferences with the defendant. He remembers he visited the defendant 3 times at LCKRC on 18 March, 6 May and June 2017. He recalls attending Eastern magistracy on 27 March, 8 May and 12 June 2017.

55.  Because Mr Khalil dealt with many cases he does not recall all details of the content of each case. He did however recall the defendant spoke good English and that he would speak to Mr Massie directly in English during the interviews.

56.  Mr Khalil recalls the first visit on 18 March 2017 with the defendant and Mr Massie.  Mr Khalil having seen a copy of Mr Massie’s affidavit confirms so far as he can recall it accurately records what happened each time they met with the defendant.

57.  At this first meeting the defendant informed Mr Massie that he thought the items in the parcel were phone cards and gambling chips but he could not make up his mind as to whether he would plead guilty or not guilty notwithstanding the defendant knew lack of knowledge was a defence.  He recalled the defendant’s requests for his Whatsapp and mobile phone records and other matters. 

58.  On the last visit to LCKRC on 10 June 2017 Mr Massie informed the defendant the Whatsapp messages were not ready and explained to the defendant that it would be very difficult to get another adjournment and asked him whether he was pleading guilty or not guilty. The defendant replied that he would plead guilty.  Mr Massie told him he would have to admit a set of facts to be prepared including that he knew the items were drugs for his guilty plea to be accepted.  The defendant said he understood. Mr Massie wrote out the instruction for him to sign and he translated it to defendant. The defendant confirmed he understood it and signed it.  He also signed it as interpreter.

59.  When they attended Eastern magistracy on 12 June 2017, the defendant told him and Mr Massie that he changed his mind about pleading guilty.  The defendant then informed the magistrate that he no longer wanted Mr Massie’s services. Thereafter Mr Khalil had no further communication with the defendant.

Mr Richard Donald - counsel

60.  Mr Richard Donald and his instructing solicitor Mr Mohnani were instructed to represent the defendant at the committal proceedings.  On 19 July they had their first conference with the defendant at LCKRC.   Mr Donald was aware that the defendant had previously been represented by Mr Massie.  He informed the defendant that he had been informed that it was the defendant’s intention to plead guilty at the committal and by doing so he would get a one third discount.  The defendant confirmed that he was pleading guilty.  Having considered the evidence, Mr Donald was of the opinion the case against the defendant was strong.  He advised the defendant he was making a correct decision to plead guilty.  No interpreter was necessary as the defendant spoke English.

61.  From this point on Mr Donald handled the case as a guilty plea.  The summary of facts was read over to the defendant, he admitted the facts.  Mr Donald said there was no wavering or prevarication by the defendant as to whether he should or should not plead guilty.  The principal issue from that time was for the defendant to get the best possible discount.  He was advised that if he was able to help the authorities with worthwhile information a further discount was possible. 

62.  Mr Donald explained to the defendant that as he was only briefed for the committal proceedings, matters in regard to mitigation including assisting authorities was to be dealt with by his legal representatives when the case had been committed to the CFI.  Mr Donald however expected to be briefed to represent the defendant for sentence.

63.  At his committal proceedings on 24 July 2017 the defendant entered his plea of guilty to the charge and was committed to the CFI for sentence. 

64.  Mr Donald continued to represent the defendant for sentence and mitigation.  On 5 September he had a conference with the defendant and they discussed matters in regard to the defendant assisting the authorities.  Mr Donald believed that if the information that the defendant had was genuine then the defendant was in a good position to assist the authorities.  He advised the defendant that he would endeavour to arrange for him to be interviewed by the Customs and Excise Department.

65.  At the hearing before DHCJ Chan a joint application was made by Mr Donald and the prosecution for sentence to be adjourned to allow time for a NPS to be taken.

66.  The defendant wrote to Mr Donald requesting, Mr Donald’s presence at the forthcoming NPS’s taking.  Mr Donald in his letter to the defendant dated 19 October 2017[6] informed the defendant he could not be present as his brief did not cover that.  He advised the defendant to tell the truth that he knew that he was trafficking in dangerous drugs but he was not aware of what the actual drugs were.

67.  A NPS was taken from the defendant, following which Mr Donald received a phone call from the Department of Justice, Ms Grace Chan who advised him that the defendant had claimed that when he brought the parcel from the Mainland to Hong Kong he was did not know it contained cocaine.  This was the first time this had been brought to Mr Donald’s attention.

68.  As a result of that phone call a further conference was held with the defendant on 13 December 2017.  At this conference Mr Donald specifically advised the defendant that if he was stating that he did not know what was in the parcel he was carrying then he should not and could not plead guilty to the offence.  Mr Donald also advised him that this was contrary to what he had admitted earlier.

69.  The defendant agreed that he would give a further NPS to state that when he stated he did not know that he was in possession of drugs, he meant that he did not know the exact nature of the drugs that is that it was cocaine.  Mr Donald relayed this to Ms. Chan. 

70.  In a letter from the defendant to Mr Donald dated 11 January 2018[7] the defendant informed Mr Donald that the Whatsapp message clearly showed his innocence regarding the cocaine in the packets.  He stated “after 3^rd NPS still want to know your opinion to go for trial or keep the same status.  …lesser sentence is best option for me but I need your co-operation if have a chance to go out free.  Kindly advise me as soon as possible so it stop me to take the unnecessary step”

71.  On 17 January 2018 the defendant wrote another letter to Mr Donald[8] indicating that he was prepared to get this response to his letter and it was not a shock.  He informed Mr Donald that he had sent a letter to the court indicating his application to reverse his plea as he has strong evidence that his boss was behind this and he did not know of the drugs in the packets. 

72.  Mr Donald’s final conference with the defendant took place on 1 February 2018 to tell the defendant that it had been determined by the Department of Justice that his purported assistance was of no value at this point in time.  However the door had been left open for the future as there was a possibility that his offer could still prove of assistance.  Mr Donald explained the likely difference in sentence he would receive if he pleaded guilty and if he were convicted after trial.  The defendant indicated that he wanted his case further adjourned so that he could consider his position further.  Mr Donald advised him that such an application could be made for an adjournment however that it was unlikely to succeed.  The defendant then stated he wanted to withdraw his plea.

73.  On 2 February 2018 Mr Donald and his solicitors informed the court of the situation and they were duly released from representing the defendant.

Mr Mohnani Dheeraj Suresh- solicitor

74.  Mr Mohnani is a solicitor of Messrs, Mohnani & Associates.  In his affidavit of 11 September 2018 he had accompanied Mr Donald to conferences with the defendant.  His evidence supports Mr Donald’s.

75.  Mr Mohnani stated that at their first conference with the defendant on the 19 July 2017 Mr Donald confirmed with the defendant that he intended to plead guilty to the charge he was facing. The defendant confirmed that was his intention. 

76.  After going through the summary of facts with the defendant and the defendant agreeing to its contents, there was no suggestion by the defendant that he intended to plead not guilty to the charge.

77.  From that time on the main issue which the defendant was concerned about was how he get the best possible discount. Apart from the plea of guilty the defendant was prepared to make an NPS. Arrangements was so made. 

78.  After the NPS was given by the defendant, he and Mr Donald had the next conference with the defendant on 13 December 2017. This was the first time the defendant stated that he was not aware that he was trafficking in drugs.  Mr Donald advised the defendant that if he was not aware of what was in the parcel then he should have pleaded not guilty to the charge.  The defendant however informed them that he did not want to change his position.  The defendant agreed to give a further NPS and clarify the position that is, that when he said he did not know what was in the parcel he is referring to the nature of the drugs itself.  At that time the defendant also confirmed the Customs and Excise had been to visit him together with his mobile phone said that he could provide them with more details including a photograph.

79.  At the final conference on 1 February 2018, Mr Donald informed the defendant that the Customs and Excise had made no arrests based on the information given by the defendant.  Mr Donald advised the defendant on sentencing on his plea of guilty and if he were to go to trial and be convicted after trial. In the end the defendant indicated that he wished to reverse his plea.

Submissions by the defence and prosecution

80.  Mr McNamara counsel for the defendant submitted that the evidence shows that at the time the defendant agreed to plead guilty he had no genuine consciousness of guilt.  On the contrary, even at that point he was adhering to lack of knowledge.  If that is the case, then the defendant’s application to reverse his plea should succeed. 

81.  Ms Grace Chan for the prosecution submits that the defendant made his decision to plead guilty voluntarily.  It was a deliberate and conscious decision.  There is no merit in his allegations against his legal teams.  His application should be refused. 

Discussion

82.  The defendant is a university graduate and has a Bachelor of Arts.  He is 38 years old. 

83.  The defence has not sought to challenge the affidavit evidence of Mr Donald or Mr Mohnani.  I accept the evidence of Mr Massie, Mr Khalil, Mr Donald and Mr Mohnani.  I find their evidence truthful and reliable.  I reject the defendant’s evidence.  It is implausible.  

84.  Three months before the defendant pleaded guilty on 24 July 2017, the defendant on his own initiative was demonstrating his intention and consideration to enter a plea of guilty.  The defendant’s letter dated 21 April 2017 to Mr Massie[9] is undisputed evidence of this and is telling.  In this letter written in script by the defendant and when remanded in LCK, he wrote to Mr Massie to ask for time (to enter his plea) whilst the prosecution provide the materials requested, one of those clearly was the Whatsapp messages.  Yet at the same time, he requested Mr Massie to “plea bargain” with the DOJ that if he pleaded guilty to the charge he would be given some discount to his sentence as he tried to assist the customs on a controlled delivery.  Further he informed Mr Massie that he is willing to give information to the police to point out his boss, mentioning a “prejudicial statement” (which should be a non- prejudicial statement.)  He concludes the letter by saying “kindly please guide me how all this will work out so I can get as much discount as possible in my sentence.” 

85.  Although not a clear plea of guilty the hard fact is that the defendant was contemplating a plea of guilty, nothing in this letter supports his allegations that he was pressurised to plead guilty by Mr Massie.  In any event it was some three months before his plea and there was a change of legal representation when his plea of guilty was made. 

86.  In cross-examination defendant admitted he knew that if he pleaded guilty he would be convicted and sentenced and therefore he could not then prove his innocence.  His claim now that once he pleaded guilty he could prove his innocence is nonsensical, contradictory and unworthy of belief.  It is to be noted that the defendant has tertiary level education.  I wholly reject the defendant evidence that he was pleading guilty and still requesting for the Whatsapp messages so that he could use them in mitigation to show that he did not know there were drugs[10].

87.  Moreover, the defendant admitted in cross examination he knew having no knowledge of the drugs was integral to his defence.  I do not accept that he only came to know of this only when Mr McNamara and Ms Manek represented him.  Mr Massie and Mr Donald have many years of experience in the criminal law.  I accept both Mr Massie and Mr Donald’s evidence together with Mr Khalil and Mr Mohnani that the defendant was advised at the outset that if he pleaded guilty to the charge he was admitting that he knew there were drugs in the packets.  If he did not know of the drugs in the packets he should plead not guilty. 

88.  I am satisfied that the defendant entered his plea of guilty with the knowledge that there was no opportunity to show his innocence but that he would be sentenced on the basis he knew the packets contained drugs.  It is of significance that the defendant pleaded guilty without obtaining his Whatsapp messages. 

89.  At the first meeting with the defendant Mr Massie thoroughly discussed with the defendant about lack of knowledge.  He explained to the defendant if he did not know what the contents of the packets were he had a defence so long as he did not know they were drugs.  The defendant told him that he thought they were phone cards and gambling chips.  The defendant told him that the conversation on the phone was of use to his defence to show that he didn’t know what he was carrying was drugs.  He said what he was told to carry were not drugs and the conversations on the Whatsapp would assist him.  Mr Massie told the defendant if that was right then the defendant should enter a plea of not guilty.  

90.  When the defendant pleaded guilty before the magistrate on 24 July 2017 he still had not inspected his mobile phone or whatsapp messages.  He had on many previous occasions requested to adjourn the return date hearing whilst waiting for the them to be obtained.  On 12 June the defendant forthrightly told the magistrate that he wanted to discharge Mr Massie and plead not guilty, even though he had already signed and confirmed in writing[11] with Mr Massie that he would plead guilty on 10 June.  There was every opportunity for the defendant to plead not guilty again before the magistrate on 24 July, he however did not.  Additionally, if the defendant had intended to plead not guilty he had every opportunity before 24 July 2017 to inform Mr Donald of his intended plea of not guilty of which he again did not. 

91.  I do not accept that the defendant pleaded guilty on 24 July under any misconception, misunderstanding or pressure.  I am satisfied the defendant’s guilty plea was made on the basis that he had knowledge of the drugs. 

92.  I do not accept that despite the defendant’s claims of pressure, and unhappiness with the representation of Mr Massie nothing was said to Mr Donald about his intention to plead not guilty at the outset. The defendant was starting with Mr Donald with a clean slate.  If his intention was to plead not guilty and wait for his Whatsapp messages, this would have been communicated to Mr Donald or Mr Mohnani.  It is inconceivable that no mention was made to Mr Donald of his plea of not guilty but conversely the defendant confirmed his plea of guilty to Mr Donald. 

93.  Even though both Mr Massie and Mr Donald told the defendant the evidence against him was strong, this was their considered opinion which they were entitled and correct to do so.  It was for the defendant to take into account.  Most importantly the decision whether to plead guilty or not guilty was ultimately left to the defendant with this in mind. 

94.  At a meeting at LCK on 19 June 2017 Mr Massie explained the letters from the DOJ[12] to the defendant which informed him that the messages in the defendant’s mobile phone was not yet available and a longer time will be needed.  Further that the DOJ was of the view that the data on the phone is not something that was required for the defendant to know whether he is guilty or not guilty and therefore the lack of the data therefore should not delay a plea. 

95.  Mr Massie explained to the defendant again that the committal proceedings and his current Legal Aid Certificate were only concerned with whether he was to be committed for trial or for sentence.  He told the defendant he thought it would be very difficult to get another adjournment for him to decide his plea and he knew best whether he was guilty or not guilty and the evidence supplied to him was enough to make that decision.  The defendant then told him that the person who passed the drugs to him could say that the defendant did not know they were drugs but that person was now detained on a drugs charge himself and was unwilling to help.

96.  The lack of data or the data on the phone was not something required for the defendant to know whether he is guilty or not guilty.  I am satisfied that the defendant was well aware of this and made a considered decision on his plea of guilty independent of the Whatsapp messages. 

97.  Most inconceivable is the defendant’s allegation that despite him telling Mr Donald that he did not know there were drugs in the packets, Mr Donald boldly and unethically in the presence of his instructing solicitor Mr Mohnani completely disregarded the defendant’s instructions.  Furthermore that Mr Donald in his letter to the defendant of 25 October 2017[13] would confirm his indifference in writing to tell the defendant to not only tell the truth in his NPS but to state he was aware he was trafficking in drugs but did not know what the actual drugs were. 

98.  The defendant’s allegations against his two teams of legal representatives are wholly unfounded and implausible.  I am satisfied that on all the evidence before me, the defendant’s plea of guilty was a deliberate, voluntary and a conscious considered decision.  He was properly advised on the issue of knowledge and no pressure was applied on him to plead guilty.

99.  The defendant’s application to reverse his plea of guilty to not guilty is refused.