HKSAR v. ZHOU SUQIN

CACC 442/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 442 OF 2011

(ON APPEAL FROM HCCC NO. 60 OF 2011)

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J U D G M E N T

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Hon McWalters J (giving the judgment of the court):

Introduction

1. The applicant was tried before Line J on an indictment containing four counts.  The first count was administering an overpowering drug in order to commit an indictable offence contrary to section 21 of the Offences Against the Person Ordinance, Cap 212, the second count was a count of theft contrary to section 9 of the Theft Ordinance, Cap 210.  Both these offences were committed on 3 January 2005 and the offence in the first count was committed to enable the commission of the offence in the second count.

2. The third and fourth counts were an identical pairing of offences committed on 22 March 2005 in respect of a different victim.  The fifth count was manslaughter contrary to common law.  The victim in the third and fifth counts is the same and though they were not pleaded in the alternative the judge directed the jury that they need not return a verdict on the third count if they convicted the applicant of the fifth count, and this in fact is what happened.  The applicant pleaded guilty to the second and fourth counts of theft and was convicted by the verdict of the jury of the first and fifth counts.

3. The trial judge sentenced the applicant as follows:

first count ‑ 10 years’ imprisonment

second count ‑ 4 years’ imprisonment

fourth count ‑ 4 years’ imprisonment

fifth count ‑ 15 years’ imprisonment

All sentences were ordered to run concurrently, the effect of which is to allow the applicant to escape punishment for counts 1 and 2.

The Prosecution Case

4. The prosecution case was that the applicant was acting jointly with another Mainland woman, one Liu Liying (“Liu”), in approaching elderly men and offering sexual services to them, then drugging them and stealing items of value from their flats.  The drugs they used on the first victim, a 78 year old man, were a combination of estazolam and triazolam and he recovered from the effects of these drugs.  However when they drugged the second victim, a 66 year old man, they added the drug clozapine which led to the victim suffering a pulmonary embolism and ultimately caused his death.

5. From the victim’s of the second count an amount of $138,000 in cash was stolen as well as jewellery and a camera.  From the victim’s of the fourth count an amount of $10,000 in cash and some personal possessions were stolen.

6. After committing these offences the applicant returned to the Mainland and was only arrested when she re-entered Hong Kong on 16 September 2010. When interviewed under caution she admitted that she had been persuaded by her accomplice Liu to engage in prostitution in Hong Kong.  She denied possessing or using any substances to drug the male clients but she knew that Liu had such substances in her possession.  She said that she thought Liu would only drug those men who refused to pay for their services.  She claimed the first victim did not pay them the full amount and though she did not see Liu drug him or steal his property she admitted to sharing with Liu the money stolen by her from the victim’s flat.  Similar qualified admissions were made in respect of the second victim.

The Defence Case

7. The applicant gave evidence at trial and resiled from the admissions she had made to the police and even those implicit in her pleas of guilty to the theft offences.

8. In respect of the first victim she denied knowing that Liu had drugged his tea.  She was aware that the victim later became drowsy but attributed this to the sexual activity in which he had engaged.  She said that when Liu asked the victim for payment he only had enough money to pay one quarter of the agreed amount but Liu suggested to the applicant that they not wait for him to obtain more as they would not be the loser.  The applicant agreed, not knowing, so she said, that Liu had stolen money from the victim.  She said that Liu later gave her $700 - $800 and only then did she realise that Liu had taken money from a drawer in the flat.  She denied going to the victim’s flat with the intention of stealing from the victim.

9. The applicant gave similar evidence in respect of the second victim. She said that when this victim was unable to pay the full amount of the agreed fee for their sexual services she became aware that Liu had taken items and placed them in bags, one of which Liu asked the applicant to carry.  She said that the only items she stole were toilet rolls and she did not see Liu take any cash from the flat and did not receive any money from her.  She said when she went to the second victim’s flat she had no intention to steal from the second victim.

10. Given the basis of the applicant’s appeal it is important to note that in her evidence the applicant showed no remorse, no inclination to accept responsibility for her actions, resiled from her admissions to the police and, in respect of the theft counts, from the admissions implicit in her pleas of guilty.  She denied any knowledge of what Liu was doing and denied going to the flats of the victims with the intention of stealing from them – everything was Liu’s doing.

The Ground of Appeal

11. The applicant is unrepresented.  Her complaint is that the sentence imposed on her is too heavy and the only reason she advances in support of this complaint is that she claims she intended to plead guilty but was dissuaded from doing so by her counsel, Mr G. Surman.  It was only because of the legal advice that she received that she pleaded not guilty, thereby losing the benefit of the discount she would have otherwise been granted for pleading guilty.  She maintains that she specifically enquired of Mr Surman if it would be advantageous to her to plead guilty and his only response was to tell her to trust him and it would be alright.  She says she knew she had broken the law and wanted to take responsibility for her misdeeds.

12. No complaint is made about the length of any of the individual sentences.

Discussion

13. In response to the allegations by the applicant Mr Surman has filed an affidavit and his instructing solicitor an affirmation.  Both deny the allegations of the applicant.  All communication by Mr Surman with the applicant was translated to her by the instructing solicitor.

14. In the course of the trial the applicant discharged Mr Surman who communicated this to the court.  The trial judge spoke to the applicant who after conferring further with Mr Surman and his instructing solicitor decided to continue with his services.  It is apparent that the applicant was concerned that she was not having frequent enough conferences with her legal advisers and that as a result she did not have sufficient opportunity to communicate her concerns to them or to have them explain to her all that she wanted to know in respect of her trial.  The judge probed the applicant as to what it was she would like an opportunity to discuss with her counsel and the following dialogue with the trial judge then took place:

“Court: Yes. Tell me one thing you want to know now. If they came to visit you now and this hadn’t happened, what would you be asking them? What do you want to tell them that they don’t know already in order to defend you?

Accused: For example, yesterday he mentioned to me that if I plead guilty, I would still have 10 per cent discount in the sentence. Then I got the view that they were not confident enough to defend my case or maybe they got the view that my case could not be defended any more.

  Court: If you want to talk to them about the consequences of taking different courses of action, they are here to do that.  And I can promise you this: you couldn’t have better advice than from Mr Surman, and I’m in a position to know that, doing the job I do.”

15. The basis of the applicant’s appeal is that as a result of incompetent legal advice from her counsel she was wrongly persuaded to plead not guilty. Yet at trial she sacked her counsel and one of the reasons she gave the trial judge was because he had lost confidence in her defence and was, in effect, encouraging her to plead guilty.

16. This is just one of many contradictions between her claim now and her conduct at trial; contradictions which rob her claim of any credibility.  Her assertion that she had incompetent legal representation is patently false and no more than an after-the-event attempt to achieve a reduction in sentence.  Her allegations not only offend common-sense and reason but their falsity is proven by the applicant’s own words in the course of explaining to the judge why she wished to discharge Mr Surman and by the evidence she gave at trial.  They do not require further investigation by this Court.  Her application for leave to appeal her sentence is dismissed.