HKSAR v. FANG GENCHENG

HCCC 257/2020

[2023] HKCFI 1139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 257 OF 2020

BETWEEN

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DECISION

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1.  The defendant pleaded guilty to one count of trafficking in dangerous drugs contrary to S4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap 134, before the Eastern Magistrates’ Court on 27 October 2020. He now seeks to reverse that plea.

The Summary of Facts

2.  The prosecution case[1] is that on 24 April 2019, the defendant knowingly took possession of a parcel from the USA, which was found to contain 9,741g of ICE. The prosecution evidence consists of his physical collection of the parcel from a logistics company and an admission upon arrest that he collected the parcel to help someone called “Ah Gor”. He was to deliver the parcel to the Shatin Regal Hotel for a reward of RMB 10,000. The value of the drugs was HK$5.7 million. There is no finger print or DNA evidence. There is no digital evidence. There is no direct evidence as to knowledge. In answer to questions upon arrest and caution, the defendant stated inter alia that he did not know the contents of the parcel. In his VRI, he stated that he lived and worked in mainland China and had come to Hong Kong to shop on 23 April 2019. He had been asked to collect the parcel by a person called Ah Gor who had been introduced to him a week earlier by a friend called Lo Ka. He had queried the contents of the parcel with Ah Gor who had told him it was “nothing special and it would be fine”. He believed the parcel to contain something like red wine. The defendant agreed to assist in a controlled delivery but proved to be deliberately unhelpful to the extent that he warned off the third parties. The prosecution pray in aid his behaviour during the controlled delivery in which he spoke to Lo Ka in the Hakka dialect rather than Punti or Mandarin in which he was fluent.

Chronology of Proceedings

3.  Since his arrest on 24 April 2019, the defendant has had the following representation:

Date	Proceedings
26.4.19	WKCC 1761/2019	1st appearance –Duty lawyer Chiu Shun-ming
19.7.19		2nd appearance –Duty lawyer Lau Hon-wang
16.8.19		3rd appearance –Duty lawyer Anthony SY Tse
13.9.19		4th appearance –Duty lawyer Mandy LM Wong
11.10.19		5th appearance – Duty lawyer Charlotte SH wong
23.10.19		L/A Cert issued
18.11.19		1st return date- Philip Yeung DLA
30.12.19		2nd return date-Charis Li DLA
2.1. 20		DLA assigned Joseph CK Chan of M/s Lo, Chan Leung DLA assigned Ms Money Lo Counsel
18.3.20		DLA assigned Mr Kenny Chan of Counsel
9.4.20		3rd return date- Kenny Chan
8.6.20		4th return date- Kenny Chan
7.7.20		DLA assigned Mr Alfred WY Wong of Counsel
17.8.20		5th Return date- Alfred Wong
14.9.20		6th return date- Alfred Wong
27.10.20	Committal	Committal date I/S Joseph CK Chan Counsel Alfred HY Wong
25.3.21	HCCC 257/2020	Ms Chan of Counsel assigned
28.5.21	P&S	Not held
2.7.21		Mr Terence To of M/s To, Lam & Co assigned Raymond Yu of Counsel assigned
7.9.21		Mr Peter KH Wong of M/s Peter KH Wong & Co assigned Ms Sabrina See assigned
10.12.21		Mr HY Wong of Counsel assigned
15.2.22		L/A certificate discharged
24.3.22	Listed for reversal of plea	Not held
24.6.22		Application for LA refused
13.9.22		Application for LA refused
15.11.22	Listed for reversal of plea	Not proceeded with
16.11.22	Listed for reversal of plea	In Person -adjourned
01.2.23	Listed for reversal of plea	In Person – adjourned for further legal aid application
8.2.23	Listed for reversal of plea	In person- legal aid processing application
20.2.23	Listed for reversal of plea	Mr Hanif Mughal of Counsel assigned
25.4.23	Listed for reversal of plea	Mr Hanif Mughal
26.4.23	Listed for reversal of plea	Mr Hanif Mughal

4.  As for those changes of representation, the Court has been informed by the Director of Legal Aid[2] that the defendant no longer wished to engage the services of his first Counsel, Ms Money Lo, but that all other assignments were made as a result of Counsel being unavailable. The Court understands that the legal aid certificate was discharged when the defendant indicated he wished to reverse his plea and advice was taken by the Director of Legal Aid from Counsel appointed under the relevant certificate at the material time, who was Mr HY Wong.

5.  As a consequence of the above, the defendant initially appeared in person before this court on a very serious matter. The quantity of drugs involved is 9,741 g of methamphetamine hydrochloride, which was hidden in bags of coffee. The starting point for sentence after trial for that amount of drugs is in the region of 28 years’ imprisonment without consideration of the aggravating feature of the fact these drugs were imported. For the purpose of this application, and after having been advised by the Court as he was unrepresented, the defendant waived his legal privilege and the Court therefore required Mr Wong of Counsel and Mr Chan Kwong-ming of Messrs Lo, Chan & Leung to answer the defendant’s complaints. They did so by way of Affidavits dated 22 December 2022 [P1] and 21 December 2022 respectively [MFI/1]. On 20 February 2023, Mr Mughal was assigned as defence counsel. He indicated that the defendant did not intend to give evidence upon his application but wished to cross examine Mr Alfred Wong only. At the end of Mr Wong’s evidence, Mr Mughal indicated that his client wished to give evidence. Exceptionally, the Court allowed the application and adjourned the proceedings for Mr Mughal to obtain written instructions. The proceedings then resumed on 25 April 2023 for the defendant to give evidence.

Evidence

6.  As this is his application I will summarise the defendant’s evidence first.

7.  In his letter to the Court dated 15 November 2022[3] (“the Letter”) , the defendant submitted that he had pleaded guilty before the Magistrates Court on 14 September 2020, which he understood to be the date of committal[4]. On 27 October 2020, the defendant admitted the Summary of Facts and his case was committed to the High Court. The defendant maintained that his plea, whether taken on 14 September as suggested by the defendant or on 27 October as was the case, was entered as a result of misrepresentation by Counsel Mr Wong. He complained that Ms Lo, Mr Kenny Chan and Mr Wong (who represented him at committal), failed to analyse the evidence and provide him with a viable defence. Instead, they focused their attention upon advising the defendant of the benefit of a guilty plea on sentence and of the risk of giving evidence in trial. They did not assist him in developing a strategy for his case. As a consequence, the defendant lost faith in obtaining professional support and became indecisive as to which plea to enter.

8.  The defendant maintained in the Letter that he instructed Mr Wong to seek an adjournment on 14 September 2020, but that application was refused by the Magistrate and he was required to enter a plea on that date. The Magistrate stood the matter down for one hour to allow Counsel to take instructions and, as a consequence, the defendant was under pressure to make a decision. The defendant alleges that during this conference he asked Mr Wong if he could enter a plea of guilty before the magistrate but reverse that plea in the High Court, to which Mr Wong replied in the affirmative. Mr Wong also suggested that in the High Court the defendant could “make a fuss” and allege that the magistrate had forced him to enter a plea. As a result, he entered a plea of guilty when he was brought up before the court once more on 14 September 2020. The matter was then adjourned to 27 October for the Summary of Facts to be prepared and agreed. In his Letter, the defendant complains that he did not have sight of the Summary of Facts prior to 27 October, as Mr Wong had promised to attend a conference at Lai Chi Kok but did not do so. As a consequence, the defendant knew nothing of the contents of the Summary of Facts prior to attending court on 27 October. He maintains that the Summary of Facts was interpreted to him prior to the hearing but that there were parts he did not understand and he had asked for a copy of the Summary of Facts in Chinese. He was informed by Counsel that this was not possible as there was no Chinese version and that he should trust the interpretation and simply say “Yes” when asked and agree the Summary.

9.  During the committal proceedings the defendant submits in his Letter that he informed the Court that he did not understand the Summary of Facts at the time it was read out in Court and an adjournment was ordered for him to take advice. During that adjournment, the defendant told Mr Wong that he was “at a loss on the Summary of Facts”, but Mr Wong did not question this and indicated that as he had previously pleaded guilty before the Court, the defendant “had no choice but to agree” and if he did not agree then the defendant must challenge the case. Accordingly, the defendant agreed the Summary of Facts and the matter was committed to the High Court for Plea and Sentence.

10.  The defendant subsequently submitted two affirmations to the Court[5] dated 22 November 22 [D2] and 30 January 2023 [D3] respectively. These were adopted by him in his evidence in chief. The defendant made a general complaint against all counsel that they had failed to actively assist in his defence case despite being told that he had no knowledge of the presence of the drugs and therefore no reason to plead guilty. Under D2, the defendant reiterated the complaints raised in the Letter. Under D3, in reply to the Affidavit of Mr Wong[6], the defendant maintained that he had provided an explanation for his behaviour in the controlled delivery to Mr Wong during the conference of 11 August 2020. He denied receiving any advice as to the difficulties arising from the allegation by the prosecution that the defendant had deliberately alerted a third party during the controlled delivery, which would weigh heavily against him despite the burden upon the prosecution of proving his knowledge.

11.  As for the conference held on 14 September 2020, when the magistrate stood matters down and insisted on being given an indication of plea, the defendant denied that he had failed to provide an explanation for his behaviour on the controlled delivery to counsel when asked to do so. He also denied he had been advised not to enter a plea if unsure of what he intended to do as it would be difficult to reverse a plea of guilty. He further denied that Mr Wong had explained both the strengths and weaknesses of his case to him by this stage.

12.  The defendant gave evidence on his own behalf, although, somewhat unusually he gave evidence only after Mr Wong had been called by the prosecution. During his evidence the defendant explained that he had entered his plea of guilty because of pressure of time. This was a reference to the hearing of the 14 September 2020 when the magistrate had stood matters down to obtain an indication of plea and which the defendant mistakenly understood to be the day he had entered a formal plea. He told the court that he had been represented by several counsel and he had told all of them he did not know what was in the parcel he had collected. He thought he should fight the case but none of them helped him and all of them told him he should “decide the matter himself”. No one suggested he should enter a plea of not guilty. He was not advised or assisted by Mr Wong in how he should fight his case. He stated that he had specifically asked Mr Wong if he could enter a guilty plea and then reverse that plea in the High Court to which Mr Wong had agreed that he could do so, which is why he entered a guilty plea but he did not realise that in doing so he was accepting that he had the requisite knowledge. He said that he had always intended to plead not guilty but counsel had not told him to do so which is why he pleaded guilty. He had been given the impression by all counsel that it would be very difficult to fight his case.

13.  Finally, the defendant explained that he wished to reverse his plea having taken advice from other inmates and having read media reports of cases, which indicated that he may be able to fight the case.

14.  The respondent called Mr Alfred WY Wong, Counsel. He was assigned on 7 July 2020 and first saw the defendant on 11 August 2020 [P1/WWY-1]. He recollected that during the 1^st conference held at Lai chi Kok, he asked the defendant whether he intended to plead guilty or not guilty. He had explained the consequences of each plea to the defendant and the likely sentence. He also explained what would be required in the event of a not guilty plea and advised the defendant that he was in difficulty in any trial because he had sought to warn his co-conspirators of his arrest during the controlled delivery. There was a particular difficulty in that regard as the appellant was known to be able to converse in both Punti and Mandarin but had chosen to speak to his co-conspirator in a regional dialect. He would therefore need to give evidence to explain why he had done so. At this stage, he said the defendant had not yet decided whether to plead guilty or not and so Counsel had gone on to analyse the evidence with the defendant based upon the papers in his possession, which he believed included a Summary of Facts. He was fully aware that the defendant had said he had no knowledge of the drugs. He considered that the defendant’s behaviour in the controlled delivery was a vital issue and had asked for an explanation but the defendant did not provide one. It was suggested to him by Mr Mughal that the defendant had told him that the defendant had spoken in Hakka because Lo Ka had spoken in that dialect. He did not accept that the defendant had told him this. He was unaware of this until giving evidence in these proceedings.

15.  The second conference took place on 14 September 2020, in the cells of the court building prior to the hearing. His recollection is at this stage that the defendant was still unsure what to plead and had instructed him to make an application for an adjournment. This had been canvassed during the first conference. Counsel told the defendant that this was not likely to be granted as the defendant had now had 3 counsel assigned to him and the magistrate would want an indication of plea. Nevertheless, Mr Wong made the application, which was refused, but he was given time to take further instructions.

16.  During the third conference, which took place in the cells at 11:30 am on 14 September, there was a discussion about Mr Wong continuing to represent the defendant. There was a possibility that if the defendant sacked Counsel, he may get a further adjournment but Counsel advised him that he may be in difficulty obtaining further representation as the DLA had already assigned 3 counsel. The defendant asked for advice on plea and Counsel frankly told him he was in difficulty because of his behaviour during the controlled delivery from which there could be drawn an inference of a guilty mind. Mr Wong realised that the defendant was still unsure and advised the defendant not to enter a plea if he was unsure of it and that if he entered a plea of guilty that it would be difficult to reverse because he had been legally represented throughout. He was advised that it would be less difficult to change his plea if he pleaded not guilty. He recollected that the defendant was unhappy with his advice. At the end of the conference, the defendant decided to plead guilty, made a declaration on his backsheet and signed accordingly [P1/WWY-4]. The plea of guilty would have been indicated to the court at that stage for listing purposes.

17.  It was suggested by Mr Mughal on behalf of the defendant, that the defendant did not understand the Summary of Facts. Mr Wong denied any suggestion that the defendant was unaware or confused about the Summary of Facts. He had explained the Summary of Facts at the first conference and again in detail at the fourth conference, which was also held at Lai Chi Kok prior to committal. During both of those visits to Lai Chi Kok, Counsel had an interpreter in attendance as well as a solicitor’s clerk but the defendant spoke fluent Punti in any event. Counsel accepted the Summary of Facts had been in English but it had been interpreted to the defendant. He did subsequently write to the Department of Justice for a copy of the Summary of Facts in Chinese, which was refused. Mr Wong recollected that there had been some conversation about the content of the Summary but could not recollect exactly what it was, although, in chief, he thought it was in respect of the nature and quantity of the drugs. Mr Mughal suggested it was in respect of the usual last paragraph which was to the effect that by reason of his plea of guilty, the defendant accepted he was trafficking in dangerous drugs. Counsel could not recollect that, he thought it was about the facts, which was why he had later discussed a Newton Hearing and the risk of loss of discount.

18.  On 27 October, Counsel had a pre-hearing conference (“the fifth conference”) with the defendant and explained that a Chinese copy of the Summary of Facts was not forthcoming. He accepts that he did tell the defendant that he could trust the explanation of the Summary of Facts given by Counsel and the interpretation provided by the interpreter.

19.  As for the complaint by the defendant that during the Committal hearing on 27 October, he had told the magistrate that he did not understand the Summary of Facts, the court obtained the transcript of the committal proceedings. The transcript of the hearing indicates the defendant indicated he did not understand the warning by the magistrate as to his rights:

“ COURT:	Defendant, in relation to the charge against you, you are not obliged to say anything or you may choose to plead guilty, in which case your case will be committed to the CFI for sentence. If you plead not guilty, you will be committed for trial, in which case you have the right to apply for discharge if you consider there is insufficient evidence against you. Your counsel says you wish to plead guilty. Do you confirm that?
DEFENDANT:	What did you say about I have a right to apply? I don’t understand, you just told me…I have a right to apply. ”

The defendant did not in fact indicate to the Court at any stage that he had any difficulty with the Summary of Facts.

20.  As to the issue with his right to apply for discharge, the matter was adjourned for Counsel to advise the defendant. Mr Wong stated that it was at this point, during the fifth conference, that the defendant raised the issue with him once again as to whether he could object to the facts. This would necessarily have been in relation to a guilty plea. In reply, Counsel advised that a Newton Hearing could be held to challenge the Summary of Facts but if he wished to take that course then he would lose his 1/3 discount for plea. As a result, the defendant confirmed his plea of guilty and the Summary of Facts to Counsel and before the court.

21.  This Court has also been provided with an affidavit supplied by Mr Chan, the instructing solicitor. It is necessarily limited to the record made at the time by the solicitors’ clerk Mr Ho Tung Choi, who attended court on 14 September, the legal visit on 9 October and the Committal hearing on 27 October 2020. Mr Ho was not required to attend court on reversal of plea. No issue was taken as to the contents of the documents nor was the defendant asked about them when giving his evidence in chief. The notes for these events are basic but indicate that the appellant chose to plead guilty after advice and wrote out a document to that effect, a copy of which has been provided to the court. That document[7] was written by the appellant and states inter alia:

“ I, Fang Gencheng, understand the facts of the case and the possible sentence.

I am willing to plead guilty voluntarily to the following charge and agree the Summary of Facts”.

The Law

Reversal of Plea

22.  A guilty plea is an admission of guilt by a defendant given in reply to the court’s demand to plead. Based on the guilty plea, together with the defendant’s agreement to the brief facts provided by the police, the court may make a finding of guilt and enter a conviction against the defendant of the offence charged, without requiring proof of the offence by evidence at trial[8]. Only an unequivocal plea of guilty may be accepted by a court to enable it to enter a conviction. A court has no discretion to take an equivocal plea.[9] Where it does so, such a plea is described as a nullity and the conviction it is founded upon must be set aside.

23.  Where a plea is unequivocal, no subsequent event can alter that historical fact. No subsequent event can render it a nullity. There are however circumstances in which a court, in the exercise of its discretion, may allow a defendant to reverse that plea of guilty to one of not guilty. Those circumstances are many, varied and not exhaustive. A trial judge may, in the exercise of his or her discretion, allow or refuse an application to withdraw a plea of guilty entered unequivocally[10]. An application to the court to allow a reversal of plea based upon an underlying unequivocal plea may be done at any stage of the proceedings including after conviction and up to the stage at which the defendant is sentenced.

24.  The first issue before the Court is therefore whether the original plea was equivocal or unequivocal at the time it was entered. If it was equivocal, it was a nullity and the plea should be set aside and taken again. If it was found to be unequivocal, then the court should go on to consider if there are any circumstances in which it would be right in the interests of justice to exercise its discretion to allow the plea to be reversed. The defendant accepts that his plea was an unequivocal one but asks the court to exercise its discretion to allow him to reverse that plea. In order for the Court to be in a position to do so, it is required to inquire into the basis of the application[11] and, where necessary, to hear evidence in order to establish if the application is sound in fact and in law.

25.  Where a defendant has had the benefit of counsel and instructing solicitors prior to entering his plea of guilty, the court should take into account the interests of the defendant but also the interests of the public and the administration of justice so as to bring certainty to proceedings and an end to litigation[12]. There must therefore be good reason to allow a plea properly entered to be reversed. The discretionary power, whilst unfettered[13], is one which should be exercised in clear cases and very sparingly[14]. The overriding consideration in the exercise of that discretion must be the interests of justice[15].

Analysis

26.  The antecedent statement[16] indicates that the accused is a resident of the mainland and holder of a PRC passport. He was born of 6 July 1991 and is now 31 years of age. He told the Customs & Excise that he lives with his family in Jiang Xi and was employed but he declined to say what he did for a living. In evidence in chief, he maintained that he was employed as a hair dresser. He is married with one child. I have taken into consideration the fact that he does not come from a common law jurisdiction.

27.  I do not accept that the defendant did not understand the Summary of Facts or the case against him. Although it is not clear what form the Summary of Facts took in early August at the time of the first conference, it was available before the hearing on 14 September and the subject matter of a discussion at the later conference at Lai Chi Kok on 9 October, in which there is a record of the Summary of Facts being explained to the appellant and interpreted to him [WWY-5]. There is a note[17] that the appellant indicated that he understood and agreed the Summary of Facts. At best he has misremembered these events, at worst, the defendant has been less than full and frank with the Court. I do not accept therefore that he had no understanding of the case against him prior to committal on 27 October. In any event, the contents of the Summary of Facts are not contested by the defendant. They are a record of his arrest and what was said in interview. The only issue which the defendant now makes complaint of is as to the last paragraph which states that he accepts he was trafficking in dangerous drugs. That is an unequivocal statement of fact. He either accepted that he was knowingly trafficking in dangerous drugs or he did not. He was aware of those facts prior to committal and agreed to them on 14 September 2020 as well as on 27 October 2020, 6 weeks later. At no stage has he sought to explain what it is about those facts he did not understand. The last paragraph should not need any further explanation. It is a clear admission to trafficking in dangerous drugs at a time when the defendant was fully aware of the elements of the offence and in receipt of competent advice from numerous legal representatives.

28.  The defendant’s crystalised complaint, made through Mr Mughal, is that even if the court were to reject the defendant’s evidence on the basis of the conflict between his evidence and that of Mr Wong, as supported by the documents and the transcript of proceedings, there is nevertheless some support for the contention that the defendant may have been confused when he entered his plea of guilty as to his ability to reverse that plea. I cannot accept that submission. It is clear, even on the defendant’s evidence, that the defendant sought advice upon plea and was indecisive. He accepts that he sought advice about reversal of plea. He maintains that this was in respect of a guilty to not guilty reversal to which Mr Wong had advised him that he could do so, whereas Counsel gave evidence that he had advised generally upon reversal of plea. Mr Wong maintains he explained the effects of both a plea of guilty and one of not guilty. He had explained that if the defendant pleaded guilty but took issue with any part of the Summary of Facts, a Newton Hearing would be necessary and he would be at risk of losing his one third discount for plea. Logically this could not have included an issue as to knowledge, which is an element of the offence. Mr Wong had also explained that if he wished to reverse a guilty plea to one of not guilty it would be difficult and would require the court to find a good reason for so doing. Mr Mughal submitted that the defendant entered the plea based on a either a fundamental mistake such that it vitiated the intent of the defendant in pleading guilty or it did not result from a deliberate and informed decision[18]. As to the former proposition, I do not believe it applies to the circumstances of the application before the Court. The facts of the case were extremely simple. The defendant had agreed to take possession of a parcel whilst on a trip to Hong Kong for a reward and, subject to the issue of knowledge, the charge was properly laid against him. He understood that knowledge was the primary issue in the case as, on his own evidence, he raised it with each of his assigned counsel and maintained his innocence. That being the case, he knew full well the basis of the plea he had entered which included an admission that he knew he was trafficking in dangerous drugs. There remains the issue of whether the entering of a plea of guilty was deliberate and if deliberate, whether it was based upon an informed decision at the time it was entered. The defendant either knew what was in the parcel or he did not. He now maintains he did not know and told every legal representative that he did not know and wished to plead not guilty. He does not suggest Mr Wong advised him to plead guilty or put any pressure upon him to plead guilty. He must therefore have done so of his own volition. Whether to enter a not guilty plea is a matter entirely for a defendant having been advised as to the evidence against him and the elements of the offence as charged. The defendant does not suggest that he misunderstood the charge or the importance of the issue of knowledge. Quite the opposite. Indeed, it is a straight forward issue if the defendant truly maintained he had no knowledge. The facts of this case are extremely simple. On 24 April 2019, the defendant took possession of a parcel containing dangerous drugs. The only possible available issue for the defence on the evidence was one of knowledge. That was wholly within the purview of the defendant. He was the only person who could answer that question. The defendant knew he was in possession of a parcel which was found to contain drugs. He admitted agreeing to take delivery for a substantial reward and he admitted who had asked him to do so. No one but the defendant knew whether he had knowledge of the contents of the parcel at the time he took receipt of them. He says he always maintained he had no knowledge. If that were the case, I cannot understand why he would ever consider pleading guilty or would have been advised to do so. His explanation for having done so was that he had been advised if he pleaded guilty he could thereafter change his plea but he provided no explanation for why he would consider entering a plea of guilty in the first place.

Conclusion

29.  The defendant entered an unequivocal plea before the magistrate on 27 October 2020. The facts of the case were simple and the only issue was whether the defendant accepted he was trafficking in dangerous drugs. The court can find no grounds upon which to exercise its discretion to allow the defendant to reverse his plea. This matter will be listed for plea and sentence.