HKSAR v. MA KA KIN

HCCC 312/2017

[2018] HKCFI 2711

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 312 OF 2017

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DECISION

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Background

1.  The applicant Ma Ka Kin was originally jointly charged with one Hung Chi Him (“Ah Him”) with one count of trafficking in a dangerous drug (1,185 grammes of cocaine).  The charge was amended, leaving the applicant facing the charge alone.  The applicant pleaded guilty on 28 August 2017 to the amended charge before a Magistrate and was committed to the CFI of the High Court for sentence.

2.  When the applicant appeared before DHCJ Saw on 21 November 2017 for sentence, he indicated that he wished to withdraw his plea.  The case was then adjourned for the applicant to make his application formally.  Directions were also given for affirmations to be filed for the hearing.

3.  Both the applicant and his father Ma Chi Keung (“MCK”) filed affirmations.  A solicitor’s clerk Paul Chan (“PC”) and a barrister Ms Dorothy Cheung (“DC”) also filed affirmations in response to the allegations made against them.

4.  On 9, 12 and 27 November 2018, I heard evidence from the applicant, his father MCK, PC and DC.

Summary of admitted facts

5.  The Summary of Facts[1] which the applicant admitted before the Magistrate showed that an inbound parcel from Brazil addressed to the applicant’s home address was intercepted by C&E at the airport on 19 October 2016 and was found to contain 1,185 grammes of cocaine.  The applicant was eventually arrested and under caution he claimed it was someone called “Ah Him”, his ex-supervisor in a noodle shop, who had asked him to collect a parcel on the latter’s behalf.  The applicant was instructed to pass the speed-post notification to a man at the Po Lam MTR station.  During a Video-recorded Interview, the applicant further explained he had known Ah Him for about two years and he had helped Ah Him in football betting and they had played online mobile phone games.  He did not know why Ah Him sought his help to have the parcel delivered and he received no reward from Ah Him.  As Ah Him had instructed him not to collect the parcel but to pass the notification left behind by the postman to another male, the applicant had doubt but eventually he thought the parcel contained some parallel goods which were legal.  He trusted Ah Him and he had no knowledge of the contents of the parcel.  The estimated street value of the cocaine involved was about HK$1.9 M.  The applicant admitted and accepted that he was in possession of the dangerous drug for the purpose of trafficking.

Grounds for withdrawal of plea

6.  The grounds relied on by the applicant to withdraw his guilty plea are as follows:

(1)  The guilty plea was entered involuntarily under circumstances constituting duress, undue influence and/or misrepresentation, namely, under the influence of the false, wrongful and misleading “legal advice” of PC and the applicant’s legal team at the time;

(2)  The “legal advice” was tainted and motivated by a serious conflict of interest when the applicant’s legal fees were financed by the party of or acting for Hung Chi Him, who was originally jointly charged with the applicant but whose name was later deleted from the amended charge, to which the applicant pleaded;

(3)  As a result of the conflict of interest, the loyalty of the legal team to the applicant to render unbiased, fair and independent legal advice to the applicant and to act in the best interest of the applicant was seriously compromised;

(4)  The Summary of Facts do not fully support the charge of trafficking in a dangerous drug as there was no admission by the applicant that he was aware of the existence of dangerous drug in the said parcel; and

(5)  The applicant is not guilty of the offence of trafficking in a dangerous drug.

The law

7.  Section 81B(3) of Magistrates Ordinance Cap 227 provides:

“No objection shall be taken to any information or compliant to which the accused has pleaded guilty, and the accused shall not afterwards be allowed to withdraw the plea except with the leave of a judge of the Court of First Instance”.

8.  A judge may in the exercise of his/her 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 HKCFAR 303.  A guilty plea made under duress, inducement or misrepresentation is a nullity: See The Queen v Lam Yin [1995] 2 HKCLR 124, R v Li Yuen Chu [1994] 2 HKC 621 and HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125.

Issue in this case

9.  On the face of it, the applicant had tendered an unequivocal plea, I have to decide whether the applicant had entered his plea involuntarily as claimed.

Evidence before this Court

10.  As mentioned above, the evidence took more than two days and covered all areas including how the younger brother of the co-defendant Hung Chi-him (“Ah Kan”) approached MCK and took him to the firm of solicitors in which PC was working at the time; how PC, together with DC and a female clerk, met the applicant on various occasions and what took place during those meetings.  More importantly, I heard evidence concerning the circumstances under which the applicant signed the declaration[2], indicating his decision to plead guilty “provided that all charges against Hung Chi-him to be dropped” and the circumstances under which the applicant finally pleaded guilty before a Magistrate during the committal proceedings, after the Summary of Facts was amended to substitute to the full name of Hung Chi-him with Ah Him.

11.  The said declaration (in a printed form) was signed by the applicant on 3 March 2017, which was the 2^nd meeting he had with the legal team.  It is therefore necessary to see what took place during the 1^st meeting on 27 January 2017 and 2^nd meeting.

12.  Before I deal with the evidence on these two meetings, I would point out the fact that the applicant was then a 20-year-old young man with a clear record.  There is also undisputed evidence from MCK that he did not pay any legal fees (though there was no clear evidence before this Court who had made the actual payment).

The applicant’s version

13.  According to the applicant, he met PC, DC and a female clerk for the first time on 27 January 2017 at the West Kowloon Magistrates’ Courts.  The applicant said PC did most of the talking and asked the applicant to sign an authorization letter, which the applicant did.  The applicant understood the legal team would study the papers to be obtained from the prosecution.  DC did not give him any legal advice and he did not indicate he wanted to plead guilty during the meeting.

14.  On 3 March 2017, the same team came to see the applicant again.  The applicant was told the fingerprints and DNA evidence did not implicate him.  PC then started to tell the applicant that his case was very difficult to handle for the following reasons:

(a)  The applicant had said in his statement that Ah Him was unable to collect the parcel because he had to travel, when in fact Ah Him did not leave Hong Kong, the applicant’s statement was therefore contradictory;

(b)  The applicant had indicated he had suspicion about the parcel, and despite that suspicion the applicant still received the parcel, making it problematic; and

(c)  There was no evidence to support the applicant’s assertion that he had lent his address to Ah Him.  The case appeared to be one done by the applicant alone.

15.  The applicant said he was confused at the time and he believed in what PC had told him.

16.  The applicant said PC told him about the change in the sentencing policy, saying that it would be easier for mitigation to be advanced if the applicant plead guilty earlier.

17.  PC also told the applicant that although it would be difficult for the applicant to fight the case, the situation for Ah Him was different.  Ah Him had a better chance to get off as there was no evidence against him.

18.  PC told the applicant that if more people were involved in a case, the offence would be more serious and the sentence would be stiffer.  There would be no benefit for the applicant to “drag another person into the case”.

19.  PC then asked the applicant to sign a pre-printed form indicating that the applicant agreed to plead guilty on condition that Ah Him would be set free.  The applicant duly signed the said form[3] after listening to PC as PC had told him it was hopeless to fight the case.

20.  The applicant said he queried how Ah Him could escape when he had mentioned Ah Him in his statement, PC then told him not to worry, saying that someone would get another statement from him.

21.  During this 2^nd meeting, DC did not analyse the prosecution evidence to the applicant, nor did DC give him any legal advice.

Version given by DC and PC

22.  According to DC’s affirmation, when she saw the applicant for the first time on 27 January 2017, she explained the charge and the brief facts to him.  The applicant indicated that he intended to plead guilty, saying that the other defendant (i.e. D2 Hung Chi-him) had nothing to do with it.  DC elaborated in court that after the applicant had told her he was thinking of pleading guilty, she had asked him whether he knew what was inside the parcel and the applicant answered in the affirmative.  The applicant also told DC that he would not “point his finger” or “grass someone out”, asking DC what would the sentence be if he “took all the blame”.  According to DC, the phrase used by the applicant was “one plead guilty, one set free” (一招一放).  As the chemist certificate was not available at the time, DC could not advise the applicant on the sentence, save to say that if the quantity was close to 2 kg the likely sentence would be 20 odd years.  DC told the applicant not to hurry, to think over that carefully and to inform her on the next occasion his decision.

23.  DC then told PC and the female clerk to play safe and prepare some documents for the next meeting in case the applicant really wanted to have “one plead guilty, one set free”.  That was how the document[4] shown to the applicant to sign on 3 March 2017 came into existence.  She did not prepare the document herself and she did not know who had prepared it.

24.  PC, in his affirmation, said nothing about the applicant having indicated he wished to plead guilty during the 1^st meeting.  When PC gave evidence, he said the applicant said to DC during the 1^st meeting that he wanted to plead guilty and that the case had nothing to do with the other defendant.  DC then instructed PC to prepare a declaration for the applicant to sign on the next occasion.  PC also said that during that 1^st meeting, the applicant’s requirement was that one would plead guilty while the other would be released.

25.  On 3 March 2017, DC collected the chemist certificate from the prosecution and went to see the applicant.  After she explained to the applicant the likely sentence in view of the weight of the dangerous drug, the applicant asked her whether there was no chance to fight the case.  DC explained the elements of the offence in greater detail on this occasion as she had already received the case bundle prior to that meeting.  DC told the applicant it was not necessary for him to decide on that occasion as plea would only be taken when he appeared at the Eastern Magistrates’ Courts later.  The applicant elected to plead guilty and signed the document[5].

26.  PC denied the allegation of the applicant against him, claiming that it was DC who had given legal advice to the applicant.

My consideration of the evidence

27.  I must say that after listening to the evidence on the part of the applicant, DC and PC, I find there is a ring of truth in what the applicant had said.  Bearing in mind what the applicant had said during the Video-recorded Interview (that he was being used by Ah Him and he did not know the parcel contained dangerous drug), it appears strange that he would, out of the blue, ask DC about “one plead guilty, one set free” during the 1^st meeting when DC was not yet able to give the applicant proper legal advice.

28.  On the evidence before me, DC was only representing the applicant, she was not representing Hung Chi-him.  During this first meeting, the only information before her was that the applicant was jointly charged with Hung Chi-him with one offence of Trafficking in a dangerous drug, she would not know about any other offence faced by Hung Chi-him.  If the applicant had indeed asked about “one plead guilty, one set free”, there is no reason for the printed form to use the expression of dropping all charges against Hung Chi-him.

29.  I find DC’s explanation that she had left the wordings to be decided by people in the solicitor’s firm unconvincing.  By the time she explained the declaration to the applicant, which she claimed she did, she must have realized the expression used was for all charges, yet she never raised any query as to what other charges Hung Chi-him was facing and why “one plead guilty, one set free” would result in a request of dropping more than the joint charge against Hung Chi-him.

30.  A request to drop all charges against Hung Chi-him is clearly to the benefit of Hung Chi-him.  Bearing in mind it was Hung Chi-him’s brother who had sought out MCK and took him to see PC; and that MCK did not pay any legal fees, even though PC claimed that the solicitors’ firm he worked for only represent Hung Chi-him after the prosecution had dropped the joint charge against the latter, it is clear to me that PC and his firm had the interest of Hung Chi-him at heart rather than the interest of the applicant.

31.  I am satisfied the applicant only came to sign the said declaration under the circumstances he testified.

32.  That being my findings, there is no need for me to elaborate on the other evidence before me except to point out two matters.

33.  Firstly, I do not accept DC’s evidence that the written instruction[6] written by the applicant at Pik Uk Correctional Institute on 9 March were words solely from the applicant.  According to the applicant, he was given a piece of paper with writings to copy.  One only has to look at the preamble: “I, Ma Ka Kin, after the explanation given by your esteemed firm and by the barrister responsible for my case…” to see that they are not the kind of words coming from a lay client without any suggestion or prompting, particularly one as unsophisticated and young as the applicant.

34.  The second matter was the reason for amending the Summary of Facts to delete the name of Hung Chi-him and substituted that with Ah Him.  According to DC, it was the applicant’s idea to change it.  The reason given by the applicant was that leaving Hung Chi-him in the Summary of Facts would make him “look like a liar”.  According to the applicant, the suggestion came from PC and since he had already decided to plead guilty, he did not care whether the full name of Hung Chi-him appeared or not.

35.  As the Summary of Facts only related what the applicant had said during the Video-recorded Interview, whether the name of Hung Chi-him or Ah Him appears, it still remains a fact that the applicant had said someone else had asked him to collect the parcel.  Leaving the name of Hung Chi-him in the Summary of Facts would not make the applicant any less a liar.  I accept the applicant’s version of the event.  Again, changing the full name of Hung Chi-him to Ah Him is to the benefit of Hung Chi-him rather than to the applicant.  It makes no difference to the applicant’s case.

Conclusion

36.  On the evidence before me, I find that the applicant has succeeded in showing that his plea of guilty was entered involuntarily and I grant his application to withdraw his plea of guilty.