HKSAR v. MANJAIARRAYA NATTHASIRI

CACC 171/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 171 OF 2015

(ON APPEAL FROM HCCC 261 OF 2014)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  On 16 March 2015, the applicant appeared before Deputy High Court Judge Tallentire (“the judge”)in the Court of First Instance of the High Court and pleaded guilty to one count of unlawfully trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. On the same day that she pleaded guilty to this charge she was sentenced to 15 years and 4 months’ imprisonment. The drugs the subject of the charge were 1,591.91 grammes of a crystalline solid containing 1,571.57 grammes of methamphetamine hydrochloride.

2.  On 22 May 2015, the applicant filed a Notice of Application for Leave to Appeal against Sentence out of time.  The leave hearing was heard on 10 December 2015, with leave being refused the same day.[1]

3.  On 29 August 2016, the applicant filed another Notice of Application for Leave to Appeal out of time, this time against her conviction.

4.  At the hearing of the application we refused it and said we would hand down our reasons for doing so at a later date.  This we now do.

The arraignment

5.  The applicant did not speak English and the proceedings were translated to her in the Thai language.  The arraignment proceeded uneventfully and the judge accepted the applicant’s plea of guilty to the count on the indictment.

6.  The Summary of Facts was then read and translated to the applicant.  In response to it the applicant said:

“There were some discrepancies, but I would admit it.”

7.  This caused the judge to intervene and the following exchange took place between him and Ms Liza SH Yip, counsel for the applicant at the sentencing hearing:

“COURT: Perhaps Ms Yip, you ought to take some instructions.

MS YIP: Sorry, my Lord, can I take some instructions?

ACCUSED: I admit.

MS YIP: Sorry, my Lord, in fact, when the brief facts was prepared for us, a copy has already been read to her, and that I understand that she had actually signed for those instructing me. I think there’s some -- likely some mistranslation.

COURT: I just want to be certain that, obviously, that she just admits the essential facts of the offence before I convict her.

MS YIP: Exactly.

COURT: Madam, stand up, please. Do you admit the facts or do you not admit the facts? You have to admit them unequivocally. If you have any problems with the fact at all, then I will stand the case down and you can speak to your counsel. Clearly, Madam, you do not admit the facts, and I am standing the case down.

Ms Yip, if you may speak to her.

MS YIP:   Thank you.”

The court adjourned at 10:50 am to enable Ms Yip to speak to the applicant and take instructions from her.  When the court resumed at 11:17 am the following exchange took place:

“COURT: Ms Yip.

MS YIP: Thank you for the time, my Lord.

COURT: Yes.

MS YIP: And so sorry about the tiny bit of misunderstanding. The client actually confirmed with me that the facts has no problems.

COURT: All right, then I will...

MS YIP: But obviously, your Lordship will have to ask her.

COURT: Madam, stand, please. Now, very simply, you’ve had access to your counsel to discuss the situation, and I put it to you now, do you admit the facts, or do you not admit the facts?

ACCUSED: I admit the facts.

COURT:  Very well, then I convict you on the admitted facts, and please be seated.”

The background to the offence

8.  The Summary of Facts which the applicant admitted and which was used for her sentencing revealed that on 5 January 2014, at about 5:20 pm, the applicant was intercepted by Customs Officers as she was checking in for a flight to Phuket, Thailand, at Terminal 2 of the Hong Kong International Airport. 

9.  Her suitcase was searched and officers found 12 plastic bags in it, each of which contained packets labeled “Card Reader”.  Some of these packets contained USB card readers, while others contained USB chargers and yet others contained plastic tubes.^. A Customs Officer broke open one of the plastic tubes and found that it contained suspected dangerous drugs, which upon later examination, were confirmed to be the quantity of methamphetamine hydrochloridethat is particularised in the charge.

10.  Under caution, the applicant said that the items contained in her luggage were USB, and that an African male friend named “Dor” had given them to her in China for her to take to Thailand for his friend.  She provided his contact number.  The applicant was also told she would be contacted when she arrived in Thailand.  She maintained that she would not get any reward for carrying these items to Thailand.

11.  The drugs had an estimated street retail value of $679,745.57.

12.  In a subsequent video-recorded interview under caution, the applicant explained that she lived and worked in Bangkok, and had previously travelled to Guangzhou[2] where she had been introduced to an African person named Dor Ju Gub (“Dor”), whom she believed was engaged in the clothing business in Guangzhou and who she further believed would invite her to join his business

13.  She went to Guangzhou a second time on 30 December 2013, arriving in Hong Kong in the morning of 5 January 2014 at which time she was arrested for the present offence.  In respect of this second trip to Guangzhou she said she believed that she would be given clothes to take back to Thailand.  She said she had waited for Dor in Guangzhou for a few days and on 4 January 2014, he appeared at her hotel and gave her items which he said were USB to deliver to Thailand.  These were the items she was carrying when she arrived in Hong Kong the next day.  She claimed she had not been paid any reward and she denied knowledge of the drugs, asserting that she had been deceived.

14.  The Summary of Facts concluded with the following paragraph:

“Basis Plea

11. The Defendant admits that she knew that she was carrying Dangerous Drugs when she entered, and was trying to leave, Hong Kong on 5 January 2014, and that she was, therefore, Trafficking in the Ice in her ‘Check In’ bag, as described in the single Count on the Indictment.”

The mitigation

15.  In her address in mitigation Ms Yip explained how the applicant became involved in the offence.  She said that on her first trip to China the applicant was deceived into believing that she would be involved in a joint business venture exporting clothes from China to Thailand.  She was induced into travelling to China a second time by being told that they wanted her to take clothes back to Thailand.  Ms Yip then said:

“It was not until the guy turned up at her hotel room with the suitcase, she realised that it wasn’t clothes that she was supposed to take back to Thailand. Of course she could see what’s inside, but she doesn’t know exactly what kind of dangerous drugs, and obviously she didn’t have the time to weigh them. Those were the things that she didn’t know about.

And my Lord, it is just one of these sad story, a poor woman who is very uneducated, got manipulated by someone to become a drug mule, and this was the first time she did it, …”

16.  Nothing was said in mitigation that was inconsistent with the applicant’s plea of guilty.  Indeed, as is apparent from the passage quoted above, what was said in mitigation confirmed that the applicant knew there were drugs in her suitcase.

The judge’s Reasons for sentence

17.  In sentencing, the judge adopted 21 years’ imprisonment as his starting point which he then enhanced by 2 years to allow for the aggravating factor of the international element, making a total term of 23 years’ imprisonment.  The judge then discounted this starting point by one third to take into account the applicant’s plea of guilty and this resulted in a final sentence of 15 years and 4 months’ imprisonment.

The grounds of appeal against conviction

18.  The applicant acts in person having been refused the grant of legal aid on 23 November 2016.  She has filed an affirmation dated 26 August 2016 attached to her Form XI which was filed on 29 August 2016 and a submission dated 10 August 2016.  In these documents the applicant stated that she wanted to appeal against her conviction as on 9 August 2016 a representative of the Office of the Narcotics Control Board of Thailand had visited her in prison asking about her case.  This person told her that his agency would “investigate the case for me in order to find the real culprit to be punished.” 

19.  In an attachment to her affirmation she explained why she pleaded guilty.  She said:

“(The reason) I admitted as that I had no choice, because the lawyer – Hong Kong Police did not help investigating the case. And also suggested me to plead guilty for lenient and discount sentence convicted by the court.”

20.  She concluded both documents by saying that she wanted to appeal again to wait for the conclusion of the investigation into her case in order to find the person who deceived her and led to her imprisonment, so that he could be punished.

21.  At the hearing of her application the applicant said that she had come to court to ask for mercy.  She referred to efforts she had made to obtain a certificate from the Thai authorities to show that she had been a good citizen as explaining the delay in filing her present application.  Also contributing to the delay were her unsuccessful efforts to obtain CCTV footage from the hotel in Guangzhou at which she had stayed, so as to be able to identify the persons who had given her the suitcase containing the dangerous drugs.  Another reason for her delay was her inability to speak the local language and the need to settle herself after being sentenced.

22.  On the issue of why she pleaded guilty she repeated what she had said in the documents she sent to the court.  This was that her lawyer had told her it was impossible to investigate what took place in Guangzhou as that had taken place in China.  She said she wanted to assist the investigating Customs officers but was hindered in doing so by the language barrier because the interpreter provided to her was not competent. 

The respondents’ submissions

23.  Ms Hermina Ng, Senior Public Prosecutor, on behalf of the respondent, relied upon the case of HKSAR v Lee Sin Seang[3] as setting out the relevant legal principles to be applied by the Court of Appeal when determining an application for an extension of time in which to appeal.  She submitted that the delay of 16½ months was quite substantial in this case and that at the time the applicantfiled her application for leave to appeal against sentence, she must have made a conscious decision not to appeal against her conviction.  A period of 8 months had elapsed between the refusal of that application and the applicant filing the present application in respect of her conviction and the applicant had not explained the reason for that further delay.  

24.  Ms Ng also submitted that the applicant failed to demonstrate how the alleged offer by the Thai authorities to investigate her case would render her guilty plea a nullity.

25.  As to the circumstances for treating a guilty plea as a nullity, Ms Ng referred to HKSAR v Wong Chi Yuk[4]and submitted that the only basis on which the applicant could be relying is that her plea was tendered involuntarily, or that it did not result from a deliberate and informed decision.  Ms Ng averred, however, that neither of these two were properly arguable as the applicant was represented by counsel when she pleaded guilty, and she must have been advised of the consequences of entering such a plea, including the benefit she would receive of a discount in sentence.  Moreover, she had not alleged incompetence of counsel.  Furthermore, the applicant had also not raised the issue with the court at the time of her plea.  

26.  Ms Ng submitted that even if the Thai authorities had offered to investigate the applicant’s case, it did not exonerate the applicant as the Summary of Facts which the applicant admitted for the purpose of her sentencing concluded with an express admission by the applicant that she knew she was carrying the dangerous drugs when she entered and was trying to leave Hong Kong.

Discussion

27.  The application is substantially out of time and follows some 8 months on from an unsuccessful application to appeal her sentence out of time.  It is clear from the fact that the earlier application had a line drawn through that part of the Form XI that enabled an application to be made in respect of conviction that the applicant had, at the time of that application, made a considered decision not to appeal against conviction.  No explanation has been offered to satisfactorily explain the lengthy delay in filing the present application.  The fact that there may now be an investigation by Thai authorities into the people who used her is of no relevance to her conviction and so cannot provide a satisfactory explanation for the delay in appealing the conviction.

28.  Notwithstanding that we are not persuaded to grant the applicant the extension of time she needs to pursue her appeal we have, as is the practice of the Court of Appeal, examined the merits of her complaints in order to satisfy ourselves that by refusing her application we were not shutting out a plainly arguable ground of appeal. 

29.  The respondent relies on the Wong Chi Yuk decision as setting out the relevant legal principles for appealing a conviction recorded from a guilty plea.  However, this case is not directly applicable to the position of the Court of Appeal as it is a decision which arose from a Magistracy appeal and concerns that statutory right of appeal contained in section 113(1) of the Magistrates Ordinance, Cap 227.  This provision is drafted in such a way as to limit the right of appeal to a defendant who is convicted after trial. The Court of Appeal said that a defendant whose conviction flowed from a plea of guilty could not generally appeal against a conviction so recorded,[5] hence the only recourse was to argue that the plea was a nullity.  There is no similar statutory limitation imposed on the right of appeal to the Court of Appeal.

30.  The jurisdiction of the Court of Appeal to entertain an appeal from a conviction recorded from a guilty plea was explained in the judgments of the court in HKSAR v Yip Kai Foon[6] and HKSAR v Shum Chiu.[7]  In Yip Kai Foon the Court of Appeal accepted as correct the statement of Ackner LJ in R v Lee (Bruce)[8] where he said:

"The fact that the applicant was fit to plead; knew what he was doing; intended to make the pleas he did; pleaded guilty without equivocation after receiving expert advice; although factors highly relevant to whether the convictions on any of them were either unsafe or unsatisfactory, cannot of themselves deprive the court of the jurisdiction to hear the applications."

31.  In Shum Chiu Hartmann JA in giving the judgment of the Court of Appeal set out the position as follows:[9]

“The Criminal Procedure Ordinance: this Court’s jurisdiction

27. Section 82(1) of the Criminal Procedure Ordinance, directs

that:

(1) A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.

28. On the plain reading of those words, the only qualifying provision is a conviction on indictment. It matters not whether the conviction was obtained by way of verdict after trial or by way of a plea. As was said by this Court in HKSAR v Yip Kai Foon [1999] 1 HKLRD 277, 282:

We accept that the applicant is not debarred from appealing by reason of his [guilty] plea. If, however, an applicant is to have any chance of success in his appeal, he must, as was done in R v Lee (Bruce) [1984] 1 WLR 578, establish that there is some overriding factor which makes the conviction founded on the unequivocal plea unsafe and unsatisfactory.

29. On the authority of HKSAR v Yip Kai Foon, for the appellant to succeed on appeal it was therefore necessary for him to establish some ‘overriding factor’ which rendered his conviction unsafe and unsatisfactory.”

32.  Notwithstanding the existence of this jurisdiction it is one which is cautiously employed.  In R v Liberti[10]the New South Wales Court of Criminal Appeal said:

“For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O’Neill [1979] 2 NSWLR 582; (1979); 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81.”

A similarly cautious approach has been adopted by the English Court of Appeal.[11]

33.  Referring to the New South Wales case of Liberti, Stock JA (as he then was), in giving the judgment of the Court of Appeal in HKSAR v Yu Chi Wing[12], said:

“It will be rare for an application to succeed on the basis that an appellant did not appreciate the nature of the charge; and the courts will always treat such suggestions after a plea of guilty and sentence with considerable circumspection, for it is an obvious avenue of potential abuse.”

34.  What then will be an “overriding factor” so as to engage the court’s jurisdiction?  It is neither necessary or appropriate to set out a definitive list of the circumstances or bases in which the Court of Appeal would find a conviction recorded from a plea of guilty to be unsafe or unsatisfactory.  Clearly if the plea of guilty can be shown to be a nullity for any of the reasons set out in Wong Chi Yuk then the court’s jurisdiction is engaged.

35.  Consequently, the decision in Wong Chi Yuk is relevant to how a conviction can be quashed on the basis of the guilty plea being treated as a nullity but the ultimate question for the Court of Appeal is whether the conviction is unsafe or unsatisfactory, whether by reason of facts giving rise to nullity concerns or for any other reason.[13]

36.  Nothing the applicant has said in the documents she has filed with the court or in her oral submissions at the hearing of her application goes anywhere near establishing any of the grounds for rendering her guilty plea a nullity or for causing us to harbour any doubts that the conviction may be unsafe or unsatisfactory.  Her inability to investigate the persons in Guangzhou who, she claims, took advantage of her is not, and never would have been, a reason for her to plead guilty.  Trials regularly take place in the Court of First Instance in which defendants who are alleged to be drug couriers plead not guilty, deny knowledge of the presence of drugs in their luggage and claim that they have been taken advantage of by others whom they thought they could trust.  There was nothing to stop this applicant proceeding likewise but if she had done so she would have been taking the risk of being convicted by the jury and of then losing the one third discount she would get for pleading guilty.  From her own statements this was clearly an important part of her decision to plead guilty.

Conclusion

37.  For these reasons we refused the applicant an extension of time in which to apply for leave to appeal against her conviction.