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Hksar v Chan Yip Fai

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date06 October 2022
Neutral Citation[2022] HKCA 1394
Year2021
Judgement NumberCACC154/2021
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC154/2021 HKSAR v. CHAN YIP FAI

CACC 154/2021

[2022] HKCA 1394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 154 OF 2021

(ON APPEAL FROM HCCC NO 165 OF 2020)

__________________________

BETWEEN
HKSAR Respondent

and
CHAN YIP FAI (陳燁輝) Applicant

_________________________

Before: Hon M Poon JA in Court

Date of Hearing: 13 September 2022

Date of Judgment: 13 September 2022

Date of Reasons for Judgment: 6 October 2022

____________________________

REASONS FOR JUDGMENT

____________________________

Introduction

1. This case is an application for leave to appeal against the conviction of one count of trafficking in dangerous drug[1] to which the applicant has pleaded guilty. The drugs involved in the case was 2,086 grammes of a mixture containing 901.1 grammes of heroin hydrochloride.

2. His application to reverse that plea was refused by D Yau DHCJ (“the judge”) on 8 July 2021 and he was sentenced to 185 months’ imprisonment.

3. The applicant applies for leave to appeal his conviction. After the hearing, I refused to grant leave. I now state my reasons.

History of the lower court case

4. A guilty plea was entered by the applicant in the Magistracy on 27 July 2020 with an admission to the summary of facts[2]. The applicant was intercepted by the police in possession of a parcel which he had received some 50 minutes earlier. The parcel contained heroin with a street value of HK$780,352.6 packed in tinfoil concealed inside 14 packs of purported Thai noodles. Messages in the applicant’s mobile telephone mentioned “Cannabis”, “Coke”, “Perfume” and “Powder” etc. and the applicant “now admits that he possessed the drug found in P1 at the material time for the purpose of unlawful trafficking”.

5. Before sentencing took place at the Court of First Instance, the applicant, through his counsel Mr Mak, applied for a Newton hearing on the basis that the applicant mistakenly believed the narcotic nature of the drugs to be a less potent drug, that the applicant had all along thought that he was trafficking in cannabis instead of heroin[3].

6. Subsequently, the applicant did not proceed with the Newton hearing and applied for reversal of plea instead. By then Mr Cheung took over to represent the applicant. By an affirmation, the applicant claimed to have received the parcel on behalf of one “Ah Chun” who told him the parcel contained (real) turtle(s) and had no knowledge or suspicion that the parcel contained any kind of dangerous drug. He explained that he pleaded guilty because he mistakenly thought that by mitigating on the grounds of mistaken belief in trafficking in cannabis (a less potent drug), he can avoid the risk of a conviction after trial for trafficking in heroin. The applicant stated that as he became aware before the adjourned hearing that his claim of “mistaken belief” was not accepted by the prosecution, he was worried that he would not receive a discount in sentence.

7. The applicant also relied on a number of WhatsApp messages between him and someone else which show that there was a discussion about ‘turtles 烏龜’. He claimed that he was labouring under the thoughts that it was real turtles when he received the parcel and had no knowledge of any drugs.

8. These are the factual basis put forward by the applicant before the judge urging that he be allowed to reverse his plea despite his plea before the Magistrate was unequivocal.

Ruling by the judge

9. The judge found that the plea entered by the applicant was an unequivocal plea. He considered the following authorities: HKSAR v Wong Chi Yuk[4] , HKSAR v Chan Chi Ho Lincoln[5], and whether the guilty plea was made under a fundamental mistake or did not result from a deliberate and informed decision[6]. The judge went through the chronology of events and ruled against the applicant, and refused the application to reverse his plea.

Grounds of Appeal and submissions

10. Two grounds are advanced, namely that: (1) the judge erred in rejecting the applicant’s claim on the basis that he did not inform his former legal team of his belief the parcel contained real turtle; and (2) the judge erred in finding that the reference in “turtle” in the message was a reference to drug in the absence of expert evidence.

11. Mr HY Wong, appearing for the applicant, went through the applicant’s assertion in his affirmation. It is contended that the applicant had maintained a lack of knowledge of the drugs throughout. As the applicant was adamant to plead guilty and to rely on “mistaken belief” of the narcotic contents in mitigation to gain a greater discount, it was only natural that he did not tell his former legal team his belief that the parcel contained real turtles. It is further submitted that in the absence of expert evidence that “turtle” is a common street name for heroin, the judge erred in finding that those words were used as a code for some kind of dangerous drugs, likely to be heroin.[7]Mr Wong referred the judge to the following authorities: HKSAR v Shum Chiu[8] and HKSAR v Khan Asif Ali[9].

Respondent’s submissions

12. Ms Chan Sze-yan, SPP, appearing for the respondent, submits that the judge was entitled to examined the history of the case to consider whether the explanation afforded by the applicant for the shift in position was reasonable and to assess his credibility.

13. It is further submitted that as the WhatsApp and WeChat messages were included in the committal bundle and served on the applicant before the end of February 2020, with legal advice, there could not be any room for mistake in the understanding of the strength of the evidence against him. The messages were properly considered by the judge and he was entitled to consider the content and the context of the messages as a whole to come to the conclusion that “turtle” was a code for some kind of dangerous drug instead of real turtle as alleged by the applicant, and reject the applicant’s claim that he believed that the parcel contained real turtles.

14. Ms Chan submits that the two cases relied on by the applicant, contain exceptional circumstances and can be distinguished from the present case.

Discussion

15. The jurisdiction of this court to entertain appeal against conviction when an applicant has pleaded guilty was examined in the case of Shum Chiu, approved in HKSAR v Manjaiarraya Natthasiri[10] and cited in HKSAR v Jatinder Singh[11]:

“27. S.82(1) of the Criminal Procedure Ordinance, Cap. 221, directs that:

“A person convicted of an offence on indictment may appeal to be Court of Appeal against his conviction.”

28. …It matters not whether the conviction was obtained by way of verdict after trial or by way of a plea. …

29. …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.”

16. The overriding factor has to be demonstrated and “must lead to the finding that it would be inconsistent with the due administration of justice to allow the plea of guilty to stand”[12]. The Court of Appeal has, on various occasions, remarked that where an unequivocal plea of guilty has been properly entered, it would be rare for an applicant to succeed in showing that a conviction is unsafe or unsatisfactory: HKSAR v Nur Mei Lina[13].

17. In Shum Chiu, the Court of Appeal found that the overriding factor was that by an election of a severance and pleading guilty, the applicant was deprived of the success of appeal as entitled by his co-defendants on the basis of a permanent stay of proceedings. In Khan Asif Ali, it was the failing to place the WhatsApp messages before the judge for consideration albeit that they were available at the hearing of the application to reverse plea.

18. So what is the overriding factor relied on by the applicant in the present case? Mr Wong submits that is the nullity of the unequivocal plea, under the following circumstances as identified in HKSAR v Wong Chi Yuk[14]:

“…(5) The plea was … made under a fundamental mistake… or

(6) the plea...

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