



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Kim,







2007 
          BCCA 25



Date: 20070115





Docket: CA32667

Between:

Regina

Respondent



And

Chol 
    Hwan Kim

Appellant












Before:


The 
          Honourable Mr. Justice Low




The 
          Honourable Mr. Justice Thackray




The 
          Honourable Madam Justice Kirkpatrick








S. 
          Goldberg


Counsel for the Appellant




V.L. 
          Hartney


Counsel for the Respondent




M.K. 
          Woodall


Counsel for Mr. Johnson




Place 
          and Date of Hearing:


Vancouver
,
British Columbia




27 and 29 September
and 22 and 23 November 2006




Place 
          and Date of Judgment:


Vancouver
,
British Columbia




15 January 2007








Written 
          Reasons by
:




The 
          Honourable Mr. Justice Low




Concurred 
          in by:




The 
          Honourable Mr. Justice Thackray

The 
          Honourable Madam Justice Kirkpatrick





Reasons for Judgment of the Honourable Mr. Justice Low:

[1]

Police officers searched the appellant at the Vancouver
International
Airport 
    on 17 May 2004.  They found packages containing two kilograms of cocaine secured 
    to his midriff and current airline tickets for Sidney, Australia
via
Seoul, South Korea
.

[2]

On 14 October 2004, the appellant pleaded guilty before Fratkin PCJ 
    to the offence of possession of cocaine for the purpose of exportation from 
    Canada contrary to s. 6(2) of the
Controlled Drugs and Substances Act
, 
    S.C. 1996, c. 19.  On 3 February 2005, Watchuk PCJ sentenced him to imprisonment 
    for three years.

[3]

The appellant applied to this court to set aside the guilty plea and 
    remit his case to the Provincial Court for trial.  He raises the defence of 
    duress by claiming that he committed the offence and pleaded guilty under 
    threats made by a co-accused, Sang In Choi, against his life and the lives 
    of members of his family.  He also contends that his counsel, Christopher 
    Johnson, was in a conflict of duty because he also represented Choi against 
    whom the Crown eventually entered a stay of proceedings.

[4]

I have come to the conclusion that Mr. Johnson was in a position of 
    conflict and ought not to have represented both the appellant and Choi.  I 
    also conclude that the appellants guilty plea must be set aside with the 
    case to be returned to the trial court for the taking of a fresh plea.  Therefore, 
    I find it unnecessary to comment on the availability to the appellant of the 
    defence of duress or on the strength of the evidence with respect to that 
    defence.

[5]

There is no fixed category of cases or situations in which a trial 
    court or an appeal court might set aside a guilty plea.  In
Adgey v. 
    The Queen
, [1975] 2 S.C.R. 426, 13 C.C.C. (2d) 177, Dickson J. (as 
    he then was) said at 431 (S.C.R.):

This 
    Court in
The Queen v. Bamsey
, [1960] S.C.R. 294, at p. 298, held that 
    an accused may change his plea if he can satisfy the
Appeal Court
"that 
    there are valid grounds for his being permitted to do so."  It would 
    be unwise to attempt to define all that which might be embraced within the 
    phrase "valid grounds".  I have indicated above some of the circumstances 
    which might justify the Court in permitting a change of plea.  The examples 
    given are not intended to be exhaustive.

[6]

It should be noted that this is not a case in which submissions given 
    to the trial court should have alerted either the judge who took the guilty 
    plea or the sentencing judge to the possibility that the plea might not be 
    valid.  The concern is that in the particular circumstances of this case Mr. 
    Johnsons duty to the appellant was in conflict with his duty to Choi such 
    that there was a miscarriage of justice and the only remedy available is the 
    setting aside of the guilty plea.

[7]

The appellant filed fresh evidence in this court in the form of affidavits.  
    Crown counsel cross examined the appellant on his affidavits in our presence.  
    Mr. Johnson also swore an affidavit as did Emil Doricic, an associate from 
    the same law office (not a partnership) who spoke to sentence on behalf of 
    the appellant.  Both lawyers were cross examined before us by counsel for 
    the appellant.  We also received other affidavits to which I will refer as 
    required.  I would admit all the fresh evidence in the appeal.

[8]

The appellant, Choi and four others were arrested at the airport at 
    the same time.  The other four, two young men and two young women, were students 
    who had been recruited in Korea to come here to transport cocaine to Australia.  
    It appears that the appellant had little to do with them.  The appellant says 
    that Choi, a onetime school friend, had recruited him by offering him a free 
    trip to Australia and later requiring him to transport contraband which Choi 
    represented to be ground bull horn for the possession of which he would only 
    be fined.  As already noted, the appellant further says that it was Choi who 
    threatened his life and the lives of members of his family in order to get 
    him to participate.

[9]

It is established by an affidavit filed by counsel for the appellant 
    and sworn by a travel agent, Sunja Lee, that a young Korean male made the 
    airline reservations for all six accused by telephone prior to 13 May 2004.  
    The same male attended at the travel agency and paid cash for all the tickets.  
    The tickets for the four Korean students were issued on the 13th and the other 
    two were issued on the 14th, the intended day of travel.

[10]

Although it is not necessary to the argument of the appellant, it is 
    interesting to note that the affidavit of Ms. Lee exhibits tickets issued 
    to Choi, So Han Jo and Lee In Seung for travel to Seoul via Tokyo, Japan on 
    24 March 2004 returning directly to Vancouver on the 4th of April.  There 
    was another ticket issued to Choi for the same routes with a departure date 
    of 9 March and a return date of 16 March.  We can reach no conclusions from 
    this evidence of extensive travel by Choi but the evidence would likely have 
    been of interest to the police and a statement from the appellant might have 
    added context sufficient to support continuation of the prosecution of Choi.

[11]

Ms. Lee also swore that after 17 May 2004 she received a telephone 
    call from the same young Korean male who had purchased the airline tickets.  
    He told her that the tickets had not been used and that he wanted a refund.  
    She advised the man that a refund would be given upon return of the tickets.  
    The evidence does not disclose who obtained release of the tickets from police 
    custody, but Ms. Lee swore that Mr. Johnson telephoned her later about the 
    refund.  On 30 September 2004 her agency issued and delivered a cheque payable 
    to Mr. Johnson for $7,285.40 representing the cost of the tickets less 25% 
    and the agencys handling charges.  Mr. Johnson confirmed in his affidavit 
    that he received this money as part of his fees but he was unable to recall 
    many of the details as to how this came about.

[12]

The police knew Choi to be an associate of a known drug dealer.  Chois 
    name on the airline manifest for Korean Air flight 72 scheduled to depart 
    on the offence date triggered the interest of the police in the activities 
    of all six accused.  All the co-accused except Choi possessed cocaine when 
    arrested.  Choi had $6,100 in his possession.  In preparing its case it was 
    the theory of the Crown that Choi was the overseer of the other five accused.  
    However, the prosecutor ultimately concluded that this theory was not provable 
    beyond a reasonable doubt.

[13]

We learned from the evidence of Mr. Johnson that his retainer and a 
    later refresher of it came from a source unknown to him as the person would 
    not give his name.  There is no suggestion in the evidence that this person, 
    whoever he was, had any connection with the appellant.

[14]

Mr. Johnson met with all six accused while they were in custody and 
    he did not require any further payment of fees from them.  He was successful 
    in securing the release of Choi and later of the appellant on bail.  He could 
    not recall the source of the appellants $10,000 cash bail that he received 
    and posted on the appellants behalf on 4 June 2004.  He thought the source 
    might have been the appellants brother or it might have been Choi.  The appellant 
    testified that his parents were in Korea at the time and that neither he nor 
    any other member of his family was in a position to provide such funds.  He 
    did not know the source of the money.  There is no reason to reject this evidence.

[15]

Upon fulfilment of the terms of his bail recognizance, the appellant 
    would have been entitled by law to return of the money posted.  However, he 
    was required to sign an assignment of the money to Choi, an event not recalled 
    by Mr. Johnson in his evidence.  The bail assignment is also signed by Choi.  
    For the purposes of this appeal, the only conclusion I can reach is that Choi 
    provided the appellants bail money or acted as the agent of somebody else 
    who did so.  Whatever might be the truth of the matter, it was in Chois best 
    interests to assist the appellant in the hope that he would not provide the 
    prosecution with evidence to complete its case against him.

[16]

The appellant testified that he and the five other accused met with 
    Mr. Johnson two days after their arrests.  He claimed that Mr. Johnson told 
    them that a friend of Choi had paid him.  He accepted Mr. Johnsons advice 
    to apply for bail.  The appellant said that he did not trust his lawyer because 
    he was also Chois lawyer and he feared that what he said to him would get 
    back to Choi.  He also said that he had had no previous experience with court 
    matters and did not know how to contact another lawyer.  After his release 
    on bail he saw Choi at Mr. Johnsons office and at court in Richmond.

[17]

The appellant claimed that he continued to feel threatened by Choi.  
    He also claimed that Mr. Johnson told him that if he pleaded guilty he would 
    be sentenced to less than two years in prison and would not be deported to 
    Korea, assertions I am unable to credit.  He swore in his affidavit of 9 February 
    2005 that on 14 October 2004 (the day he pleaded guilty) Choi told him that 
    I must plead guilty so that the charges against him [Choi] would be dropped 
    so there would no longer be a threat to the life of me and/or my family.  
    Mr. Johnson told him that the charge against Choi would be dropped.

[18]

The four Korean students also pleaded guilty on 14 October 2004.  On 
    the same day, the court ordered delivery to Mr. Johnson of the money seized 
    from Choi at the airport.

[19]

A week later the Crown directed a stay of proceedings as against Choi.

[20]

Sentence proceedings with respect to the appellant had been fixed for 
    1 November 2004.  With the concurrence of the Crown and for reasons not at 
    all clear to me, it was arranged that the sentencing of the appellant would 
    take place before a judge other than the judge charged with the sentencing 
    of the four Korean students.  Fratkin PCJ sentenced those four on 21 October 
    2004.  He concluded that a sentence of four years was appropriate for each 
    of them.  Taking into account the time each had spent in custody (more than 
    five months), he imposed sentences of three years.

[21]

Mr. Johnson testified that he recognized that if this matter went to 
    trial he would then be in a conflict position and the appellant and Choi would 
    have to be represented by separate counsel.  He was not asked by counsel to 
    articulate the conflict.  It is clear to me that from the beginning there 
    was a conflict between his duty toward the appellant and his duty toward Choi.  
    That conflict became stark when it was decided that the appellant would plead 
    guilty and the Crown would be asked to enter a stay of proceedings against 
    Choi.

[22]

The appellant was born in Korea in 1982.  He came to Canada for schooling 
    in 1997, at age 15.  His parents and siblings arrived during the following 
    year.  When arrested, the appellant was 22 years old.  Although he finished 
    his schooling here and attended the B.C. Institute of Technology, his proficiency 
    in English is less than complete.  Some credit has to be given to his assertion 
    that after his arrest he was in strange territory and did not adequately understand 
    what his options were.

[23]

Assuming he was to be convicted of the drug offence, a main concern 
    of the appellant was that he avoid a sentence of two years or greater.  He 
    has landed immigrant status only and is subject to automatic deportation if 
    so sentenced.  If sentenced to less than two years, he might be able to avoid 
    deportation.  Therefore, he had to be represented by counsel who, in addition 
    to being free to explore possible defences (including duress), had to be free 
    to explore all avenues that might lead to this post-conviction goal.  One 
    thing to consider was to offer to give information to the Crown that would 
    assist it in making its case against Choi and also to offer to testify against 
    Choi.  Such co-operation by the appellant might have persuaded the prosecutor 
    to participate in a joint submission for a sentence of less than two years, 
    or at least it might have persuaded the court that such a sentence was merited 
    because of the appellants co-operation.  Because he also represented Choi, 
    Mr. Johnson was unable to advise this course of action, much less put it into 
    effect.

[24]

Counsel for the appellant cited the case of
R. v. Burlingham
, 
    [1995] 2 S.C.R. 206, 124 D.L.R. (4th) 7.  In that case, the court ruled inadmissible 
    certain derivative evidence obtained by police investigators as the result 
    of a confession found at trial to be inadmissible because of the effective 
    denial to the accused of his right to counsel in breach of s. 10(b) of the
Canadian Charter of Rights and Freedoms
.  That case has no relevance 
    here because the appellant was not denied a right to effective legal representation 
    as a result of any conduct by an agent of the government.  The
Charter
has no application.  This case falls to be decided on the basis of principles 
    existing long before constitutional enactment of the
Charter
.

[25]

In
R. v. W.(W.)
(1995), 100 C.C.C. (3d) 225, 25 O.R. 
    (3d) 161 (C.A.), at 235  236, Doherty J.A. stated the law with respect to 
    joint representation as follows:

While there 
    can be no absolute bar against the joint representation of co- accused, joint 
    representation puts counsel's obligation of undivided loyalty to each client 
    at risk:
R. v. Silvini
,
supra
, at p. 257.  In attempting to 
    serve two masters, counsel may do a disservice to the interests of one or 
    both.  Counsel who undertake the joint representation of co-accused assume 
    the heavy burden of ensuring that they are not placed in a position of representing 
    interests which are or may be in conflict:  Law Society of Upper Canada,
Professional 
    Conduct Handbook
(Toronto: Law Society of Upper Canada, 1992), rule 5. 
     Where counsel fails to perform that duty and undertakes the representation 
    of interests which do or may conflict, the court will order counsel removed 
    from the record:
Re Regina and Speid
(1983), 8 C.C.C. (3d) 18, 3 D.L.R. 
    (4th) 246, 37 C.R. (3d) 220 (Ont. C.A.);
R. v. Robillard
(1986), 28 
    C.C.C. (3d) 22, 23 C.R.R. 364, 14 O.A.C. 314 (C.A.).

[26]

The above passage deals with identification of a conflict in the trial 
    court.  When the issue is raised for the first time on appeal, the concern 
    is whether, as stated by Doherty J. A. at 236 in
W.(W.)
,  on 
    a review of the trial record supplemented by . . . fresh evidence, the [appellant 
    has] demonstrated that [his] joint representation resulted in a miscarriage 
    of justice.  As I have already indicated, I think the appellant here has 
    discharged that burden.

[27]

On the facts this case is indistinguishable from this courts decision 
    in
R. v. Stork and Toews
(1975), 24 C.C.C. (2d) 210 in which 
    the court permitted withdrawal of guilty pleas by two appellants and directed 
    a new trial.

[28]

It is fundamental to our criminal court system that counsel representing 
    an accused person must be free from any conflict between his duty to that 
    accused and his duty to another accused person.  In the present case, (in 
    the absence of an informed waiver the by appellant) the conflict existed from 
    the very beginning.  In the circumstances of this case, no counsel could have 
    represented both the appellant and Choi without being in a conflict of duty.  
    The appellant was denied effective assistance of counsel from the outset and 
    there was manifest unfairness to him resulting in a miscarriage of justice.

[29]

It must be emphasized that whether counsel acting for more than one 
    accused in the same matter is in a conflict of duty and whether the conflict 
    leads to a miscarriage of justice will always depend on the circumstances 
    of the particular case.  In the present case it is likely that if Choi had 
    also been found in possession of cocaine at the airport Mr. Johnson would 
    not have been in a position of conflict.

[30]

I wish to add that this decision should not be seen to be a reflection 
    on the ethics or competence of either defence counsel.  Mr. Johnson did no 
    more than err in assuming that the appellant concurred in the course of conduct 
    and that he had given him complete instructions.  He should have recognized 
    the conflict I have described but I have no doubt he thought he was acting 
    in the best interests of all his clients.  Mr. Doricic did not become involved 
    until after the guilty plea and he did a thorough and capable job of preparing 
    for and speaking to sentence.

[31]

I would set aside the appellants guilty plea and remit the charge 
    to Provincial Court for a fresh arraignment.

The Honourable Mr. Justice Low

I agree:

The Honourable Mr. Justice Thackray

I agree:

The Honourable 
    Madam Justice Kirkpatrick


