R. v. Choi and Choi Date:, 2013 BCPC 281

Citation: R. v. Choi and Choi Date: 20130623 2013 BCPC 0281 File No: 178319-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BOKYONG WHAN CHOI RULING ON APPLICATION OF THE HONOURABLE JUDGE J. A. OULTON Counsel for the Crown: W. Sayson, Q.C., A. Jantunen Counsel for the Defendant: R. Fowler Place of Hearing: Surrey , B.C. Date of Hearing: June 21, 2013 Date of Judgment: June 23, 2013

[ 1 ] THE COURT : Bokyong Choi applies to withdraw a guilty plea entered into before Judge Gordon on May 1st, 2012. He entered a guilty plea to Count 1, fraud over $5,000, on a two-count Information, 178319-1, on which he and his brother, Hyukjin Choi, were jointly charged with fraud over 5,000 and theft over 5,000 between the 30th of December 2008 and the 21st day of January 2009. Judge Gordon did not consider herself seized as no facts were read in. Bokyong Choi's sentencing was adjourned to June 15th, 2012, for the preparation of a technical suitability report.

The guilty plea was entered on the second scheduled trial date of this matter. Three witnesses had been flown in from Korea for the trial at the time Bokyong Choi's guilty plea was entered. Both brothers were represented by senior and experienced former defence counsel. [ 2 ] The underlying facts leading to the laying of this indictable Information against the two co-accused were in December 2008 Hyukjin Choi set up a bank account at HSBC. Bokyong worked for Topia Ivy, a company that arranged exchanges and home-stays for Korean elementary school students travelling to the Lower Mainland.

Hyukjin was employed as a baker and there was no evidence that he had any connection with Topia Ivy. [ 3 ] In December 2008 and January 2009, parents of four Topia Ivy students received instructions via the Topia Ivy website to wire their children's tuition payments to Hyukjin Choi. The account number provided for Hyukjin Choi was Hyukjin Choi's HSBC bank account. The parents wired a total of $48,040 to Hyukjin's account. HSBC bank records show that $38,469 was transferred from Hyukjin's account to another HSBC bank account held by Bokyong.

Aside from $100 deposited when the account was created, the only money ever deposited into Hyukjin's account came from the aforementioned Topia Ivy clients. [ 4 ] This fraud was reported to the Surrey RCMP by Topia Ivy president, David Kim. The accused, both of them, gave statements to police. They both told police that money from an unknown source unexpectedly turned up in Hyukjin's bank account and that Hyukjin then transferred ten of thousands of dollars of this money to Bokyong. Bokyong explained that he had financial pressures and spent the money Hyukjin sent him.

Bokyong further explained that he was confronted about the fraud by Mr. Kim but denied involvement. At no point did either accused offer to repay Topia Ivy until Bokyong pled guilty to Count 1 on Information number 178319-1 and indicated through counsel that he was going to pay restitution. [ 5 ] Turning now to the chronology of this Information. Exhibit 2 on this application was filed by Crown and it is a chronology of 33 court appearances on this file. It has been ongoing for three years and four months. Former defence counsel represented both brothers from April to November 2010.

On July 15th, 2012, former defence counsel set the first trial date for June 2011. In November 2010, former defence counsel advised Crown he was withdrawing as counsel. The Crown attempted to contact the co-accused brothers in the following months with no success. [ 6 ] On May 5th, 2011, at their second trial confirmation hearing, the Choi brothers applied to adjourn the first trial date.

The judge reluctantly allowed the adjournment application, citing the complexity of the matter and the brothers' lack of familiarity with the court system but expressed his disapproval that the two co-accused had not done anything to retain new counsel in the six months which had elapsed since former defence counsel withdrew in November of 2010. [ 7 ] There followed through the summer of 2011, nine appearances for the two co-accused to obtain new counsel until the second trial date was set, without counsel, on August 12th, 2011. The second trial was set to begin May 1st, 2012.

On March 12th, 2012, at the first trial confirmation hearing, Bokyong Choi requested of the court that the trial be rescheduled. This request was denied. [ 8 ] On April 26th, 2012, former defence counsel was again acting for both brothers. He negotiated a plea deal with Crown which was that the charges would be stayed against Hyukjin Choi and Bokyong Choi would plead guilty. On April 27th, 2012, Bokyong Choi e-mailed Crown asking to adjourn the trial for a further year. The Crown refused the request. [ 9 ] In May 2012, Crown drafted and defence agreed to an agreed statement of facts for the sentencing.

I should say before the agreed statement of facts was agreed to on May 1st, 2012, Bokyong Choi entered a guilty plea as previously described. [ 10 ] On June 12th, 2012, the balance of Hyukjin Choi's account was given to Topia Ivy. This was part of the plea agreement and former defence counsel e-mailed Crown to advise this transfer was completed. On June 14th, 2012, former defence counsel called Crown to advise that a conflict had arisen.

On June 15th, 2012, former defence counsel advised the court that a conflict had arisen the day before and he sought permission to withdraw as counsel for both accused, which permission was granted. [ 11 ] Bokyong Choi advised Crown he had retained new counsel on June 29th, 2012. The application to withdraw his guilty plea was set by new counsel on August 22nd, 2012, for a hearing on January 9th, 2013. It was adjourned on that day to a fix date, February 7th, 2013, when the date the application was heard before me, June 21st, 2013, was set.

EVIDENCE [ 12 ] In addition to the affidavit of Adam Jantunen, a Crown counsel in this matter, Exhibit 3, and the chronology of appearances that I have already referred to, Exhibit 2, also filed on this application were the transcript of Bokyong Choi's entering of the guilty plea on May 1st, 2012, which was Exhibit 1, and Exhibit 4 was the Crown's

summary in an e-mail of a translation from Korean of two e-mails sent by Bokyong Choi. The first one was sent April 23rd, 2012, to James Park, the owner of Topia Ivy. The second one was sent April 26th, 2012, to David Kim, president of Topia Ivy, cc'd to James Park, the owner of Topia Ivy. As I have said, these were not the actual e- mails, they were a

summary of a translation from Korean of these two e-mails. THE CRITERIA ON AN APPLICATION TO WITHDRAW A GUILTY PLEA [ 13 ] I have discretion as to whether to permit the withdrawal of the guilty plea. The burden is on the applicant to displace the presumption that the plea was given voluntarily. This is not an easy burden to meet. The test is stringent because guilty pleas are not withdrawn lightly, particularly when entered into with the benefit of legal advice.

QUESTIONS TO BE ANSWERED [14] The main question to be answered is was the plea voluntary? On this I have Exhibit 1. It shows Bokyong Choi entering a guiltyplea on May 1st, 2012. There is a presumption this was voluntary. There has been no evidence before me adduced to displace thatpresumption. [15] Was the plea unequivocal? Was it informed? I have no evidence on this point. There is no affidavit from Bokyong Choi or hisformer defence counsel filed on this application. [16] In considering the application, the case law instructs that I may consider the following factors.

This comes from the case of theSupreme Court of Canada Adgey v. The Queen, (SCC), [1973] 13 CCC 2nd 177. Firstly, was the accused representedby experienced counsel? Secondly, was the accused apprised of his position in law based upon his disclosure of the facts to his counseland thus can be said to have understood the nature of the charge to which he pled? Thirdly, did the accused on those facts have adefence, if proved, that would be consistent with a valid defence?

Fourthly, was the plea given in circumstances that amounted topressure upon him to do so or was the decision to enter the plea one made in the circumstances of reasonable time for contemplation? Fifth, what was the experience of the accused with the criminal justice system and was the plea entered by the accused himself or simplyby counsel appearing on his behalf? The B.C. Supreme Court decision of R. v. Joseph

(2000) BCJ No. 2850 added, at paragraph 49, asixth consideration: what considerations did the accused have in mind in terms of motivation, such as protecting others, by his own validguilty plea, albeit on a basis unknown to the Crown?

There is also an overarching factor, being that the accused must establish that hisplea was wrong and it would be unjust to uphold the plea. [17] In this case, defence counsel's argument is focused on the overarching factor, the injustice of upholding Bokyong Choi's guiltyplea because former defence counsel represented both he and his brother and current defence counsel asserts both former defencecounsel and Crown counsel knew or ought to have known that this dual representation was an actual or potential conflict of interest thatcrystallized when Crown offered to stay charges against the co-accused brother, Hyukjin Choi, in exchange for a guilty plea by theapplicant.

Current defence counsel says that this conflict was never explained to the applicant, nor did he consent to it; however, I haveonly defence counsel's submissions on these points. Current defence counsel said he did not speak to former defence counsel or to theco-accused's brother, Hyukjin Choi. [18] Counsel for former defence counsel was also present. He took no position on the defence application. He submitted, however,that his client was not always in a conflict of interest on this file.

He pointed out that the court has no evidence as to what the two co-accused's instructions were at the time the guilty plea was entered. He submitted that the court could not find former defence counselactive in the conflict of interest throughout without a proper evidentiary foundation, which would require evidence from the applicant,evidence from former defence counsel and evidence from the applicant's co-accused, his brother. He did suggest, however, that based ona 1975 authority from the B.C. Court of Appeal, R. v. Stork and Toews (phonetic)

(1975) BCJ No. 1049, I could set aside a guilty plea ifit was entered into in circumstances that have an appearance of unfairness. [19] In the Stork and Toews case, three co-accused all had the same lawyer. One paid the lawyer $10,000 and that co-accused hadcharges stayed against him while the other two co-accused went to jail for five or eight years. The two co-accused who were sentencedto jail applied to withdraw their guilty pleas in the Court of Appeal. In that case the court had an affidavit from the lawyer in question.

Ifind the case distinguishable because I have no evidence about the solicitor-client relationship in this case, monetary or otherwise. [20] Crown opposes this application. Crown says I have no evidentiary foundation on which to assess whether there was a conflictof interest. Crown says further that there is no evidentiary foundation to assess whether the guilty plea is wrong or unfair and should bewithdrawn.

Crown points out that there is, "no evidence of no waiver," a point also made by counsel for former defence counsel. [21] Counsel for former defence counsel asked what the unrepresented co-accused's brother, Hyukjin Choi's position was on theapplication. Crown also wished to know. Hyukjin Choi asked the court if he could waive solicitor-client privilege. Hyukjin Choi wasgiven the opportunity to consult with duty counsel on the day the application was made.

Duty counsel then advised the court thatHyukjin Choi had no submissions but he supported his brother's application. [22] My analysis and conclusions are as follows: There is a lack of evidentiary foundation to assess the merits of Bokyong Choi'sapplication to withdraw his guilty plea. The only criteria that I can comment on is the acknowledgement that former defence counselwas senior and experienced. One lawyer representing two clients is not necessarily a conflict of interest. This is so according to the caselaw, R. v. Li, a decision of the B.C. Court of Appeal

(1993) BCJ No. 2312 at paragraph 77. It is also so according to the rules whichgovern the legal profession in British Columbia. [23] There can be occasions where interests are coincident rather than conflictual. I have no evidentiary basis for assessing whetheror not this is such a case. Submissions of counsel are not evidence. Instructions from a client are not sufficient to create an appearanceof conflict of interest, R. v. Dunbar (2003) 2003 BCCA 678 , BCJ No. 2762 at paragraphs 335 to 338. [24] From Exhibit 1, the transcript of Bokyong Choi's guilty plea, I presume that he entered that plea voluntarily.

No evidence hasdisplaced that presumption. From Exhibit 3, appendix I, I find that when former defence counsel was aware of the conflict of interest,June 14th, 2012, as he told the court the next day, he withdrew as counsel of record. I do not find that former defence counsel had aconflict of interest on a balance of probabilities on May 1st, 2012. I do not find that there was an appearance of conflict of interest on abalance of probabilities on May 1st, 2012. [25] I have no evidence, other than what I have stated, that is the acknowledgement of the fact that former defence counsel wassenior and experienced.

I have no evidence on any other criteria I could consider in deciding whether or not to exercise my discretion topermit the withdrawal of Bokyong Choi's guilty plea; therefore, I must conclude that the guilty plea entered was voluntary and it wouldnot be wrong or unjust to uphold it. Bokyong Choi's application to withdraw his guilty plea is dismissed. (RULING CONCLUDED)