R. v. NG WAI MAN

IN THE COURT OF APPEAL

1995, No. 111
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. On 5 January 1995 the applicant was convicted before Deputy Judge Pang and a jury of robbery and possession of firearms at the time. He was sentenced to 16 years and 5 years consecutive for those offences.

The facts

2. The facts demonstrate a very serious robbery. A husband and wife were currency dealers. They left their flat with bags of foreign currency. As they emerged from the lift on the way out, two men, Cheung who was a witness in the case and one other, attacked them. One had an axe and the other a handgun. In the course of struggle, the husband was shot in the thigh. The bags were taken and the robbers escaped on a motorcycle.

3. The applicant's role in these offences was that he planned the attack, recruited Cheung and the other man, told them what to do, took them to the scene and provided them with a handgun. He took the proceeds and paid Cheung for his part.

The evidence

4. The evidence at trial came principally from the man Cheung, the accomplice. He said the applicant contacted him, knowing that he was a motorcycle thief, and wanted to know how long it would take to travel by motorcycle from Tuen Mun to Tsuen Wan. Later, the applicant said that he had it in mind to snatch money from a husband and wife in the money exchange business as they left their flat. The applicant pointed out the flat and asked Cheung to familiarise it himself with the area and to steal some motorcycles. Shares in the proceeds were discussed.

5. He was later asked to do a test run and to attend near the flat with his motorcycle. At that time, another man known as "Ah Tung", who was PW5, arrived. He was introduced and shown the husband emerging from the apartment. They were told to remember his face. Ah Tung in the end took no part in the offence. He gave evidence that he was a person whom the applicant tried to recruit. In due course the offence was committed with another man - not yet caught - who was introduced to Cheung.

6. On the day of the offence, the applicant picked up the two robbers and gave Cheung an axe, the other a gun. They committed the offence and afterwards met the applicant. There was a sharing out of the loot.

7. Later, Cheung was arrested. After initial denials he admitted his part in the offence and implicated the applicant as the person who had planned the whole matter.

At trial

8. The applicant was defended by counsel and solicitors. At trial his defence was conducted on the basis of demonstrating weaknesses in the prosecution case, which depended almost entirely upon the evidence of the accomplice Cheung, the witness Ah Tung whom he had tried to recruit, and evidence of threats and bribes in prison supported by another witness -Tung Wai-leung. Those were the three main witnesses in the case. At the end of the prosecution case, the applicant did not give evidence himself, relying upon the weaknesses to persuade the jury that the case was not proved against him.

9. After he had been given advice by counsel - about which there is a dispute - he signed a note which translates as follows:

"I, Ng Wai Man on 29th December 1994 in Open Court decided not to give evidence in my defence."

The application to appeal against conviction

10. He seeks leave to appeal on two grounds:

11. The first is that he was wrongly advised as to the state of evidence against him, wrongly and strongly advised not to give evidence and thereby deprived of a proper opportunity to put his defence to the jury. He says in those circumstances he did not receive a full and fair trial and that this Court ought to rule that the convictions are unsafe and unsatisfactory.

12. The applicant explains this ground in an affirmation which can be summarised in this way. During the case, he says he made it clear that he wished to give evidence in his defence but as the prosecution case unfolded, he received a note written, as we now know, by an assistant solicitor - then a trainee. It was written before the time came for the applicant to decide whether or not to give evidence and after the trainee solicitor had interviewed the applicant's wife. It was handed over to the applicant when counsel, the trainee and others were in the detention cell, seeing the applicant at lunch time during the case. It was written in Chinese and counsel has since said that he knew nothing about it.

13. The relevant parts of the note read:

"(1) The objections we are now putting forward is/are the weapon(s) of the appeal in the future. The prosecution is aware of what we are doing. They know these are sufficient grounds in the Court of Appeal. Therefore this morning, the Prosecutor applied to dismiss the jury. But no need to panic, if (the jury) is dismissed, it would be easier to fight the case. After all the Judge might not allow (the application).

(2) Accordingly, the Prosecution will be calling a number of tainted witnesses. Therefore, you need to be mentally prepared that you do not give evidence, to avoid being caught for mistakes.

(3) We will make use of cross examination on prosecution witness(es) to bring out your defence.

...

(6) The Prosecution knows that today, we are playing dirty, trying to mislead the jury to be sympathetic to you. This is a risky course to take. If the Judge do not dismiss the jury, we will then be successful."

The less we say about that last paragraph perhaps the better.

14. Turning to the important parts of this note and returning to the applicant's affirmation - he continues that having been told in the note to prepare himself mentally not to give evidence, he questioned this advice in the presence of his counsel but was told by the solicitor's clerk, Lo, that it was neither necessary nor desirable for him to give evidence. He then refers to the time when the Crown case closed. He had a short discussion in court with counsel, counsel's pupil and Lo, when he was in the dock. He says that Lo - translating counsel - said:

"Counsel is of the view that there is no need for you to give evidence because there is no evidence against you. You should be able to win the case. There is no need for you to prove your innocence. The Crown has to prove you committed the offence and no witness has said you committed the robbery."

He asked then:

"What about the 5 a.m. telephone call?"

and Lo answered:

"What can that amount to?"

This was the record of a call from the applicant's mobile phone which supported the evidence of Cheung. The pupil then said:

"The case will be worse if you give evidence. The jury did not believe the prosecution witnesses. I overheard 2 jurors saying they didn't believe CHAN Ngai Tung".

The applicant said that he accepted the advice with reluctance. He was told to sign a confirmation that he had decided not to give evidence and he did so.

15. It is on this basis it is submitted that he was wrongly deprived of the proper opportunity to put his defence before the jury.

16. Mr Macrae, who appears on his behalf and has advanced everything that could be said on his behalf, sets out five matters in support of this application:

(i) As became clear later, there were no written instructions to counsel. There is a letter before the court dated 31 January 1996 from the solicitors who defended the applicant, saying that he had been visited frequently by law clerks and by counsel in the remand centre prior to trial, and the instructions which the applicant gave changed constantly. Later he continued to give different versions of his defence verbally. The instructions were never committed to writing. The letter ends:

"There was no written original instructions to counsel ..."

So there was no proof of evidence. The instructions were changing; the case was therefore conducted on oral instructions.

(ii) The note written by the trainee solicitor handed to the applicant which indicated that the defence strategy from the outset was for the applicant not to give evidence.

(iii) Before the note, in the presence of counsel, the solicitors' clerk, Mr Lo, indicates in para.14 of his affirmation,

"At that stage, I had explained at the dockside to the Applicant Counsel's view that if the Crown's evidence was based purely on evidence from tainted witness, it may not be necessary for the Applicant to give evidence at the end of the day and it may be preferable to leave it to Counsel to highlight the weaknesses in the Crown case."

(iv) That counsel told the jury that the applicant's legal representatives had advised him not to give evidence because the Crown's evidence was insufficient. Mr Macrae refers to the submissions made by counsel to the jury in which he said:

"Let me tell you another thing. You may have wondered and asked yourself, 'Well, the defendant didn't give evidence. Why was that?' But whether a man is presumed innocent, he doesn't have to give evidence. It's only where there's sufficient evidence against him that he often elects to give evidence. He has told you through me he's not guilty and of course having assessed all the evidence in this trial, the evidence defies belief. It's unbelievable, most of it. So naturally, as it became abundantly and overwhelmingly clear throughout this trial that the prosecution evidence was so contradictory and so poor, naturally, the defendant's lawyers will have advised him, 'Well, there's insufficient evidence here for you to bother to give evidence and why should we waste everybody's time for another week or ten days in listening to further evidence when on the state of the evidence as it now exists, it is so contradictory, it is so evasive, there are so many loose ends that it really is not necessary for the defendant to give evidence."

(v) Finally, the signed note from the applicant which does not indicate that the decision was after advice.

17. Mr Macrae says that it is abundantly clear from these matters that the strategy of the defence from the outset was that the applicant was not going to give evidence. Cross-examination of the tainted witnesses was to be the defence and that when the applicant says that he was not given proper advice whether or not to give evidence, he is to be accepted.

18. Relevant parts of the applicant's affirmation are firmly refuted by Mr Lo, the clerk, and by counsel. It is sufficient to refer to what Mr Lo said. He did not recall the exact words used after the lapse of time but he remembers acting as an interpreter for counsel when advising the applicant of his right to give evidence, and of the advantages and disadvantages in doing so:

"In doing so, I recollect Mr Buchanan pointing out the strengths and weaknesses in the Crown case and explaining to him the risks of giving evidence, particularly the risk of clearing up contradictions and discrepancies in the Crown evidence. I remember interpreting Mr Buchanan's advice that the choice of whether he should give evidence was ultimately his. In this regard, it is correct I had explained to him the onus of proving the case was on the Crown and not on the Applicant to prove his innocence. At no time did either Mr Buchanan or I tell the Applicant that he should not give evidence. We only pointed out to him the pros and cons of doing so, leaving the choice entirely to him."

19. The absence of written instructions certainly supports Mr Macrae's submissions that there may not have been any real advice given about giving evidence or not giving evidence and the advantages and disadvantages of doing so. It tends to support the proposition that the applicant may have been deprived of making an informed choice as to whether an answer was necessary to the tainted witnesses' evidence and whether, if he gave evidence, it would be to his advantage or to the contrary.

20. The approach of this Court inevitably has to be as follows. There may be cases where the advice given by counsel may be so wholly insupportable that it becomes obvious that the verdict reached at the end of the trial after such advice could not possibly be safe or satisfactory. Of course, that is certainly not this case. It is easy to see that when the applicant had been giving instructions which changed constantly and had been giving different versions of his defence, that the proper advice may have been that he should not give evidence. We note that that is not the advice that counsel or the clerk says was given in this case, but it is certainly advice which could have been proper.

21. It is necessary, therefore, to see whether there is another approach which may assist. This can be found in the judgment of Rougier J in Dean Clinton [1993] 97 CrAppR 320 at 326. He says this:

"Conversely and, we stress, exceptionally where it is shown that the decision was taken either in defiance of or without proper instructions, or when all the promptings of reason and good sense pointed the other way, it may be open to an appellate Court to set aside the verdict by reason of the terms of section 2(1)(a) of the Act. It is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel's alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict according to the terms of the subsection."

The last sentence, in particular, was approved by the Privy Council in Sankar v. State of Trinidad and Tobago [1995]1 WLR 194.

22. We turn to consider the effect on this trial. Normally, when a ground of appeal such as the present is advanced, it is the practice to exhibit the original instructions to counsel in the court below. Here, there were none and there is nothing before us. What would the effect therefore have been had the applicant decided to give evidence? All we know is that he was giving instructions, which changed constantly, and giving different versions of the defence which were not committed to writing. This is not a case where the applicant appears before this Court saying "my instructions to counsel were as follows, and I wanted to give my own version of my defence to the jury. By reason of the advice that I was given I was prevented or inhibited from doing so. This is what I would have said to the jury and I was not able to do so." He has not demonstrated to this Court by these means or any other that he had a viable defence of any kind to present to the jury.

23. In these circumstances on the matters that have been put before this Court, we are unable to say that these verdicts were unsafe and unsatisfactory. On the contrary, we think the verdicts were safe and satisfactory and this ground of appeal fails.

24. By a second ground of appeal, the applicant complains of a passage in the summing-up which can be found at page 4. The judge was referring generally to the evidence but in particular to two witnesses - the witness, Chan Ngai-tung, or Ah Tung, and Tung Wai-leung. Chan was the witness who said he was invited to join in the offence by the applicant, and Tung Wai-leung spoke of bribery and threats in the detention centre. Both witnesses had been cross-examined by counsel demonstrating in one case that he was a triad member and had been convicted of serious criminal offences; and in the other case, that he was an ex police officer serving 11½ years also for serious offences. The judge directed the jury in this way:

"You will recall in his address to you Mr BUCHANAN mentioned something to the effect that some of the witnesses admitted to you that they were triad members and some had been convicted previously on various criminal offences, and because of that Mr BUCHANAN had invited you to find that they must all be lying. Members of the jury, this is an overgeneralised statement. What you should do is you must look at each witness and examine his or her evidence carefully and come to your own conclusion as to whether he or she is an accurate, truthful and reliable witness. Again the fact that you find the defendant had associated himself with criminals does not prove anything one way or another. There is simply nothing such as guilty by association."

25. Mr Macrae submits that this direction to the jury was inadequate. The jury ought to have been warned that it was dangerous to accept their evidence because of the temptation which they had to lie and the risk that they would lie. This is contrasted with the full of accomplice direction which was given later in respect of the witness Cheung.

26. With respect, there is nothing in this ground. Those witnesses were cross-examined before the jury. The jury had well in mind the nature of their backgrounds, the temptations which there must have been for them to lie for various reasons which were advanced by counsel. It was unnecessary for the judge to go further than he did. We refuse leave to appeal on that ground also.

27. In the result, this application for leave to appeal against conviction is refused.

The application to appeal against sentence

28. This applicant also seeks leave to appeal against the sentences imposed. Those sentences were 16 years for the robbery and 5 years consecutive for the possession of the firearm.

29. Mr Macrae submits that the judge in effect sentenced him twice for the same fault. He took into account in the robbery charge the fact that a gun was used and that the wife was assaulted, and that the husband was shot and injured and in the firearms offence, he was sentenced for supplying the loaded pistol which was used by the robbers, knowing that it was likely to be used in the course of the robbery with deadly effect.

30. The judge followed a decision of this Court in R v. Ng Ka-ling [1090]1 HKLR 54. He considered that it was incumbent upon him to make the sentences consecutive. As was pointed out in the later case R v. Wong Ming, Criminal Appeal No. 607 of 1994 (unreported), there is a danger in robbery where firearms are used for the indictment to be overloaded by adding the possession of the firearm as well as the robbery, and for judges to sentence convicted persons twice for the same thing. In other words, they take into account the use of the gun in the robbery and then sentence also for the possession of the firearm itself.

31. In Ng Kai-ling (supra), the indictment was obviously overloaded. In this case, however, the same does not apply. In this case it was proper, it seems to this Court, for the robbery and the firearm offence to be charged separately. The reason is that the applicant here was the planner, organiser and recruiter for the offence, who supplied the gun to those who actually carried it out. In those circumstances it was proper not only to charge the offence but also to reflect that in the sentence that was passed.

32. We turn to the length of the sentences. It is unclear from the way the judge sentenced the applicant, whether he did take into account separately the matters which he ought to have taken into account on the firearm offence. That is, that he was the person who procured and supplied the gun. So far as the sentence of 16 years imprisonment is concerned, for this armed robbery in which the husband and wife were assaulted and the husband was shot, that undoubtedly is, in the view of this Court, a proper sentence. The 5 years for the possession of the firearm, having regard to the fact that the applicant procured and supplied it, standing on its own is also a proper sentence.

33. However, when we consider the totality of the sentences, 21 years is manifestly too high. In those circumstances, we treat this hearing as the appeal, allow the appeal and substitute for the sentence of 21 years a sentence of 18 years, by making 3 years of the 5 years concurrent and 2 years consecutive to the 16 years. That is the order of the Court.