HKSAR v. WONG HON CHI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.105
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. This applicant was convicted after trial on one count of trafficking in dangerous drugs and was sentenced to imprisonment for three and a half years. He now seeks leave to appeal against conviction out of time. This leave was granted as he was late by only five days and he explained that was due to a misunderstanding between himself, his family and his solicitors.

2. The grounds which he raised in his initial Grounds of Appeal were firstly that he did not give evidence because his counsel had "failed to meet his request to do so". It was unclear from the way in which he phrased his written grounds whether he was saying that he gave no evidence because of a failure by his counsel to heed his instructions or because he himself had decided not to do so after having been advised by the counsel. He had a second ground which was that his legal advisors had failed to appreciate that two prisoner's property lists, which he produced at the hearing today, indicated that the handbag, in which it was said he was carrying the drugs, was seized not from his person as the police said at the time of the arrest but later from his home. He suggested that this was supported by the fact that mention of the handbag was deleted from the second prisoner's property list.

3. When the applicant first appeared on 15th August 1997 we were concerned by these allegations and we granted him legal aid.

4. Mr. Macrae appeared for him on 9th December 1997 and at that stage he stated that in the light of the reply of Mr. Cosgrove, the counsel who had appeared for the applicant at trial, he felt unable to argue the matter. However, the applicant then took up the appeal himself telling the court that a clerk had told him that he was not required to testify, as it would be difficult to convict him upon the evidence. He went on to say that that was all that was said but he added that he had told his lawyer that his landlord was prepared to testify. He denied having signed any acknowledgment that he had been advised of his right to give evidence and had elected not to do so. He again emphasized that the bag had been found in his house and not seized from his person.

5. In consequence of this, the court directed that the solicitor in charge of this matter, the solicitor's clerk and Mr. Cosgrove should appear on the resumed date to give evidence.

6. Today the applicant has given evidence in which he has said that he was advised by Mr. Cosgrove that it would be in his interest not to give evidence. He says that he did not realize that he had a right to do so but seems also to be saying that, at the end of the day, he was satisfied to accept the evidence of Mr. Cosgrove. He has said, more than once, that he had engaged counsel and had put the matter in the hands of that counsel. He went on to emphasize that he had told counsel that his principal tenant or landlord had been prepared to give evidence and he said that he had handed counsel the two prisoner's property lists which he says were indicative of the fact that the police were not telling the truth. He has had to admit under cross-examination, by Mr. Bruce S.C. for the respondent, that he was very late in making this complaint which now rests at the core of his application for leave to appeal against conviction.

7. Mr. Cosgrove gave evidence saying that he had received all of this information, that he had borne it in mind when he was conducting the case. He said that at the conclusion of the Crown evidence, he gave what he thought was the best advice that could be given which was that it would be in the applicant's interest that he did not give or call evidence but relied upon the weaknesses that he, Mr. Cosgrove, perceived to be in the prosecution case.

8. The applicant would have to establish if he were to succeed in this application that there was flagrant incompetence on the part of Mr. Cosgrove. There is also the complaint that counsel failed to make the use, which he should have of the material relating to the black bag. It is suggested that this material indicated that the bag was seized from the applicant's home and not from his person at the time of arrest. This material consisted of the two prisoner's property lists and of the evidence of the landlord. It was suggested that cross-examination should have been directed towards prosecution witnesses based upon those bits as they showed that for some reason unknown, the black bag was listed in the first prisoner's property list and was then not listed in the second prisoner's property list. It should properly have been an exhibit and not have appeared in any prisoner's property list. In the outcome, however, it was not produced as an exhibit. There may, of course, have been a convincing explanation as to these matters. However that may be, the complaint is that counsel did not make the use which he might have been expected to of this material.

9. The second matter of complaint was the failure to call the landlord who, according to the applicant, would have said that the black bag was seized from his residence. In considering the second matter, it must be borne in mind that counsel says that he was told that the landlord would be a reluctant witness.

10. No doubt use could have been made of the prisoner's property list in cross-examination and that the evidence of the landlord, had he said what the applicant indicates he would have, would have supported the defence. When considering matters such as this, sight must never be lost of the fact that it is for counsel to make tactical decisions as a trial is proceeding. He has to weigh all considerations and to decide what best use can be made of the material he has.

11. Given the evidence before us, we cannot be satisfied that the decision of the counsel not to cross-examine on the prisoner's property list and not to call the landlord could be characterized as flagrant incompetence. We bear in mind that after the judge had found that there was a case to answer the following exchange occurred:

"Mr. Cosgrove: Yes, your Honour, I've explained to the defendant his rights and he elects he will not be giving evidence and he has no witness to call.

Court: Yes, he understands those rights?

Mr. Cosgrove: Yes."

12. Mr. Cosgrove clearly defended the applicant to the best of his ability. It seems clear that Mr. Cosgrove considered that the best interests of the applicant would be served by relying upon the discrepancies in the evidence of the prosecution witnesses and that, given, as he understood, it, the landlord was reluctant to give evidence, the interests of the applicant would not be served by pursuing the matter of the black bag. We have no doubt that the applicant was perfectly well aware that he could have given evidence if he wished to. We have no doubt that Mr. Cosgrove acted professionally in advising him that he should neither give nor call evidence.

13. This application is of no merit at all and it is dismissed.