TO CHI LEUNG v. R.

1992, No. 96
(Criminal)

HEADNOTE

Conviction quashed as unsafe and unsatisfactory as a result of harm done to the accused by a failure of duty on the part of counsel for the Crown which harm counsel for the defence, failing in his duty, omitted to undo. Retrial ordered.

IN THE COURT OF APPEAL

1992, No. 96
(Criminal)

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J U D G M E N T

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Bokhary JA (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction.

2. On March 2, 1992, before Bewley J and a jury, this applicant was convicted of conspiracy to rob and possession of arms and ammunition without a licence. He drew a total of ten years' imprisonment.

3. The evidence against him consisted of admissions which the police said he had made to them voluntarily but which he said they had tortured him into signing.

4. In the course of voir dire proceedings at the end of which the judge admitted the statements, the applicant was asked in cross-examination by counsel then appearing for the Crown whether he had thought of complaining to CAPO, as the Complaints Against the Police Office is called. The applicant said that he had indeed complained to that organization. That answer was challenged at length by the cross-examiner. It was put to the applicant that he was "making up" a story of having made a complaint to CAPO. No re- examination was directed to that point by counsel then appearing for the applicant.

5. We pause here to underline the fact that neither of the counsel appearing before us appeared in the court below. Why that fact should be underlined will become apparent in due course.

6. Counsel for the Crown did not address the judge on the voir dire. Counsel for the defence did. But he said nothing at all about any complaint to CAPO. And in ruling the applicant's statements admissible, the judge said no more than that he was satisfied that they were made voluntarily.

7. The applicant did not give evidence on the general issue. Nothing more was said about CAPO, although the judge did say in his summing-up that there was no evidence that a complaint had been made as soon as one could have been made.

8. As it turns out, the applicant had indeed made a complaint to CAPO. The net result is this. Counsel for the Crown raised a matter believing it to be of materiality. And in relation to that matter, she made an unfounded allegation against the applicant. The matter could easily have been checked. But it was not. So the unfounded allegation was made and pursued. The cross-examiner, inadvertently of course, therefore deprived the applicant of such benefit as he might have derived from having it known that he had indeed made such a complaint as she seemed to suggest was material. Furthermore, and also inadvertently of course, she heaped upon him the disadvantage of an allegation that he was lying about that very matter. It put him in a worse position than if she had never raised the matter at all.

9. Counsel for the defence could have done what counsel for the Crown could also easily have done but failed to do, namely, make the most elementary investigation as to whether a complaint had or had not been made. For that matter was objectively verifiable beyond question. He, too, failed to make those inquiries. Therefore he failed to demonstrate, as he could have, the unfounded nature of the allegation made against his client.

10. Both counsel had been given an opportunity to comment on this matter. We have seen what they have said. Certainly, we have no reason to doubt that they are both generally competent. Nothing that we say pronounces upon their competence generally. But in this particular case, both have failed in their duty. And that failure has had the unfortunate and fatal result that on a material matter the judge may well have been badly misled. That could well have resulted in his ruling admissible a statement which he might otherwise not have ruled admissible. We do not say for one minute that his decision would have been different if this unfortunate failure on the part of both counsel had not taken place. But his decision might have been different.

11. In the result, the conviction, based as it is on confessions ruled admissible in such circumstances, is neither safe nor satisfactory and cannot stand. Here, the trouble sprang from a failure of duty on the part of, to begin with, counsel for the Crown. It is therefore not one of those cases in which a convicted person is trying to ride free simply on the incompetence of his own legal advisers. Those are situations which call for a particular kind of scrutiny for they raise the spectre of a very large premium on incompetence. In the present case, the irony is less acute. The failure of duty of the defence was no more than an omission to undo the harm done by the failure of duty by the Crown in the first place.

12. Mr Coghlan for the Crown indicated in the course of the argument that, in the event of the conviction being quashed, he would seek a retrial. Mr Haldane for the applicant has indicated that he would resist a retrial. We now invite counsel to address us on the question of a retrial.

[Argument on a retrial]

13. The applicant has already spent a long time in custody. Principally on that basis, Mr Haldane argues that the just course would be to refrain from ordering a retrial. That circumstance is one factor. There are others, not least of which is the seriousness of the offence here in question. The interests of justice encompasses both the particular interests of this applicant and the general interests of the public. All things considered, we are firmly of the opinion that the interests of justice require that we order a retrial; and we do so. The order therefore is that the applicant be retried for this offence.

[Bail]

14. The Crown having given this matter consideration has decided, in all the circumstances, not to oppose bail. That decision of the Crown seems to be based essentially on the fact that the applicant had been on bail pending trial and had surrendered to his bail. In seeking bail now, Mr Haldane offers to reproduce the situation pending trial by suggesting conditions similar if not identical to those which obtained before the trial. Those conditions are: (i) that there be cash bail in the sum of $10,000; (ii) that there be a cash surety also in the sum of $10,000; (iii) that the applicant surrender his travel documents to the court; (iv) that he undertakes not to leave Hong Kong pending his retrial and, pending that retrial, to live with his parents at their home in Room 1102 of Fung Chak House in Choi Wan Estate in Kowloon; and (v) that he reports to the police daily at Kwan Tong Police Station between 6:00 p.m. and 9:00 p.m. On those conditions, we admit the applicant to bail pending his retrial.

15. It remains only to express our indebtedness to counsel of both sides for their assistance.