R. v. WONG CHEUNG BUN AND OTHERS

Cr Case No.116/91

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H E A D N O T E

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CRIMINAL LAW AND PROCEDURE - LACK OF LEGAL REPRESENTATION LEADING TO THE POSSIBILITY OF AN UNFAIR TRIAL - TRIAL JUDGE'S ENTITLEMENT TO ENQUIRE AS TO SUFFICIENCY OF MEANS FOLLOWING REFUSAL OF LEGAL AID ON FINANCIAL GROUNDS - ARTICLE 11(2)(d) BILL OF RIGHTS - THE COURT'S INHERENT RIGHT TO STAY A PROSECUTION FOR ABUSE OF PROCESS - DISCUSSION OF THE CIRCUMSTANCES OF ITS EXERCISE - STAY ORDERED SO LONG AS THE ACCUSED REMAINS UNREPRESENTED.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Criminal Case No. 116 of 1991

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R U L I N G

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1. The following are the reasons for my ruling of 9th April 1992 that the prosecution of the 2nd accused be stayed.

2. Application was made on behalf of the 2nd accused, Tse Wai Kuen, for the court's intervention in the interests of his being represented at his trial. The precise nature of that intervention is itself one of the issues for decision. The accused is charged with robbery and for the purposes of this application only he is represented by Mr Matthews. The application is not opposed by the Crown.

3. The application purports to be under the Bill of Rights, and amongst several provisions discussed, Article 11(2)(d) is the most relevant. In describing the "minimum guarantees" of anyone charged with a criminal offence, the material part of subparagraph (d) includes:

" ... and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.

4. The accused applied for legal aid for his defence under the Legal Aid in Criminal Cases Rules, Cap.221. This was refused as his disposable capital exceeded the maximum under s.5 of the Legal Aid Ordinance, Cap.91, as applied by Rule 4 of the above Rules.

5. The reason for this decision was the accused's ownership in common with his brother of a village house in Sha Tin Wai, New Territories. On enquiry by the Director of Legal Aid, the Commissioner of Rating and Valuation valued this property at $1 million, giving the accused's half share a value of half that sum. The property is unencumbered.

6. The Rules for computing disposable capital in legal aid applications appear at Schedule 2 to the Legal Aid (Assessment of Resources and Contributions) Regulations,Cap.91. Rule 8(i)(b) provides that the first $300,000 of any interest in a main dwelling shall be disregarded in computing the disposable capital of an applicant. Duly disregarding this sum, the accused is left with deemed disposable capital resources of $200,000 out of his half share in the property valued at $1 million. This is well in excess of the maximum provided. The property was originally in trust for the two brothers, but I am satisfied from the documentation, including the assignment and a declaration by the trustee, that they are now entitled to dispose of it.

7. I mention all this as I wish it to be clear that the accused has properly been refused legal aid under the provisions of Caps.91 and 221. The relevance of the Bill of Rights to this application imports no implication critical of the Director of Legal Aid's decision. The Director, like the accused, is bound by the statutory provisions and may grant or withhold legal aid only pursuant to their terms. I must therefore decide if justice demands representation, and if so has the accused a right to funded representaion despite the Director's correct decision under the legislation.

8. It is desirable at the outset to avoid the use of the phrase "legal aid" in considering whatever remedy may be available to the accused. The term implies that the issue is necessarily within the structure of Caps.91 and 221. That is not the case and, save for judicial review, the decision of the Director on disposable resources is anyway final under Rule 8(2) of the Legal Aid in Criminal Cases Rules. Such remedy as the accused may have before this court will therefore be outside the statutory legal aid provisions.

9. I have been addressed at length on the need for the accused to be represented in facing trial on a serious charge. It has also been argued that he is of low intellect and suffered minor brain damage as a child. The question of whether or not justice requires the accused to be represented is however merely preliminary to the more fundamental enquiry. This I perceive to relate to such power as the court may have to intervene, and how that power should be exercised if it exists.

10. Mr Matthews has usefully provided the Canadian case of R. v. Rowbotham [1988] 41 CCC (3d) 1. This is a decision of the Ontario Court of Appeal setting aside a conviction at first instance on a finding that an unrepresented accused did not have a fair trial. At the trial the judge had refused an application that he appoint counsel for the accused, following an administrative decision that she was not entitled to legal aid on grounds of income. The situation has obvious similarities to the present case.

11. However, a significant distinction lies in the finality under our provisions of the Director's refusal of legal aid on means. This appears in Rule 8(2) of the Legal Aid in Criminal Cases Rules, Cap.221. Its effect is that the Director's decision on means may not be challenged in the courts otherwise than by way of judicial review. For this reason I lack the power to order the award of funded legal representation in this case.

12. Whilst the court may not positively order funded legal representation, it nonetheless has inherent power to protect its process from abuse. This principle may, in exceptional circumstances, call for the stay of a prosecution. The issue was discussed in a different context by the House of Lords in DPP v. Humphreys [1976] 2 ALL ER 497. At page 526 Lord Salmon said:-

"It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. Fortunately, such prosecutions are hardly ever brought but the power of the court to prevent them is, in my view, of great constitutional importance and should be jealously preserved."

13. It is apparent from these words that this inherent power is to be used only rarely and in circumstances where it is clearly appropriate. The principle seems to be directed against the institution of a prosecution which is oppressive in itself, and there is no suggestion that such is the case here. I do not however find difficulty in applying the principle to a prosecution which may have become oppressive through circumstances extrinsic to the case and through no fault of the Crown.

14. The inherent power to stay a prosecution does not of course depend on the Bill of Rights. What however Article 11(2)(d) has achieved is to declare in statutory terms a particular situation under which an infringement of rights may provoke an appropriate response from the court. The appropriate response is discussed in s.6 of the Bill of Rights Ordinance, permitting the court, in proceedings in which a violation or threatened violation of the Bill of Rights is relevant, to:

"... grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances."

15. So the court's response is confined to the exercise of such powers as it may already have, and new powers are not created. Of the powers the court already has, the inherent power to stay proceedings to prevent likely abuse seems the only one appropriate.

16. None of this is however new, save insofar as the declaration of rights in statutory form brings existing remedies to the attention of counsel. I have no doubt that pre-Bill of Rights a court properly directing itself could entertain a similar application and similarly consider exercising its inherent power to stay the prosecution. The rights to legal representation and to a fair trial go back a long way, and to that extent Article 11(2)(d) is declaratory rather than innovative legislation. Its value as declaratory legislation is of course that it acknowledges and publicizes fundamental rights of which some at least may otherwise have remained unaware.

17. If I am indeed to consider staying these proceedings against the accused for his lack of representation, I should formulate the basis on which the decision may be reached.The following questions are relevant -

1. Does he wish to be represented.

2. If so, does his fair trial require that he be represented.

3. If so, is he realistically able to pay for that representation.

4. If not, what, if any, is the relevance of the finality under Rule 8(2) of the Director of Legal Aid's decision.

18. To answer the first three questions I found it necessary to adopt the procedure of examining the accused under affirmation. His sister was in court and she was also examined. The accused wished to be represented, and it was apparent that he was not of the intellect or education to conduct his own defence. He gave evidence of a mental illness, and his sister also testified that he went to a school for mentally retarded children. She said he was of low intelligence and that questions sometimes had to be repeated again and again to make him understand. The accused faces a charge of robbery, estimated for some 30 days trial, which is said to have occurred in aggravating circumstances. He is also likely to dispute the admissibility of certain prosecution evidence. Given all these factors I have little doubt that he would be unable to enjoy a fair trial if unrepresented.

19. The third question I have posed relates to the accused's ability to pay for representation and both he and his sister were questioned on this point also. The house constituting the disposable capital is occupied by the accused, his grandmother of 70, his elder brother, his sister, her husband and their 4-year old child. The accused said that his sister enquired unsuccessfully as to a mortgage when he was first arrested. Clarifying this, the sister said she approached both the Hang Seng Bank and the Hong Kong Bank for a mortgage. The former would not accept a mortgage on a village house and the latter would not accept the accused and his brother as having the means to meet repayments.

20. Questioned on sale of the property both witnesses said there were restrictions requiring them to advertise a sale in the village and preventing a sale if anyone objected. This evidence was unsubstantiated but undisputed. The accused said the family would have nowhere else to live if the house were sold and the sister said they would have to rent, which would be beyond their means. The accused said he was a casual worker and was not always employed. He claimed to have earned around $1,000 per month on average over the last 6 months.

21. It is obvious that an accused who can afford representation will not be permitted public funding whilst declining to use personal funds. This is the reason for the means test under the legal aid provisions and it is also the issue in this application. There is however the added factor here that in accepting that the accused had insufficient means I would be reaching a conclusion different from that of the Director of Legal Aid. Nonetheless, answering the third question I have posed I conclude that the accused cannot realistically pay for his own representation. I am satisfied that reasonable but unsuccessful efforts have been made to raise a mortgage on the property. I am also satisfied from the evidence of the witnesses as to the nature of the property and the family circumstances that sale is not a practical possibility.

22. The Ontario Court of Appeal in R. v. Rowbotham was considering the rights of an accused under Article 14 3(d) of the International Convention on Civil and Political Rights, to which Canada is a signatory. This provision was no doubt the inspiration for Article 11(2)(d) of our own Bill of Rights, for they are in identical terms. The court also considered ss.7, 10(b) and 11(d) of the Canadian Charter of Rights and Freedoms, relating respectively to the rights to instruct counsel, to liberty and security, and to a fair and public hearing. I note that the provision in our Article 11(2)(d) for legal representation without payment when appropriate, is absent from the Canadian Charter. To that extent our own legislation is more explicit.

23. On the basis of these various provisions the Canadian Court considered the position of the appellant facing a trial lasting 12 months and a refusal of legal aid on income. It concluded, as I have, that representation was necessary to ensure a fair trial and turned to the powers of a trial judge in those circumstances. The issue before the appellate court was the fairness of the trial which had resulted in conviction, and in setting aside the conviction the court said this at page 69:-

"In our view, a trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided. As stated above, the finding of legal aid officials that an accused has the means to employ counsel is entitled to the greatest respect. Nevertheless there may be rare circumstances in which legal aid is denied but the trial judge, after the examination of the means of the accused, is satisfied that the accused, because of the length and complexity of the proceedings or for other reasons, cannot afford to retain counsel to the extent necessary to ensure a fair trial. In those circumstances, even before the advent of the Charter, the trial judge had the power to stay proceedings until counsel for the accused was provided."

24. This view departed from that of the trial judge who concluded that he should not substitute his own opinion unless he found the legal aid officer's decision to be perverse. The learned trial judge was therefore adopting an approach more suitable to judicial review and was apparently considering the position from within the structure of the legal aid provisions. He was explicitly considering whether or not to order a legal aid certificate to issue.

25. As I see it, and as I perceive the approach of the Canadian appellate court, it is not from within the legal aid provisions that the trial judge makes his decision. He makes his own enquiry as to the requirement for representation, both as to the accused wanting it and as to ensuring a fair trial. He similarly makes his own enquiry as to the accused's ability to pay for representation. In so doing, as the Canadian court emphasized, he pays the greatest respect to the finding of the legal aid officer, but he makes his own decision. In exceptional cases his own enquiry on means may lead him to a different conclusion. He may then exercise the court's inherent power to stay proceedings so long as the accused remains unrepresented.

26. This leads to the fourth question posed, as to the relevance of the finality of the Director's refusal of legal aid on means under Rule 8(2). This finality however only obtains within the statutory provisions governing legal aid applications. In other words, the trial judge cannot substitute his own opinion for that of the Director, as he may under Rule 8(3) when considering an application refused for reasons other than means. The trial judge in the Canadian case, could not have been faced with an equivalent rule to our Rule 8(2). If he had been, he would not have been at liberty even to contemplate substituting his own opinion in granting a certificate.

27. The correct approach amounts to an enquiry by the judge as to the need for representation and as to sufficiency of means. The enquiry is not within the statutory legal aid provisions and the finality of the Director's decision within that framework is therefore irrelevant. The enquiry is directed to the issue of abuse of process to which the right to representation and sufficiency of means are germane. A decision on means differing from that of the Director will have no significance beyond the facts of the case and will certainly not repeal any statutory legal aid provisions. In the great majority of cases the enquiry would result in a conclusion echoing that of the Director in refusing legal aid. However, unusually it may not.

28. The reason the trial judge may reach a different conclusion from the Director is precisely because his own enquiry is not within the legal aid regulations. The Rules for computing disposable assets in schedule 2 to the Legal Aid (Assessment of Resources and Contributions) Regulations, Cap.91, are detailed and precise. A legal aid counsel applying them as an administrative exercise is dealing with government funds for which his department is accountable. He must apply the financial limits of the Regulations strictly unless their context allows him flexibility. For that ' reason, in considering "disposable capital" in a legal aid application he correctly interprets the phrase in the sense of "capable of valid disposal to another party". An asset such as a house is disposable in that sense if it is vested and unencumbered in the name of an applicant. The applicant can ostensibly sell it or mortgage it and raise funds for his representation.

29. The trial judge, however, is entitled to pursue the realities in enquiring whether or not the equity in the asset is truly available to the accused for his representation. Paying the greatest respect to the Director's findings, he may differ from them because his criteria are wider ranging. The judge is not however at large to indulge whatever sympathy he may feel for an accused facing trial in financial difficulties. His approach may be more flexible, but his enquiry is strictly within the area of sufficiency of means to secure the legal representation he finds necessary in the interests of justice.

30. On the facts of this accused's situation I find that he requires legal representation for a fair trial and that he has insufficient means to pay for that representation. Because his trial under these circumstances would amount to an abuse of process I have ordered that the prosecution be stayed.