R. v. LEE HON WAH

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.30 OF 1997

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J U D G M E N T

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1. The appellant was convicted on 29^th November 1996 of one charge of blackmail. The allegation was that at Tsuen Wan Ferry Pier on 6^th April 1996, with a view to gain for himself, he made a demand of $60,000 from a young lady with menaces. The menaces were said to be that handbills including a naked photograph were to be posted if that sum of money was not paid.

2. The appellant raises two grounds of appeal. The first is that his counsel did not obey his instructions and misconstrued the evidence. The second is that the magistrate in considering the evidence did not come to the conclusion that his version of events was the truth and that there was a doubt in respect of the prosecution case. I might add that the appellant's case was to be gleaned from the case put by his counsel in as much as the appellant did not give evidence as was his right.

3. In respect of the conduct of counsel, I am referred to R. v. Cheung Wai Kwong Cri.App.No.7 of 1996 by Mr Cheung for the respondent. There, P. Chan J., having referred to a number of cases, said :

"... We accept that these are the correct principles to be applied. However, we note that it is only in wholly exceptional circumstances that the conduct of counsel can form the basis for an appeal. Each case must depend on its own facts.

We have carefully considered the written and oral submissions presented to us. In our view, this is a typical case where the applicants have no other ground of appeal except to try to put the blame on trial counsel. This is not a case where due to the flagrant incompetence or totally insupportable advice of counsel, the defence had not been put before the jury giving rise to a doubt whether the applicants had a fair trial or not."

4. I am faced, having sought an explanation from counsel in this matter, with a contradiction. The appellant having waived his right to confidentiality of instructions by claiming that they had not been followed, counsel has commented upon those instructions and the appellant claims now not to have given those instructions. In part, the instructions were not to challenge the admissibility of various cautioned statements which were, he said, voluntarily made. In one of those statements is a reference to the photographs which the appellant now claims never at any time existed. On the face of it, the appellant is caught in a contradiction and his instructions to his counsel are confirmed.

5. I have considered all that counsel has said in the light of the transcript of the trial. There is only one matter that counsel concedes could have been an error on his part and that is a misunderstanding of words as to whether or not photographs were to be included in handbills to be posted up. Notwithstanding counsel's belief that he may have misunderstood the words, I have carefully considered all that he says in his explanation and all that he said in the court below. I cannot find, in any way, that he has put the case on less than a proper professional basis and that he advanced the interest to his client in a proper and professional manner which resulted in a good and effective defence for the appellant. Add to that, the contradiction and the version now given by the appellant concerning whether or not he instructed his counsel about the photographs, I am left in no doubt that his counsel acted in the highest traditions of the Bar and no complaint can be made about his conduct. This ground of appeal must fail.

6. The second ground of appeal is that the magistrate misconstrued the evidence in that she believed the witnesses for the prosecution. This was a matter entirely within the province of the magistrate. It is not for me to retry the case on paper. I have read and considered her careful reasons. She properly sets out the evidence and properly assesses it and comes to a correct and unassailable findings. This ground must fail and the appeal against conviction is dismissed.