THE QUEEN v. WONG HUNG FUNG

HEADNOTE

Magistrate Appeal - trial by Magistrate - solicitor advocate ignoring appellant's clear instructions on two vital facts - concession made without instructions - appeal allowed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 772 OF 1990

___________

JUDGMENT

___________

1. This is an appeal against conviction on the 3rd May 1990 of an offence of aiding and abetting an illegal immigrant to remain in Hong Kong. The appellant was sentenced to six months imprisonment suspended for 12 months, was fined $2,500 and ordered to pay costs in the sum of $2,500.

2. This case is curious in two ways. The first is based upon an alleged failure by the solicitor then acting on behalf of the appellant to put his case properly and the second results from the effect of fresh evidence which I allow to be adduced. On the first point, it is alleged that the solicitor then acting on behalf of the appellant failed to put to the illegal immigrant who gave evidence against the appellant the very fact that the appellant denied that he ever knew this illegal immigrant. Further, the same solicitor did not make any play of the fact that it was the appellant's instruction to him that he only started business at these particular premises in October 1989 and thus the illegal immigrant must have been lying when he said the appellant gave him this address some time before.

3. Now there is a statement that was made by the appellant and there is no doubt on the evidence that the solicitor knew what was contained in that statement. I say this because quite properly those now representing the appellant wrote to the solicitor concerned (the name of the firm was Paul Kwong & Co. and the gentleman who handled the matter in court was Mr. Paul Kwong) on the 18th July 1990, saying they were acting on this appeal and they sent a copy of an affirmation which the appellant had made, and also the appellant's grounds of appeal and additional grounds of appeal. They asked for Mr. Kwong's comments.

4. On 24th July 1990, Mr. Kwong's firm replied that it would be necessary to talk to Mr. Brian de Silva for his recollection of events. I do not know whether Mr. de Silva was a clerk of some sort. It looks like he was because he was present in court when Mr. Kwong conducted this defence. On 16th August 1990, no reply having been received, the solicitor again wrote to Mr. Paul Kwong's firm and asked to hear from him. On 20th August 1990, Mr. Kwong replied that Mr. de Silva was in the states and therefore could not respond fully to the contents of the affirmation. That in itself is a very surprising statement, bearing in mind that it was Mr. Paul Kwong himself who had the conduct of the defence of  this appellant in the magistrate's court. This letter goes on to state :

"Our instructions was the contents of the defendant's own statement given to the Police on 1st April 1990. At the end of the Crown's case, we advised the defendant that there was no or insufficient evidence on criminal intent and accordingly advised the defendant not to testify. We have no idea when Mr. de Silva comes back to Hong Kong, if he does, we ask him to comment." (sic.)

5. On the 15th October 1990, the solicitors for the appellant, not giving up, wrote again saying "Have you heard from Mr. de silva? The appeal has been scheduled for the 22nd November we will be obliged if you will respond". All that Mr. Kwong does on the 19th October is to inform them that Mr. de Silva left his employment some months ago, that his present whereabouts were unknown but Mr. Kwong was kind enough to give Mr. de Silva's last known pager number.

6. So it can be seen that Mr. kwong was asked time and tim again to comment on what was being said and all he said effectively was he relied upon the statement which had been made by the appellant.   It is quite clear that in this statement which has been translated, the appellant said "In fact I do not know Cheng Siu To. I let the staff to employ workers. Usually the staff in general would not know Cheng Siu To". That was as clear as possible an instruction, one would have thought, that the appellant was saying he did not know the main witness against him who alleged to, the contrary. We know Mr. Kwong relied upon this statement because he said so. It is quite extraordinary to my mind that when one looks at the transcript as to what happened in the magistrate's court, we find that the illegal immigrant gives evidence and he is asked a number of questions by Mr. Kwong who is defending this appellant. The illegal immigrant says he arrived in February, he sneaked in and he had no Hong Kong identity card. He then adds this : "I went by taxi to a particular building, I asked the boss to put me up. I came to know the boss several years ago when the boss went to its native village, the boss and I are friends. I have known him for-several years. I can recognise the boss. He is in court. He is the defendant". So this witness identified the defendant as the boss who put him up. He added that he had been given this address some several years ago by this very appellant.

7. It is now necessary to look at the cross-examination and although there were a number of questions asked by Mr. Kwong, at no stage does Mr. Kwong on behalf of the appellant, put to this illegal immigrant what is in effect the appellant's case as stated in the statement, namely that he never met this man at all.

8. Matters get worse because when one comes to look at the closing submission, Mr. Kwong seizes on the question of mens rea and he said this,: "not disputed defendant has done acts as follows :- (1) giving him access to the premises. (2) lending him $1,500 to buy food. That is all - those acts were prepared by clearest possible indication by defendant that there was to be no employment. I would submit on humanitarian grounds." So he has gone against his clients' clear instructions contained in this statement upon which he relied, namely that his client was saying that he did not know this man.  He then went on to submit as follows:

"look at the motive of the two acts done by defendant in the light of what happened after PW1 arrived in Hong Kong - was on humanitarian grounds. He did not aid and abet about PW1 being in Hong Kong. The ferry company had transported PW1 from Cheung Chau to Hong Kong - likewise the taxi driver. These did not amount to aiding and abetting. The criminal intent was not present in this case it is open to doubt as to his intent."

9. In the light of these submissions, it is not surprising that the learned magistrate found that the appellant and the illegal immigrant knew each other from China. He found as indeed had been submitted that the appellant had provided the immigrant with some canned food and even lent him $1,500. The learned magistrate concluded that this was the clearest case of aiding and abetting a person unlawfully in Hong Kong to remain.

10. An affirmation of the appellant was placed before me and I granted leave for it to be adduced. In this affirmation the appellant says that he only met Mr. Kwong when he got to court because Mr. de Silva had been an intermediary who had dealt with the financial side of the representation. However, he was introduced to Mr. Kwong and both Mr. Kwong and Mr. de Silva were in court during the hearing. At one stage, the appellant says (and I have no reason to disbelieve him on this) that he told Mr. de Silva in a low voice that the illegal immigrant was lying because he had not started his business at the premises in question until October and although Mr. de Silva spoke to Mr. Kwong about this during the course of the hearing, nothing further was done about it during the course of the hearing and the point was never taken.

11. I accept that one has to be very careful in accepting what an appellant says when he is in a position such as this but he seems absolutely right in relation to the first point, namely that he had given instructions that he did not know the illegal immigrant and I thus have no reason to believe that he did not say the same thing in relation to the time when his business started.

12. It seems to me that on this basis alone, one has an extremely unsatisfactory state of affairs. It has been said by various courts from time to time that the incompetence or negligence or complete breach of contract on the part of an advocate will not usually amount to a ground of appeal. The courts, quite rightly, in my judgment, take a very strict position about this and the Court of Appeal in Hong Kong in 1989 said that except in the case of flagrantly incompetent advocacy, the court will not set aside the conviction on the ground that counsel has made a decision or pursued a course of action or conduct at the trial which later appeared to be mistaken or unwise even if the decision or course of conduct was contrary to the accused's wishes.

13. Now, in this case, I cannot understand why the solicitor acting for this appellant did not challenge head-on the evidence of the illegal immigrant that he knew the appellant or why he did not challenge head-on the dates because if it was right that the appellant aid not start business at these premises until October this was a very important point to be made. one is loath to criticize anybody who is appearing as an advocate because everybody has different ways of doing these things. However, the solicitor acting for the appellant in this appeal has in my judgment given Mr. Kwong every opportunity to explain what happened so that I could have the full position before me but all Mr. Kwong has done is to say that as far as his instructions are concerned, he relied upon what was said to the Police. In that statement, it is perfectly plain that this appellant was saying he did not know this illegal immigrant.

14. It seems to me that this was advocacy which ran quite contrary to the clear instructions which were given by this appellant and by ignoring these instructions on the most crucial posit on the case I can only characterize it as a flagrant breach of instructions and one which, in the circumstances of this case, comes well within the very high threshold necessary to allow an appeal on the basis of what was or was not done by an advocate in court. I feel very unhappy about this conviction because it does not seem to me that this appellant's case, whether it was right or whether it was wrong, was properly put before the magistrate and on that basis, if this conviction is allowed to remain, the appellant will in my judgment, justifiably have a burning sense of grievance and I therefore propose to allow this appeal on this ground. In normal circumstances, I would have ordered a re-trial but because the illegal immigrant has gone back to China, it is not possible for the matter to be re-hearts.

15. There was an application made to me that I should allow to be adduced some fresh evidence. I acceded to that submission and I allowed fresh evidence to be adduced and a witness was called who was the brother of the illegal immigrant concerned. His name was Cheng Shi Fai and he made an affirmation originally in which he confirmed that he had been duly warned that he might be prosecuted for the offence of aiding and abetting an illegal immigrant to remain in Hong Kong and the consequences which might include a term of imprisonment. During the course of Mr. Cheng's evidence, Mr. Sham quite properly reminded me that I should give Mr. Cheng a further warning against self-incrimination which I did and he thereafter continued to answer questions.

16. The only aspect of his evidence that did not tie in was that in his affidavit he said : "he met his brother in February" and in the witness' box he said : "it was April". Apart from that he gave evidence in a fairly straightforward way and having given the matter very careful consideration it does seem to me that his evidence was credible. He had a brother who found himself in Hong Kong illegally and quite naturally he wanted to help. He said that he had the keys to a place where he worked and he provided access to his brother. I cannot find any reason why his evidence is not credible. It seems to me that if he had given evidence in the court below, it would have had an effect upon the result of this case. However, I need not go into this in any great detail because it seems to me that this appeal must be allowed on the first point, namely that the appellant's case in two material particulars was not put to the learned magistrate and on that basis I allow this appeal.