HKSAR v. WONG HEI TUNG

  HCMA396/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 396 OF 2008

(ON APPEAL FROM ESCC 5319 OF 2007)

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J U D G M E N T

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1. The appellant appeals against her conviction at Eastern Magistracy of the offence of theft and the sentence of detention in a rehabilitation centre which the magistrate imposed upon her as a result of that conviction.

2. The charge alleged that she had stolen a wallet containing $2,060 in cash and I.D., A.T.M. and Octopus cards and other documents belonging to Miss Lee Ka Yan (PW1) at the junction of Percival Street and Jaffe Road on 22 October 2007.

3. The prosecution case depended on the evidence of Lee Ka Yan and her boyfriend, Mr Wong Wai Man (PW2) and an independent witness, Mr Ho Kam Wah (PW3) who was standing on the pavement in the vicinity at the material time.

4. Miss Lee and Mr Wong were employees of a cyber bar.  It was not disputed that the appellant had once been a regular customer at the cyber bar and that Miss Lee had heard that, at least at one stage, the appellant and her boyfriend had owed money to the cyber bar. 

5. The evidence of Miss Lee and Mr Wong was that at about 2:00 pm. on the day in question they were crossing Percival Street at its junction with Jaffe Road in the company of another colleague named Jack.  Miss Lee said she was carrying her handbag over her right shoulder.  It was unzipped as she had just taken out a cigarette.  Her boyfriend was walking to her left.  When they reached the safety island she noticed the appellant and her boyfriend on the opposite side of the road facing them.  They crossed the road towards the appellant and her boyfriend while the appellant and her boyfriend walked towards them.  The appellant passed her on her right hand side.  As she did so Miss Lee felt her bag move.  She checked it and found her wallet missing.  She turned and saw the appellant and her boyfriend starting to run.  They then split up and ran in different directions.  Mr Wong (PW2) and Jack chased the boyfriend while Miss Lee (PW1) chased the appellant.  Miss Lee managed to grab hold of the bag the appellant was carrying.  There was then a struggle between the two women.  After a short while Mr Wong (PW2) and Jack arrived.  Mr Wong asked the appellant to return the wallet but the appellant said “no”.  When Mr Wong was about to make a call to the police the appellant had taken Miss Lee’s wallet from her own bag and thrown it into a ditch by the road.  Miss Lee picked it up and found nothing missing.  

6. Mr Wong broadly confirmed the account of Miss Lee.  He confirmed that after Miss Lee had found that her wallet was missing they had turned and shouted at the appellant and her boyfriend who had then fled.  He and Jack had tried to catch hold of her boyfriend but he had been able to break free.  He returned to see Miss Lee being hit by the appellant.  He had asked the appellant to take out the wallet but she had said nothing and had not done so.  As he was about to call the police the appellant had taken Miss Lee’s wallet from her bag and thrown it on the roadside.  

7. The defence case that was put to Miss Lee and Mr Wong in cross-examination was that it was a frame up.  It was suggested that Mr Wong had chased the appellant and her boyfriend on that day because of the debt the appellant and her boyfriend owed to the cyber café, and that that was the reason the appellant and her boyfriend had run in different directions.  It was suggested that Mr Wong had returned to where the appellant was with Miss Lee and had put the wallet into the appellant’s handbag to frame her.  Both prosecution witnesses denied this suggestion. 

8. The independent witness, Mr Ho Kam Wah said that his attention was drawn to a girl who was chasing another girl and at the same time telling the other girl not to go away and shouting “snatching”.  There had been a struggle between the two girls.  Friends of the victim had returned and separated the two girls.  One of these friends who was Mr Wong (PW2) had told the girl who was accused of stealing to return the wallet.  He had asked to look into her handbag and said that if she did not let him do so he would call the police.  While waiting for the arrival of the police he had seen a wallet being thrown from the position where the girl accused of stealing was standing.  He had not seen anyone put anything into the appellant’s handbag. 

9. After the police arrived the appellant was cautioned and had said, “Ah Sir, I did not steal.  It was nothing to do with me.  I did not steal.” 

10. At the close of the prosecution case after a short adjournment the magistrate was told that the appellant had elected not to give evidence. 

11. The magistrate understandably took the view that this was a case that turned on the credibility of the three prosecution witnesses.  She recognised that there were some discrepancies in their accounts but found that they were minor and did not cause her to doubt their veracity as witnesses.  She found them honest and credible witnesses.  She noted that the defence case put to the witnesses was that the suggestion to frame the appellant for stealing came from Mr Wong after he had joined the appellant and Miss Lee outside Elizabeth House, yet the evidence of Mr Ho, the independent witness, was that Miss Lee had already been shouting “snatching” when she was first chasing the appellant. 

12. She found that the prosecution had proved the charge of theft against the appellant beyond reasonable doubt and convicted the appellant. 

Appeal against conviction

13. In the appeal against conviction no criticism is made of the magistrate.

14. The principle ground of appeal is that the appellant was wrongly advised by her counsel who was instructed by the Duty Lawyer Scheme that there was no need for her to testify or call evidence, such advice in the circumstance amounting to “incompetence of counsel”.

15. It is important for this court to bear in mind in appeals of this sort that counsel has a duty in advising his client to give him or her the benefit of his best professional judgment, in strong terms if necessary, and the court should be slow to criticise such advice which may involve the balancing of a number of different considerations and fine judgment.  It also has to be borne in mind that although the ground of appeal may be categorised as “incompetence of counsel”, the crucial question for the court, if it finds error by counsel, is not the degree of blameworthiness of counsel but the effect of such error.  Did the appellant receive less than a fair trial as a result of the conduct of his or her counsel?

16. In her affidavit in support of her appeal, the appellant stated that in a pre-trial conference she had told her counsel that she wanted to testify at the trial in support of her defence that she had been framed by Miss Lee and Mr Wong.  He had told her that if after the prosecution witnesses had testified they were “certain of success” the appellant should not give evidence to avoid making mistakes.

17. She said that after the conclusion of the prosecution case she had spoken to her counsel in the presence of her mother.  Counsel had advised her that she was certain to win the case, that he had demolished the evidence of the prosecution witnesses and that they would not be believed by the magistrate.  He had told her that how the wallet was put into her bag was not important as the magistrate would not believe that in walking past Miss Lee the appellant would have been able to steal the wallet.  He told her not to give evidence to avoid making mistakes.  He had not informed her of the consequences of not giving evidence.  She was only asked to sign a document after her conviction. 

18. The appellant’s mother swore an affidavit.  She confirmed that at the pre-trial conference her daughter had said that she wanted to give evidence as she had been framed.  On her account, counsel had advised them that it was a trivial case and that because of the grudges held by the prosecution witnesses the magistrate would not believe them.

19. Her evidence as to the advice given by counsel after the conclusion of the prosecution case was rather different to that of the appellant.  She did not confirm the appellant’s account that counsel had expressly told her not to give evidence but she did say that counsel had said that the impact of the appellant not giving evidence would not be significant and had suggested that nervousness on the part of the appellant might lead the magistrate to doubt her evidence. 

20. Counsel had however said that there was a good chance of success without the appellant giving evidence and on that basis the appellant had decided not to give evidence.  He had not advised her of the consequences of not giving evidence.

21. Despite the differences in their accounts, what is common to both is that the appellant had informed the counsel that she wanted to give evidence, but that after the conclusion of the prosecution case, counsel had at the very least taken an optimistic view of the appellant’s chances of success if she did not give evidence, had emphasized the danger of giving evidence and had not advised her of the consequences of not giving evidence.

22. Defence counsel at trial filed two affirmations in response and was cross-examined before me.  He did not dispute that he had not asked the appellant to sign the proforma confirmation of her decision not to give evidence until after her conviction.  I have no reason to doubt his veracity and I accepted his evidence where it conflicted with that of the appellant.  I have no doubt that he did leave the ultimate decision as to whether to give evidence to the appellant and that he did not expressly advise her that there was no need for her to give evidence.

23. There were however two aspects of the advice that he gave the appellant that in conjunction caused me concern. 

24. He accepted that it was his view at the close of the prosecution case that the prosecution case was very weak and that it had not been proved beyond a reasonable doubt that the appellant had committed the theft.  In his oral evidence counsel testified that he had advised the appellant of his assessment of the prosecution case but had not gone through with her the reasons why he thought that the prosecution case was so weak.  He said he could not recollect whether he had told her that in his view the prosecution had not proved its case beyond a reasonable doubt.  In the light of the appellant’s affirmation I think it likely that he did. 

25. In his evidence before me he explained to me what had led him to the conclusion that the prosecution case was so weak and in particular why he felt that the prosecution witnesses were discredited.  I did not have the opportunity of seeing the witnesses give evidence but have seen the transcript of their evidence.  Without going into the specific matters referred to by counsel, I find that counsel’s view of the weaknesses of the prosecution witnesses’ evidence and what view the magistrate would take of prosecution witnesses was being highly optimistic. 

26. Counsel himself conceded that his submission to the magistrate about the difficulty that someone in the appellant’s position would have had in reaching into Miss Lee’s handbag was “not a necessarily strong point”.  The discrepancies in and between the evidence of the prosecution witnesses to which he referred were not so significant as to be inconsistent with them being witnesses of truth.  It was not surprising that the magistrate should have said of the prosecution witnesses that while there were some discrepancies in their accounts they were minor and did not cause her to doubt their veracity as witnesses. 

27. In my view a much more realistic assessment of the evidence called by the prosecution would have been that there was a strong likelihood that the magistrate would accept it unless the appellant herself gave evidence that she had been framed up. 

28. I consider that counsel’s mistaken advice as to the weakness of the prosecution case may well have led the appellant to believe that it was not necessary to give evidence, indeed that it might be dangerous to do so because she would be exposed to cross-examination and might make mistakes.

29. Coupled with this factor is counsel’s admission that although he told the appellant that if she did not give evidence the magistrate would not be able to assess her version (which had consisted of a bare denial of theft when cautioned), he did not believe that he had expressly told her that in view of the prosecution witnesses’ denial of the allegation of frame up there would be no evidence of frame up before the court unless she herself gave evidence.  I consider that in the circumstances of this case where the appellant was alleging a frame up, she should have been expressly informed of this fact.  Unless she was expressly informed of this fact, she might have been left with the impression that the putting of an allegation of frame up to the prosecution witnesses meant that there was evidence of it for the court to consider.

30. In the particular circumstances of this case, I am satisfied by reason of the matters to which I have referred that the appellant may have received less than a fair trial and lost the chance of acquittal. 

31. I accordingly allow her appeal against conviction.