THE QUEEN v. FU YAN

Headnote

Article 11 Hong Kong Bill of Rights Ordinance: application to requests for Legal Aid on    appeal after a refusal by the Director of Legal Aid: construction: when heard

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. Fu Yan was convicted after trial before Duffy, J. and a jury of the following: three counts of possession of forged banknotes - counts 1, 2 and 3 - contrary to section 76(1) of the Crimes Ordinance; three counts of forgery of banknotes with intent to defraud - counts 4, 5 and 6 - contrary to section 70(1)(c) of the Crimes Ordinance; and four counts of possession of implements for forgery contrary to section 76A of the Crimes Ordinance - counts 7, 8, 9 and 10. He was sentenced to 4 years imprisonment concurrent on counts 1, 2, 3, 7, 8, 9 and 10; and 9 years imprisonment concurrent on counts 4, 5 and 6. All sentences were made to run concurrent with each other giving a totality of 9 years imprisonment.

3. On 28th October 1991, he filed an application for leave to appeal against his conviction. He applied for Legal Aid. On 27th January 1992 the Director of Legal Aid refused, on the merits, a grant of legal aid but stated that

"I am satisfied that the disposable resources of the applicant do not exceed the relevant amounts set out in section 5 of the Legal Aid Ordinance as applied by rule 4."

Fu Yan was informed of the refusal on 1st February 1992.

4. On 7th February Fu Yan wrote to the Registrar of the Supreme Court asking for the supply of the full transcript of the proceedings at trial and indicating that he wished to make an application under the Hong Kong Bill of Rights Ordinance Cap. 383 - "the Bill" - for legal assistance. He was requested to file formal affirmations relating to the two aspects which would lie for the consideration of this court: first, the merits of his application for leave to appeal and second, a statement as to his means.

5. The aspect of means can be quickly disposed of. It is clear that he does not have, as was accepted by the Director of Legal Aid, the funds with which to provide himself with private legal assistance. We are therefore here not concerned with that aspect of the matter which will have to be considered on another occasion.

In his affirmation in respect of merits he stated:

"a. I understand that my conviction is based on some inadmissible evidence being submitted to the jury.

b. I now lodge an appeal under Section 11(2)(d) of the Bill of Rights Ordinance and apply for legal aid to proceed.

c. I believe that, in the interest of justice, I should be granted the court transcript of this case and legal aid, as I definitely cannot represent myself in my appeal."

6. For completion, we would set out the initial "homemade" grounds filed with the Notice of Application for leave to appeal. These read as follows:

"1. The video was made when one was tempted, completely exhausted and misdirected. When one was so exhausted that his brain was short of oxygen, one would also stutter as if drunk. Thus, the content of the video was incorrect. For example, it was stated 6 years in the video, but 4 years in the statement. Therefore, the video could not be produced as an exhibit or used as a justification for the conviction.

2. I worked for the government through working for both informers from the government. Therefore, I should not be guilty of 'possession' and 'manufacture'. Besides, it was inappropriate to accuse me of 'lying' when I mis-spoke that one of the informers came from the Crime Investigation branch of Industry and Commerce 'Department' (sic) (under Customs and Excise Department), instead of his coming from the Crime Investigation Branch of Industry and Commerce. After all, it was a fact that they were informers and I had known their identity before I worked for them. It should not be presumed that I did not have such prior knowledge just because I had not mentioned it in the statement and the video. (In fact, it was natural not to do that because one was so stressed. Ignorant of his circumstances and confused at that time.) And it was not right, unfair and unscientific to base the conviction on the presumption. Moreover, in the statement of one of the witnesses, it was stated that before I worked for him, he had told me that he was working for C.C.B.

3. As a technician, I found it common that people might want me to alter frames of film. When I knew that they were going to commit an offence. I would refuse to join them. It shows I am a man of principle and my knowledge of the problem about Freedom and Discipline, and Freedom and Responsibility. Discipline is understood in the context of organisation whereas Responsibility in the context of morality. Discipline concerns 'What we should not do' but Responsibility 'What we should do'. As ordinary citizens, we concern more about Freedom and Responsibility. We should adopt the principle of not doing harm to other's interests. Afterwards, one of my bad friends came to know that I have a film of U.S. Banknote. He pressed me for it and I gave him. Later, he happened to give me those misprinted. (However scarce it was,) this sort of thing did happen. It was an illusion which could not be concluded as the truth. And it was an untrue and unjust conclusion that I, an alleged 'genius' in banknote forgery, used to forge banknotes 'for money'. It requires certain circumstances and conditions to commit an offence. I worked for informers from the government. Like any other technicians, I was not sociable. Neither did I have any connection in committing an offence (you may check my telephone book). All my friends were informers, so how could I commit an offence? And those bad guys, who were introduced by the informers, must be under their control. I examined the misprinted forgeries so as to give them to the informers. (As stated in the declaration of Human and Civil Rights, the definition is the right to do anything freely without jeopardizing other people's interests). The conviction passed by the judge was in need of thorough and detailed analysis (over my character, personality and the situation, etc.) It was (based on) a subjective, speculative judgment and therefore unjust and in breach of Human Rights.

4. The films of pages 1 and 2 of a passport and sears were pictures I drew and kept for the informers. I did not know what purposes they served. As I seldom traveled, I was not quite sure about their application for that purpose. The judge should not find me guilty just because I was in possession of these films which were ruled as for unlawful purpose. For instance, a knife could serve the purpose of murder. There was a knife in my home. But I could not be accused of keeping it for 'the purpose of murder'. Because I did not know how to use the knife or what sort of knife it was, how came it be kept for 'the purpose of murder'."

   This is the hearing of his application for legal assistance under the Bill and is the first of its kind to be heard. As Fu Yan is unrepresented, the court sought assistance from an amicus curiae and this has been provided to us by Mr. Macrae. Mr. S.R. Bailey appears for the Crown. Before going further it is necessary to make reference to the facts which were presented to the jury and upon which they came to their conclusion of guilt. .

7. Briefly, it was the case for the Crown that on 19th January 1990, police and immigration officers mounted a joint operation. In the course of this a search was carried out at a hut at Lot 1212 Lo Wai Village, Tsuen Wan. That search was carried out under a search warrant concerning forged papers and equipment for forgery. In the hut they found 16,802 forged United States $100 banknotes; 3,658 forged Bank of America travellers cheques in the denomination of US$500 and 1,528 forged Bank of America travellers cheques in the denomination of US$100. Also seized were implements fit for use in the forgery of banknotes, China Exit and Re-entry Permits, Hong Kong British Passports and visa and immigration control documents. The issues at trial were: was Fu Yan in possession of the items seized and was he a forger working for his own criminal benefit.

8. It was the defence, advanced in cross-examination and evidence, that he was acting on behalf of the Commercial Crime Bureau having been given the forgery equipment by two persons, named as Chan Tak and Ho Fan, both of whom were said to be working as informers for the Commercial Crime Bureau. Fu Yan gave evidence in support of his contention of lawful authorisation and in rebuttal of the presumption contained in section 27 of the Crimes Ordinance. As the trial judge put it at page 12 of his summing up:

" Now, of course, members of the jury, much in this case is not now in dispute. As I understand the position, the defendant is not denying that he had possession of these forged banknotes, nor is he denying that he had these articles which were fit to be used in forgery. What he is saying to you is, generally speaking, 'I had these and I was going to use them, the articles, and I was going to make these forgeries because the Commercial Crime Bureau wanted me to create forgeries for them.' That is his position. So as I understand, members of the jury, he is not denying that he had possession of these things, merely giving you an explanation or asking you to accept that he had a lawful excuse for his possession of them.

    Naturally, if you found the defendant was actively engaged in forgery, then you would have little difficulty in any event in concluding that he possessed the things alleged.

    Now, an important part of the evidence in this case, the evidence of the prosecution, consists of the records of interviews between the defendant and the police, both written and video. You must look at that evidence in the same way as you look at all the other evidence. You must decide how much of it you think speaks the truth, how much of it you think you can rely upon."

9. There was called in evidence by the defence a former Inspector Yip of the Commercial Crime Bureau and the alleged informer Chan Tak. Both of these men had been convicted of conspiracy in relation to forgery and were, at the time they gave their evidence, serving terms of imprisonment. Yip had told the jury that Chan Tak was his registered informer. Chan Tak said he had received a forged Bank of America travellers cheque from the defendant who wanted to know its source. This he had taken to Yip. Chan Tak went on that he had asked the defendant for information about forgery and those involved in the trade and had told him that he was helping a friend in the Commercial Crime Bureau. He said that he had asked Fu Yan to help him because he had heard that Fu Yan moved in a group of forgers. He denied asking Fu Yan to work on forged Bank of America travellers cheques or on any US$100 bills.

10. All this lay for the consideration of the jury and there was evidence that the applicant, at the time of his arrest, had made no claim to be a "worker" for the Commercial Crimes Bureau. .

Article 11 of the Bill reads as follows:

"     Rights of persons charged with or convicted of criminal offence

(1) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality -

(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

11. We are here concerned only with the emphasised portions of Article 11. Our concern in Article 11(2)(d) is with "the interests of justice".

12. We have to consider whether Article 11-(2)(d) applies to appellate procedures and, if so, do the interests of justice require that Fu Yan has legal assistance assigned to him.

13. Article 14(3)(d) of the International Covenant on Civil and political Rights - "the Covenant" - contains wording similar to that in Article 11 2(d) of the Bill; as does Article 6(3)(c) of the European Convention on Human Rights - "the Convention". Following the generality of the lines of construction of the Bill, set out in R. v. Sin Yau Ming [1992] 1 HKCLR page 127, this court may have regard to authorities from other jurisdictions which have incorporated either the Covenant or the Convention and which protect the same or similar rights. While it is not specifically spelt out in the provisions of Article 11, nevertheless, it has been accepted in those jurisdictions that Article 11(2)(d) does have application to the appellate procedure. In Artico v. Italy (1980) 3 EHRR 1, the European Court of Human Rights was considering a breach of Article 6(3)(c) of the Convention which had been referred to it by the European Human Rights Commission. Article 6(3)(c) of the Convention as far as it is material, reads:

"Everyone charged with a criminal offence has the following minimum rights:

(a) ...

(b) ...

(c)    to defend himself in person or through legal assistance of his own choosing or if he has not sufficient means to pay for legal assistance to be given it free when the interests of justice so require ..."

14. The court found that the "interests of justice" in that particular case required the provision of effective assistance on appeal to the Court of Cassation.

15. In Pakelli v. Germany (1983) 6 EHRR 1 the European Court of Human Rights again considered the provisions of Article 6(3)(c). The applicant had complained of the refusal by the German Federal Supreme Court to appoint an official defence counsel to represent him in an appeal on a point of law. It was held unanimously that there had been a breach of Article 6(3)(c). The court considered that the applicant, unrepresented, was in effect deprived of the opportunity to develop his own legal arguments on the appeal or to refute those of the public prosecutor's office. The interests of justice, therefore, required that the applicant be granted legal assistance for hearings before the Federal Supreme Court. No point was taken that the right was limited to trial proceedings.

16. In J. v. Austria 34 D & R 96 the Human Rights Commission in a decision of 15th July 1983 - the matter concerned the right of an appellant to be present at the appeal hearing - said:

"Furthermore the Commission has also recognised that although Article 6 of the Convention does not guarantee an appeal in criminal proceedings, where the opportunity to seek appeal is provided under domestic law, the guarantees of Article 6 continue to apply to the proceedings on appeal, since once an appeal is sought, the subsequent applications form part of the whole proceedings which 'determine' the criminal charge at issue."

17. It is to be noted that the Commission accepted that Article 6 of the Convention did not expressly guarantee the right to be present during the hearing of an appeal. The fairness of the appeal proceedings, despite the applicant's absence in those proceedings; was the appeal a full rehearing; and how the applicant's interests were presented and protected were all matters which the Commission bore in mind in considering whether there was a breach of Article 6.

18. It concluded at p.99

"The Commission concludes from the foregoing that there is nothing to suggest that the applicant's request to a fair determination of the criminal charge against him was prejudiced by his absence from the proceedings before the Supreme Court or that, in the light of the Court's powers and its conduct of the case, his presence was necessary for the fair and proper administration of justice."

19. We would also refer to a decision of The Alberta Court of Appeal, indexed as R. v. Robinson (1989) 73 CR (3d) 81. The Legal Aid Society of Alberta had refused legal aid to two appellants. The appellants had no means. They applied, under a domestic provision of the Canadian law, to the Court of Appeal for an order providing the assistance of counsel and the paying for appeal books. The applications were refused. The court held that neither the guarantee of fundamental justice nor the guarantee of equality before the law provided by the Canadian Charter of Rights and Freedoms - "the Charter" - entitled the applicants to the preparation of appeal books at public expense or the provision of counsel at public expense. The headnote went on:

"The Legal Aid Society of Alberta provides financial help for appeals to a needy applicant if, in its opinion, the appeal has merit or likelihood of success. This is decided by a director, who is a lawyer, with an appeal to local regional committee and a further review to an appeals committee of the board of directors. If the applicant is turned down by Legal Aid, and has insufficient resources to continue an appeal, the Criminal Code in s.684 contemplates a further application to the Court of Appeal. This provision requires the court to determine whether the interests of justice require the assignment of counsel and the provision of appeal books at public expense. In deciding the application, the court must consider the merits of the grounds of appeal, and in so doing can order a partial transcript or hear submissions from counsel who represented the applicant at trial. ... The court needs enough information to decide whether the continued denial of funding would be unjust."

20. Having said that it was not historically supportable to say that it is a principle of fundamental justice that an appellant can demand publicly funded transcripts for an appeal as of right, the headnote continues at p.82:

"Similarly, history does not confirm that the provision of counsel is necessary to a fair trial. None of ss.7, 10(b) and 11(d) of the Charter vests an accused person with a constitutional entitlement to the state provision of counsel at trial. A fortiori, there is no unqualified constitutional right to counsel for an appeal."

21. The scheme of the legislation in Hong Kong differs somewhat from that in Canada. Rule 4 sub-rule (1) paragraph (c) of the Legal Aid in Criminal Cases Rules, Cap. 221 p.D2, - "the.Rules" - provides, inter alia:

"(c) A person convicted of any offence before the High court or the District Court may be granted legal aid under these rules for any appeal to the Court of Appeal and in any proceedings preliminary or incidental thereto; ..."

This can be subject to the requirement to make contribution provided for under Part III of the rules, the limits as to means being set out in section 5 of the Legal Aid Ordinance, Cap. 91.

22. Rule 10, subject to the provisions of Rule 13 which has no application here, provides:

"... in determining an application for legal aid by an appellant the Director shall consider -

(a) all the circumstances of the case and, in particular the certificate of counsel assigned to represent him at his trial given under rule 9; and

(b) the disposable resources of the appellant,

and shall not grant the application unless he is satisfied that legal aid is desirable in the interests of justice." (Emphasis supplied)

23. Rule 12 sub-rule (1) reads:

"(1) If the Director is not satisfied that the appellant should be granted legal aid to appeal the Director shall refuse the application and shall forward to the Registrar a notice of his refusal in accordance with Form 3, Form 3A or Form 3B as the case may require."

Sub-rule(2), which is not applicable here, reads:

"(2) Where the Director is not satisfied that the disposable income or disposable capital of the appellant does not exceed the relevant amount specified in rule 4, the refusal of the application shall be final and may not be disturbed." (Emphasis supplied)

and sub-rule (3), which is, reads:

"(3) If on an appeal from any conviction order or determination in respect of or in connection with any offence, it appears to a judge or, in the case of an appeal to the Court of Appeal, to the court or a judge thereof that an appellant should be granted legal aid notwithstanding that the Director has refused his application, the judge or the Court of Appeal may, subject to paragraph (2) (above] grant him an appeal aid certificate, and the Director shall thereupon assign a solicitor and one or two counsel, one of whom may be leading counsel, or solicitor and counsel only, as he may think fit to represent the appellant."

24. We find, bearing in mind that which has been said in other jurisdictions and on full consideration of Article 11 of the Bill, that there is no absolute right to legal aid in criminal trials or, a fortiori, in appellate proceedings. Nor is there an absolute right to be provided with a full transcript at public expense. Neither public funds nor judicial resources are limitless - (cf R. v. Munroe (1990] 59 CCC (3ed) 44). What must be viewed is the interests of justice overall, with a bias towards the interests of the individual appellant. As Mr. Macrae has put it in his submissions, the case must be looked at as a whole and the most significant factor in any assessment of the interests of justice must be whether or not there are merits in the appeal.

25. We would emphasise that, as we stated at the beginning of this judgment, we are here not concerned with the issue of means. That gives rise to far more complex issues.

26. Mr. Bailey, for the Crown, has agreed with a great deal of the helpful submissions of Mr. Macrae. He adds that the Bill, by its very nature, cannot cut down the application of the already existing provisions of the Rules to which we have made reference. In our judgment what the Bill does is to broaden the construction to be placed on "the interests of justice" which this court considers when determining whether it should or should not grant legal aid on the merits after a refusal by the Director. The Director himself is enjoined to consider the interests of justice. Rule 10 say that the Director shall not grant legal aid unless he is satisfied that it is desirable in the interests of justice. Bearing in mind the preamble to the covenant, we would make use of a more purposive construction and say that legal aid shall be granted where the interests of justice so require.

27. Now turning to this instant application.

28. The applicant when asked what "inadmissible evidence" was presented at his trial informed us that the evidence against him was "indirect, supposition and not plain fact". He repeated, in effect, the defence raised by him at trial denying that he was the man behind the operation and stating that he was really helping the police. He said that, subsequent to his trial, he came to learn that there were two locations for the making of forged banknotes, and that the serial numbers on the travellers cheques which had been omitted from the ones he made had been discovered in another location.

29. We have given anxious consideration to the merits of the applicant's intended appeal. We have read the summing up. As a whole the evidence that was led by the Crown justified the conviction. The defence which was raised by the applicant and which was fully before the jury did not raise any reasonable doubt in their minds. The issue was one of fact. We do not consider that the interests of justice in this particular case requires that the applicant be given legal assistance in the prosecution of his appeal.

30. In coming to that conclusion we note the provisions of the Legal Aid Act, 1988, section 22, which lays down criteria for the grant of representation in trial proceedings. It has a limited application to appeals to the Crown Court. The factors to be taken into account by a competent authority in determining whether it is in the interest of justice that representation be granted to an accused for the purposes of proceedings to which the section applies includes the following - "the Widgery criteria":

    (b)    the determination of the case may involve consideration of a substantial question of law; ..."

this can have application where a difficult point of law or of complex court procedure lies for consideration (cf Granger ECHR 28/3/90).

31. Section 21(8), which relates directly to appeals, speaks of "there appear to be reasonable grounds".

32. These criteria are not intended to be exhaustive nor, as Mr. Macrae has submitted, is the list closed. There should, however, on an appeal be some substantial matter of law or fact capable of being argued, not merely as is so often the case, a suggestion that, because the trial judge or the jury believed the prosecution evidence rather than the defence, the conviction is unsafe.

33. In essence we find that, while Article 11 does apply to appellate proceedings, it confers no absolute right on an appellant for the grant of legal aid by this court, subsequent to a refusal by the Director. While both the Director and this court must consider the interests of justice this court will take a more liberal view of when those interests require the grant of legal assistance. In so doing it will consider the merits and whether there appears to be "reasonable grounds". Every application has to be decided on its own merits.

34. We see no reason whatsoever here to order a full transcript. The nature of the evidence is plainly apparent from the summing up as it stands and from the various statements of Fu Yan of which there are copies in the appeal bundle. We would therefore refuse that application.

35. The appeal proper will be listed before another division of this court.

36. Before leaving this matter we would indicate that in future applications for legal aid under the Bill will be heard immediately prior to the hearing of the application for leave to appeal itself. If the application is refused, then the applicant will be expected to immediately proceed with the hearing of the appeal and without an adjournment. It is to be hoped that this will avoid the delay inherent in the making of two separate applications which leads to two separate court hearings.