THE QUEEN v. YU FUNG HEI

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J U D G M E N T

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Kempster, JA (giving the Judgment of the Court)

1. On 15 December 1988 on the verdict of a jury Yu Fung-hei was convicted by Bewley J of the possession of a quantity of dangerous drugs for the purpose of unlawful trafficking. Against that conviction he seeks leave to appeal on grounds which read:-

"1.    That by virtue of negligence or a gross error of professional judgment on the part of counsel who represented the appellant at his trial, the appellant's defence was not 'properly put to the jury and in particular the appellant's allegations in relation to the cautioned statement were not raised before the jury contrary to the appellant's explicit instructions to counsel.

2.    In the premises there is a grave risk that a substantial miscarriage of justice has occurred and the conviction is unsafe and unsatisfactory.

3.    In the premises the appellant seeks an order that the conviction be quashed and a retrial ordered."

2. These grounds are supported by affidavit and affirmations made by the applicant, by Mr Chan who was the clerk instructed on behalf of the Legal Aid Department to arrange his defence, and by Mrs Strawbridge of the same department as well as by exhibited documents.

3. When the application came before this court on 1 September and such evidence was put before us we adjourned the hearing so that the barrister in question might be afforded an opportunity of reading the affidavit affirmations and exhibits and, if he thought fit of filing evidence. He has been sent copies of the documents but makes no observation, by affidavit or otherwise to supplement the terms of a letter, being one of the exhibits, which he had written to Mrs Strawbridge on 3 April 1989. The material parts read: -

"As instructed I did challenge the admissibility of the defendant's cautioned statement before Bewley J, Once the admissibility of the cautioned statement had been ruled in by the learned judge with respect, I could not challenge it even if I wanted to the admissibility of the same cautioned statement once again before the jury. ...

As the case unfolded I thought to challenge the police officer in front of the jury was not a prudent way of conducting the case as parts of the statement contained exculpatory remarks by the defendant.

4. We admit the evidence filed in support of the application pursuant to s 83(i)(c) the Criminal Procedure Ordinance (Cap 221) and on the undertaking of the applicant, by his solicitors, to file a further affidavit exhibiting the correspondence which has passed between the Legal Aid Department and the barrister since the adjournment. The evidence shows that the applicant, having been granted legal aid, was interviewed by Mr Chan at Lai Chi Kok Reception Centre on 19 November 1988 where he gave a statement. That statement was included in Counsel's brief.

5. At no stage, including the conference held on 6 December and the currency of the trial, did the applicant, orally or otherwise, instruct counsel to conduct his defence otherwise than on the basis of that written statement by which he protested his innocence of the charge brought against him and asserted that he had signed the two cautioned statements alleged to have been made by him on 3 June 1988 without knowlege of their contents and, in relation to the particular statement which purported to incriminate him, that he had done so after being subjected to violence. The nature of the violence alleged he described in detail. It renderd him anxious to sign, acknowledge or initial the document in whatever way the police officers involved directed if only they would desist from their course of conduct.

6. The applicant's statement comprised instructions to the Legal Aid Department and to counsel in relation to the two cautioned statements; as to the first : -

"I still want to challenge its admissibility on the grounds of involuntariness and breaching the rule that a suspect entitles (sic) to know what is being written" and to the second; "I would like to challenge this statement as it was given involuntarily and was neither shown nor read over to me on the completion of it."

7. Insofar as the second cautioned statement, admitted in evidence after a voir dire, contained matter contradicting what the applicant said in evidence as well as important admissions, about which the judge reminded the jury when summing up, a challenge to its weight and reliability was critical to the applicant's defence.

8. This Bewley J fully appreciated and he canvassed the circumstances in which it had been made of his own volition in the absence of any suggestion to the police officers or of testimony from the applicant in that regard. He carefully reminded the jury insofar as he could of what had transpired: -

"As to the cautioned statement he said this was not given of his own free will and it is not true - that was in answer to a question by me at the end of his evidence.

Obviously, members of the ujry if   that cautioned statement was not made freely and willingly by the defendant there is a serious danger that it may not be true and you would have to ignore it.

Counsel for the Crown did not ask the police constable how this statement came to be taken, but nor did counsel for the applicant cross-examine the officer and suggest that the police had applied any pressure on the defecdant or that  it was not the defendant's statement.

You may feel, as I do, members of the jury,that this document is extremely. important evidence, and I felt that I - could not leave the matter in the air, so to speak and that's why I asked the question at the end of his evidence".

9. He went on to emphasise the sigmificance of this statement in implicating the applicant on the charge.

10. What was written by counsel on 3 April 1989 to the effect that he could not challenge the incriminating statement made by his client once it had been ruled admissible in evidence and that he was free to ignore express instructions displays a degree of negligence, of ignorance of the true legal position and of counsel's professional obligations of so lamentable an order as to render the value of the assistance available to the applicant under the aegis of the Legal Aid Department highly questionable; particularly as it may reasonably be supposed that the applicant would himself have raised the circumstances in which, according to his account of the matter, the incriminating cautioned statement came to be signed before the jury had he not depended on the wisdom of counsel instructed on his behalf. Certainly counsel could not again have challenged the admissibility of the statement but he could have sought to demonstrate to the jury that it carried no weight and should be ignored.

11. The errors outlined were, in our view, so radical that we feel bound to hold that this conviction was, as is submitted on the applicant's behalf, unsafe and unsatisfactory. What took place also amounts to a material irregularity in the course of the trial within the meaning of s 83(i)(c) of the Criminal Procedure Ordinance similar to that described in R v Irwin (1987) 1 WLR 902 in the context of s 2(1)(c) of the Criminal Appeal Act 1968. That is an authority, we would add, in relation to certain aspects of which we feel considerable reserve. Further, we have no doubt that the applicant feels a genuine sense of grievance in the sense described in R v Siu Hon-sum [1989) 1 HKLR 327.

12. In conformity with the principles outlined in R v Ho Shu-chong, Cr Ap No 210 of 1988 (unreported) we must allow the application, treat this as the hearing of the appeal, allow the appeal, quash the conviction and set aside the sentence. Very sensibly Mr Alderdice, who appears on behalf of the applicant, has accepted that a new trial will be directed. We make an order accordingly, pursuant to sections 83E and 83F of the Ordinance, that Yu Fung-hoi be brought before another judge of the High Court to be retried on a fresh indictment.