R. v. WONG CHI YUN

HEADNOTE

[(i) Where the outcome of a criminal trial depends on proof of a fact relating to the conduct of the trial, the burden of proving that fact falls on the party who alleges it. Thus, where an appellant alleges misconduct at his trial on the part of his counsel, it is for the appellant to prove that misconduct (albeit on the balance of probability), and not for the prosecution to disprove it.

(ii) Where facts are being admitted by counsel for a defendant at his trial, the defendant should be asked to acknowledge in court that he is indeed admitting those facts. However, a failure, to follow that practice does not amount to an irregularity in the course of the trial.]

IN THE COURT OF APPEAL

1994 No. 151
(Criminal)

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J U D G M E N T

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Keith, J. (giving the judgment of the Court):

INTRODUCTION

1. On 21st March 1994, following a trial before Deputy Judge Cheung (as he then was) and a jury, the Applicant was convicted on one count of conspiring to help a prisoner to escape from lawful custody, two counts of conspiring to rob two police officers of their police revolvers and ammunition, and two counts of conspiring to imprison and detain two police officers against their will. He was acquitted on one count of conspiring to imprison and detain another police officer against his will. He now applies for leave to appeal against his convictions on the five counts on which he was convicted.

2. The judge sentenced the Applicant on the following day. In all, the Applicant was sentenced to 18 years' imprisonment. He was sentenced to 2 years' imprisonment on the count of conspiring to help a prisoner to escape from lawful custody, to 12 years' imprisonment on each of the two counts of conspiring to rob (concurrent with each other, but consecutive to his other sentences), and to 4 years' imprisonment on each of the two counts of conspiring to imprison and detain the police officers (again concurrent with each other, but consecutive to his other sentences). He also applies for leave to appeal against those sentences.

THE RELEVANT FACTS

3. For the purpose of understanding the issues which arise on these applications for leave to appeal, only the briefest summary of the facts is necessary. On 20th July 1991, a man named Lo Sai On was arrested. He was detained at Tin Sum Police Station. In the early hours of the morning of 22nd July, he claimed to be unwell. He was taken by two police officers to the Prince of Wales Hospital. Whilst at the hospital, he asked to go to the toilet. He was taken there by the two police officers. While the three of them were there, two armed men burst into the toilet. The police officers were forced to remove Lo Sai On's handcuffs, as well as a chain which had been used to restrain him. The two police officers were then handcuffed and chained together, and the revolver of one of them was taken. While that was going on, a third armed man approached the police post at the hospital which was manned by another police officer. That police officer was compelled to give up his revolver to the third man and forced into a cubicle. While these events occurred, Lo Sai On managed to escape. He was not on the run for long. Five days later, the police traced him to an address in Shui Tau Village. A siege ensued, shots were exchanged, Lo Sai On was injuried and he subsequently died from his wounds.

4. It is unnecessary to relate what led the police to suspect the Applicant. What needs to be said, however, is that the Applicant was a serving police officer at the time of these events. The Applicant did not personally take part in the liberation of Lo Sai On, but the judge sentenced him on the basis that he had "masterminded" the escape. Indeed, the full nature of the Applicant's role was expressed in the following sentencing remarks which the judge made:

"You devised the rescue plan by asking the prisoner to pretend to be sick and request to go to a hospital for treatment. You gave instructions to a group of people as to how to rescue him from the hospital. The plan was meticulously thought out. You showed this group the route to the hospital. You told them what they should do after the rescue and you provided this group with information of the prisoner's departure from the police station to the hospital. The rescue was successfully carried out by men armed with hand guns and grenades ... There was evidence ... that you received $50,000.00 from this group of people who enlisted your help in the escape of the prisoner."

The Applicant may not have been the man whose idea it was to procure Lo Sai On's escape, but Mr. Gerard McCoy for the Applicant does not dispute that the evidence was that the Applicant had planned the way in which Lo Sai On's escape was to be achieved.

THE COUNTS IN THE INDICTMENT

5. The count of conspiring to help Lo Sai On to escape from lawful custody speaks for itself. The two counts of conspiring to rob two police officers of their service revolvers and ammunition related to the two police officers (one at the police post at the hospital, and the other being one of the two police officers who took Lo Sai On to the hospital) who had their revolvers and ammunition taken. The three counts of conspiracy to imprison and detain three police officers related to the two police officers who took Lo Sai On to the hospital and who were handcuffed and chained together, and to the police officer at the police post at the hospital who was forced into the cubicle. The one count of conspiring to imprison and detain a police officer on which the Applicant was acquitted related to the police officer at the police post at the hospital.

THE GROUNDS OF APPEAL AGAINST CONVICTION

6. The Amended Perfected Grounds of Appeal against conviction are expressed as one single ground with multiple particulars. They can be categorised as (i) an attack on the conduct and competence of counsel, Mr. Andrew Kan, who represented the Applicant at his trial, and (ii) an assertion that the acquittal of the Applicant on one of the counts of conspiring to imprison and detain a police officer was inconsistent with the verdicts of guilty on the two other counts of conspiring to imprison and detain a police officer, and therefore renders the verdicts of guilty on those two counts unsafe and unsatisfactory. In the course of the hearings in this Court, the allegations of inconsistent verdicts and of misconduct and incompetence on the part of Mr. Kan were abandoned, save for one allegation of misconduct, namely the making by Mr. Kan of formal admissions on behalf of the Applicant contrary to the Applicant's express instructions.

THE PROBLEM CONFRONTING MR. KAN

7. The problem which confronted Mr. Kan before the trial related to two mobile telephones. They had been used by people connected with the attempt to free Lo Sai On. Their call numbers were 90819215 ("215") and 90819217 ("217"). There was evidence which connected the Applicant to the purchase of those telephones. In their witness statements, two salesmen at the shop from which the telephones were bought had said that both telephones had been bought together and at the same time. In her witness statement, the Applicant's girlfriend, Wong Siu Lan, had said that the telephones had been bought by the Applicant, though she had given him the money to buy them.

8. The Applicant's written instructions which Mr. Kan had received from the Applicant's solicitors put the accuracy of Wong Siu Lan's proposed evidence into issue. Those instructions were silent as to who had purchased 215. However, they said that 217 had been purchased by the Applicant's business partner, Lee Lik. That was consistent with what the Applicant was alleged to have told the police when they had interviewed him. According to the record of interview, he had told them that he had never purchased 217.

9. If Wong Siu Lan gave evidence along the lines of her witness statement, there was, at the very least, a chance that she would be believed. If she were believed, that would be a serious matter for the defence for two reasons:

(i) It would mean that the jury would have concluded that the Applicant had lied when interviewed by the police.

(ii) A dispute as to whether the Applicant had purchased 217 would have obscured the real issue, which was not so much whether the Applicant had purchased the telephones, but whether he had used them.

10. On the issue as to use, the witness statements of Wong Siu Lan and Lee Lik gave Mr. Kan a measure of comfort. Lee Lik had said that for most of the time he had used 217. Wong Siu Lan had said that there came a time when Lee Lik had used 215. If, in cross-examination, Mr. Kan could get Wong Siu Lan and Lee Lik to confirm that the Applicant had not had exclusive use of 215, and that Lee Lik was the person who had primarily used 217, he might well be able to persuade the jury that there was reasonable doubt as to whether the Applicant had used either telephone at the relevant time. The jury might have been readier to accept that if they had not had to concern themselves with whether the Applicant had purchased the telephones. Having said that, it has to be acknowledged that it was always going to be difficult to persuade the jury that the Applicant might not have been using 215 at the material time in view of his admission to the police that he had not lent 215 to anyone.

THE PRE-TRIAL CONFERENCE

11. This, then, was what was going through Mr. Kan's mind before he met the Applicant in his chambers for a pre-trial conference a few days before the trial was due to begin. In his evidence, Mr. Kan did not express himself as fully or as articulately as our summary might suggest, but we are quite sure that what he was thinking was along these lines. It meant that one of the things he wanted to find out at the pre-trial conference was whether the Applicant was, notwithstanding his written instructions, prepared to admit that he had purchased both telephones.

12. Accordingly, Mr. Kan's evidence before us was that at the pre-trial conference he asked the Applicant about the evidence which Wong Siu Lan was going to give about the Applicant having purchased both telephones. The Applicant was not asked when he gave evidence before us as to whether Mr. Kan had asked him that, but there is a serious conflict of evidence as to what the Applicant had told him. Mr. Kan's evidence was that the Applicant had told him that he had been involved in the purchase of both telephones, that Wong Siu Lan had provided the money for their purchase, and that one of them (217) had been for Lee Lik to use. Such instructions would have pleased Mr. Kan: he would not have had to cross-examine Wong Siu Lan about the circumstances of the purchase of the two phones. He could concentrate on the real issue as to their use. There would still be the problem about the lie which the Applicant had told the police about never having bought 217, but that problem would still have existed if his purchase of 217 had been challenged and the jury had believed the evidence of Wong Siu Lan on the topic.

13. The Applicant's evidence was that at the pre-trial conference he had confirmed the accuracy of Mr. Kan's written instructions, namely that 217 had been purchased by Lee Lik with money provided by Wong Siu Lan. His evidence was that he had not told Mr. Kan that he had purchased 217.

14. We do not accept the Applicant's evidence on this point. We regard as significant the Applicant's evidence as to what his evidence would have been over the purchase of the telephones if he had been called to give evidence at the trial. He told us that his evidence would have been that he had gone with Lee Lik to purchase two mobile telephones with $30,000.00 which had originally come from Wong Siu Lan. One had been for Lee Lik. The other had been for him. The one for Lee Lik had been 217. The one for him had been 215. It is plain, therefore, that on the Applicant's own case what Mr. Kan claims were the Applicant's instructions at the pre-trial conference were exactly the same as the evidence which the Applicant would have given at his trial. He had been involved in the purchase of both telephones (in that he had been present when both of them had been purchased), Wong Siu Lan had provided the money for their purchase, and 217 had been for Lee Lik to use. In these circumstances, we have no difficulty in finding that Mr. Kan's evidence as to what was said by the Applicant at the pre-trial conference is to be preferred to the Applicant's.

EVENTS OF 4TH MARCH 1994

15. It is that which provides the clue to what took place on 4th March 1994, the day the trial began. That morning, both Mr. Kan and prosecuting counsel signed a Statement of Admitted Facts. It purported to record, in para. 19, the Applicant's admission that he had purchased the two telephones with money provided by Wong Siu Lan.

16. How did that come about? A draft in precisely the form in which it was ultimately agreed had been handed to Mr. Kan by prosecuting counsel. Mr. Kan took it to the Applicant. There is no doubt that Mr. Kan advised the Applicant to admit the facts contained in it. The crucial question was whether the Applicant agreed to do so. Mr. Kan's evidence was that he explained that the admission in para. 19 related only to the purchase of the telephones, not their use. The facts that 217 was for Lee Lik's use, and that Lee Lik occasionally used 215 as well, would come out in the cross-examination of Lee Lik. Mr. Kan claimed that he had explained that, if the Applicant admitted the purchase of 217, it might be pointed out to the jury that he had lied in his police interview, but Mr. Kan added that the prosecution would be able to prove that the Applicant had lied to the police by the evidence of Wong Siu Lan. Mr. Kan claimed that it was against the background of that advice that the Applicant did not object to the draft Statement of Admitted Facts being admitted.

17. In his evidence, the Applicant agreed that when he was shown the draft Statement of Admitted Facts, para. 19 of it was pointed out to him and its contents explained to him. He claimed that he had maintained to Mr. Kan his previous version of events, namely that he had only purchased 215, and that 217 had been purchased by Lee Lik with money provided by Wong Siu Lan. Mr. Kan said that he would discuss the matter with the prosecution. He returned 5 - 10 minutes later. He told the Applicant that it would be corrected, but when the Statement of Admitted Facts was read out in court, the Applicant realised that no correction had been made. He mentioned that to Mr. Kan in the next break in the proceedings. Mr. Kan told him that it did not matter, it was not important, and in any event the Applicant could clear the matter up when he gave evidence.

18. We do not accept the Applicant's version of his conversations with Mr. Kan at court. It is inconsistent with what we have found the Applicant told Mr. Kan at the pre-trial conference in chambers. Once he had told Mr. Kan that he had been involved in the purchase of the two telephones, and once he knew that the prosecution was asking him to agree that he had purchased them, he would have seen the sense in making the admission sought. True, the admission meant that the jury would almost certainly be told that he had lied to the police in the interview, but

(a) the jury would have found that he had lied to the police if they accepted what it was anticipated Wong Siu Lan's evidence was going to be, and

(b) the admission would result in the jury no longer being side-tracked into a potentially damaging debate as to whether the Applicant had purchased both telephones, but having as their focus a much more productive line of enquiry for the defence, namely whether the prosecution had proved that the Applicant had used both telephones at the material time.

19. In reaching this conclusion, we have not overlooked the fact that the transcript shows that the Statement of Admitted Facts had been signed by Mr. Kan and prosecuting counsel by 10:02 a.m. on the first day of the trial. We do not think that that left insufficient time that morning for Mr. Kan to have obtained from the Applicant the instructions he claims he got. The ground had clearly been covered at the pre-trial conference. The only issue which arose for the first time on 4th March was whether the prosecution should be required to prove the facts which the Applicant was, in effect, admitting, or whether the Applicant should relieve the prosecution of that burden by admitting them himself. We do not believe that it would have taken much time for that issue to be addressed that morning. After all, the other facts in the Statement of Admitted Facts were non-controversial, and a quick reading of them would have told both the Applicant and Mr. Kan that no harm would be done by admitting them.

20. The fact that we have accepted Mr. Kan's evidence on the central issues between him and the Applicant does not mean that we have accepted the whole of Mr. Kan's evidence. For example, he was wrong when he said that the pre-trial conference in chambers was attended by both John Chu, the Applicant's solicitor, and Wendy Lee, the trainee solicitor. We find that only Wendy Lee was there. Again, he was wrong when he said that he got the draft Statement of Admitted Facts at some time during the trial. It is plain that he could only have got it before the trial actually began. However, although his recollection was faulty in these areas, they do not cause us to doubt the accuracy of his evidence as to his conversations with the Applicant.

ADDITIONAL COMMENTS

21. There are four other comments we wish to make:

(i) Mr. Kan's post-trial behaviour. Mr. Kan's behaviour after the trial was very strange. We do not propose to lengthen this judgment by describing it here, but it is plain that pressure got the better of him. The phrase "mid-life crisis" cropped up more than once in the hearing. However, it has been quite impossible for us to infer that that was because of a sense of guilt over the way he had handled the Applicant's trial. It could equally have been because he found himself unable to cope with the stress of practice. Although we did not discount Mr. Kan's post-trial behaviour in assessing the weight we attached to his evidence, we cannot say that we regarded it as particularly important.

(ii) The Applicant's subsequent behaviour. The Applicant did not complain to anyone during his trial about Mr. Kan's failure to follow his instructions. Indeed, the first time when this complaint saw the light of day was in the Amended Perfected Grounds of Appeal against conviction signed by Mr. McCoy and dated 16th October 1995. It was not in the Perfected Grounds of Appeal against conviction signed by Mr. McCoy on 5th August 1994. We infer that Mr. McCoy was therefore not put in the picture until some time after 5th August 1994. As it turned out, we decided not to hold any of that against the Applicant in deciding where the truth lay. The fact that no complaint was made during the trial could be said to be neutral: after all, the Applicant could say with some force that, although Mr. Kan had not acted in accordance with his instructions, it would not matter if the trial resulted in his acquittal. And the fact that Mr. McCoy did not know about the complaint until much later did not mean that the Applicant did not raise it. Indeed, he said in terms that he complained to "the Legal Aid people" who came to see him.

(iii) The role of counsel. Mr. McCoy reminded us of the disapproval expressed by the Court of Appeal of New Zealand in R. v. McLoughlin [1985] 1 NZLR 106 of counsel taking it upon himself to disregard his instructions and to conduct the case as he thought best. That served to remind us of the danger that we might have been accepting Mr. Kan's evidence on the footing that the advice he was giving to the Applicant was sensible advice, and that for that reason the Applicant must have gone along with it. For the reasons we have given, we believe that that is a temptation which we have successfully resisted.

(iv) The burden and standard of proof. Neither Mr. Andrew Bruce Q.C. for the Crown nor Mr. McCoy could point to authority which dealt with the burden and standard of proving a fact relating to the conduct of the trial upon which the outcome of an appeal might depend. Mr. McCoy developed an argument which suggested that guidance might be obtained from the language of section 83V(2) of the Criminal Procedure Ordinance (Cap. 221), and the observations of this Court in R. v. Cheung Tse Pan [1991] 2 HKLR 370. We reject that argument. Section 83V(2) applies to evidence relating to an issue which the jury had to decide. Section 83V(2) has, in our view, no relevance at all to the present case. The evidence of Mr. Kan and the Applicant was received under section 83V(1)(b) and (c). We approach the question of the standard and burden of proof of the issue of fact which has arisen on this appeal without the subtlety which Mr. McCoy's argument involved. It was the Applicant who contended that the trial was flawed because Mr. Kan had failed to follow his instructions. The burden was therefore on the Applicant to prove that, rather than on the prosecution to disprove it. And since the burden was on the Applicant, the standard of proof was the lesser standard of proof on the balance of probability. Having said that, though, we are sure that Mr. Kan did have the Applicant's instructions to admit the draft Statement of Admitted Facts.

ADMISSION OF FACTS BY DEFENDANT IN COURT

22. A related but separate point, not referred to in the Amended Perfected Grounds of Appeal, was taken by Mr. McCoy. The transcript shows that the reading to the jury of the Statement of Admitted Facts was not accompanied by a request to the Applicant to acknowledge in court that he was indeed admitting the facts. Mr. McCoy contends that that was an irregularity in the trial, and a material one at that. We do not wish to be disrespectful to Mr. McCoy, but this point is of no assistance whatsoever. If Mr. Kan had acted without instructions, the fact that the Statement of Admitted Facts was not put to the Applicant in court for him to acknowledge adds nothing to the injustice which the Applicant would have suffered. If Mr. Kan had acted with instructions, no harm was done. However, since Mr. McCoy took the point, it should be addressed on its merits.

23. This Court held in R. v. Siu Kwong Wing [1993] 2 HKCLR 94 that the Statement of Admitted Facts should be acknowledged by the defendant as being correct. The Court said that "complications at a later stage" would thereby be avoided. It did not spell out those complications, but what the Court plainly had in mind was what has happened in this case, namely the defendant alleging that he never agreed to the admission of the facts. We agree with what was said in Siu Kwong Wing. We accept that asking the defendant whether he agrees facts which have already been admitted on his behalf by his counsel could undermine his counsel's authority in the eyes of the jury. On the other hand, we think that there should be a consistent practice applicable in every case, and in our view the advantage of having such a practice manifestly outweighs the disadvantage. Accordingly, we take this opportunity to confirm that the practice recommended in Siu Kwong Wing should be the invariable practice in trials in which facts are admitted. However, we see no basis for elevating this rule of practice into a rule of law, and declaring the failure to follow the practice an irregularity in the course of the trial. There is nothing in section 65C of the Criminal Procedure Ordinance which requires it. We therefore rule that the failure to follow the practice in the present case is not a legitimate ground of appeal against conviction.

THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

24. There can be no doubt that the crimes which the Applicant committed were very serious. They called for lengthy sentences of imprisonment. Mr. McCoy contends today, however, that the sentences, totalling 18 years' imprisonment in all as they did, were simply too long, and can properly be categorized as manifestly excessive. In any event, he argues that all the conspiracies were but different aspects of the one conspiracy to procure Lo Sai On's escape. It is said that the sentences imposed for each conspiracy, therefore, should have been concurrent with each other, and that the judge erred in principle in making some of them consecutive.

25. The sentencing problem which Deputy Judge Cheung faced was not an uncommon one. Whenever a defendant is to be sentenced for more than one offence, it is necessary for the sentencer to have regard primarily to the defendant's overall criminality, and to determine what overall sentence should be imposed. If the overall sentence is a fair and just reflection of the defendant's overall criminality, an appellate court will not lightly interfere with the fine tuning which the sentencer has adopted in relation to the individual components of the overall sentence. That applies not merely to the length of the individual sentences, but also to the extent to which those sentences have been ordered to be served concurrently or consecutively.

26. The plan which the Applicant hatched was a daring one. The police officers who would have to escort Lo Sai On to the hospital, and the police officer who would be manning the police post at the hospital, were to be confronted by dangerous men armed with guns and grenades. The potential for serious injury if the plan went wrong was enormous. As a serving police officer, the Applicant's duty was to uphold law and order. Instead, he plotted to undermine it for his own personal gain. The scheme he hatched to procure Lo Sai On's escape dealt so devastating a blow to law and order that sentences of great severity were called for. Mr. McCoy described these offences as unparalleled, which is why little, if any, guidance can be obtained from any guideline cases, though we note that armed robberies in which guns and grenades are carried have attracted sentences after trial well in excess of 18 years' imprisonment. We cannot say that the overall sentence which the judge imposed was manifestly excessive. In the light of that, we cannot say that, the making of some of the individual sentences consecutive to each other was wrong in principle.

CONCLUSION

27. Accordingly, the Applicant's application for leave to appeal against conviction and sentence is refused. We note that the application for leave to appeal against sentence was made out of time, but having addressed the question of sentence on its merits, we do not propose to consider the academic question as to whether the Applicant's explanation for not lodging his application in time is reasonable.