HKSAR v. LO PUI YI CAT

CACC 78/2016

[2018] HKCA 236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 78 OF 2016

(ON APPEAL FROM DCCC 894 OF 2015)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  The appellant and D1, who was her husband, were jointly charged with two charges. The first charge was trafficking in dangerous drugs, namely 8.88 grammes of a solid containing 8.10 grammes of cocaine and 1.01 grammes of a crystalline solid containing 0.91 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The second charge was possession of apparatus fit and intended for the inhalation of a dangerous drug, namely an inhaling device for the inhalation of Ice, contrary to section 36(1) and (2) of the same ordinance.

2.  The appellant and D1 pleaded not guilty to these charges and were tried before District Judge Sham (“the judge”).  On 9 March 2016, D1 was convicted of both charges and the appellant only of the first charge.  The appellant was sentenced by the judge to 4½ years’ imprisonment on the same day.

3.  The appellant subsequently filed a Notice of Application for Leave to Appeal (Form XI) against her conviction and sentence.  However, on 22 August 2017, she abandoned the application in respect of her sentence. 

4.  On 30 August 2017 the appellant was granted leave to appeal her conviction by a single judge[1].

5.  At the hearing of the appeal we dismissed it and said we would hand down our reasons for doing so at a later date.  These are our reasons.

The trial

The prosecution case

6.  On 16 June 2015 at around 7:33 pm, police officers gained entry to Room H on the 3/F of Thai Cheong Hotel, May Ming Mansion, 312 Nathan Road, Yau Ma Tei, Kowloon.  They found D1 and the appellant inside the room.

7.  The police officers searched the room and seized the following items:

(a)   on the bedside table, 3 re-sealable plastic bags and a tinfoil packet containing 0.19 gramme of cocaine and 0.91 grammes of Ice, and a glass bottle, with glass tube and straw, which was half-filled with transparent liquid; and

(b)   on the false ceiling above the bed, a black plastic bag containing 43 small re-sealable bags containing 7.91 grammes of cocaine.

8.  Both D1 and the appellant were arrested.  D1 was then bare-chested and nothing was found on his person.  The police found and seized $48,526.90[2] cash from the appellant.  Also found on her person was a key card which allowed entry to the room.  However, evidence of her possession of this key card was not, inexplicably, adduced by the prosecution during the trial.

9.  D1 provided a urine sample whilst in custody on 20 June 2015, and it tested positive for amphetamine. 

10.  A cleaning lady of the hotel (PW1) provided the police with a witness statement in which she identified the appellant as the person who rented the room.  However, she testified in the trial the prosecution was unable to elicit this important piece of evidence from her. The only relevant evidence she gave was that when a guest checked out she would enter and clean the room, so that when a vacated room was rented out again it was clean with anything left behind by the previous occupant having been removed.  Thus, if it could be proven that D1 and the appellant were the occupants of the room then it could be inferred that they must have been responsible for the presence of the drugs in the room.

11.  The market value of the drugs seized was $9,691.

The defence case

12.  D1 and the appellant were represented by the same legal team at trial.  They chose not to give evidence.

13.  The defence case was that there was no evidence to prove their knowledge of the drugs and the inhaling device.  They submitted that there was no evidence to prove how long D1 and the appellant had stayed in the room, and it was suggested that they could be mere visitors to the room as opposed to being the occupants of it. 

The judge’s Reasons for Verdict

14.  The judge noted that the prosecution case relied on circumstantial evidence and the issue was whether the court could draw the only reasonable inference that D1 and the appellant were guilty as charged.  He also noted that the appellant had a clear record.

15.  From the photographs, the judge observed that the dustbin in the room was full to capacity and further rubbish had been placed in two plastic bags next to the bin.  From these facts he concluded that D1 and the appellant had occupied the room for some time prior to their arrest.

16.  The judge was satisfied that PW1 was telling the truth and did not believe that the drugs would have been left behind by a person who had occupied the room before D1 and the appellant.  

17.  The judge was satisfied that D1, given he was a drug abuser and, as proven by the urine test report, had taken Ice before his arrest, was in possession of the glass bottle for inhaling Ice.  However, he could not be sure that the appellant would use the glass bottle and so he acquitted her of the second charge. 

18.  The judge examined the drug exhibits and concluded that the packet of cocaine seized from the bedside table was of the same size and type as the 43 packets of cocaine seized from the false ceiling.  He found that this packet of cocaine must have been a part of those seized from the false ceiling.  From this finding, and the observation from the photographs that the big black plastic bag on the false ceiling which contained the 43 packets of cocaine could be easily seen, the judge said that he had no doubt D1 and the appellant knew of the presence of the 43 packets of cocaine.

19.  The judge rejected any suggestion that someone would rent a hotel room for a long period of time just to consume a large quantity of drugs, and he found, in view of the way the cocaine was divided into 43 small packets, that the cocaine in the false ceiling was for sale.  The judge also found the packet of cocaine on the bedside table was for retail sale as there was no evidence to show that either D1 or the appellant was a cocaine abuser.

20.  The judge said that when selling drugs, traffickers would receive cash from customers and would need to give change to them.  In view of the denominations of the bank notes that were found on the appellant, the majority of which were $500 and $100 notes (74 and 43 banknotes respectively), the judge found that the appellant would have no trouble in providing change to customers should the need arise. 

21.  The judge found that the only reasonable conclusion was that D1 was a drug dealer in cocaine and was acting in concert with the appellant.

22.  By this process of inferential reasoning the judge convicted D1 and the appellant of the first charge, the trafficking charge,[3] and D1 only of the second charge.

The Amended Perfected Grounds of Appeal

23.  In her Amended Perfected Grounds of Appeal the appellant relies on two grounds of appeal.  They are:

(1)   she did not have a fair trial as a result of having been jointly represented by the same legal team as D1, in circumstances where there was a major and insurmountable conflict of interest between their respective defences; and

(2)   in view of the incompetence of her legal defence team in conducting the trial, the conviction is unsafe and unsatisfactory.

24.  It is asserted in the Amended Perfected Grounds of Appeal that D1’s case was different from the appellant’s case and was in conflict with it.  D1’s case was that the drugs and drug paraphernalia were left behind in the room by a previous occupant of it.  The appellant’s case, however, was that she went to the room at the request of D1 to receive from him money that she was to use to repay her sister, from whom she had borrowed money to pay for the decoration expenses of their home.  She knew nothing of the drugs which, on her case, were either left behind by a previous occupant of the room or belonged to D1.  The former case of the drugs being left behind by a previous occupant of the room was in conformity with D1’s case, but the latter case of the drugs belonging to D1 was not.  This latter, alternative case was never advanced at trial. 

25.  It is also said that the appellant was wrongfully advised not to give evidence in respect of the $48,526.90 that was found on her and their marriage certificate, which established their relationship and which would have lent support to the appellant’s alternative case, was not adduced as evidence.  It was her case that she was deprived of a fair trial because her legal team failed to appreciate the conflict of interest between her case and the case of D1, and this lead to a failure by her legal team to fully put forward her case.

26.  In respect of the second ground of appeal, the particulars of incompetence alleged against the members of the defence team were as follows:

“

Particulars of the Incompetence

(1) as against all:

(a) not recognizing that there existed an actual or potential conflict of interest in representing both the applicant (D2) and her husband (D1);

(b) not taking sufficient instructions on the key issues of:

(i) how the applicant (D2) came to be in the hotel room; and

(ii) the source of the $48,526.90 that was in the applicant’s possession;

(2) as against the counsel only:

(a) proceeding to trial without full instructions; and

(b) not providing the applicant (D2) with proper legal advice on whether she should testify in her own defence;

(3) as against the solicitor only:

(a) not properly supervising the legal clerk; and

(4) as against the clerk only:

(a)   not communicating to his solicitor and counsel the instruction of the applicant’s husband (D1) that he was willing to plead guilty to the charges in return for the applicant (D2) not being prosecuted.”

The evidence adduced by the appellant on the appeal 

27.  The appellant adduced new evidence by way of notice of motion and affirmations by herself, her husband, D1, and her sister in support of her complaint that her trial counsel Ms Li Lai Shan Liza and instructing solicitor Mr Ivan Tang of Messrs Ivan Tang & Co did not provide her with competent representation.  At the hearing of the appeal the applicant and her husband both testified in support of their affirmations.  The factual allegations of the appellant, as set out in her affirmation and her testimony, are contained in a chronology appearing later in this judgment at paragraph 46.

28.  Before trial, the appellant was on bail and D1 was in custody.  The appellant had all along discussed her case with a legal executive, Mr Jacky Cheung, of Messrs Ivan Tang & Co, who had attended to D1’s legal matters for many years.  She had various communications through telephone calls and WhatsApp text and audio messages with Jacky Cheung and an amalgamated transcript of the WhatsApp messages was exhibited to her affirmation.

29.  Also exhibited were two “plea bargain” letters from D1 that the appellant sent to Jacky Cheung through WhatsApp on 20 January 2016 and 25 January 2016.  In these letters, D1 indicated that he was willing to plead guilty in return for the prosecution not proceeding against the appellant.  D1 also asked about the prospect of success and whether he could be a defence witness for the appellant.

30.  In his affirmation D1 referred to, and adopted as true, a note that he said he had written in late July 2016 about his communications with Jacky Cheung and Liza Li.  In this note he said:

“… When I was remanded at Lai Chi Kok Reception Centre and met Jacky there on one occasion, I told Jacky that it was I who put the dangerous drugs on the suspended ceiling. I also stated that the dangerous drugs on the table were for my consumption. However, he said that as the fingerprint examination report had yet to be issued, there was no need to come to a conclusion so soon. He said that I should wait for the fingerprint examination report and the DNA results before making any plans. On 20 October, I knew that according to the findings of the fingerprint examination report and the DNA test, neither my fingerprint nor DNA was found. However, the case was transferred to the District Court. … The dialogue on that day: Jacky, I have considered the matter carefully. I want to plead guilty. I don’t want my wife to face the judgment with me. Could you explain to the prosecution on behalf of me that the dangerous drugs involved were mine? My wife, Lo Pui-yi, had nothing to do with it at all. But he said: It is simply not necessary to do so. Do not think that if you plead guilty, your wife will not be prosecuted by the prosecution. It is because you two are now being charged for trafficking in dangerous drugs together. If I (sic) choose to plead guilty, (my) wife will also be charged for trafficking in dangerous drugs in this connection. What’s more, now the evidence points against (my) wife more. The prosecution will not accept my guilty plea anyway. Don’t worry. We have known each other for so many years. I cannot see there is any evidence that will get you both convicted. …

Since I do not know much about law, I have no alternative but to take his advice. …When I met Ms Liza Li, the counsel, for the first time, and also the only time, when I first met her, I also asked her if she could negotiate with the prosecution on behalf of me that the dangerous drugs involved were mine.  At that meeting, she explained to me that it was definitely not that easy to convict us of the charge of trafficking in dangerous drugs.  Firstly, the prosecution did not have strong evidence to prove that I owned the dangerous drugs.  I did not go from A point to B point either.  I told them that I had consumed the dangerous drugs on the table.  She said that anyway, she did not see any direct evidence against me for the time being.  In that meeting, counsel Li left first and Jacky stayed to talk to me for a few more minutes.  This was the first time that I told counsel Li that I pleaded not guilty.  Afterwards, I considered the matter thoroughly. As Jacky did not come to see me again after that, so I chose to write to him, conveying the meaning that I genuinely wanted to plead guilty after I had considered the matter thoroughly.  I also requested him to apply again to the prosecution not to charge my wife but no reply was given to me.  Under such circumstances, I sent the second letter to my wife, then she passed it to Jacky.  The content of the letter was the same as the above.  I learned later from Jacky that he had passed the letter to counsel Li and she said that she would do the utmost for us and we could rest assured that they would deal with the case.  Besides, I also told Jacky that the cash my wife carried on her person was to be used for paying the renovation expenses in the Mainland.  The cash was borrowed from my wife’s elder sister, Lo Pui-see (transliteration), for paying the renovation expenses of (our) home.  I also asked my elder brother Wong Sing-chau (transliteration) to pass to Jacky for me the receipt of the renovation payment.  However, Jacky still said that this was a case of not guilty plea, so it was simply not necessary to submit the receipt to the court.”

The evidence from the appellant’s legal team

31.  Affirmations were filed by Tang Yiu Wing, also known as Ivan Tang, a solicitor and partner of Messrs Ivan Tang & Co and Li Lai Shan Liza, a member of the Hong Kong Bar and Cheung Chun Kit, also known as Jacky Cheung, a clerk in the employ of Messrs Ivan Tang & Co.

32.  According to Mr Ivan Tang he met the appellant on 17 and 19 June 2015, but those were the only occasions he met her.  He said the case was handled by Jacky Cheung under his supervision.  Mr Tang denied the allegation that he did not adequately supervise Jacky Cheung and asserted that he had been involved in preparing the case for trial and developing a strategy before handing over the case to counsel. He read the proofs of evidence and other documents in the case and received progress reports from Jacky Cheung.  He knew that Jacky Cheung would keep comprehensive notes which he, Mr Tang, could access if he thought it necessary to do so.

33.  In respect of the instructions provided by D1 and the appellant Mr Tang maintained that there were two issues on which neither D1 and the appellant could give instructions.  These issues were who rented the room and the source of the money in the appellant’s possession.  He maintained that the defence case for both D1 and the appellant was to put the prosecution to strict proof of its case and not advance a positive defence case.  This defence strategy, he said, was consistent with his clients’ instructions.

34.  When asked about the letters that D1 wrote enquiring about a plea bargain Mr Tang confirmed that he was unaware of them and had not been shown them by Jacky Cheung.  However, he was of the view that as the letters did not contain any firm instructions there was no need for Jacky Cheung to inform him of them.  He did not think the letters contained a request for legal advice.    

35.  Jacky Cheung stated in his affirmation that he held a Master of Laws and had been working in the legal field handling criminal cases for over 28 years.  He had known the appellant and D1 for over 15 years.  He described his relationship with the appellant as being like brother and sister. 

36.  Jacky Cheung maintained in his affirmation that he had reported the progress of the case to Mr Tang, informed him of the instructions given by the clients and had sought direction from him. 

37.  He confirmed that he did not pass D1’s letters requesting advice on a plea bargain to Mr Tang, or to Ms Li.  He said he went to see D1 on 22 January 2016 and 4 February 2016 and claimed that, after discussing the matter with him, D1 withdrew his instructions to negotiate a plea bargain.  Because D1 and the appellant had not given him confirmed instructions to proceed with exploring a plea bargain he did not take it any further.  He denied he told the appellant in a phone call that he had approached the prosecution about a plea bargain but that the prosecution had refused the proposal.  

38.  He accepted that he had not put D1’s two plea bargain letters into his firm’s file, but explained that he did not do so because he regarded them as personal letters to him and not as solicitor/client communications.

39.  He denied that D1 had instructed him that he, D1, had put the drugs in the suspended ceiling and he denied that D1 had asked him to negotiate a plea bargain when he visited D1 on 20 October 2015.

40.  He explained how he took the proof of evidence from both D1 and the appellant.  He asked both of them if they had any explanation for events before the police entered the room.  He said D1 paused and then answered “No”. When he asked the appellant the same question he said she could not answer. Consequently, he could only take instructions from them both on what happened after the police entered the room.

41.  He said he also asked the appellant why she had such a large sum of money in her possession but, again, she could not answer.   

42.  Mr Tang said that he had many conversations with D1 and the appellant in the course of their various court appearances and, as a consequence, he had a clear understanding of their cases.

43.  In her affirmation Ms Liza Li said she became involved in representing the appellant after being granted a legal aid certificate dated 8 December 2015.  A summary of the contents of her affirmation is set out in the chronology which follows.

44.  Ms Li testified that she developed a strategy of putting the prosecution to strict proof once the appellant and D1 informed her they did not want to testify.  She said both of them agreed to this strategy. She denied discouraging the appellant from giving evidence because to do so would harm D1’s chances of acquittal.

45.  Ms Li said she could see no conflict of interest in her instructions.  She said that had she been requested to negotiate a plea bargain with the prosecution before trial she would have been willing to so. However, given the strength of the evidence against the appellant she did not think such a plea offer was viable.   

A chronology

46.  A chronology of key events and of the appellant’s contacts with her legal team that can be distilled from all of the evidence is as follows:

Date	Event
16 June 2015	The appellant and D1 were arrested.
17 June 2015	Jacky Cheung and Ivan Tang made a legal visit to the appellant and D1 at the police station.
19 June 2015	Ivan Tang appeared for the appellant and D1 at Kowloon City Magistracy and unsuccessfully applied for bail for them both.
29 June 2015	Jacky Cheung made a legal visit to the appellant at Lo Wu Correctional Institution.
14 & 23 July 2015	Jacky Cheung visited D1 at Lai Chi Kok Correctional Institution.
7 August 2015	Jacky Cheung made a legal visit to the appellant at Lo Wu Correctional Institution to take instructions for the bail application.
13 August 2015	The appellant was granted bail by a magistrate at Kowloon City Magistracy.  D1 did not apply for bail.
20 August 2015	D1 applied for bail at Kowloon City Magistracy but his application was refused.
20 October 2015	D1 claimed that when visited by Jacky Cheung he raised for the first time the possibility of negotiating a plea bargain with the prosecution.
10 November 2015	The case of the appellant and D1 had its first mention in the District Court.  The case was set down for trial on 26 February 2016.
30 November 2015	D1 applied for bail in the High Court but his application was refused.
11 December 2015	Jacky Cheung took D1’s proof of evidence at Lai Chi Kok.
18 December 2015	The appellant attended the offices of Ivan Tang and Co.  The appellant said it was solely for the purpose of signing some documents, she only stayed there for 10 minutes and she and Jacky Cheung did not discuss the evidence in the case.  The proof of evidence revealed that the appellant and D1 were married in 2004.  The appellant indicated her pleas to both charges were not guilty and what areas of the prosecution case were not in dispute.  In respect of what happened inside the hotel room the appellant denied being in possession of a key to the room and of having rented the room.  She denied having had any conversation or dealings with any staff of the hotel in respect of the room.  She did admit to being in possession of the $48,526.90.  The appellant said she did not know there were dangerous drugs and an Ice bottle on the table and did not know there was cocaine hidden in the false ceiling. In her testimony on appeal the appellant agreed she signed a proof of evidence but said it did not reflect her full instructions.  In her affirmation she claimed she did not discuss with Jacky Cheung the evidence in the case and said of the proof of evidence: “At that time, the document did not occur to me to be problematic.”  However, in her testimony she said she signed it because Jacky Cheung told her that the contents were most favourable to her.  She also said she did not pay much attention to it as she trusted Jacky.  When she was queried why the proof of evidence contained no mention of the source of the money she said Jacky Cheung told her to plead not guilty and sign the document.  None of this was in the appellant’s affirmation and when asked why it was not in it she said she did not regard her queries of Jacky on these matters as part of their discussion.
13 January 2016 2 pm	The appellant had her first conference with her counsel Liza Li.  Jacky Cheung also attended.  The appellant denied that this conference lasted about one hour and claimed that it lasted about 20 minutes. According to the appellant she gave the same instructions to her counsel that she had given to Jacky Cheung in July 2015.  She explained that she and D1 had no residence in Hong Kong and he would sometimes rent a room at this hotel to take a rest there.  She knew he took drugs and believed the inhaling device belonged to him.  She went to the hotel room because D1 asked her to. The appellant said she told Liza Li she wished to testify to explain the source and purpose of the money, namely a loan from her sister to cover the costs of renovating their Shenzhen home, and which her husband, D1, was now asking her to repay with the monies provided by him.  The appellant told Ms Li that she could produce an invoice from the decoration company.  Ms Li, she said, advised her against giving evidence and said that if she did so it would jeopardize D1’s case and D1 would be convicted.  The appellant also told Ms Li of her husband’s willingness to plead guilty in return for the prosecution dropping the case against her and asked  Ms Li if that would be helpful to her.  In reply Ms Li only said that she aimed to achieve an acquittal of both the appellant and her husband. In her testimony on appeal Ms Li maintained that the conference with the appellant lasted one hour and prior to the conference she had been given the appellant’s proof of evidence by Jacky Cheung.  In the conference Ms Li went through the proof of evidence and confirmed with the appellant the matters stated in it.  She said the appellant insisted on not agreeing to the identity of the room tenant and on this issue putting the prosecution to proof.  Ms Li said she asked the appellant how she got the money that was found in her possession and the appellant did not give any reply.  The appellant never explained the source of the money.  Ms Li said that after explaining the trial procedure to the appellant, the appellant informed her that she did not wish to give evidence as she was not an eloquent person but a nervous person and she was afraid that if she testified she might only make things worse for her and her husband. Ms Li said that the appellant did ask her of the chances of an acquittal for her and D1 and Ms Li said she told the appellant that all she could do was to try her best but could not guarantee anything. In the afternoon Ms Li had a conference with D1, in the presence of Jacky Cheung, at Lai Chi Kok.  D1 confirmed his not guilty plea and his proof of evidence.  D1 also refused to agree the identity of the tenant of the room.  He said he would not give evidence and would put the prosecution to proof of its case.  D1 never mentioned any plea bargain in which he would agree to plead guilty in return for the prosecution offering no evidence against the appellant.  Nor did he give any instructions which gave rise to any potential or actual conflict of interest with the appellant.
20 January 2016	The appellant forwarded by WhatsApp to Jacky Cheung D1’s first letter offering to plead guilty as part of a plea bargain with the prosecution who, in return, would not prosecute the appellant.  In this letter D1 wrote: “… In fact, I have prepared myself to be used as the stake.  Is there any chance of negotiation?  Or shall we try to talk to the prosecution so as to allow one person to leave while the other remains.  I really want to know about these matters.  The legal knowledge I have is not too much … what is the percentage of our (chance of winning)?
22 January 2016	Jacky Cheung visited D1 at Lai Chi Kok.  The attendance note makes no mention of the plea bargain letter and only records: “1535, interview started - reading summary of facts to D1 - awaiting photos, sketch, etc to be served 1541”
Date unknown	In her testimony on appeal the appellant claimed that in a telephone conversation with her Jacky Cheung had told her that he had discussed a plea bargain with the prosecution but the prosecution did not agree to it.   The appellant did not mention this telephone call in her affirmation.
25 January 2016	The appellant forwarded to Jacky Cheung D1’s second  letter offering to plead guilty as part of a plea bargain with the prosecution.  Jacky Cheung told the appellant to come and see him the following day. In his second letter D1 wrote: “… Nevertheless, could you spare a few minutes to look at the current situation from my viewpoints?  As you know Cat and my daughter are really all my life. Moreover, the bet will be too large if she is used as the stake, and she may not be able to stand it because winning in a lawsuit is not 100 per cent.  Actually is there any chance to negotiate with the prosecution … In fact, certainly I will not mind if I am used in exchange for (something) because I cannot afford to lose.  If the confidence is not high enough, what I am referring to is Cat, then why not let me face it.”
26 January 2016	The appellant failed to keep her appointment with Jacky Cheung as she was sick.
4 February 2016	Jacky Cheung attended Lai Chi Kok to take instructions from D1 on the plea bargain proposal.  However, Jacky Cheung’s attendance note of this interview with D1 makes no mention of D1 withdrawing his instructions to negotiate a plea bargain with the prosecution. It only records: “1220, - Reading over PW1’s second witness to D1. Instructions taken. 1232 pm”
25 February 2016	The appellant attended Jacky Cheung at the offices of Ivan Tang & Co and he explained to her the procedure on the opening day of trial.
26 February 2016	The trial commenced.  After the prosecution witnesses had given evidence Jacky Cheung and Liza Li had a conference with D1 and the appellant.  Both indicated that they would not be giving evidence or calling any witnesses.
29 February 2016	The appellant and D1 had a conference with Liza Li.  Both D1 and the appellant signed a note acknowledging that their legal rights had been explained to them and concluding with: “Having gained a good understanding, now it is our instruction that both of us will neither testify in court nor call any defence witness.” In her evidence the appellant claimed she did not read this document carefully.  She claimed she asked Ms Li whether she should give evidence to explain the source of the money.  She said she was advised not to give evidence as if she did, D1 would certainly be convicted.  She said that Ms Li told her that by not giving evidence the appellant could get an acquittal but did not explain to her the disadvantage of not giving evidence.  She denied saying she did not want to give evidence and believed what her counsel had said and did not want to query her advice.
2 March 2016	After the close of the prosecution and defence cases, a WhatsApp exchange of text messages took place between the appellant and Jacky Cheung of which the following are excerpts: “Appellant:    Jacky, is it still possible to talk to the prosecution now, talk about one admitting or one not admitting, still have things like that? Jacky:    No. … Jacky:    Every lawsuit is like that: prepare for the worst, anticipate the best.  Right at the outset, you had no reason, no reason to expect to win.  Well, but as it stands today, I feel I am very satisfied, speaking based on today’s evidence. … Jacky:    I cannot control whether we will win or not.  I only know that the evidence we have now is much better than what is on papers.
9 March 2016	The appellant was convicted.

The appellant’s submissions

47.  Ms Sezen Chong, for the appellant, submitted that a defence counsel in a criminal trial has a positive duty to canvass all alternative cases of the client which fairly arise from the instructions and the evidence and to advance these alternative cases if that best serves the interests of the client.  It is not a matter of proving these cases but of using them to cast doubt on the prosecution case. 

48.  Ms Chong asserted that the case put forward by the defence counsel at trial namely, that the drugs and inhaling device were left behind by a previous occupant of the hotel room, was not the appellant’s only case.  Another defence that could have been advanced was that the drugs and the inhaling device in the room belonged to D1.

49.  In the present case D1 and the appellant both had access to the room but, according to their instructions, they denied being the tenant of it.  Ms Chong argued that as there was no instruction of a 3^rd party being the tenant of the room, the implication must be that they were pointing their fingers at each other.  At that point, a conflict of interest arose between D1 and the appellant.  Trial counsel should have appreciated that this conflict of interest existed and that she had a positive and independent duty to refrain from acting. 

50.  Ms Chong also submitted that, from the instructions given by the appellant, her trial counsel should have realised that she had this alternative, additional defence available to her.  She said that, given that the appellant had a clear record and given D1’s drug taking activities, she stood a better chance of acquittal than D1, and so by relying only on one defence the appellant’s defence was severely curtailed.  Trial counsel failed to put this alternative case because she was representing both D1 and the appellant.  It was submitted that the principle that the judge had a duty to leave alternative verdicts to the jury as laid down in Ho Hoi Shing v HKSAR[4] should also apply to counsel so that counsel had a positive duty to canvass all alternative cases and to place them before the jury.

51.  Moreover, D1 had 20 prior convictions, 4 of which were drug-related and the urine test report showed that he had recently consumed Ice.  To defend herself on charge 2, the appellant could have claimed that the Ice was being consumed by D1, using the inhaling device found on the bedside table.  In these circumstances the appellant should have been advised that she had a right to testify against D1 regarding his drug taking habit and criminal record. 

52.  Furthermore, the failure to query and probe the appellant and D1 on their instructions showed that Ms Li was acting only as a mere mouthpiece for them.  For example, she did not query them as to how they could not be aware of the drugs in the room and why they thought the drugs had been left behind by a previous occupant.  Similarly in respect of the money found on the appellant.  It was asserted that there was a failure by Ms Li to analyse, explain to and advise the appellant on, the importance of this piece of circumstantial evidence and of the consequences should the appellant not provide an explanation for the source of this money.  It was also said that Ms Li’s failure to adduce evidence of the marital relationship resulted in there being no innocent explanation before the court for the appellant’s presence in the room. 

53.  In respect of D1’s plea bargain letters Ms Chong submitted that once these two letters were received, the trial solicitor, Mr Tang, should have been informed of them and once aware of them should have seen D1 to clarify his position, provide legal advice to him and then obtain his instructions.  He should also have considered passing the letters to trial counsel. 

54.  Ms Chong argued that if a plea bargain had been offered and accepted then the appellant has lost the opportunity of not being prosecuted.  Even if the plea bargain offer had not been accepted, D1 could still have pleaded guilty and then testified for the appellant.  Had he done so there might well have been a different outcome for the appellant.  Because no proper advice was given on the plea bargain, none of these possibilities could be properly explored and so the appellant’s trial was unfair.   

55.  In respect of Jacky Cheung, Ms Chong submitted that he had been conducting the case as if he were a solicitor.  For example, in his affirmation he said that he advised the appellant of the likely sentence, explained to her the trial procedure, explained the Reasons for Verdict, discussed the grounds of appeal and, in the WhatsApp messages, appeared to discuss evidence with the appellant and give her advice. 

56.  Ms Chong referred to the fact that the appellant saw her trial solicitor, Mr Ivan Tang, on only two occasions and submitted that he failed to properly supervise his legal executive, Jacky Cheung.  She referred to the attendance notes taken by Jacky Cheung and commented that it would have been hard for Mr Tang to exercise meaningful supervision based on these notes as they appeared to be illegible scribbles.

57.  Ms Chong submitted that there is a positive duty on a solicitor to control his unqualified staff and to ensure there is no misrepresentation of the capacity of the unqualified person. 

The respondent’s submissions

58.  The respondent was represented on appeal by Mr Andrew Bruce SC, leading Ms Chan Sze Yan, Senior Public Prosecutor.  He submitted that to succeed on the ground of flagrant incompetence of counsel the appellant must show that the way her legal team conducted the trial was more than a mistake or an error of judgment and as a result she had not or might not have had a fair trial.

59.  Concerning the instructions the appellant claimed to have given to Ms Li during the conference on 13 January 2016, Mr Bruce relied on the fact that these instructions were not in the proof of evidence exhibited by D1 and the appellant and that Ms Li denied the allegations.  Ms Li testified that the appellant did not tell her the source of money found on her and did state that it was her wish not to give evidence. 

60.  Mr Bruce refuted the assertion that there was a conflict of interest in the cases of D1 and the appellant.  He argued that the mere fact that D1 and the appellant did not point to a third party did not mean they were pointing their fingers at each other.  There could be other explanations for their presence in the room, such as being friends of the tenant of the room.  The cases of D1 and the appellant were the same, namely that they knew nothing about the drugs, and so there was no basis in the instructions from the appellant to Ms Li to suggest that the drugs belonged to D1 and no basis for her to advise the appellant to testify against D1 and attribute responsibility for the drugs to him.  It was not the appellant’s instructions that the drugs belonged to D1 or could have belonged to him and it is not defence counsel’s role to manufacture a defence.

61.  Mr Bruce submitted that even if D1 and the appellant had been separately represented, the appellant’s counsel might still advise her not to give evidence, given that exposing her to cross examination might do more harm than good to her case, especially when she said she was not an eloquent person. 

62.  In respect of the money found on the appellant, Mr Bruce submitted that though it was an important piece of circumstantial evidence it is not of such inculpatory weight that it could be said that, absent an explanation from the appellant, a conviction would likely follow and that counsel was, therefore, under a professional duty to advise the appellant in strong terms of the need for her to testify.  Even if trial counsel had underestimated the importance of the money found on the appellant, this would only amount to an error of judgment and fall short of “flagrant incompetence”. 

63.  Regarding the allegations against the trial solicitor that he failed to supervise his clerk Jacky Cheung and that Jacky Cheung was conducting the case as if he was a solicitor, the respondent submitted that, if proven to have been the case, it might be a disciplinary matter but it did not render the appellant’s trial unfair, as the appellant received proper advice from trial counsel.  Even if Jacky Cheung had conducted himself in his dealings with the appellant as if he was a solicitor there was no evidence that this in any way adversely impacted upon the fairness of the appellant’s trial. 

64.  As to the two undated plea bargain letters from D1, Mr Bruce relied on Jacky Cheung’s affirmation in which he stated that he had discussed the contents of D1’s letters during legal visits on 22 January 2016 and on 4 February 2016 and D1 had instructed him not to follow up on any plea bargain.  Mr Bruce argued that both D1 and the appellant could have raised the matter with the trial counsel had they wished to take the matter further.  Furthermore the prosecution was not bound to accept the plea bargain even if the defence proposed it.  Therefore, there was no unfairness caused to the appellant’s trial. 

Discussion

65.  No complaint is made by the appellant in respect of the sufficiency of the evidence which underlay the conviction or of the judge’s inferential reasoning process making use of that evidence to convict the appellant.  The appellant’s only complaint is that she did not receive a fair trial by reason of the incompetence of the whole of her legal term, namely the legal executive of her instructing solicitors firm, the instructing solicitor, and the counsel assigned by the Director of Legal Aid.

66.  In our approach to our consideration of this complaint we are guided by the comments of Lord Steyn in Boodram v The State[5]. In dealing with incompetence of counsel as a ground of appeal Lord Steyn said at page 118, paragraph 38:

“ Their Lordships have throughout kept two considerations firmly in mind. First, an appellate tribunal must approach complaints about counsel’s incompetence, and its effect, with a healthy scepticism. On the other hand, where it has been demonstrated that counsel’s failures were of a fundamental nature the Court must proceed with great care before it concludes that, on the hypothesis that the failures did not occur, the verdict of the jury would inevitably have been the same.”

67.  In the present case there is no admission by any of the legal representatives of any professional failing and so any allegation of incompetence can only be made out if this court accepts the evidence of the appellant and D1 in preference to the evidence of her legal representatives.  This raises questions of the inherent plausibility of what is being alleged and the credibility of the witnesses who have testified before us.   

68.  As we earlier indicated in this judgment there was a significant difference between the prosecution case pre-trial, as it appeared from the prosecution bundle, and the evidence that came out at trial.  This difference only became apparent in the course of Mr Tang giving evidence.  It was not apparent to the court, or the judge who granted leave to appeal, as both the court and the leave judge only had the appeal bundle and were not aware of the contents of the trial bundle.

69.  It is difficult to believe that this significant difference in the evidence was not known to Ms Chong.  Had it been known to her, she should have disclosed it to the leave judge and adverted to it in her written submissions.  It is a highly significant contextual element in this case.  Once apprised of this fact the leave judge could have considered whether to direct that parts of the trial bundle should be included in the appeal bundle, assuming that he was still persuaded that the grounds of appeal were reasonably arguable.

70.  This difference between the prosecution cases pre-trial and at trial is also highly relevant to our assessment of the credibility of the testimony we heard, to our assessment of the reasonableness of the actions of the appellant’s legal representatives and also to whether any unfairness flowed to the appellant as a consequence of the failure by Jacky Cheung to inform anyone of D1’s offer to plead guilty in return for the prosecution not proceeding against the appellant.

71.  The significance of the difference between the prosecution case pre-trial and at trial lies in the strength of the respective prosecution cases against D1 and the appellant.  The case against D1 was simply that he was found, bare chested, in the hotel room, with no direct evidence proving a link to the room, to the drugs or to the appellant.  The case against D1 became stronger at trial when evidence was adduced that he was an abuser of Ice, thereby linking him to the Ice pot and, via the Ice pot, to the room.

72.  The evidence against the appellant, however, was the opposite.  It was very strong pre-trial but became weaker at trial. Pre-trial the prosecution had secured a witness statement of an employee of the hotel stating that the appellant was the tenant of the room and a statement of a police officerstating that the appellant was in possession of a key to the room and that the appellant was in possession of a substantial quantity of cash in denominations of currency which were consistent with a person engaged in commercial transactions and for which no exculpatory explanation had been advanced.

73.  Crucial to understanding how the defences of D1 and the appellant were prepared before trial and conducted at trial is an appreciation of how different the prosecution cases were in these two periods of time.  From an evidential point of view the case, pre-trial, against the appellant was much stronger than the case against D1.  However, at trial there was no evidence to link the appellant to the room other than her mere presence in it.  The fact that D1 was bare-chested suggested he might well be an occupant of the room but that did not avail the prosecution as there was no evidence to show a connection between the appellant and D1.  Although married to each other, this fact also did not emerge at trial.

74.  Armed now with this knowledge of the context, we shall examine the grounds of appeal.  The first ground of appeal, asserting a conflict of interest, requires an assessment of the evidence placed before us on appeal in order to determine what instructions were provided by the appellant and D1 to their defence team.  For it is the instructions provided to counsel that will guide counsel in the strategy she employs in advancing the defence of her clients and the forensic tactics in which she engages in the course of the trial.

75.  The evidence of D1 was that he made full admissions of liability in his instructions to Jacky Cheung accompanied by an offer to plead guilty in return for the prosecution not proceeding against his wife.  The evidence of the appellant was that her presence in the room and her possession of the money could both be explained through evidence to be given by herself and her sister.

76.  The evidence of the legal representatives is that they received no instructions of a positive exculpatory defence case. Their instructions were simply a bare denial of guilt and a determination to put the prosecution to strict proof.  D1 and the appellant would make no admissions other than that they were both found to be present in this hotel room at the time of the police raid.

77.  Having heard the appellant and D1 give evidence we have no hesitation in rejecting their testimony.  It is unsupported by the documents recording their instructions and contradicted by the evidence of all three members of the defence legal team, who remained unshaken in cross‑examination. The appellant’s oral testimony contained evidence not present in her affirmation, such as the claim that Jacky Cheung had told her in a telephone call that he had conveyed D1’s plea bargain offer to the prosecution, but that it had been rejected.  Furthermore, there was an inherent implausibility to their evidence.  Contrary to his own letters, D1 now claimed that he had raised the issue of a plea bargain in October 2015.  As to the appellant, she had many occasions to talk with Jacky Cheung about her case yet there is no record of the matters on which she now claims to have given instructions.  Explanations by her as to why she signed an incomplete proof of evidence and why she signed the document recording her decision not to testify are unbelievable.

78.  We note that the tactics adopted by Ms Li at trial were consistent with her written instructions and there is nothing in her conduct of the defence which would hint at her having knowledge of any of the matters on which it is now claimed she had instructions.  The decisions of both the appellant and D1 not to testify were documented and both signed on the document recording their decisions and the fact that prior to making their decisions they had received appropriate legal advice.

79.  Having rejected the evidential foundation for this appeal we turn to the question of whether there existed any actual or potential conflict of interest between the respective cases of D1 and the appellant.  In determining this issue we have been assisted by the comments of Lord Steyn in delivering the Advice of the Judicial Committee of the Privy Council in Mills v The Queen[6]. At page 523 he said: 

“It is axiomatic that counsel engaged on behalf of more than one defendant in a criminal case must consider whether there is a conflict of interest between them which might inhibit his proper and effective defence of one of them. Counsel must consider the matter in the light of the prosecution case and the instructions he receives from the defendants. If there is, or might be, a conflict of interest, he must promptly advise separate representation. Any doubt must be resolved in favour of separate representation. Those duties of counsel arise as soon as he is engaged. It is, however, a continuous duty. If at any time before the trial a conflict arises, counsel must advise separate representation of the defendants. If contrary to all expectations such a position arises at trial, counsel may be obliged to seek a discharge of the jury in order to enable separate representation at a new trial. These propositions flow from the right of a defendant to have his defence properly and effectively placed before the jury. It is an integral part of his constitutional right to a fair trial. But their Lordships add one qualification. The province of the law is practical affairs. The question is whether there is, or might be, a real risk of a conflict of interest inhibiting counsel in the discharge of his duties on behalf of one or more defendants. In a practical world wholly theoretical or fanciful risks can be disregarded.”

80.  Even assuming that the prosecution would have been able, by trial, to establish the marital link between the two, we do not see that there was any conflict of interest between their respective cases.  Both D1 and the appellant had the same defence, a bare denial of guilt.  Both had the same trial strategy, namely to put the prosecution to strict proof and neither had a positive defence case.  We agree with the respondent that the mere fact that neither D1 nor the appellant implicated a third party does not mean that they were necessarily implicating each other.  The two were, in terms of their trial defences, perfectly aligned.  In the present case there was no conflict of interest between the two sets of instructions.

81.  It is not unusual, especially when a defendant wants only to put the prosecution to strict proof of its case, for the defendant’s instructions to be bare in certain areas.  This may simply be because the defendant has no instructions in those areas consistent with his innocence.  In this situation counsel can query and probe the client but counsel cannot force the client to provide fuller instructions.  Nor is counsel required to speculate on how any gaps in the instructions might be filled and from such speculation to consider whether the two clients’ cases may fall out of alignment by future changes of instructions.  It goes without saying, counsel cannot create new instructions or seek to improve on existing ones. 

82.  The fact that D1 and the appellant were husband and wife was known to the trial counsel.  In the absence of specific instructions from the appellant of a defence which inculpated her husband, her counsel is not under a professional duty to advise her that her defence could benefit from her testifying against her husband.  It is clear from the testimony we have heard and the evidence of the WhatsApp messages that there was no disharmony between D1 and the appellant and they were fully supportive of each other throughout. It is quite unrealistic to suggest that the appellant might betray her husband by advancing a defence which would have been harmful to his chances of acquittal.  Nor would it have been proper to canvas on behalf of the appellant the possibility of the husband being responsible for the drugs without specific instructions to do so.  In the present case it is quite clear that both D1 and the appellant wanted to advance identical cases at trial.  

83.  On the allegation that Ms Li did not properly advise the appellant on whether to give evidence we reject the testimony of the appellant and D1. They both signed an acknowledgement of having received legal advice prior to making their decision, which was not to give evidence.  On their proofs of evidence, which we have found contained their instructions to counsel, neither could, realistically, give evidence.  Simply put, they had nothing to say; that is why their defences were conducted in the form of merely putting the prosecution to strict proof of its case.  

84.  There was no professional impropriety or failing in the conduct by Ms Li of the defences of D1 and the appellant.

85.  We turn now to the failure of Jacky Cheung to inform Mr Tang and Ms Li of the plea bargain letters.  There are two issues here.  First, whether Jacky Cheung should have disclosed the letters to Mr Tang and Ms Li and the secondly which only arises if he should have disclosed the letters, is the consequence of his not having done so.

86.  In respect of the first issue, it is clear that D1 was not just floating an idea, but was seeking legal advice on the merits of it.  It was not a matter on which Jacky Cheung, in his capacity as legal clerk, no matter how qualified and experienced he might be, could properly advise.  Nor should he have regarded the letters as having been written to him in his personal capacity.  They were letters from a person for whom he was acting, discussing his plea in respect of his trial and seeking legal advice on what he should do that would assist the appellant.  His duty required him to report to those who could provide the advice being sought by D1.

87.  Before turning to the second issue we remind ourselves that it is clear from the authorities that the appellate court does not look only at the errant conduct of the legal representative but also, and more importantly, at the effect of the errant conduct on the fairness of the defendant’s trial.  In HKSAR v Leung Shing Chi[7]Ma CJ, in giving a judgment with which the other members of the Court of Final Appeal agreed, said at page 896, paragraph 25:

“25. As Sir Thomas Eichelbaum NPJ explained, the expression ‘flagrant incompetence’ is used to underline ‘an appellant’s need to show much more than a mistake, an error of judgment, or a decision to follow one course when in hindsight another would have been preferable.’ Also, critically, what is decisive is the effect of the error, and whether as a result the appellant had not had or might not have had a fair trial.”

88.  Whether there was any adverse consequence to the appellant from Jacky Cheung’s failure has to be addressed in the context of the state of the evidence against the appellant pre-trial.  As we have demonstrated, the case against the appellant, pre-trial, was stronger than the case against D1.

89.  In this situation, no reasonable prosecutor would ever entertain the sort of plea bargain being raised by D1 with Jacky Cheung and there would have been no possibility of it being accepted.  But not offering the plea bargain does not mean that the appellant lost the chance of an acquittal; all that she lost was the chance of not being prosecuted.  Even if there was incompetence in not informing Mr Tang or Ms Li of D1’s proposal that failure had no impact upon the fairness of the appellant’s trial. 

90.  As to the possibility that D1 might have been a defence witness there was simply no evidence that D1 was willing to plead guilty in the event that his plea bargain was rejected.

91.  Of the complaint that Jacky Cheung received inadequate supervision, we have no reason to doubt Mr Tang’s testimony that he kept himself informed of the progress of the case and any developments in it through regular reports that he received from Jacky Cheung.  But, even if the supervision fell below what is desirable, there is no evidence that any failure to report by Jacky Cheung or any lack of involvement by Mr Tang had an adverse impact upon the fairness of the appellant’s trial. 

92.  A complaint was also made that Jacky Cheung’s documentary record of conferences in the form of attendance notes are nothing more than illegible, barely comprehensible, scribbled notes.  There is some merit to this complaint.  These records are important documents, as they record contact with the client and contain the client’s instructions.  They should have been typed up, so that their contents were legible, and they should have been more fully recorded, so that what they were documenting would be readily comprehensible to any person reading them.  If they are difficult to read or incomprehensible then they will not be capable of being properly understood by the supervising solicitor and instructing counsel.  Nevertheless, we are satisfied that the failure to do so, did not have any adverse impact upon the fairness of the appellant’s trial.

Conclusion

93.  For these reasons we dismissed the appeal against conviction.