THE QUEEN v. LAU CHUN BIU

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J U D G M E N T

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Penlington, J.A.:

1. This is the judgment of the Court.

2. This is an application for leave to appeal against conviction on a charge of conspiracy to defraud, heard by Judge Wilson in the District Court in which the applicant, who was the 5th defendant in the trial below, was alleged to have played a part in an elaborate conspiracy.

3. The background of this scheme was to obtain payment for video recorders from an American businessman by deceiving him into believing that a large number of cartons contained recorders whereas in fact they only held bricks. This involved the printing of false "National", brand cartons the buying of bricks, the hiring of some real video recorders so that when the goods were inspected, and care was taken that only some of them were inspected, the cartons seemed genuine and all contained recorders.

4. It is alleged that the applicant was the financier and provided the overhead expenses involved in printing the cartons, hiring a godown and video recorders and making wooden crates. These payments were alleged to have been made in the presence of other conspirators. It is also alleged that, on one occasion, whilst the bricks were being packed into the cartons in the godown, the applicant was present and saw what was going on.

5. However the, only evidence against him was that of one Hon Hong, who was also a conspirator named in the charge, who was granted immunity and gave evidence for the Crown. Unfortunately it is the applicant's ground of appeal that he was not asked for proper instructions and that the instructions he did give as to his defence were not properly implemented by his solicitors and counsel, who were assigned on his behalf by the Director of Legal Aid.

6. Affidavits have been sworn and filed by the applicant himself and also by his present solicitor, the latter one exhibiting a series of correspondence with the applicant's former solicitors, former counsel and the Director of Legal Aid. These letters show that the applicant is not correct when he says that no instructions were taken from him. While written instructions were not recorded and signed by the applicant, as should have happened, there are notes taken of conferences one before trial and two during its course. At the pre-trial conference counsel was instructed that the applicant was not aware of the fraudulent scheme but had met some of the conspirators when pressing Hon Hong for payment of a debt. However it seems clear from those instructions, the applicant having waived privilege that the essence of his defence was that this was a prior existing debt, quite independent of the conspiracy, owing to him by the 1st defendant Chan Yam Yick, the ringleader in this conspiracy but who failed to answer to his bail. It was his case that he had been given two cheques, each for $20,000, by the 1st defendant, that the cheques had been dishonoured and that he was pressing very hard for payment. These cheques were available. Also that it had been agreed with the 1st defendant that $20,000 would be repaid by assigning to the applicant a debt allegedly due from Hon Hong to the 1st defendant.

7. When Hon Hong gave evidence the fact that there was a debt owing although Hon Hong said he was forced to admit it, was established as was the fact that it had been partially repaid. What as not established was who it was due from and the essential thing, it seems to us, was that the allegation that this was debt entirely independent of the conspiracy should have been put to Hon Hong. It was established in cross-examination, although it was a very brief cross-examination, that the money had been paid in part. It seems to us that it was then essential that, it should have been put that this debt was not part of the moneys being paid to finance the conspiracy and that its recovery was the purpose of the applicant being at the 1st defendant's office.

8. The applicant also denied being present when bricks were put into the cartons but that was also not put to the witness.

9. It is difficult indeed, and courts have always been most reluctant to query the way in which a criminal defence is run because that is very much a matter for counsel's discretion.

10. In R. v. Gautam^(l) counsel did not take instructions on the calling of medical evidence as he considered it would conflict with the main line of defence in a shoplifting charge. The appeal was dismissed it, being held that such a decision was one for counsel to make in his discretion. That was followed in R. v. Swain⁽²⁾, O'Connor L.J. however noting that an appeal would he allowed if the appellant "might have suffered some injustice as a result of flagrantly incompetent advocacy". In R. v. Irwin⁽³⁾ on a retrial where counsel decided without instructions not to call certain alibi witnesses who had given evidence at the first trial ant the jury had been unable to agree, the appeal was allowed on the basis that the witnesses having given evidence at the first trial counsel should have called them unless he had instructions not to do so from his lay client.

11. The leading decision in Hong ktong is Keung Ping Kai and Another v. The Queen⁽⁴⁾ where Roberts C.J. said that it afford a ground of appeal negligence by counsel Must be "of a high degree"(P.245). He went on to say that failure to put his clients case to a witness while it should be done, was not a crave irregularity. The judgment concludes, at P.248, that "it is to be assumed, in the absence of evidence to the contrary, that he (counsel) acted in accordance with his assessment of the best way to conduct the case on behalf of his client. It is not for the courts to substitute their judgment on how a case should be conducted, for that of counsel."

12. The point was again considered in R. v. Cheung Chi Ming⁽⁵⁾ where Kempster J.A said that allegations of incompetence by advocates or legal advisors could be "unmeritorious grounds of last resort or expressions of deep and genuine grievance". There the evidence against the appellant was held to be "overwhelming" and privilege was not waived so the Court was not aware of what the instructions had been The appeal, based on failure to put the defendants case fully to the Crown's witnesses, was refused, on the basis of the principles in Keung Ping Kai and Another⁽⁴⁾.

13. Here the Crown's case against this applicant was very far from overwhelming and we are aware of his instructions. He did not dispute being at Dl's offlce when other conspirators were there. It was however the essential element of the defence that he was there to recover the debt owing, not to take part in the fraud.

14. It seems to us that it was essential that that aspect of Hon Hong's evidence should have been canvassed fully with him. The fact that the applicant totally denied being present when bricks were put into the cartons should also have been put to Hon Hong.

15. With reluctance we are forced to the conclusion that if these aspects of the matter had been so put, the District Judge, in view of the fact that there was only one witness against the applicant and he was clearly very much implicated himself, may have concluded that the evidence against this applicant was insufficient to prove the charge beyond reasonable doubt, even though the applicant elected not to give evidence himself.

16. We consider that on the very particular facts here there may be an injustice and for those reasons grant the application, treat the hearing as the appeal, allow the appeal and quash the conviction.

17. We have been addressed by Crown Counsel on the question of retrial. He points out that there was evidence, albeit from a conspirator, which was accepted. That this appeal is allowed is certainly not due to any fault of the Crown or the trial judge but do take into account the fact that this conspiracy took place between October 1984 and February 1985, inevitably memories of witnesses must have faded in that time. The applicant has been in custody for some 6½ months and allowing for normal remission would only have had some 11 months left of his sentence to serve. The only evidence against him is that of a co-conspirator. On the facts of this particular case, we will not order a retrial.

(1) 1987 C.L.R. 109

(2) 1987 C.L.R. 109

(3) 1987 A.C. 1085

(4) 1981 H.K.L.R. 239

(5) Criminal Appeal 78/1986