HKSAR v. SINGH HARJANG

CACC 196/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 196 OF 2000

(ON APPEAL FROM DCCC 1087/1999)

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REASONS FOR JUDGMENT

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Hartmann J: (giving the judgment of the court)

1. On 31 October 2000, we dismissed this application on the basis that it had no merit whatsoever, ordering that 164 days of the time the Applicant had spent in custody should not count toward his sentence. We now give our reasons.

Introduction.

2. On 8 May 2000, following a trial in the District Court before Judge Day, the Applicant was convicted of 2 offences; that is, doing an act tending and intended to pervert the course of public justice, contrary to Common Law, and wounding with intent, contrary to Section 17(a) of the Offences against the Person Ordinance, Chapter 212. The Applicant sought leave to appeal against both convictions.

The factual background.

3. It was the prosecution case that on the afternoon of 19 September 1999 a man named Singh Harwinder ('Harwinder') was stopped on the street by 5 other men who led him onto a nearby construction site. The Applicant was one of those 5 men. The purpose of this confrontation with Harwinder was to dissuade him from giving evidence for the prosecution in a criminal trial due to commence in 2 days' time. The Applicant took a leading role in attempting to dissuade Harwinder. It was alleged that he did so because he was one of the accused in that forthcoming trial.

4. In respect of that trial, it was alleged that the Applicant had been the member of a gang that had attacked Harwinder and his friends. More specifically, it was alleged that the Applicant had used a weapon to wound Harwinder on his right shoulder. Harwinder was to be an important witness for the prosecution, testifying that he was able to identify the Applicant and others as his assailants.

5. When confronted on the construction site by the Applicant and his four supporters, Harwinder insisted that he would still testify at the forthcoming trial. It was the prosecution case that the Applicant then took out a knife, slashing Harwinder across the palm of his hand. Harwinder was pushed to the ground and, while lying face down, was wounded twice more, both wounds consisting of lacerations to his upper back.

6. If the purpose of causing these injuries to Harwinder was to dissuade him from testifying, it failed. Harwinder did testify at the forthcoming trial ('the first trial'). At the conclusion of that trial the Applicant was convicted of wounding with intent.

7. Indeed, Harwinder further testified at the trial which is the subject of the application now before us ('the second trial').

Grounds of appeal.

8. Essentially, the Applicant advanced two grounds of appeal. First, he submitted that his conviction in the first trial had been revealed to the court at the beginning of the second trial thereby rendering his conviction in that second trial unsafe and unsatisfactory. Second, he made a number of most serious allegations concerning both the professional competence and ethical conduct of his trial counsel, Ms Mahinder Panesar. It should be said immediately that we found no substance in these allegations. We were satisfied that they were purposefully malicious and were employed by the Applicant as a cynical device to secure his own interests.

The first ground of appeal.

9. In the written opening presented to the court at the commencement of the second trial, it was necessary for the prosecution to identify the course of justice which it alleged the Applicant had attempted to pervert. It was not necessary to state the outcome of that course of justice. The prosecution, however, told the court that the Applicant had at the first trial been convicted of wounding with intent and had been sentenced to imprisonment. While this is regrettable, it is apparent that the results of the first trial were incorporated into the structure of the defence case with the intent of undermining the credibility of Harwinder, the principal prosecution witness in both trials. The result would, therefore, have been revealed to the court in any event.

10. Having attempted to exploit the mixed verdicts of the first trial to his advantage, the Applicant cannot complain that his conviction in the second trial was rendered unsafe by the court learning of those earlier verdicts during the prosecution opening.

11. In any event, in his reasons for verdict Judge Day made it clear that he had dismissed from his mind any possible prejudice that may have resulted from his knowledge of the Applicant's conviction in the first trial. In this regard he recorded that, even where the principal prosecution witness and the accused are the same, the prosecution cannot be helped by an earlier conviction.

12. As to the suggestion that the mixed verdicts in the earlier trial had undermined Harwinder's credibility, the judge said:

"If D1 [the Applicant] has been acquitted of all charges and PW1 [Harwinder] disbelieved on oath, then the defence in this case would have been assisted by that finding, but that did not happen. I do not know why D1 and the other defendants were acquitted of some charges in the face of evidence given by PW1 and others and must not assume that PW1 was disbelieved on oath, particularly as his evidence was apparently believed on the remaining charge.

I have asked counsel if there is anything in the judge's judgment which casts doubt on PW1's veracity in that trial, but she has not been able to point to anything of this nature. It seems to me that if she had been able to point to a section of the judgment in which the judge expressly disbelieved PW1 then that would have been helpful to the defence in this case. The absence of such criticism does not, of course, help the prosecution."

13. In our view, the judge cannot be faulted in his reasoning and we find no substance in the Applicant's first ground of appeal.

The second ground of appeal.

14. The allegations made by the Applicant against his trial counsel, Ms Panesar, were of such seriousness that we asked her to file an affirmation dealing with the various complaints. This was done. The Applicant, however, did not accept the contents of that affirmation and Ms Panesar was cross-examined by him. The Applicant further chose to testify in support of his various allegations. In addition, on his application, we gave leave for him to call three witnesses.

15. What then was the substance of these allegations?

a. An alleged relationship between counsel and Harwinder.

16. In his written grounds of appeal, the Applicant made the allegation that Ms Panesar was a 'cousin' of Harwinder, a fact which was kept secret from him. If that was the case, it created a profound conflict of interest. Ms Panesar, however, denied any form of relationship with Harwinder, whether of blood or friendship or of any other kind.

17. The Applicant possessed no evidence to support his allegation. Indeed, having originally alleged some form of blood relationship, even if it was a distant one, he then abandoned that allegation and suggested only that Ms Panesar had, a month or so after the second trial, been seen in the company of Harwinder and a man described as Harwinder's uncle.

18. In an attempt to substantiate this allegation, he called Singh Baljinder, one of his co-accused in the first trial, a person against whom Harwinder would have testified. This witness said that he was waiting in his solicitor's office for an appointment when he saw Ms Panesar with Harwinder in one of the office conference rooms. He could only see the two of them, he said. He could not see a third person. No mention was made by him of a third person in the form of Harwinder's uncle. When asked to state when this event had taken place, the witness could only speak in the most general terms. Initially, he was incorrect even in his recollection of the year. He was a witness devoid of credibility. Ms Panesar, in the strongest of terms, denied any such meeting or any meeting of any similar kind with Harwinder.

b. Allegations of financial impropriety.

19. In his written grounds of appeal, the Applicant spoke of a heated discussion with Ms Panesar which took place in the courtroom during the second trial. During this conversation he said he accused her of accepting money from the 'other group'. He had no evidence, however, to support an allegation of such seriousness. He called two witnesses to this supposed conversation neither of whom spoke of this accusation and it is indicative that in his oral submissions the Applicant appeared to abandon any such suggestion.

20. Instead, he alleged that during this conversation he had sought to dismiss Ms Panesar as his counsel but had been told that, if he did so, the funds already paid to enable her to represent him in an appeal against his conviction in the first trial would be confiscated by her. For fear of being unable to prosecute his appeal, he agreed to her continued representation.

21. Suffice to say, Ms Panesar, again in the strongest of terms, denied any such threat by her. As a barrister, she said, she did not have possession of the Applicant's funds, they were lodged with the instructing solicitors. Ms Panesar accepted that there had been a discussion but said that it had arisen because she felt she could no longer represent the Applicant. He had, however, asked her to remain as his counsel, a request to which she agreed. She said that she had then obtained the Applicant's signature to confirm his request. When shown this signature, the Applicant at first denied it was his. He then admitted it was but suggested it was not his 'normal' signature.

22. Neither of the witnesses called by the Applicant to testify to his version of the conversation assisted his cause. The first witness was his mother who, having given a short, almost incomprehensible version of what she heard, diverted cross-examination by saying that her mind was not right and she could no longer remember. The second witness was the Applicant's brother-in-law, his co-accused in the trial. He too at the time had been represented by Ms Panesar. His evidence was at best tentative. All he purported to recall was a statement by Ms Panesar to the Applicant that, if she was dismissed, any moneys previously paid would not be refunded. Considering that Ms Panesar had represented the Applicant at a number of earlier hearings, it would not in any event have been an objectionable statement. It did not in any way support the Applicant's allegation that Ms Panesar had threatened to confiscate moneys paid for an entirely independent matter; namely, a pending appeal.

c. Counsel's competence.

23. The Applicant contended that records related to his use of his mobile telephone would prove that he was not at the scene of the crime. He said that he instructed Ms Panesar to obtain these records. She had, however, ignored his instructions.

24. Again, we are satisfied that there is no substance whatsoever in this allegation. The records show that an adjournment was obtained by Ms Panesar for the specific purpose of obtaining the records. Ms Panesar testified that she had obtained them and, in fact, had them available for inspection by us if we wished. She said that the content of the telephone records had been discussed with the Applicant who had been advised that the evidence they contained would not assist his case, indeed the contrary was the position. It was for that reason, she said, that no mention was made of the records at trial.

25. A number of other allegations were made by the Applicant. They were centred essentially on counsel's refusal to put certain questions to witnesses when he had requested they be put. Ms Panesar recalled declining to put a number of questions. This was done, she said, because in her professional opinion the questions were either irrelevant or embarrassing to the defence and, in any event, would in no way have advanced the defence case. It goes without saying that counsel is not simply a mouthpiece.

Conclusion.

26. We are satisfied that the allegations made by the Applicant against his trial counsel were utterly without substance. They were, however, allegations aimed at undermining the professional integrity of his counsel. They were flagrant and cynical and deserving of this court's condemnation. It was for this reason that loss of time was ordered.