HKSAR v. HUI KIN FAI

[English Translation – 英譯本]

HCMA 1095/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1095 OF 2004

(ON APPEAL FROM TWCC NO. 2414 OF 2004)

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BETWEEN

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Dates of Hearing: 12 May and 10 August 2005

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JUDGMENT

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Background

1. The Appellant was convicted after trial before the magistrate on one count of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong and was sentenced to imprisonment for 3 months. He appealed against conviction. After hearing, I allowed the appeal, quashed the conviction and set aside the sentence. I now set out the reasons for my decisions.

Prosecution case

2. PW1 (hereinafter “the complainant”) was a female clerk. At about 9.10 a.m. on 28 June 2004, she was on the way to work. When she was walking along the pedestrian subway at Hing Ning Road, Kwai Chung, she noticed a shadow on her left hand side, which she then tried to avoid by moving to the right. The Appellant then walked past her on the left, touching her left buttock with his right hand. The complainant demanded an explanation from the Appellant but he ignored her. She followed the Appellant and continued to ask him for an explanation, and suddenly he scolded her loudly with foul language and purported to use force to scare her off. Subsequently, when she arrived at the lift lobby of the building where her office was located, she saw the Appellant walking into the elevator. She then called the police and the Appellant was arrested.

Defence case

3. The Appellant elected not to give evidence. Nor did he call any witness.

Grounds of appeal

4. The Appellant has raised several grounds of appeal, but in my view it is only necessary to deal with the first of those grounds for the purpose of this appeal. This ground is that Counsel for the Appellant had at trial wrongly conceded that the Appellant’s hand touched the complainant accidentally, and such concession was inconsistent with the Appellant’s cautioned statement and the evidence of the defence witnesses. As a result, the Appellant was deprived of a fair trial. In other words, the Appellant is complaining that his Counsel had been flagrantly incompetent.

Facts being relied on

5. The relevant evidence before me includes the transcript of the proceedings at trial as well as affirmations of the Appellant and his Counsel.

6. As I gather from the above documents, what happened is that, in the written cautioned statement that he made following the arrest, the Appellant denied having had any contact with the complainant. He admitted that he had walked along the subway in question, with his right hand holding a briefcase and his left hand a suit jacket and a document bag. He said he had not touched the complainant with his hand, nor did he recall having “bumped into” the complainant. He also said that, although he did not know the complainant, he had previously had an argument with her at a restaurant over matters regarding smoking.

7. Upon being prosecuted, the Appellant managed to locate one Ng Ka Fat, who ran a stall near the subway in question selling batteries and radios, and took him to the law firm acting for the Appellant for the purpose of recording a written statement. According to this statement, Mr Ng saw the complainant being hit once by the black nylon briefcase that the Appellant was carrying. At that time the Appellant was walking in haste. Mr Ng thought that the Appellant was in a hurry to work and therefore did not notice that he had hit the complainant. Mr Ng said the Appellant walked straight to “the end of the subway”, and the complainant was stunned for a moment and, after a few seconds, yelled “indecent assault” and chased the Appellant to “the end of the subway”. Mr Ng had no idea what happened afterwards.

8. The above shows that the Appellant denied having had any contact with the complainant and firmly denied that his hand had touched the complainant. He said he did not recall having “bumped into” the complainant, whereas Mr Ng pointed out that the briefcase that he (the Appellant) was carrying had hit the complainant.

9. I have had an opportunity to read the instructions given by the Appellant to his Counsel regarding the defence. The Appellant made it clear that he had not committed the offence in question and that he “believe[d] the incident was a misunderstanding”. He also indicated that he would call Mr Ng to give evidence.

10. The transcript of proceedings reveals that Counsel for the Appellant started cross-examining the complainant by asking her what part of the hand it was the shadow of which she said she saw and whether the hand was holding a suit jacket at that time. Counsel also asked the complainant “is it possible that he accidentally hit you once” (see transcript page 17 at E). Never had Counsel put it to the complainant that she might have been accidentally hit by the “document bag”/“briefcase” the Appellant was holding.

11. After putting to the complainant the allegation that the Appellant had previously had an argument with her at a restaurant over matters regarding smoking, Counsel told the magistrate that he had no further questions. At that point of time, the magistrate obviously did not have a clear idea of what the Appellant’s defence was. The magistrate then made inquiries of Counsel. The relevant extract (transcript page 22 at J) is reproduced below:

Court:            Or is the ground of defence that his hand accidentally touched the witness’s buttock or that the incident didn’t occur at all and was a frame-up? This is because …

Mr Ng:          Accidentally touched – accident …

Court:            … – is it that the witness’s handbag hit his head, that this incident never occurred at all because of the past quarrel between them?

Mr Ng:          The ground of defence is accidental touching.

Court:            It is accidental touching, right?

Mr Ng:          Accidental touching, yes.

Court:            Thank you.

Miss Chan:    Yes.

Court:            Any re-examination?

Miss Chan:    Yes.

12. Counsel never clearly indicated to the magistrate that the Appellant merely hit the complainant accidentally with the “document bag”/“briefcase” he was carrying.

13. In the paragraph in the Statement of Findings regarding assessment of evidence (Appeal Bundle page 13), the magistrate pointed out that:

(2)     PW1 said that, when the Appellant passed her on her left hand side, his right hand came into contact with her left buttock. This the Appellant has not disputed. It can therefore be seen that what PW1 said is true. … [emphasis added]

This shows that the concession made by Counsel before the magistrate was crucial in the present case.

Relevant law and cases

14. In HKSAR v. Pang Oi Kwok, CACC 463/2003, the Court of Appeal referred to the Australian case of R. v. Birks (1990) 48 A. Crim. R. 385 and the Hong Kong Court of Final Appeal case of Chong Ching Yuen v. HKSAR, FACC 7/2003, from which the following general principles can be derived:

1.    Defence counsel is entitled to conduct a case in a manner which he considers most favourable to his client, regardless of whether it is in accordance with his client’s wishes.

2.    It is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3.   An appellant who alleges that his counsel has made an error bears the burden of proving it “on a balance of probabilities”.

4.    The fact that a decision or tactic is in hindsight insensible or erroneous does not constitute a ground for setting aside a conviction unless serious incompetence is shown on the part of counsel who made such decision or adopted such tactic.

5.    Generally speaking, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground of appeal. Nor do other pure errors of judgment give rise to a ground of appeal.

6.    The ultimate issue is whether a miscarriage of justice has been caused.

Judgment

15. In his affirmation, Counsel for the Appellant stated that, on the basis of the Appellant’s signed instructions and the written evidence of the defence witness, it was appropriate to make the concession in question. With respect, we do not agree with this. As the Appellant never admitted that he had touched the complainant with his hand, Counsel for the Appellant should not have made the concession.

16. In my judgment, the error committed by Counsel for the Appellant at trial amounted to serious incompetence which had deprived the Appellant of a fair trial. For this reason, I allow the appeal, quash the conviction and set aside the sentence.