HKSAR v. LIU KWONG FAI

CACC 672/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 672 OF 1997

(ON APPEAL FROM HCCC 229/1997)

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The Applicant was found guilty of trafficking in a large quantity of dangerous drugs after a trial before Deputy Judge Gill and a jury in High Court. He was sentenced to 24 years imprisonment. He now seeks leave to appeal against his conviction and the sentence which was imposed.

2. Particulars of the offence were:

"LIU Kwong-fai, on the 5th day of April, 1997 at Nam Cheong Street, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 4,191.98 grammes of a mixture containing 3,183.47 grammes of heroin hydrochloride."

3. According to the prosecution, on the morning of 5th April 1997 two police officers were on traffic duty at Nam Cheong Street, in Kowloon. They saw the driver of a Toyota motor-car commit a minor traffic violation. They pulled him over and asked him to produce his driving licence. The man in question was the Applicant. They learned that he had been driving the car while being disqualified from doing so. They also noticed that he had two mobile telephones and three pagers and appeared to be very nervous. They called for backup assistance. While waiting for this the officers asked him if he was the owner of the car and he replied in the affirmative. He also said that he had not given the key of the car to anyone else. When the backup officers arrived the car was searched and a blue travelling bag was found in the trunk. The officers asked what was in it and the Applicant made no response. They opened it and saw that it contained twelve white blocks which they suspected to be dangerous drugs. The officers then cautioned the Applicant and he replied with words to the effect "Sir, there is nothing to chat about now." One of the officers recorded this exchange in his notebook and the Applicant signed the entry.

4. The Applicant did not give evidence at his trial.

5. The amended perfected grounds of appeal read:

"1) Trial Counsel was flagrantly incompetent in that:

a) In the circumstances of the case, the evidence elicited by the Prosecution (and the evidence admitted as facts by the Defendant), and in light of the applicant's instructions, trial counsel did not properly advise the applicant on the weight and significance of the evidence adduced against the applicant;

b) neither did trial Counsel stress the impact of the prosecution's evidence as it stood unrebutted;

c) nor did he impress upon the applicant that the only realistic prospect of securing an acquittal and or the only basis upon which the jury could properly consider the applicant's defence lay in the defendant giving evidence before the jury and that in the absence of such evidence a conviction was virtually inevitable.

2. In the light of the advice received, the applicant was misled as to the strength of the case against him, the significance of his own evidence, the likely outcome of the trial and as to whether he would be better off not to give evidence.

3. In all the circumstances the applicant did not receive a fair trial since he was deprived of full reasoned and proper advice upon which to make a valid or meaningful election in his own best interests whether to exercise his right to give evidence or not."

6. As is customarily the case the counsel who represented the Applicant at his trial was invited to comment upon the allegation made against him by his client that he failed to impress upon him the importance of his going into the witness box and giving evidence to provide an explanation for the presence of the heroin found in the trunk of his car failing which a conviction would almost inevitably ensue.

7. Mr. Hagon the trial counsel who was an experienced practitioner in criminal law has sworn an affidavit and a supplemental affidavit which lie before us. He has not been cross-examined on this. It is accepted that the affidavits are true and accurate and Mr. Lunn, S.C., on behalf of the Applicant, invited us to prefer these to the Applicant's own affirmation where conflict existed.

8. While it is undoubtedly accepted that the prosecution case was a strong one, it was a case based on circumstantial evidence. It required the jury to draw an inference that the Applicant had knowledge of the dangerous drugs in the trunk of his car.

9. It was by no means inevitable that the jury would have been prepared to draw the inference that the Applicant had knowledge of the existence of the dangerous drugs. The fact that the jury sought further assistance on this topic supports this.

10. However the important point to be borne in mind in this case is that if the Applicant had gone into the witness box he would no doubt have been subjected to a vigorous cross-examination. On the client's instructions he was unable to give sufficient personal details of the man he alleged to have had possession of his car to enable the police to make inquiries of him. Also the explanation which presumably the Applicant would have had the jury accept would have required them to believe that "Sai man" would have been prepared to leave very valuable dangerous drugs in the trunk of the car while to his knowledge the Applicant had keys to the car.

11. What is manifest is that the explanation which would have been furnished by the Applicant was to say the least highly implausible.

12. What is clear is that what was required was a balancing exercise as to whether the disadvantage of exposing himself to cross-examination outweighed the advantage of placing before the jury his explanation for the presence of the dangerous drugs.

13. On the basis of the contents of Mr. Hagon's affidavit it would have been foolhardy and indeed wrong for counsel to have urged the Applicant to go into the witness box. It was a decision which had to be made by the Applicant and there is no reason whatever to conclude that counsel was in any way derelict in his duty much less that it could be suggested that he was guilty of flagrant incompetence. In no way does this meet the criteria referred to at p.1187 of R. v. Clinton [1993] 1 WLR 1181.

14. It is also helpful to refer to the R. v. Li Wan-keung unreported being Mag. App. No. 580 of 1996 where Patrick Chan, J. (as he then was) commented upon the Court of Appeal case of Ho Ling unreported being Crim. App. No. 327 of 1994 at p. 3:

"Counsel for the appellant drew my attention to the case of Ho Ling (unreported) Crim. App. No. 327 of 1994 in which the learned Chief Justice giving judgment of the court had this to say at p.5:

'Counsel for the applicants submitted that in this case their evidence was essential. Without giving evidence their convictions were inevitable. There is nothing to show that trial counsel impressed upon these two accused that not to give evidence in this case meant that conviction must necessarily follow.'

'The evidence against them was overwhelming, and conviction would inevitably follow unless successfully challenged. Evidence given by the applicants might or might not have helped them, though it should be acknowledged that their chances of obtaining an acquittal were slim in any event. Be that as it may, the absence of evidence on their part was fatal. The consequence of counsel's failure to explain the situation to them in clear terms was that the convictions were unsafe and unsatisfactory.'

In that case, the Court of Appeal allowed the appeal."

15. Patrick Chan, J. continued:

"In my view, there is a danger that what the learned Chief Justice said in that case might be misunderstood to mean that in every case where a convicted defendant who alleges that he was not adequately advised would have his appeal allowed as a matter of law. That is clearly not what the learned Chief Justice said or meant at all. Every case has to be considered in the light of all the circumstances, including what happened in the court below. At the end of the day, as counsel for the Crown submitted, the question to be asked must be: did the appellant have a fair trial in the court below?"

16. Pausing here it would perhaps be more accurate to state that the correct test is whether there has been a miscarriage of justice.

17. And then Patrick Chan, J. said again at p.4:

"... Some degree of trust or confidence must be placed by defendants in their own counsel and lawyers. Otherwise the system simply cannot work. If this type of complain were to be readily accepted on appeal, lawyers would be constantly worried of complaints on their conduct of the case and may not be able to freely and fearlessly do their best for their clients."

18. We would strongly support the validity of these observations.

19. We also accept the correctness of the submission made by Mr. Saw, S.C. for the Respondent that the Court of Appeal should be reluctant to interfere where:

(i) There are alternatives open to counsel when rendering his advice and one is chosen over another, even if counsel on appeal advocates, the other (with the benefit of hindsight);

(ii) The advice (not to give evidence) does not result in a specific defence being omitted.

20. It is important that these principles are adhered to so as to obviate a spate of unmeritorious appeals.

21. For the reasons we have given the application for leave to appeal against conviction is dismissed. There was also no merit in the Applicant's application for leave to appeal against sentence. The sentence although a heavy one was well within the R. v. Lau Tak-ming [1990] 2 HKLR 370 guidelines.