HKSAR v. WONG CHI KEUNG and Others

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1996, No. 585
(Criminal)

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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 who was D1 at the trial below and who at the time of the alleged offence was a serving police officer was convicted by H.H. Judge Bailey of doing an act tending or intended to prevent the course of public justice contrary to common law.

2. He now seeks leave to appeal against this conviction.

3. As was recognised by the Judge this was an extraordinary case.

4. According to the prosecution case the Applicant together with two other serving police officers attempted to frame a man who had a bad criminal record with a petty offence of shoplifting.

5. The principal witness Mr. Chan Ka-leung gave evidence that in the afternoon of 9th February 1996 he was stopped and searched by three police officers in uniform who were members of the Police Tactical Unit. This took place at the junction of Soy Street and Portland Street in Mongkok. While one of the officers who was subsequently D3 in the proceedings below kept him under arrest at the entrance to a staircase nearby the other two officers, one of which was the Applicant, absented themselves for a few minutes. On their return they had a screwdriver and a glove.

6. Mr. Chan said that the officers threatened him if he didn't do what they told him to do, he would be charged with being in possession of these items.

7. What they wanted him to do was to go into a shop and steal an item from it. He considered that he had no alternative but to comply with the police officers' demand.

8. He first went into a 7-eleven shop and asked the manageress if there was a rear exit to the shop as he wished to use it. When he was told there was not, he left without stealing any item from the shop.

9. The manageress of the shop gave evidence at the trial that a man she later identified as Mr. Chan had indeed entered her shop on the afternoon in question and had requested to leave by the rear of the shop.

10. According to Mr. Chan he was then instructed to go and shoplift from Wellcome Supermarket which was nearby. After entering the shop he went to the storage area and attempted to open a door and effect his escape.

11. This activated an alarm. He was advised by two members of the staff to leave by the main entrance and he did so without stealing any items. Both these members of the staff gave evidence at the trial. They agreed that a man had attempted to leave the store in the manner described. They identified Mr. Chan as being that man.

12. One of them PW3 gave evidence that after the man left the store he saw him chatting to three police officers. After this Mr. Chan was told to shoplift from another 7-eleven store nearby. He did so. On this occasion he stole a container of soap. After he left the shop he was arrested by the officers and told that he would be charged with the shop-lifting.

13. He was taken back to the police station where he was told by the officer who was D3 below to sign a cautioned statement. He claimed that the statement was a total fabrication and that he was not the author of its contents.

14. Some five hours later Mr. Chan made a complaint to a senior expatriate police officer much along the lines of the evidence he gave in court.

15. All the police officers gave evidence at their trial. The Judge was not impressed by their testimony. The main criticism made by the Judge was that the notes from the respective notebooks which had been prepared by the officers were almost identical and in each case lacking in much of the detail one would expect having regard to the fact that the officers had been interviewed in respect of these offences some six days after the events in question.

16. After a most careful and detailed analysis of the evidence the Judge was satisfied at the appropriate level that all three defendants were guilty as charged.

17. The Applicant lodged home-made Grounds of Appeal. In fact these Grounds of Appeal went no further than to repeat the defence case which was before the Judge.

18. At the hearing before a partially differently constituted Court of Appeal the Applicant claimed that he had informed his counsel Mr. Tom Cheng that he wished to call two witnesses whose evidence would prove that he and his two colleagues could not at the relevant time have been present with Mr. Chan and have committed the offence. The evidence these men would have given would have been that they were stopped and searched by the Applicant and his two co-defendants at the trial below at 4:26 p.m. on 9th February 1996.

19. The Applicant said that he and his co-defendants had informed counsel in detail concerning this but the counsel had advised against calling these men as witnesses.

20. We were concerned about this as the Applicant appeared to be alleging either incompetence or misconduct on the part of his counsel. We accordingly adjourned the application and directed that the Applicant should receive legal aid.

21. This has been granted. Mr. Buchanan has filed perfected Grounds of Appeal.

22. He has also filed a notice of motion which is supported by affirmations affirmed by the Applicant and his two co-accused in the trial below. The notice is stated to be filed on behalf of the Applicant and his two co-defendants.

23. It is not clear how this can be justified. Mr. Mok who was D2 below abandoned his appeal against conviction and Mr. Chan who was D3 is out of time and has not sought leave to appeal out of time.

24. No reason is given in the affirmations filed to justify us in treating Mr. Mok's abandonment of appeal as a nullity or granting leave to Mr. Chan to appeal out of time. However as we were anxious that the matter should be considered on its merits, we decided to proceed so far as Mr. Mok and Mr. Chan are concerned on a de bene esse basis.

25. It is necessary to consider the notice of motion in conjunction with the supporting affirmations and more particularly the new perfected Grounds of Appeal. These are as follows:

"1. At the trial the principal prosecution witness, one Chan Ka-leung, PW1, gave contradictory evidence upon the time he was at various locations and positively asserted that he met the Applicants at 4:00 p.m. on 9th February 1996. The Applicants gave evidence that between 3:00 - 4:00 p.m. they had taken a meal at Mongkok Police Station and that at about 4:26 p.m. that day they stopped and searched two men. Nowhere in the Reasons for verdict does the Learned Trial Judge deal properly if at all with these discrepancies in the evidence of PW1 or the conflict in the testimonies between PW1 and the Applicants on this issue.

Further additionally or alternatively:

2. The Learned Trial Judge in his Reasons refers to each Applicant having a vague memory of stopping and searching two men at around 4:25 to 4:30 p.m. But in the aforesaid Reasons he found that each Applicant lacked any credibility and he did not believe their version as to the 9th February 1996.

Unbeknown to the Learned Trial Judge the defence lawyers had a statement from one Yang Hsu-tung in their possession which apparently confirmed that between 4:30 p.m. to 5:30 p.m. on the 9th February the aforesaid Yang Hsu-tung was indeed stopped and searched by the Applicants.

In the circumstances of the testimony of PW1 it was incumbent upon the defence lawyers at trial to properly advise the Applicants upon the calling of Yang Hsu-tung as a witness and the failure so to call him deprived each Applicant of a fair trial and led the Learned Trial Judge to draw unfair, wrongful and adverse conclusions upon the credibility of each of the Applicants."

26. If these grounds are read carefully it would appear to be central to the contentions which are being advanced that the Applicant did not obtain the legal advice and assistance he was entitled to expect.

27. What is very clear from Mr. Tom Cheng's letter is that he gave anxious consideration to the question as to whether Mr. Yang Hsu-tung should be called as a witness. He was one of the persons who was the subject of the alleged stop and search operation that afternoon. Mr. Cheng gave reasons for the advice he gave.

28. What is also very clear and is accepted by Mr. Buchanan is that the advice which was given could in no way be characterised as "flagrant incompetence" which is the threshold which has to be surmounted before this court can intervene see R. v. Doherty & McGregor [1997] 2 Cr App R 218.

29. Mr. Buchanan submitted that it was not necessary for him to establish flagrant incompetence. All that it was necessary for him to make out was that as a result of the way that the trial was conducted the Applicants had not received a fair trial. He was unable to produce any authority for this proposition.

30. There is however authority on this. The Court of Appeal of New South Wales Australia considered this matter in R. v. Birks [1990] 48 A Crim R 385. Gleeson, C.J. had this to say at p.390:

"In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.

As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. For example, in Rondel v Worsley [1969] 1 AC 191 at 241, Lord Morris of Borth-y-Gest quoted with approval the following statement of the Lord President in the Scottish case of Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, concerning the role of an advocate:

'... His legal right is to conduct the cause without any regard to the wishes of his client, so long as his mandate is unrecalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client's interests are thereby prejudiced.'

In Halsbury's Laws of England (4th ed), Vol 3(1), par 518 at 420, it is stated that:

'... a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.'

(See also Edwards Underwood and Edwards (1848) 3 Cox CC 82; Hatch v Lewis (1861) 2 F&F 467; 175 ER 1145; Matthews v Munster (1887) 20 QBD 141 and Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1 at 24 per Isaacs J.)

There is an evident tension between those principles, on the one hand, and on the other hand, the power and duty of a Court of Criminal Appeal to correct a miscarriage of justice. It would be wrong, however, simply to regard these as two competing considerations which must from time to time yield to some compromise. The principles as to the role of counsel, and the capacity of counsel to bind the client, are fundamental to the operation of the adversary system, and form part of the practical content of our notions of justices."

31. This reasoning was followed by the Court of Appeal here in Hong Kong in R. v. MO Lee-kuen [1993] 1 HKCLR 78. Fuad, V.-P. referred to Gleeson, C.J.'s summary of the law at p.85 of the report of the case:

"The relevant principles may be summarised as follows:

1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and 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. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."

32. It will be appreciated from this that no useful purpose is likely to be achieved by granting leave to introduce the additional evidence. A decision was made by the Applicants not to call Mr. Yang or the other witness referred to and we are satisfied that it is not necessary or expedient in the interests of justice to grant leave to adduce additional evidence pursuant to s.83(v) of the Criminal Procedural Ordinance. The motion is accordingly denied.

33. Turning to the Grounds of Appeal there is very little merit in the grounds advanced.

34. The Judge had before him two conflicting versions as to what transpired that afternoon. He was clearly impressed with the evidence of the prosecution witnesses. It is true that there were inconsistencies particularly as regards the exact time in PW1's evidence. However the Judge was obviously impressed with the evidence of the members of the staff of Wellcome Supermarket and accepted that the alarm for the rear door had been activated at 4:45 p.m. This evidence was strongly supportive of the prosecution case. It was also very difficult to reconcile it with the evidence of the police officers that they had conducted a stop and search operation at 4:26 p.m. of Mr. Yang.

35. There was no independent evidence to support the police officers' testimony that they could not have been with PW1 at the time he referred to.

36. As Mr. Buchanan is unable to contend that Mr. Tom Cheng has been guilty of flagrant incompetence it is not open to him successfully to argue the 2nd ground that as a consequence of counsel's advice the Applicants did not receive a fair trial.

37. It is evident that Mr. Mok and Mr. Chan's applications are based upon the Applicant's appeal and this being the case we declined to grant Mr. Mok leave to treat the abandonment of appeal as a nullity and Mr. Chan's application for leave to appeal out of time.

38. So far as the Applicant's application is concerned this is refused for the reasons we have given.