THE QUEEN v. CHEUNG CHI-MING

IN THE COURT OF APPEAL

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JUDGMENT

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Kempster, J.A.:

1. This is the judgment of the Court.

2. Every so often Courts in Common Law jurisdictions are invited to entertain appeals or applications for leave to appeal against conviction based on the alleged incompetence or dereliction of duty on the part of advocates and legal advisors. Sometimes they appear to be unmeritorious grounds of last resort and at others the expression of deep and genuine grievance. Statements of principle as to when the, appellate court will and when it will not intervene are few and far between and not readily reconcilable. We are presently seised with such an application by Cheung Chi-ming who, on 5th February 1986, was convicted by Judge Leonard at Kowloon District Court on five charges of claiming to be a member of an unlawful society, blackmail and criminal damage arising out of two incidents.

3. The prosecution evidence, which appears to have been overwhelming, demonstrated in relation to the first incident that on an occasion in early July 1985, at about midnight, the applicant entered a noodle shop on the Lam Tin Estate, Kowloon, and proceeded to announce to the woman in charge that he was a member of a Triad Society and required $2,000 each month as protection money. Her unenthusiastic response prompted him to reinforce the implicit threat by shattering the glass of the entrance door with a stool. In relation to the second incident, which closely followed the pattern of the first, the prosecution evidence demonstrated that at about 1.20 a.m. on 21st August following the applicant, together with about 10 others, again entered the noodle shop and again announced that he was a member of a Triad society. He then informed the man at that time in charge that he had come to collect $2,000 'protection money'. When no money was forthcoming he and his companions entered the shop and damaged electrical appliances and mirrors worth some $3,500.

4. Giving evidence the applicant claimed to be a regular patron of the shop and admitted having visited it in July and on 21st August 1985. However, he denied the material allegations of the prosecution witnesses and suggested that they had given false evidence at the behest of the owner of the shop whom he owed betting debts of $3,600. The applicant's solicitor, assigned by the Director of Legal Aid, had received instructions to this effect before trial and, indeed, so cross-examined the Crown witnesses as to foreshadow the defence which the applicant in due course advanced. However, he did not, as is usually essential to the proper defence of an accused and to the fair appreciation of the effect of a witness's testimony, suggest to them that their evidence on the material allegations was untrue or otherwise test or probe the reliability of their recollection. Indeed, at one stage the trial judge intervened to inquire whether or not such evidence was in dispute. To this inquiry the solicitor replied "It is not admitted." The nature of the applicant's defence was thus made clear to the judge. Upon these matters the applicant relies to support his sole ground of appeal which reads:

 

"The convictions of the appellant are unsafe and unsatisfactory under all the circumstances of the case and in particular that none of the witnesses for the prosecution. were challenged during cross-examination on any of the facts in issue, thereby prejudicing a fair trial for the defendant."

 

This Court's, jurisdiction under section 83(1)(a) of the Criminal Procedure Ordinance is invoked.

5. Section 385(1) of the [New Zealand] Crimes Act 1961 reads:

 

"On any appeal against conviction the Court of Appeal shall allow the appeal if it is of opinion - (c) that on any ground there was a miscarriage of justice."

There is no literal equivalent in the Hong Kong legislation but we would surely be satisfied that a conviction was unsafe and unsatisfactory if it apparently involved a miscarriage of justice. At all events in R v Pointon ⁽¹⁾ where a conviction after trial by jury was quashed because, in the absence of express authority from the applicant, defending counsel had rendered it inevitable by failing to call him as a witness and by introducing in evidence a document of a potentially prejudicial nature, such errors were described by Cooke J., delivering the judgment of the New Zealand Court of Appeal, as mistakes so radical that the ground - specified in section 385(1)(c) of the Crimes Act 1961 is made out. We do not accept for a moment that the solicitor's failure to challenge, test or probe the material prosecution testimony in the instant trial before judge alone, even if inexcusable, constituted a mistake of that order Further, we are in no position to say whether the solicitor acted in a manner inconsistent with his instructions, which might allow of our intervention, or whether his instructions were conflicting, as in R v Denoel⁽²⁾, which would not. No more are we aware whether, with or without express instructions, he acted otherwise than in accordance with his own assessment of the best way in which to conduct the case an 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 per Roberts C.J. giving the judgment of the Hong Kong Court of Appeal in Keung Ping-kai & Anor v R ⁽³⁾. He had earlier said, at p. 245:

"If counsel can be shown to have been guilty of gross negligence - there may - be occasions on which by reason of such negligence - the defendant was so prejudiced that it would be said that he had not been accorded a fair trial."

We would suggest that by the words gross negligence the Court in Hong Kong, like the Court in New Zealand, meant mistakes so radical as to give rise to a miscarriage of justice. Everyone is doubtless expected to have a standard of peritia artis afforded to him. It could never be said that all are entitled to the pinnacle of the most perfect pleader imaginable per Lord MacKay in McCarroll v H.M. Advocate ⁽⁴⁾.

6. What is said in the authorities about counsel applies, mutatis mutandis, to a solicitor advocate and the solicitor in question, who properly handed his original written instructions to the applicant's present solicitors, has not felt able to refer to these or other instructions, written or verbal, given by the applicant in the absence of assurance as to the waiver of privilege. In general we would emphasise that the unexpected difficulties which face a defending advocate are not readily susceptible of classification and that the Courts will not be swift to criticise his response to a dilemmas R v Rattigan ⁽⁵⁾.

7. We regard the present application for leave to appeal against a conviction which appears to us to be both safe and satisfactory as coming within the category of an unmeritorious ground of last resort and would dismiss it.

8. We have not taken any post hearing communication into account in reaching our conclusion

(1) [1984] 1 CRNZ 348

(2) [1917] 12 Cr. App. R. 49

(3) 1981 HKLR 239 at p. 248

(4) [1949] SC(J)10 at p.17

(5) English Court of Appeal No. 67/C3/84 (unreported)