HKSAR v. HO CHUNG WAH

CACC 425/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 425 OF 2011

(ON APPEAL FROM DCCC 1232/2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Macrae J (giving the reasons for judgment of the Court):

1.  The applicant was convicted by Deputy Judge Sham (as he then was) in the District Court of three charges of indecent conduct towards a child under the age of 16, contrary to section 146(1) of the Crimes Ordinance, Cap 200. He was sentenced to a total of 6 years’ imprisonment. He applied for leave to appeal against both conviction and sentence.

2.  On 6 December 2012, we gave leave to the applicant, allowed his appeal and quashed his convictions on all charges.  We said we would hand down the reasons for our decision in due course.  This we now do.

The basis of the appeal

3.  Although there were two specific grounds of appeal advanced on behalf of the applicant by Mr Cheng Huan SC, with him Mr Bruce Tse (neither of whom, of course, appeared in the court below), both grounds derive from the central complaint that the applicant did not receive a fair trial by virtue of the flagrant incompetence of his counsel at trial.  It is averred that trial counsel failed to follow his instructions and to put obvious and relevant matters to the complainant (PW1) and her mother (PW3), which went to the credibility of the complainant.  By failing to conduct a meaningful cross-examination, in particular of PW1, in accordance with those instructions, it is submitted that the conviction of the applicant was inevitable.  Accordingly, he could never have received a fair trial.

4.  For the purposes of this appeal, we were provided with affirmations from the applicant and his sister, to which were attached five sets of written instructions from the applicant to his solicitors as well as a statement from his sister, all prepared prior to trial.  Each of the documents had originally been written in Chinese and duly translated into English by his solicitors for the benefit of counsel conducting the trial.  We had also received affirmations from trial counsel in response to these affirmations as well as an affirmation from the applicant’s solicitor at trial.

5.  Although counsel who had conducted the trial appeared at the hearing before us, Mr Cheng made it clear at the outset that it would not be necessary to ask him any questions and that he would proceed on the basis of what trial counsel had said in his affirmation. We think that was the right course because, although there were areas of dispute as well as differences of emphasis between the affirmations of the parties, trial counsel did not dispute the essential fact that he did not put the applicant’s instructions because he considered them “unhelpful” and “counter-productive” (the word attributed to him by the applicant and his sister concerning these instructions is that they were “useless”).  He had advised that the best course was to concentrate on eliciting discrepancies and inconsistencies in PW1’s account and between her evidence and that of her mother, PW3, so as to build a case of improbability that the acts complained of had ever happened.  Trial counsel avers that the applicant accepted this advice and agreed to this course of action.  This matter is not accepted by the applicant.  However, Mr Cheng submits that the applicant’s agreement was rather beside the point if counsel’s advice to him to jettison his instructions because they were unhelpful or counterproductive was wholly unreasonable and unjustifiable, which no competent counsel could have given.

6.  Before determining whether trial counsel could be justified in the view he formed of his instructions and in the way he conducted the applicant’s defence, it is necessary to set out the nature of the allegations made by the complainant and the instructions given to meet those allegations.

The prosecution case

7.  PW1 was born in December 2002 and was the step-daughter of the applicant.  She was, therefore, a ‘vulnerable’ witness to whom the special procedures for giving evidence under Part IIIA of the Criminal Procedure Ordinance, Cap 221 applied.  Under those procedures, she had earlier been interviewed by a police officer in the presence of a social worker, which interview served as her evidence in chief at the trial.

8.  PW1 testified that sometime during 2009, when she was between 6 and 7 years of age, she had gone into the applicant’s bedroom at home to watch the television.  Whilst she was doing so, the applicant put his hand inside her underpants and touched her private parts (Charge 1).

9.  In the summer holiday of 2010, when PW1 was 7 and a half years of age, she testified that the applicant had again put his hand inside her underpants and touched her private parts while she was in his bedroom watching television.  It was, she said, “like giving a massage”.  He then told her to rub his penis and, when she did so, she noticed it became hard (Charge 2).

10.  Again in the summer holiday of 2010, PW1 testified that she had gone again into the applicant’s bedroom and lay in bed with him under a quilt.  She said the applicant removed her underpants and his own underpants, put his arms around her belly from behind and thrust his penis between her buttocks for 5 to 10 minutes before ejaculating over her buttocks (Charge 3).

11.  PW2 was a 13 year old female relation of PW1 to whom PW1 had made a complaint that she had been assaulted by her step-father. 

12.  PW3 was PW1’s mother who gave certain background evidence as to her cohabitation with the applicant in his apartment and PW1’s subsequent arrival to live with them after living with her grandmother.

13.  The applicant’s record of interview was produced as part of the prosecution case but, like his answer to the caution upon arrest, it essentially amounted to a denial of the allegations, with the further assertion that he would not have had the opportunity to be alone with PW1 in his bedroom.  Either he would have been too busy taking care of the children (there were by the time covered in the charges two further children of his union with PW3) or, by the time of the third charge, there would have been a domestic helper present in the apartment.

14.  The applicant did not give evidence, nor was any witness called on his behalf.  However, he had given a comprehensive set of instructions to his solicitors which had been translated and passed on to trial counsel.  It is the failure to put almost any of those instructions by trial counsel which forms the basis of the complaint in this appeal.

Counsel’s view of his instructions

15.  In his affirmation before this Court, trial counsel candidly accepts that he did not think much of the instructions he had been given.  He said that he “found them, in the round, unhelpful”.  He thought that “(the applicant’s) story was extremely unlikely to be believed and that his best chance of success was .… to try to find inconsistencies and unlikelihoods in the evidence of the victim and her mother”.  He said he did not think “the judge would be much impressed with the allegations being made in the (applicant’s) instructions”.  He considered “that it would be counter-productive to put as allegations many of the matters contained in the (applicant’s) instructions (in particular that it was the victim who had perpetrated the assaults and the defendant was no more than an innocent bystander)”.  He maintains that after considerable discussion with the family, the applicant and they agreed to proceed along the lines he suggested.

Legal and practical considerations

16.  We are mindful of the statement of principle in R v Birks (1990) 48 A Crim R 385 at 390, where Gleeson CJ held:

“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.”

17.  This particular passage was cited with approval in Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126, where the Court of Final Appeal concluded, at 144:

“It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any grounds for appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment.”

18.  The Court, however, went on to recognize that in exceptional circumstances “an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice”.  The ultimate question must be whether an appellant has shown that “he or she received less than a fair trial”.

19.  One must also remember that the cross-examination of a child of tender years in relation to a sexual complaint involving a member of his or her own family brings with it peculiar difficulties which the advocate must approach delicately and sensitively, mindful of its effect on the child and on the judge or jury witnessing the exercise.  On the other hand, in catering for these difficulties, the advocate must be careful not to override the instructions of his client if the client is insistent that they are his instructions.  After all, the client seeks the expertise of counsel not only for his advice as to the way a case should be approached and presented but also to obtain his experience and skill in conducting what at times may well be difficult and unpleasant cross-examinations. 

20.  Equally, counsel is no mere mouthpiece for his client.  If counsel is in receipt of instructions which he considers to be nonsense, unnecessary, unlikely to be believed or, indeed, likely to antagonise the court, he is perfectly entitled to say so, and to say so robustly.  However, if the client is insistent that these are his instructions, notwithstanding advice from his counsel as to the pitfalls of putting them, then counsel is obliged to put those instructions.  In such circumstances, he would no doubt use his skill and experience as an advocate to put them in such a way that was consistent with his duty but at the same time gave heed to his own concerns about their possible effect upon the witness and the court.

21.  In this particular case, there is an issue as to whether the applicant agreed with counsel’s advice that the instructions should not be put and that he would concentrate instead on eliciting inconsistencies between the witnesses and contradictions in PW1’s account.  We agree with Mr Cheng that it is not necessary to resolve that disagreement because the issue comes down to whether competent counsel could have given such advice.

Discussion

22.  In resolving that issue, we have read in full the copious and detailed instructions prepared by the applicant and his sister. Whilst we agree that there are aspects of his instructions which were unnecessary and inconsequential, there were essential parts of those instructions which really had to be put either to PW1 or PW3, or both.  The picture which those instructions painted was of a young girl who was wilful and attention seeking, as well as precocious, highly adept at play acting and role playing and prone to fantasy.  She was said to be jealous of her siblings and had indicated her wish to return to live with her grandmother.  She had exhibited behavioural problems at home, and had been difficult to discipline which had led on one occasion to social workers being summoned to the apartment by some neighbours.  There was an incident when she had been accused by a teacher of stealing a wallet at school and, after pointing the finger of blame at her schoolmate, finally confessed that she had indeed stolen the wallet.  We would have thought that this might be a particularly relevant matter, the evidence for which could have been obtained from the complainant herself, her mother who was privy to the discussions with the school, or, if necessary, the teacher herself.

23.  Whilst we readily agree that it would be very surprising if the complainant had taken the initiative to touch the applicant inappropriately or to peek at his underwear and steal glances at his penis, the point of these aspects of the applicant’s instructions was that she had been exposed by her 14-year-old male cousin to an explicit pornographic video after which she had begun behaving immodestly and displaying an unhealthy curiosity in the applicant’s anatomy.  There was no dispute that she had been exposed to such a video by her cousin because it was revealed in the complainant’s own interview with the police.  The applicant’s instructions, however, were that “things ….  changed after this incident”.  As a result of the complainant’s curiosity, the applicant had made it clear to her and to her mother that the complainant should not sleep in his bed any more or be physical with him again.

24.  None of these matters were put either to PW1 or to her mother, PW3.  Indeed, the impression conveyed by the cross-examination was one at variance with those instructions.  We are mindful of the provisions of section 54(1)(f) of the Criminal Procedure Ordinance, but the applicant only had one previous conviction for the wholly unrelated offence of drink driving. Moreover, no one has remotely suggested that the instructions were not put in case he lost his ‘shield’ under this section.

25.  We should make clear that we are not to be taken as accepting the truth of any of the assertions made in the instructions nor can we say what effect they might have had, if they had been explored in evidence, on the deputy judge’s assessment of PW1.  These matters may have been denied or explained and they may have had no effect at all.  But they were the applicant’s instructions, which, as Mr Cheng points out, went to the heart of the issue of credibility and without which it is difficult to see that his case was properly put on his behalf.

26.  There is a further aspect to the failure to put the applicant’s instructions. Had he given evidence along the lines of his instructions, the applicant would have been rightly cross-examined by the prosecution as to why no mention of these matters had been made to PW1 or PW3 in cross-examination. There is an issue between the parties as to whether and when a decision by the applicant not to give evidence had been conveyed to trial counsel. The applicant maintains he was advised by his counsel to be prepared to give evidence but that the final decision would depend on how PW1 emerged from cross-examination. Trial counsel says that there was throughout the prosecution case an understanding that the applicant would not be giving evidence. We have not found it necessary to resolve this dispute.  Suffice it to say, the applicant would have been in a very difficult position if he had decided, contrary to his earlier indication and in the light of the cross-examination not going as well as he had expected, to give evidence after all when none of the matters on which he was to testify were ever put to the witnesses.

27.  On the day after PW1’s evidence, a conference took place at the District Court between the applicant and his family and trial counsel.  In view of the applicant’s concern that cross-examination of PW1 had only taken some 18 minutes, the applicant had written out six questions which he asked trial counsel to put to the complainant’s mother, PW3.  Counsel took the view that the questions “were all extremely dangerous and would have very likely prejudiced the defence case had they been asked”.  There was evidently considerable discussion and disagreement about the wisdom of asking these questions as a result of which the applicant insisted, and trial counsel agreed, to ask one of them; but only after the applicant had signed a piece of paper authorizing the question to be asked.  The six questions to be asked of PW3 were as follows:

1. While at home, in front of everybody, has (PW1) been told not to enter my room anymore? (said so around 2009)

2. Does (PW1) often tell lies?

3. Does (PW1) often like to fantasise about things that are not real?

4. (PW1) often embraces me, have I ever told (PW1) to walk away and asked her to leave the room?

5. What kind of person I am, does (she) think that I (am) that kind of person who would do this kind of thing?

6. Is it true that whenever I see indecent scenes on television, I will ask (PW1) not to watch? And whenever (PW1) put her leg(s) up while sitting, I will ask (PW1) to put down (her leg(s)) and sit properly.

28.  The one question which trial counsel agreed to ask was the third question.  We presume that this tied in with the applicant’s instructions that the complainant was very good at play acting and role playing and was prone to fantasy.  That trial counsel did not think much of the question became apparent when, having asked it, the witness said she did not know how to answer.  The judge intervened to clarify the question whereupon counsel explained: “… I’m instructed to ask this question, it’s the only reason I’m asking it.” The result was an answer from the witness which was not an answer to the question and there the matter was left.

29.  With respect, apart from Question 5, which in that form was objectionable but could well have been modified to render it unobjectionable, we have difficulty in seeing why any of these questions properly formed were “extremely dangerous” and should not have been asked.  The notion that young children sometimes fantasize and tell lies is not new in the experience of the courts and is fairly standard cross-examination in cases such as this.  Of course, the questions ran the risk that the mother would not agree, but they formed the basis of the applicant’s case.  Had she disagreed about the child lying, no doubt she could have been asked about the wallet incident.  Had she disagreed about the child being prone to fantasy, she could have been asked about her apparently precocious skills at imitating adults and role playing. The cross-examination of PW3 lasted 6 minutes.

30.  In the event, it is right to say that none of the essentials of the applicant’s instructions were put to either PW1 or PW3.  The actual case that was put to PW1 on the applicant’s behalf was as follows:

“Q. Now, it is - we say it is right - that, in fact, your father never put his hands down your pants, inside of your pants.

A. Incorrect.

Q. And that if there was any contact it was absolutely - it was unintentional.

A. Correct.”

(This last answer was plainly a misunderstanding of the question which was cleared up in re-examination by counsel for the prosecution).

31.  Significantly, the deputy judge understood the defence case to have been one of unintentional or accidental touching.  In his analysis of the evidence, he said:

“In cross examination, it was only put to (PW1) that her father never put his hand down inside her pants to which she disagreed, and it was further put to her, which she agreed, that if there were ever any contacts it was absolutely unintentional. She was re-examined about the things she described her father had done to her, she agreed it was intentional.

Given her tender years and possibly limited cognitive ability, I doubt if (PW1) really understands what intentional or unintentional means in the context of the present case; but in any event, if the court accepted the evidence of (PW1), I do not think that would be an issue because what the defendant did could not have given rise to any possibility of accident or unintentional acts on his part.” (emphasis supplied)

32.  The deputy judge may be forgiven for his use in the above passage of the qualification “only”.  For that, indeed, was all that was put to PW1 on the applicant’s behalf.  We put our concern to Mr Isaac Tam for the Respondent, since it could hardly be the case that the removal of PW1’s clothing, the applicant’s thrusting of his penis between her buttocks for 5-10 minutes and his ultimate ejaculation over her buttocks, was unintentional or accidental, whether issue was properly joined on the facts of the third charge. His answer was that the plea of not guilty was sufficient in the circumstances to put the matter in issue.  With respect, his answer did not appeal to us.  If it did, it would provide a licence to counsel to desist from their professional duty not only to properly put their client’s case but also to challenge the essential parts of the prosecution case which are not accepted.

33.  In our view, not only were aspects of the applicant’s case not put when they could and should have been put, but the way his defence was put made it almost inevitable that he would be convicted.  The consequence of the way his defence was handled in the court below regrettably has meant that he was not afforded a fair trial.  We consider that there was an error of sufficient importance and consequence to come within the exceptional circumstances envisaged by the Court of Final Appeal where grounds of appeal of this nature are mounted.

Conclusion

34.  In the circumstances, we allowed the application and, treating the hearing of the application as the hearing of the appeal, we allowed the appeal and set aside the convictions.  Upon instructions, Mr Tam did not seek a retrial of the appellant.