HKSAR v. CHEUNG HO YING

HCMA108/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.108 OF 1999

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REASONS FOR JUDGMENT

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1. The Appellant was convicted by a magistrate of the offence of wounding, contrary to s.19 of the Offences Against the Person Ordinance, Cap.212, in that, on 18 September 1998 at Flat H, 16/F, Kwangchow House, Tsuen Wan Centre, 99 Tsuen King Circuit, Tsuen Wan, Hong Kong, she unlawfully and maliciously wounded Chan Yim-sin. She appealed against conviction.

2. At the conclusion of the hearing, I dismissed the appeal and promised to give my reasons later. Here are the reasons.

3. At the trial before the Magistrate, it was common ground that on the day and at the place stated in the charge, there was a struggle of some sort between the Appellant and PW1, the victim. The Appellant and the victim are daughter and mother. The two, together with the Appellant's husband and their six-year old son, were living together at the flat as stated in the charge. In the Statement of Findings of the Magistrate, he stated that he found, as a fact and proved beyond reasonable doubt, that the Appellant had :

(a) without lawful excuse bent back her mother's little finger forcefully;

(b) done so deliberately; and

(c) such action had caused the fracture of PW1's little finger bone.

He also found, as a fact and as a matter of law, that such injury amounted to grievous bodily harm and he convicted the Appellant accordingly.

4. Before me, Mr Ng, for the Appellant, raised a number of grounds. The hearing took the best part of a day before me. During the course of the hearing, Mr Ng abandoned all the grounds stated in the perfected grounds of appeal against conviction, save the following three grounds :

(1) The Magistrate had not paid sufficient regard to the material discrepancies between PW1's evidence given in Court and her witness statement taken by the police on 18 September 1998.

(2) Trial counsel representing the Appellant was grossly incompetent and unprofessional.

(3) The expertise of PW2 was not established before he was allowed to give evidence on the area relating to the injury suffered by PW1.

5. On the basis of the three grounds of appeal, Mr Ng submitted that the conviction was unsafe and unsatisfactory and against the weight of all the evidence.

6. At the commencement of the appeal, Mr Ng sought leave of the Court to produce evidence to support the ground of appeal alleging incompetence of counsel. I granted leave to the Appellant to do so. The main evidence about the alleged incompetence of counsel is contained in an affirmation of CHUNG Man Fai, the solicitor instructing trial counsel at the trial before the Magistrate. The thrust of the complaint against trial counsel can be found in paragraphs 3 and 4 of the solicitor's affirmation. They are set out below :

"3. Before the trial, conference was held between Counsel, the Appellant and me at Counsel's offices on the 2nd December 1998. During the meeting, the Appellant elaborated and further explained her re-collection of the incident as contained in her statement in Chinese to Counsel. A copy of her statement dated 2nd December 1998 and its translation in English is now produced and shown to me marked 'CMF-1' and 'CMF-1A' respectively. It is apparently clear from the statement 'Exhibit CMF-1' that at all material times, the Appellant does not deny that Madam Chan Yim Sin did suffer injury on the 18th September 1998 as a result of the incident happened on that day. What is in dispute between the prosecution and the Appellant is the cause of that injury. The Appellant denied she caused the injury of Madam Chan as alleged by Madam Chan. The Appellant does not know how Madam Chan was injuried but thinks that Madam Chan might have injuried herself accidentally during the struggle in that Madam Chan's hand struck the furniture (the white cabinet or the chair) forcefully. Hence, the possible causes of the injury as found by the doctor(s) or recorded in the medical record of the doctor(s) is a material question that should be inquired by the Appellant's Counsel. In fact, before Counsel cross-examined Dr. Lee Yiu-kee, I together with Mr Leung Ning Sum, the Appellant's husband had repeatedly urged Counsel, Mr Raymond Chow to ask Dr. Lee on his opinion as to the possible causes of the injury of Madam Chan Yim Sin. However, notwithstanding our firm instructions, Counsel refused to ask Dr. Lee questions of this sort.

4. Further, during the time when Counsel was cross-examining Madam Chan Yim Sin, I have urged Counsel to put several questions on Madam Chan by passing a notes to him. The notes then written by me is now produced and shown to me marked 'CMF-2'. However, Counsel refused to put these questions on Madam Chan and told me that these are not necessary and would serve no useful purpose. Counsel even told me to keep the notes and use them on appeal if necessary."

7. The certified translation of Exhibit CMF-1 referred to in the affirmation, which was the written instructions of the Appellant provided to trial counsel on 2 December 1998, contains the following relevant instructions :

"As to why my mother was hurt, I believe that it is because of the limited space (my home has only about 400 square feet with two bedrooms and one living room) and numerous furniture. My mother's fingers/palms might have forcibly come into contact with the white cabinet or wooden chair when she struggled with me. I have definitely not grasped her hand and strongly bent her left hand backward to cause her injury."

8. The notes that the instructing solicitor wrote exhibited to the affirmation as CMF-2 is reproduced as follows :

"That is enough

(1) Did D scolded on you before she kicked you and blended your finger?

(2) Did the grandson throw the school bag on you without saying a word before hand?

(3) When you told D that if your son continues to act like that, he would be beated up at school, did you tell D peacefully?

(4) Did you meant that either D kicked you and blended your finger without any provocation?

(5) Take the point of 'REASONABLENESS' : read out what victim's statement that contradict her testimony.

(6) First blended her finger then kicked her on the right leg.

先后次序不同 (translation : the sequence of occurrence different)

Did the police read back the statement to you.

Put the whole theory to the victim."

9. The ground of appeal, based on trial counsel's gross incompetence and unprofessionalism, was particularized as follows :

(a) Trial counsel held a hostile attitude towards his instructing solicitor during trial, so the latter could not pass his lay client's instructions to the former sufficiently and/or at all.

(b) The doctor who actually examined PW1's injury was not called to testify about the likely cause of the injury on PW1. As per written instructions of the lay client, PW1 might be hurt when her hand struck on the cabinet or chair during the struggle, and that any bending of PW1's finger was denied. Nevertheless, questions along this line were never put to any witness at all.

10. From the evidence as adduced with my leave, it had not been shown to my satisfaction that trial counsel exhibited hostility towards his instructing solicitor during the trial so as to cause difficulty to the solicitor in passing the Appellant's instructions to counsel. Looking at the content of paragraph 4 of the affirmation quoted above, and Exhibit CMF-2 containing no less than six questions being passed to counsel during the trial, it cannot reasonably be said that the solicitor could not pass the Appellant's instructions to counsel. In fact, checking against the transcript of the proceedings before the Magistrate, it is also clear that the substance of questions (2), (3), (5) and (6) in Exhibit CMF-2 were asked by counsel when cross-examining PW1, the victim.

11. Mr Ng's main attack on the conduct of trial counsel was that he failed to put the Appellant's instructions that PW1's finger might have forcibly come into contact with the white cabinet or wooden chair when she struggled with the Appellant in the small flat in which both were living. Mr Ng also complained that trial counsel did not advise the Appellant to call the doctor who actually examined PW1's injury to testify about the likely cause of the injury.

12. PW2, Dr Lee Yiu-kee, who signed the medical report being Exhibit 2 before the Magistrate, gave evidence. It was only at the time when he started his evidence that it was learnt by the Court that he was not present at the time when PW1 was examined at the Yan Chai Hospital. He was assigned to write a medical report for this case by the consultant of the hospital. Upon learning this, the Magistrate immediately queried whether the doctor should give evidence. However, after a short adjournment, Exhibit 2 was put in by agreement pursuant to section 65B of the Criminal Procedure Ordinance between the prosecution and the Appellant. Exhibit 2 merely states the following :

" The abovenamed patient was admitted to the Department of Orthopaedic & Traumatology on 18.9.1998.

The diagnosis was fracture left little finger at base of proximal phalanx.

The patient was discharged on 21.9.98.

Any degree of permanent disability is to be assessed in medical assessment board.

This statement is true to the best of my knowledge and belief."

13. The doctor's evidence was that the medical report, i.e. Exhibit 2, contained the most significant findings on PW1 when she was first admitted to be examined and diagnosed. He also said that the hospital usually put the most important things in such a medical report, perhaps missing out some minor details, such as in the present case, a 3-cm diameter bruise in the lateral aspect of the right side. In cross-examination, the doctor also said that the fracture on the little finger of PW1 was a bone fracture and there would be symptoms like swelling and bleeding. When asked by the Court, the doctor elaborated that swelling of the little finger would occur immediately after the injury was sustained and it would last for a short period. There was no re-examination of the doctor and the case for the prosecution closed. Thereupon, trial counsel for the Appellant submitted a no case to answer on the basis of the medical evidence. He argued that there was no evidence in the medical finding which could support a case of PW1's allegation of a bone fracture caused by whatever, perhaps bending of her finger, in that the medical report on PW1, i.e. Exhibit 2, did not state any finding of bleeding or swelling that would stay for a short period of time. The Magistrate ruled that there was a case to answer.

14. Trial counsel did not put the belief of the Appellant that the injury to PW1's finger might have been caused by an accident that her left hand came into contact with a hard object during the struggle.

15. Mr Ng referred me to a number of authorities on the question of incompetence of counsel. The decision in each case must depend on its own facts. For the purpose of this appeal, it is only necessary to refer to those authorities which set out the principles of how an appellate court would act on the ground of incompetence of counsel. In R v Doherty and McGregor [1997] 2 Cr App R 218 at 220D, the Court of Appeal in England had this to say :

"Unless in the particular circumstances it can be demonstrated that in the light of the information available to him at the time no reasonably competent counsel would sensibly have adopted the course taken by him at the time when he took it, these grounds of appeal should not be advanced. In Clinton (1993) 97 Cr.App.R.320 itself it was emphasised that the circumstances in which the verdict of a jury could be set aside on the basis of criticisms of defence counsel's conduct would 'of necessity be extremely rare'. In fact fresh counsel are becoming all too ready to formulate criticisms of trial counsel by adopting some of the language used in Clinton and Fergus (1994) 98 Cr.App.R.313, without carefully analysing the difficulties which faced counsel under the immediate pressure of the trial process, and without approaching the instructions given by the client to fresh counsel, after conviction, with a reasonable degree of objectivity. Unless these features are kept firmly in mind it is difficult to see how fresh counsel could decide that grounds of appeal based on criticisms of trial counsel could possibly be 'reasonable' and enjoy 'some real prospect of success'."

16. In HKSAR v Wong Chi-keung and Others, Cri App No 585 of 1996 (3 July 1998, unreported), the Court of Appeal stated as follows :

" What is also very clear and is accepted by Mr Buchanan (Appellant's Counsel) 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.

.....

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.)

....

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.86 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.'"

17. It can be noted from the passages of the judgment cited above that trial counsel has unlimited authority to do whatever he considers best for the interests of his client, and that 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 agreeing to a compromise of the action or to a verdict, order or judgment. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions, or involved errors of judgment or even negligence.

18. By a letter dated 24 March 1999, solicitors sent a copy of the solicitor's draft affirmation together with exhibits to trial counsel for his comments. By a letter of 25 March 1999, trial counsel replied to say that he had read the affirmation and had no comments to make thereon. As trial counsel had no comment on the draft affirmation, it is quite clear that he did not put the belief of the Appellant that the injury sustained by PW1 might have been caused by accident to either PW1 or to PW2 during the trial before the Magistrate. However, as the ground that trial counsel failed to advise to call the doctor who actually examined PW1's injury was not contained in the affirmation shown to counsel, I am in no position to decide what trial counsel's comments would have been had that ground been included in the affirmation. It would therefore be unfair for me to accept any criticism of trial counsel's failure to give advice, if that was the case, on calling the doctor who actually examined PW1's injury. As is clearly shown in the authorities cited above, trial counsel has unlimited authority to do whatever he considers best for the interests of his client. From the transcript of the evidence, it is quite clear that trial counsel did put forward certain allegations to PW1 which were not contained in the written statement or written instructions, Exhibit CMF-1. These allegations put to PW1 included PW1's fabrication of an assault of her by the Appellant's husband and the fact that there were proceedings for recovery of the premises between PW1 and the Appellant. In trial counsel's final submissions to the Magistrate, he attacked the credibility of PW1's evidence severely. He also argued that because of the absence of medical evidence as to swelling of the finger, the possibility that the injury suffered on the finger was not a new injury could not be ruled out. He also told the Magistrate that one of the possible reasons that the defence could think of about PW1 making false accusations against the Appellant was for enhancing PW1's chances in the recovery of the residence. He also prayed in aid the former false accusation by PW1 against the Appellant's husband. During the cross-examination of PW1, trial counsel also put forward photographs taken of her to show that she was a woman of bad temper. However, after examining the evidence very carefully, the Magistrate believed PW1 in her description of how the injury on her little finger was sustained. He rejected the evidence of the Appellant. He stated as follows :

"If the Appellant was very being truthful then PW1 had sustained her injury either (a) by accident or (b) by her own design or (c) when the Appellant was acting in lawful defence of her six year old child. The testimony of PW1 did not permit any interpretation other than that alleged in the charge."

19. Whether trial counsel did put questions relating to accidental injury to PW1 or PW2 is insignificant in view of the consideration by the Magistrate of all the evidence before him, and the fact that he had specifically considered the issues of accident, fabrication and the Appellant acting in lawful defence of her six-year old son. When I asked Mr Ng what injustice could have been done to the Appellant when trial counsel failed to put the theory of PW1's injury being sustained through an accident, Mr Ng fairly accepted that it would be remote indeed that PW1 would accept the possibility of an accident. On the other hand, PW2, the doctor, could have agreed that the injury on the finger was both consistent with it being bent or it having come into contact forcibly with a hard object. As the Magistrate had expressly considered the question of accident, I was not satisfied that trial counsel was grossly incompetent in not putting forward the proposition to the doctor. Nor, from all the circumstances of the case, can it be shown that any injustice was suffered by the Appellant. This ground must be rejected.

20. In support of the ground about the expertise of PW2, Mr Ng referred me to R v Yeung Kwok Fai, HCMA901 of 1995 (16 February 1996, unreported). The appellant in that case was charged and convicted for stealing some of the working parts and dial of a Rolex watch which was in police custody as evidence for a criminal trial. The bulk of the evidence before the Magistrate had been principally adduced by way of statements admitted under s.65B of the Criminal Procedure Ordinance. One Mr Chiu of Rolex was called as an expert witness. Duffy J, in his judgment, stated as follows :

"... And while the defence, by agreeing to the admission of the statement of Mr Chiu under s.65B, indicated that it did not wish to cross-examine Mr Chiu, it was nevertheless for the prosecution to establish certain matters in relation to his expertise. Firstly, Mr Chiu had to be established as an expert, and accepted as such by the Magistrate. All that was said of Mr Chiu's capacity as an expert was that he had been repairing Rolex watches since 1964 and supervising others to do so. I do not consider that that was sufficient evidence to establish that Mr Chiu had the necessary expertise in this matter. The learned Magistrate made no decision as to whether he accepted Mr Chiu as an expert in these matters.

While the watch itself was an exhibit in the case, there was no evidence before the court demonstrating how it was that some parts were fake and some parts were genuine. It is the duty of the expert to :

'furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusion so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence' (Davie v. Edinburgh Magistrates (1953) SC 34.40)

There was in this case no evidence as to how Mr Chiu came to the conclusions which he reached. It was incumbent upon the Crown to call such evidence. In the absence of such evidence, the expert opinion of Mr Chiu was meaningless and worthless. The admission of the statement of Mr Chiu under s.65B did not cover these matters."

21. Mr Ng, based on Yeung Kwok Fai's case, submitted that Dr Lee, PW2, was not established as an expert in respect of the injury suffered by PW1. He argued that the Magistrate made no decision as to whether he accepted PW2 as an expert in respect of the medical findings, and stressed that the necessary scientific criteria were not mentioned by PW2.

22. The facts of Yeung Kwok Fai are very different from those of the present case under appeal. The crucial evidence contained in Exhibit 2, the medical report, was that PW1 was admitted to the hospital on 18 September 1998 with a diagnosis of a fracture of the left little finger at the base of proximal phalanx and she was discharged on 21 September 1998. PW2 only explained the meaning of "base of proximal phalanx" to the Magistrate. He also accepted the question put by trial counsel for the Appellant to him that the fracture of the left little finger was a fracture of a bone. Indeed, the meaning of the "base of proximal phalanx" can be obtained from any medical dictionary and the meaning of "fracture" is well understood by anybody. The oral testimony of PW2 was totally unnecessary but for the fact that trial counsel wished to ask him questions as to the symptoms of bleeding and swelling regarding the fracture. The existence, or otherwise, of a fracture of the left little finger of PW1 does not need an expert to prove. Even if it does, PW2 had stated his qualifications in evidence, which is Bachelor of Medicine and Bachelor of Surgery, and he had been stationed at the Yan Chai Hospital since he obtained his qualification as a Medical Officer in 1997. His qualification and experience was not an issue before the Magistrate. Although the Magistrate did not, in his verdict or Statement of Findings, state that PW2 was treated as an expert to give medical opinion on the fracture of a bone and on the symptoms of such a fracture, I had no doubt that PW2 was well qualified to do so. Even Mr Ng conceded that a doctor was normally understood to be able to give evidence on such matters. However, Mr Ng complained that PW2 did not provide scientific criteria for testing the accuracy of the finding of a fracture, such as an X-ray film. Although I accept that the production of such an X-ray film would go further to support the medical finding of a fracture, in view of the lack of challenge that there was in fact such a fracture on the little finger of PW1, the non-production of the X-ray film was a matter of no consequence whatsoever. Indeed, I would add further that the finding of a fracture was a fact, as opposed to a conclusion, that does not need scientific criteria for testing its accuracy. The ground about expert evidence was therefore rejected.

23. The only other ground contended by Mr Ng before me was that the Magistrate had not paid sufficient regard to the material discrepancies between PW1's evidence given in Court and the contents of her witness statement given to the police on 18 September 1998. In fact, the Magistrate had examined the discrepancies between PW1's evidence and her said statement very carefully and in great detail, as borne out by the eight-page, single-line spaced, transcript of his verdict and eight pages of his Statement of Findings. He concluded that he did not believe the Appellant's evidence, and accepted and believed PW1's evidence.

24. In R v Hui Kee Fung, HCMA196 of 1994 (26 July 1994, unreported), Keith J at page 7 had the following to say :

"Two lessons can, I think, be learned from all this. First, litigants are not entitled to the unrestricted use of the court's time. They are only entitled to such time as is needed to permit the issues which the case raises to be fully and fairly ventilated. Secondly, appeals from decisions of magistrates on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts. An appeal to the High Court is not a rehearing of the case. The Judge does not even see the witnesses. It will be rare indeed for a Judge to say that the findings of fact made by the magistrate were so contrary to the weight of the evidence that doubts as to the correctness of the magistrate's findings exist. There may occasionally be cases in which a defendant believes that he has been the victim of a miscarriage of justice, because the magistrate has chosen to believe the witnesses who gave evidence against him and disbelieve him. But if there are no sustainable grounds of appeal, a belief in one's innocence is not sufficient to justify the invocation of an appellate process which treats the findings of fact made by a court of first instance as so sacrosanct as our system of criminal justice does."

25. In R v Yip Kam Lam, HCMA731 of 1996 (14 August 1996, unreported), Stock J put it another way :

"The appellant must understand that my job is not to determine the true facts of the case. If I were to do so I would have to hear not only from the appellant but also from the sergeant. Under our system of law, the Appeal Court examines the record and decides whether the magistrate has made any obvious error as to law or whether he has come to the decision which was irrational in the light of the evidence that was given. I have read the record in this case and the magistrate has very carefully summarised the evidence and he has applied the law correctly. Now he saw and heard to the witnesses in the case and it so happens that he believed the evidence of the sergeant and he did not accept the evidence of the appellant. Now that was a decision to which the magistrate who saw both the witnesses was entitled to come and behind which I cannot in the circumstances go."

26. The Magistrate in this case had explained the discrepancies between PW1's evidence and her written statement. Such discrepancies were, in the circumstances of this case, quite immaterial. He found that despite the discrepancies, he came to the conclusion that PW1 was telling the truth and he believed her. He also, rightly, came to the conclusion that the testimony of PW1 did not permit any interpretation other than that alleged in the charge, excluding accident, fabrication and that the Appellant was acting in lawful defence of her son. In the circumstances, this ground of appeal also failed.

27. By reason of all of the matters aforesaid, I dismissed the appeal.