HKSAR v. LEUNG KWAI HO

HCMA 702/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 702 OF 2006

(ON APPEAL FROM KCS 2511/2006 & 2512/2006)

____________

____________

______________

J U D G M E N T

______________

1.  The Appellant was summonsed, in KCS 2511/2006, for Being the driver of a bus without reasonable excuse failing to take all reasonable precautions to ensure the safety of passengers alighting from a bus, contrary to Regulations 11(d) and 25(3) of the Public Bus Services Regulations, made under the Public Bus Services Ordinance, Cap 230.  A second summons, KCS 2512/2006, was for Being the driver of a bus and having been involved in an accident failing to stop after personal injury was caused, contrary to section 56(1)(a) & (5) of the Road Traffic Ordinance, Cap 374.  She pleaded not guilty before Deputy Special Magistrate, Ms Ivy Chui, and was represented by Mr Lister Howell, at trial.  She was convicted after trial and fined HK$1,500 on the first summons and HK$2,000 on the second summons.  She appealed against both convictions.

Chronology

2.  The Appellant filed standard grounds of appeal on 5 July 2006.

3.  On 23 August 2006, she appeared before Deputy High Court Judge Longley.  She claimed that she had not been told by her solicitor’s assistant that she could give evidence at the trial and, further, she had been told by him to keep quiet.  When asked if she had applied for legal aid for the appeal she told the judge that she was not eligible because she owned two properties.  The judge adjourned the case to the afternoon to enable Appellant to consider her position in light of her allegations.  On return to court, the Appellant advised the court that she was lodging the appeal, not to complain about her lawyer, but because she wanted the court “to do justice”.  The court gave the Appellant leave to amend the Notice of Appeal to allege wrongful advice, or failure to give proper advice, on the part of her solicitor and ordered that the amended Notice of Appeal, together with an affirmation in support, be filed in court on or before 4 pm on 13 October 2006.

4.  On 24 October 2006, the Appellant appeared before Deputy High Court Judge Wright who was advised by the Respondent that the Appellant had not complied with the instructions of Deputy High Court Judge Longley and no affirmation in support of the amended Notice of Appeal had been filed.  As the Appellant maintained her earlier position and complaint about the solicitor, the court adjourned the hearing of the appeal to 6 December 2006 and ordered that a copy of the affirmation of the Appellant was to be sent forthwith to her previous legal representative, Mr Howell and his Legal Executive, Mr Simon Wong.  They were ordered to file and serve on the Appellant their affirmations, or any reply which they had to make to her affirmation, by 27 November 2006.

5.  By 6 December 2006, both Mr Howell and Mr Wong had filed affirmations in reply but the Appellant said that she had not read them.  On further enquiry, the judge learned that the Appellant was maintaining her position and he adjourned the appeal to a date to be fixed.  He directed that another judge be appointed to hear the appeal because he knew Mr Howell personally.

Appeal Hearing

6.  The Appellant appeared in person on 20 December 2006 for this appeal.  Both Mr Howell and Mr Wong attended court, as ordered by Deputy High Court Judge Wright.  It was agreed that the affidavits filed would be used as evidence-in-chief and that the witnesses would then be subjected to cross-examination.

7.  The court explained the procedure to the Appellant.  She told the court that she was not wish to sue the lawyers but just wanted to air her grievance, that grievance being directed, according to the Appellant, against the Legal Executive rather than the solicitor.

Mr Howell’s evidence

8.  Mr Howell gave evidence that he had followed his usual practice for the taking of instructions from a client with the Appellant.  He confirmed that he did not speak or read Chinese and that he relied on the work of his Legal Executive, who acted as his interpreter.  The gist of his evidence was that he had been practising in Hong Kong courts for 33 years.  He had acted at trial for the Appellant on 19 June 2006.  The Appellant had attended his office on 13 June 2006 to give instructions.  After papers provided by the Appellant had been translated into English for his benefit, Mr Wong, the Legal Executive, took instructions from her in Cantonese.

9.  Mr Howell described the standard practice of his firm.  Mr Wong would explain the court procedure to a client and tell him/her about his/her rights in relation to giving evidence at the time the client attended the office to give instructions.  It was standard practice that at the same time, the client would be given a printed note in Chinese, setting out the court procedure and what his/her rights were in relation to giving evidence.  A copy was signed for the solicitor’s records, after it had been explained and a copy was given to the client.  The standard practice was followed on this occasion also.

10.  Mr Howell was informed of the details of the Appellant’s case and was told that Mr Wong had explained the procedure to her.  Mr Howell proceeded to interview the Appellant, using Mr Wong as his interpreter.  The Appellant was asked if she had any questions and he was told that she had none.  Mr Howell denied that he had ever told the Appellant as she claimed, “continue to plead guilty and say nothing else”.  He considered this remark illogical because the Appellant had never indicated she would plead guilty.  He confirmed that Mr Wong had never shouted at the Appellant, in his hearing.

11.  When at the close of the prosecution case, a ruling was given that a case to answer had been made out, Mr Howell asked for the case to be stood down so he could explain the situation to the Appellant and advise her.  He told her that, in his view, as long as she felt able to give her version of the facts and could withstand cross-examination, it would be advisable for her to give evidence, particularly as there was a statutory defence of reasonable excuse available on summons KCS 2511/2006 and, further, it was desirable that information be given about the circumstances of her alleged failure to stop after an accident.

12.  Mr Howell said he told the Appellant, through Mr Wong, that if she felt unable to do this, he would endeavour to defend the case along the lines of the information he had obtained from the prosecution witnesses. He told the Appellant that, ultimately, the decision whether to give evidence was hers alone.  Mr Wong informed Mr Howell that the Appellant had decided not to give evidence.

13.  Mr Wong prepared a brief summary of that advice and repeated the Appellant’s rights in a handwritten note in Chinese.

14.  Mr Howell said in evidence that Mr Wong appeared to read the note to the Appellant and that he himself saw her sign it.

Evidence of Wong Hau Leung

15.  Mr Wong gave evidence that he had been working for Mr Howell’s firm for about 15 years, since he qualified as a Legal Executive.  He confirmed the usual practice of his firm.  On 13 June 2006, Mr Wong took the Appellant’s written instructions, arranged for Mr Howell to see her and acted as an interpreter.  At that time, despite being given the opportunity, the Appellant said she had no questions to ask.

16.  Mr Wong denied that the Appellant had ever been told by Mr Howell, through him, that she should continue to plead guilty and say nothing.  His evidence was that the Appellant was advised to plead not guilty to both summonses and that she followed that advice.  He confirmed he had explained her rights to the Appellant on two occasions, the first on 13 June 2006 at the time her instructions were given and the second on 19 June 2006 when, after ruling a prima facie case existed, the court adjourned, at the request of Mr Howell, as he wished to give advice to his client.

17.  Mr Wong said that Mr Howell explained clearly to the Appellant her right of giving evidence and that he had truly and faithfully interpreted those rights to her.

18.  Included in Mr Howell’s advice was his comment that given the statutory defence and his belief that the circumstances of the alleged failure to stop required some explanation, it was advisable for the Appellant to give evidence, if she was confident she could tell her version of the facts and withstand cross-examination.  If she felt unable to do so, Mr Wong told her that a submission could still be made to defend the charges, based on the material obtained from the prosecution witnesses.  This was interpreted to the Appellant who made the decision not to give evidence.

19.  Mr Wong confirmed that the advice given on this occasion had been written by him in summary form in Chinese; which he had read through to the Appellant, and which she said she understood.  He said the Appellant was asked to sign the summary of advice and she did so.  Mr Wong denied ever telling Madam Leung to keep silent, or warning her that if she gave evidence she might say something detrimental to her case.  He did not at any time tell Madam Leung that she should be silent as Mr Howell would speak on her behalf and that should be okay.

20.  He denied shouting loudly at the Appellant when she insisted on giving evidence, “I tell you not to give evidence, you should listen”.  He said that the only time he had asked Madam Leung not to speak was on 21 June 2006, which was the day on which the Deputy Special Magistrate gave her verdict, at the adjourned hearing.

21.  The Appellant at that time began to argue aloud with the Deputy Special Magistrate and Mr Wong said he put his fingers to his lips to indicate that she should be quiet and not interrupt the delivery of the verdict.  Mr Wong exhibited the originals of the written instruction of 13 June 2006 and the summary of 19 June 2006 to the court.  They were shown to the Appellant who admitted at the appeal hearing, that she had read and understood the instructions and advice given to her in writing on 13 June 2006.  She identified the signature on Exhibit WHL2 as hers.

22.  She denied that the signature on the document said to be written on 19 June 2006, Exhibit WHL3, was hers.

Evidence of Appellant

23.  The Appellant’s affirmation was filed, having been prepared on her instructions, by a legislator, who had offered voluntary assistance to her.  She gave her account of what had happened on the bus on 1 October 2005.  That was set out in paragraphs 2-5 of her affirmation.  On the specific ground of appeal that her lawyer had failed to act according to her instructions in court, she confirmed that she had instructed Howell & Co as her solicitors to defend her and that all the contact with her was made by a Legal Executive, Mr Simon Wong.  She alleged that when she was at court on 19 June 2006, Mr Howell told her, through Mr Wong, that she should continue to plead guilty and say nothing else.  During the adjournment after the close of the prosecution case, Mr Wong had asked her if she would like to give evidence.  According to her she said yes, because the witnesses were not telling the truth.  She said Mr Howell was standing by her side at the time and he did say something, but as it was in English she could not understand what he said.  Mr Wong then told her to keep silent, warning her she might say something detrimental to the case.  He told her further that Mr Howell would speak on her behalf and “that should be okay”.  When she insisted on giving evidence, Mr Wong shouted loudly at her, “tell you not to give the evidence, you should listen”.

24.  The Appellant claimed that it was with great reluctance that she had kept silent at the trial.  However, when on 21 June 2006, she was advised the Magistrate had noted her silence in her judgment, she felt extremely aggrieved.  She believed that if she had had the chance to give evidence spelling out the details of the incident, she would have stood a reasonable chance of being believed by the Magistrate.  She did not consider that she had had a fair trial because her lawyer had failed to accede to her request and produce her as a defence witness.  She begged the court to allow a retrial.

25.  Nowhere in the affirmation she filed did the Appellant refer to the two written records of advice she was given about her right to give evidence in court.  In supplementing her affirmation with her evidence in court, she said that she did not wish to sue her lawyer but just wanted to air her grievance.  Despite her denials that it was her solicitor’s fault, it is clear from her affirmation and oral evidence that her allegation against her legal representative was that she had been refused her right to testify at trial.  She denied that on 13 June 2006 Mr Wong had read her the document.  She said that she had read it herself and had been asked to sign it, but was told there was no need for her to read the whole document.  This was a fresh allegation which was denied by Mr Wong in cross-examination.

26.  The Appellant complained that the details she had given about the falsity of the prosecution witnesses’ testimony was ignored by Mr Wong, who told her that since she had hired them as solicitors, they were going to speak for her.  Further, she was instructed by Mr Wong to leave the case to them saying that they didn’t need her to coach them in their tasks.  She maintained her claim that she had been shouted at by Mr Wong both on the day of the trial and on 21 June 2006, the date of judgment.  She denied that there had been any document written at the trial summarising the advice given.  When shown the document Exh WHL3 produced by Mr Wong, the Appellant claimed that it was not her signature, the implication being that it was a forgery, although she did not specify whose forgery it was.

27.  The Appellant claimed that she had never told the legislator who assisted her about the alleged incompetence of her solicitor and had told him her complaint had nothing to do with the solicitor, but was against Mr Wong, the Legal Executive.

28.  The Appellant put forward in support of her appeal against conviction on the summonses only one major ground; the incompetence of her solicitors.  Despite denying that she wished to complain about her solicitor, it is quite clear that she made serious allegations not only about her solicitor, but also against the Legal Executive who acted as interpreter and liaised between her and the solicitor.

29.  The incompetence related to the taking of instructions, initially on 13 June 2006, but, more importantly, on 19 June 2006 when at the close of the prosecution case, advice was given to the Appellant about her giving evidence.  There is nothing which the Appellant has put before me, which leads me to believe either that initially she was advised improperly, or that she was refused permission to give evidence.

30.  I am satisfied on the evidence of Mr Howell and Mr Wong that instructions were taken from the Appellant according to the usual procedure of their firm; that she was apprised of the advice in writing and that her right to give evidence as a witness was explained.  I am satisfied also, having heard the evidence and what the Appellant had to say, that on the day of the trial she was told what her choices were about giving evidence and that she decided not to give evidence.

31.  The general grounds of appeal put forward by the Appellant have not been made out.  Having considered the chief ground of the appeal, the incompetence of the solicitor and the alleged failure to allow her to give evidence, I am of the view that the Appellant is not telling the truth about what happened either on 13 June 2006 or at trial.

32.  I am satisfied that on 13 June 2006 the Appellant was told of her right to give evidence if she wished, that she signed the document and understood what she was signing.  As for the advice given at trial, I find that the Appellant was told of her rights prior to the defence case and that a summary of that advice was given in the form described by Mr Wong, as produced Exhibit.  I find that that document was signed by the Appellant, despite her denial.

33.  This Appellant was disgruntled by the Magistrate’s decision to convict her, and as a result she tried to attack that decision by claiming that she had not been permitted to testify at trial.

34.  I find on the evidence that the Appellant was properly represented and advised about her right to give evidence.  I am satisfied that at trial the question of her giving evidence was canvassed again, and that it was her decision not to give evidence or call witnesses.

35.  Given the nature of the offences and the statutory defence that was available, I can see no reason why the solicitor representing this Appellant would have been discouraging of her giving evidence, if she felt that she could, as advised, withstand cross-examination.

36.  I have considered the transcript of the evidence, as well as the Reasons for Verdict given by the Deputy Special Magistrate; I am satisfied that the evidence was dealt with correctly, that the Magistrate was aware of the issues and the matters on which she had to direct herself and did so appropriately.  The Appellant has been given every opportunity by the court during the appeal process to put her case, but in my view, without establishing in any way that her solicitor was incompetent, or that she had been treated unfairly by him, or by his Legal Executive.  Accordingly, this appeal is dismissed.

Costs

37.  The Respondent has applied for the costs of this appeal, based on section 13A of the Costs in Criminal Cases Ordinance, Cap. 102.  That section provides that where a Defendant unsuccessfully appeals to a judge from any conviction, order or determination of the Magistrate, and the judge is satisfied that the appeal or the application, as the case may be, is or was without merit, the judge may order that the costs be awarded to the prosecutor.

38.  The Respondent contends that there was no merit in this appeal and has set out details of the four appearances on the appeal, and also the costs of the prosecution appearances.  The initial appearance took two hours, when new grounds were raised alleging incompetence of the solicitors and that the Appellant had been stopped from giving evidence.  The further appearance in the afternoon took 30 minutes.  The intervening adjournment had been given to enable the Appellant to review her position.

39.  On 23 August 2006 there was an appearance of 30 minutes.  The Appellant confirmed that she wished to pursue the line of appeal that had been raised earlier.  An order for an affirmation was made by the judge and directions were given.

40.  On 6 December 2006 there was a hearing of 2 hours, and the affidavits of the solicitor and legal executive were explained to the Appellant.  The judge questioned why no mention had been made in her affirmation of the papers that allegedly had been signed by her in relation to the giving of advice.  The Appellant insisted that despite this omission what she said was true, and that she wished to proceed with the appeal. 

41.  The appeal was heard on 20 December 2006 and took 2 hours.  At that time the solicitor, Mr Howell, and the legal executive, Mr Simon Wong, attended to give evidence.

42.  The allegations made against the solicitor and the legal executive were aired by the Appellant who also gave evidence.  A fresh allegation of forgery was made about the document of 19 June 2006, allegedly signed at trial.  The Respondent claims costs for 9 hours of counsel’s time at $2,500 an hour, making a total of $22,500.

43.  The Respondent referred to the serious embarrassment caused to the two professional witnesses who, amongst other things, are officers of the court.  As to the ability of the Appellant to pay costs, the Respondent pointed out that the court was told on an earlier occasion that the Appellant owned two properties, and so it was unlikely that she could not pay an order for costs.  The Appellant confirmed that she owns two flats, both of which are mortgaged.  One flat has an estimated value $1.5 million, the other a value of about $900,000. 

44.  The Appellant is employed as a bus driver, earning $8,000 a month.  She has divorced her husband, and claims her son has lost money gambling in Macao which she had to repay.  Her son is employed at a bank.  She made no other submissions on the costs application.  She repeated her contention that she had not signed the document.  She said she was suffering a very great wrong and wanted to appeal further. 

45.  I am satisfied, having heard the Appellant and the Respondent on this application, that a costs order is justified in this case.  Taking all matters into account, including the nature of the case and the Appellant’s ability to pay, I make an order that costs of $15,000 be paid by the Appellant to the Respondent within 30 days from today.