HKSAR v. CHUNG SHUI TAI

HCMA 1278/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1278 OF 2001

(ON APPEAL FROM TWCC 2504 OF 2001)

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J U D G M E N T

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1. On 8 November 2001 the appellant was convicted after trial at Tsuen Wan Magistrates Court of an offence of dealing with goods to which the Dutiable Commodities Ordinance applies. The Goods in question were 536 litres of light diesel oil.

2. On 22 November 2001 the appellant was sentenced to a term of 3 months imprisonment. He appealed against his conviction. On 30 October 2002 I allowed his appeal and remitted the case to the Magistrates Court for a trial 'de novo' saying that I would issue this judgment only after that trial concluded.

3. The grounds of the appeal, as settled by Mr Allan, read as follows - and I set them out in full because they collectively (and I stress that word) constitute a grave allegation of incompetence against the solicitor who had the conduct of the appellant's case in the Magistrates Court:

"1. In all the circumstances of the case the Appellant's conviction is unsafe and unsatisfactory in that the Appellant's defence solicitor having care and conduct of the Appellant's case before and during the trial failed, omitted, and/or competently to:

(A) Prepare the Appellant's defence adequately or at all.

Particulars

(i) failed to obtain any or any written instructions from the Appellant as to the Appellant's defence and/or any potential defence witnesses in particular "Ah Tung",

(ii) failed and/or omitted to hold any or any conference directly with the Appellant before the day of the trial,

(iii) allowing and/or permitting a solicitor's clerk to interview the Appellant before the trial without ever meeting the Appellant himself to discuss, confirm, and prepare the trial until the day of the trial itself.

(B) Advise the Appellant properly or at all.

Particulars

(i) failed to advise the Appellant properly or at all, on the law,

(ii) failed to explain properly or at all to the Appellant that the Appellant had to show on the balance of probabilities that the purchase/possession of the oil was from a legitimate source,

(iii) failed to explain to the Appellant properly or at all the importance of giving evidence, and/or the calling of any defence witnesses in support of his defence,

(iv) failed to explain properly or at all to the Appellant the consequences of not giving evidence.

(C) Competently defend the Appellant at his trial.

Particulars

(i) informing the Court at the outset of the hearing and, before any evidence had been called that, the Appellant would not and/or was not likely to give evidence in his defence.

(ii) Informing the Court wrongly at the submission of no case to answer and before the defence case inter alia that:

"So, in these circumstances, your Worship, that obviously, on the totality of the evidence, the prosecution is unable to rebut the evidence provided by the defence."

(iii) at the defence final submission merely and erroneously adopting his submission of no case to answer.

(iv) failing to act upon and follow the Appellant's instructions.

(v) at all material times to competently protect the Appellant best interests before and during the trial."

4. The appellant filed an affirmation in respect of this appeal. In essence what he said in that document was this:-

a) About a week before trial he (and his then co-accused) went to the solicitor's office where they saw and were interviewed by a clerk surnamed LEE. They told that clerk that the person who had sold them the diesel oil was called "Ah Tung" and that he was willing to be a witness for the defence. The appellant handed to the clerk 2 receipts in respect of the oil. The clerk made no notes during this interview;

b) The clerk told the appellant (and his then co-accused) that he would pass on this information to the solicitor and that they should attend court punctually for their trial;

c) At court the appellant asked the solicitor (before the trial started) firstly if he needed "Ah Tung" to be present as a witness and secondly if he (the appellant) should give evidence in his own defence, and the solicitor said no to both questions because in his view the case was very simple and would not proceed beyond submission stage;

d) After the Magistrate found that there was a case to answer the solicitor again told the appellant (and his then co-accused) that they should not give evidence or call witnesses because the prosecution had to prove its case and they could safely rely upon his (the solicitor's) closing submissions to the Court. He asked the clerk LEE to obtain their confirmation in writing that neither of them wished to give evidence and they both gave that confirmation;

e) Neither the solicitor nor the clerk Lee further explained to the appellant (or his then co-accused) why they might or might not give evidence in their own defence or call witnesses and he (the appellant) relied upon that advice. All that the solicitor did say was that there was no obligation upon them to do either of those things and that the burden of proving the case was on the prosecution; and

f) In her findings the magistrate stated, in effect, that whilst she found the appellant guilty of the offence upon the evidence of the prosecution there was no evidence from the defence in support of mere suggestions put in cross-examination and she rejected the appellant's out of court exculpatory account as being no more than a bare assertion.

5. Putting it another way, and more succinctly, what the appellant was saying was that there had been a miscarriage of justice and had he been properly advised by his solicitor he would have appreciated that the only way in which he could have avoided a conviction was by giving evidence himself and/or or by calling the man "Ah Tung" to give evidence on his behalf.

6. The solicitor concerned, in an affirmation filed in response to the appellant's allegations, in essence said the following:-

(a) the reference to the man LEE and his participation in the preparation for trial was pure fabrication. He (the solicitor) has never employed a person by that name and it was he himself who had personal conduct of the matter from the very outset;

(b) It was he himself who took instructions at his office from the appellant (and his then co-accused) and the defence that they advanced then was different to that which the appellant relates in his affirmation;

(c) The receipts to which the appellant referred in his affirmation were handed by him (the appellant) to the Customs & Excise officers at the time of his arrest and he (the appellant) gave those officers, in interview, an account of how and from whom he had purchased the oil, and those officers had checked out his account leaving the issue wide open for cross-examination and submission at trial;

(d) The very first time that he had heard of any reference to a potential defence witness - more particularly "Ah Tung" - being available to give evidence was when he read the appellant's affirmation prepared for his appeal;

(e) In conference he had advised the appellant (and his then co-accused) not to give evidence, because in his judgment neither was credible. He repeated that advice after the Magistrate found a case to answer, whilst at the same time telling them about the operation of the Dutiable Commodities Ordinance and about the evidential burden that fell upon them at that stage of proceedings and they both accepted that advice.

7. Before going any further let me make it perfectly clear that I reject utterly Mr Allan's grounds of appeal at 1(A) and 1(C). More particularly I wholly reject, as being simply untrue, the appellant's assertions at paragraph 4 (a), (b) and (c) above.

8. The matter that caused me concern on reading the papers prepared for this appeal and perhaps in particular the solicitor's affirmation, was essentially the same matter which plainly caused concern to the Court of Appeal in The Queen and HO LING and SU HUI FONG (Criminal Appeal No. 327 of 1994). In other words on the solicitor's own account had he failed to give proper and adequate advice to the appellant as to whether he should give evidence in his own defence?

9. I quote here the relevant parts of what the solicitor had to say about that:-

"When I attended Tsuen Wan Magistracy on the trial date, I was asked by the ... Appellant whether he would be required to give evidence. I advised that it might be necessary but we should see how the evidence went.

.....

At all material times, I was aware of the operation of the Dutiable Commodities Ordinance and that there is a burden on a defendant to rebut the statutory presumption ... The ... Appellant had supplied receipts to the Customs and Excise Department and made a statement to describe how he came into possession of the diesel oil. The receipts supplied by him had clearly shown the source of purchase, or, the chain of purchase. I am of the view that such evidence could be revealed in cross-examination ...

I did advise that the Appellant [was] not [a] convincing witness and I had advised that it would be preferable not to give evidence, since, during conference with the Appellant, based on my experience of practice, I did not see that there would be a slight probability that the credibility of the Appellant would be accepted.

... My advice to the Appellant remained the same that, though he might be innocent, still, I did not see that the Court would accept his credibility. ... It would take me further thoughts whether to call the Appellant to give evidence ...

Upon the ruling of the prima facie case, I took final instructions from the Appellant regarding his right to give evidence. I again advised that he did not appear to be a convincing witness. I further advised the operation of the Dutiable Commodities Ordinance and the Appellant's evidential burden to prove the chain of purchase. It is always preferable to put the credibility of the Appellant to be tested by the Court and if his evidence were to be accepted, he would be acquitted. On the other hand, if his evidence was rejected, or, if he was not confident to give evidence in Court, then he might consider not to give evidence.

In this respect, the manner of how the Appellant came into possession of the diesel oil had been spelt out during cross-examination. If the Appellant, elected not to give evidence, I might be able to deal with this aspect in submission.

[The appellant] confirmed that [he] did not want to give evidence. In these circumstances, I confirmed [his] instructions in writing, and, signed by [him]. At all the material times, I was not informed that there was any additional witness. Had I been informed of that, I would have asked for the full name of the witness and to take further instructions from the witness whom [he] referred to. It might also be necessary to seek for an adjournment if I was informed at such a late stage."

10. With the greatest respect to the solicitor I simply do not understand what he is saying in the paragraph above which commences: "Upon the ruling ... ". All that I can conclude from what he says is that at no time did he tell the appellant in terms after the no case submission failed, that if he elected not to give evidence he would most likely be convicted.

11 ． The Magistrate, in her findings, inter alia said this:-

"As for the Appellant, he produced 2 vouchers [to the Customs and Excise Officers] which showed that 1,000 litres of light diesel oil was purchased by Tak Kee from China Resources. The Appellant elected not to give evidence. The Appellant made a mixed statement ... He admitted that he was the owner of the fuel but stated that he purchased the fuel legitimately from a person called Ah Tung. I placed full weight on the inculpatory part of the Appellant's statement but I placed no weight on the exculpatory part ... That statement was made by the Appellant after the arrest of [his co-accused]. Apart from the bare assertion of the Appellant, there was no evidence of any connection between the voucher and the fuel. The Appellant's statement was self serving. There was no evidence as to the circumstances under which the fuel was allegedly purchased from "Ah Tung". No receipts were produced in relation to the purchase. There was also no explanation as to how the Appellant came into possession of the vouchers. I found that the Appellant had also failed to discharge the burden under s.17(11) of the Ordinance. The prosecution had proved the charged beyond reasonable doubt. The Appellant was accordingly convicted."

12. Again, as was apparently the position in The Queen and HO LING and SU HUI FONG, there was nothing in the present case to show that the solicitor "impressed upon the appellant that not to give evidence ... meant that conviction [would almost certainly] follow". And, as in that case, I reached my decision in the present one without the necessity of going beyond the words of the solicitor in his affirmation as to the advice he gave which I have set out above.

13. Given the manner in which he says that he proffered that advice, such advice may well (in my view) have left the appellant in some doubt "as to the crucial importance of [his] evidence". In the particular circumstances of this case it seems to me that the solicitor was obliged to explain in some detail to the appellant, if not the evidential value of an out of court exculpatory statement not made on affirmation, not repeated on affirmation and one which was not going to be tested in cross-examination, then certainly the real risk that he was running by electing not to give evidence in his own defence.

14. In the light of everything that I have said in this judgment it was my view on 30 October 2002 that there may have been a miscarriage of justice and that is why I allowed this appeal.