HKSAR v. CHAN YING HO AND OTHERS

HCMA1156/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1156 OF 2004

(ON APPEAL FROM KTCC6181 OF 2004)

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J U D G M E N T

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1. These are appeals against conviction and sentence by the 2^nd, 3^rd and 4^th appellants.  The 1^st appellant (the 1^st defendant at trial) had earlier abandoned his appeals and they were dismissed on 18 March 2005.  All appellants were convicted after trial. 

2. The three remaining appellants had originally been jointly charged with unlawful wounding, contrary to s.19 of the Offences Against the Person Ordinance, but were convicted of the alternative offence of common assault pursuant to the provisions of s.51(2) of the Criminal Procedure Ordinance.  Each appellant was sentenced to six months’ imprisonment.

3. The facts of the case as found by the magistrate were that the appellants were members of a gang of eight men, who went to the offices of a real estate agency in Sai Kung for the purpose of collecting a debt from PW2, the girl friend of the proprietor PW1, who worked with him there.  The debt was allegedly owed by her to a former business colleague.

4. Five of the gang entered the premises and there confronted both PW1 and PW2.  The other three gang members remained on guard outside.  A member of the gang inside the shop claimed to be “of the 14K” and threatened to “swipe” the premises.  Some of the gang then picked up stools inside the premises.  PW1 picked up a pole in response but one of the gang took it from him and later hit him over the back of his head with it causing a 7cm wound.  The other gang members inside the shop, including the three appellants, then proceeded to beat PW1 with fists.

5. The police were called by PW2 and while some of the gang left, others, including the three appellants, stayed at the shop.  One of them told the staff of the agency to mind what they said to the police.

6. The three prosecution witnesses called at trial were PW1, the male proprietor of the shop who was the victim of the assault, PW2 his girl friend who worked in the agency and who allegedly owed the debt the gang had come to collect and PW3 a staff member of the agency who witnessed the events in the shop and the assault on PW1.

7. The appellants were represented before me by Mr Jeremy Cheung who was not counsel at their trial.  Mr Cheung advances two fundamental grounds of appeal.  Firstly, he says that the trial magistrate did not adequately consider the evidence and particularly the appellants defence that they had been acting properly as debt collectors, but had been “set up” by PW1 and PW2 who had called the police and fabricated a story against them so as to preserve PW2 from having to pay her debt.  Secondly, and as perhaps his major ground of appeal, Mr Cheung complains that counsel for the appellants at trial was incompetent in as much as he did not properly advise the appellants on the presentation of their defence, so that they did not give evidence when they should have and did not put into evidence their statements to the police under caution which statements would have assisted the appellants’ cases at trial, so that the appellants did not receive a fair trial.

8. So far as the first matter is concerned, it is quite plain that the magistrate did properly consider the evidence.  The fundamental issue before the magistrate, as the trial was conducted, was the credibility of the three prosecution witnesses.  He concluded that PW1 and PW3 were truthful, but declined to rely upon the evidence of PW2 as she had in 2000 been convicted of an offence of misleading the ICAC by providing it with false information.

9. It is true to say that this fundamental issue of the reliability and credibility of the prosecution witnesses was hard fought at trial and comprised the greatest part of counsels cross-examination and submissions to the court.  

10. The suggestion of there being a “set up” was simply a motive attributed to PW1 and PW2 for lying (and attributed also indirectly to PW3 their employee).

11. It was put this way in counsels final address :

“And, finally, I will submit that, on the other hand, the prosecution witnesses had an incentive to exaggerate.  To, at least, exaggerate the matter.  Perhaps they have had enough of these debt collectors keep on coming back.  They know if they present the case to the police, that it is just a monetary dispute.  The police will not step in.

The police will only step in if they exaggerate the matter a bit, and add in some triad or other crime, elements of crime.  By doing so, they may think that the police can help to get rid of these debt collectors for the time being.”

12. Earlier in his cross-examination of PW1, counsel had put this :

“	Q.	Did anyone tell you that the police, they will take action if any crime, such as criminal damage or claiming to be a member of triad societies, these crimes were committed?  The police will take action.
	A.	No.
	Q.	I put it to you that you want the police to come and stop these debt collectors from coming back to collect the debts, and so you make up this story.
	A.	Disagree.”

And in cross-examinating, PW2 had done so on this basis :

“	Q.	The reason why you made up this story was that you knew or you understood that by alleging these crime, the police would come to arrest the defendants, arrest this debt collectors, so that they would not come again to collect the debt which you owed to that Miss Yip.
	A.	Disagree.”

13. It is true that the magistrate did not directly address the suggested motive at length in either his oral reasons for verdict or his later Statement of Findings.

14. What he said in this regard was simply this :

“I am satisfied that PW1 and PW3 were truthful witnesses and they gave their testimony honestly.  They did not exaggerate. …”

15. But he was obviously aware of counsel’s earlier cross-examination and submission to the effect that the prosecution witnesses may have “exaggerated” their evidence and had a motive to do so.

16. The magistrate no doubt dealt with the matter briefly.  But in my view he did not have to go further than that.  The suggested motive was pure speculation.  There was no evidential basis available to support the existence of any such motive and, I might add, the giving of evidence by the appellants would not have altered that position. 

17. In the absence of any such evidence, there was very little point in the magistrate dealing expressly with the question of motive as an issue he had to resolve.  A magistrate is not required to spend time dealing with speculative issues.  Rather what he had to do was resolve the fundamental question of the credibility of the prosecution witnesses.  That resolution involved the magistrate thoroughly dealing with issues of identification, conflicts of evidence between witnesses and discrepancies between a witnesses evidence and the contents of the witnesses statements. 

And that is what the magistrate did.

18. In any event, the primary feature of the evidence which supported the appellants’ case that they were simply debt collectors going about their business was the fact that the appellants had stayed at the real estate agency though they knew the police had been called. 

19. In regard to this the magistrate said :

“I wish to add that I have taken in account the unusual circumstance that, after the incident, these four defendants all waited at PW1’s office with the knowledge that the police would be coming to that office.

Defence counsel submitted that this was consistent with innocence, since a person guilty of these offences, or an offence or offences, would have fled.  He pointed out to me that PWs 1, 2 and 3 did not know the defendants and it would, therefore, have been difficult to trace them had they fled.  I did take that into account.

But I am satisfied that the explanation for their remaining in the office is due to the defendants’ lack of regard for and arrogance towards the law and those entrusted with enforcing it.  As one of their group said to PW1, when PW1 attempted to show them a court order, ‘We are here to talk about money, not about the law.’”

That was a finding open to him on the evidence.  In my view, the magistrate considered the evidence before him thoroughly and with a proper and balanced approach.  There is no merit in the first ground.

20. I turn now to the major complaint of the appellants, that is, that their counsel at trial was so incompetent that their trial was unfair. 

21. The most important aspect of the appellants’ complaint in this regard is that their counsel wrongly advised them not to give evidence, and that in following that advice they thereby were unable to present their cases adequately.

22. The reason, the appellants contend in their perfected grounds of appeal, that counsel advised them not to give evidence was that each appellant has a criminal record and counsel advised them that should they give evidence, they would be cross-examined on those criminal records.

23. I allowed evidence in the form of affirmations to be presented before me for the purpose of dealing with this ground of appeal.  Those affirmations were provided by trial counsel and by the 3^rd appellant whose evidence in this regard was relied upon by the other two appellants.

24. Both trial counsel and the 3^rd appellant were subjected to questioning by counsel appearing before me.  All appellants waived privilege for the purposes of these proceedings.

25. I accepted trial counsels evidence.  He appeared to me to be a frank and thorough witness.  He gave evidence in a coherent and sensible manner.  The 3^rd appellant on the other hand suited his answers to what he understood to be his case  He was vague and uncertain in his recollection of what had occurred during the trial.  He said he signed Chinese language documents (which transpired to be written instructions) without knowing what their contents were.

26. Trial counsel in his first affirmation of 7 April 2005 said that he had on instructions cross-examined the prosecution witness PW2 on her previous conviction for misleading the ICAC and had advised the appellants that might make the appellants, should they give evidence, vulnerable to cross-examination on their own reasonably significant criminal records.

27. In this regard counsels’ affirmation is as follows :

“	5.	When I was informed by the prosecutor that PW2 had a criminal record relating to dishonesty, I considered that the record might be used to the advantage of the Appellants.  I therefore explained to the Appellants that I could use that to cross-examine PW2 in the hope of undermining her credibility.  However, I also warned them that if they instructed me to adopt such a course, they might be at risk of being cross-examined about their respective criminal records if they ultimately elected to give evidence.
	6.	After careful consideration, the Appellants instructed me to cross-examine PW2 on her previous conviction.  I did as I was instructed.”

28. In adopting that course, trial counsel had taken the precaution of obtaining written instructions.  Those instructions were in these terms :

“We, the undersigned, hereby authorize your firm and the barrister your firm instructed to reveal the criminal record of PW2 in the cross-examination on him/her.  We understand that this may trigger the revelation of our criminal records by the Prosecution when we give evidence.”

29. One can understand why trial counsel would have been keen to cross-examine PW2 on that record.  It fitted neatly with the defence case at trial that PW1 and PW2 had effectively lied and provided false information to the police.

30. Subsequently at the conclusion of the prosecution case, trial counsel advised the appellants that in his view he had damaged the credibility of the prosecution witnesses and in this regard, his affirmation proceeds as follows :

“

9.

In relation to the testimony of the prosecution witnessed, I analyzed to [the appellants] that their credibilities varied.  I told them that to a large extent, PW2’s credibility had been destroyed.  In relation to the evidence of PW1 and PW3, I told them in gist that there were a number of inconsistencies in and among their evidence.  I also told the Appellants that the medical report of PW1 did not completely match his evidence on the attack.  (All these points were later made in my final submissions to the Learned Magistrate.)  I however reminded them that the amount of weight given to these suggested doubts or discrepancies would be entirely in the discretion of the Learned Magistrate.  He might, after considering all the above, still convict the Appellants upon the evidence of the prosecution witnesses, if he ultimately believed them to be honest and reliable witnesses.”

31. In the event, the magistrate agreed with trial counsels’ assessment of the damage inflicted on PW2’s credibility and rejected her as a witness of truth, but so far as PW1 and PW3 were concerned accepted them as reliable witnesses, having considered and dealt with the discrepancies in their evidence.

32. Trial counsels affirmation continued :

“I was satisfied that the Appellants all understood my analysis.  I then asked them to consider carefully whether to give evidence after assessing the pros and cons.  I further warned them upon the evidence presented by the prosecution, it was still possible for the Learned Magistrate to convict them if he ultimately believed the evidence of the prosecution witnesses.  After careful consideration, the Appellants informed me that all of them intended to remain silent and would not call any witness.  …”

33. A further written instruction to that effect was then obtained in the following terms :

“We, the undersigned, defendants of the above case, hereby upon the explanation of our legal rights by our legal representatives, decide not to give evidence in the above case, nor to call any witnesses.  We understand that the Court may still convict us upon the evidence available at present.”

All of this points to a careful and thorough approach to the appellants case and an accurate appreciation of the issues involved.

34. Mr Cheung for the appellants before me submitted that trial counsel should have strongly advised the appellants that at least one of them should give evidence so as to deal with the strongest aspect of the prosecution case, that is that PW1 suffered a 7cm laceration to the back of his head during the confrontation with the appellants.

35. In his oral evidence before me, trial counsel said that from his instructions he understood that the biggest problem the defence case had to confront was the injury to PW1’s head.  He said when he asked the appellants about this they could not initially provide him with a satisfactory answer, though finally one said a cup thrown by PW2 did or might have struck PW1.  He said that he had explained to the appellants that the wound to PW1’s head was the weakest part of the defence case and they were aware of that when they elected not to give evidence.

36. Miss Lai for the respondent points out that even if the appellants had gone in to the witness box, it was unlikely that anyone of them would have given compelling evidence about how PW1’s head wound came about.  The injury in terms of its size and location was inconsistent with any speculation that PW1 might have been hit accidentally by a tea cup thrown at the appellants by PW2, or would have been caused by the 1^st defendant at trial fending off the blows of PW1 in the confrontation between them.

37. In my judgment, trial counsels advice to the appellants at the end of the prosecution case was balanced and thorough.  There was no need to strongly advise anyone or all of them to give evidence when it was doubtful whether that evidence would have been capable of addressing the issue.  Further the reality of anyone of the appellants giving evidence was that he would have had to explain why eight individuals went to the victim’s premises to collect a debt.  When trial counsel had sought instructions on this he received the reply “that’s how it is always done”.

38. One further complaint Mr Cheung makes, is that trial counsel did not put into evidence the statements made by the appellants to the police.  He suggests this may have been particularly harmful in circumstances where the appellants had not given evidence, because those statements contained some exculpatory parts.  But it is fair to say that so far as the 2^nd and 4^th appellants are concerned, those statements were simply in the form of denials and would not have added anything to what in fact was contained in the facts admitted pursuant to section 65C of the Criminal Procedure Ordinance to the effect that when cautioned by police each appellant denied the offence.  In my view, it was a matter for counsel as to what approach to take to the appellants’ denials.  His decision to simply incorporate the 2^nd and 4^th appellants’ denials upon arrest and caution into the admitted facts cannot, in any real sense, be criticized.

39. So far as the 3^rd appellant is concerned, he went into some further detail in his statements to the police where he described a confrontation between PW1 and the 1^st defendant whereby at one stage, PW1 picked up a wooden pole and the 1^st defendant fended off his blows with a stool, before the 3^rd appellant intervened and pushed them apart.  

40. Trial counsel however cross-examined PW1 on the basis that the 2^nd appellant had tried to separate PW1 and the 1^st defendant, while the 3^rd appellant had remained throughout on the couch.  That, according to trial counsel, was on the basis of his instructions and I accept that to be so.  In other words, the instructions trial counsel received differed somewhat from the contents of the 3^rd appellant’s statements to the police.  

41. In those circumstances, it seems reasonable for the 3^rd appellant’s case to have been conducted on the basis of the denials contained in the admitted facts only and that the full contents of his statements to the police not go into evidence.  Even if those statements had gone into evidence at the end of the day it is unlikely the exculpatory parts would have been given great weight.

42. In short, in my judgment, trial counsel conducted the defence case sensibly and thoroughly.  His advice to the appellants was accurate and balanced.  The appellants’ decision not to give evidence was made on a properly informed basis.  No part of trial counsels conduct of the defence or his advice to the appellants resulted in any unfairness to them.

43. It may be with hindsight other approaches could have been taken.  But the fundamental reality is this : what the appellants are really complaining about before me is simply that the quite reasonable decisions taken by them, after being properly and professionally advised by trial counsel did not result in their acquittal. 

44. In my view, this case falls comfortably within that class of cases where tactical options which are adopted by a properly informed defendant, simply do not result in an acquittal and where trial counsel is then blamed in hindsight by that defendant for not having urged another course which in hindsight seems better.

45. That simply forms no basis for any suggestion of unfairness.  Indeed, the taking of one tactical option rather than another is a process which properly forms part of every fair trial.

46. A defendant is not entitled to a perfect trial, simply because there is no such thing.  With hindsight there can always be seen other, perhaps more advantageous ways of a defence case being run.  But that falls a long way short of a miscarriage of justice.

47. In the present case, trial counsel made no substantial error.  The appellants were properly advised of their situation.  They elected not to give evidence and in doing so they had been made aware of the strengths and weaknesses of their respective cases.  They can make no substantial complaint of the conduct of their trial. 

48. There is no merit to the second ground of appeal and the appeal against conviction is dismissed.

49. I turn now to the appeals against sentence.

50. Mr Cheung argues simply that the sentence of six months’ imprisonment received by each appellant is too severe.  I entirely disagree.  A gang of eight persons went to the premises of the victim to collect a debt.  That in itself is intimidatory and carries with it the unspoken threat of violence.  The victim was then subjected to express verbal threats.  Ultimately, he was assaulted and beaten up by the gang.  He received a head wound. 

51. This sort of behaviour is wholly unacceptable and in my view a person who participates in that sort of activity, even if he has no prior convictions can expect an immediate custodial sentence.  Six months’ imprisonment on the facts of the present case cannot be said to be too severe.

52. The appeals against sentence are dismissed.