HKSAR v. PAU KAI MING

CACC 206/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.206 OF 2002

(ON APPEAL FROM DCCC 848 OF 2001)

______________

______________

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 16 April 2002, following a trial in the District Court before Judge Wright, the Applicant, aged 45, was convicted of theft and sentenced to a term of three years' imprisonment. He now seeks leave to appeal against conviction.

2. The charge sheet named Chow Cheuk-hung as a co-defendant. However, at the commencement of proceedings, his guilty plea to handling stolen goods was accepted. These goods were the same as those allegedly stolen by the Applicant, namely, 313 boxes containing a total of 5,000 leather jackets belonging to Eurasia Express (HK) Company Limited (Eurasia). The relevance of this is that Chow Cheuk-hung (PW1) gave evidence against the Applicant at trial.

Ground of appeal

3. It is unnecessary to go into much detail about the facts as this application turns on one issue alone. The sole ground of appeal, advanced by Mr Jimmy Kwong on the Applicant's behalf, makes the complaint that the conviction is unsafe or unsatisfactory because counsel who represented the Applicant at trial "failed to advise the Applicant sufficiently if at all .... (that) it was highly desirable for (him) to give evidence". This contention was based upon the prosecution having proved that a 'Container Release Order', which the Applicant had produced in order to secure the release of the container in which the jackets were stored, was obtained by means of a forged bank guarantee.

4. No issue was taken as to the judge's handling of the trial, either as to law or fact. It follows, therefore, that it is accepted that the judge was fully entitled to have convicted on the evidence which had been put before him.

The facts

5. We can, for present purposes, more or less adopt the helpful summary of the facts which Mr Chapman has prepared on the Respondent's behalf.

6. The theft of the 5,000 leather jackets was alleged to have occurred on 4 July 2000. The jackets were manufactured in the Mainland and they were shipped from there in a container. They were valued at approximately $3,500,000. The consignee of the goods was Eurasia whilst an enterprise called 'Trento and Company' was described as the "notify party and intermediate consignee".

7. On 1 July 2000, the jackets arrived at Kwai Chung Container Terminal.

8. On 2 July 2000, the Applicant engaged PW1, who owned a transportation company, to collect the container from the Kwai Chung Container Terminal and to take it to a storage depot. To secure its release from the container terminal, a release order was necessary.

9. On 4 July 2000, various documents were supplied, by an unidentified person, to Eurasia's office in order to obtain the release order. The documents supplied included a "bank guaranty" which was later found to be a false document. It was purportedly signed on behalf of 'Trento and Company' amongst others. The release order thus obtained was given to PW1 by the Applicant whose fingerprint was in due course found on it. Later that day, the Applicant and PW1 presented the release order as a result of which the container was removed from Kwai Chung and taken to a storage yard in Nam Tei in the New Territories. The container was opened in the presence of both PW1 and the Applicant. The jackets were then transferred to another container which had been hired for storage purposes. When the Applicant left Nam Tei, he took some of the jackets with him.

10. On 7 July 2000, the Applicant returned to Nam Tei with two other males. On this occasion, he opened the storage container and removed one jacket. He allegedly signed a document evidencing the removal of the jacket in the name of "Ho Fai".

11. On 20 July 2000, the Applicant contacted PW1 and indicated that a proportion of the jackets in the storage container were to be removed in order to have their collars detached. After this had been done, the jackets were to be placed into a different container for export.

12. These arrangements were completed the following day in the presence of the Applicant. The jackets were then sent once more to the Kwai Chung Container Terminal. Their subsequent shipment out of Hong Kong to the Untied States was arranged by the Applicant.

13. On 25 July 2000, the Applicant engaged someone to go to the Nam Tei premises in order to collect the collars which had earlier been removed from the jackets and to take them to a nominated storage depot. They remained there until they were later seized by the police. The Applicant himself went to the Nam Tei premises that same afternoon and effected the removal of the balance of the jackets.

14. By this time, the police had become involved and were investigating alleged irregularities surrounding this consignment of jackets from the Mainland. The Applicant had provided PW1 with a cover story in the event, as duly happened, that PW1 was approached by the police. The Applicant told PW1 to tell the police, if he was asked on whose behalf he (PW1) had been working, to say that it was for 'Chan Kam-wah'. He also provided PW1 with what the Applicant claimed was 'Chan Kam-wah's' mobile telephone number.

15. On 31 July 2000, PW1 was arrested and interviewed. He gave police the false story the Applicant had told him to give. PW1, however, later agreed to cooperate with the police.

16. On 4 August 2000, PW1 arranged to meet the Applicant in a nightclub where the Applicant handed him $34,000, saying that $30,000 was a contribution towards his bail monies and $4,000 was compensation for missed work due to his involvement with the police. Shortly after this, the police arrested the Applicant. They found in his pocket two 'Trento and Company' business cards in the name of 'Ho Man-chiu'.

17. The Applicant and PW1 were later jointly charged with the theft of the jackets and, in the alternative, handling stolen goods.

The application

18. This application was supported by two affirmations from the Applicant himself, and by affirmations from his wife, Josephine Tse, and his employer, Chan Wai-key. The Respondent, on the other hand, relied heavily upon the affirmation given by Mr Paul Tse, defence counsel at trial, whose recollection was considerably at odds with the account given by the Applicant in his affirmations. All these affirmations were admitted in evidence under the terms of section 83V of the Criminal Procedure Ordinance, Cap. 221.

19. Essentially, the Applicant's first affirmation, dated 11 July 2002, described how, at the conclusion of the prosecution's case on a Friday morning, the trial had been adjourned until the following Monday in order to enable him to decide whether or not he would give evidence. The affirmation continued by stating that at a conference on that Friday:

"5. I asked for Mr Tse's advice and he said that the result should be the same whether I gave evidence or not. He said there were doubts in PW1 and 2's evidence and that if I gave evidence, I could give a wrong answer and that would be detrimental to my case. In short, while he explained to me I was free to elect giving evidence or remaining silent, his advice was that there was no need to give evidence and to explain to the court how I came to have the Release Order in my possession and retrieve the said container with PW1, the truck driver. He said that there were doubts in the evidence of the prosecution witnesses already."

20. In the next paragraph, the Applicant stated that when the trial resumed, Mr Tse informed the court of the Applicant's decision not to give evidence. The affirmation continued by stating that the Applicant now considered the advice he had been given, to the effect that he did not need to give evidence, was wrong as he had come to realise that he needed to explain how he came to have the release order for the container.

21. The Applicant's wife provided an affirmation in which she said that the advice she heard being given at the Friday conference by Mr Tse was that whether her husband gave evidence or not, the result should be the same. She left the table for a while and returned to find that her husband had decided not to give evidence.

22. The affirmation given by the Applicant's employer, Mr Chan Wai-key, provided some reasons which might have supported a decision by the Applicant to give evidence.

23. Counsel for the defence in the court below, Mr Paul Tse Tak-yan, provided an affidavit on 12 August 2002 in which he said that the Applicant's attitude was that he did not want to give evidence on the general issue and he went on to state:

"According to the Appellant his reasons are: (i) police had found Chan Kam Wah's name in his office and it would be difficult for him to explain; (ii) he had given (PW1) $34,000.00; and (iii) Police had found on the Appellant two identical name cards of a Mr Tse of 'Trento'. Trento is the company which had procured a Letter of Credit in relation to the leather jackets by false information. The Appellant felt if he were asked questions about these he could not be able to explain.

After the prosecution closed its Case, I applied for an adjournment purely to persuade the Appellant to give evidence. I had advised him we do not have any evidence to counter the evidence of (PW1) and (PW2). I explained to him the danger of not giving evidence. However, the Appellant said the learned Judge did not appear to believe (PW1) and that (PW2's) evidence is not good and both had been contradicted by me in many parts of their evidence. I had urged the Appellant to consider what to say if he gives evidence and that I will have another conference with him on Saturday to discuss what evidence he should give. We parted on Friday with the Appellant promising me he will seriously re-consider whether to give evidence or not. On Saturday morning the Appellant telephoned and said he will not give evidence."

24. We learnt, in the course of Mr Paul Tse's evidence in this court, that his reference to a 'Mr Tse' of 'Trento', in the first paragraph of the passage cited from his affidavit, was an error in his memory and should have referred to 'Mr Ho Man-chiu'.

25. The affidavit went on to describe how, on Monday, when the trial resumed, the Applicant signed a note which acknowledged that his counsel had given him advice. This read:

"I, Pau Kai-ming, have decided that I am not willing to give evidence in the witness box after listening to the explanation by Mr Tse Tak-yan,Barrister,regarding the seriousness of this case and my right to choose whether or not to give evidence in the witness box.

	Signed Pau Kai-ming
	15-(illegible)-2001
	(Stamp)
	(Signed) (illegible)
	(Stamp)"

26. Mr Tse's affidavit also alleged that in one of the six conferences he had held with the Applicant, a 'Mr Chan' was brought along by the Applicant. This 'Mr Chan' had seemed very knowledgeable about the transportation business but when Mr Tse had suggested he might become a witness, this idea had been rejected. Mr Tse also said that the Applicant had agreed to trace 'Chan Kam-wah' (the name given by PW1 to police when he was originally questioned about who had employed him to collect the jackets).

27. Mr Tse's account of matters was countered by a further affirmation, dated 3 September 2002, from the Applicant in which, amongst other things, he said that he had been engaged in only four conferences with Mr Tse; that he had never brought anyone called 'Chan' to any of the conferences; and that Mr Tse had never suggested that 'Chan Kam-wah' should be located with a view to him being called as a witness.

28. The Applicant also denied telling Mr Tse that he did not wish to give evidence for the three reasons stated in Mr Tse's affidavit.

29. Then, in paragraph 4 of the affirmation, the Applicant continued by saying:

"(a) I deny that Mr Tse 'persuaded me to give evidence', or 'advised me that I did not have any evidence to counter the evidence of (PW1) and (PW2)' or that 'he explained to me the danger of not giving evidence'.....

(b) I never said to Mr Tse, and it was Mr Tse who said to me as part of his advice to me, that I needed not give evidence, that 'the Judge did not appear to believe (PW1) and that (PW2's) evidence was not good and both had been contradicted by him in many parts of their evidence'......."

30. In the concluding paragraph of that affirmation, the Applicant stated that he had signed the note, as requested, which had been prepared for him to sign, after he had decided "upon Mr Tse's advice not to give evidence". He said that he was following the advice he had been given.

31. At our request, Mr Tse (and a clerk from his instructing solicitors, Mr Alan Leung) gave evidence. It is apparent from Mr Tse's evidence that strong advice was given. Mr Leung was unable to recall the terms of the advice given save that the Applicant's choices were set out clearly for him. It is apparent that the Applicant would have been unable at trial to answer many crucially material questions, and no doubt it was this factor which may have caused his decision to avoid going into the witness box. Whatever the case may be, he has, in these proceedings, relied upon his affirmations and he again chose not to give evidence.

32. Mr Kwong's submission was that this was one of those cases, similar to the example to be found in R v Li Wan-keung [1996] 4 HKC 546, where counsel for the defence should have strongly advised his client to give evidence. He also argued that the Applicant's affirmations were to be preferred to Mr Tse's testimony as to whether such advice was in fact given. Mr Kwong contended that in the event that we preferred the affirmations provided by the Applicant, on whom it is accepted that the civil burden of proof lies to establish that he did not have a fair trial by reason of the poor advice he had been given (see: R v Wong Chi-yun CACC 151/1994 at p. 14), we should in such circumstances order a re-trial.

33. Mr Chapman, on whom we did not need to call but to whom we are grateful for his very considerable research into a line of authorities dealing with what may cause an appellate court to decide that a fair trial has not been achieved arising from flagrantly incompetent advice given to a defendant by his legal advisers, submitted in his written response that the evidence before this court had failed to establish either that Mr Tse had been flagrantly incompetent or that the Applicant had not received a fair trial. His contention was that the Applicant was merely asserting, with the benefit of hindsight, that his trial might have been better conducted if he had chosen to given evidence. This was, Mr Chapman submitted, a tactical decision taken by the Applicant, having been properly advised as to his position, and being well aware of the strength of the case against him and of some difficult questions he might be asked if he had gone into the witness box.

34. Mr Chapman reminded us, in writing and from his list of authorities, of the way in which Chan PJ put the approach to this issue in Mak Kam-chuen v HKSAR, FAMC 35/2001:

".... the ultimate question for the court is whether the conduct complained of has resulted in the accused not getting a fair trial so that the conviction is unsafe or there is a miscarriage of justice. Usually, it is only significant fault such as what is sometimes described as flagrant incompetence which can form the basis of such a challenge ...."

Conclusion

35. We are satisfied, having considered all the evidence which has been put before us under section 83V of the Criminal Procedure Ordinance and from the evidence we have heard today in court, that the Applicant signed the note, indicating that he did not intend to give evidence, with full knowledge of the seriousness of his position after this had been explained to him by counsel. The Applicant had, before he signed the note, considered the matter in the round and made a decision which he plainly thought at the time would be tactically in his best interests. His tactics having failed, it seems that he is now attempting to reverse the stance he adopted in the trial court by seeking to put forward his defence by a route which he had decided against when he opted not to give evidence at his trial. In doing so, the Applicant has been prepared to stoop to inventing a false allegation against Mr Paul Tse which, having examined the evidence with care, we have no hesitation in rejecting. Mr Tse acted with complete propriety throughout. There is no merit to this application whatsoever.

36. Accordingly, this application is dismissed and because it was bereft of merit we shall order that three months of the time the Applicant has served pending this application shall not be reckoned as part of his sentence under the terms of section 83W of the Criminal Procedure Ordinance.