MAK KAM CHUEN v. HKSAR

FAMC No. 35 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 35 OF 2001 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 411 OF 1997)

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DETERMINATION

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Mr Justice Chan :

1. On 14 July 1997, the applicant was convicted after trial before a judge and a jury in the Court of First Instance of conspiracy to manufacture dangerous drugs. He was sentenced to 20 years' imprisonment. On 30 April 1999, his appeal against conviction was dismissed. His sentence was later reduced to 14 years on appeal. Two and a half years later, he now seeks leave to appeal against conviction on the ground that he has suffered substantial and grave injustice. He alleges that such injustice has resulted from two matters: (1) the conduct of his senior counsel at the trial, namely, failing to seek separate representation for him when there was a clear conflict of interest between him and one of the co-accused who were represented by the same counsel; and (2) the conduct of another senior counsel acting for him in the appeal before the Court of Appeal, namely, failing to consult him or seek his consent before abandoning the ground of appeal which relied on such conflict of interest at the trial. He also asks for extension of time to make this application.

2. For the purpose of this application, it is not necessary for us to go into any great detail on the facts of this case or what happened at the trial or in the appeal before the Court of Appeal, save and except the following.

3. The trial involved four accused. The 1st accused, the 2nd accused who died during the course of the trial and the applicant who was the 4th accused were represented by the same senior and junior counsel. The prosecution relied mainly on the evidence of two accomplices, PW1 and PW2 who gave evidence under immunity. Both testified against those who were involved in the conspiracy. They included the 1st accused, 2nd accused, 3rd accused and a person who was called Mak Kam Chuen. PW1 who introduced them into the manufacturing process said he knew this person called Mak pretty well. However, he did not identify the applicant as that person. On the other hand, PW2 who did not know this person well was able to identify the applicant as that person in court. Before the cross examination of PW1, senior counsel acting for the 1st accused and the applicant indicated to the trial judge that he was concerned whether there was any conflict of interest between the 1st accused and the applicant and whether he should continue to act for both of them. He said he was in a dilemma because, in the interest of 1st accused, he had to attack PW1's credibility but in the interest of the applicant, he had to maintain PW1's evidence of non-identification of the applicant intact. Having reflected on the matter and having consulted the applicant, senior counsel however decided to continue to act for both.

4. On appeal to the Court of Appeal, one of the nine grounds of appeal was that the trial judge had failed to consider the need of separate representation for the 1st accused and the applicant because of the conflict of interest between the two. It is interesting to note that there was nothing in the Notice of Application which put the blame on trial counsel. Another senior counsel who was instructed to act for the applicant in the appeal sought time from the Vice-President of the Court of Appeal to make investigation into this conflict of interest point and to reflect on it. In the result, senior counsel decided to abandon this point and argued some new grounds which related to the applicant's defence of alibi on the basis of some fresh evidence to be introduced.

5. The applicant now complains that senior counsel at the trial should have sought separate representation for him in view of the conflict of interest and that the second senior counsel in the appeal had failed to consult him or to seek his agreement to drop the conflict of interest point. It is said that this point would have a very good chance of success if it had been raised in the appeal. The applicant also relies on a decision of the Legal Aid Review Committee criticising both senior counsel for their decisions at the trial and on appeal.

6. Before this Committee, counsel submits that as a result of the conflict of interest, trial counsel was not able to act and did not act in the best interest of the applicant. He also complains that appeal counsel had not properly and sufficiently protected the interest of the applicant. He argues that as a result of what happened at the trial and in the appeal, the applicant is a victim of dereliction of duty, did not have a fair trial and has suffered substantial and grave injustice.

7. Without making any specific finding on this issue, we are not satisfied that there was any or any sufficient conflict of interest at the trial arising from the way in which PW1 gave his evidence so as to require separate representation for the 1st accused and the applicant. In any event, it would seem that neither the trial judge nor senior counsel considered this necessary. It must be borne in mind that it was after senior counsel had taken time to consider the matter before deciding to continue to act for both the 1st accused and the applicant. At the appeal stage, senior counsel had entertained some initial doubts on the conflict of interest point. But after some further investigation and deliberation, he made a conscious decision to abandon this point.

8. As a general rule, a party is bound by the manner in which his counsel conducts the case on his behalf. See R v Birks [1990] 48 A Crim. R. 385, 390; and R v Mo Lee Kuen [1993] 1 HKCLR 78, 85. Where the conduct of counsel at the trial is relied on as a ground of appeal, 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 fragrant incompetence which can form the basis of such a challenge. See R v Clinton (1993) 97 Cr. App. R. 320; R v Donnelly [1998] Crim. L.R. 131; R v Naveed Ullah [2000] 1 Cr. App. R. 351.

9. We are not satisfied that it is reasonably arguable that this is such a case. If two senior counsel, having reflected on the issue, came to the conclusion that this is a point which should not be pursued, it cannot be said that no reasonable competent counsel would have sensibly adopted the course taken by them. The applicant has also failed to demonstrate to us that he had been prejudiced by the conduct of counsel at the trial or in his appeal or that the conviction is unsafe as a result of what happened or did not happen.

10. We do not think that it is reasonably arguable that there is substantial and grave injustice in this case. We therefore dismiss the application.