R v. LAU SUI FU

IN THE COURT OF APPEAL

1995, No.174
(Criminal)

_____________

_____________

______________

J U D G M E N T

______________

Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant, who was the 2nd defendant at trial, faced one count of murder it being alleged that he and Cheung Chin-ting on 30th December 1993 at the subway at Ching Ping Street, Yaumati, Kowloon, in Hong Kong, together with another person, murdered So Wing-fat. He pleaded not guilty to that charge and was found guilty after trial in the High Court before Leong J. and a jury. He now appeals against that conviction.

2. It was the Crown case, as set out by the trial judge when summing up that:

".......... in the early hours of the 30th of December, 1993 the deceased and the 2nd defendant had a quarrel when the 2nd defendant took a packet of biscuits belonging to the deceased to eat without the deceased's permission. Shortly after the quarrel, then the 2nd defendant came back with two men, one of whom the prosecution says was the 1st defendant and together they chopped the deceased with long knives (inflicting 16 to 18 wounds). As a result, the deceased died of multiple chop wounds. The prosecution says that both defendants were present at the scene and both of them participated together with the third person in the attack by physically inflicting the chop wounds on the deceased."

3. The applicant did not give evidence. His defence, as put in cross-examination, was set out by the judge as follows:

"... he was mistakenly identified to be one of the attackers and if he was there he did not chop the deceased. Alternatively his defence is that if he had chopped the deceased to death, he did so under the provocation."

4. It was the evidence of Mr. Tang So, PW2, that he had been to the subway early on the evening of 29th December and had then left and had not returned until after 3 a.m. on 30th December. He remained there chatting with the people and some time later noticed that the deceased had a quarrel with the applicant. He paid no attention to the quarrel because it was not his business but noted that the two quarrelled intermittently for several hours. He then left to have tea and a bowl of noodles and the deceased was then sitting on his bed pointing his finger at the applicant. When he returned after tea he found the deceased lying on the slope at the subway exit bleeding.

5. A Mr. Lau Sing-wing, PW4, said that he knew neither the deceased nor the applicant but that there had been a quarrel between the deceased and another person, the subject of which he did not know, and that when it ended he saw someone leave and later three men carrying knives come running to the scene. The deceased ran and was chased by these men around a corner and a yell of "Ai ya" was then heard. After this he went around the corner and saw the deceased lying in blood on the ground.

6. Neither PW2 nor PW4 witnessed the chopping.

7. More important witnesses were Mr. Lam Kwok-chi, PW1 and Mr. Chan Chun-kwong, PW3. PW1 said that at about 6 a.m. a quarrel started between the deceased and the applicant. The applicant had taken a packet of biscuits belonging to the deceased and had started to eat them. He said that the deceased's attitude was very bad and that he became very agitated when he found that his packet of biscuits had been taken by the applicant and insulted the applicant saying words to the effect that he would rather let the dog eat the biscuits than the applicant. According to PW3 who participated in eating the biscuits the deceased said that the applicant was a beggar and that he would rather throw the biscuits away than let him have them. Both PW1 and PW3 said that the deceased threw the biscuits onto the ground and crushed them with his feet. PW1 said the applicant was very angry and that he sat there in silence for 5-10 minutes "looking pale on the face with anger" and that he then left. As regards this incident the trial judge directed the jury as follows:

"You may think that the second defendant (applicant) felt that he was abused and insulted and he was in great anger when he left the subway."

It was the further evidence of PW1 that some 30 minutes after the applicant left the subway, i.e. at about 6:15 to 6:20 a.m. he returned. He was sitting with PW3 and the deceased on the bed at that time and the deceased suddenly sprang from the bed and started to run towards the exit of the subway. He turned around and saw the applicant come running down with two men who were carrying knives and that all three chased the deceased. He momentarily looked elsewhere to find his shoes and then ran towards the exit to see what had happened. When he reached the exit he heard someone yell 'Ai ya' and then saw the deceased lying on the ground. The two men who had come with the applicant were there and they pointed knives at him. The applicant, who was then near the staircase of the exit, told the men 'Don't chop him, he is not involved'. He told the applicant that he was very foolish which elicited the response was that it was none of his business.

8. PW3 gave evidence describing the quarrel and saying that 5 minutes after it had died down the applicant was missing. 10-15 minutes later he heard sounds of running footsteps behind him and saw the deceased spring up from his bed and then three persons passed in front of him and chased the deceased towards the subway exit. All three were holding knives and one of them was the applicant. When the deceased reached the exit he was caught by the applicant and the two men and he then heard a yell "Ai ya". He did not see the first blow but saw all three chop the deceased several times from a distance of about 30-32 feet. He heard someone shout "He is so cheeky, chop him". After the chopping he saw the applicant go back to the bed of the deceased and put the knife in his trousers covering it with a jacket.

9. Mr. Robert Buchanan, who appears for the applicant, has argued two grounds. In the first it is contended that the issue of provocation arose and that the directions given to the jury upon that issue were "inadequate, misleading, unfair, adverse and insufficient". It is accepted that the proper direction to be given when provocation arises is contained in a statement of Lord Diplock in R. v. Camplin (1978) A.C. 705 at 718 as follows:

"In my opinion a proper direction to a jury on the question left to their exclusive determination by section 3 of the Act of 1957 would be on the following lines. The judge should state what the question is using the very terms of the section. He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did."

10. The judge first dealt with provocation in the following way:

"Now, what is provocation then? Provocation is some act or series of acts done and/or words spoken which causes the defendant or which causes in the defendant a sudden and temporary loss of self-control, as a result of which the defendant was unable to restrain himself from doing what they did and which would cause a reasonable man to lose his self-control and to behave as the defendant did.

Therefore, you will have to consider two questions: (a) Did the allegedly provoking conduct cause the defendant to lose his self-control suddenly and temporarily so that at the time when he acted violently, he was not master of his mind? (b) Might that conduct have caused a reasonable person to lose his self-control and to behave as the defendant did? So two questions. Did the provoking conduct cause the defendant to lose his self-control suddenly and temporarily so that at the time when he did the violent act, for instance, the killing or attack, he was not master of his own mind? If that is so, then you have to consider the second matter. Would that or might that conduct have caused a reasonable man to lose his self-control and to behave as the defendant did?

As to the second question, take into account everything said and done according to the effect which in your opinion it would have on a reasonable man. You will put all these things on a reasonable man.

A reasonable man is a person having the powers of control to be expected of an ordinary person of the sex and age of the defendant."

11. The complaint is that the judge did not direct the jury that the reasonable man to be considered must be a person not only of the sex and age of the defendant but one who must also be taken to have such of the characteristics of the defendant as would affect the gravity of the provocation offered. It was submitted by Mr. Buchanan that the defendant is a drug addict and that the jury should have been told that they had to examine the words said to him by the deceased in the light of that characteristic as the words might well have an effect upon a drug addict different to that which they would have upon an ordinary person. This ground can be easily disposed of as the judge, at the end of his summing-up, was asked to redirect upon this point and he then said to the jury:

"The second matter is in connection with the case of the second defendant. I told you the meaning of 'a reasonable man' and I told you that it should be a person of the same age and sex as the defendant. Counsel wants me to add in another criteria, that he should be of the same sex, age and characteristics of the defendant."

The jury were, therefore, in the outcome, told to approach the matter upon the basis they must take into account the characteristics, whatever they found them to be, of the applicant. There was, we are satisfied, a proper direction in this regard.

12. The second ground was stated as follows:

"At the close of the prosecution case and in the particular circumstances of this case, the evidence arising and the way the defence case was put or not put to the Crown witnesses, it was incumbent upon defence counsel to advise the Applicant to give or call evidence. The failure to do so constituted a material irregularity and denied and deprived the Applicant of a fair trial, and his defence was not properly laid before the jury.

Further and additionally and in any event the Applicant had wanted to give evidence but was wrongfully advised against doing so."

13. The applicant filed an affidavit in support of this ground in which, in paragraph 2, he stated that:

".... after the conclusion of the Crown case my Trial Counsel advised me that out of all the Prosecution witnesses only one was against me and he advised me there was no need to give evidence as he would make submissions to the judge and jury upon my lack of intention to kill and my surrender to the police." (Emphasis supplied.)

The applicant goes on to state in paragraph 4:

"My Defence Counsel at trial did explain that it was ultimately my decision whether or not I was to give evidence but as he had advised me not to do so I followed his advice in the same way that I had followed his advice during the Voir Dire hearing."

14. At trial the applicant was represented by Mr. Patrick Lim instructed by Susan Liang & Co. The allegations having been brought to Mr. Lim's attention he wrote on 22nd August 1996 to the applicant's then solicitors, Messrs. Chong, Leung & Co., making the following comments:

"(1) On the voir dire the Applicant was reluctant to give evidence but he accepted my advice and gave evidence.

(2) In relation to paragraph 2 of the Applicant's affirmation it was true that I advised him that out of all the prosecution witnesses one was against him, because out of the 4 witnesses who had identified the Applicant as one of the 3 assailants only one of them came up to proof in the witness box. However, it was not because of that fact that I advised him not to give evidence. It was not true that I advised him that I would submit on his lack of intention to kill.

(3) In fact it was by reason of the nature of his instructions that I advised him that in those circumstances he would be better off not giving evidence. Since his instructions to me is privileged I will not go into the nature of his instructions unless he wishes to waive the privilege. Having analysed and explained the nature of this defence to the Applicant, he decided after the exclusion of the cautioned statements that he did not wish to give evidence before the jury in any event. He had come to such a decision before the jury was empanelled.

(4) I advised him again at the close of the Crown's case and he maintained his wish not to give evidence. His rights were explained to him fully and I left the ultimate choice of whether to give evidence or not to him. It is completely untrue to say that I stopped the Applicant from giving evidence in front of the jury and that he had wanted to give evidence in front of the jury."

15. Prior to this on October 1995, Mr. Lim had written to the Director of Legal Aid with regard to the allegations saying:

"1. Failure to defend him according to his instructions in that I advised him against pleading to manslaughter when he was willing to do so. I relayed his offer to plead to manslaughter to Mr. Bernard Ryan, prosecution counsel, both before the trial and during the trial after the cautioned statement was ruled out. The Crown was not prepared to accept the plea to manslaughter.

2. Advising him not to give evidence when he was willing to. In fact after the cautioned statement had been ruled inadmissible the Defendant did not wish to give evidence in the trial proper. I had advised him of his rights but he wished to remain silent. He had signed a Chinese note prepared by instructing solicitors to the effect that he did not wish to give evidence, out of his own free will.

3. 2 jurors falling asleep during the Judge's summing up. I did not notice any jurors falling asleep. Otherwise, I would bring that to the Judge's attention."

16. The applicant referred to this letter in paragraph 5 of his affidavit saying:

"There is now produced and shown to me a copy of a letter dated 4th October 1995 and marked 'LSF-2' signed by my Defence Counsel and sent to the Director of Legal Aid. The contents of this document asserts that after the caution statements were ruled inadmissible I had expressed a wish not to give evidence in the trial proper. This is not correct as, firstly, I did not and would not have expressed such a wish before any prosecution witnesses were called in front of the jury. Secondly, I was not at that time asked to sign any confirmation that that was my wish; and thirdly, I had given evidence already which concluded with the exclusion of the cautioned statements."

The applicant seems to be suggesting here that Mr. Lim was saying in paragraph 2 above that he had only advised him as to his rights at the conclusion of the voir dire. Mr. Lim when he gave evidence before this court made it plain that this was not so and referred to a statement of the applicant signed on 20th February 1995, the date on which the prosecution case ended, in which he said:

"I, Lau Sui-fu decided not to give evidence in court after I have heard the explanations of my Legal Representative."

Indeed, paragraph 2 of Mr. Lim's letter if read together with that statement seems to us clearly to indicate that Mr. Lim was saying that he had advised the applicant at the conclusion of the Crown evidence.

17. The applicant goes on in his affidavit to say:

"I consider that I have not had a fair trial as I was not allowed to give evidence and to explain what happened in front of the jury."

18. He concludes his affidavit saying that he had been threatened and insulted by the deceased and that he

"had also said in my written instructions that as a result of this dispute with the deceased I feared he would beat me badly because he controlled the selling of heroin in the subway. Sometime previously a young man had bought some heroin from the deceased but had failed to pay for it and the deceased beat the young man with a wooden board until that man fell onto the ground and could not move any more."

19. It was the contention of the applicant, put for him by Mr. Buchanan, that he had been provoked by the deceased and that his counsel at trial had cajoled and misled him into saying that he did not wish to give evidence.

20. In consequence of the allegations, it was necessary to hear evidence in the appeal. Mr. Lim gave evidence and was cross-examined by Mr. Buchanan. In the course of his evidence the statement of the applicant which formed part of Mr. Lim's written instructions was produced. In this the applicant said, inter alia,

"8. TM squeezed the packet of biscuits into crumbs and threw them onto the ground and stepped on it forcibly many times. He said 'I would rather let the dog eat it but give it to the drug addict'. He kept on saying this for 2 to 3 times. Then he said 'I don't care, you better settle it.' Then TM went back to his bed.

9. I took a glance at other people there, they were all looking at me. No one said a word. I knew that if I did not settle this dispute today, i.e. gave some money to TM, I would be in serious trouble. I am sure that he would beat me badly because TM controlled the selling of heroin in the subway. Sometime ago, a young man brought (bought) some heroin from him and failed to pay for it, TM beat that young man with a wooden board until that man fell onto the ground and could not move any more.

10. So I went to the Fruits Wholesale Market to ring up my friend 'B Chai' ('BC'). I wanted to ask him to talk with TM not to beat me. I said over the phone 'Someone had threatened me, it was very troublesome'. BC asked me 'what is the matter?' I said 'Its very serious.' BC asked me where my location was, I said 'I am in the subway near the Fruits Wholesale Market'. BC said 'You stay there and wait for me, I will call a friend of mine to bring some weapons down there'. BC then hung up. Immediately, I tried to call BC to inform him that no weapons were needed but the line was engaged all the time.

11. About 3 to 4 minutes later, I met BC at the entrance to the subway. BC's friend ('A') arrived later, I don't know A. A carried three knives in a bag. BC asked me what was the matter, I told him the story. He said 'It is only a trivial matter, no knife is required'. I said 'I am not going to chop anyone, I just want to talk to TM.' A said 'No matter what, I have already brought the knives, bring them just in case we need it'. 'A' distributed a knife to me which was wrapped in newspaper. I looked at the knife and was very scare because I had never use a knife to chop anyone before.

12. When we went into the subway, we saw 10 odd people there, including TM and MC. When the gang saw us coming, they immediately picked up sticks and other weapons from a rubbish bin. I knew that normally they kept some knives and sticks there. A said 'They wanted to start the ball game'. I naturally took out the knife. Then the gang started to run away. I called 'Tai Mai' as I wanted to talk to him, TM ran a few pace and said 'I shall interfere your family member for sure'. I was very angry and chased after TM. When I almost reached him, I called his name again, but he still kept on running, then I chopped him once without knowing why. TM fell on the ground and said something like 'I shall interfere someone' but I could not hear exactly what he said. I knew that it was something not good to me, i.e. endanger my life or my family members' life. Then I chopped TM for 2 to 3 times without knowing why. I have no intention to kill TM at all."

When it was put to Mr. Lim that the applicant's case was that he had been provoked by the deceased he said:

"There was a question of provocation but on the instructions I formed the view that it would not legally amount to provocation. I explained to him that he would have difficulty running that defence."

When asked about the advice he had given the applicant at trial, Mr. Lim said:

"I told him he would be better off not giving evidence. I did not tell him not to. The choice was his. I told him that in the circumstances of the case he would have a better chance to be acquitted if he did not give evidence."

Mr. Lim went on to say that because of the time lapse between the "insult" and the attack was half an hour, the defence of provocation was not strong. He later said that he thought provocation "had very little chance in front of a jury". He said that the instructions of the applicant to him before and during the trial were that he did not wish to give evidence and that he had explained to him that it was his choice. He said that the document dated 20th February 1995 was signed by the applicant indicating that he did not wish to give evidence.

21. He stated that he, as counsel, was not simply a "mouth piece" and that he had to give the applicant proper advice based upon his instructions and that he did not consider that the applicant would inevitably be convicted if he did not give evidence. He said that he bore in mind that the onus was on the Crown to establish that the applicant was part of a joint enterprise and that the applicant would, had he given evidence, have proved that out of his own mouth. He reiterated that, in his view, because of the long cooling off period and because of the applicant's instructions in which he had said that he had struck the deceased with a knife "without knowing why" the applicant was not going to succeed on provocation. He said that he "was stuck with" his instructions from the applicant which were that he had chopped the deceased three times and he absolutely denied that he did not "allow" the applicant to give evidence.

22. The applicant gave evidence before us saying that at the end of the Crown case counsel told him that only one witness implicated him and that he "had better not to give evidence". He said that he was told that if he gave evidence "the result was inevitably murder". He said he was told "better not to give evidence because if I went into the box it's for sure murder". He said that he was told that it was his decision but "also I better not give evidence or the result would be murder". He denied counsel have ever told him that the evidence of provocation upon which he relied was weak. He said that he was told that the case against him was "at highest .... manslaughter because all witnesses said I returned in 5 minutes. The instructions I gave to my solicitors I also said I returned in 5 minutes." This, however, was not what he had said in his statement which is set out above. The only estimate of time he gave there was that 3 to 4 minutes elapsed between setting down the phone and meeting his friend at the entrance to the subway. PW1 had said 30 minutes elapsed between the time when the applicant left the subway and his return with two men. PW3 placed the time at 10 to 15 minutes but did, in an earlier statement, say that it was only 5 minutes.

23. It is, however, of more significance that nowhere in his statement did the applicant say that he had been provoked. What he said was that in consequence of the argument he felt that he had to "settle this dispute today" or he "would be in serious trouble". It is not in our view surprising that counsel took the view that this did not raise any sustainable issue of provocation.

24. Mr. Buchanan relied upon The Queen v. Ho Ling and Su Hui-fong Crim.App. No.327 of 1994 (unreported) in which, in a charge of obtaining property by deception, counsel had not told the applicants in the face of overwhelming evidence that if they failed to give evidence they would be convicted. The issue in that matter was "whether on counsel's own account he failed to give proper and adequate advice to the applicants as to whether they should give evidence in their own defence". Yang C.J., giving the judgment of the court, said:

"The evidence against them was overwhelming, and conviction would inevitably follow unless successfully challenged. Evidence given by the applicants might or might not have helped them, though it should be acknowledged that their chances of obtaining an acquittal were slim in any event. Be that as it may, the absence of evidence on their part was fatal. The consequence of counsel's failure to explain the situation to them in clear terms was that the convictions were unsafe and unsatisfactory. In this we respectfully adopt the approach of the Court of Appeal in R. v. Clinton [1993] 1 W.L.R. 1181 as applied in Sankar v. State of Trinidad and Tobago [1995] 1 W.L.R. 194. We think it important to stress that in reaching our decision we have relied upon the words of counsel in his affidavit as to the advice he gave. In the circumstances of this prosecution the way in which he qualified his advice might well have left the applicants in doubt, as they contend, as to the crucial importance of their evidence."

25. Relying upon this authority Mr. Buchanan argues that a conviction must be considered unsafe and unsatisfactory where:

(i) There was, at the end of the prosecution evidence, an overwhelming case against the defendant;

(ii) he was not advised that if he failed to give evidence a conviction would be likely to follow;

(iii) he did not give evidence and a conviction followed.

26. In Sankar v. State of Trinidad and Tobago (1995) 1 W.L.R. 194 Lord Woolf, giving the judgment of the court, said at p.200:

"In R. v. Clinton [1993] 1 W.L.R. 1181 the English authorities were reviewed in a judgment of the Court of Appeal given by Rougier J. Having done so the Court made it clear that it was only in wholly exceptional circumstances that the conduct of counsel could form the basis for an appeal, but in that case the appeal was allowed because of the failure of counsel, in a case where the defendant's evidence was essential, to advise the defendant in strong terms to give evidence."

This authority makes it clear that a Court of Appeal will only interfere in "wholly exceptional circumstances".

27. The earlier case of R. v. Clinton [1993] 1 W.L.R. 1181 also dealt with the failure of counsel properly to conduct a defence. Rougier J. in the judgment of the Court said at 1187:

"We think that the proper interpretation of the cases to which we have referred is that the court was doing no more than providing general guidelines as to the correct approach. The Court was rightly concerned to emphasise that where counsel had made decisions in good faith after proper consideration of the competing arguments, and, where appropriate, after due discussion with his client, such decisions could not possibly be said to render a subsequent verdict unsafe or unsatisfactory. Particularly does this apply to the decision as to whether or not to call the defendant. Conversely and, we stress, exceptionally, where it is shown that the decision was taken either in defiance of or without proper instructions, or when all the promptings of reason and good sense pointed the other way, it may well be open to an appellate court to set aside the verdict by reason of the terms of section 2(1)(a) of the Act."

28. The English s.2(1)(a) is our s.83K(1)(a) of the Criminal Procedure Ordinance which states that the Court of Appeal can set aside a verdict "on the ground that under all the circumstances of the case it is unsafe or unsatisfactory."

29. Both of the above cases were later in time than the decision in R. v. Wellings (unreported) 20 December 1991, in which Lord Lane C.J. said:

"The fact that counsel may appear to have made at trial a mistaken decision, or has indeed made a decision which in respect has shown to have been mistaken, is seldom a proper ground of appeal. Generally speaking, it is only when counsel's conduct of the case can be described as flagrantly incompetent advocacy that this court will be minded to intervene."

30. The later cases take the view that the strong statement of Lord Lane was not meant to derogate from s.83K(1)(a). While this may be so we are satisfied that the yardstick that must be borne in mind when considering an allegation of incompetence on the part of counsel is whether it can be said to amount to "flagrantly incompetent advocacy". The test propounded in Clinton, i.e. was the decision not to call the defendant "in defiance of or without proper instructions, or when all the prompting of reason and good sense pointed the other way", is, we are satisfied, no more than an approach which may be used when assessing whether there was "flagrantly incompetent advocacy". We have no hesitation in accepting the evidence of Mr. Lim and in holding that he conducted the defence of the applicant in a perfectly proper way. Mr. Lim's assessment that the applicant's only real defence on his instructions was to put the Crown to proof was in no way incompetent. Mr. Lim did no more than was proper for him to do which was to advise his client that in his view it would be better not to give evidence. The decision in that regard was, we are satisfied, taken by the applicant himself.

31. Mr. Lim has been subjected to an unwarranted attack on his professional competence which should never have been made. This ground has no merit whatsoever.

32. The application for leave to appeal against conviction is dismissed.