HKSAR v. CHOW KIT KWONG

CACC 370/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 370 OF 2007

(ON APPEAL FROM DCCC 145 OF 2007)

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R E A S O N S   F O R   J U D G M E N T

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Hon Hartmann J (giving the judgment of the Court) :

1. On 20 September 2007, following a trial in the District Court before Judge Whaley, the applicant was convicted of three offences.  The first two were substantive offences of aiding, abetting, counselling and procuring a person to commit perjury, contrary to s.89 of the Criminal Procedure Ordinance, Cap.221, and s.31 of the Crimes Ordinance, Cap.200.  The third was an offence of conspiracy to pervert the course of public justice, contrary to common law and s.159A and s.159C of the Crimes Ordinance, Cap.200.  The applicant was sentenced to a total of three years’ imprisonment.

2. The applicant had been represented at trial by Mr Gary Plowman SC leading Mr Giles Surman and Mr Simon Wong.

3. The applicant sought leave before us to appeal his conviction only.  His sole ground of appeal consisted of an allegation that, due to the negligence of his counsel, that negligence amounting to flagrant incompetence, he had been denied a fair trial.

4. Having heard submissions, we refused leave, stating that, in our opinion, the application was totally without merit.  We awarded costs to the respondent and, pursuant to the provisions of s.83W(1) of the Criminal Procedure Ordinance, Cap.221, we ordered that a period of six months of the time the applicant has spent in custody should not be reckoned as part of the sentence presently being served by him.  We said that we would give our reasons later and do so now.

5. The relevant background facts arise out of a consideration of the trial judge’s findings.

6. In March 1998, the applicant, a property developer, purchased a building in Kowloon, doing so in the name of a company, Charmfar Limited.  Completion was due in early September 1998.  In order to secure vacant possession of the building, the applicant employed the services of a man with whom he had worked in the past, Chan Man Kwong.

7. Chan began negotiations with various occupiers.  Among them was a man named Sin Yin Yat who occupied a shanty dwelling on the roof.  Sin agreed to give up all claim to his dwelling for a sum of $260,000 and in August 1998 a ‘removal agreement’ to this effect was signed by him and Charmfar Limited.

8. Shortly thereafter there was a sharp downturn in the property market.  The applicant’s obligation to complete on the purchase of the building was only a short time away.  Unless the applicant could avoid the commitment entirely or secure a reduction in the purchase price he stood to suffer a considerable financial loss.

9. The judge found that the applicant sought to avoid this jeopardy by embarking on a criminal scheme.  In essence, it was to the following effect.

10. First, acting through Chan, Sin was persuaded to enter into a new agreement, this time with Chan only, to sell his rooftop dwelling to Chan.  The agreement falsely recited that Sin had been living in the rooftop dwelling for at least 20 years and had secured title by way of adverse possession.

11. Second, Sin was then induced (with a mix of financial threats and financial promises) to pursue legal proceedings against the vendors of the building, the basis of the claim being the assertion – known to be false by Sin, Chan and the applicant – that he had acquired title to the rooftop dwelling by way of adverse possession.  This claim was filed a couple of days before the applicant, acting through Charmfar Limited, was due to complete on the building.

12. Third, with this threat to title, the applicant was able to instruct his solicitors not to complete and was then able to negotiate with the vendors to seek an outcome to his advantage.  In October 2004, those negotiations resulted in a new agreement being reached in terms of which the purchase price was reduced by about 40% from $14 million to $8.3 million.

13. The prosecution case was founded on the testimony of Chan and Sin, each of whom had been convicted in a separate trial for their part in the criminal enterprise and sentenced to terms of imprisonment.  Both gave evidence as accomplice witnesses, their evidence being supported by certain documentary material.

14. Expressed in the broadest of terms, it was the defence case that the applicant had never been part of the criminal enterprise, that it had been a scheme concocted by Chan and Sin alone and that, while the applicant had taken advantage of Sin’s claim against title, he had done so in good faith to legitimately exploit a commercial advantage.

15. In this regard, the defence was able, for example, to point to the fact that Chan had entered into an independent agreement with Sin to purchase the rooftop dwelling from him and that both, therefore, had stood to profit from the institution of an adverse possession claim.

16. The applicant, who had no previous criminal convictions, chose not to give evidence.  However, evidence was led as to his good character, two witnesses testifying that he was a man of integrity, upright in his business dealings.

17. The central thrust of the defence case was to undermine the credibility of both Chan and Sin, especially that of Chan, demonstrating not only that there were answers to the allegations made by them but that their credibility was so undermined that no court could rely on the truth of their evidence.

18. In his closing address, Mr Plowman emphasised – as prosecuting counsel had apparently conceded – that the case against the applicant turned essentially upon the credibility of Chan.  He said :

“It’s his evidence upon which this prosecution relies and it’s our submission to your Honour that he was not a credible witness, he’s not a reliable witness and that this court, properly directing itself, could not return guilty verdicts in relation to these charges, relying upon his evidence.”

19. Chan was a man with a long history of dishonesty, a man who, on his own admission, had been prepared to turn the truth, or convince others to do so, if it stood to his advantage.  In his Reasons for Verdict, the judge recognised that this history of dishonesty meant that Chan’s evidence had to be approached ‘with extreme caution’.

20. As it was, however, the judge concluded that, although the applicant had attempted to distance himself from the activities of Chan and Sin, the evidence proved that he had been ‘the mastermind’ behind the scheme.

21. The applicant was, therefore, convicted of the following two substantive charges; namely, that :

(i)    at an early stage of Sin’s bogus adverse possession action, the applicant, together with Chan, had aided, abetted, counselled and procured Sin to make a false affirmation to the effect that Sin had remained continuously in his rooftop dwelling and was still in occupation, and

(ii)  at a later stage of the same adverse possession action, the applicant, together with Chan, had aided, abetted, counselled and procured Sin to make a further false affirmation to the effect that Sin remained in occupation of his rooftop dwelling and had received no compensation from Charmfar or its agents for vacating the dwelling.

22. The applicant was further convicted of the single conspiracy charge; namely, that he had conspired with Chan and Sin to pervert the course of public justice by making false representations in the two affirmations (the subject of the first two charges) in order to obtain a declaration from the High Court that Sin did have good title in the rooftop dwelling by way of adverse possession.

23. As we have said, the applicant advanced only one ground of appeal before us; namely, that he had been denied a fair trial by reason of counsel’s incompetence.  There were, however, two limbs to that ground.  The two limbs alleged a failure :

(i)    to give advice to the applicant in the strongest terms that, as the prosecution case was overwhelming, a conviction was inevitable unless he gave evidence to undermine or raise a reasonable doubt in respect of that evidence, and

(ii)  to fully pursue an application to put the prosecution to its election, before the commencement of the prosecution case, either to proceed on the two substantive charges or the conspiracy charge.

24. The first (and principal) limb was advanced on the basis of a series of authorities to the effect that, when the prosecution evidence is so strong that, unless answered with positive evidence, a conviction is almost inevitable, the failure of counsel to advise an accused in the strongest terms to give evidence may, dependent on the circumstances, be an error of such gravity as to constitute a substantial miscarriage of justice. 

25. By way of illustration, in R v. Clinton [1993] 1 WLR 1181 the Court of Appeal concluded, on the facts, that the nature of the prosecution evidence had been such that ‘all the promptings of reason and good sense’ made it essential to advise the appellant in the strongest terms to give evidence, there being a strong and positive defence which had never been presented to the jury, the result being that – exceptionally – the conviction had been rendered unsafe and unsatisfactory.

26. It is important to note, however, that, in giving the judgment of the court, Rougier J, having looked at earlier authorities, made the observation 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.”

27. In the present case, we had the benefit of detailed affidavits from both Mr Plowman and Mr Surman.  Those affidavits, supported with documentary evidence, make it plain that at all times there had been in-depth discussions held with the applicant as to all material aspects of the trial.  Perhaps, the best evidence of that is to be found in a statement signed by the applicant himself – one of two such statements – in which he said that he had made the decision not to give evidence :

“I … have been listening closely to each and every witness who has given evidence in my trial including but not limited to PW2, Mr. Sin Yin Yat, and PW3, Mr. Chan Man Kwong.

Further, the importance of their evidence has been explained to me at numerous stages both before the trial (in numerous conferences – not least conferences lasting the entire day of Thursday 23^rd and Friday 24^th August) and during the course of my trial at various breaks and in post court day conferences with my three Counsel, Mr. G. Plowman SC, Mr. G Surman and Mr. Simon Wong.

I have discussed the issue of whether or not I should give evidence with my three Counsel and my solicitor Mr. Raymond Chung.  They have clearly told me it is my decision and that this will be the only opportunity I have to give evidence and explain events in my own words.

My Counsel and my solicitor have emphasised again that it is ultimately my decision and having considered every aspect I have decided that I will not give evidence.”

28. A further authority referred to us was that of Sankar v. State of Trinidad and Tobago [1999] 1 WLR 194, in which the Privy Council concluded that, on the facts, defence counsel had failed to explain to the appellant how important his evidence would be to the outcome of the trial, so much so that, without that evidence, ‘in practice, there was no defence’.

29. In respect of the present application, it is true that the prosecution case against the applicant was a strong one.  That would explain in part why, in discussions with the applicant, counsel raised the option of a plea of guilty.  But it would be entirely wrong to say that, unless the applicant gave evidence, in practice he had no defence.  There was always a coherent defence, one that, on the evidence before us, was prepared and executed with scrupulous professionalism.  More than that, it was an entirely legitimate defence, one raised successfully on countless occasions in our courts.

30. What must be underscored, in our opinion, is that Clinton and Sankar, and the other authorities to which we were referred by Mr Dykes SC, leading counsel for the applicant, were decided very much on their own facts and were based on findings that ‘all the promptings of reason and good sense’ made it essential to advise the defendant in the strongest terms to testify as the only bulwark against an otherwise almost inevitable conviction.  That failure, it was found, was of such consequence that in each case it amounted to a miscarriage of justice.

31. What must also be underscored is that the authorities referred to were no more than examples of the more fundamental principle that, if it can be demonstrated that incompetence on the part of counsel has resulted in a defendant being denied a fair trial then, and only then, will this court intervene.

32. There is ample authority recognising the onerous responsibilities that defence counsel must discharge in our system of criminal justice.  The conduct of a defence, certainly a defence of any complexity, invariably demands a range of tactical decisions and one of the most difficult is often whether or not to advise a defendant to testify.  Counterbalancing factors will have to be taken into account.  By way of illustration, these may include an assessment of the true strength of the prosecution case after it has been tested by way of cross-examination, an assessment of the degree to which the defendant will be able to give evidence of value and, in addition, the degree to which he will be able to withstand the rigours of cross-examination.  It is notorious that, in some cases, the best hope of an acquittal lies in advising a defendant in the strongest terms not to testify.  No defence can be professionally managed by rote. 

33. That being the case, it is a long-established principle that, almost inevitably, a tactical decision made by defence counsel which, with the benefit of hindsight, ought to have been made differently will not provide a ground for appeal.  Nor will other forms of mere error of judgment.  What must be demonstrated is that counsel’s error has been of sufficient proportion and consequence as to require the intervention of this court to avert a miscarriage of justice. 

34. As an indication of the need to demonstrate the gravity of the error, the term ‘flagrant incompetence’ has often been used, the word ‘flagrant’ meaning glaring or blatant.  As to the use of that term, while recognising that it was a form of ‘shorthand’, Sir Thomas Eichelbaum NPJ, in his judgment in Chong Ching Yuen v. HKSAR (2004) 7 HKCFAR 126, said that nevertheless it —

“… rightly underlines an appellant’s need to show much more than a mistake, an error of judgment, or a decision to follow one course when in hindsight another would have been preferable.”

35. Here, in light of the strength of the prosecution case, it is perhaps understandable that counsel tasked to advise the applicant as to his prospects of appeal may initially have been concerned as to the failure of Mr Plowman and his fellow counsel to urge the applicant to testify, failing which, on any objective assessment, a conviction was almost inevitable.  But we are perplexed how that view could still be held after the filing of Mr Plowman’s and Mr Surman’s exemplary affidavits.  What was revealed in those documents was that the assessment of how best to conduct the defence had always been a matter of complexity but that nevertheless, in light of the applicant’s instructions, a coherent and potentially successful defence had been constructed, the applicant at all times being fully advised as to the progress of that defence and the risks inherent in it.

36. More than that, as we have earlier indicated, the question of whether the applicant should or should not testify had been the subject of detailed discussion.  One of the reasons why such discussions had been necessary was due to the concern of the defence counsel that the applicant’s constant changing of instructions indicated that he may not fare well under cross-examination.

37. Indeed, the applicant’s constant shifting of position had caused Mr Plowman such concern that, during the course of the trial, he had requested the applicant’s solicitor to reconfirm the applicant’s instructions in writing in order to protect the defence team against possible later complaints made by the applicant to the Bar Association or the Law Society.  This had been done.

38. The first limb of this ground was, in our view, utterly misconceived.

39. We turn now briefly to the second limb of the single ground of appeal; namely, that Mr Plowman had been professionally negligent in not insisting at the outset of the trial that the prosecution must elect to proceed either on the two substantive charges or the single conspiracy charge. 

40. This ground we also found to have been bereft of merit.

41. First, it must be remembered that the prosecution is not always obliged to make an election when a substantive charge is joined with a conspiracy charge.  The judge may permit joinder if the justice of the matter so dictates.

42. Second, Mr Plowman did not ignore or overlook the issue.  It was raised by him at the beginning of the trial.  However, he made the decision that it would be best to reserve his position until the end of the trial when he could make submissions in light of the evidence that had emerged.

43. Third, Mr Plowman did not overlook the matter, as suggested, at the end of the trial.  The issue was raised, albeit on a collateral basis that the court should only consider the conspiracy charge, if it was necessary to do so at all, as an alternative charge.  But Mr Plowman emphasised in the strongest terms that it would be ‘quite wrong’, as he put it, to convict the applicant of both the substantive charges and the conspiracy.

44. At worst, therefore, the only criticism that could be levelled against Mr Plowman is that he chose to follow one course when others might have followed a different course.  There is no saying which would have been preferable.  But Mr Plowman, having conducted the defence, was, in our view, in the best position to judge.

45. As we have already made plain, even if that criticism had been substantiated, it would not have advanced the applicant’s case.  An applicant must show much more than a mere error of judgment or a decision to follow one course when, with the benefit of hindsight, another would have been preferable.

46. In our judgment, the applicant was at all times represented competently and professionally by his team of counsel.  He was in no way denied a fair trial.