THE QUEEN v. ZEE TAN

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JUDGMENT

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Power, J. A. :

1. This is the Judgement of the Court.

2. The facts in this matter are set out in the Ruling of this court delivered on 29th January 1991.

3. In the original Grounds of Appeal which were filed on 2nd February 1990, the applicant raised three matters -

"(1)	That the trial judge was misled as no one was called to prove the occurrence of the robbery."

The fact of the robbery was established by facts admitted pursuant to s.65C of the Criminal Procedure Ordinance. There is, subject to the allegation now being made by the applicant that he was at no time asked whether he agreed to these facts, no substance in this ground. We shall turn later to consider that allegation.

"(2)	That the trial judge was not given the statements of the witnesses upon whom the Crown relied but only a summary of facts."

It is correct that the trial judge was not given statements but was given only the admitted facts. These facts established that a robbery had occurred and the trial judge was entitled to rely thereon. Again, subject to the allegation that the applicant was never asked whether he agreed thereto, no complaint can properly be made of the use of this procedure.

"(3)    That there was no identification parade conducted."

It seems to be the suggestion of the applicant that had an identification parade been conducted, he would have been exonerated as the complainant would have indicated that he was not the person involved in the robbery. The failure to conduct an identification parade is not a matter which in the normal course can be canvassed on appeal. It may well have been a matter relevant for consideration at the trial but it avails an appellant nothing to suggest before an appeal court that, had such a parade been conducted, he might in some way have benefited therefrom.

"(4)    That the police officers were not called to give evidence."

The admitted facts, the propriety of which we shall consider later, obviated the need for such evidence.

"(5)	That the Statement of Findings was invalid as the applicant did not commit the offence."

This is not a proper ground for appeal.

4. On 10th July 1990, the applicant raised three further matters when appearing before this court. These matters contained allegations against counsel and solicitors of failure properly to conduct his defence. The matter was then adjourned by the Chief Justice to allow the applicant to file an affidavit giving details of these allegations and to allow the legal advisers to comment thereon.

5. When the matter resumed on 29th November 1990, an affidavit dated 12th July 1990 from the applicant was before the court in which he alleged that his lawyer did not consult him before agreeing to the facts, that he had instructed his lawyer to call his friend "Four Eyed Keung" and that he had informed his lawyer that there had been no identification parade.

6. Miss Selina Lau, who had been the counsel at trial, in a letter dated 3rd August stated that she was unable because of the long lapse of time to recall the exact facts of the matter but that she was, as to the first complaint as to failure to consult before agreeing facts, able to say

" ... affirmatively ... that at all criminal cases in which I have acted as counsel for the Defence, and where I had proposed to agree facts with prosecution and have the same admitted into evidence ....... it has been my invariable practice to either personally or through my instructing solicitors explain the facts proposed to be agreed to my client and seek my client's instructions as to whether he would consent to the same being admitted into evidence by agreement, and then it is only with the consent of my client that I would proceed to finalize my agreement with prosecution ... I have no reason to believe that I had in any way departed from my aforesaid practice in this particular case."

7. In this regard, Senior Legal Aid counsel Mrs. N. Tam commented that Mr. Joseph Lo, the clerk assigned to assist Miss Lau

"...could not recall if the agreed facts was explained to client due to lapse of time. However, he was of the view that it was the Counsel's practice to explain the agreed facts to client before the same was to be put as evidence."

As to the second complaint that the applicant had given instructions to call "Four-eyed Keung", Miss Lau again said that due to the lapse of time she could not recall whether any such instructions had peen given. She said that she believed:

".... that despite the fact that it was stated in the written instructions taken from the Applicant by the Legal Aid Clerk, Mr. K. T. Chau dated 17th November 1989 that the Applicant had no knowledge of the whereabouts of his aforesaid friend, as a measure of caution I must have double-checked with the applicant again before or during the trial concerning the possibility of locating "Four Eyed Keung" so that he may be called as a witness for the Defence. Had I been instructed that 'Four-eyed Keung' could be located, I certainly would, in view of the nature of the Defence case, have called him to give evidence. In the premises, the only conclusion I could draw is that the Applicant must have confirmed to me at or during the trial that he had no means of locating 'Four-eyed Keung."

8. In this regard, Mrs. Tam said that the instructions of the client given on the 17th of November 1989 to Mr. Joseph Lo were that no witness was to be called and that the applicant had no idea regarding the whereabouts of "Four-eyed Keung".

9. As to the third complaint that there had been no identification parade, Miss Lau said that she had no recollection as to whether any such complaint had been made to her, but that had one been made:

"I must have taken the view that in the circumstances of the case, the risk of a positive identification by the victim of the robbery far outweighed any value to the Defence that could be gained from a negative or wrong identification, and must have advised the Applicant accordingly."

In this regard, Mrs. Tam said that Mr. Lo could not recall the client having raised any issue as to the identification parade but that, when giving instructions to Mr. Lo he "merely confirmed" that no identification parade was held.

10. On 29th November 1990, the matter was adjourned to allow the applicant to file a further affidavit. In this affidavit, the applicant questioned the correctness of Miss Lau's statement that she would, as a matter of "invariable practice", obtain the consent of the client before agreeing any facts. He stated that it was true that he had told Miss Lau that he did not have Ah keung's address, but that he did tell her that he had his telephone number. He suggested that Miss Lau was "shirking responsibility" when she stated that she must have taken the view that an identification parade might do more harm than good. He also in this affidavit questioned the accuracy of the recollections of Mr. Joseph Lo.

11. This court was satisfied that unresolved issues arose out of the allegations of the applicant that he was not asked whether he consented to the agreed facts and that he had told counsel that he had the telephone number of "Four-eyed Keung". We did not consider that there was any real issue arising out of the applicant's allegation that his advisers did not pursue the failure to hold an identification parade. His own statement makes it clear that he did no more than draw this matter to the attention of his legal advisers. We accept Miss Lau's statement that, even if this matter had been drawn to her attention, it would not have affected her conduct of the case.

12. On 29th January 1991, the matter standing as it did, it was considered appropriate to adjourn it and order that an amicus curiae be appointed.

13. Mr. Stirling now appears in that capacity. He addressed himself first to the alleged failure to take instructions as to the agreed facts. His initial submission seemed to be that it would have been proper for counsel to make the admissions without instructions given that there was a denial by the applicant of any involvement in the robbery. It appeared to be Mr. Stirling's further submission that, if there was a duty on counsel to obtain express instructions before admitting the agreed facts, the court must consider whether a failure so to do could be described as "a dereliction of duty on the part of" his legal advisers out of which arose "a genuine sense of grievance engendered by a clearly shown and very high degree of negligence so radical as to give rise to a miscarriage of justice or, at the very least, to arouse in the mind of an appellate court a well-founded feeling that the convictions should be quashed." (The Queen v. SIU Hon-sum [1989] 1 HKLR 327). He reminded us of The Queen v. HO Shu-chung [1990] HKLR 180 at 188 where this court stated:

"We are respectfully satisfied that the law is correctly stated in R. v. Ensor [1989] 2 All E. R. 386 and that except in the case of flagrantly incompetent advocacy the court will not set aside a conviction on the ground that counsel has made a decision or pursued a course in the conduct of the trial which later appears to have been mistaken or unwise, even if the decision or course of conduct was contrary to the accused's wishes."

He submitted that we must determine whether there is a genuine sense of grievance on the part of the applicant or whether the complaint is no more than a ground of last resort being raised by a properly convicted man who has no recourse other than to make unfounded complaints against the conduct of his counsel.

14. The applicant, when he came to address the court, said that his counsel had tried to conduct the defence in her own way and suggested that she should at least have informed him or discussed the matter with him.

15. The applicant reiterated that he had not been asked to agree to any facts and submitted that he should not have been convicted unless at least one person had come forward to say that he was the robber. The thrust of this complaint was that he was convicted of robbery without having been identified by anyone as the robber.

16. In our view the extreme likelihood is that the applicant was consulted by counsel before any facts were agreed. However, putting the matter at its highest for the applicant we proceed upon the basis that, given that the applicant was not denying that a robbery had taken place, counsel, without consultation, agreed the facts. Was this a serious dereliction of duty? Counsel's instructions clearly were to run the matter upon the basis that, however the watch had been obtained, the applicant had only been involved in the matter when he had been handed it by his friend "Four-eyed Keung". His defence was not that no robbery had taken place but that he had been innocently involved in the handling of the watch. Indeed, in the affirmation made on 27th December 1990, the applicant does not appear to contest that a robbery had taken place. He says:

"Actually I did not know what had happened. It was 'Spectacled Keung' committed the robbery and asked me to help him to pawn it. My suggestion of what was really happening then is in harmony with the timing."

17. Even if counsel did not seek express instructions as to the agreed facts, she was, in our view, clearly conducting her case in accordance with the defence which the applicant had indicated he wished to raise. We are satisfied that there can be no question of either a dereliction of duty or a genuine sense of grievance.

18. As to the suggestion that counsel failed to call "Four-eyed Keung", we find it inconceivable that, had the applicant provided the telephone number or given any other specific instructions in this regard, they would have been ignored. We accept counsel's statement that she would have acted upon any instructions as to the whereabouts of "Four-eyed Keung".

19. We deal finally with the suggestion in the applicant's last affidavit that the failure to call the complainant prevented her cross-examination as to consistencies in her two statements. In the first statement, made on 17th April 1989, she said that her watch was of "unknown serial number" and, in the second statement, made on 7th June 1989, she said, "I can identify that this was my robbed Rolex and the serial number 9248403 marked on the watch is exactly the same as that I had told to the police. Its shape is similar to that of mine and so I am sure that it is my watch." The witness might, it is true, have been cross-examined as to this apparent contradiction but we accept counsel's statement that she must have taken the view that it was in the applicant's interest that the victim not be called. This was, in the circumstances, a sound tactical decision for which counsel can in no way be criticized.

20. We are satisfied that the application must be dismissed.