HKSAR v. SO WUI CHUNG

HCMA660/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 660 OF 2009

(ON APPEAL FROM FLCC 1518 OF 2009)

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BETWEEN]

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JUDGMENT

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1.  The appellant appeals against his conviction on 20 July 2009 by Mr Symon Wong at Fanling Magistracy of the single charge of dealing with property knowing or having reasonable grounds to believe that it represented the proceeds of an indictable offence, contrary to section 25 of the Organized and Serious Crimes Ordinance, Cap. 455.  Also, the appellant appeals against the order imposed upon him by the magistrate that he be detained in a Rehabilitation Centre. 

THE CHARGE

2.  The charge alleged that, on or about 11 July 2008, the appellant dealt with $20,000 which monies were credited to his account with the Hang Seng Bank knowing or having reasonable grounds to believe that they represented the proceeds of an indictable offence. 

GROUNDS OF APPEAL AGAINST CONVICTION

3.  The single ground of appeal against conviction advanced by Mr James Sherry on behalf of the appellant was that the magistrate had erred in the exercise of his discretion in refusing an application made on his behalf by his solicitor, Mr Littlewood, on the day fixed for trial that the trial be adjourned so that the appellant could be represented legally at his trial.  In result, the appellant was unrepresented at his trial that ensued that day and thereafter. 

SUBMISSIONS IN SUPPORT

Background

4.  A background chronology of events is relevant to place the application for an adjournment in context.  I acknowledge that this chronology is taken, at least in part, from the skeleton argument of Mr Sherry. 

5.  On 11 July 2009, as a result of being informed that his son was being held for non-payment of a debt, a Mr Wong made two payments of repectively $10,000 and $20,000 into stipulated bank accounts.  The sum of $20,000 was paid by ATM transfer into an account held in the name of the appellant at the Hang Seng Bank.  On the same day, by six withdrawals made in the Mainland, the monies were dissipated.

6.  On 29 October 2008, the appellant was arrested and interviewed under caution.

7.  On 11 May 2009, the appellant was charged with the offence for which he stood trial, albeit particularizedin a slightly different way.

8.  On 18 May 2009, the appellant pleaded not guilty in Fanling Magistracy before Mr Symon Wong, who fixed the date for the trial as 13 July 2009.

9.  On 13 July 2009, the appellant’s trial commenced, following the magistrate’s refusal to adjourn the trial.

The basis of the application for an adjournment

10.  The nub of the basis of the application for an adjournment made on 13 July 2009 on behalf of the appellant was that of a late change in legal representation.  Mr Littlewood who appeared for the appellant on that day explained to the court that soon after the date of trial had been fixed, on 18 May 2009, the appellant and his father had instructed Messrs Tam, Pun & Yip to represent the appellant at his trial.  That firm was placed in funds for the purposes of so representing the appellant.  On Thursday 9 July 2009, the appellant had received advice from a solicitor of that firm Mr Fung that he should plead guilty at trial.  The appellant declined to accept that advice and the very next day, Friday 10 July 2010, instructed Messrs Littlewood to arrange his representation at his trial.  Mr Littlewood explained to the court that although counsel had been approached that same day, counsel had advised that he would not be in a position to conduct the trial on the date fixed for trial, namely Monday 13 July 2009.  Mr Littlewood explained frankly to the court that his firm was awaiting transfer of the balance of the monies placed with Messrs Tam, Pun & Yip by the appellant and his father.  Furthermore, he informed the court that the appellant had no previous criminal convictions and lived with his family.  The court papers described the appellant as being 18 years of age.

11.  It is apparent from a reading of the transcript of the interchange between Mr Littlewood and the court, that the magistrate was much concerned from the outset of a consequence he perceived of the application, namely that rather than the proceedings being conducted in Punti now they would be conducted in English.  The magistrate made repeated references to his concern that preparations had not been made by the defence to conduct the trial in Punti.  Notwithstanding Mr Littlewood’s repeated assurances to the court that it was accepted by the defence that the trial would take place in Punti, the magistrate adjourned the proceedings in order to have the audio tape of the proceedings of 18 May 2009 played to the appellant and his solicitors to confirm that the appellant had been told that the proceedings would be in Punti.  The magistrate said :

“If I had failed to give warning to the defendant that the trial will be conducted in Punti, then I will allow the adjournment. Otherwise, …”

This sentence was left unfinished.

12.  When the court resumed, Mr Littlewood made yet another attempt to articulate the basis of his application for an adjournment :

“ I don’t think the point is whether the trial proceeds in Punti or not. The point is, simply, that he hasn’t had a proper opportunity, he says, to instruct lawyers for trial. He went to see lawyers last week and they told him to plead guilty, and that’s not advice that he wants to follow. So he wants the trial, in Punti or otherwise.

          We haven’t had a chance, or time, to prepare his defence.  So instructions were limited to informing the court of the position and asking for an adjournment.  That has been explained to the defendant, that (if) the court’s view is that the matter should proceed at once, and that being so, the defendant would act in person for the trial.”

13.  In the result, the magistrate dealt with the application by stating simply :

“All right, so, we will proceed.”

14.  At no stage, did the magistrate indicate to Mr Littlewood or the appellant that the matters advanced on his behalf in support of the application for an adjournment were not accepted.  Furthermore, the magistrate did not state that if they were to be accepted by the court evidence in support would be required.  At no stage did he even condescend to inquire of the prosecution what their attitude was to the application for the adjournment.

STATEMENT OF FINDINGS

15.  In his Statement of Findings, the magistrate addressed the issue of the application made on behalf of the appellant that the trial be adjourned on 13 July 2009.  He acknowledged the information that he had received from Mr Littlewood, namely that the appellant had instructed other solicitors to represent him, that he received advice that he did not accept and as a result he had instructed Mr Littlewood’s firm.  Of his refusal to grant the application for an adjournment, the magistrate said this :

“ Two months preceding the date of formal trial, i.e. the return day on 18 May of the same year, the court specifically told the accused to arrange counsel for his defence as early as possible in order to ensure that the trial could proceed as scheduled. Furthermore, the facts of this case were not complicated. I, without violating the principle of fairness, rejected his application for adjournment.”

16.  The magistrate went on to describe the conduct of the trial, conducted as it was by the unrepresented appellant who had given evidence.  At the conclusion of his evidence, the magistrate acceded to an application by the appellant that the proceedings be adjourned for a week so that he could try to locate a witness relevant to the circumstances in which his bank account had come to be used.  At the resumed hearing, the proceedings were concluded and the appellant convicted.  Sentence was adjourned for reports.  Mr Thomas Law for the respondent had struggle valiantly in difficult circumstances to defend the magistrate’s conduct of these proceedings. 

A CONSIDERATION OF THE SUBMISSIONS

17.  However, I am satisfied that the magistrate erred in the exercise of his discretion in declining to grant an adjournment of the appellant’s trial on 13 July 2009.  There is no dispute that the right of an accused to be represented in a criminal trial is of fundamental importance in Hong Kong.  At the time of the application, the appellant was 19 years of age and of good character, at least in that he had no criminal record.  The charge the appellant faced was a serious charge.  Clearly, the appellant had taken steps to be represented at his trial.  He had instructed solicitors to represent him at trial and had done so shortly after the return date of 18 May 2009.  He was represented at the application before the magistrate.  The application for an adjournment was the first such application made on behalf of the appellant.  In the context of the delay in the trial that would necessarily ensue if the application was granted, it is to be noted that there had already been considerable delay.  None of that delay was attributable to the appellant.  Although, the monies had been deposited in the appellant’s bank account on or about 11 July 2008 and the appellant had been interviewed under caution in October 2008 he had not been charged until May 2009.  That delay was and remains unexplained.

CONCLUSION

18.  For the reasons I have given, I am satisfied that the magistrate ought to have granted the application for an adjournment.  Certainly, in the circumstances made known to the court, the appellant ought not to have been required to conduct his trial unrepresented.  For these reasons, I allow the appeal, quash the conviction and quash the order that he be detained in a Rehabilitation Centre.

COSTS

19.  There being no objection by the respondent to the application, I order that the appellant is to have his costs, to be taxed if not agreed, of the proceedings in the Magistracy of 13 July 2009 and of the appeal, including bail proceedings on 18 August 2009.

RETRIAL

20.  I am satisfied that it is not appropriate to order a retrial.  I have had regard in particular to the delay in these proceedings, the events the subject matter of the charge being 21 months or more old, the fact that the appellant had already undergone the ordeal of facing those charges over that period of time and, as Mr Sherry has just informed me, the fact that he was detained in custody for the best part of a month prior to being granted bail.  For those reasons, and in all circumstances it is not appropriate to order a retrial.