HKSAR v. PENG JIXIANG

CACC 285/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 285 OF 2001

(ON APPEAL FROM DCCC 404 OF 2001)

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REASONS FOR JUDGMENT

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Hon Woo JA (giving the reasons for judgment of the Court):

At the conclusion of the hearing on 28 June 2002, this Court dismissed the defendant's application for leave to appeal against conviction and ordered that two months of the time that he had spent in custody pending the hearing be not counted towards his sentence. We announced that we should hand down our reasons later. They appear below.

2. The defendant faced two charges in the District Court. The first charge was attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200. The second charge was remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115. He pleaded guilty to the second charge but not guilty to the first charge. He was tried on the first charge before Judge Yung.

3. After hearing evidence from the prosecution, the judge found the defendant guilty of the first charge and convicted him accordingly. The defendant sought leave to appeal against that conviction. On 28 December 2001, Mayo VP refused leave. On 9 January 2002, the defendant renewed his application for leave to appeal against the conviction. That was the application that we had to deal with on 28 June 2002.

4. In support of his renewed application, the defendant sent three letters to the court altogether. The first letter, one dated 25 April 2002, did not set out any ground of appeal. It merely described what he termed the "sacred" duties of judges in passing judgment on the guilt or innocence of others and establishing what was right and what was wrong. It urged judges, "as saviour of the human society", not to let down those who put their faith in them. It asked judges "to restore his innocence", implying that he did not commit the offence.

5. The second letter, one dated 1 June 2002, complained that his trial counsel, appointed by the Legal Aid Department, did not explain to him the importance of his giving evidence before the judge. This letter states that he had told the lawyer that his memory was not good at the time. However, the lawyer did not seek an adjournment of the trial so as to enable him to recollect. It goes on stating that in fact he received head injury from being beaten by the police, in respect of which he had made a complaint.

6. A copy of this letter of 1 June 2002 was supplied to Mr David Man Kwok Leung, the solicitor assigned by the Legal Aid Department, who represented the defendant at the trial, with an invitation for a reply by affidavit. Mr Man filed an affirmation with the court on 20 June 2002. We will return to the contents of this affirmation after setting out the prosecution's evidence that had been accepted by the judge so as to put them in context.

7. The third letter, dated 23 June 2002, surprisingly stated that he was not complaining about his trial counsel, but merely wished the court to let him talk to the lawyer before we heard his application. When he addressed this Court on 28 June, he said that he was not complaining about his lawyer but was complaining about the police who, he alleged, had beaten him. He also said he did not wish to talk to the lawyer any more, but he would present his grounds to the Court.

8. In the transcript of the proceedings before the judge recording the reasons for the verdict, the judge mainly dealt with the arguments put forward by Mr Man on behalf of the defendant in relation to the evidence of PW1, a domestic helper employed by the household at Flat C, Ground Floor, No. 6 Shui Fai Terrace, Hong Kong. That was the address stated in the particulars of offence of the first charge which were that the defendant on 20 March 2001 attempted to enter the premises with intent to steal therein. The domestic helper's evidence was to the effect that in the night on 20 March 2001, she saw a man standing behind the orange tree in the garden of the premises. She informed a security guard who reported the matter to the police. When the police arrived, they saw the defendant in the course of climbing down the wall on the outside of the garden. The defendant then struggled with the police and was subdued. The defendant was wearing a pair of gloves and he was found in possession of a set of saw blades.

9. The judge dealt with Mr Man's argument that the domestic helper was mistaken, either deliberately or making a genuine mistake, as to her evidence of seeing a man standing behind the orange tree. Mr Man also argued that the defendant was merely lying on top of the wall and not, as described by the domestic helper, standing behind the tree. Having analysed the evidence, the judge concluded that the domestic helper was not mistaken as to her evidence. The judge found that the defendant was the man seen by the domestic helper standing behind the tree in the garden and that he was the same man seen only minutes later by the police climbing over the garden wall to get out. Based on this finding, there can be no doubt that the defendant was a trespasser of the premises.

10. The judge went on to consider whether the defendant had the intent to steal from the premises. He said:

"The defendant was found in possession of a set of saw blades which are instruments suitable for breaking in and he was wearing a pair of gloves and on his way out he was actually sneaking out - his movement was slow when climbing over the wall - and all this I have to take into account and also the fact that when the light was turned on in the garden, he disappeared and that would mean that he was hiding in some other places. From all this, the only irresistible inference I draw is that he was there waiting for his opportunity to break into the house to commit burglary. He had gone far enough. By climbing over the wall and hiding himself behind a tree, he had already targeted the place for his crime. What he was waiting for was the right moment to break into it and this went beyond a mere preparatory work for the crime and I have no doubt that the crime is proved, that is the offence of attempted burglary on the premises in question. I convict the defendant on Charge 1."

11. Although the defendant informed us that he was not complaining about his lawyer at the trial, we feel it would be fair to deal with the complaint (as raised in the letter of 1 June 2002), to ensure that no injustice has occurred. The letter alleged that Mr Man did not explain to him the importance of his giving evidence. He had also told Mr Man that his memory was not good at the time. He complained that Mr Man did not seek an adjournment for him to have a better recollection of the events of the night. It is to be noted that, in the whole of the letter of 1 June 2002, there was no mention that he had told Mr Man that his recollection of the event would get better after some time. Nor did it state that he had told Mr Man that he had received head injury by the police beating him. The injury to the head was merely mentioned in the letter as a reason for his loss of memory.

12. In his affirmation, Mr Man says that he had taken a statement from the defendant in the conduct of the defence:

"His instruction was that at the material time he was at the area of the vicinity and he wanted to find a place to hide in order to take a rest. He said he was on top of the garden wall and kept on watching the garden and inside the house. He saw the house maid coming out for a while and then walked back. He thought that the house maid did not notice him. While he was watching on top of the garden wall he was demanded by a Police Officer to come down. He was subsequently arrested after a struggle."

13. Mr Man also says that after taking instructions, he explained to the defendant that it was for the prosecution to prove the guilt of the defendant beyond all reasonable doubt. Thereupon the defendant instructed him that he would not give evidence at the trial. Mr Man put the defendant's case to the prosecution witnesses. After the close of the prosecution's case, he interviewed the defendant and explained to him the situation of the case, summarising the most important evidence to him, including the evidence of PW1 the domestic helper, that of PW3 PC5825 who had testified that he received the report and then travelled to the scene and subsequently arrested the defendant, and that of PW5 PC34750 who admitted under cross-examination that the best hiding place for illegal immigrants were back yards or gardens. After discussing the situation of the case with the defendant and explaining to him again the burden of proof on the prosecution and his right to elect whether or not to give evidence, the defendant gave instructions that he would not give evidence.

14. Before us, the defendant said that he had told his lawyer twice on two separate days during the trial that he was not giving evidence. He told us the reason was that he thought he did not have a good memory at the time. He said that his lawyer had advised him that if he gave evidence on matters that he could not recall clearly it would affect his credibility, and that would not be good for his case. The main point of his so-called grounds of appeal was that he wanted a re-trial so that he could give evidence.

15. The key dispute as to facts, as noted by the judge, was whether the defendant was or was not standing behind a tree. Apart from this aspect, there was hardly any difference between the facts that the defendant had instructed his counsel and the facts as testified by the prosecution witnesses. It appears to us that Mr Man was very clear with the instructions of the defendant about the facts, which are very simple. One wonders what kind of further instructions on the facts could the defendant have given had his alleged loss of memory not occurred. There is little doubt in our mind that this loss of memory and the allegation against Mr Man not to seek an adjournment for the memory to improve is but a lame excuse. If this loss of memory were true, the defendant would have told Mr Man that his head was injured by the police, resulting in his temporary loss of memory, but this was not what was stated in the letter of 1 June 2002.

16. It is extremely rare for a jury's verdict to be set aside when the grounds advanced consist wholly or substantially of criticisms of defence counsel's conduct of the trial: see R v Clinton [1993] 1 WLR 1181, at 1186F. In that case, the English Court of Appeal referred at 1187D to R v Swain (unreported), 12 March 1987, as saying,

"... if the court has any lurking doubt that the appellant might have suffered some injustice as the result of flagrantly incompetent advocacy by his counsel, then it would quash the convictions."

After referring to several more authorities, the court went on (at p 1187H-1188A):

"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 and 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 to the other way, it may be open to an appellate court to set aside the verdict ..."

17. Clinton was expressly approved by the Judicial Committee in Sankar v State of Trinidad and Tobago [1995] 1 WLR 194, at 200G. This Court, differently constituted, had also dealt with the issue in HKSAR v Liu Kwong-fai, CACC 672/1007 (5 Oct 1999, unreported), where Mayo JA (as he then was), giving the judgment of the Court, said (at p 6):

"... the Court of Appeal should be reluctant to interfere where:

(i) There are alternatives open to counsel when rendering his advice and one is chosen over another, even if counsel on appeal advocates, the other (with the benefit of hindsight);

(ii) The advice (not to give evidence) does not result in a specific defence being omitted.

It is important that these principles are adhered to so as to obviate a spate of unmeritorious appeals."

18. We now turn to examine the circumstances of this case. There was hardly any difference between the prosecution case and the defendant's case as he had instructed Mr Man. He was found climbing down from a wall outside of the garden. This he did not dispute. The only substantial dispute was whether he had been behind a tree as described by the domestic helper. Mr Man had obtained the admission of PW5 PC34750 under cross-examination that the best hiding place for illegal immigrants were back yards or gardens. According to Mr Man's affirmation, he had explained twice to the defendant that it was for the prosecution to prove its case against the defendant and that the defendant did not have to prove anything. The defendant told us that he instructed Mr Man twice that he did not wish to give evidence. He had two days in which to make up his own mind whether to give evidence or not and decided not to do so because, according to him, his memory was faulty. He has not demonstrated to us the advice that Mr Man had provided to him had in any way been faulty.

19. The evidence that the defendant could give if he went into the box was that he had never gone into the garden or stood behind a tree and that his intent was to take a rest on the top of the garden wall and not to steal from the premises. First, this allegation of only staying on the top of the garden wall must, in any view, be quite incredible. Second, owing to Mr Man's arguments raised before the judge, the judge considered very carefully the possibility of the domestic helper making a deliberate or genuine mistake as to whether the defendant was seen by her to be standing behind an orange tree. He came to the conclusion that she did not make any such mistake and she was a reliable and honest witness. Had the defendant chosen to give evidence, he would have certainly been subject to severe cross-examination as to his behaviour on that night wearing a pair of gloves and with a set of saw blades in his possession. The risk of the defendant being exposed by severe cross-examination was, to say the least, grave. The defendant's decision not to give evidence in the light of the evidence given by the prosecution witnesses was understandable. In all the circumstances of the case, we consider that whether the defendant had testified would have been quite immaterial to the outcome of the case. We could not see any possibility that the judge would have viewed the evidence, even if the defendant had given his version of the events, in any different way. Nothing in this case has caused us to feel that the conviction is either unsafe or unsatisfactory.

20. Before us, the defendant said he did not wish to complain about his lawyer. He would, however, wish to address us on his grounds of appeal. When we asked him why he did not provide his grounds to the Court earlier in writing, he said that his handwriting was bad. But he could not explain why he had written three letters to the Court and two of which were in his own legible handwriting. He altered his excuse by saying that he only thought out his grounds the night before. He then told us that he had written his grounds of appeal on pieces of paper and requested us to allow him to read them out. We had the assistance of the interpreter who had little difficulty in reading out his so-called grounds. That took about 45 minutes. He merely wished to have a re-trial in order to give evidence because he had decided not to give evidence at the trial. He also lectured us by giving three examples of what should not in his view be attempts. His so-called grounds were all devoid of merit.

21. The application was therefore dismissed.

22. We ordered loss of time because not only did the defendant's notice of application dated 10 August 2001 for leave to appeal against conviction and his notice of renewed application dated 28 December 2001 each contain a note that the Court has power under s 83W of the Criminal Procedure Ordinance, Cap 221 to order a loss of time, but Mayo VP when refusing his application on 28 December 2001 also warned him of the risk. He had not provided any ground of appeal in his letters save lodging a complaint against his trial lawyer, which complaint he withdrew when appearing before us. This had resulted in nothing save causing the Court to invite Mr Man to file an affidavit, and his prompt compliance must have been the result of his spending time and energy. All these turned out to be futile. The defendant then spent 45 minutes of the Court's time in airing his alleged grounds, which were all unmeritorious. Recently in HKSAR v Chow Ching-kay Nauthum, CACC505 of 2000 (24 Oct 2001, unreported, which is subject to appeal to the Court of Final Appeal) and HKSAR v Yu Tai Chi, CACC 476 of 2000 (24 Oct 2001, unreported) we have formally announced our policy of ordering loss of time without prior warning. We thought this was a proper case for the Court to use its powers under s 83W so as to deter unmeritorious appeals and a waste of the Court's resources.