HKSAR v. PANG WAI KIN AND ANOTHER

HCMA294/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 294 OF 2002

(On appeal from KTCC 7892 of 2001)

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J U D G M E N T

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1) These are appeals against conviction only. The appellants did not proceed with their appeals against sentence which are accordingly dismissed.

2) Both appellants were convicted after trial of an offence of wounding, contrary to section 19 of the Offences Against The Person Ordinance, Cap. 212, Laws of Hong Kong, being the 1st charged offence. The 2nd appellant was convicted of two further offences of common assault, contrary to common law and section 40 of the Offences against the Person Ordinance, Cap. 212, being the 2nd charged offence, and claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151, being the 3rd charged offence.

3) The offences arose out of a dispute between the prosecution witness, PW2 and the 1st appellant concerning the payment by the 1st appellant to PW2 of a commission as the result of PW2 having assisted the 1st appellant to obtain for his family business a $50 million letter of credit facility from a bank. That dispute reached a head on the charged date when the 1st appellant and his associate, the 2nd appellant, met with PW2 and his associate, PW1, at the 1st appellant's business or factory premises.

4) The facts found by the magistrate were to the effect that the 2nd appellant, during the course of that dispute, arranged for the arrival of some dozen or so thugs at the 1st appellant's premises and that PW1 and PW2 were assaulted and driven from the premises.

5) PW1's assault and injuries were the basis for the 1st charged offence and a further separate assault upon PW2 by the 2nd appellant was the basis of the 2nd charged offence. The 2nd appellant's claim to be a member of the "14K" during the time of the assaults on PW1 was the basis of the 3rd charged offence.

6) Before proceeding to deal with the grounds of appeal against conviction, the history of the trial before the magistrate should be summarized. The trial was listed to commence before the magistrate on 23 January 2002. On that day, counsel then representing the appellants, Miss Moosdeen, sought an adjournment of their trial. That application was made on the following basis.

7) Some days earlier, on 15 January 2002, the appellants claimed to have received a phone call from an "Ah Kwong" who claimed to represent PW1 and PW2 and who, they said, suggested that for the payment of a sum of money PW1 and PW2 may well change their evidence so as to favour the appellants.

8) The appellants reported this to the police. A recorded phone conversation was then arranged by the police between the 2nd appellant and the person "Ah Kwong". A meeting was arranged at a hotel between "Ah Kwong" and the appellants. That meeting took place in the sense that two persons arrived at the hotel and met the appellants. A discussion took place. It also was monitored by the police. Both the other two persons present were eventually arrested.

9) This meeting had occurred on 19 January 2002, some four days before the commencement of the trial. At the date of the trial, the police's investigation into the matter was obviously continuing. On this basis, an initial application by Miss Moosdeen was made to the effect that the proceedings should be permanently stayed. That application was properly rejected by the trial magistrate and no complaint is made before me as to that.

10) Miss Moosdeen then made her application for an adjournment. In arguing for that adjournment, she relied upon the potentially important effect upon the credibility of PW1 and PW2 of any evidence uncovered by the police investigation linking them to any attempt to pervert the course of justice so far as the appellants' trial before the magistrate was concerned. Her application was to the effect that the trial should be adjourned so as to allow the police investigations into that matter, which has been referred to as the "blackmail" matter before me, to proceed to some conclusion and for her, or counsel representing the appellants, to have access to the materials generated by the police investigation and to know the outcome of it.

11) One would have thought on the face of it that that was a very compelling basis for an application for an adjournment of the trial. The application was refused by the magistrate. Rather than adjourning the trial to a time after the conclusion of the police investigation he directed finally that the trial would proceed the next day, the application for an adjournment having lasted the whole of the first day of the trial, though time would be allowed for counsel to listen to the contents of the hour or so long tape recordings of the telephone and hotel conversations between the appellants and the person they claimed to be "Ah Kwong" and his supposed associate or associates.

12) Miss Moosdeen and her instructing solicitors, for reasons which did not become relevant to this appeal, then withdrew from the case. That meant that the appellants were left with the task of retaining new solicitors and counsel. On the evening of the same day they went to the office of Messrs Karbhari & Co. and spoke to Mr Danny Lau, a clerk with that firm. Mr Lau then spent some time looking for an available barrister. He eventually retained Mr Ernest Lim, a very experienced counsel, and was able to send him some of the papers on the case that same evening. Those papers were only of partial use to Mr Lim so far as many of them were written in Chinese because he did not read Chinese. Mr Lau spent a considerable time that night translating those and other case materials into English and those were available the next morning for Mr Lim. On that morning Mr Lim met his clients the 1st and 2nd appellants and Mr Lau at the court. At 9:30 a.m. he was allowed an adjournment until 12 noon. At that time the trial then proceeded. That is the brief factual background of the grounds of appeal against conviction. Those grounds can be summarized as follows. It is convenient to deal with them somewhat out of order.

13) The initial substantial complaint by both appellants is that the magistrate was wrong to refuse to allow the trial to be adjourned and that as a result the appellant's trial was prejudiced. The subsequent substantial complaint of both appellants is that counsel who eventually represented them at trial was either incompetent or unprepared. The 2nd appellant also complains that the learned magistrate was biased towards him and, separately, prevented his solicitors clerk from conveying instructions during the trial to the trial counsel. I will now deal with the grounds of appeal in the order in which I have summarized them.

The refusal of the magistrate to grant an adjournment

14) On the face of it, and in the normal course, it seems to me a court would be most reluctant to proceed with a trial while there was a parallel police investigation underway into the possibility of the primary prosecution witnesses, whose credibility was relied upon by the prosecution, having attempted to pervert the course of justice so far as that same trial was concerned. That is because at a very basic level the findings of any such police investigation may have a very great bearing on the credibility of those witnesses. Further any such investigation may reveal matters relating to specific aspects of those witnesses evidence or matters relating to their motives for giving evidence in the first place. In other words where any such police investigation may well produce evidence germane to the important issues likely to arise at trial, it seems undesirable as a general principle for the trial to continue before that investigation has arrived at some sort of practical finality.

15) In saying this I appreciate that a court in circumstances such as the present would be alert to the possibility of a complaint being made by a defendant to an institution such as the Independent Commission Against Corruption or the police concerning a primary prosecution witness against him, so as to obtain an acquittal or even the improper adjournment of the trial. But there was not, at the time of the application for an adjournment being made before the magistrate, any suggestion made to him by the prosecution that the appellants had fabricated or "staged" the alleged "blackmail" incident for their own purpose. Nor did this possibility form any part of the magistrate's stated reasons for refusing the application for the adjournment. Indeed it was plainly the case that the investigation was proceeding at that time on the basis that the police had not yet arrived at any conclusion.

16) In some cases in circumstances where defendants make counter allegations to the police, or some such authority, against important prosecution witnesses, it may be perfectly proper for a trial to proceed in any event either because the subject matter of the complaint was wholly unrelated to any issue which could conceivably arise at the trial and was a purely collateral issue, or because the subject matter of the trial fully encompassed as a substantive issue the subject matter of the complaint and would necessarily deal with that matter in the course of the trial without further need for any investigation. But in most cases where a complaint of the present nature had not only been made, but where arrests had been made as a result and where the matter was under continuing investigation by the police at the time of an application for adjournment, it seems right that an adjournment be allowed. For one thing an adjournment would enable the documentation such as witness statements, records of interview and any other exhibits and materials generated by the investigation to be disclosed to the defence. The defence would in such circumstances have a right to the disclosure of such materials. To force the defence on in the absence of the disclosure, or with only the partial disclosure, of that material would be, in effect, an abrogation of the defendants right to such disclosure. In the present case that is effectively what happened.

17) The adjournment should have been allowed at the time it was sought for such reasonable period of time so as to allow the trial to proceed in due course with the defence in possession of whatever information was available at the practical conclusion of the police investigation. The magistrate was wrong, on the material before him at the time, to have effectively forced the defence to proceed to trial before the police investigation had been completed to some sort of practical finality.

18) But in my view the matter does not stop there. It may well be that as a matter of procedure the magistrate was wrong to disallow the appellants request for an adjournment until the completion of the police investigation. But before that renders their trial unfair, the appellants must show they suffered some disability or prejudice in the conduct of their defence. That is because in my view the wrongful refusal of an adjournment is not, without more, a material irregularity in the conduct of a trial which of itself would require the verdict to be overturned. It is simply the wrongful exercise of a discretion.

19) AG v. Ip Chong Kwan [1979] HKLR 141 was a case where the court refused to adjourn the trial before it ten minutes earlier than the usual finishing time of 4:30 p.m., in circumstances where the prosecution had exhausted all its witnesses present at the court, so as to allow the calling of two final prosecution witnesses on the next morning. The Court of Appeal said that the trial judge had exercised his discretion unreasonably in the circumstances and that the refusal of the adjournment had caused injustice to the prosecution.

20) In Maxwell v. Keun & Ors [1927] 1 KB 645, the Court of Appeal suggested that a proper test to be satisfied, before the exercise of a discretion vested in a trial judge to adjourn or proceed with a trial would be interfered with, was whether the refusal of the adjournment meant the rights of the appellant were so interfered with as to cause injustice to him (per Atkin LJ at 653).

21) In my judgment the appellants in this case in order to establish their appeal against the magistrate's refusal of the grant of an adjournment on this ground must show not only that he acted unreasonably in doing so but that the appellants suffered unfairness or prejudice in the conduct of their defence as a result. So far as that is concerned, counsel for the appellants before me have been able to advance little in terms of actual prejudice to their clients. That is because it was common ground before me that the police investigation into the "blackmail" attempt did not succeed in obtaining any new information of any significance. In other words, the investigation did not advance beyond the arrests of the two persons at the hotel at the conclusion of the meeting in which the appellants had participated. That meant that when the appellants' trial commenced on 24 January, they already had all of the information which was to be generated by the forthcoming investigation. That is because the only real information concerning the "blackmail" events was contained in the conversation between the appellants and the person "Ah Kwong" and his associate or associates. In other words, any adjournment granted until the completion of the police investigation would not have succeeded in any way in advancing the defence case, as known to the appellants, as at 24 January.

22) Both Mr Bruce and Mr Collins for the appellants suggested that if there had been an adjournment the appellants could have conducted their own investigation of the "blackmail" incident either in parallel with or following on from the police investigation. With respect, that is highly fanciful. It is difficult to envisage two potential witnesses in the real world running a parallel and more successful investigation in conjunction with a police investigation into the same events. In any event it is entirely speculative as to what any such attempted private investigation would uncover beneficial to the appellants' cases. I do not think that the appellants being prevented from embarking upon such an undertaking can be the basis for establishing any unfairness or prejudice in the conduct of their defence. Nothing else of any substance could be suggested to me by Mr Bruce or Mr Collins as to how the failure of the grant of an adjournment had prejudiced the appellants' cases at trial. The only other aspect of prejudice that could flow from the refusal to grant an adjournment is that it indirectly brought about the involvement of counsel acting on behalf of the appellants at trial who was by the second substantive ground of appeal complained of as being unprepared and incompetent. I will now proceed to deal with that.

The failures of trial counsel

23) As a preliminary matter, in large part, allegations as to the trial counsel's unpreparedness rely upon the same circumstances of his conduct of the trial as do the appellants' allegations as to his incompetence and both can be conveniently dealt with together, with this addition.

24) So far as counsel being unprepared is concerned in my view there was, once the trial was ordered to proceed, adequate time allowed him in the taking of instructions and advising his clients. That is because broadly speaking the prosecution case was relatively straightforward as was the case of the 1st and 2nd appellants. The prosecution case consisted of the evidence of PW1 and PW2 and agreed medical evidence and other brief agreed facts. The defence case consisted of a brief and perhaps unnecessary bank witness who gave evidence that his bank in granting the letters of credit did not envisage the payment of any commission, and further of the evidence of the 1st and 2nd appellants. The factual issues were clearly delineated. Trial counsel had the better part of the morning of 24 January to receive instructions. He had the assistance of a solicitor's clerk Mr Danny Lau. He had both prosecution witness's statements available to him. They were either in translated form or were translated to him by Mr Lau as was the cautioned statement of the 2nd appellant. There was no reason for Mr Lim to be unprepared. He had been allowed adequate time in this regard. He had further time available to him during the evidence of PW1 at lunchtime and at the end of the first day's evidence. He had a further conference with the appellants on the morning of 25 January. Obviously Mr Lim was under pressure in terms of time as often happens in magistracy cases. But objectively there was sufficient time for him to properly understand the prosecution case and the issues arising from that case.

25) So far as this second substantial ground is concerned relating to the unpreparedness or incompetence of counsel, I allowed oral evidence to be called, following the appellants' waivers of privilege, from the appellants, Mr Lim and Mr Danny Lau. Their evidence on affirmation was also placed before me as was affirmation evidence of a formal nature from a solicitor Mr Chin Pak King producing various witness statements and documents. Now I deal with the evidence.

The evidence

26) As a starting point it was unfortunate that the trial counsel Mr Lim was unable to remember or misremembered in his evidence significant areas of his conduct of the trial. His evidence was, on occasion, vague and confused. Having said that I have no doubt that in his evidence before me he told the truth as completely as he could. But Mr Lim's difficulties in recalling the sequence of instructions obtained by him and advice given by him and the contents of those instructions and that advice underscores the necessity of counsel, so far as possible either obtaining instructions in writing or having a clerk present to make a brief note of such instructions and advice. In the end result, fortunately, Mr Danny Lau, the solicitor's clerk present throughout the trial and during the various conferences between Mr Lim and the appellants was able to remember the substance of both counsel's advice and instructions. At the end of the day, I accepted Mr Lau as a witness of truth and reliability. His evidence was given without any attempt to embellish his own role or Mr Lim's. It was objective and supported by both common sense and the independent features of the case, such as the contents of the audio tapes relating to the "blackmail" incident.

27) I rejected both appellants as witnesses of truth. The 1st appellant's evidence on occasion was contradicted by his earlier affirmations filed for the purposes of this appeal. So far as his complaints in this appeal were concerned as to Mr Lim not properly putting his instructions, he agreed he never complained to Mr Lim or Mr Lau about this during the course of his trial. Both the 1st and 2nd appellants struck me as being more than willing to bend their evidence to suit the circumstances of their appeals. The 2nd appellant was frequently unable to remember how or what instructions or materials in detail he had given his representatives. His fundamental assertion was that he did not have time to do anything but give brief instructions. His evidence generated before me was vague and contained frequent non-committed statements such as "I think" or "I believe". He said he thought Mr Lim left out things in his cross-examination of PW1 on 24 January, the first day of trial, but elsewhere in his evidence he said he did not remember if he had any concern in his mind as to Mr Lim's conduct of the case on that first day.

28) More surprisingly he had no recollection of one of the planks of his argument as to his counsel's incompetence, and that was Mr Lim's reply to the magistrate's question as to whether it was the appellants' case PW1 had brought the group of people involved in the incident to the premises. In short, I dismissed the appellants as witnesses of credit. Against that background I now deal with the allegations of incompetence against Mr Lim. They fall into three categories.

29) The first is Mr Lim's non-use of the "blackmail" incident as material supporting the appellants' case. It was argued before me by both Mr Bruce and Mr Collins that this material could, at the least, have been used to attack the credibility of PW1 and PW2, the sole and crucial prosecution witnesses. That may be so. But that would have been an approach at serious risk of back-firing. That is because within those tapes were conversations very damaging to both appellants where the other party had apparently suggested an approach had originally been made by one of the appellants to the prosecution witnesses with an offer of $100,000 if the prosecution witnesses changed their evidence. Both appellants had themselves been questioned by the police about this matter, though apparently not under caution. In short, the contents of the tape recordings of the appellants' dealings with the person "Ah Kwong" were potentially at least, as damaging to the appellants' cases at trial as supportive of them. Further I accept the evidence of Mr Lau to the effect the following a discussion of the "blackmail" issue at a 9:00 a.m. conference on 25 January, the second day of trail, at which both the appellants, himself and Mr Lim were present, he received specific instructions from the 2nd appellant, in the presence of the 1st appellant, to the effect that the tapes should not be played in court as the contents were prejudicial. Mr Lau recollects he finally received these instructions in court just before the magistrate came out and he relayed them at that time to Mr Lim.

30) I accept Mr Lau's evidence in this regard. Mr Lim could, as with other matters, not remember this. His recollection of events was that he never received specific instructions from his clients in this regard as to whether to deal with the "blackmail" issue or not and he regarded it as a matter irrelevant to the issue at trial and for that reason did not take it up during the course of the trial. As I have said I accept Mr Lau's evidence as reliable in this regard. Mr Lim's evidence, for the reasons I have given, is, as on other occasions, not reliable. It appears from the transcript of the trial placed before me that when questioned by the magistrate as to whether he intended to raise the "blackmail" issue, Mr Lim originally seemed somewhat confused in his answers but then agreed that his position was that he had decided not to raise it. This was said in response to questions by the magistrate as to whether Mr Lim intended to raise the matter. The portion of the transcript is as follows :

"COURT: Mr Lim, in your cross-examination against PW1 and PW2, I have never heard any suggestion of the contact by two arrested persons made recently to extort money from your clients or that they were sent by either PW1 or PW2. I have never heard such suggestion, despite the fact that your predecessor, Miss Moosdeen, had kept on asking such disclosure of documents and audiotapes. I'm not asking you to follow suite but is it your case that you are no longer required to rely on those materials for the purpose of cross-examination? Of course, you have your own professional judgment.

MR LIM: Well, if you allow me to recall PW2, I'll ...

COURT: No, no, no. That's beside the point. I'm just asking you whether you drop that issue because of your ...

MR LIM: Well, it's not that ...

COURT: ... -- because of your own professional judgment?

MR LIM: Yes.

COURT: Or that you have miss it because of your own oversight of the matter?

MR LIM: Well, I would - it was mentioned that the original sum agreed was $200,000. Then, and this offer of $50,000, he rejected.

COURT: Right.

MR LIM: That was clear. It's not a question of extortion; it's a question of the arrangement subsequently, but whether it is an extortion or not, I will address the court later in another stage.

COURT: When I mention "extortion", I mention it in the context of the two arrested persons, not your client, of course. The other two arrested persons; a person call in the surname of Mr Kwong, who told your client that they were sent by Mr Tang, probably PW2, to extort money from your client; i.e. to settle the matter, not to incriminate against your client, if your client is willing to pay a certain sum of money, etc. That's the allegation against the prosecution that has been revealed or disclosed by Miss Moosdeen, your predecessor, who represented your clients on the last occasion. And therefore, she asked for release or disclosure of a number of documents, including four audiotapes. The OC case had made effort to rush and to obtain those materials for you, or for your predecessor. I think they have make it available to you already; plus some brief facts of that case, about the circumstances of arrest of those two arrested persons, for you to defend your lay clients.

MR LIM: I have no instructions on the ...

COURT: On that, all right.

MR LIM: No.

COURT: So be it. I'm not forcing you to follow what your predecessor was doing.

MR LIM: Yes.

COURT: She may not be right.

MR LIM: Yes.

COURT: Probably, you may be right not to do it; I don't know.

MR LIM: Yes. I have no instructions on ...

COURT: To do so?

MR LIM: That's right.

COURT: Right. So be it. I'm not forcing you; I'm just remind you there was something happened on the last occasion hinging on these matters. So, if you are dropping that issue, so be it. It is your own professional judgment; I have no hesitation to respect - I have no reservation to respect you to the fullest extent if you are not launching that lines of cross-examination.

MR LIM: Yes.

COURT: Just to remind you there was something happened on the day, on the previous day. Is that clear?

MR LIM: Yes.

COURT: All right. So, you are - you're not going to follow that lines of cross-examination?

MR LIM: No, not that."

31) Obviously there was some initial confusion in counsel's mind as to whether the magistrate was referring to the "extortion" the subject matter of the trial, i.e. the claim for an introduction or commission fee for the obtaining of the bank facilities, or the incident of "extortion" which occurred from 15-19 January resulting in the arrest of two persons. But what Mr Lim eventually told the magistrate was that the matter of the "blackmail" incident was not to be raised. That was in fact in accordance with the instructions given to Mr Lau by the appellants at the commencement of that day's proceedings, only a few minutes earlier.

32) In short, in my judgment, counsel's not dealing with the potential "blackmail" issue was in accordance with his instructions and there was, objectively, a considerable justification from a defence case point of view in not having the potentially very prejudicial contents of the tapes revealed to the trial magistrate. I might add that I have no doubt that the appellants' wishes were that the issue not be raised. In due course, both gave evidence in some detail on their own behalves. Neither appellants, either in evidence-in-chief or during cross-examination, mentioned anything concerned with the "blackmail" incident. I am sure that that was not wholly and simply because of any control exercised over them by counsel during questioning but was because the appellants intended not to raise the issue.

33) Before leaving this particular aspect of the ground of appeal there is one worrying feature of it that should be mentioned. At no stage during the two-day trial did Mr Lim or Mr Lau actually play and listen to the tapes. Mr Lau said that was because to do so the tapes had to be listened to at the police station. There was no equipment, apparently, to play them in court. Accordingly Mr Lau and Mr Lim proceeded to deal with this matter simply on the basis of what their clients told them. In my view that was less than the proper performance of their duty required. The tapes were one hour long in total. They should have been listened to. But it has not been suggested before me that there was anything in fact on those tapes that would have caused Mr Lim to properly have advised his clients contrary to their instructions that the issue of the "blackmail" incident should be raised. That is, nothing has been put before me, either in the course of evidence or submissions, to suggest that this particular omission by the appellants' representatives to actually listen to the tapes caused any actual unfairness or prejudice in the conduct of the trial. The highest Mr Bruce or Mr Collins were able to put it was that if the tapes had been listened to, there may have been material on them which might have caused Mr Lim to rethink the position. This is simply too speculative with respect. No such material was able to be brought to my attention during the course of the appeal. Accordingly this particular aspect of the appellants' ground of appeal cannot stand.

34) The second area of complaint is that Mr Lim fundamentally misunderstood the appellants' cases in that he failed to appreciate so far as those cases were concerned that the group of 10 or more people who arrived at the scene and became involved in the incident belonged to or were associated with the two prosecution witnesses. Of course the prosecution case was that these people had been called to the scene by the appellants for the purpose of threatening and assaulting the prosecution witnesses.

35) Mr Lim in his evidence before me said he was under no misapprehension about this. He appreciated his case was that the group were associates of the prosecution witnesses and not his clients'. Mr Bruce and Mr Collins rely upon the following exchange contained in the transcript between the magistrate and Mr Lim which occurred at the commencement of Mr Lim's cross-examination of PW 2 :

"Q. Mr Tang, I suggest to you that it was a group of persons, about 10-odd, who entered the office of the 1st defendant on 1 September 2001, including PW1.

A. Right.

COURT: So, in other words - are you suggesting that group of 10-odd persons was brought to that premises by PW1?

MR LIM: No.

COURT: No. Right.

MR LIM: They just ...

COURT: There were such a group ...

MR LIM: ... went in there.

COURT: I see."

36) At first glance it appears that Mr Lim was telling the magistrate that it was not his case the group of persons were associated with PW1 and PW2. That is what Mr Bruce and Mr Collins urged upon me. Upon closer reading however, in the context of the previous question asked by Mr Lim, as indeed Mr Tam for the respondent has submitted, the specific question asked of Mr Lim was whether he was suggesting PW1 had brought those persons. Mr Lim was not suggesting that. His reply, to the effect that they had simply arrived in the premises, was in fact about as far as his case could go and consistent with the evidence later given by the appellants. It was not necessary for his case to state precisely who had brought the group to the premises. All that was necessary was for Mr Lim to suggest that the group, when they were in the premises, took the part of the prosecution witnesses and maltreated the appellants. This Mr Lim did. He put to PW2 that the group, or some of them, had assaulted the 2nd appellant. The transcript in this regard records :

"Q. I suggest that you and five or six others push the 1st defendant into the room, the conference room.

COURT: You and another five persons pushed this gentleman into conference room. That's the suggestion put to you. Agree or disagree, please?

A. Disagree.

Q. You even threatened to set fire to the office of PW1.

INTERPRETER: Sorry, "of PW1"?

Q. Set fire to the office of - sorry, of D - 1st defendant.

A. Disagree.

Q. And then, they pushed the 1st defendant ...

COURT: Sorry, may I have the question again?

MR LIM: He disagree.

COURT: Sorry, Sir, may I have the question again?

MR LIM: He threatened to set fire to the ...

COURT: No, no, no. The new one.

MR LIM: The new one.

Q. And then pushed the 1st defendant ...

COURT: Who push?

MR LIM: PW2.

COURT: PW - you, push what?

Q. You push the 1st defendant, with five or six other persons, at one stage.

COURT: Not mentioning about the room. Not the room, just "push".

MR LIM: Yes, just push.

COURT: Just push the body of defendant, D1.

MR LIM: Yes.

A. Disagree.

Q. This was the - this was because of the dispute about the commission.

COURT: That's why the push happened.

MR LIM: Yes.

A. Disagree."

37) In my judgment Mr Lim's cross-examination of PW2 in this regard makes it sufficiently clear that he understood that on his instructions the group of thugs who appeared in the 1st appellant's factory premises were there for the benefit of PW1 and PW2 and had, from his earlier question asked of PW2, arrived with PW1 regardless who had brought them there. I might add in this context that both appellants in giving their evidence made it perfectly plain that their cases were that the group of 10 or more persons were supporters of PW1 and PW2. Nor is there any doubt that the magistrate perfectly well understood that this was in issue between the prosecution and the defence. In his Statement of Findings he says this under the heading of "Defence case" :

"D1 met PW2 again on the date of incident, namely 1st Sept. 2001 when PW2 went up to his office with 10 odd persons who scattered at different locations inside the office. D1 was forced into the conference room by 6 persons out of the 10 odd persons. The group of PW2 asked for HK$900,000. Lastly, PW2 requested HK$200,000 but was rejected by D1. D1 offered HK$50,000 which angered PW2's group of people. They even threatened to set fire to D1's house and to harass D1's wife. As D1 refused to meet their demand, one of them pushed D1's head several times. ... ...

D2 said that when he was transporting cartons of goods near the glass door of D1's office, he saw a group of fierce looking people entered and looked for D1. D2 was subsequently locked up in a room by 3 persons of the group. Those 3 persons told D2 that it was none of his business and asked him not to come out."

38) The magistrate clearly understood the defence case was that the group of persons "belonged" to PW1 and PW2. Subsequently in his reasons for verdict he found that it was an irresistible inference that the group had in fact been summoned to the premises by the 2nd appellant. But that conclusion was arrived at after a clear appraisal and understanding of the issue by the magistrate. In short, so far as this particular of the ground of appeal is concerned, I am sure that, whatever lack of clarity Mr Lim's answer may have had to the magistrate's original question as to who had brought the group to the premises, both Mr Lim and the magistrate were both aware during the course of the trial that the defence case was that the group belonged to PW1 and PW2.

39) The final particular complaint relied upon by both Mr Bruce and Mr Collins in regard to counsel's competence is that Mr Lim failed to call two defence witnesses, Mr Tang and Mr Li who worked in the 1st appellant's premises and who saw all or part of the events in the premises. The purpose to be served in calling them would have been to establish that the group of thugs who appeared in the premises behaved in a threatening and abusive way towards the appellants. Mr Tang's witness statement was to the effect that he saw a group of 10 men inside the factory warehouse. They told him to go away and he did. He did not see what they did or what happened. He had seen one of them before at the factory asking to collect money from the wife of the 1st appellant. Mr Li's evidence would have been to the effect that on the day of the incident he saw 15 to 16 persons quarrelling with the 1st appellant outside the 1st appellant's office. They were using foul language and acting fiercely. He was then told to go way and did so.

40) According to Mr Lau, whose evidence I accept in this regard, during an adjournment following the evidence given by the 1st and 2nd appellants the potential evidence of Mr Tang was discussed and it was decided that as he did not add much to the case he would not be called. Mr Lau said the appellants accepted the advice to that effect and agreed that Mr Tang not be called. I accept that that was so. I reject the appellants' evidence that they knew nothing of this decision. Given that Mr Tang's evidence was consistent with both the prosecution and defence case there can be no criticism of the decision not to call him. As to Mr Li's evidence Mr Lau and Mr Lim said it was decided not to call Mr Li because of an inconsistency between his evidence and that of the 1st appellant. That decision was arrived at during the course of the same meeting that occurred at the conclusion of the evidence of the 1st and 2nd appellants. Mr Lim could not remember what the inconsistency was but Mr Lau could. He said it related to Mr Li saying in effect a confrontation occurred outside the 1st appellant's office whereas it had been the 1st appellant's evidence that no confrontation had occurred there but that it had occurred in a conference room in the premises. Mr Lau said this matter was discussed during the course of the adjournment and, in accordance with Mr Lim's advice, the appellant's eventually agreed that Mr Li need not be called. While no obvious criticism as I say could be made of the decision not to call Mr Tang, it may be thought that the decision not to call Mr Li was based on a somewhat hair-splitting perception of the inconsistencies between Mr Li's and the 1st appellant's versions of events. Nevertheless it was based on advice given by counsel, explained to the appellants and accepted by them.

41) The fundamental role of counsel and his relationship with his client was examined in R. v. Birks [1990] 48 A Crim R 385. It was said by Gleeson CJ at p.390, and it is worth setting out in some detail :

" In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.

As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. For example, in Rondel v Worsley [1969] 1 AC 191 at 241, Lord Morris of Borth-y-Gest quoted with approval the following statement of the Lord President in the Scottish case of Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, concerning the role of an advocate:

'... His legal right is to conduct the case without any regard to the wishes of his client, so long as his mandate is unrecalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client's interests are thereby prejudiced.'

In Halsbury's Laws of England (4th ed), Vol 3, par 518 at 420, it is stated that:

'... a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.'

(See also Edwards Underwood and Edwards (1848) 3 Cox CC 82; Hatch v Lewis (1861) 2 F&F 467; 175 ER 1145; Matthews v Munster (1887) 20 QBD 141 and Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1 at 24 per Issacs J.)

There is an evident tension between those principles, on the one hand, and on the other, the power and duty of a Court of Criminal Appeal to correct a miscarriage of justice. It would be wrong, however, simply to regard these as two competing considerations which must from time to time yield to some compromise. The principles as to the role of counsel, and the capacity of counsel to bind the client, are fundamental to the operation of the adversary system, and form part of the practical content of our notions of justices."

42) The concluding comments by Gleeson CJ in that extract are the reason why courts in our system have been reluctant to allow appeals where those appeals are based on allegations of incompetence of counsel. That case has been cited with approval in many subsequent Hong Kong authorities : R. v. Tam Kwok Wai, CACC 414/1990, HKSAR v. Wong Chi Keung, CACC 585/1996 : HKSAR v. Miller, CACC 127/2001.

43) In the present case the appellants accepted the advice given to them that the witnesses not be called. It may be that it would have been better to call one or both of the witnesses. But the appellants cannot, after trial, say that in retrospect an informed decision made by them on counsel's advice was probably wrong and that the better course would have been to do something else and that they should have an opportunity to have a second bite of the cherry. In the New Zealand case of R. v. Pointon, (1984) 1 CR NZ at p.348, it was said :

"A mere mistake in tactics in the conduct of the defence does not of course afford ground for a new trial. This Court has to be on guard against any tendency of accused persons who have been properly and deservedly convicted to put the result down, not to the crime committed, but to the incompetence of counsel. An accused who has acquiesced in his counsel's advice not to go into the witness box himself or not to call other witnesses will usually have great difficulty in showing any miscarriage of justice on that account."

and in R. v. Li Wai Keung, HCMA 580/1996, Patrick Chan J (as he then was) said :

"... Some degree of trust or confidence must by placed by defendants in their own counsel and lawyers. Otherwise the system simply cannot work. If this type of complaint were to be readily accepted on appeal, lawyers would be constantly worried of complaints on their conduct of the case and may not be able to freely and fearlessly do their best for their clients."

44) Tactical decisions backfire every day in courts in the common law world. That is a concomitant of the adversarial system. Unless there was an error of so fundamental a nature as to remove the appellants from the normal risks associated with the give and take of the adversarial trial and disadvantage them to the extent that they did not receive a fair trial in the sense that there was a miscarriage of justice they cannot establish this basis of their appeal. In R. v. Dean Clinton [1993] 97 Cr App R 320, the Court of Appeal adopted the following statement of the law taken from another decision of the Court of Appeal in the case of R. v. Wellings (unreported) :

" The fact that counsel may appear to have made at trial a mistaken decision, or has indeed made a decision which in retrospect has been 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."

In R. v. Birks (supra) the law was summarized in this way :

" The relevant principles may be summarised as follows:

1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."

In similar terms the leading authority in Hong Kong of Mak Kam Chuen v. HKSAR, FAMC 35/2001, per Chan PJ, said :

".... the ultimate question for the court is whether the conduct complained of has resulted in the accused not getting a fair trial so that the conviction is unsafe or there is a miscarriage of justice. Usually, it is only significant fault such as what is sometimes described as flagrant incompetence which can form the basis of such a challenge. ...."

45) In my judgment it cannot be said that the appellants have established that the advice given by Mr Lim which they accepted, generally and also in regard to not calling Mr Li or Mr Tang, was flagrantly incompetent. Nor have they established that in the absence of the evidence of those witnesses they did not get a fair trial. The evidence of Mr Li or Mr Tang taken at its highest was that of employees of the 1st appellant which even if supportive was also, in the case of Mr Li, partly contradictory of the evidence and case of at least the 1st appellant.

46) In my judgment the appellants have failed to demonstrate that they have been prejudiced in terms of the conduct of their trial so that there was a miscarriage of justice. The appellants are effectively saying things were done at their trial which in retrospect they think could have been done better and which if done another way may have resulted in a more favourable outcome so far as they are concerned. For the purpose of this ground of appeal the appellants have established no more than that a tactical decision was made not to call the witnesses, Mr Tang and Mr Li, and that that decision so far as the witness Mr Li was concerned may have been, in retrospect, a tactically bad decision or even an error of judgment. But that is a long way from the appellants having established that that decision resulted in a miscarriage of justice when it is recalled that Mr Li's evidence would have been at best, only partially supportive of the 1st appellant's version of events, and to some extent, at least, would have undermined his evidence.

47) In conclusion there were some aspects of concern as to Mr Lim's conduct of the case before the magistrate. His responses to the magistrate's enquiries and his judgment as to what topics and to what extent to cross-examine PW1 and PW2 upon may not have been the same paths other counsel would have taken. But the defendant at trial is entitled to a competent counsel, not a perfect one. The defendants in this trial received sufficient representation so as to ensure their trial was fair. Accordingly, for the above reasons, the first two grounds of appeal of the appellants cannot succeed.

48) Mr Collins on behalf of the 2nd appellant also advances a ground of appeal to the effect that the magistrate prevented Mr Lau from providing instructions to Mr Lim. There is no merit in this ground whatsoever. It is apparent from the trial transcript that the magistrate at one stage chided Mr Lau for attempting to instruct Mr Lim while the magistrate himself was speaking to Mr Lim. That happens in Hong Kong courts quite frequently. In no way was the magistrate attempting to prevent Mr Lau generally instructing Mr Lim in court and in any event there was no suggestion before me that Mr Lau was thenceforth unable to instruct Mr Lim on matters the basis of any particular of the grounds of appeal.

49) Mr Collins also complains that Mr Lim agreed facts on behalf of the 2nd appellant which the 2nd appellant was ignorant of. Those facts were to the effect that the 2nd appellant had phoned the police and made a complaint that he had seen fighting at the 1st appellant's premises. The 2nd appellant in his initial evidence complained that he knew nothing of the agreement of this fact and that Mr Lim had agreed it on his behalf without proper instructions. It is enough to state that the transcript clearly shows that the magistrate personally and directly asked the 2nd appellant whether he agreed that fact and the 2nd personally and directly told the magistrate he did. When this was pointed out to the 2nd appellant in cross-examination, the 2nd appellant resiled considerably from his earlier evidence and suggested he was unable to understand the proceedings before the magistrate at that stage. That was plainly nonsense. There is nothing in this complaint by the 2nd appellant.

50) Finally, Mr Collins appeared in his perfected grounds of appeal to be raising the issue of bias as a particular of his grounds of appeal. That was not proceeded with. There was nothing before me to remotely suggest that the magistrate was biased in respect of the trial of the 1st and 2nd appellants. I think it is fair to say that that particular was not proceeded with in the argument advanced by Mr Collins. There was no merit to it in any event.

51) Accordingly, both appellants' appeals against conviction are dismissed.