HKSAR v. LAI WAI

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1998, No.50
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant, after trial before Judge Kilgour in the District Court, was convicted on one charge of burglary and one charge of resisting police officer in the execution of his duty. He was sentenced to two years and nine months on the first charge and two months on the second charge. The sentences were ordered to be consecutive. The applicant now seeks leave to appeal against those convictions.

2. There is no challenge in this appeal to the judge's findings upon the evidence as it was presented to him. It is the contention of the appellant, argued by Mr. Phillip Ross, that there was a flagrant failure by Mr. William Au, who appeared for the applicant below properly to present the applicant's defence.

3. The Re-amended Perfected Grounds of Appeal are as follows:

"The convictions for burglary and resisting a police officer in the due execution of his duty are unsafe and unsatisfactory because

(a) at no time did the Applicant's instructing solicitors explain the contents of the Prosecution witness statements to the Applicant;

(b) at no time was the Applicant invited or required to attend the office of his instructing solicitors to prepare his defence;

(c) at no time was the Applicant invited to provide instructions as to why he was at the place of arrest;

(d) though the Applicant instructed his solicitors that the burglary victim was unable to identify him in a police confrontation at the place and time of arrest that matter was never brought home to any prosecution witness at trial;

(e) at trial following the close of the Prosecution case the Applicant was directed by a clerk of the instructing solicitors not to give evidence in his defence, contrary to the Applicant's instructions;

(f) the Applicant's instructing solicitors never sought a medical report from the Yan Chai Hospital, even though the Applicant had given instructions that he was assaulted by police at the time of arrest;

(g) although at trial the Applicant instructed at trial a clerk of the instructing solicitors that an exhibited labour glove was planted on him in a police vehicle that matter was never brought home to any Prosecution witness at trial.

(h) The Applicant's case that he was framed by the police was not or not adequately put to the police witnesses, and was contradicted by the Applicant's solicitor in his closing address.

(i) The Applicant's case with respect to the charge of resisting arrest that he was first assaulted by police was not put to the police witnesses.

(j) The Applicant's case was not and could not be adequately put because the Applicant's instructions were unrecorded."

4. The applicant in an affidavit stated that at no time were the contents of the statements of any of the prosecution witnesses explained to him; that his legal advisors negligently failed to obtain a copy of the medical report which would have shown the injuries which he received at the hands of the police; that the cross-examination of the prosecution witnesses was not conducted upon the basis of such instructions as he did give which were, inter alia, that a police officer had deliberately planted a glove on him after he was placed in a police vehicle; that no proper statement was ever taken from him; that he had never been given any proper advice as to whether or not he should give evidence.

5. Affidavits in reply were filed by both Mr. William Au and by his clerk Mr. Chiu Wai-man. In the court below the matter was adjourned on 21st November and 8th December 1997 and was finally heard by Judge Kilgour on 5th January 1998.

6. Mr. Au in his affidavit said that on 8th December 1997, when the matter was adjourned because two Pakistani witnesses for the defence could not be located, he had taken "instructions which were simple" from the applicant. These instructions were that he was not present at the scene of the burglary, i.e. in the back lane; that the watchman at the scene had said that he was not a culprit when he was brought back to the scene by the police; that he was not wearing any white gloves at any time; that he was framed up by the police; that he was arrested when he was walking in a hurry and was then beaten up by the police; that the victim Yeung Wai did not recognize him. He said that he was not given any background information by the applicant such as appears in para.9 of the applicant's affirmation and that the applicant's right to give evidence was explained to him by the judge and "might have been explained" to him by his clerk, and that "Lai Wai had a freedom of choice in court".

7. Two things in particular are to be noted in this affirmation - firstly, Mr. Au's assertion that he took "simple" instructions from Lai Wai himself and, secondly, that he gave no advice to the applicant as to whether or not he should give evidence.

8. Mr. Chiu Wai-man, the clerk, in his affidavit said that he "had conference with Lai Wai about this case" and that he did not consider that the medical report was relevant. He said that he

"explained to Lai Wai that the main issue of the case is whether Lai Wai did commit the act of burglary, whether Lai Wai was actually identified and the doubts arising from the chasing and arrest of Lai Wai and my employer Mr. Au Wing Lun, William also agreed my point of view and the way to carry our defence was explained to Lai Wai."

9. He finally said:

"I did explain the right of Lai Wai to give or not to give evidence in court and the advantages and disadvantages of doing so and Lai Wai chose not to give evidence and said so to his Honour Judge Kilgour."

10. Particularly to be noted in this affirmation is that Mr. Chiu does not anywhere suggest that Mr. Au had a conference with the applicant, nor does he suggest that, before advising the applicant as to whether or not he should give evidence, he had any discussion with or took any instructions from Mr. Au.

11. Before this court Mr. Au was cross-examined on his affidavit. The cross-examination by Mr. Ross uncovered matters which we found disturbing.

The Instructions from the Applicant

12. Mr. Au admitted at the outset that no written instructions had ever been taken. He explained this by saying that the instructions were so simple that this was unnecessary.

13. Mr. Au said that on the first hearing date, 21st November 1997, the trial did not proceed as the defence was granted an adjournment to allow time to try to locate witnesses and that on that day he took instructions from his clerk. He said he did not have a conference with the applicant but just had "a chat". When it was put to him that he never spoke to the applicant he said "There was communication". He said that the defence was not discussed in detail because it was "already known". When it was put that it was not discussed at all, he said "a little, not very lengthy". Mr. Au did not at trial cross-examine upon the basis that a glove had been planted on the applicant in the police car. When he addressed the court, he appeared to be treading a narrow line between an allegation of a calculated frame-up by the police and a suggestion that they had been "eager to make a case against the defendant" on the basis of flimsy evidence. He said that he was not alleging that "the police tried to collude together so as to fabricate a story against the defendant diabolically". This may, tactically, have seemed to him to have been an appropriate line to run. Was it, however, in accordance with the instructions, such as they were, of the applicant? When asked by Mr. Ross what defence he was running, he said "There may not be collusion diabolically between all the police officers. But there may be some frame-up by the arresting officers at the scene". He again stated that the reason he did not reduce the applicant's instructions to writing was because the defence was so simple. He agreed that he had not complied with r.5D of the Solicitors' Practice Rules which requires that not more than 7 days after receiving instructions they must be confirmed by letter. Later in his cross-examination he stated he had not taken any background instructions from the applicant, nor had he tried to find out why he was there on the night. His explanation for this was "Because he elected not to give evidence".

The Fee

14. He said that the applicant was a paying client but agreed that there was no receipt in the file. He sought to explain this by saying that the fee was not to be paid by him "but was all paid by friend". When pressed as to why there was no receipt, he said "We acted voluntarily for the defendant .... I don't think the fees would matter." He then said that, as far as he was concerned, he acted for nothing and told Mr. Ross that he would have to ask the clerk about fees as "on that file there was no fee being paid". He said he was not aware that $60,000 had been paid to the clerk. When asked if he had checked with the clerk, he said that the clerk had said: "It was paid by his friends". He then said that he didn't think it was paid to the clerk but that it could have been paid directly to "our account" but went on to say that as there was no record of the payment, that "means there is no payment". He agreed under Rule 5(D) that he should have received written agreement as to the fee terms and went on to say "this defendant belong to same group of people who usually instruct our firm to do work. So the instructions are not from the defendant himself and from some other persons which I may not be able to disclose. So usually in criminal cases it may be in this way, that the fees are not paid by the defendant but by some other colleagues of the defendant. So usually there may not be some discussion between myself with the defendant directly on the fee." He then admitted that there was in fact no confirmation letter as to fees on the file and conceded that a letter, which he had suggested was a confirmation letter, in fact concerned a bail application.

The Advice as to Giving Evidence

15. When asked whether he had explained to the applicant his right to give evidence or to remain silent, he said "I ... even my clerk explain ... (indistinct) analysis to him about the disadvantages and advantages to him of giving evidence". When asked whether the clerk had done this on his own, he said "I did give him some hints about the case ... I did instruct my clerk to discuss this with the client." When asked what he had instructed his clerk to tell the applicant, he said "my clerk have sufficient knowledge, because he was in a hearing himself, he was in this field for 20 years." When this question was pressed, he said "I just tell my clerk to explain everything to the defendant". When pressed further he said, "I only ask my clerk to tell him the benefit or disadvantage of giving evidence". He then agreed that he had left it to the clerk.

16. When cross-examined by Mr. Saw, S.C., for H.K.S.A.R. about his instructions he said:

"The framing-up - the element is that the defendant was arrested in the street, actually with nothing on him. There was no white glove on him. The police did not see him dropping the white glove, and also when he was arrested, there was no glove on his hand at all, that was the instructions."

He agreed that the defence only had a chance of success upon the basis that there had been a frame-up and that the issue was "wholly a matter of credibility." He said he had not instructed the applicant to give evidence because "If he should give evidence and, according to my feeling he is not likely to be believed and his sentence will be higher and he may lose his chance of appeal." When this question was repeated he said "I leave my clerk explained to him of his rights, of the advantages and the disadvantages to give evidence". Finally, in answer to questions from the Vice-President, he said that no fee was paid but that it was owing. He said he did not know the amount of it as he left it to the clerk to discuss the fee.

17. Mr. Chiu-Wai-man, the clerk, was then cross-examined.

The Fee

18. He said that when he first met the applicant in mid-August no fee was fixed. He said that he believed that ultimately a daily rate of $15,000 was fixed. He said that in fact no fee had ever been paid but that there was a guarantor who had not yet been contacted.

The Instructions of the Applicant

19. As to the taking of instructions, he said that there was no formal conference but that each time when the applicant appeared on the adjourned dates he "would have discussion". He said that no instructions were reduced into writing. His reason for this we found quite extraordinary. He said that it was "because Lai Wai was innocent. We believed the police had arrested the wrong person. I had a discussion with Mr. Au and we would be able to find something in the course of the cross-examination". The following exchange then occurred:

"Q. Did you reduce his instructions down to writing?

A. No.

Q. Why was that ?

A. Because Mr. Lai Wai was innocent, we believed that the police had arrested the wrong person. I had a discussion with Mr. Au and we were hoping that we would be able to find something in the course of the cross-examination.

Court: Sorry. 'With Mr. Au .... we were hoping we would be able to find something.'

Interpreter: 'In the course of the cross-examination.'

Court: Am I correct in understanding that if you believe a client to be innocent you feel you don't need to take instructions, you just rely upon cross-examination to destroy the Crown case. Is that the way you operate?

A. The most important thing was that he did not go into the lane as shown by the evidence.

Court: Sorry. 'The most important thing was'.

Interpreter: 'That he did not go into the lane as shown in the evidence.'

A. So our cross-examination focused on questions about who were inside the lane and that we believe that they arrested the wrong man."

He agreed that on 21st November 1997, Mr. Au had been sitting at another table in the canteen. He said that he had not endeavoured to get the medical report on the applicant's condition as he did not think it would be useful. It was put to him that on 8th December, the only conversation Mr. Au had with the applicant was that when he told him that the court was busy and he said that he thought it was "something along those lines".

20. The following exchange then occurred:

"Q. How did Mr. Au get to hear about what the defendant's defence was?

A. Perhaps I had placed too much emphasis on the cross-examination of what happened inside the lane.

Court: So could you repeat the question?

Mr. Ross: A bit of a mistake.

A. Perhaps I had placed ...

Court: No, the question. How did Mr. Au get to know what the defence was?

A. It was mostly done through me.

Q. When?

A. It was when we were discussing the case. Perhaps I was being too subjective.

Court: What? Sorry.

A. 'Perhaps I was too subjective.' It would look as if I was representing the defendant in having the conference with Mr. Au.

Court: I am sorry, I think I must have ...

Interpreter: I am sorry.

Court: 'Perhaps I was too subjective ...'

A. Subjective. It may look as if I was representing the defendant in having the conference with Mr. Au.

Court: 'Look as if I was representing the defendant ...'

Interpreter: 'In having the conference with Mr. Au.'

Q. I don't know if I quite understand what you mean by that Mr. Chiu, can you explain that a little bit further?

A. Because as far as I knew and believed, the defendant did not go into the lane.

Court: 'You and believed the defendant ...'

Interpreter: 'I believed that the defendant did not go into the lane.' The police mistook him for the burglar.

Court: I am sorry. I didn't hear that.

Interpreter: 'The police mistook him for the burglar.'

A. While I myself had been to the lane. I also attempted to find two watchmen of either Pakistani or Indian origin.

Q. Just a minute, Mr. Chiu.

Court: Yes.

Q. I remember, my original question, Mr. Chiu was how did Mr. Au get to know about the Lai Wai's defence? Did you tell him?

A. You can say so.

Q. Well, do you say so, Mr. Chiu?

A. Of course I told him.

Q. Right.

Court: Yes, just a minutes. Yes.

Q. There was the application for the adjournment was on 21 November 97. Do you know what the defence was by the time he came to Mr. Au's defence - by the time he came to apply for the adjournment?

A. Yes, he knew.

Q. What did you tell him?

A. I hope he could establish in the course of cross-examination that the police had arrested the wrong man.

Q. Is that all you told him?

A. And that I would go into the lane to see for myself what the lane was actually like.

Court: Just a minutes.

A. Because the defendant had never been to the inside of the lane, therefore, it was very difficult for him to describe it to me.

Court: Sorry.

A. 'And the defendant had never been to the inside of the lane so it was very difficult for him to describe it.'

Court: Yes.

Q. Did you tell anything else to Mr. Au about Mr. Lai Wai's defence? This is by 21 November.

A. It never crossed my mind that Lai Wai would go to the witness box to give evidence.

Court: Just a minute. Yes.

Q. So I take it that the answer to my question is, no. You didn't tell Mr. Au about anything else - about Mr. Lai Wai's defence?

A. That's correct.

Q. And between that date and the date when the court was too busy to hear the trial, between 21 November and 8 December, did you tell Mr. Au anything about Lai Wai's defence?

A. Even if I did, it would be something very hypothetical.

Court: 'Even if I did, it would be ...'

Interpreter: 'Something very hypothetical."

21. Later in cross-examination the following exchange occurred:

"Q. Is it Mr. Chiu that the defendant had told you that in the police vehicle after it arrived back at the police station, that the police simply produced the glove and he was framed up in that way.

A. It seems so."

22. The witness later went on to say that as far as he could remember on 21st November, the only contact between Mr. Au and the applicant was when he had asked him and the applicant whether the two Pakistani witnesses had been found. He was asked was that all that he said "That's correct. Nothing else important was said." He was unable to remember whether Mr. Au had any direct contact with the applicant on 8th December. He agreed on 5th January, the day when the trial took place, Mr. Au did not speak to the applicant. He was asked:

"Q. So how did Mr. Au find out what Lai Wai's defence was?

A. During the conference I had with Mr. Au in relation to this case, the most important thing was ...

Court: Sorry, 'The ....'?

Interpreter: 'The most important thing was ...'

A. ... I hoped that something could be established through cross-examination by Mr. Au.

Q. But how did Mr. Au know what the defendant's instructions were if he didn't speak to him before the trial?

Court: 'If he didn't ...'?

Q. Speak to him before the trial.

Court: 'Speak to ...'?

Q. If Mr. Au didn't speak to Lai Wai.

A. We were hoping that we would be able to establish it through cross-examination.

Court: Just a minute. 'We were hoping that he would be able ...'

Interpreter: 'Able to establish it through cross-examination.'

Q. Establish what, Mr. Chiu?

A. To establish that what the police said were lies."

23. He was then asked whether he had passed the defendant's instructions on to Au. He said that he had and, when asked what they were, he said "The police frame up Lai and that Lai Wai did not go into the lane ..... Moreover on the night the police arrested him, the police misunderstood him and the police gave him the glove." It was put to him that the applicant had given his instructions to him at a Chinese restaurant before the first court appearance. He said that he might have but that he did not take it in. He went on to say that most of his contacts had been on the telephone.

The Advice as to Giving Evidence

24. He stated that he had given advice to the applicant about whether or not he should give evidence. When asked what that was, he said: "I was of the view that if he went to the witness box to testify and if he was not believed by the judge it could be more dangerous to him and more to his disadvantage." He said that he could not remember Mr. Au speaking to the applicant and that what he had said to him was his own opinion and that what he had advised him was to "be confident in yourself".

25. He said that it seemed that, during the trial, the applicant did, during the lunch break, ask him why points in favour of the defence were not being brought out in cross-examination and he agreed that he had told the applicant words to the effect that it was the prosecution's burden to prove and he (the applicant) did not have to explain why he was there and that points of law would be argued not evidence. He said that, in his advice to the applicant, he had told him that "If he chooses not to give evidence it was not for the judge to speculate - he did not have to worry about this."

26. All of this presents a sorry picture.

27. We are satisfied that no proper instructions were ever taken from the applicant; that the instructions that were given were never fully canvassed by Mr. Au in cross-examination; that the applicant was never given proper advice as to whether or not he should give evidence. Indeed he was never given any advice at all in this regard by his defending solicitor.

28. The defence accorded the applicant by Mr. Au was, we have no hesitation in saying, characterized by flagrant incompetence. He left matters to his clerk which were clearly his duty to undertake. He failed to ensure that full instructions were taken from the applicant and was, because of this, never in a position fully to put the defence.

29. At the end of the day the only issue in the trial was one of credibility. Were the prosecution witnesses to be believed or was sufficient doubt cast upon their evidence to warrant an acquittal. The only realistic hope of success for the applicant lay in his giving evidence. He should have been told this. Not only was he not told this but he was given thoroughly incompetent advice by the clerk and no advice at all by his defending solicitor. The clerk seems to have decided from the very outset that the applicant should not give evidence and to have so advised regardless of the realities of the trial.

30. As the applicant was never accorded a proper defence this appeal must be allowed.

31. Finally, we state that we are far from satisfied that we have been told the truth either by Mr. Au or by his clerk as to the position as regards the fees. Neither witness appeared to us to be frank in this regard. We direct that the record of these proceedings be sent to the Law Society.

32. The application is allowed. The hearing of the application is treated as the hearing of the appeal and the appeal is allowed. We order that the applicant be re-tried on a fresh indictment.