HKSAR v. KWOK CHAK KAN, NIPON

HCMA939/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 939 OF 1997

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J U D G M E N T

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1. The appellant, Nipon KWOK Chak-kan, appeared before Mr Selwyn AU, permanent Magistrate sitting at Western Magistracy, on 27 August 1997, when he pleaded not guilty to two charges of theft. The trial continued on that day, and on the 10th and 11th of September. After trial, Mr AU convicted the appellant as charged. In respect of each offence, he sentenced the appellant to four months imprisonment, suspended for two years and fined the appellant $3,000. If the sentences have to be served, Mr AU ordered that the appellant serves them concurrently. The appellant appeals those convictions, he does not appeal against his sentences.

2. The grounds of appeal are:

1. Trial counsel failed to impress upon the appellant that his evidence and his explanation as to why he appropriated the money was essential and not to give evidence meant that conviction must necessarily follow.

2. In all the circumstances of the case, the conviction is unsafe and unsatisfactory.

3. The appellant's counsel at trial was Mr Luke McGuinniety.

4. The facts are that HO Man-fai, MUI Wai-bun, the appellant and three other people were directors of Joint Fortune Holdings Limited. In December 1996, Joint Fortune Holdings opened a restaurant - Club Scandinavia Restaurant. Each director invested $220,000. IP Wai-kit paid the appellant's contribution. The appellant was employed by Joint Fortune Holdings as the manager of the restaurant, on a salary of $15,000 a month.

5. The appellant was instructed by Joint Fortune Holdings to deposit the daily income of Club Scandinavia Restaurant into the bank the next day. If the next day was a holiday or weekend, then the income was to be deposited on the next day the bank opened for business. No one, including the appellant, was authorised to use the income received by Club Scandinavia Restaurant except as authorised by Joint Fortune Holdings' board of directors.

6. In December 1996, the appellant owned a fast food shop called O'Wein, which Joint Fortune Holdings intended to take over at the price of $210,000. In March 1997, the take-over was cancelled because the appellant was not able to clear up the accounts of O'Wein by 31 December 1996, as agreed. In March 1997, Joint Fortune Holdings' directors checked Club Scandinavia Restaurant's accounts because the income deposited into the bank was insufficient to meet its business transactions. On 18 March 1997, the appellant took unpaid leave as manager of the restaurant.

7. In April 1997, Joint Fortune Holdings' directors instructed IP Wai-kit, who is an accountant, to audit the restaurant's accounts. The audit showed that in January and February 1997, 14 payments amounting to $47,853.20 - Charge 1, and in March 1997 four payments amounting to $7,774.40 - Charge 2, being income of the restaurant, had not been deposited into the bank account. At a board meeting, the appellant was asked to explain why this money had not been deposited. He said he had taken it for his own use without permission. He was asked to repay the money in one sum to settle the matter.

8. The appellant did not repay any money. On the next day, he called IP Wai-kit. IP Wai-kit told the appellant if he had anything to say about settlement, he should say it at the next board meeting. Before the next meeting, the appellant called IP Wai-kit again, and said that he was not available to attend the meeting. At the meeting, IP Wai-kit informed the other directors of the appellant's proposals for repayment by instalments. These were rejected.

9. In May 1997, Joint Fortune Holdings removed the appellant as manager of Club Scandinavia Restaurant and as a director of Joint Fortune Holdings.

10. The appellant has never made any repayments in respect of the sum specified in the two charges.

11. At trial the appellant elected not to give evidence or call any witnesses on his behalf. Clearly given the strength of the prosecution case, this was a case where the appellant's best interest laid in him of giving evidence. In the absence of his explanation for his actions, his conviction on both charges was almost inevitable.

12. At the appeal hearing, under the provisions of Section 118(1)(b) of the Magistrates Ordinance, I received into evidence affidavits from both the appellant and Mr McGuinniety. In addition, both gave oral evidence before me.

13. In his affidavit, the appellant said this:

"In the course of the trial, I remember that after the prosecution had finished calling all its evidence, after all the prosecution witnesses had been called to give evidence and cross-examined, there was an occasion when my counsel took me away from the courtroom to an interview room of the Duty Lawyer Scheme. On the way my counsel told me that the prosecution evidence was not strong, the prosecution witnesses did badly, and there was insufficient evidence to convict me. On the other hand, my counsel told me that if I were to give evidence, I would be cross-examined, and all the doubts that had been raised would be lost.

We reached the interview room. Inside my counsel asked one of the staff there to get me a form. My counsel then asked me to read it and to sign it. The form was in both Chinese and English. My mother was standing by my side and she asked me what the form was. My counsel then asked the staff to explain the contents of the form to us. That staff said something to us in Punti along this line, 'You just need to sign it. This is only a record that you've made a decision voluntarily not to give evidence at your trial. You have already discussed it with your counsel, so just sign it.' However, I had not yet decided at that stage that I would not give evidence, so I asked the staff why it was that I needed to sign it. I told him to leave us since I wanted to discuss this further with my counsel. I do not know the identity of that staff, but I can recognise him again.

I specifically asked my counsel to tell me what difference there was in me giving or not giving evidence at my trial. I asked him what was the advantage and the disadvantage in either course. My counsel had never explained to me the disadvantage of me not giving evidence. He had never explained to me that if I were not to give evidence, there would be no evidence to contradict the prosecution evidence, and that the magistrate will be left with only their testimonies. He had never explained to me that the three prosecution witnesses had given evidence that were damaging to my case. In particular, he had not advised me that if I did not give evidence, the evidence of the two oral confessions would be un-contradicted by any defence evidence.

As my statement to the Duty Lawyer Scheme shows, I had always had a defence, and although I did not dispute that I had taken some money, I had an explanation for that. No, I was not advised by my counsel that if I did not give evidence, there would be no evidence in support of my defence, or that my explanation would not be before the magistrate. I had been willing to go into the witness box to give evidence should that be necessary. To the contrary, my counsel impressed on me that I should not give evidence. He said that should I give evidence, I would be subject to cross-examination, and that would work against me. He did inform me that the decision was ultimately mine. His job was merely to defend me. As I was not aware of the implications for me not giving evidence, and I relied on his advice, finally I decided not to give evidence."

14. In his affidavit, Mr McGuinniety said this:

"I explained to the defendant at the outset, that it was the sort of case that would require him to give evidence. I made other enquiries from the defendant and during the course of those enquiries, it occurred to me that there was documentation that the defendant had which would be necessary to assist me in his defence. When I enquired of the defendant as to this, the defendant told me he had such documentation at home. I, therefore, had the trial specifically adjourned, in order for the defendant to go home and retrieve those documents.

The defendant returned to court some time around 10.15 am, but could produce nothing except a personal diary, from which he read out certain entries in respect of which he asked me to cross-examine witnesses. The trial was conducted to the best of my ability. At the conclusion of the prosecution case, I explained to the defendant that I could make a submission of no case to answer in respect of the credibility of the prosecution witnesses, some of whom I thought had given dubious answers in cross-examination.

However, I explained that this application was unlikely to succeed, and that the next step was for him to give evidence. My application for no case was not accepted. I, therefore, explained to the defendant that the time would come for him to give evidence. With respect to the defendant giving evidence, the defendant inquired from me whether or not this was absolutely necessary, and whether or not, he would have to answer all questions; and further, whether or not, he had a right to remain silent when questioned about certain matters.

Because our conversation was in English, and because English was not the defendant's first language, I decided to continue our discussion in the company of the Duty Lawyer Office, where we would have the benefit of an interpreter, and in an environment where I knew the defendant would fully understand everything that I said. I explained to the defendant in the company of the duty lawyers service, that the case was one where I thought the defendant should give evidence, but that if he chose to give evidence, he would have to answer all questions that the prosecution would put to him.

I also told the defendant that he would have to answer specifically questions relating to his spending company money for his own personal use. I explained in detail what the likely course of cross-examination would be and told him to think over his decision of whether or not to give evidence carefully. The defendant asked for time to talk with his mother which time I gave him. After a period of time, the defendant informed me that he would not give evidence. I remember that the duty lawyer then presented to the defendant a document for him to sign. This document was to the effect that his right has been explained to him, and that the defendant had decided of his own volition not to give evidence.

The defendant then asked for an opportunity to talk with his mother. Having talked with his mother in private, the defendant informed myself and the duty lawyer that he would definitely not give evidence, and agreed to sign the document presented to him by the duty lawyer. The defendant, contrary to his affirmation, was never told by me that the prosecution evidence was not strong or that the prosecution witnesses did badly, and was not told that there was insufficient evidence to convict him. I did tell the defendant that some of the matters that came out in the prosecution case were to my mind dubious, but I never advised the defendant to refrain from giving evidence.

The tenor of my advice was to the contrary, that is that the defendant should give evidence. In retrospect, I can perhaps be blamed for not having been more forceful in this regard. I intended, throughout my advice, to ensure that the defendant knew the advantage of giving evidence, and also the obvious risk in remaining silent. I left the final decision of whether or not to give evidence to the defendant."

15. In their evidence before me, the appellant and Mr McGuinniety stuck substantially to the version of events given in their affidavits. The appellant conceded in cross-examination that Mr McGuinniety had explained to him the pros and cons of him giving evidence, and that there were no language difficulties in him understanding Mr McGuinniety's advice. And that it was his own decision not to give evidence.

16. In support of his argument, Mr TSE relied upon R v HO Ling & Anor, [1996] 3 HKC 116. In that case - involving a charge of obtaining property by deception - counsel had not told the appellants in the face of overwhelming evidence that if they failed to give evidence, they would be convicted. The issue at appeal was whether, on counsel's own account, he failed to give proper and adequate advice to the appellants as to whether they should give evidence in their own defence. Sir T L YANG, CJ, giving the judgment to the court, said at page 120:

"The evidence against them was overwhelming, and conviction would inevitably follow unless successfully challenged. Evidence given by the applicants might or might not have helped them, though it should be acknowledged that their chances of obtaining an acquittal were slim in any event. Be that as it may, the absence of evidence on their part was fatal. The consequence of counsel's failure to explain the situation to them in clear terms was that the convictions were unsafe and unsatisfactory.

In this we respectfully adopt the approach of the Court of Appeal in R v Clinton [1993] 1 WLR 1181, as applied in Sankar v State of Trinidad and Tobago [1995] 1 WLR 194. We think it important to stress that in reaching our decision we have relied upon the words of counsel in his affidavit as to the advice he gave. In the circumstances of this prosecution the way in which he qualified his advice might well have left the applicants in doubt, as they contend, as to the crucial importance of their evidence."

17. Relying upon this authority, Mr TSE argues that the appellant's convictions must be considered unsafe and unsatisfactory; as firstly, there was at the end of the prosecution evidence an overwhelming case against him; secondly, he was not advised in 'strong terms' that if he failed to give evidence a conviction would be likely to follow; and thirdly, he did not give evidence and his conviction followed.

18. At one time such an argument would have stood no chance of success. As a general rule a defendant is bound by the way the trial is conducted by his counsel, regardless of whether that is with the wishes of the client. And it is not a ground for setting aside a conviction that decisions were made without, or contrary to, instructions, or involve errors of judgment, or even negligence. There is an exception to this rule in the case of flagrantly incompetent advocacy on the part of the defendant's counsel. This was recognised in R v Ensor [1989] 1 WLR 497, and in R v Wellings [30.12.91] (unreported,) in which Lord Lane, the Chief Justice of England, said:

"The fact that counsel may appear to have made at trial a mistaken decision, or has indeed made a decision which in respect is 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 that this court will be minded to intervene."

19. Clinton, the case relied on by Sir T L Yang in HO Ling, was a kidnapping and indecent assault case, where the appellant's conviction rested almost entirely on the correctness of the complainant's physical description of her assailant, coupled with the appellant's question to the police on being arrested, "Has it anything to do with an attack?" and on the fact that a blue collarless shirt was found in his premises; the complainant had said that her assailant wore a dark collarless shirt. The appellant's physical appearance was markedly different from the description of the assailant given by the complainant.

20. The report indicates that the appellant was unwilling to give evidence, and that his trial counsel did nothing to try and wean him away from his reluctance to testify. It was not determined on appeal what advice had been given to him about testifying. The court said that it "... was not necessary for them to determine that issue."

21. Extracts from the appellant's written application for bail pending appeal appear in the judgement. In it he said:

"We talk about the case and Miss Rachael told me I wouldn't have to go into the witness box if I didn't want to because she could tell that I was a shy person. So I told her about my witnesses and why I didn't really want them there and why they couldn't make it anyway

... I have never been to a trial before. I didn't realise how important my witnesses were and how important it was for me to go into the witness box, and I wasn't told ever [sic]."

22. The court proceeded on the basis that no advice had been given to him about the desirability of his giving evidence in his defence, saying that:

"He should have been advised in the strongest possible terms that it was highly desirable that he should give evidence in order to underline the discrepancies."

- which discrepancies they then identified. Rougier J, after reviewing early authorities, said at page 1187:

"We think that the proper interpretation of the cases to which we have been 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 or 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 the other way, it may well be opened to an appellate court, to set aside the verdict by reason of terms of Section 2(1A) (of the Criminal Appeal Act, 1968)"

23. In Sankar v The State of Trinidad and Tobago, a Privy Council appeal, Lord Woolf in giving the judgement of the Committee, said at page 200:

"In R v Clinton, the court made it clear that it was only in wholly exceptional circumstances that the conduct of counsel could form the basis for an appeal, but in that case, the appeal was allowed because of the failure of counsel in a case where the defendant's evidence was essential to advise the defendant in strong terms to give evidence."

24. Sankar, like Clinton, makes it clear that an appellate court will only interfere in "wholly exceptional circumstances" - and clearly in Clinton, the circumstances were of that nature - and that Clinton does not lay down an inflexible rule that an appellant, who alleges - or even demonstrates - that he was not adequately advised to give evidence on his own behalf, must have his appeal allowed as a matter of law. The guiding principle is: it is only when the defendant's counsel's conduct of the case can be described as "flagrantly incompetent advocacy", and as a result of that the appellant did not have a fair trial, that an appellate court can consider whether to intervene.

25. This was recognised by Patrick CHEUNG J, in R v LEE Wan-keung, MA580/96, (unreported) where he said of Sir T L Yang's judgement in HO Ling, at page 3 of the transcript:

"In my view, there is a danger that what the learned Chief Justice said in that case might be misunderstood to mean in that in every case where a convicted defendant who alleges that he was not adequately advised, would have his appeal allowed as a matter of law. That is clearly not what the learned Chief Justice said or meant at all. Every case has to be considered in the light of all the circumstances, including what happened in the court below and at the end of the day, as counsel for the Crown submitted, the question to be asked must be: Did the appellant have a fair trial in the court below?"

26. It was also recognised by the Court of Appeal in R v LAU Siu-fun, CA194/95, (unreported) where Mortimer J said at page 14 of the transcript:

"We are satisfied with the yardstick that must be borne in mind, when considering an allegation of incompetence on the part of counsel, is whether it can be said to amount to flagrantly incompetent advocacy. The test propounded in Clinton, i.e., was the decision not to call the defendant in defiance of or without proper instructions, or when all the prompting of reason in good sense pointed the other way is, we are satisfied, no more than an approach which may be used when assessing whether there was flagrantly incompetent advocacy.

We have no hesitation in accepting the evidence of Mr LIM, and in holding that he conducted the defence of the applicant in a perfectly proper way. Mr LIM's assessment of the applicant's only real defence on his instructions was to put the Crown to proof was in no way incompetent. Mr LIM did no more than was proper for him to do, which was to advise his client that in his view, it would be better not to give evidence. The decision in that regard was, we are satisfied taken by the applicant himself."

And in R v CHENG Wai-kwong, CA7/96, (unreported,) where Patrick CHAN J said at page 4 of the transcript:

"Counsel for both applicants referred us to a number of authorities, including R v Clinton, and Sankar v The State of Trinidad and Tobago, and R v HO Ling & Another. We are grateful to counsel for identifying the principles set out in those authorities. We accept that these are the correct principles to be applied. However, we note that it is only in wholly exceptional circumstances that the conduct of counsel can form the basis for an appeal. Each case must depend on its own facts."

27. To my mind, Rougier J in using the phrase "strongest possible terms" in Clinton; and Lord Woolf in using the phrase "strong terms" in Sankar, were not laying down a qualitative test of the words to be used by counsel, in the sense that a mild phrase such as "I think it would be best if you gave evidence" is not strong enough, and that more emphatic words are needed. Only that in appropriate cases it must be made clear to the defendant that counsel's advice is that his best interests lie in him giving evidence.

28. What words counsel uses and how he emphasises that advice, will vary from case to case, depending on counsel's individual style and the impression he has of the defendant's personality and ability to understand the advice and the reason for it. It would certainly be good practice for counsel to endorse his brief with a note that such advice has been given and why, and ask the defendant to sign the note to confirm that he has received that advice and understands it.

29. I have carefully considered the arguments advanced by Mr TSE, and the evidence given by the appellant and Mr McGuinniety. It is clear that the appellant was advised to give evidence. He chose not to do so because he feared cross-examination. To be blunt, this is a case where the appellant has no other ground of appeal except to try to put the blame on trial counsel. It is not a case where due to the flagrant incompetence of that counsel, his defence has not been put before the magistrate, giving rise to a doubt that the appellant had a fair trial. Mr McGuinniety has been subjected to an unwarranted attack on his professional competence which should never have been made. This appeal has no merit whatsoever and is dismissed.