R. v. LI WAN KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.580 OF 1996

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J U D G M E N T

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1. The appellant was convicted of criminal intimidation and was fined $8,000. He now appeals against conviction.

2. The prosecution's case was this. PW1 was a decorator and had received an order to decorate a certain unit in the Ko Yee Estate. Apparently, PW1 and the appellant had met in the estate before since both were in the same trade and had worked there. On about 18th November, PW1 met the appellant in the lift lobby. A quarrel ensued between the two. The gist of the quarrel was that the appellant alleged that the work should have been his and that PW1 should not have worked there. According to PW1, the appellant threatened to beat him up outside the estate. A short while later, two men came and asked PW1 to go out and have a talk. PW1 refused. On 20th November, PW1 met the two men and they asked PW1 who was the person that took up the work there. PW1 gave an excuse and left. He then reported the matter to the police. He met the appellant and the others again on 23rd November. He identified the appellant to the police and thereupon the appellant was arrested and charged with the present offence.

3. At the trial before the learned Magistrate, the appellant was represented by counsel. No evidence was given by him or on his behalf. It is fair to point out that at the close of the Crown's case, the prosecution asked the court to amend the charge by changing the date of the alleged offence from 23rd November to "on or about 18th November". No objection was raised. During final submissions, the learned Magistrate pointed out to defence counsel that the inaccuracy in the dates might not affect the evidence of the witness and he could convict on that evidence. Counsel then told the court that he understood the point but indicated that he had made use of the dates to attack PW1's credibility. As it turned out, the learned Magistrate found PW1 to be honest and was sure that he was telling the truth. The Magistrate accepted that PW1 was not good at remembering dates but this had not affected his evidence. Based on the evidence of PW1, the learned Magistrate convicted the appellant.

4. Counsel for the appellant before me conceded that the evidence as it stood was overwhelming and that in the absence of any evidence from the appellant, a conviction would be inevitable. The basis of this appeal was that the appellant had not been positively and strongly advised to testify. The appellant had filed two affirmations saying that at the trial, his counsel and solicitor had told him that he might say something wrong under cross-examination if he went to the witness box. He further said he was advised not to give evidence. He followed that advice. He also alleged that his counsel and solicitor did not explain to him the importance of his testimony in court.

5. Defence counsel in the court below was invited to and did make an affirmation in response. He said that he had advised the appellant of his right to testify or not and the legal consequences of this decision. He also set out five points which were included in his advice.

6. Counsel for the appellant drew my attention to the case of Ho Ling (unreported) Crim. App. No.327 of 1994 in which the learned Chief Justice giving judgment of the court had this to say at p.5 :

" Counsel for the applicants submitted that in this case their evidence was essential. Without giving evidence their convictions were inevitable. There is nothing to show that trial counsel impressed upon these two accused that not to give evidence in this case meant that conviction must necessarily follow."

"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 that case, the Court of Appeal allowed the appeal.

7. In my view, there is a danger that what the learned Chief Justice said in that case might be misunderstood to mean 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. 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 ?

8. In the present case, PW1 alleged that he was threatened by the appellant. The defence as suggested in the cross-examination of this witness was that it was the appellant who had been threatened by PW1. It was a case of two rival decorators wishing to get work in the same estate. In such a case, in my view, the evidence of the appellant would seem to be of great importance. However, it seems from counsel's affidavit that he did not expressly refer to the consequences of not giving evidence although he touched generally upon "the legal consequences of the appellant's decision". He set out five points. In my view, only the third point (item c) would be of some relevance to the present case. He said "in case he did testify or call any witness(es), the Magistrate, in reaching the verdict, would consider the prosecution evidence solely." I am not required to resolve any dispute arising from the affirmations. However, accepting what counsel said in his affidavit, it is clear that the appellant was not explained the importance or significance of his testifying in court and the consequences of the lack of evidence on his part. Furthermore, counsel did not take further instructions after the amendment of the charge as to whether the appellant should give evidence or not.

9. From the record, it seems that the learned Magistrate had expressed on two different occasions what he thought about counsel's conduct and his indications on the assessment of the evidence adduced before the court. Counsel must have over-estimated the effect of his cross-examination of PW1. He might have wrongly assessed the case against the appellant or the importance of the appellant's evidence in a case such as this. However, it is clear that he had not strongly advised that the appellant of the importance of his evidence. In my view, it seems that in some cases, as the Court of Appeal in the Clinton's case said, "an appellant should be advised in the strongest possible terms that it was highly desirable that he should give evidence in order to underline the discrepancies outlined upon." This was in my view such a case here and it was not done.

10. I must say I am most reluctant to open the flood gate to dissatisfied defendants to put the blame on their own counsel. Some degree of trust or confidence must be placed by defendants in their own counsel and lawyers. Otherwise the system simply cannot work. If this type of complaints 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. The Appeal Court would be flooded with such complaints as grounds of appeal. That simply cannot be right.

11. Having said that, however, I think that the important question is whether the appellant in this case had a fair trial or not. In my view, the answer must depend on the circumstances of this case. In this case, I think the appellant's evidence would be important. He should have been advised strongly of the consequences of not giving evidence. He was not. In the circumstances, having looked at the Notes of Proceedings, I am not sure that even if the appellant had given evidence before the learned Magistrate, the conclusion might have been the same. There is a lurking doubt in my mind as to whether the absence of the appellant's evidence would have made a difference. This in my view is one of the rare exceptional cases in which I have to intervene because of what happened in the court below as a result of counsel's advice or conduct. I am not satisfied that he had a fair trial.

12. For this reason, I would allow the appeal, set aside the conviction and the sentence. Counsel for the appellant indicated to me that he would have no objection to a retrial. I think, it is in the present case a very proper and appropriate measure to take. I would order a retrial.