HKSAR v. TONG MIU HING

CACC 344/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 344 OF 2008

(ON APPEAL FROM DCCC NO. 76 OF 2008)

----------------------

----------------------

-----------------------------------------------------

REASONS  FOR  JUDGMENT

----------------------------------------------------

Hon Stock VP (giving the Reasons of the Court):

Introduction

1.  The applicant pleaded not guilty in the District Court before Deputy District Judge Woodcock to two charges:

(1)   that on 7 August 2007 he, with others, unlawfully and maliciously wounded Yip Koon-hung with intent to do him grievous bodily harm; and

(2)   that on the same day he made an unwarranted demand with menaces for $3,927,590.

2.  His trial took place in August 2008 and he was convicted of both charges on 17 September 2008.  In relation to the first offence, wounding with intent, he was sentenced to four years’ imprisonment.  For the second offence, blackmail, he was sentenced to three years’ imprisonment.  The judge ordered one year of the term on Charge 2 to run consecutively to the term imposed on Charge 1, the balance to run concurrently; making a total of five years’ imprisonment.

3.  The applicant sought leave to appeal against conviction and sentence.  On 4 November 2009, we dismissed those applications and said that we would give our reasons later.  This we now do.

The prosecution case

4.  The first prosecution witness was the complainant, Yip; the second, his business associate Cheung.

5.  Both the applicant and Yip ran construction businesses and the applicant’s company did subcontracting work for Yip’s company.  The two men knew each other well.

6.  Yip’s evidence was to the effect that an arrangement was made for the applicant to take him to meet the applicant’s sister who had some garment samples to show.  At about 4 p.m. on 7 August 2007, the two met at a restaurant in Tai Wo.  After a while he went with the applicant in the applicant’s jeep, expecting to be driven to the applicant’s sister.  Yip fell asleep in the vehicle.  When the vehicle stopped, they were in Kam Tin on some vacant land.  Yip was pulled out of the vehicle by five or six people who set about him with poles and torches.  He was hit all over his body and on the head and he fainted.  The applicant was present, did not himself join the beating, but took photographs.  When Yip regained consciousness he was dragged into a small house on the vacant lot.  There the men accused him of “swallowing" the applicant’s money.  He was beaten again.  He was then guarded for about an hour whereafter he was pushed back into the applicant’s vehicle.  The applicant drove.  Several of the assailants were also in the vehicle.  During the journey further assaults took place.  Yip’s head and face were covered in blood.  There was a stop in Kam Tin and then the car was driven on to Yuen Long.  Eventually, after 6 p.m., they reached a car park in Fanling outside a building that housed Yip’s office.

7.  According to the evidence of Cheung, he received a telephone call from the applicant, whom he had known for some years, at about 5:30 p.m. that day.  The applicant told him that two cheques previously drawn in the applicant’s favour had been scribbled over by the applicant’s children and he wanted two replacement cheques.  They arranged to meet at Yip’s office.  Cheung and Yip were co-signatories to cheques issued by Yip’s company.  Cheung met the applicant at about 7:30 p.m. outside the office building.  The applicant was driving his vehicle.  The applicant said that money was owed for some construction works subcontracted to the applicant.  Cheung did not know about it and the applicant presented him with four vouchers purportedly supporting the claim.  The applicant told him to prepare two cheques in payment of the debt, one for $1.03 million and the other for $2.89 million.  Cheung wrote two cheques in those sums but did not sign them because he wished first to contact Yip.  The applicant told Cheung that Yip was in the vehicle.  Cheung saw Yip in the vehicle, bleeding and holding his arm.  The applicant told Yip to sign the cheques.

8.  Yip’s testimony was that he was forced by two men on either side of him in the vehicle to sign the cheques.  They hit his head hard and told him to sign quickly.  After he signed, his wallet, telephone and watch were returned to him.  When he emerged from the vehicle, the applicant told him not to report the matter to the police or he, the applicant, would come and find Yip’s daughters.  The applicant drove away.

9.  Cheung then took Yip to hospital where he was an inpatient for 10 days.

10.  On the morning of 9 August 2007, the applicant presented one of the two cheques, the one for $1.03 million, to the bank but the cheque had been stopped.

The defence case

11.  The defence case was that Yip and Cheung had concocted their evidence to frame the applicant.  It was accepted that Yip had been injured and had perhaps wrongly assumed that the applicant had arranged the beating; but it was denied that the applicant had met Yip that day or had driven him in a vehicle.  The cheque which he had presented on 9 August was a cheque which Cheung had delivered to the applicant that morning in respect of sums owed.  Insofar as the prosecution relied upon the fact that the applicant’s fingerprints were found on one of the vouchers which Cheung said had been shown to him on 7 August and which he, Cheung, had kept, ostensibly to make a copy, the applicant said that on 9 August Cheung had shown him some documents which he, the applicant, then handled and returned.

12.  The applicant’s testimony at trial sought to establish an alibi.  He said that he had been to the Bank of China in Fanling at 4:17 p.m. and he produced at trial a deposit slip with that time on it.  Then he went to Yuen Long where he had met two men, at different places, between 5:30 p.m. and 6 p.m.  He had no idea why Yip would seek falsely to implicate him in these offences.

The judge’s findings

13.  The judge accepted the evidence of the prosecution witnesses and rejected that of the applicant.  She accepted that monies were deposited into the applicant’s bank account at the Bank of China in Fanling on the afternoon of 7 August, but there was nothing on the documentation to indicate who had made the deposit.  She noted, in relation to the allegation of a concocted complaint against the applicant, that it was common ground that Yip had been severely beaten and self-evident that he had been taken to the hospital shortly after his beating.  It was highly improbable that a victim would use such an unexpected event suddenly to blame somebody who had not been present.  The fingerprint evidence was itself damning and the applicant’s explanation of it was not credible.  Records of the timing of telephone calls made by the applicant to Yip and Cheung on 6 and 7 August supported the evidence given by the two prosecution witnesses.

The ground of appeal against conviction

14.  The application for leave to appeal against conviction is an attack on the conduct of counsel and solicitors who acted for the applicant before and at trial.

15.  A notice of alibi was served which contended that the applicant would call at trial two alibi witnesses, Mr Tang and Mr So.  The applicant’s case was that he had met Tang, a business friend, at 5:30 p.m. and had seen So, his employee, at 6 p.m.; which if true would have placed him at some distance from the venues at which the prosecution witnesses had placed him.

16.  No proofs of evidence were taken by the solicitor or his clerk from either witness.  Instead, these two men provided statements to the police on 4 August 2008, shortly before trial and after receipt of the notice of their alibi.  The problem, for the defence, with these statements was that they placed Tang and So at different venues with the applicant at almost the same time.

17.  The allegation now made against counsel and the solicitors is one of negligence or incompetence.  The contention is that the verdict is unsafe and unsatisfactory because those representing the applicant at trial:

(a)   failed to take statements from these two alibi witnesses;

(b)  failed to advise the applicant that the alibi witnesses had to provide statements to the applicant’s legal advisers;

(c)   failed to call these two witnesses at the trial; and

(d)  failed properly to advise the applicant as to the consequences to the defence case if the two witnesses were not called.

The evidence before this Court

18.  This application in relation to conviction was dependent upon issues of fact for the determination of which we had four affirmations and one affidavit before us and heard testimony from five witnesses, lasting several hours.

19.  The applicant said that he had several meetings with counsel and told him that he had not been at the scene of the offences but that it was only in about July 2008 that the solicitor’s clerk asked him if he could find any alibi witnesses.  The applicant asserts that he had not thought about that before but that he then approached Tang and So who remembered seeing him on 7 August 2007.  The applicant said that he gave their names, telephone numbers and addresses to the clerk who told him that he would ask the police to take statements from the two men.  He said that before this he was not aware of the importance of establishing an alibi because he was not familiar with court procedure.  Some days before the start of his trial he saw the witness statements which the two men had given to the police and the clerk pointed out some disparities which he, the applicant, did not think were of any importance.  He always thought that Tang and So would be called to testify.  He was never told what impact upon his defence there would be if they did not.  He heard counsel tell the court at the end of the prosecution case that no witnesses other than the applicant would be called but he thought that this was a reference to no more prosecution witnesses.  Shortly after the applicant had finished giving evidence, counsel had told the court that there would be no other witnesses but had not consulted the applicant before saying that.  There was a short adjournment then but the discussion between counsel, the clerk and the applicant did not touch upon the alibi witnesses.

20.  After the applicant had finished testifying, there was an adjournment from 25 August to 2 September 2008.  This was secured in order to find a cheque which the applicant had presented at HSBC on the day of the offence which, he took the view, would assist his defence.  Even during that adjournment, he did not raise with his legal advisers the fact that the alibi witnesses had not been called because, so he said, he had been told by the solicitor’s clerk that if the cheque was produced he would be acquitted.  But on 2 September 2008, the document was not produced because, as counsel explained in his testimony, counsel took the view that it was not going to assist him.  Even then he did not raise with his legal advisers their failure to call the alibi witnesses.  Indeed, he went so far as to say that he never at any stage discussed the question of his alibi witnesses with his counsel.  

21.  Tang asserted that he was served with a witness summons on 26 July 2008 to attend court on 8 August 2008 to give evidence on behalf of the applicant.  The applicant told him that the solicitors would contact him.  However on about 2 August 2008 the police contacted him requesting him to give a statement regarding the applicant’s suggested alibi.  He went to the police station and provided a statement.  It is dated 4 August 2008 and in it he says that he saw the applicant shortly after 5:30 p.m. on 7 August 2007 in Castle Peak Road when they stopped and talked and then at about 5:40 p.m. that they went to a place at Cheung Chun San Tsuen where they stayed for about ten minutes.  Tang said that he did not attend court in 2008 because the applicant’s solicitors had not contacted him or requested him to testify.

22.  So’s affirmation alleges that he saw the applicant at about 6 p.m. on 7 August 2007 in Po Wai Village.  He too received a summons in July 2008 and he says that he was not contacted by the applicant or by the applicant’s solicitors.  However, he gave a statement to the police at their request.  In that statement he told the police that it was at about 5:45 p.m. that he saw the applicant and that they parted company sometime between 6 p.m. and 6:10 p.m.

23.  In his affidavit, and in oral testimony, counsel told the court that the question of a possible alibi defence was raised on a number of occasions from an early stage of his contact with the applicant.  He said that he told the applicant to arrange for the alibi witnesses to liaise with the solicitors so that proofs of evidence could be taken prior to them going to the police station.  He was anxious that a proof of evidence be taken before the witnesses went to the police station, because he was worried that the police might influence the witnesses to tailor their account in a manner that impacted adversely on his client.  He was subsequently told by those instructing him that the witnesses had decided that they would go directly to the police station to give their statements.

24.  Counsel showed us a diary entry evidencing the fact that he held a conference with the applicant on 1 August 2008 at noon.  We also saw counsel’s contemporaneous notes of the conference which showed that during the conference he noted the names of the alibi witnesses.  Counsel was subsequently supplied with the statements given to the police and he immediately recognized the difficulty presented by their statements.  His recollection of the chronology of events was unclear, but this is not surprising after this passage of time.  He took the view that the statements suggested that the two men had been in different places with the applicant at the same time and if the witnesses were called, their credibility would be undermined and the defence case would be weakened.  He so advised his client.  The applicant himself was unhappy about the statements.  He said that they had let him down.  After he had testified at trial the applicant expressed confidence with his evidence and the question of whether to call the witnesses was discussed.

25.  Quite apart from the difficulty which he discerned with the statements made to the police, counsel took the view that since Tang had eight previous criminal convictions, it would, for that further reason, be unhelpful to call him.  The applicant gave instructions not to call either of the witnesses.  He confirmed those instructions in writing.  We have not seen those instructions because the solicitor’s clerk says he mislaid them.  Counsel suggested that the transcript of the proceedings tends to support what he says.  We see from it that once the applicant had finished testifying counsel asked for five minutes saying “I don’t know if I want to make this application in respect for an adjournment and I just have to cover myself with my client” but we note that he added “There will be no other witnesses.”  The applicant says that the adjournment to which reference was made related to the banking evidence and we see that a short while later an application was made to adjourn the matter for a week so that the defence could obtain the cheque which might show where the applicant had been at a particular time.

26.  Finally, we have the evidence of the solicitor’s clerk, Mr Ng Siu Wah of Messrs S.Y. Chu & Co.  In his affirmation, he says that the applicant told him that because Tang and So lived in the New Territories they were unwilling to travel to the solicitor’s offices to provide a proof and preferred to give witness statements to the police.  In his oral testimony, however, he said that the applicant told him that Tang and So said that they ‘did not know how to come to his office’.  When asked why, therefore, he did not go to them to obtain a proof of evidence, he said that Counsel advised that it might be good or convenient for the witnesses to give a statement ‘in one go’ at the police station.  In his affirmation, he said that Tang and So were outside the court during the trial; whereas in his oral evidence he said that Tang was outside but that So was not.  In any event, the question of calling them was fully discussed with the applicant.  The piece of paper, upon which the instructions not to call the witnesses were confirmed, has been lost. 

Our findings

27.  We reject the version of facts advanced by the applicant.  It is inconceivable that the decision whether to call the alibi witnesses was not the subject of discussion between counsel and the applicant.  The very fact that the alibi notice was drawn twice, once by counsel and subsequently by the solicitors when it was apparent that the first was not drawn in proper form, shows that those advising the applicant were well aware of the applicant’s assertion that Tang and So purported to support his defence and that the advisers were concerned to preserve his position.  The drawing and service of these notices makes no sense in the context of the applicant’s case, the effect of which is that the lawyers were entirely disinterested in evidence which supported his alibi defence.  There is a further factor which runs counter to this picture of indifference which he seeks to paint which is that on 25 August 2008 the trial was adjourned to honour his wish to find banking documentation allegedly supporting the alibi.

28.  The applicant said that he knew of the alibi witnesses for months but had not mentioned them to his lawyers because he thought the case against him was weak.  This is not believable.  This assertion that he was not aware of the importance of establishing an alibi because he was not familiar with court procedure was also not believable.  The fact that he raised no questions with his legal advisers when at four separate stages, he must have been aware that there was no intention to call the alibi witnesses, makes sense only in the context of the testimony given by counsel, namely, that he was advised that they should not be called and that he accepted that advice.  Those four separate stages were: at the end of the prosecution case; after he had finished giving evidence; during the adjournment between 25 August and 2 September; and between the date of final speeches on 2 September and the verdict on 17 September.  He was happy, he said, not to raise the matter because he thought the banking document which he was keen to obtain after the adjournment of 25 August would clinch the case for him.  Yet even then, when he was advised not to produce it, still he did not raise the question of the alibi witnesses. 

29.  There is no reason why counsel would have advised his client or the alibi witnesses that the witnesses should go and give statements to the police rather than provide proofs of evidence to the solicitors.  It makes no sense.  In this regard, as in others, we reject the testimony of the solicitor’s clerk, Ng.  Counsel had made sure that a notice of alibi was drafted in his own hand because the time limit for serving such a notice was expiring and the solicitors had not themselves performed the task.  Counsel asked for an adjournment on 25 August because the client was anxious to secure documentation that would support his alibi.  It is clear to us that counsel fought strenuously on the applicant’s behalf and his explanation as to why he wanted the solicitors to take proofs of evidence rather than leave the police to take witness statements first, rang true.  His conduct of the case sits ill with the applicant’s contention of laziness and total disregard for his interests.  Nor was there any reason for counsel to invent the suggestion that he had obtained written approval from the client for the course proposed in relation to the alibi witnesses.

30.  We were satisfied that, despite understandable failures of recollection as to chronology and some detail, the account given to us by counsel was in its essence true.

31.  The same cannot, regrettably, be said for the testimony of the solicitor’s clerk, Mr Ng.  We were singularly unimpressed with his evidence and equally unimpressed with his approach to his paralegal responsibilities.  In the course of all his contacts with the applicant, he made not a single note of the instructions he had been given and he failed as well to observe the advice given by counsel to obtain proofs of evidence.  In our judgment, he was prepared in the course of his oral testimony to say whatever it was that came into his head. 

32.  However Tang confirmed that had a proof been taken from him, he would have said exactly the same and in particular no-one suggests that the details provided by the witnesses to the police had been manipulated by the police or were inaccurate.  That being the case, the fact that proofs were not taken does not impact on the fairness of the applicant’s trial.

33.  In the event, the statements given by the witnesses to the police were unhelpful to the defence of alibi and counsel’s advice that the witnesses should not be called and that Tang was in any event likely to be viewed as an unreliable witness, was sound advice which, we find, the applicant readily accepted.

34.  Insofar as it has been suggested that counsel was remiss in not advising his client not to call the alibi witnesses, his assessment that they were more likely to do harm than good was well within the range of judgement permissible to counsel.  Mr Blanchflower also suggested that counsel should have told the applicant that there were advantages in calling the witnesses and that such awkwardness as was presented in their statements by reason of the times at which they said they had been in the applicant’s company, might be explained by the unreliability of time estimates.  We do not agree.  What was called for in this case was common sense advice.  There was no legal complexity in the case.  What was at stake was a question of fact which must have been readily apparent to the applicant and he must have been fully aware of the pros and cons of calling these two witnesses.  Counsel gave advice, which cannot be said to be at all negligent, the client agreed to it, and the point taken by Mr Blanchflower fails.

35.  For these reasons, the application for leave to appeal against conviction was dismissed.

Sentence

36.  In relation to sentence, the judge found that the applicant felt aggrieved about some monetary matter and arranged, under false pretences, for Yip to meet him.  The attack upon him was planned, as evidenced by the fact that when he and Yip arrived at the vacant lot, there were several men waiting.  After a beating with poles and torches, Yip was held captive in the vehicle and driven around and the applicant then arranged the meeting with Cheung outside Yip’s office and there the blackmail took place.

37.  The medical reports show that on admission to hospital Yip had multiple bruises over his face, neck, back, left shoulder, left elbow, left side, left knee and left pinna.  There was a fracture of his right forearm and a 2 cm deep laceration over his left shin.  The fracture was treated with open reduction and internal fixation.  He was discharged on 16 August 2007 and there was outpatient follow up.  He required sick leave until 30 August 2007.  It is not yet possible to determine whether there will be any permanent disability.

38.  The applicant was aged 42 years at the date of the offence and was a person of no previous criminal convictions.  The judge had the advantage of a probation officer’s report which was favourable although the applicant continued to deny the offence.  The applicant was revealed as a hard-working family man, well regarded by his employees and the probation officer concluded that the commission of the present offences was out of character.

39.  The judge took starting points of four years’ and three years’ imprisonment, respectively, for the wounding with intent and blackmail offences.  There was she said no basis for reducing those starting points and those are the terms that she imposed and ordered one year in relation to the blackmail offence to run consecutively to the term imposed for the first offence, the remainder to run concurrently, making a total of five years’ imprisonment.

40.  Mr Blanchflower asserted that the judge failed to recognize mitigating factors such as the applicant’s previous clear record and his personal history.  He said, secondly, that in passing sentence the judge took into account an irrelevant matter, namely, that in her Reasons for Verdict, she had said that as part of the blackmail “there was a verbal threat to harm his daughters if the police report was made.”  Mr Blanchflower’s complaint was that the prosecution had not put this threat as part of the blackmail offence but, rather, as a threat made after the cheques had already been signed.  He then submitted that the sentence of three years’ imprisonment for the blackmail offence was manifestly excessive because “the blackmail offence occurred in the car when [Yip] was hit on the head and the threat to induce him to sign the cheques quickly.  The implication being that if he didn’t sign the cheque he would be detained or assaulted further.  This was clearly a spontaneous assault.”  Finally he contended that it was wrong in principle for the judge to order part of the sentence for the blackmail offence to run consecutively to the sentence imposed for the offence of wounding with intent since the blackmail offence was, he said, directly related to the wounding offence and arose out of the same set of facts.

41.  In our judgment, the starting point adopted by the trial judge was markedly low.  This offence was planned and a gang of men was engaged to attack a person whom the applicant had lured to the place of the assaults.  Weapons were used, though they were blunt instruments.  Widespread injuries were caused including a fracture that required hospitalisation for 10 days.  The victim was detained and driven around before he was taken to his office for the purpose of the blackmail.

42.  No complaint could possibly have been made had the judge adopted a starting point of at least five years’ imprisonment for the first offence, though it would have been appropriate for the court to have some regard in mitigation to the applicant’s good character which in this case went beyond the mere absence of previous convictions; such that the probation officer was able to say that this man in his mid-40s had done something quite out of character.  In these circumstances, although we considered the sentence to be on the low side, we were prepared not to interfere with the sentence by an upward adjustment.  But, certainly, there was no merit in the suggestion that the sentence on the first charge was manifestly excessive.

43.  As for the sentence imposed in relation to the blackmail offence it matters not for sentencing purposes whether the judge was correct in assuming that the threat to the victim’s daughters was part of the blackmail itself, because it was clearly a relevant matter to take into account for the purpose of sentence.  It was a particularly ugly act and accompanied the offence itself.  We did not agree that the judge was wrong to order part of the sentence to run consecutively.  The blackmail was conduct that occurred hours after the original beating and was the second stage of the applicant’s plan.  There is no merit in the suggestion that the sentence itself, that of three years’ imprisonment, was manifestly excessive.  The suggestion that the assault was spontaneous, a mere slap about the head, entirely ignored context.  The men in that vehicle had recently severely beaten Yip, accompanied him in the vehicle as his captors and bullies and were self-evidently ready to beat him further as and when occasion, in their eyes, demanded.

44.  For these reasons, the application for leave to appeal against sentence was also dismissed.

45.  Having dismissed the applications, we notified counsel that we had it in mind to exercise our powers under section 83W of the Criminal Procedure Ordinance, Cap. 221 to order that part of the period in custody pending the hearing of these applications was not to count towards the sentence imposed upon the applicant.  What triggered that consideration was the applicant’s preparedness to tell a false story to secure success on the application for leave to appeal against conviction.  On the other hand, the conduct of the solicitor’s clerk both in his entirely idle approach to his duties and in the unsatisfactory nature of his evidence, have persuaded us that the course we had in mind would not be an appropriate one to take.