HKSAR v. LAM WING LIT AND ANOTHER

HCMA976/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.976 OF 2002

(ON APPEAL FROM NKCC5234 OF 2002)

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J U D G M E N T

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1. The two appellants in this case were convicted after trial of a single joint charge of wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap.212. The 1st appellant was sentenced to three months' imprisonment and the 2nd to six months. They both appeal against conviction.

2. The evidence was straightforward. Mr Chan Kwok Kuen (PW1) and the 1st appellant have been neighbours for a number of years and it would appear that there is a history of bad blood between them. The 2nd appellant is a nephew of the 1st appellant.

3. In the early evening of 9 May 2002, PW1 was standing, he said, at his front door when the two appellants rushed towards him. He said that the 1st appellant lifted a concrete flower pot and threw it at him, hitting his hand and his forehead. The 2nd appellant meanwhile, armed with a spade, aimed a blow at PW1, breaking two of his fingers. PW1 retreated into his flat and called the police. He had offered no violence himself, he said, nor had he fought with his two attackers. Police officers arrived at the scene and arrested the two appellants, and questioned them about the incident. They told the officers that it was in fact PW1 who picked up and threw the flower pot rather than the 1st appellant. The 2nd appellant told the officers that PW1 and the 1st appellant were quarrelling and that he picked up the spade and used it to threaten PW1 in an attempt to break up the quarrel. Neither appellant gave evidence and the magistrate accepted that the incident had happened as PW1 had described. The statements made by the two appellants demonstrated that they were involved but the magistrate did not accept their accounts of what happened as they had related in their statements.

4. As the evidence stood there was nothing to contradict what PW1 had told the magistrate who found the witness to be honest and believable. In such circumstances, it is hardly surprising that he convicted the two appellants.

5. Both appellants were represented by counsel at the trial, and they appear before me today with a different solicitor and counsel. One ground of appeal was advanced and it was divided into five sections as follows : The appellants were deprived of a fair trial due to their learned counsel's failure to :

(a) properly advise the appellants of the strength of the prosecution's case and that the appellants would be convicted if they did not give evidence;

(b) advise the appellants in strong terms to give evidence when the appellants had a good defence;

(c) advise the appellants that there would be no evidence to rebut the prosecution's evidence if the appellants did not give evidence;

(d) appreciate that there was no defence case when learned counsel submitted in his final address that there was a defence case; and

(e) properly advise the appellants of the medical evidence the appellants had made available to learned counsel and to call medical evidence to discredit PW1's evidence : to prove the 1st appellant could not have raised the flower pot above his head to bring it down on the head of the 6'3" PW1 and to prove that the 2nd appellant could not have sustained multiple scratches and abrasions had PW1 not assaulted the 2nd appellant.

6. Both appellants now say by affidavit that they had wanted to give evidence but that counsel on the day repeatedly told them not to and that they were in any event sure to be acquitted. That advice was wrong, they now say, and defending counsel failed to advise them properly.

7. Whilst the failing of counsel may lead to a conclusion that a conviction is unsafe, (see, for example : R.v. Li Wan Keung [1996] 4 HKC 546 and R.v. Ho Ling & Anor [1996] 1 HKC 733), it is nevertheless rare that an appellate court will interfere with a conviction where the appeal is based on the way the trial has been conducted. The Court of Appeal in the United Kingdom had to deal with this in R.v. Clinton [1993] 1 WLR 1181 and commented as follows :

"...where counsel had made decisions in good faith after proper consideration of 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 open to an appellant court to set aside the verdict..."

In Sanker v. State of Trinidad and Tobago [1995] 1 WLR 194, the Privy Council confirmed that :

"... it was only in wholly exceptional circumstances that the conduct of counsel could form the basis of an appeal, ..."

8. The guiding principle is that it is only when defence counsel's conduct of a case can be described as flagrantly incompetent and that as a result the appellant has been deprived of a fair trial that an appeal court may feel it appropriate to intervene (see R.v. Lau Siu Fun (unreported), CA194/95).

9. Was counsel at the trial of this case flagrantly incompetent in his advice to the two appellants? I must confess that I have some difficulty in deciding this point. Trial counsel has not given evidence before me nor has he filed an affidavit. What I do have is a letter to him from the present instructing solicitors asking for his comments on allegations from the two appellants that he had advised them both not to give evidence, and I have seen his handwritten reply which stated shortly as follows :

"(1) My advice to both of them during the trial was that they had the right to give or not to give evidence regarding their evidence.

(2) It's D2 who advised D1 not to give evidence.

(3) It was D2 who decided not to give evidence himself."

10. This, as I have indicated, is not the appellants' recollection of the events but it would be wrong without more for me to conclude what counsel's advice was or that what he said was wrong. I simply do not, today, have sufficient information to make an informed judgment on the matter, nor should I, without giving counsel the opportunity to file an affidavit or appear before me to offer his position. Clearly, what I should do now is adjourn this hearing and offer counsel a chance to file his affidavit or offer oral evidence. But what concerns me about that is the delay which would inevitably ensue and the effect that would have on the two appellants, both of whom have today appeared in custody. I am mindful that above all else, I should seek to do what is just and, in the circumstances of this case, it seems to me that a delay is not appropriate.

11. There are in fact two arguments advanced by the appellants. The first relates to their not giving evidence at their trial, but the second is entirely separate, and it relates to their own medical reports obtained since the trial. The evidence of PW1 was to the effect that the 1st appellant lifted a concrete flower pot up above his head and threw it downwards at him, hitting him on his head and his hand. The flower pot was sizeable, 12" or 15" square and PW1 is, on his own evidence, 6'3" tall. The 1st appellant is aged 81. He has produced to me today a medical report prepared by a Dr John Chiu on 4 October 2002 which was after the trial date. The doctor has been attending the 1st appellant since 1990 for a variety of complaints. His report reveals an unusual and significant matter :

"... both his shoulder joints are abnormal in that humeral bones are jugging [sic] above the joints and [such] that he is limited to move his hands above his ears. This condition could be congenital - requiring a specialist to confirm."

12. This report puts the picture of a 81-year-old man lifting a flower pot above his head and throwing it at a taller man into some perspective, and had it been available at the trial it might very well have influenced the magistrate's view of the matter.

13. Turning to the 2nd appellant. PW1's allegation against him was that the 2nd appellant jabbed the spade at him twice, breaking two fingers and that he then retreated inside his flat and locked the door. He denied that he struggled with the 2nd appellant and he denied that they had fallen onto the ground. The 2nd appellant has produced to me a medical report today, prepared by the Accident and Emergency Department of North District Hospital. It is dated 21 October 2002 again, after the trial and it confirms that in the earlier hours of 10 May, the morning after the incident, he was examined by medical staff. Among other things, the hospital recorded :

"Multiple scratch marks at the back, abrasions over right elbow and left knee tenderness over right knee."

Injuries quite possibly caused by a man struggling with another on the floor, the scenario which PW1 had denied.

14. Once again, I have to say that had this report been available to the trial magistrate he might very well had reached a different conclusion. I am required by section 119(d) of the Magistrate's Ordinance to make such order as I think just. I am concerned that the medical evidence which has been exhibited to me could well have had a significant effect on the outcome of the trial. Had the trial magistrate seen it, I doubt very much that he would have made the findings he did.

15. Justice requires that this conviction be set aside and the appeal will be allowed.

16. Given the nature of this appeal and the unresolved allegations of incompetence, I should perhaps restate that my decision is made not because of the earlier conduct of the trial but because of the medical evidence now produced to me. I have considered whether or not to order a retrial. The 1st appellant is 81, both appellants have been in custody since their trial and have effectively served a three months' sentence, no purpose would be served by a retrial and there will be none.