HKSAR v. WAN HO MAN

CACC 155/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 155 OF 2000

(ON APPEAL FROM DCCC 31/2000)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction. On 6 March 2001 we heard the application and decided that leave to appeal should be granted; treated the hearing of the application as the hearing of the appeal; and we allowed the appeal. We said then that we would give our reasons, and this we now do.

2. The applicant was the 4th defendant in a District Court trial, charged with robbery. It was alleged that on 26 November 1999, he and three other defendants robbed a taxi driver of the sum of $800 at Sai Cheung Street in Western. The other three defendants pleaded guilty. This applicant pleaded not guilty, but was convicted after trial.

3. The sole ground of appeal is that the applicant's counsel failed to follow certain clear and material instructions given by the applicant and that, accordingly, the conduct of the defence was such as to require the quashing of the conviction.

The evidence

4. The facts of the case, as presented by the prosecution evidence, were not complex. The only oral evidence for the prosecution at trial was that of the taxi driver. He said that the four men in question hailed him at about 1.45 a.m., the early morning of 26 November, and they boarded the taxi. It is common ground that D3 sat next to the driver in the front of the vehicle; that D2 sat immediately behind the driver; that D1 sat in the middle at the back; and that the applicant sat at the back by the nearside door. The driver was asked to go to a park in Western District. He drove, and in the course of the journey this applicant asked him to drive more slowly and he did so. Eventually he stopped as directed at a road side in Sai Cheung Street, and he turned on the light inside the vehicle and stopped the meter. Then D2 pointed a knife at his neck, clutching a shoulder at the same time and said: "You know what's going on." He was told to take out his money, and the driver then passed money to D3. He was then asked if he had money in his pocket and in his wallet, and he said that he did not, and he was asked whether he had watches or a necklace and, again, he said he did not. Then, according to this evidence, all the defendants, except D1, left the vehicle, and D1 then struck the driver several times with a pipe. The men went to the rear of the taxi, and the driver did not see what they did when they were in that vicinity. He saw, however, that they had alighted together. He accepted that the applicant said nothing to him at the time of the robbery, and that he and the applicant had no physical contact with each other; nor did the applicant produce any weapon.

5. The applicant gave evidence at trial. He admitted that he was in the taxi at the very outset of the robbery, but his defence was that this was a robbery that took place without any prior consultation with him and that he was not a party to it. It came as a complete surprise. He had slept the night at the premises of his friend, D3, and he and D3 had met up with the other two; and the plan was to go to a discotheque. At about 1.15 on the morning in question D1 arrived at a restaurant where the others had eaten, and he suggested that they go to fetch some girls whom he had arranged to meet; and for that purpose they hailed this taxi. D1 told the taxi driver to go to a park in the Western District, and when the driver arrived at the allocated destination, D1 took out a pair of water pliers, that is, the pipe. He, the applicant, had no prior knowledge of any of this, and what happened scared him, so he alighted. On the other side of the road, there happened to be a minibus which he boarded, and after 30 to 45 seconds the other three boarded as well, and the minibus drove off but was soon after intercepted by the police who had been called by the taxi driver. The applicant had not seen the knife produced and indeed, he said, in cross-examination, that he had already alighted the taxi at that point. He asserted that he did not get out of that taxi at about the same time as the others.

The judge's findings

6. The reasons for verdict are succinct, and summarise accurately the evidence given by the driver and by the applicant. In the light of the ground of this appeal, the following comment and findings by the trial judge are of particular significance:

"It is the clear evidence of PW1 that all four accused were in the vehicle at the time when his shoulder was pressed, the knife placed at his throat and he handed over the money to the accused sitting in the front seat. It was not put to PW1 that when this happened the Fourth Accused had already left the vehicle; it was merely suggested that the Fourth Accused had been the first to alight."

7. The judge referred to the evidence of the driver that all four had left at about at the same time, disputing the suggestion that the applicant left first; and then he went on to note that:

"... it is a fact formally admitted by the Fourth Accused that a civilian witness who subsequently made a report to the police at the scene 'had seen four males, later identified as D1/D4, running from Sai Cheung Street and boarding a public light bus...'."

8. The judge noted that the applicant accepted, indeed asserted, that he had all times been with D3, from the time he awoke at D3's home that evening until they all entered the taxi. He said that the applicant's assertion that he was unaware of the intention to commit the robbery was, in the circumstances, nonsensical. He went on to say that:

"It bears repeating that at no stage was it suggested that at the time the robbery was carried out the Fourth Accused had already absented himself from the vehicle. Yet the Fourth Accused testified that he had alighted the taxi and then got on to the public light bus where he had sat for some 30 to 45 seconds before the other three accused similarly boarded the bus. He was clearly seeking to create the impression that he had absented himself from the taxi for some substantial period during which the robbery could have been carried out. This portion of his evidence also directly contradicts the admitted facts.

I do not believe the Fourth Accused. He was a far from convincing witness. His evidence is contrived and completely at variance with what was put on his behalf on the most basic and vital issue and with his admissions. I particularly reject his contention that he was not present in the taxi when the robbery occurred. I find as a fact that he was so present."

9. Given that finding and the circumstances as a whole, the judge took the view that there was an irresistible inference to be drawn, which was that the applicant was party to a joint venture to rob the taxi driver. Accordingly, he convicted him, and sentenced him to four years' imprisonment.

10. It is clear, therefore, that amongst the matters which heavily influenced the judge's findings were:

(1) the fact that the applicant suggested in evidence that he was not present when the knife was produced, whereas this was never put to the driver in cross-examination; and

(2) the fact that the applicant suggested in evidence that he had fled some time before the others left the taxi, whereas this directly contradicted the admission in the admitted facts which suggested otherwise, in that the statement of admitted facts said that "PW4 had seen four males identified as D1-D4 running from Sai Cheung Street and boarding a public light bus;" and that at the identification parade on 1 December 1999 the driver "also identified D4 as being a person present in the taxi at the time of the robbery."

The complaint

11. The applicant says that the failure to put these matters to the driver and the admission of these facts, which ran contrary to his testimony, was the fault of counsel, for he, the applicant, had made it amply clear to counsel in the instructions which he had given that he was not present in the taxi when the knife was produced and when demands for money were made; and indeed he only saw the pipe being produced and then immediately alighted, and, most particularly, he had made it clear in those instructions that he had left the taxi some time before the other three - about 30 to 45 seconds before - so that there could be no question of him being seen running away together with the other three.

12. It cannot, we think, be gainsaid that it was not suggested in cross-examination that the applicant had alighted before the knife was produced and before money was demanded; and it cannot be gainsaid that the statement of admitted facts suggested that the applicant ran away together with the other three defendants. Not only did the admitted statement of facts accept that the four men ran away together, but the acceptance of that evidence was present in the way cross-examination was conducted on the applicant's behalf. The following exchange in cross-examination is relevant:

"Q. When the first act of robbery took place, did you notice the demeanour of this defendant? Did he look shocked?

A. During the robbery I could not move because I was pressed by somebody and somebody pointed at my neck.

Q. So you couldn't see.

A. It's impossible for me to look at each person.

Q. Is it the case that for the four doors of your taxi, the nearside rear door was the first one to open? Can you remember that?

A. When?

Q. After the robbery.

A. Are you asking which door was the first one to be opened when they fled?

Q. Yes. Do you know?

A. About the same time.

Q. And this person was the first one to leave the taxi, do you know that?

A. No."

(Emphasis added)

13. If in fact the defendant had given instructions to counsel that he had left the taxi before the knife was produced and money demands made, and that he had left the taxi some 30 to 45 seconds before the others did, then the failure to run the defence along those lines, and the fact that a formal admission was made that all four defendants ran away together in a pack from the taxi to the bus, are features which are bound to leave this court with considerable unease, not least because the evidence given by the applicant at trial accorded with those instructions, and the failure to put the case along those lines, and the formal admission that the applicant had left with the others were highly material, it so transpires, to the judge's conclusion, and to the view which the judge formed as to the credibility of the defence put forward by the applicant in his testimony. Mr Law, for the respondent in this application conceded - although it was a concession made, we are bound to say, with surprising reluctance - that if counsel had acted contrary to his instructions, then this appeal was bound to succeed.

The applicant's case

14. The case was transferred to the District Court on 17 January 2000. The applicant appeared on a number of occasions before the magistrate prior to the transfer, and before that order for transfer he was represented by a solicitor, Mr Raymond Lam, who instructed counsel, a Mr Y.C. Yeung. It seems clear that on a number of occasions Mr Yeung, at the magistracy stage, conferred with the applicant. After transfer to the District Court, the applicant applied for legal aid and that was granted in February 2000, and Mr Yeung was assigned, as was a solicitor, Mr Kenneth Ng.

15. We have an affirmation from the applicant, and we have also heard his testimony in the course of this application. His case is that he had originally written his story on a piece of paper taken from a book issued by the prison authorities, but was told by counsel that it was not sufficiently detailed and that he should provide a more detailed account. He did so, and he says that on 31 January he gave to his solicitor, then still Mr Lam, a two page note, for onward transmission to Mr Yeung.

16. We have a copy of a manuscript proof (and its translation) undated but signed by the applicant, which the applicant says is the written statement which he provided on 31 January. We shall refer to this by an exhibit number, namely "LLS1". The copy which we have has been in the possession of the Director of Legal Aid. In its material part it reads as follows:

"... When the taxi reached the destination, D1 suddenly took out a pipe wrench. I smelt something wrong and was scared. I got out of the taxi immediately and went across the road. On the opposite side of the road, there happened to be a Causeway Bay-bound minibus. I boarded the minibus and took the single seat on the third row on the left. At that time, except the driver, there was nobody on the minibus. The driver was still waiting for passengers to board. 30 to 45 seconds later, D2, D3 and D1 boarded the minibus respectively."

17. LLS1 is the written instruction, says the applicant, which he gave to his solicitor on 31 January and which constitutes the last written account which he provided. He also says that he saw it in the possession of counsel on the first day of trial, namely, 28 March 2000. He says that he has never changed that account. He asserts that it has always been his case, as recounted to counsel, that he was not present when the knife was produced and that he did not run away with the others, and that there was this significant time gap between his arrival at the bus and the arrival of the others. This proof is, he says, the only detailed one supplied and has never been amended.

18. As for the admitted facts, it is true, he says, that they were explained to him by counsel, but he asserts that counsel told him that they posed no problem, the inference being that he should admit them. Accordingly, he did not pay to them the attention he might otherwise have paid and he did not notice the variation between them and his instructions. Indeed, Mr Kwok for the applicant points out that immediately after the admission of facts, the applicant went into the witness box and gave his evidence which was very much along the lines of the written statement, LLS1, which we have seen.

19. Then we have an affirmation from Mr Kenneth Ng. He first saw the applicant on 9 March 2000. The attendance note he then made bears the comment that the applicant was not involved in the robbery and that upon seeing D1 take out a weapon, the applicant left the taxi. It is common ground that the weapon taken out by D1 was the pipe and not the knife. Mr Ng goes on to say - and an affirmation of his clerk confirms - that on 22 March his clerk attended the applicant for a conference with counsel and an attendance note was made by the clerk which is also exhibited. It is consistent with the instruction originally given in LLS1, and shows the applicant as saying that when the party arrived at Western District the D1 suddenly took out water pliers and that "D4 feared, left taxi got on a van .... just driver inside. Later D1 to D3 got on van." The note ends with the words: "D4 confirmed the written instructions given previously to counsel - same for present case (i.e. same defence)." As far as Mr Ng is concerned, the applicant did not subsequently provide any fresh instructions to his firm.

20. The clerk, Mr Mak Tuen Yin, also says that he was told by Mr Ng that the Legal Aid Department had enclosed a two page written instruction from the client. We note that in a letter dated 23 August 2000 from Mr Ng's firm to the Director of Legal Aid in relation to this application for leave to appeal, the solicitors says that "in the course of interviewing [the applicant] [the applicant] confirmed his written instructions previously given to Mr Yeung again for the purpose of the District Court trial which was the same as per copy enclosed under cover of your letter to us dated 15 August." That is a reference to LLS1.

21. We have, further, an affirmation provided by Mr Leung Lin Shing, Legal Aid Counsel, who says that on 18 June 2000 he checked the trial bundles returned from assigned counsel and assigned solicitors, and found the handwritten instructions in original form (again LLS1).

22. On the evidence thus far recited, it seems clear enough that LLS1 represents the instructions maintained by the applicant throughout.

The burden

23. The burden of showing that counsel has acted directly contrary to instructions on cardinal matters such that in the circumstances of the case the conviction cannot stand, is a burden which rests upon an applicant for leave to appeal. We do not think that this is a case in respect of which we need rehearse the principles further than that for, on the facts of this particular case, given most specifically the approach of the judge and the central role that the evidence given by the applicant took in the trial, were we satisfied, on a balance of probabilities, that counsel indeed failed to put the essence of the applicant's instructions on the material matters which affected the judge's view of the case, and that he caused material facts to be admitted which ran counter to the applicant's defence, it must follow that the conviction must be quashed.

Counsel's evidence

24. We have in this case had the testimony not only of the applicant, but also of Mr Yeung. That testimony took the form of an affirmation, and also of oral evidence. His account and that of the applicant are significantly different. In essence, it is Mr Yeung's assertion that there was no question of not following the applicant's instructions; that the way he put the case to the witness for the prosecution, and the facts as admitted, were perfectly consistent with the applicant's instructions to him. He asserts that the written instructions, which are LLS1, do not constitute the last account of the applicant. He says that the applicant's account changed significantly by the time of the trial.

25. In his affirmation, Mr Yeung, who emphasizes that much time has passed since he acted in this case (so we recognise that memory must of necessity be subject to error), says that LLS1 was but part only of a booklet that was passed to him by Mr Raymond Lam who instructed him at the bail stage. He says that on 17 January 2000 he returned the booklet to the applicant "for him to rewrite his case for future use because a lot of discussions resulting in amendments and fine tuning had been done up to that stage." Then, he says, that although the applicant did at first mention a preliminary defence of withdrawal before the robbery took place "the defence was discarded before the case was transferred to the District Court." He says that the applicant "fine tuned" his case in line with the decided defence and approach. It was, he contends, accepted that the defence should be run so as to reduce to a minimum the apparent disparity between prosecution and defence cases. So, for example, as to the production of the knife, he says the applicant had told him that he was looking out for the girls which is why he probably did not see the production of the knife. There was, therefore, no point in challenging the prosecution case that the knife was produced first. According to this affirmation, the applicant had never told him that he was not present when the knife was produced; and had never told him that he ran away before the others, and that there was a 30 to 45 second gap in the boarding times.

26. As for the admitted facts, counsel disputes the applicant's version. He says that as a result of conferring with his client a number of amendments to the proposed admitted facts were necessary and were made. The final version contained exactly that which the applicant wanted or was prepared to admit.

27. In his oral evidence, Mr Yeung repeated his assertion that LLS1 was not the last set of written instructions provided by the applicant. There were subsequent oral discussions between counsel and client, and the client was asked to rewrite his story mainly as an aide memoire to himself, the client. There was in due course a latest version in writing, but it is one which the client retained. Mr Yeung does not know what became of it. Nonetheless, it was one which, he assumed, accorded with the latest story agreed upon. We say "agreed upon", because in his oral evidence Mr Yeung accepted that LLS1 represents in essence what had been the original defence. He accepts that the applicant's original defence was that the applicant had withdrawn before any act of robbery of any kind had occurred, and that he had arrived at the bus about 30 to 45 seconds before the others reached it. Why then did it change? According to Mr Yeung, it appeared to him that it was a defence which the court was very unlikely to accept. It meant suggesting that three witnesses were faulty in their recollection: the taxi driver who said that the knife was produced before the pipe was produced; the PLB driver who said that all four hailed his bus; and a civilian witness who had said that he saw four men fleeing. "My advice," he told us, "was that if he (the applicant) adopted this course he would look at 6 to 7 years but that if he did not challenge the prosecution case he might get some sympathy." According to this account, the client agreed and promised to write down what he and counsel had discussed and to write down "that which would be more consistent with our agreed course."

Analysis

28. If this indeed is what occurred, then it provides one with cause for very considerable concern for it carries the hallmarks of a defence tailored at the suggestion of counsel. It is in the event unnecessary for us to say more about it than that because we find, on a balance of probabilities, that that is not what occurred. We find that whatever misgivings counsel had in his mind about the nature of the account given by his client and that, although counsel may very well himself have decided that it was tactically preferable to tread warily in challenging the evidence of prosecution witnesses, the applicant did not himself ever change his story, or the instructions, given to counsel. We are satisfied that LLS1 represents the latest written instructions given by the applicant to his legal advisers and was the account current at the time of trial. Amongst the factors that have driven us to that conclusion are these:

1. LLS1 is the very proof that was returned to the Legal Aid Department after conclusion of the trial. None other was returned. There is no evidence that the Legal Aid Department or the solicitors acting for the applicant ever received any other document; certainly not after the start of the trial. It is likely, in the normal course of events, that a proof will be returned after trial by counsel to his solicitors who would then forward it to the Legal Aid Department. Mr Yeung says that he did not have this proof in front of him at trial. The question which then arose was what proof did he have before him, and he seems to suggest that he had none. If that is accurate that, too, would be gravely disturbing. Counsel cannot possibly properly conduct a case without a proof of his client's evidence; but we think that in this case it is more probable than not that Mr Yeung had LLS1 before him as his proof.

2. The attendance note made on 22 March, only a few days before trial, is consistent with LLS1 and not with the "new defence" which Mr Yeung says was put forward. So is the attendance note dated 9 March. It is most unlikely that the applicant changed his story between 22 March and 28 March.

3. The evidence given by the applicant at trial was consistent with LLS1, and with the essence of the case noted in the two attendance notes we have mentioned. It would be odd indeed if the applicant decided, without warning, to give testimony contrary to an agreed changed course, and in accordance with a story the dire consequences of which counsel had stressed, as is suggested by Mr Yeung. We note that the evidence given by the applicant contradicted the admitted facts read to and agreed by the applicant, but that does not steer us from the conclusion which we have reached. Those admitted facts ran quite contrary to the testimony which, moments later, the applicant gave; and which testimony accords with every single written instruction we have seen and which, so far as the evidence suggests, exists. It must follow, we think, that the applicant did not appreciate the significance of that which he was admitting and that indeed, as he suggests, he was relying on the advice of counsel.

4. We note that Mr Yeung has exhibited to his affirmation an attendance note made by himself in which he had taken care not only to note the fact that his client decided to abandon allegations against the police, but took care to ensure that the client said so in his own handwriting. Had the client himself agreed to change his story about the robbery as fundamentally as Mr Yeung has suggested, we would have expected him to make a record of that, and ensure that the client put it in writing. There is no such record.

Conclusion

29. In short, we find that the way the case was conducted by counsel for the applicant was on a basis quite at variance with significant aspects of the account which the applicant had provided to counsel and had maintained. Counsel permitted the court to assume, through his cross-examination, that it was his client's case that he withdrew from the criminal enterprise only at a late stage of the robbery, and permitted the court, through cross-examination and through admissions, to assume that the applicant accepted that he had run away with the other defendants. Once the applicant gave evidence which appeared to resile from the case as run by counsel, the judge, not at all surprisingly, took a dim view of that evidence; and, what is more, he not surprisingly took the view that if the applicant ran away with the other three, that was a most telling sign of guilt. We did not, in these circumstances, see how this conviction could survive. Accordingly, we gave leave to the applicant to appeal and allowed the appeal, setting aside the conviction. Having heard arguments from counsel, we decided that there were cogent reasons for ordering a re-trial, and we made an order accordingly.