R. v. HO LING and Another

IN THE COURT OF APPEAL

1994, No. 327
(Criminal)

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J U D G M E N T

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Yang, C.J.:

1. This is the judgment of the Court.

2. The two applicants, Ho Ling and Su Hui Fong, sought leave to appeal against their convictions. The 1st applicant was convicted after trial of thirteen charges of obtaining property by deception and nine charges of attempting to obtain property by deception. The 2nd applicant was convicted after trial of fourteen different charges of attempting to obtain property by deception.

3. The learned trial judge sitting in the District Court noted in his Reasons for Verdict that the two accused elected not to give evidence or to call witnesses, and a good deal of evidence was agreed between the parties.

4. The real thrust of the appeal was that the convictions were unsafe and unsatisfactory because of a failure by counsel to give proper advice to the applicants, as a result of which their real defence was never before the court.

5. For reasons which we are about to give in this judgment we allowed the application, and treating the application as hearing of the appeal, we allowed the appeal on that point. The convictions are quashed and sentences set aside.

6. The real issue was whether on counsel's own account he failed to give proper and adequate advice to the applicants as to whether they should give evidence in their own defence.

7. For the purpose of the application we admitted into evidence an affirmation of trial counsel, the relevant parts of which are quoted below:

" I advised the Appellants again of their rights and reminded them that the evidence that goods were actually sold to foreign customers and that they did not know the credit cards were forged could only come from them. However, I also advised them that they might give unfavourable evidence against themselves under cross-examination and remove some doubts which I sought to create in my cross-examination. In particular, I told them that I would not be able to lead them on evidence concerning the rejected credit card slips as they had not given me instructions; and that they should be prepared to be cross-examined on that should they decide on giving evidence.

I then left the conference room after instructing Mr LAW to stay behind and to take a written declaration from the Appellants if they decided not to give evidence."

8. Mr Law was the instructing solicitor's clerk.

9. There was exhibited in the same affirmation a copy of a document dated 1 June 1994 signed by the applicants where, they said, "Having received advice from Counsel and Solicitor, we hereby elect not to give evidence in Court voluntarily". It should be noted that that advice was given by counsel after he had advised the applicants to plead guilty on four earlier occasions.

10. The learned judge gave a summary of the admitted facts:

" The two defendants are brother and sister in law and are each the owners of shops selling video and camera equipment. D1 owns the Video Centre Co and D2 owns Wai Ming Photo Company, shops which face each other in a shopping arcade in Tsim Tsa Tsui. A set of photographs was produced by consent (exhibit 37) and shows the layout. These charges arise after alleged purchases from the shops with forged credit cards, the slips of which were subsequently submitted for payment by the defendants between the 8th and 12th September, 1990."

"The following are some of the more material facts agreed by the defence:-

D1 was the sole proprietor of Video Centre Co in Champagne Court, Tsim Tsa Tsui, commencing business on the 25th March, 1990. He was the sole signatory to a business bank account numbered 413-000-6013-9 with Standard Chartered Bank.

In April and May, 1990, he signed merchant agreements with the International Bank of Asia, Citibank, and Standard Chartered. In April IBA installed a point of sale terminal (referred to as POS in the exhibits) at the shop to facilitate quick authorisation for credit card sales.

On the 10th and 11th September D1 submitted in three batches the credit card slips referred to in charges 1-13 to Standard Chartered for payment. The face value was $222,005, and after bank commission of 2.25% was deducted, the sum of $85,428.61 was credited on the 11th September, and $131,581.27 on the 12th, to Video Centre's account with Standard Chartered.

The total credited to that bank account on these two days was $217,009.88.

On the 11th September D1 submitted to Citibank the credit card slips relating to the remaining 9 charges he faces. The amount claimed was $354,850. None of this was paid.

All the above credit card slips were completed and submitted by D1.

D3 was the sole proprietor of Wai Ming Photo Co in Champagne Court and started business on the 19th March, 1990.

She signed merchant agreements with Nanyang Credit Card Company Limited and Citibank in June and July, 1990 and an authorisation terminal was installed at the shop in August.

On the 11th September she submitted the 21 credit slips detailed in the 14 charges she faces. The amount claimed was $654,200, none of which was paid.

These slips were submitted by D3 and completed by D3 or under her direction.

There were a total of 24 cardholders involved, all were from foreign countries and none were in Hong Kong at the relevant time, nor did they make the transactions claimed.

None of the cards were lost or stolen.

Details were given of a total of 42 transactions, all relating to sales purportedly made between the 8th and 11th September, 1990 by the two shops. None were genuine. The vast majority were made on the 9th, a Sunday."

11. The judge then went on to say that the agreed evidence established that none of the cardholders were in Hong Kong at the time, and that none had made any of the transactions charged. Further, the judge said as none of the cards were lost or stolen, it followed that the cards used must have been counterfeit. It was an agreed fact that all the slips were filled out by Ho Ling and Su Hui Fong or persons under her direction and were submitted by the two applicants.

12. The defence was that they had not acted dishonestly.

13. In conclusion the judge stated:

" The evidence was overwhelming. The only inference to be drawn was that the defendants were acting dishonestly. They well knew that the cards were counterfeit and were acting dishonestly when they submitted the slips. The deception was to induce the banks to act on the false credit card sales slips and credit their accounts with the amounts shown on them.

I have dealt with each of the two defendants and the evidence against them together since it is clear to me on the evidence that I have heard that the activities of the two were inextricably intertwined. The evidence against the defendants was circumstantial and they exercised their right not to give evidence. In the face of such overwhelming evidence they ´cannot complain if a proper inference is drawn and if it is drawn more readily in view of (their) election` per Fuad, J.A. in Lam Tsz-wah v. R. [1984] HKLR at page 63."

14. 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.

15. The case for the defence was that they had no knowledge that forged credit cards had been used. It was also their case that the employees who gave evidence against them acted out of revenge for some dispute over commissions.

16. 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. It is for these reasons that we allowed the appeal.

18. We declined to order a new trial in the light of the fact that the alleged offences occurred as long ago as September 1990 and that the appellants had been in custody since June 1994. If it had not been for these considerations we would have had no hesitation in ordering a re-trial.