HKSAR v. Chan Chun Chuen

CACC 233/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 233 OF 2013

(ON APPEAL FROM HCCC NO. 182 OF 2012)

____________

BETWEEN

____________

Before : Hon Lunn VP, Poon and Pang JJA in Court

Date of Hearing : 9 December 2015 and 25 January 2016

Date of Judgment : 25 January 2016

____________

J U D G M E N T

____________

Hon Lunn VP (giving the Judgment of the Court) :

1.By a Notice of Motion filed with the Court on 5 November 2015, the applicant, who appears in person, invited this Court, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, to certify that points of law of great and general importance, identified in four questions, are involved in the decision of this Court dated 30 October 2015, dismissing his appeal against his conviction on 4 July 2013 on two counts on an indictment, namely:

“ 1. Where an appellate court finds that counsel has failed to raise certain points, or failed to raise them with sufficient clarity to justify the admission of, or cross-examination upon, evidence supportive of the defence, should it go on to consider the impact of that failure on the fairness of the proceedings and the safety of the conviction? Should it do so irrespective of whether appellate counsel considers it right to allege flagrant incompetence by trial counsel? [1]

2. Does the rule against the admission of self serving statements extend to relevant conduct which post dates the offence and pre dates charging, and, if so, can it be rebutted by assertions of lies by the prosecution? [2]

3. Where a defendant is said to have told multiple out-of-court lies, is it always incumbent upon a trial judge when giving a “Lucas” lies direction to identify the independent lies which, if proved, could be supportive of the prosecution case? [3]

4.      Can a statement of claim signed as to its truth by a Plaintiff in civil proceedings, properly be regarded as the statement of the potential evidence of that Plaintiff for the purpose of determining whether to admit the fresh evidence of that Plaintiff de bene esse pursuant to section 83 V of the Crime Ordinance? [4] ”

2.On 9 December 2015, the hearing was adjourned in face of the applicant’s application for legal aid, apparently made on 4 December 2015.  On 8 January 2016, the Legal Aid Department refused that application, inter-alia, on the ground that the Department was not satisfied “that your financial resources do not exceed the limits specified in section 5 of the Legal Aid Ordinance”.   At a hearing for mention, before Lunn VP, on 12 January 2016 the applicant informed the Court that he was going to instruct Bough & Company to represent him in this matter.  Mr Bough informed the Court that he was prepared to accept those instructions, if he was provided with costs on account.  The Court fixed 25 January 2016 for the hearing of this application.  By letter, dated 20 January 2016, Bough & Company informed the Court that they had not filed a Notice to Act because they were not given sufficient costs on account and that the applicant had been advised that he would have to act in person at the hearing on 25 January 2016.

3.At today’s hearing, Ms Kitty Chan, a solicitor at Bough & Company confirmed that to be the case in essence.

4.In written submissions filed with the Court on 16 November 2015, the applicant raised a number of miscellaneous points.  First, he complained that, although he had drawn the attention of his counsel at trial, Mr Andrew Kan, to the fact that in 1986 he had been represented by Macrae JA, when the latter was practising at the Bar, he had been advised not to disclose the matter and informed that an application for the recusal of the judge would not be to his advantage.  Secondly, he complained of the incompetence of his leading counsel, Mr James Wood QC, for having failed to follow his instructions to seek the leave of this Court to amend the grounds of appeal against conviction to allege the incompetence of counsel at trial.

5.Under the rubric “New evidence”, the applicant complained that he had not been made aware, until after the completion of the appeal hearing, of a letter dated 21 September 2015 from Haldanes to his solicitors articulating an offer by Mr  Jonathan  Midgley on behalf of himself and Mr Justice Harris, both of whom represented the applicant in the civil proceedings, when the latter was practising at the Bar, “to give evidence in any criminal proceedings involving Mr. Chan.”  Further, the applicant invited the Court to note that in a letter, dated 5 October 2015, from Haldanes to his solicitors, Mr Jonathan  Midgley had identified various matters of which he and Mr Justice Harris had been aware of in the civil proceedings, which it appeared had not been raised in the criminal proceedings against the applicant.

6.By an amended Notice of Motion filed with the Court on 18 December 2015, the applicant identified a fifth issue, namely:

“ 5. Under section 32 Hong Kong Court of Final Appeal Ordinance, Cap 484, it is shown that substantial and grave injustice arises from incompetent legal representation at trial (HCCC 182/2012) and on appeal (CACC 233/2013).”

7.At 4:05 p.m. on 22 January 2016 the applicant filed further written submissions with the Court, including material related to ongoing litigation involving Right Margin and other companies.  A translation was provided to the Court only shortly before we sat.  He invited the Court to receive the material as new evidence.  He submitted that issues of disclosure by the respondent arose, so that there were questions of law of great and general importance.  We are satisfied that they do not arise.

8.The complaints in respect of the incompetence of the applicant’s counsel at the trial and at the appeal hearing and the complaints in respect of the so-called “new evidence” are not matters that arise in this application, not being points of law of great and general importance arising from the decision of this Court.

As to Question 1

9.The applicant seeks to raise indirectly by Question 1 the issue of the competence of his counsel at trial.  As noted in our Judgment [5], although the matter was raised repeatedly with the applicant’s leading counsel at the hearing of the appeal, it was his clearly considered determination not to seek to amend the Grounds of Appeal to allege the incompetence of counsel at trial.  It followed that evidence that might have been relevant to the issue of the conduct of the defence at trial was not made available to this Court.  Of course, that evidence would have been subject to scrutiny.  Necessarily, this Court had regard to the evidence put before it only.  No point of law of great and general importance arises.

As to Question 2

10.This Court’s approval of the judge’s determination of the admissibility of self-serving statements, at the behest of the defence, concerned the application of well-established principles of law to the particular factual circumstances obtaining in this case.  No point of law of great and general importance arose.

As to Question 3

11.In our Judgment, we noted that the judge had directed the jury that the out-of-court lies of the applicant relied upon by the prosecution all related to “how he came by the will”.  Although we said that it would have been desirable for the judge to have directed the jury specifically that the lies were “…those that went to the issue of the relationship that the applicant enjoyed with Mrs Nina Wang, namely lover or feng shui adviser”  [6], nevertheless we said that we were satisfied that would have been obvious to the jury.[7]  No point of law of great and general importance arises.

As to Question 4

12.No witness statement of Mr Chan Shu Chan was made available to the Court.  No explanation was given for the absence of such a witness statement.  In the absence of such a witness statement, it was not known what relevant, admissible evidence Mr Chan might have been able to give.  It was in that context, that this Court said that the statement of truth signed by Mr Chan Shu Chan verifying the contents of the statement of claim filed by Mr Chan Shu Chan “does not turn the pleadings into evidence.”  No point of law of great and general importance arises.

As to Question 5

13.As noted earlier, the submission that “substantial and grave injustice” arises from the incompetence of trial and appellate counsel is not a point of law of great and general importance that arises from our decision.

Conclusion

14.For the foregoing reasons, we decline to certify that points of law of great and general importance are involved in our decision.

Ms. Anna Y. K. Lai, SADPP of the Department of Justice, for the respondent

The applicant appeared in person

[1] Judgment paras 44, 45, 65, 91, 103, 116, 119, 121, 122, 143, 144, 149, 154, 155, 227 and 279 - Ground 1(d)(i)(ii)(iii) and (iv), 1(e), 1(f) and 1(g).  Reply para 16.

[2] Judgment paras 124-144 - Ground 1(d)(iii).

[3] Judgment paras 208-224 - Ground 1(f) and (g).

[4] Judgment paras 348-350 - Ground 3.

[5] Judgment, paragraphs 44-5.

[6] Judgment, paragraph 218.

[7] Judgment, paragraph 213.