HKSAR v. Ho Suk Man Betty

HCMA 127/2018

[2019] HKCFI 1116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 127 OF 2018

(ON APPEAL FROM ESCC NO 999 OF 2017)

______________________

______________________

___________________

J U D G M E N T

___________________

1.After trial before a Deputy Magistrate (“the magistrate”), the appellant was convicted of one count of Criminal Damageand ordered to perform 120 hours of community service.  She now appeals that conviction.

Prosecution Case

2.It was not in dispute that on 11 September 2016, a report of “property found damaged” was made to the police.  As a result, two police officers, one of them DPC 6741 (“PW3”), visited the residence of Mr Hornby, who lodged the report, at Stanley Village Road, Stanley.  Police officers found some lady clothing had been damaged with holes and slits on them in a room of the premises.  Later on the same day, PW3 arrested and cautioned the appellant at her residence in Western District.  A cutter was seized at her residence.

3.On the material day, the appellant was the girlfriend of Mr Hornby.  The clothing in question were property of Miss Varley, who was Mr Hornby’s ex-girlfriend.  After ending their relationship, Miss Varley still left her personal belongings in Mr Hornby’s residence.  She gave evidence at trial that she had blocked all communications with Mr Hornby.  She had not authorized anyone how to deal with her clothing nor did anyone ever speak to her about how to deal with her clothing.  She confirmed she did not abandon her belongings at Mr Hornby’s residence.

4.PW3 testified that after he arrested and cautioned the appellant, she made an oral admission (“the oral admission”). They conversed in Chinese.  The appellant spoke in fluent Chinese and they could understand each other.  PW3 subsequently post-recorded the oral admission in a Record of Interview (Exhibit P5) in which further questions were asked and answered.

5.The issues at trial were: the admissibility of the Record of Interview, the chain of evidence of the clothes, and whether the appellant had lawful excuse to damage the clothes.

Defence case

6.At trial, the appellant testified on the special issue but not on the general issue.

7.According to the written Grounds of Objection, [1] it was essentially alleged that when the Record of Interview was conducted, PW3 did not allow the appellant to answer in English.  She was also threatened and asked to write in Chinese.  She was hungry and her request for food was refused.

Reasons for conviction

8.After the holding of an alternative procedure, both the appellant’s oral admission at the time of her arrest and the Record of Interview were ruled voluntary and admissible by the magistrate. However, pages 3 to 5 of the Record of Interview were ruled unfair and inadmissible as the magistrate found that the appellant should have been cautioned again before further questions were asked.  Therefore, in effect, only the part of post recorded oral admission in the Record of Interview was left.

9.The post-recorded oral admission contained the confession that “…I have already reminded his ex-girlfriend to take away her things or I would take (them) to the Salvation Army after Friday.  Well, she is still ignoring me today, so I planned to donate part of his ex-girlfriend’s clothes (and I) slit and then threw away part of them out of anger.”

10.Having considered all the evidence, the magistrate found that:

(1)   All the prosecution witnesses were honest and truthful, credible and reliable.

(2)   The suggestion that the seized clothing might have been tampered with before they were seized was rejected.

(3)   Miss Varley never abandoned her belongings.

(4)   Full weight was attached to the appellant’s verbal admission and that she damaged Miss Varley’s clothes.

(5)   The appellant had no authority or lawful excuse to do so.

11.The magistrate therefore convicted the appellant as charged.

Grounds of Appeal

12.Mr Boyton, counsel for the appellant in the appeal, put forward one ground of appeal:   the counsel representing the appellant at trial was flagrantly incompetent in the conduct of the defence case, resulting in the appellant not having a fair trial or miscarriage of justice.  The particulars of the complaint are as follows:

(1)   Exhibit P5[2] was a ‘post-recorded’ document made at Aberdeen Police Station around 9.10 pm hours on 11 September 2016 in relation to the events at the appellant’s residence around 7.45 pm on 11 September 2016.

(2)   The appellant recorded her own manuscript (‘proof of evidence’) which was provided to Messrs Paul Kwong & Co.[3]

(3)   The letter of Messrs Paul Kwong & Co dated 23 October 2017 – that is, the objections, did not cover the appellant’s assertions covered in her proof of evidence’ as to what she actually said to PW3 at the time of her arrest.

(4)   The said ‘proof of evidence’ related to both Exhibit P5 and the events that occurred, earlier, at the time of her arrest.

13.Mr Boyton says the proof of evidence [4] stated the following, which must relate to the correctness and propriety of the earlier oral admissions:

“The ‘words’ in there was NOT said by me, Police ♯6471 … the police were using parts of the words I said and then making it up in writing. What I actually said to him was, ‘Yes I cut some clothes into small pieces to use as rags because they are unwanted abandoned goods anyway. He then asked me if I was furious during the act. My response was No! I was a bit upset as I had to clean up my boyfriend’s ex-girl Friends abandon and unwanted belongings but this is it ”;

(Emphasis Added by the appellant)

14.In relation to the description by the police officer as to the events of the arrest at the appeal bundle page 117 (English) which recorded, ‘Afterwards you took out a yellow cutter from your handbag, saying...’,  it must be read with the appellant’s proof of evidence[5] which says:

“in particular, I would like to highlight is the word cut “because” … nor did I actually use the stationary cutter that was in my pencil case.  He forced me to saying Yes I guess maybe this is what I used to cut.”

(Emphasis added)

15.It is now complained that the said matters in the appellant’s proof of evidence, were not put to PW3 in relation to the alleged oral admission and/or seizure of the cutter.

16.Mr Boyton suggests that had the trial counsel properly challenged the prosecution case, the magistrate might have taken a different view of the evidence, particularly in relation to:

(1)   Her credibility[6] as only part of the instructions were revealed; and

(2)   The admissibility of the ‘verbal admission’ which would have impacted upon the subsequent post recorded statement.[7]

17.As a result, the appellant was not afforded a fair trial and/or there was an inadvertent miscarriage of justice and/or the conviction is unsafe and unsatisfactory.

18.The respondent opposed the appeal.

Discussion

19.Summarising his complaints, Mr Boyton says in his written submission that:

(1)   (Trial counsel) failed to follow the appellant’s manuscript instructions and/or make enquires and/or clarify the matter with the appellant, as her instructions prima facie, challenged the evidence of PW3 as to what she actually uttered to him at the time of her arrest;

(2)   Pursuant to those written instructions, trial counsel failed to lead the appellant to testify on the matters, which conflicted with PW3, when she was giving evidence on the special issue in relation to the alleged admissions made at her residence; and

(3)   Trial counsel had failed to draft and/or settle the grounds of objection to the admissibility to cover and challenge the alleged oral admission made by the appellant at the time of her arrest at her residence.

20.The issue as to whether the right of a defendant to a fair trial may be jeopardised by the flagrant incompetence of his counsel at trial was addressed in Chong Ching-yuen v HKSAR (2004) 7 HKCFAR 126; and Mak Kam Chuen v HKSAR FAMC 35/2001.

21.As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted.  It follows that ordinarily a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally.  Nor will other forms of mere error of judgment.  However, the courts have also recognized that in some exceptional instances, an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice.  The ultimate question for the court is whether the conduct complained of has resulted in the defendant not getting a fair trial so that the conviction is unsafe or there is a miscarriage of justice.

22.In support of the allegation of incompetence against trial counsel, there are filed in the court affirmation/affidavit of the appellant dated 29 August 2018 and Mr Philip William Swainston (instructing solicitor acting for the appellant at the trial) dated 5 October 2018 respectively.  Trial counsel also filed his affirmation dated 14 August 2018 to rebut the allegations made in Mr Boyton’s written submission against him.

23.At the beginning of the appeal hearing, I asked both parties whether they needed to call the trial counsel for examination in court.  Both parties replied in the negative and confirmed that they were ready to proceed with the appeal hearing.

24.The crux of the alleged incompetent conduct of counsel is that he failed to sufficiently deal with the oral admission both as to its voluntariness and accuracy.

The affirmation of trial counsel

25.Trial counsel is a barrister well experienced in criminal law. In his affirmation he denies the allegations made in the written submission of the appellant’s counsel.  In particular, trial counsel states in his affirmation that he had a conference with the appellant, two instructing solicitors and another newly qualified barrister on 27 October 2017.

26.In the conference, while trial counsel had received the appellant’s “Write up” (the manuscript proof of evidence), he took instructions afresh from the appellant in relation to what had occurred on the day of her offending. In taking the instructions, he noticed that the appellant relied on her “Write up” as an aid memoire. According to the instructions, he was never instructed by the appellant that she was not cautioned, arrested or that she did not make admission after she was cautioned (paras 27, 30 and 69 of his affirmation). 

27.In relation to the special issue as to the Record of Interview, as his instructions were consistent with the Grounds of Objection stated in the letter written by Paul Kwong & Co, he chose to adopt them at trial.

28.At para 70 of his affirmation, trial counsel emphasises that “…there was no dispute that she had cut the clothes as alleged” and at para 71 “… although the Write up refers to the oral admissions made at the time of the arrest, it was clear from the net result of all the instructions I received at the Conference that she was only complaining about what she said to PW3 during the statement taking process…”. 

29.On the general issue, trial counsel reiterates that the appellant had instructed him in the conference that she did cut or slit the clothes.  He was further instructed that the appellant received an anonymous text message from someone who was believed to be the ex-girlfriend of Mr Hornby.  The appellant asked her to remove her belongings by 9 September, otherwise they would be donated.

30.Trial counsel deposed at para 29 of his affirmation that “My instruction on the whole case, including all of the admissions made by the Appellant, came from what I was told at the Conference.”

31.As a result of the instructions obtained, trial counsel decided the defence strategy, inter alia, that:

(1)   The best and most plausible defence was that the appellant honestly and reasonably believed that the clothes had been abandoned.

(2)   Although the Record of Interview would be challenged in its entirety, it would still be of assistance to the defence even if it was ruled admissible, because it still contained the evidence that she believed the clothes were abandoned.

(3)   Had he been successful in having the Record of Interview ruled inadmissible, that would have just left PW3 to give evidence on the oral admission.

(4)   The admissibility of the damaged clothes (the chain of evidence) would be challenged.

32.Trial counsel states that at no time during or after the trial was he ever informed by the instructing solicitor that he had failed to follow his instructions. 

The affirmation/affidavit of the appellant/ solicitors

33.The appellant only filed an affirmation dated 29 August 2018, in which, other than saying that the contents of the “Proof” (the manuscript) were true and contained everything she wished to say, she did not refer to the circumstances of the conference with trial counsel when instructions were taken from her.  It is to be noted that the manuscript starts with saying that “ I below write to you to describe the events that happened in the statement taking process…” (emphasis added). But trial counsel deposed that he took instructions afresh on the whole case as to what had occurred on the day in question, and that the appellant did not challenge that she made the oral admission. After the affirmation filed by trial counsel to deny the allegations against him, the appellant did not file any affirmation in reply to rebut the claim of trial counsel in respect of the instructions given at the conference. 

34.While instructing solicitor filed his affidavit after the affirmation filed by trial counsel, the instructing solicitor’s affidavit is not in material conflict with trial counsel’s. 

35.In my judgment, there was nothing in the appellant’s or the instructing solicitor’s affirmation/affidavit to suggest that what was said by trial counsel in respect of the instructions taken at the conference was untrue.  On the evidence before me, I am unable to find that trial counsel was not following the appellant’s instructions to challenge the oral admission.

36.Given the instructions received by trial counsel that did not point to any impropriety on the part of PW3 at the time of the arrest, I would not accept the suggestion that trial counsel did not properly challenge the case against his client.

37.The trial counsel is an experienced barrister practising in criminal law.  Realistically looking at the case from the defence perspective, one would find it difficult to defend when the damage of the clothes by the appellant was not in dispute.  There was also a witness statement given by Mr Hornby (he did not give evidence in court) saying that he saw the appellant cutting the clothes.  On the other hand, given the flimsy grounds in support of the claim of involuntariness, the chances of successfully challenging the voluntariness and accuracy of the oral admission were not high.  The defence strategy focusing on the defence of honest and reasonable belief, being adopted in the present case, cannot be said to be a fault or error of judgment of trial counsel.

38.Even if the case was put according to the appellant’s manuscript, it was still a case that the appellant indeed caused the damage to the clothes and the defence was again whether she had honest and reasonable belief that the clothes had been abandoned.  The magistrate duly considered this defence in any event but he rejected it.  In my view, the result would be very likely the same, had the case been run in the manner as suggested by Mr Boyton.

The Result

39.As a conclusion, I do not find that trial counsel has failed to follow instructions or conduct the case incompetently.  There is no basis to support the complaint that the appellant has not received a fair trial so that the conviction is unsafe or there is a miscarriage of justice. The appeal is dismissed accordingly.

Mr Nicholas Wong, SPP of the Department of Justice, for the respondent

Mr David Boyton, instructed by Tanner De Witt, for the appellant