HKSAR v. Ng Pit Keung

HCMA 635/2017

[2019] HKCFI 2412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 635 OF 2017

(ON APPEAL FROM FANLING MAGISTRACY
CASE NO FLCC 3611 OF 2017)

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REASONS FOR JUDGMENT

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1.This case concerns an allegation made by a disgruntled defendant, who was convicted of indecent assault, against his own lawyer for failing his duty to properly advise him his right to testify at trial.

2.In the afternoon of 10 July 2017, a courting couple, Miss X and her boyfriend Mr Lau, were taking a day trip to Shenzhen via Lo Wu Control Point, Miss X passed through the e - Channel at the departure hall ahead of her boyfriend, moved to the far right side of the passageway against a wall[1] and waited up for Mr Lau to catch up while looking at her mobile phone.

3.The Appellant bumped on Miss X’s left shoulder from behind and at the same time, Miss X felt the Appellant’s hand touch her buttocks once. The touching was not of great force, she described, but since her dress was made of thin fabric, she could feel the Appellant’s hand moving from the middle of her buttocks to the left with his whole palm touching the bottom of her buttocks all the way through.

4.Mr Lau, having passed through the e - Channel himself, was on his way to join Miss X, he saw the Appellant moving diagonally from left to right towards his girlfriend, when Mr Lau was about 2 to 3 metres behind Miss X, he saw the Appellant’s hand brush Miss X’s buttocks from right to left, and then walk away. He went up to stop the Appellant who, when being taxed with touching Miss X inappropriately, said “Sorry, it was an accident 唔好意思喎，唔小心揩到啫”.

5.Eventually, the police got involved which resulted in the Appellant being charged with one count of indecent assault[2]. The case was heard before Magistrate, Mr Jason Wan, sitting in the Fanling Magistracy; following a trial, the Appellant was convicted and sentenced to 3 weeks’ imprisonment. He was granted bail pending his appeal against conviction.

6.At trial[3], the Appellant, who called no evidence, was represented by Counsel, Mr Alan So and on appeal, by Mr Graham Harris SC leading Counsel Mr Wong Kai Tat and Mr Ernest Ng.

7.Mr Harris’s criticisms mainly levelled at the trial counsel submitting that Mr So failed in his duty to have properly advised the Appellant as to his right to testify (Ground 1) and failed to adduce as evidence the photographs of the scene taken by the Appellant (Ground 2).

8.There is a third ground that the learned magistrate failed to attach sufficient weight to the discrepancies in the evidence of Miss X and her boyfriend. Mr Harris made it clear from the outset that the Appellant was relying heavily on the first two grounds- the flagrant incompetence of trial counsel.

9.There are over 10 affirmations filed with the court from 5 people, 3 from the defence team at trial- Mr So (the trial counsel), Mr Marcus Wong (trainee solicitor) and Mr Almon Cheung (a litigation clerk) and 2 from the Appellant himself and his friend (Mr Wilson Hou). And each one of them has taken the stand before me and has been cross-examined by counsel for the opposing party.

10.The legal principles involved[4], both parties agreed, may be summarized as follows:

(1)  The Appellant has to show not only that there was flagrant incompetence on the part of the trial lawyer;

(2)  But also that the effect of such incompetence resulted in the Appellant having been deprived of a fair trial.

The onus is on the Appellant to satisfy the court on a balance of probability.

11.The only issue at trial was whether the touching was deliberate or accidental. Mr Harris stressed the importance of the trial magistrate in having both sides of the story to consider in a case like this where it is almost “one word against another”. Mr So, being the Appellant’s defending counsel, should have been more robust in advising him his right to testify, telling him in strong words to the effect that without his side of the story, the likely consequences would be one of conviction and anything short of that would not be sufficient.

12.I think this statement is only partially true - it all depends on whether or not the appellant can testify with ease and effectively; in other words, can he survive a daunting cross - examination most often conducted by a seasoned prosecutor?

13.In his affirmations as well as testimony, Mr So testified that during their first conference[5] at his chambers on 27 September 2017, he explained to the Appellant the advantages and disadvantages of guilty/not guilty plea and the likely sentence, he said the sentence would be about a month’s imprisonment after trial; on hearing that, the Appellant replied that he was prepared to plead guilty if he was given a non - custodial sentence. Mr So reiterated that he was not able to give such a guarantee, the Appellant then decided to plead not guilty.

14.In his first proof of evidence, the picture the Appellant was trying to paint was that he did not know he had run into Miss X, the moment he was alerted to it was only when she looked at him, he then subconsciously said “sorry, 唔好意思”.

15.In the next conference on 1 November 2017 (which the Appellant denied it ever happened), Mr So discussed with the Appellant about what he said in his voluntary cautioned statement[6] to the police that he did not know or remember if he had run into Miss X, Mr So said the Appellant changed his mind to say that he had run into her accidentally and apologized at once and that was why there was a second proof of evidence to that effect.

16.With the second proof of evidence in hand, Mr So had another conference with the Appellant on 3 November 2017 (which the Appellant agreed he did attend) about 4 days before the trial during which Mr So conducted a mock trial with the Appellant testing his performance as a witness, but his performance was not satisfactory. The Appellant once indicated that he was reluctant to testify, but Mr So said he encouraged him to prepare himself to testify.

17.Everything really turned on the day of trial (7 November 2017). When it came to the stage where the prosecution closed its case, the defence was granted indulgence to have a short break and they made use of the opportunity to have a conference in an interview room outside the court, both the Appellant and his friend plus the defence team were present.

18.When the court resumed hearing after the short break, Mr So informed the court that he had given legal advice to the appellant who would neither testify nor call any defence witnesses, and the defence thus formally closed its case.

19.What happened in the interview room was the divergence between the parties. The Appellant said he was told by Mr So and Mr Cheung not to testify so as not to waste the court’s time, since there were discrepancies between the evidence of Miss X and her boyfriend plus the fact that he was not good at expressing himself. Mr So also assured him that since the offence did not take place on public transport, no custodial sentence would be imposed.

20.He further elaborated in his supplemental affirmation that both Mr So and Mr Cheung stated that his case had been put to the prosecution witnesses such that it was not necessary for him to give evidence or to call any witnesses; it was Mr So’s decision that he should not give evidence at trial. He was asked to and did sign on a blank pro-forma form prepared by Mr So to acknowledge receipt of advice as to his rights to testify or not and its consequences either way and it was his own decision to make the choice.

21.His friend, Mr. Hou, described M. So as someone having a condescending attitude towards them, acting totally unprofessionally, swearing all along. When the court clerk came to check on them, Mr So told the clerk he would need a few more minutes. He then told the Appellant and him to leave the room first. When they returned, he said Mr So shouted at the Appellant to sign on a blank form. During the course of the conference, Mr Hou said, the behavior of Mr So was very bad, apart from swearing, he even thumped on the table at times when talking to the appellant.

22.Mr So told a different story. In the conference held in the interview room on the day of trial where the 5 of them were present, he said that “he explained to the Appellant the strength of the prosecution case in terms of the respective doubts in the case and the discrepancies between the two prosecution witnesses.” He then told him the advantages and disadvantages of testifying and not testifying, and his right to call witnesses.

23.Quite the contrary, Mr Hou was full of praises for Mr So in his performance as an advocate, Mr So said. It was Mr Hou who actually suggested to the Appellant not to testify in view of the discrepancies in the prosecution case and the fact that the Appellant was not particularly articulate, Mr So had to stop him interfering with the Appellant’s decision and reiterated that it was the Appellant who was to make the decision.

24.Having considered it, the Appellant told Mr So that he was worried his story might not stand well in court and could have made even worse by testifying, so he decided not to give evidence nor call any witnesses.

25.The matter did not end there, Mr So said he urged the Appellant to give evidence as Miss X said the touching was anything but accidental and that he had to give evidence to support his version. The Appellant told his counsel that he had no confidence and said he was fully aware of the consequences for his own decision. 

26.If the appellant’s case was true, one would expect either of them to at least mention something about the very bad behavior of Mr So in their first affirmation to which Mr Hou had now testified, for this should have been in the forefront of their mind when making the complaint, but very strangely there was none.

27.It was only in the second affirmation of Mr Hou did he mention Mr So using foul languages in ordering the appellant to sign on the blank form. The appellant still had not mentioned anything like this in his second affirmation. Neither of them ever mentioned the thumping of Mr So on the table in their affirmations.

28.Mr Harris drew my attention to paragraph 12 of the affirmation of Mr Marcus Wong in which he said:

“In the said conference, Mr So explained to the Appellant his right to give evidence in court and pointed out to the Appellant that there were several inconsistencies in the evidence given by PW1 and PW2. Mr So also told the Appellant whether to give evidence on his feet in court is a matter of the Appellant’s choice. The Appellant then seemed confused and asked Mr So for advice on whether he should give evidence in court.”

29.Mr Wong, in his testimony, said that that was his impression but he did not elaborate any further. I do not think this is in any way inconsistent with Mr So’s version. It’s apparent from Mr So’s version that the Appellant took time to make up his mind whether or not to give evidence; it was only natural he would look confused, but more importantly it was what he did afterwards - he asked his counsel for further advice.

30.Having heard all the evidence, I have no doubt in my mind the appellant and his witness, Mr Hou, are not telling me the truth. They said it was Mr So’s decision to tell the Appellant, against his will, not to testify, and when he was convicted, they must have realized Mr So had made a wrong judgment, but strangely enough they had not raised it with the defence team when they met again on the next occasion for sentencing.

31.After the Appellant was sentenced, Mr So went to see him to give further advice as to the chance of an appeal; there the Appellant again had not raised the matter with Mr So about his assurance that he would not be sent to prison upon conviction (if Mr So had done so as he alleged).

32.All in all, the Appellant’s subsequent behavior after conviction or sentence was not consistent with his allegations. Clearly, all of these allegations were an afterthought. 

33.In his first affirmation, Mr Hou admitted that he had given some advice to the Appellant but was told by Mr So not to do so because he was not an expert, but he clarified that in his second affirmation it was nothing about the Appellant’s right to testify but rather on his clumsiness or inarticulateness in expressing himself. If that was the case, I wouldn’t expect Mr So to intervene; it must have touched on matters solely within the province of a trial lawyer, i.e., advice to client his right to testify.

34.I accept the evidence of the defence team for I find every one of them to be truthful and reliable witness. The Appellant had been given proper advice whether or not to testify, and it was his own decision not to testify. There is no merit in this complaint.

35.Insofar as the complaint about Mr So’s failure to adduce the photographs of the scene is concerned, I do not see how such a piece of evidence would have assisted the defence case.

36.The Appellant said the photographs showed the intensity of pedestrian traffic of the scene around the time of the offence. Though a picture is worth a thousand words, it has its limitations when it is not taken at the time of the offence as is in the instant case - the photographs were taken about two months later.

37.There are live witnesses called at the trial - a more detailed and accurate picture of the scene in question and what the traffic of travelers was like at the material times can be adduced from their lips.

38.Grounds 2 fails.

39.Finally, the appellant also complained that the learned magistrate failed to attach sufficient weight to the discrepancies between the two prosecution witnesses, Miss X and her boyfriend, Mr Lau.

40.The major discrepancies the Appellant referred to are as follows:

(1)  Description of the touch: – 

Miss X’s: “The Appellant’s palm was at the center of her buttocks, brushed down from right to left”

Mr Lau’s: “The Appellant’s hand was like a curve, brushing from right to left… it was not a touch by the center of the palm”

(2)  Description of the passageway: – 

Miss X’s: “It was about 3 meters wide”

Mr Lau’s: “It was 5-odd meters wide”

41.Whichever way one looks at it, these can never be qualified as discrepancies so material as to cast doubt on the prosecution case. In any event, the learned magistrate was alive to these matters and had considered them and had come to a decision which could not be flawed.

42.Ground 3 also fails.

43.The appeal against conviction is therefore dismissed.

Mr Ned Lai, SADPP of the Department of Justice, for the Respondent.

Mr Harris, Graham A., S.C., leading Mr Ernest Ng and Mr Wong Kai Tat, instructed by M/s Chan & Ho, for the Appellant.