The Queen v. Ho Shu Chung

CACC000210/1988

Headnote

Evidence of alibi said to have been unchallenged. Correct directions thereon. Allegations that counsel failed to obey instructions. Submission that this constituted a material irregularity. Approach in R. v. Ensor affirmed as the correct text in such circumstances and applied.

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Coram: Hun. Cons, V.-P., Power & Macdougall, JJ.A.

Date of Hearing: 31 August 1989

Date of Judgment: 26 September 1989

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J U D G M E N T

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Power, J.A.:

1. The applicant faced a charge that on the 1st of October 1987 in the Colosseum Amusement Game Centre, Shop No. 5, Ground Floor, Mei Chung Building, No.87-89 Wo Tong Tsui Street, Kwai Chung, Hong Kong, he robbed Chow Chi-shing of two gold bracelets, two gold necklaces, two gold rings, one diamond ring, two "Rolex" watches, one gold watch strap, one "Dupont" pen and HK$25,000. He pleaded not guilty to that charge and was, after trial before Wong J. and a jury, found guilty and sentenced to imprisonment for eight years. He now appeals against both conviction and sentence.

2. The facts of the robbery were unchallenged as it was the defence that the applicant had not participated and had, shortly after the robbery, been wrongly identified. His defence rested con alibi evidence.

3. Mr. Chow the victim said that at about 12.15p.m. on the 1st of October 1988 he was returning to his office after having visited the lavatory when he was suddenly pushed from behind and forced into the office. He said that upon turning he saw two men, one of whom grabbed him by the neck and pointed a knife at him and told him not to move. He said that he was bound and gagged and his eyes were covered with adhesive tape. He was then told to open the safe from which the items particularized in the charge were then removed. He said that he managed to free himself shortly thereafter and followed the robbers out of his office shouting "Robbery" and alerting staff members to what had occurred.

4. The crucial evidence against the applicant was that of a Mr. Lai, an employee who was sitting in a glass booth in the amusement centre. He said that he had seen the applicant and another person in the centre prior to the robbery and that at around noon he saw Mr. Chow going to the lavatory. Shortly thereafter he saw him coming out of his office and heard him shouting "Robbery". He saw two men running from the direction of the office in front of Mr. Chow, that they were the same two people he had seen playing video games earlier and that one with long hair and wearing a light blue long sleeve shirt and a pair of dark colour jeans was the applicant. The clothes which the applicant had been wearing at the time of his arrest were tendered as Exh.3 and were identified by Mr. Lai is those the applicant had been wearing at the time of the robbery. The applicant admitted that they were the clothes which he had been wearing on that day.

5. Mr. Lai followed the two men into the street and ran after them as they turned a corner. He lost sight of them for a few seconds but then saw them again and kept them under observation until the applicant walked to the awning of the Kai King Restaurant where he sat down. Mr. Lai ran back to the video games centre and returned about 10 minutes later with a police officer. As they were walking past the Shun Fung Hong LP Gas Company he saw the applicant inside. He pointed him out to the constable who then entered and arrested him. Mr Lai said that he was absolutely certain the applicant was one of the robbers and that he was able to identify him not only from his appearance and his face but also from his long hair and the right blue shirt and dark colour Jeans

6. The applicant gave evidence and called two witnesses. He said that at 11.30a.m. he joiner a friend LAW Fat at the Kwai Hing Cafe and that later they were joined by an other friend HO Shu yau. When a large number of students came to lunch at about 12.20 to 12.25 he a left the cafe and went to the LP gas company to talk with friends. LAW Fat gave evidence supporting the alibi but Ho Shu Yau was not called. However, one Ip Wai Lun, the son of the proprietor of the Kwai Hing Cafe, gave evidence the applicant had been at the cafe from 11.30 to about 12.20.

7. There were two sets of grounds of appeal, one titled "Perfected Grounds of Appeal" and the other "Additional Grounds of Appeal". We deal firstly with the "Perfected Grounds of Appeal".

8. These grounds were founded upon the contention that Law Fat, whose evidence supported that of the applicant as to the alibi, did not have it put to him in cross-examination that his evidence was concocted or wrong or unaccepted. It was urged, given this basic proposition, that there were three grounds upon which the conviction was unsafe and unsatisfactory:

(1)    that there was failure to direct the jury properly or fairly upon the defence case, in particular upon the unchallenged evidence of Law Fat; and

(2)     that there was a misdirection of the jury with regard to the evidence of Law Fat; and

(3)    that there was a failure to direct the jury properly upon the alibi evidence.

9. The suggestion in the first ground that the trial judge did not refer in sufficient depth to the defence case generally was not pursued at the trial. It was, however, contended that there had been a failure properly to direct the jury as to the "unchallenged" evidenc & of Law Fat.

10. As to the second ground the misdirection which the trial judge was said to have made is contained in the following passage:

"Law Fat and Yip Wai-lun, the son of the proprietor of Kwai Hing Cafe, told you that both of them were with the accused from 11.30 until about 12.20. It has been suggested to them that the alibi was a concocted tale of the three men and whether that was so or not, members of the jury, it is entirely a matter for you."

11. Mr. Buchanan, who appears for the applicant, submits that this was a clear misdirection as it was never suggested to Law Fat that the alibi was a concocted tale.

12. We will deal firstly with Grounds (1) and (2).

13. It must first be said that the general directions to the jury as to the proper approach to adopt to the evidence were impeccable. The trial judge said:

"In total contrast to my being the judge of law, you and you only are the judge of facts. It is for you to decide what evidence you believe and what you do not believe. It is for you to evaluate all the evidence and draw such inferences or conclusions as the evidence warrants. And eventually, it is you and you alone who will decide whether the accused is guilty or not guilty.

In so far as the evidence is concerned, it is your impression, your observation and your decision that matter."

The judge went on to say:

"You must always remember that you are the sole and final arbiters of facts in this case and you are perfectly entitled to accept or reject in whole or in part the evidence of any witness.

In tackling this important task, you will apply your experience and combined common sense as men and women of the world.

It is a cardinal principle of our criminal law that a person is presumed innocent until he is proved guilty. The burden is upon the prosecution to prove that the accused is guilty and it is not for the accused to prove that he is innocent.

It is not enough that the prosecution merely establish that there is a very suspicious situation involving the accused or he is probably guilty. The prosecution must satisfy you on the evidence so that you feel sure that the accused is guilty.

If having considered all the evidence you are left with a reasonable doubt, you must acquit the accused because that means the prosecution have failed to prove their case."

14. When dealing with the basic contention that it was never put in cross-examination to Law Fat that his evidence was concocted or wrong or unaccepted, we cannot help but observe that there can have been no doubt at all in the minds of the jury that the real issue in this matter was whether they accepted the alibi evidence or whether it raised a doubt in their minds as to the participation of the applicant in the robbery. That this was the real issue is plain from the cross-examination of the applicant in the following passage:

"Q.    And if I suggested to you that you went there in order to watch mahjong, I would be wrong, would I?

A.     Right.

Q.    You see, I suggest to you that you were one of the two men who committed this robbery and you were the man that Mr. LAI Yee chased up to the Kai King Restaurant.

A. No.

Q.    And from the time that you reached there until the time of your arrest, you spent a time canvassing your friends at the Kwai Hing and at the LP gas shop to give you an alibi.

A.     No."

It was, further, put in clear terms to Mr. YIP Wai Luen in the following passage:

"Q.    You see, I suggest to you that you come out with the time of 11.30 because you discussed It with the accused and that is what you agreed to say.

A.     No."

It is correct that it was never expressly put to Law Fat that he had concocted the alibi evidence. However, the accuracy and reliability of his evidence were made real issues by the cross-examination. This is clear from the following passage from cross-examination:

"Q.    How do you know it was 11.30 when he arrived?

A.     I had been waiting there for him for a long time. It was sometime after eleven, around about that time.

Q.     You have given, evidence that it was about half-past eleven. Why do you say it was half-past eleven?

A.      Approximately in that vicinity.

Q.     Why do you say?

A.     I am not sure about the exact time. I was aware that I had been waiting there for him for a long time.

Q.     Why does the time of half past eleven come out from your month as opposed to 11.15, 11.45 or any other time?

A.     What happened was this. I had been waiting there for a long time for his arrival, so occasionally I looked at the clock. On one occasion when I looked at the clock, I found the time was 11.10. So after another period of time I presumed the time was about 11.30.

Q.     When he arrived, did you or did he have something to drink, or did he have something to eat?

A.     Really I can't remember that because of the long lapse of time.

Q.     Well, you remember looking at the clock and saying it was ten past eleven, and it has been the same lapse of time, what did he have to eat or drink?

A.     Really I can't recall.

Q.     Who paid the bill?

A.     Ho Shu-chung did.

Q.     Who to?

A.     At the counter to the owner of the shop.

Q.     Who took the order from you when you ordered it?

A.     I can't remember because at that time there were several fokis.

Q.     What about YIP Wai-lun?

A.     I can't remember.

Q.     When you called for the bill, did YIP Wai-lun come over or not?

A.     I can't remember.

Q.     I don't expect you remember either what it was you were talking about between 11.30 and 12.15, do you?

A.     Right.

Q.     All you really do remember is that the accused arrived at 11.30 and you left at 12.20.

A.     The time was when pupils left their school. That is the time they normally leave school."

15. On any assessment of it this was not impressive evidence. Its quality is such that in our view no criticism can be made of Crown Counsel for not pursuing cross-examination further nor can the trial judge be criticized for refraining from using the term "unchallenged" when referring thereto. It was, as the passage above shows, clearly being challenged and the jury were, we have no doubt, perfectly well aware of this.

16. We accept, as indicated in Ground (2), that the trial judge erred if by saying that it hid been suggested to DW2 LAW Fat that "the alibi was a concocted tale" he was meaning to convey that it had in express terms been put to him rather than that it had, by implication, been suggested to him. It is quite correct that this was never put to the witness. We do nut, however, consider this to be of any real significance as the jury were, we have no doubt, aware that such a suggestion was implicit in the questions asked of the witness by Crown Counsel.

17. The third ground alleges a failure to direct the jury properly upon the alibi evidence. The judge's direction in this regard was as follows:

The accused gave evidence and called two witnesses. The defence is one of alibi which simply means that the accused says that he was somewhere else at the time of the robbery. But as the burden of proof is on the prosecution, the accused does not have to prove that he was elsewhere. On the contrary, it is for the prosecution to disprove the alibi.

If you conclude, members of the jury, that the alibi was false, that dose not of itself entitle you to convict the accused because the prosecution must still prove his guilt. Alibis are sometimes invented to bolster a genuine defence.

The judge then went on to outline the defence evidence with regard to the alibi and, having dune so, said:

"You see, members of the jury, basically you have two different and conflicting versions. One version from Mr. LAI Yee is that the accused was in the video games centre from 10.20a.m. onwards and he was one of the two men who robbed Mr. Chow.

There is the other version from the accused and his friends that from 11.30 until about 12.20 the accused was having tea at the Kwai Hing Cafe and could not have been in the video games centre.

You have seen all these people in the witness-box. You have not only the opportunity to hear what they said but also the opportunity to observe their demeanour and that is the way they gave their evidence. It is your function to evaluate and assess their evidence and resolve the conflict.

If you believe the accused and his witnesses or having considered all the evidence you are left with a reasonable doubt whether what they told you is true or not, the accused is entitled to be acquitted and it will be your duty and pleasure to do so. But, members of the jury, even if you reject the evidence of the accused and his witnesses completely, you still recast be satisfied beyond reasonable doubt that the evidence given by Mr. LAI Yee is true and reliable."

18. This was a clear direction in the fairest possible terms which could have left the jury in no doubt as to the proper way in which to approach the alibi evidence.

19. We are satisfied that nothing has been raised in the above grounds which makes the conviction either unsafe or unsatisfactory.

20. We turn now to the "Additional Grounds of Appeal". In these grounds it was argued that only two of the four available alibi witness were called, and that "in the circumstances the conviction was unsafe and unsatisfactory in that defence counsel refused to act on his instructions in such a way as to deprive the appellant of his defence and of natural justice, in that, counsel decided not to call the alibi witnesses, namely Ip Hin Fun and Ho Shu Yau, without the appellant having the opportunity to consider his own position".

21. Affidavits dealing with this ground were filed by the applicant and by his then solicitor. A letter from counsel was filed and a letter from the clerk, who instructed counsel at the trial, was, by consent, handed up to the court.

22. The applicant in his affidavit said that prior to his trial he had given full instructions to his solicitors including details of the names and addresses of witnesses to be called on his behalf. He understood his solicitors had notified the Crow of their intention to call four alibi witnesses. This was correct. He also claimed that, although at and during, the trial he understood that following his evidence the four alibi witnesses would be called, what happened was that after two of them had been called he learnt through the Court Interpreter that the defence case was closed. He said that neither his solicitor nor counsel in any way communicated to him that the remaining two alibi witnesses were not being called and that at no time did he give or was he asked to give any instruction that they were not to be called.

23. The solicitor for the applicant, filed an affidavit in which he said that his clerk had informed him that after the first two alibi witnesses had been called, counsel for the applicant, had in the presence of his clerk advised the applicant that he had decided not to call the other two alibi witnesses and had explained to him the effect thereof and the reason therefor. He said that he was informed that the applicant raised no objection and did not insist on or give specific instructions to counsel or to the clerk for the calling of the other two alibi witnesses.

24. Counsel, in a letter dated 6th June 1989, said:

"Having read the copy affirmation of [the solicitor] affirmed on the 30th May 1989, I confirm it contains a fair account of events actually occurred during the trial of the abovenamed Appellant, He Shu Chung ----- substantially reflected in paragraph 16 & 17 of the same."

He went on to say:

"At all material times the Appellant had been consulted and had consented that his remaining alibi witnesses were net to be called."

By consent a letter from Daca Lin Wai Yi, the clerk, dated 27th June 1989 was handed up which stated:

"With reference to the Affirmation of He Shu Chung dated 27th April 1989, paragraphs 5, 6 and 8 appeared to be not true. The reason is that after 2 of the alibi witnesses were called and examined during the trial there was a short break. During the break, counsel ......... did communicate and advise the appellant, Ho Shu Chung not to call the remaining 2 alibi witnesses. Ho Shu Chung made awareness and said nothing about it. Neither had he made objection to not calling the remaining 2 alibi witnesses nor had he insisted to calling the remaining 2 alibi witnesses on his behalf."

25. Mr. Buchanan submitted that if the applicant's affidavit was correct then there clearly had been a material irregularity which required the quashing of the conviction. He went on to suggest that even if the facts contained in the solicitor's affidavit and the letters of counsel and the clerk were correct there was still a material irregularity.

26. In making this submission he relied upon the case of Christopher Irwin (1987) 85 Cr.App.R. 294. The appeal in that matter was on the ground, inter alia, "that the conviction was unsafe and unsatisfactory, defence counsel having refused to act on his instructions in such a way and at such time as to deprive the appellant of his defence and of natural justice in that, notice of alibi having been served by latter and the alibi witnesses having been called at the first trial at which the jury disagreed counsel decided (at the retrial) not to call the alibi witnesses without the appellant having an opportunity to consider his own position."

27. Michael Davies, J. delivering the judgment of the court said:

"We are not saying, that in every case where the question of calling alibi witnesses has to be considered it is vital that the client should be expressly consulted at the moment before they are called or not called. There may be cases where, for example, the matter may have been thoroughly discussed before. What we have to consider is the present case. It is submitted on behalf of the prosecution that the evidence of the alibi witness would have made no difference, and that accordingly whatever view this Court takes of what happened it should say that no miscarriage of justice could have occurred. We do not accede to that submission. Counsel who appeared for the appellant may have been surprised, but the fact is that when the alibi witnesses were called, the jury disagreed. When they were not called the jury convicted. This was an unusual situation, and one in which, in the view of this court, the consultation with and the obtaining of clear, preferably written, instructions from the client before the witnesses were not called was demanded."

28. It was the opinion of the court that there had been a material irregularity and it ordered that the conviction be quashed.

29. We observe that the court spoke specifically of it being "an usual situation" and do not read the comment, as intending to lay down any rule of general practice. This view is confirmed by the judgment. In R. v. Ehsor [1989] 2 All E.R. 386 the appellant appealed on the ground, inter alia, that his counsel's conduct in not applying to sever two counts in the indictment constituted a material irregularity in the conduct of the trial. It was held that:

"Except in the case of flagrantly incompetent advocacy on the part of the accused's counsel the court would not set aside a conviction on the ground that counsel had made a decision or pursued a course in the conduct of the trial which later appeared to have been mistaken or unwise, even if that decision or course of conduct was contrary to the accused's wishes."

Lord Lung when delivering the judgment said:

"It is clear from the information available to us that the appellant himself wanted such an application to be made, and made his wishes known to his lawyers."

He went on to say:

"In R. v. Gautam (1987) Times, 4 March, which was decided by this court on 27 February, a few days after the appeal in R. v. Irwin had been heard, Taylor J. said:

'It should be clearly understood that if defending counsel in the course of his conduct of the case makes a decision, or takes a course which later appears to have been mistaken or unwise, that generally speaking has never been regarded as a proper ground fur an appeal.'

That was a shoplifting case in which counsel, for what were patently good reasons, had declined to lead medical evidence at the trial until after the jury had returned a verdict.

On 12th March 1987 another division of this court heard the appeal in R. v. Swain (unreported), where the appellant contended, with apparent justification, that his counsel, by incompetent cross-examination, had introduced evidence which was prejudicial to his case which was then amplified by the witness in answer to a question put to him by what was said in R. v. Gautam, counsel at the hearing of the appeal sought to rely mainly on the intervention of the judge, but the court found that what was said in answer to the judge added nothing to what had already been said by the witness to counsel. Various other points ware considered with which we need not now be concerned, but O'Connor LJ said that, if the court had any lurking doubt that the appellant might have suffered some injustice as a result of flagrantly incompetent advocacy by his advoate, then it would quash the convictions, but in that particular case it had no such doubts.

We consider the correct approach to be that which was indicated by this court in R. v. Gautam, subject only to the qualification to which O'Connor LJ referred in R. v. Swain. We consider further that the decision in R. v. Irwin, even if it can be reconciled with R. v. Novac (which we doubt), should be regarded as being confined to its own facts. This ground of appeal accordingly fails, because counsel's carefully considered decision not to apply to sever the charges, even if erroneous, cannot possibly be described as incompetent, let alone flagrantly incompetent advocacy."

30. We are respectfully satisfied that the law is correctly stated in Ensor and that except in the case of flagrantly incompetent advocacy the court will not set aside a conviction on the ground that counsel has made a decision or pursued a course in the conduct of the trial which later appears to have been mistaken or unwise, even if the decision or course of conduct was contrary to the accused's wishes.

31. Moreover, assuming that the applicant's affidavit contains an accurate statement of what had occurred, we are of the opinion that it does not support the ground of appeal. The applicant makes no claim that defence counsel had received instructions and had refused to act thereon. In this affidavit he claims no more than that he furnished the names of possible alibi witnesses and understood that they would be called, but that during the trial defence counsel, on his own initiative, determined that they should not be called and closed the defence case. This is far removed from a refusal to act upon instructions. Counsel's action was entirely consistent with his use of the discretion, with which he must be entrusted in the conduct of a trial, to rest the defence upon witnesses already called.

32. Such a decision, which no one suggests was taken other than in the belief that it was in the applicant's best interest, can give no support to the submission that there was a material irregularity. There is no suggestion of any incompetence let alone flagrant incompetence such as would bring counsel's conduct within the test propounded in R. v. Ensor. On the other hand, if the affidavit of the solicitor is correct, no question of any irregularity arises. The application for leave to appeal against conviction is dismissed.

Representation:

Mr. I.G. Cross & hr. G.E. Forlin (Crown Prosecutors) for the Respondent.

Mr. Robert Buchanan (M/s. Paul Kwong & Co.) for the Applicant.