Lam Tai-lit and Another v. The Queen
Read the full judgment text of CACC 248/1980 on BabelCite. This Court of Appeal judgment.
1. The first defendant (D1) LAM Tai-lit, was charged with six offences before the District Court. Charges 1 to 5 alleged various conspiracies to defraud in 1977 and 1978. Charge 6 alleged arson of the Kam Ngai Garment Factory on the 6th August, 1978.
Cited by 7 cases
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CACC000248/1980
Coram: Roberts, C.J., Huggins and McMullin, JJ.A. Date of Judgment: 22nd October, 1980. ----------------- JUDGMENT ----------------- Roberts, C.J.: Preliminary 1. The first defendant (D1) LAM Tai-lit, was charged with six offences before the District Court. Charges 1 to 5 alleged various conspiracies to defraud in 1977 and 1978. Charge 6 alleged arson of the Kam Ngai Garment Factory on the 6th August, 1978. 2. The second defendant (D2) LI Yuk-kwong, was charged together with D1 on charges 3, 4 and 5. The third defendant (D3) KEUNG Ping-kai, was charged With D1 and D2, on charge 3 only. 3. During the trial, the Crown entered a nolle prosequi against all defendants on charge 2. 4. D1 was convicted on charges 1, 3, 4 and 5 and sentenced to four years' imprisonment concurrent on each. He was also convicted on charge 6 (arson) and sentenced to 5½ years' imprisonment. 5. The application of D1 for leave to appeal against conviction on charges 1, 3, 4 and 5, and against sentence on charges 1, 3, 4, 5 and 6 was refused by the single judge. His application for leave to appeal against conviction on charge 6 (arson) was granted. 6. D2 was convicted on charges 3, 4 and 5 and sentenced to six months, six months and twelve months' imprisonment, the sentences to run concurrently. He has not sought leave to appeal. 7. D3 was convicted on charge 3 and sentenced to six months' imprisonment, suspended for two years. His application for leave to appeal against conviction was refused by the single judge but was renewed before us. 8. We are, therefore, concerned only with D1's appeal against conviction on charge 6 and D3's application for leave to appeal against conviction on charge 3. Appeal of first defendant 9. Charge 6 against D1 reads as follows -
General background 10. D1 was the Managing Director of the Kam Ngai Garment Factory ("the company") which was incorporated on the 9th August, 1977 and ordered to be wound up on the 29th September, 1978. The company carried on business as a garment manufacturer in the premises, which were burnt down on the 6th August, 1978. 11. The Crown's case was that the company was in considerable financial difficulties throughout its short life and that, in order to keep it alive, D1 embarked upon a series of frauds. These formed the basis of the four charges of conspiracy to defraud (charges 1, 3, 4, 5) on which D1 was convicted. 12. The frauds were of different types. At first, D1 sought to raise money, by way of overdraft facilities, by arranging for the preparation, for presentation to prospective lenders, of false accounts which misrepresented the real financial state of the company. 13. A second means of deception involved the use of three properties at Castle Peak Road, Fuk Wah Street and Shun Ning Road. D1, with some assistance from D2 and D3, arranged for the preparation and execution of agreements for the sale and purchase of these properties. These documents showed that he had purchased the properties at prices greatly in excess of these which he had in fact paid for them. 14. These agreements for sale and purchase, with their inflated prices, were presented to the Thai Farmers Finance Company ("Thai Farmers") as security for overdraft facilities which D1 sought to arrange with Thai Farmers on behalf of the company. These documents were admitted to be among the factors which determined Thai Farmers to grant substantial overdraft facilities to the company. 15. A third method of deception involved the preparation of false airline waybills, which asserted that quantities of manufactured goods had been consigned to Flying Eagle Freight Limited for forwarding to the purchasers of these goods. D1 sold these documents to Thai Farmers, in exchange for a reduction of $80,000 in his overdraft, and a further loan of about $21,000. These goods were never manufactured. 16. The final fraud involved the purchase of a number of large cartons, which were filled with some genuine materials, some rubbish and some old machinery. The cartons were sent to a godown, accompanied by a document which falsely described both the contents and value of the cartons. This false document was used to support a proposal for insurance of the supposed contents. The insurance company issued a contract of insurance for the goods and value described in the document. It was the Crown's case that this odd behaviour shows that D1 had it in mind, at that time, to arrange for the destruction of the cartons and claim the inflated insurance value. 17. The Crown argued that, all these expedients having failed to keep the company solvent, D1 finally resorted to arson, in an effort to recoup some part of his losses. Before doing so, he took out double insurance, with two different insurance companies, on some of the goods and machinery in the factory, which was virtually destroyed by fire on 6th August, 1978. 18. The evidence of Dr. Dailly, an experienced fire investigator, which was accepted by the judge, was that the fire was the result of a deliberate act. Although there was a conflict of evidence between Dr. Dailly and a Fire Services Officer, the judge accepted Dr. Dailly's opinion that the fire was deliberate; we see no reason to disagree with this finding. Evidence relating to the charge of arson (charge 6). 19. It was admitted by the Crown, during the trial and on the appeal, that there was no direct evidence to establish either that D1 personally set fire to the Kam Ngai Garment Factory on the 6th August or that he had counselled or procured anyone else to do so. It was not disputed that D1 left for Taiwan on 4th August, two days before the fire, and did not return to Hong Kong until 10th August. 20. The judge reached the conclusion that the following pieces of circumstantial evidence, when taken together, gave rise to an irresistible inference of the guilt of D1.
21. The Crown, as indicated above, did not contend that these pieces of circumstantial evidence directly linked D1 with the fire in any physical sense, but submitted that they formed, when taken together, a case of such strength that the only reasonable inference from them was that D1 had procured the deliberate burning of his property. 22. As indicated above, we have reservations as to the validity of two of the grounds on which the judge based his decision. Even if they were not major factors in his mind, their absence must necessarily weaken the case against D1. 23. We have had to decide whether what is left shows more than that D1 was in dire financial straits; that, a few weeks before the actual fire he spoke in a way which suggests that at that time he had formed an intention to arrange for the burning of the warehouse into which cartons had been moved, with their contents falsely described on documents submitted to an insurance company; that he had doubly insured part of the factory machinery and goods; and that he took deliberate steps to make certain that there was a double insurance in force as from the day before the fire, though it must be observed that this was cutting things very fine, as any hitch on 5th August, when D1 was out of Hong Kong, would have meant that the policy would not have been effective on 6th August. 24. Nobody can doubt that the circumstances leading to the fire give rise to the gravest suspicion against D1, who had a strong motive, and, on the evidence of Chu, a formed intention to commit arson some weeks earlier. 25. But there is nothing to connect D1 with the actual fire, with any preparations to start one, or with the arsonist, who was never identified. 26. Not without hesitation, we have come to the conclusion that the evidence is not enough to satisfy that high standard of proof which is required to sustain a finding of guilt. We therefore set aside the conviction and sentence of D1 on charge 6. Third defendant 27. The amended Charge 3, on which D3 was convicted, reads as follows -
28. It was not disputed that, on or about 8th March, D1, on behalf of the company, applied to Thai Farmers for credit facilities amounting to $1.14 million. In support of that application he eventually offered as security various properties which he owned in his personal capacity. 29. Before the trial, counsel had agreed a large number of facts, which were thus put before the court as admitted. In passing we would like to commend the good sense of counsel for the defendants in thus narrowing the issues which the judge had to try. 30. Among the admitted facts was that among the factors in the granting of the credit facilities by Thai Farmers was the latter's belief that these properties had been purchased by D1 at the prices stated in the sale and purchase agreements which were submitted by D1 to Thai Farmers. 31. D3, a solicitor's clerk, was only involved in the transactions relating to two of these properties, at Shun Ning Road and Castle Peak Road. 32. In 1977, Mr. CHAN Shing-hon (PW1) an estate broker, negotiated the sale of the Shun Ning Road property on behalf of the owner, Mr. CHAN Man-lung (PW2). 33. PW1 agreed on a sale price of $110,000 with D2, who said he was acting on behalf of D1. PW1 introduced PW2 to D1 and this purchase price was confirmed. D1, however, told PW2 that he was going to mortgage the property and suggested that the price be raised notionally to $200,000. PW2 did not agree to this, and asked that they should go to the office of his nephew, D3. At that office, D1 and D2 met D3 for the first time. According to PW1, a conversation then took place between D1 and D3, during which D1 said to D3 -
34. As a result of this meeting, back-to-back purchase and sale agreements were prepared by D3. By the first, the flat at Shun Ning Road was transferred from PW2 to D2 at a price of $110,000; by the second, the flat was said to have been re-transferred at a price of $220,000 by D2 to D1. 35. The evidence of PW1 on this matter was not challenged in cross-examination, nor did D3 elect to give evidence at the trial. 36. D3 was also involved to a lesser degree in the purchase of the Castle Peak property, which D1 contracted to buy from Mr. Sun for $120,000. When the parties gathered at a solicitor's office to complete the sale, D1 obtained Mr. Sun's agreement to the substitution of an employee of D1, named WONG Man, as the nominal purchaser of the property at $120,000. A few days later the property was re-conveyed, by WONG Man, to D1, in the offices of H.M. So & Co., the firm of solicitors for whom D3 worked, at a fictitious price of $300,000. In fact no money changed hands on this re-sale. The conveyancing clerk who dealt with this transaction was again D3. 37. It is conceded by the Crown that its case against D3 depends primarily upon his involvement in the earlier transaction relating to the Shun Ning Road flat. If D3 were not established as a conspirator at that stage, the evidence relating to his part in the purchase of the Castle Peak Road flat would be insufficient to make him so. 38. Counsel for the third defendant argued various grounds of appeal on the facts, with which we do not find it necessary to deal. There are, however, three substantial arguments which have caused us come concern -
(a) Was there a conspiracy in law? 39. Counsel for D3 argued that there had been in law no conspiracy to defraud. He based this argument on the fact that although the purchase price of the Shun Ning property was expressed to be $220,000 in the sale to D1, whereas it was in reality only $110,000, the true value of the Shun Ning property was $240,000, as appears from a valuation placed upon it on 12th May, 1978 by a valuer employed by Harriman Realty, a figure in excess of the fictitious purchase price of $220,000. 40. Therefore, he submitted, there could be no conspiracy to defraud because the intended lie was in fact the truth, since the property was worth even more than the supposed purchase price. He relied on D.P.P. v. Nock(1) which decided that there can be no conspiracy to commit a crime which is impossible. We do not find it easy to construe Nock(1) in view of the general rule that a conspiracy is complete when the agreement to commit a crime is concluded, whether or not steps are later taken to carry it out. The case appears to have turned upon the extent of the conspiracy which could properly be inferred from the facts proved, but, fortunately, we are not called upon, for the reasons given below, to decide this difficult matter. 41. It seems to us that the core of the conspiracy to defraud was not that a false valuation should be submitted to the bank in order to obtain credit facilities but that an assignment which contained a false statement of the purchase price which had been paid for the Shun Ning property should be used to secure credit. 42. We are satisfied that D3 knew that the assignment of Shun Ning, containing the false purchase price, was to be used to obtain credit facilities. The bogus second assignment contained a significant lie, which was intended to show that the property had recently changed hands at $220,000 and not $110,000. The increased price would clearly be a factor likely to increase the amount of credit facilities which would be given, as indeed it was on the admitted facts. 43. Although, at a later stage, there was a valuation which accorded with the false purchase price, this does not affect the matter. The lie which was told, that D1 purchased Shun Ning for $220,000, remained a lie, and its use to secure enhanced facilities remained a deception and a defrauding of the Thai Bank. 44. "To defraud is by deceit to induce a course of action": per Buckley, J. in Re London and Globe Finance Corporation, Ltd.(2) (The subsequent criticism of Buckley, J's judgment is not material to the present discussion). It is the adoption of a course of action by the victim which constitutes the detriment to him and it matters not whether that course of action results in loss. Suppose X, by deceit, persuades Y to buy shares in a company. That is fraud even if, in the event, Y is able to sell the shares for more than he has paid. In the present case the lender never stood to gain if the security turned out to be more than the amount of its advance but, on the other hand, it did run the risk of losing if the value of the property proved to be substantially less than $220,000, as the defendants believed it would. It is enough that the bank might not have lent as much money as it did to the first defendant's company if it had not believed that the property had changed hands at a price of $220,000: on the admitted facts that transaction was a factor which led it to conclude that it could safely lend the sum which it did advance. In Scott v. Metropolitan Police Commissioner(3), the House of Lords cited with approval a passage from Vol. 2 of Stephen's History of the Criminal Law of England (1883) at p. 121 where he said:
(b) Was the evidence sufficient to support the particulars? 45. It was strenuously argued on behalf of D3 that the evidence did not support the particulars of the conspiracy charged in two respects -
46. In general terms, it may be said that a defendant is entitled to be acquitted, if the evidence adduced at the trial does not substantially support what is alleged in the particulars which contain the case which he has to meet. This does not mean that he is entitled to be acquitted if there were minor variations between the particulars and the evidence. 47. Some reliance was placed by the appellant on R. v. Pollman(4). In this case, decided in 1809, Lord Ellenborough said -
48. What this means, in effect, is that you may not charge one conspiracy and prove another and that if the evidence fails to substantiate any important particular of the conspiracy alleged, the defendant is entitled to be acquitted. 49. If the difference is of such a nature that the case proved against him differs in material respects from that alleged it is open to the Crown to seek amendment of the particulars. If it fails to do so, the conviction may well be quashed. 50. But it is neither the law, nor common-sense, that an accused should be entitled to be acquitted because every particular alleged is not substantiated. For instance, if X is charged with the theft of three named articles, he will not be acquitted because one of them is misdescribed, though still identifiable, or if he is shown to have stolen two of the three articles, even if the particulars are not amended during the trial. 51. On the evidence of PW1, taken literally, it was not made clear to D3 as to whether D1 was applying for credit facilities in his personal capacity, or on behalf of the company. But surely what really matters is that D3 knew that D1's intention was to secure credit by the use of the false assignments to be prepared by D3. 52. Nor does it seem to us to be a matter of substance whether D3 was told that the credit facilities were to be obtained only from banks, as alleged in the particulars, or whether he knew of no such limitation. Here the greater could be said to include the lesser, so that D3 must have realized that among those who might be defrauded would be banks, which are surely the most common source of credit facilities. 53. We therefore conclude that the discrepancies between the evidence and the particulars were not of sufficient significance to justify the conviction being upset on this ground. The agreement proved was substantially that alleged and no possible misunderstanding can have resulted from the difference. (c) D3's involvement in the conspiracy 54. It is not necessary, in order to establish a charge of conspiracy against a supposed conspirator, to show that he was a member of the conspiracy throughout its life, or that he knew of every aspect of the conspiracy and took positive steps to forward it in all respects. 55. It is sufficient to show that the conspirator entered the conspiracy at some time during its existence and that at some point he furthered its objectives, knowing what those objectives were in general terms, even though he did not know all the details either of the purposes of the conspiracy or the means by which they were to be advanced. 56. The Crown has always admitted that the part played by the third defendant was a minor one. The proposal to inflate the purchase price in order to obtain credit, which was the essence of the conspiracy had been discussed between D1 and D2 before they met D3. His part was limited to giving advice as to the best way to achieve the object of obtaining enhanced credit facilities and to draw up some of the documents which were used to persuade the Thai Bank to grant them. 57. It was argued that D3 did no more than carry out his normal professional work, and that he could not be regarded as a conspirator because his work was misused. It was said that it was no business of his as to whether or not his conveyance was employed for the purpose of deception. He had done nothing himself to forward that deception. 58. We do not think that this is so. If a person is asked to perform a task, in the ordinary course of business, knowing that this will be applied to the furthering of a crime, he becomes a conspirator himself, since he has knowingly assisted in its furtherance. For example, a shop-keeper would himself become liable for conspiracy to rob if he supplies a customer, at the latter's request, with a mask which the customer tells him is needed for use in the burglary of a factory that evening. 59. In this connection, Devlin, J. observed in National Coal Board v. Gamble(5) at p.207 -
60. In this case, D3 did "supply the instrument" when he prepared an assignment containing a fictitious sale price knowing that it was to be used in order to obtain credit. He went further, in that, before preparing the document he advised D1 and D2 as to the best method by which their object (i.e. obtaining additional credit) might be achieved. 61. Thus our conclusion is that, limited though D3's part was in the conspiracy, there was sufficient evidence to justify the judge in finding that he took part in the conspiracy alleged in charge 3. Date: 12th March, 1981. Conduct of trial 62. On the 16th October, 1980, we dismissed the application of the third defendant (D3) for leave to appeal against his conviction. 63. However, we had agreed that counsel for this defendant might reserve his last ground of appeal until after our decision was delivered on his other grounds. We heard argument on this last ground on the 2nd and 3rd March. 64. The re-amended grounds of appeal, which were submitted on the 21st October, 1980, read, in relation to this ground, as follows -
65. It should be noted that counsel whose conduct is criticized on behalf of the appellant, did not appear before us on the appeal. We shall refer to him as Mr. A in our judgment. Criticisms of counsel's conduct of case 66. Counsel for the appellant argued that the appeal was not based on an assertion of negligence by Mr. A in his conduct of D.3's case at his trial, nor on any complaint of professional misconduct by Mr. A. He was at pains to point out that, in a Criminal trial, these matters are irrelevant and that his submission, that the proper course was to order a retrial, was founded on the likelihood of there having been a miscarriage of justice by reason of the manner in which the defence was conducted. 67. However, we do not see how we can avoid having to consider whether or not Mr. A was guilty of negligence in his handling of the defence, or of refusing to follow specific instructions, before we can reach the conclusion that there may have been a miscarriage of justice, since it is not suggested that there could have been any other basis for reaching such a conclusion than that Mr. A had been guilty either of negligence or of an improper failure to carry out the instructions of his lay and professional clients. History of Instructions 68. At least seven days before the opening of the trial on the 7th January, 1980, Crown Counsel who was prosecuting in this matter provided to Arthur Au and Company, D.3's solicitors, a summary of the evidence which the Crown proposed to call, in accordance with the established practice in the District Court. 69. This summary included a paragraph which set out in condensed form the evidence of CHAN Shing-hon (Mr. Chan) described in the summary as P.W. 13. 70. According to that summary, the essence of the evidence which he was expected to give was as follows -
71. The summary of evidence contained no other matter which incriminated D.3 in any way, and it must have been clear to D.3's solicitor and counsel that the Crown was alleging that the "agreement" of D.3 established that the latter had taken part in the conspiracy to defraud, even though his part in it would be limited in time and in scope. Conference on the 5th January 72. A conference was held on the 5th January, two days before the trial began, in the Chambers of Mr. A, to consider the way in which D.3's case should be presented to the court. 73. At this conference were present, in addition to Mr. A himself, D.3, Mr. Henry Liu, a solicitor's clerk employed by Arthur Au and Company, and Mr. Emmanuel Yip Kin-ming, another clerk employed by the same firm of solicitors. 74. According to Mr. Liu and Mr. Yip, there was a general discussion on the merits of the case. D.3 is said to have pointed out to counsel that there was only one prosecution witness, Mr. Chan, who would implicate him. 75. Mr. A admits in his affidavit that he had received the summary of evidence the day before the conference and may thus be presumed to have read it before this took place. 76. Mr. Liu and Mr. Yip agree that D.3 gave specific instructions to Mr. A, through Mr. Liu, that D.3 had not taken part in any agreement to defraud, as alleged by Mr. Chan, and that all he did was to follow instructions, which were given to him in his professional capacity, to prepare the necessary documents to give effect to the sale and purchase and re-sale and re-purchase of 435 Shun Ning Road. 77. According to Mr. Liu and Mr. Yip, Mr. A knew that this was the defence, at least from the time of this conference, during the course of which D.3 gave specific instructions to Mr. A, through Mr. Liu, to challenge CHAN Shing-hon's allegation that D.3 had agreed with D.1 and D.2 to defraud, and to deny the existence of any such agreement. 78. In his affidavit of the 14th October, 1980, Mr. A agreed that a conference took place on the 5th January, between himself, D.3 and Mr. Henry Liu and another representative of Arthur Au and Company (presumably Mr. Yip), but commented as follows on the assertion that he had received specific instructions to challenge Mr. Chan's evidence -
79. We should pause to comment that we find it difficult to accept Mr. A's assertion that he did not know what CHAN Shing-hon was to say at the forthcoming trial. Mr. A, in an earlier paragraph of the same affidavit, stated that he had received a summary of evidence on the 4th January, the day before his conference. This summary must have made it clear to him the substance of what CHAN Shing-hon was expected to say, even though a summary does not contain all the details of a witness' testimony. Course of trial 80. About a week before the trial began, it had been agreed between Mr. Arthur Au, the solicitor for D.3, and Crown Counsel who was prosecuting, that Mr. CHAN (who appeared as P.W.13 in the Summary of Evidence), should be called by the Crown as its first witness. Crown Counsel agreed to do this, after discussion with Mr. Au, on the basis that the evidence against D.3 was limited to that one witness, even though this would mean that the evidence as a whole would be taken somewhat out of sequence. 81. Mr. Au, in the affidavit which he filed, does not make any reference to this aspect of the matter. We were informed by counsel for D.3, however, that Mr. Au failed to pass on the terms of Crown Counsel's offer to Mr. A, a surprising omission on Mr. Au's part. 82. In paragraph 4 of his second affidavit, sworn on the 2nd March, 1981, Mr. A denied that he was caught by surprise by the Crown electing to call Mr. Chan to give evidence first. In support of his denial, he refers to the transcript of a further conference, held on 26th January, to which we shall refer later. 83. Suffice it to say that, whatever interpretation may be placed on the relevant passages in the transcript, we do not see how Mr. A could have been prejudiced in his conduct of the defence by the decision of Crown Counsel to change the order of witnesses, a change be it noted which was offered by Crown Counsel (whose evidence on this matter we accept) to Mr. A's instructing solicitor some days before the giving of evidence by Mr. Chan. Assuming that Mr. Au, the solicitor, failed to inform Mr. A of the change, it was certainly conveyed to him in chambers by Crown Counsel on 11th January, prior to the opening of the Crown Case on that date. 84. Mr. A had received the summary of evidence on 4th January. He had conducted a conference with his lay client and a clerk of his instructing solicitor on 5th January. He had had ample time to decide how to conduct the defence. He knew that only Mr. Chan constituted a threat to D.3; that this was clear beyond doubt to him is obvious from the fact that, after Mr. Chan's evidence, he sought leave to absent himself from the trial in order to prepare a submission of no case. 85. At no time did Mr. A protest that he was caught unawares. We are sure that he was not and that there were no grounds at all on which he could have reasonably mounted such a complaint. We therefore discount the change of the order of Crown witnesses as having any bearing on the questions which we have to decide. Course of trial 86. The trial opened briefly on 7th January, but was adjourned, before any evidence was led, in order to give counsel an opportunity to agree as many facts as possible. 87. On 11th January, Crown Counsel opened his case and called Mr. Chan as his first witness (P.W.1). Mr. Chan's evidence accorded substantially with what had been predicted in the summary of evidence. 88. Mr. A cross-examined him briefly as to his previous relationship with D.3 and extracted from Mr. Chan an admission that he had not met D.3 before the meeting in the offices of SO Ho-ming solicitors at which D.3 advised as to the best way of obtaining enhanced credit facilities. 89. Mr. A did not put to Mr. Chan the substance of D.3's defence as summarized above. 90. At the conclusion of Mr. Chan's evidence, Mr. A sought and obtained the leave of the judge, to withdraw to prepare for his submission of no case to answer. This was an unusual course and not one to be commended save in unusual circumstances. 91. However, both sides and the judge seem to have been firmly of the opinion, which was fully justified in the event, that no other evidence would emerge to the discredit of D.3. On 15th January, well before the conclusion of the Crown case, Mr. A tendered in writing, a submission of no case to answer. This was overruled by the judge. Conference of the 26th January 92. On 26th January, just before the conclusion of the Crown case, Mr. A held a further conference in his Chambers, with D.3, and Mr. Liu. The conference was recorded on tape by Mr. A and a transcript was put before us. 93. The object of this conference, according to Mr. A's voice on the tape, was to advise D.3 on his chances of acquittal. 94. The substance of his advice was that, although the judge had ruled that there was a case to answer, this did not mean that there was sufficient evidence to justify the conviction of D.3 and that he (Mr. A) evaluated the chances of an acquittal as high as 90%. 95. He advised that "Mr. Keung should not give evidence in court". 96. He then dissected the evidence against D.3, as he saw it, and advised that there was no evidence that D.3 was party to any conspiracy. 97. He explained his advice that D.3 should not give evidence (with which he said that counsel representing D.1 and D.2 had agreed) on the basis that D.3 could add little to his case and might endanger himself if he went into the witness box. However, if D.3 remained silent, Mr. A thought that there was no evidence on which the judge could convict. 98. Mr. A added "the final say is yours" and asked D.3 to give the matter careful consideration over the weekend and to let him know on Monday if he (D.3) still wished to give evidence and said "I think you should not give evidence." 99. Later in the transcript, having explained that the law, as he saw it, would not sustain a conviction of D.3 on the evidence of Mr. Chan, Mr. A said "I advise Mr. Keung again to think carefully before electing to give evidence." He suggested that D.3 should discuss this question with Mr. Au. 100. There is a puzzling passage in the transcript to which reference was made by counsel and which reads -
101. Mr. A, in his affidavit of 2nd March, 1981, denies that he was taken by surprise, even if the above passage of the transcript suggests this. He asserts that the word "by" should have appeared in the transcript, as the allegation was made by D.3. 102. In any event, he adds, Crown Counsel had asked if he had any objection to a change of order and he had said that he did not. 103. What is more, the change of order had not affected his decision not to cross-examine P.W.1, save to the limited extent referred to above. 104. It seems to us, as we have said above, that Mr. A could not have been prejudiced by the change of order of witnesses. Nor do we think that he ever objected to it, or that he wanted to do so. 105. The transcript as it appears does not make sense without the interposing of an indication of whether the suggestion was "by" or "to" you (i.e. whether the suggestion emanated from Mr. A or D.3). It seems more likely that the suggestion would have come from D.3 but we do not think, as we have said above, that it matters who suggested it, since we do not consider that the switch of witnesses can have had any significant effect on the trial. Failure of D.3 to give evidence 106. D.3 complains, in his affidavit of 4th September, 1980, that Mr. A tried to dissuade him at the conference on 26th January from giving evidence. 107. He asserts that his instructions to Mr. A were "always that I would give evidence". He refers to the passage in the transcript where Mr. A says that D.3 should let him know on Monday, if he still wanted to give evidence, but says he thought it was for Mr. A to ask him again if his instructions (that D.3 wished to give evidence) had been changed. 108. Mr. Liu's affidavit states that Mr. A strongly advised D.3 against giving evidence and that D.3 renewed his request to do so, "but again gave way to the wishes of counsel to the contrary." 109. Mr. Au, the solicitor, states in his affidavit that the choice of whether or not to give evidence "was left to Mr. Keung". He thinks that Mr. A advised D.3 not to give evidence and that "that advice was accepted by Mr. Keung." 110. Mr. Yip does not mention this matter in his affidavit. 111. In his second affidavit, D.3 admits that he discussed Mr. A's advice, on 27th January, with Mr. Au, who advised him to accept counsel's advice. 112. The Crown's case was formally closed on Tuesday, 29th January, when, according to the record, counsel informed the court that "D.3 elects not to give any evidence." 113. Mr. A asserts that he asked the judge to ask D.3 if he wished to give evidence or remain silent, but that the judge was of the opinion that this was not necessary as D.3 was legally represented. No note of this appears in the record. 114. If this is what happened in court, we see nothing irregular in it. A judge is entitled to accept an assurance put forward by counsel, who is the mouthpiece of his client, that the latter does (or does not) wish to give evidence. 115. D.3 admits that he did not say anything to the contrary, when Mr. A announced that he had elected not to give evidence, because he was "confused in my mind as to what to do." 116. It seems to us to be likely that D.3, having heard the very strong advice of Mr. A, supported by that of his solicitor, that he should not give evidence, reluctantly accepted it and did not, as Mr. A had said he should do if he changed his mind, insist on the 28th that he still wanted to give evidence. Nor did he protest when Mr. A informed the judge to this effect. 117. We think that it was only later, probably after his conviction, that D.3 began to persuade himself that he never agreed, as we think he at least gave the impression to his legal advisers of having done, not to give evidence. 118. We thus see no force in the submission that he was prevented by Mr. A from exercising his choice to give evidence. 119. We do not have to reach any conclusion as to the quality of the advice which Mr. A gave as to whether D.3 should give evidence. But we can say that it was delivered after some thought and was accompanied by a full explanation of his reasons for that advice in the conference of the 26th January. Was counsel "guilty of negligence"? 120. The substance of Mr. Jackson-Lipkin's argument was that there was a likelihood of a miscarriage of justice because Mr. A did not challenge the prosecution evidence against him, or put D.3's case to Mr. Chan (P.W.1), or permit D.3 to give evidence; that thus D.3 was not permitted to put his case and that there was therefore no proper trial at all. We have dealt with the defendant's failure to testify. We must deal with the other contentions. 121. If counsel can be shown to have been guilty of gross negligence in the conduct of a criminal defence, he may well be subject either to disciplinary action, or perhaps to civil proceedings (see Rondel v. Worsley(1)). 122. If he is so found there may (and we go no further than this for there are no authorities at all on this matter to which our attention has been drawn) be occasions on which by reason of such negligence, which must be of a high degree, the defendant was so prejudiced that it would be said that he had not been accorded a fair trial. 123. But in our view this consideration would only arise if it can be shown that counsel was negligent. Was Mr. A negligent in his conduct of this case, and in particular in his failure to challenge Mr. Chan (P.W.1) by putting to him in cross-examination the substance of D.3's case. 124. It is apparent from Mr. A's affidavits that his decision not to challenge Mr. Chan (P.W.1) in this way was due -
125. It is in accordance with proper practice for counsel to put to the witnesses called for the other side, the substance of his own case. If he fails to do so, this is, however, more likely to cause unfairness to the other party than to his own client. It hardly amounts by itself to a grave irregularity. 126. Thus Mr. A saw the defence as being essentially one of law and he was obviously confident of his chances of success, since he made it at a very early stage in the Crown case. In the event, his confidence was misplaced, but we cannot say that his arguments were unworthy of serious consideration nor that they were doomed to failure from the start. 127. Nor are we prepared to say that, taking the case as it was known to him at the time when he reached his decision, he must necessarily have been guilty of a serious error of judgment in taking the course which he did. 128. So we are not prepared to find that any degree of culpable negligence on the part of Mr. A has been shown. Nor are we prepared to say that his assessment of what was best for his client was necessarily wrong or unreasonable. 129. From this it follows that, if his general conduct of the case cannot be said to have been clearly negligent, there can be no reason to consider whether his conduct of it, in this respect, could have caused a miscarriage of justice. Did counsel disobey instructions 130. Mr. Yip does not mention, in his affidavit, the giving of any instructions as to how counsel should conduct the defence, at the conference on January 5th. Nor does Mr. Au, the instructing solicitor, who states only that he cannot provide any information other than that of Mr. Liu, his clerk. 131. The latter, however, states that D.3 gave specific instructions, through him, to Mr. A to challenge Mr. Chan's allegation, that D.3 agreed with D.1 and D.2 to defraud anyone, and to deny the existence of any such agreement. 132. He also says that, at the close of the Crown case, D.3 gave specific instructions through him to tell Mr. A to recall Mr. Chan so that the defence case should be put, but that Mr. A refused to do this, saying that it would be of no use. 133. D.3 alleges that at the conference before trial on 5th January, he gave instructions to Mr. A to cross-examine Mr. Chan with the object of destroying the latter's allegation of an agreement to defraud. 134. Mr. A states in his affidavit "I remember positively that neither the appellant nor Mr. Liu gave me any instructions to challenge CHAN Shing Hon's evidence." 135. In the transcript, he said, at the conference on 26th January that "unfortunately it was not challenged because at that time I didn't hear your instructions." 136. In his affidavit, Mr. A sets out the reasons why he considered it was dangerous to have cross-examined Mr. Chan on the "alleged agreement". 137. He adds that he recalls a discussion with D.3 and Mr. Liu, near the end of the prosecution case, as to the possibility of seeking to have Mr. Chan recalled, but that he did not do so because the dangers of recalling him remained. 138. We do not think that any weight should be given to the slight difference between Mr. A's clear denial in his affidavit that he was told to challenge Mr. Chan's evidence and the passage in the transcript where he says that he did not hear them. Each amounts to a denial that he had any such instructions, even if the denials are couched in different terms. 139. It would, as Mr. A says in his affidavit, be unusual for a solicitor's clerk and a defendant to instruct counsel as to how to conduct the defence. In passing, we note that, although in the brief delivered by Arthur Au & Company dated 4th January, there were no such instructions, this is not surprising since that brief was prepared before the summary of evidence was available; no supplementary written instructions were issued thereafter. 140. If we were obliged to reach a finding as to which version we accepted with regard to the giving of a specific instruction as to how counsel should conduct the defence, we would be inclined to accept the version of counsel that he had no such instructions. 141. This view may be said to gain some support from what D.3 himself says in paragraph 3 of his affidavit of 4th September. Although he there alleges that his instructions to counsel were to challenge the existence of any agreement to defraud, and to cross-examine CHAN Shing-hon accordingly, he appears to admit that he knew that the purpose of the double conveyance was to inflate the purchase price. 142. As the advising expert it seems very unlikely that he would not have queried the purpose of such an unusual manoeuvre. He does not say that he did so, or that he was given any explanation for it other than that which was attributed to CHAN Shing-hon in the summary and later given by him in evidence. 143. Instead, D.3 maintained that his part in advising upon the agreement to inflate the price was "but an act of taking instructions". On the face of it this does not seem to be very different from the line taken by counsel, viz: that D.3's advice as to how the agreement might be framed did not make him a party to the conspiracy. 144. However, for the purposes of this judgment, we are prepared to assume that D.3, and Mr. Liu, the solicitor's clerk, did tell Mr. A that they wished him to challenge the evidence of Mr. Chan and that Mr. A heard these instructions but refused to act on them. 145. What, therefore, is the result of a failure by counsel to carry out instructions given by his client as to the conduct of the latter's defence? 146. There are occasions when counsel ought to refuse to follow them; for example if his client wishes counsel to attack the character of a witness but cannot adduce any evidence in support of such allegations. In those circumstances, if the client persists, the proper course is for him to inform the client persists, the proper course is for him to inform the client that he is not prepared to do as his client wishes and that he is not prepared to do as his client wishes and that he is prepared to return the brief if the client insists on launching such an attack. 147. If, however, there is nothing improper in the instructions, but counsel merely takes the view that, if followed, they are likely to injure the defendant's case, is he entitled to ignore them? We are prepared, for the purpose of this judgment only, to assume that Mr. A did so. 148. We express no view as to whether or not such a refusal may amount to professional misconduct, of a nature which may render him liable to action by whatever body controls the conduct of counsel. Nor do we consider whether he might be liable in damages in a civil action, on the ground of a breach of his duty and/or negligence in this respect. 149. For we are asked to say that his refusal to cross-examine Mr. Chan, as instructed, resulted in a miscarriage of justice. 150. Mr. Jackson-Lipkin urged us, more than once, not to be intimidated by the fear that an order for retrial, on this basis, would release a flood of appeals based on similar grounds. While we would not permit such a fear to prevent us from taking a course which we thought justice required in any individual case, the effect of precedent, in our system, can never be ignored. 151. If we agree that there was (or may reasonably have been) a miscarriage of justice by reason of Mr. A's disobedience of instructions to question Mr. Chan, would we not be obliged to reach the same conclusion if counsel, without any such specific instructions but in the exercise of his discretion as counsel, had decided not to do so? 152. We can see no difference (since it is the practical effect which matters) between counsel conducting a case in a manner which conflicts with his instructions and conducting it in that same manner where he receives none. In each instance, it is to be assumed, in the absence of evidence to the contrary, that he acted in accordance with his own assessment of the best way in which to conduct the case on behalf of his client. It is not for the courts to substitute their judgment on how a case should be conducted, for that of counsel. 153. In the result, even if the defendant issued instructions as he claims, we do not consider that the refusal of his counsel to conduct the case as his client wanted can, in the circumstances of this case, be a ground for regarding the conviction as unsafe. 154. The application of Keung Ping-kai for leave to appeal against conviction is therefore refused. Representation: (1) (1978) 2 All E.R. 654 (2) (1903) 1 Ch. 728, 733. (3) 3 All E.R. 1032. (4) 170 E.R. 1139. (5) (1958) 3 All E.R. 203. (1) (1967) 3 A.E.R. 993. |