The Queen v. Yeung Kin Man

CACC000337/1985

Coram:  Hon. Li, V.-P., Kempster, J.A. & Hunter, J.

Dates of Hearing: 15 & 19 November 1985

Date of Judgment: 19 November 1985

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JUDGMENT

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Li, V.-P. :

1. On the 23rd of July the applicant was convicted of two counts of possession of dangerous drugs for the purposes of unlawful trafficking. He was sentenced to ten years imprisonment in respect of each count - the sentences to run concurrently. The conviction took place following a trial which began on the 22nd of July before a judge and jury. The verdicts were unanimous. It took the jury only 47 minutes to reach them. On the 12th of August he applied for leave to appeal against conviction and sentence.

2. In his homemade grounds in support of his application he said that the judge erred in refusing to grant him an adjournment of trial on the 22nd of July despite short notice of the trial and in failing to grant him legal aid. He further complained that the Court interpreter had not accorded him with the full translation of the proceedings so that he had not a full picture of what was going on thereby denying him a fair trial. His further grounds of appeal were matters of arguments touching upon the merit of his case and evidence.

3. Learned counsel assigned to him for the purpose of this appeal relied on one revised ground only. He complained the trial judge erred in law in having wrongly exercised his discretion not to allow the applicant's application for his trial to be adjourned so that he might instruct the counsel to represent him therefore rendering the conviction unsafe and unsatisfactory. The facts which led to the learned judge's refusing the application were recorded. It is necessary to refer to them in order to give a clear picture.

4. On the 22nd of July 1985 the applicant having pleaded not guilty the judge said this to him:

Mr. Halley, learned counsel for the Crown, quite properly informed the judge that he was ready to proceed and that the matter was a brief matter and if representation could be obtained on Monday, the 22nd of July, for example, the trial could still start and probably finish within the week. Then the court resume.

Mr. Halley replied that he hadn't had an opportunity so check, and certainly the officer-in-charge has not come in.

5. There was a short adjournment and a telephone conversation as we now understand between the trial judge and the Director of Legal Aid. The gist of she conversation is now before us in the form of an affidavit by Mr. Moss, Director of Legal Aid. When the court resumed Mr. Halley confirmed that the witnesses were there. The judge said that the jury has been specifically brought in for the day. Mr. Halley informed his Lordship that everything was in his Lordship's hand as to what course of action was to take. The judge decided to proceed wish the hearing. He then told the applicant his right to cross-examine Crown witnesses, to give evidence himself, to call his own witnesses and, in addition, he also explained the presumption of law that was involved in a dangerous drugs case and asked the applicant whether he understood. The applicant replied: "Not quite. " There was the following conversation:

The judge observed that it was clear that he knew the contents of those depositions and that he knew the substance of the Crown's case against him that it was a simple and straightforward case and that it would be the accused's duty to put the witnesses and his version of the offence or the facts particularly where he disagreed with what the witness said. The judge then refused to grant an adjournment and proceeded with the hearing of the case.

6. Having regard to the aforesaid circumstances it appeared to us that the learned judge was correct in refusing an adjournment to allow counsel to be instructed on the facts made known to him. However, owing to the applicant not being articulate, there was additional evidence relating to the application of which the judge was not informed. Further some of the evidence was not available at the time of the trial. For this reason we grant leave to counsel for the applicant to adduce additional evidence in the form of affidavits and affirmations there being no objection from counsel for the Crown. The additional evidence disclosed that the applicant was arrested on the 26th of April 1985. He was committed for trial on the 26th of June 1985 and throughout the committal proceedings the applicant was legally represented by a firm of solicitors, Messrs. Y.K. Poon & Co. who were instructed to appear by the applicant's brother. For this reason the applicant declined legal aid at the early time. Early in July the applicant handed all the copies of the depositions and statements of witnesses to a representative of Y.K. Poon & Co. so that they could prepare his defence and advise the applicant's brother as to the expenses involved. Thereafter the applicant had no further visit from this representative or from his brother. In the meanwhile the applicant was remanded in Lai Chi Kok Reception Centre and could not contact the brother. The applicant was getting anxious and he indicated by the 18th of July that he wished to apply for legal aid. On the 20th of July, which was a Saturday, an urgent Body Order was issued to bring the applicant to the High Court for trial on the 22nd of July - the date on which he was scheduled to give information in respect of his application for legal aid. As there was no adjournment there could be no interview to take particulars in respect of the applicant's application. At the time of his request, namely the 18th of July 1985, there was no indication that the trial was to commence on the 22nd of July 1985. Mr. Grant of the Lai Chi Kok Reception Centre confirmed that even if the trial date were made known on the 18th of July there would not have been sufficient time to process the applicant's application.

7. As Crown counsel observed, the whole case indeed was a brief matter. He did not oppose an adjournment though he, quite properly, informed the judge that he was ready. The issue was a simple one.

8. The prosecution evidence was that the defendant was observed to enter a room at 72 South Wall Road in Kowloon by two police constables. After half a minute he emerged from that room. The police then confronted him, disclosed their identity and told him to stop. The applicant then ran. He was chased, caught at the junction of Carpenter Road and South Wall Road. There was a struggle. He was subdued and searched. Two polythene bags of dangerous drugs were found in his trouser-pocket, as was a bunch of four keys. This constituted the subject matter of the first count. He was taken back to the room from which he emerged. A search was conducted. Further dangerous drugs were found in that room. That constituted the subject matter of the second charge. The room door was opened with one of the keys found in his possession.

9. The defence evidence was a general denial. The applicant said that since 1983 he conducted a cooked-food stall business and for that purpose he rented that particular room in September 1984 to keep his utensils, tables and chairs. He had helpers who also had keys to that room. In the beginning of April 1985 he had his tables and chairs stolen from the room and he had to cease business.  He worked for a construction company as from mid-April 1985. On the 26th of April he arranged to meet his brothers in South Wall Road. He met his friends. After a chat he went for a soft drink. On his way he was tackled by the two strangers and he was subdued. He was taken to the entrance of South Wall Road. One of them picked up two packets from the wayside near the pavement. He was then taken upstairs. No key was found on him. While squatting in the corridor upstairs someone came with some keys and gave them to one of the officers as the strangers turned out to be. He never saw the police testing the keys on the door. Nor did he see any dangerous drugs found in that room. He also offered the information that one of his brothers told him it was the brother who had the dangerous drugs. Such was the defence to the case against the applicant.

10. There was no complaint as far as the summing-up is concerned. The only complaint was that of the refusal to grant an adjournment. Going through the transcript we found that the judge did direct the jury in a fair and proper manner. The issue was one of credibility of the prosecution witnesses. The prosecution witnesses, by their evidence said that the applicant was caught red-handed. The applicant, on the other hand, said that he was framed by the police witnesses. The question was whether the police were truthful or they were determined, as the applicant alleged, to frame the applicant. It did not take the jury long to accept the evidence of the prosecution witnesses and reject that of the applicant.

11. On the other hand the applicant did not have the depositions with him at the trial. The papers had not been returned to him by Y.K. Poon & Co. Nor had he, the applicant, the advantage of being legally represented in the preparation of his defence or in cross-examination of witnesses.

12. Such a situation fortunately is rare in Hong Kong but it is not unknown to other parts of the Commonwealth countries, The case of Galos Hired, 1944 A.C. 149, is of little assistance because the appeal was allowed on the basis that the applicant was entitled as of right to have counsel assigned to conduct his appeal under the Poor Persons Defence Ordinance in 1939 of the relevant Territory. However, it is of interest to observe that absence of defence counsel was due to difficulty of war-time transport and the judge did not enquire as to the cause of the counsel's absence or the probable date when counsel would be expected to arrive and be available. This left the appellant without legal representation and having to conduct his own appeals. Their Lordship's observation at p. 154 is of interest. Delivering the judgment of the Judicial Committee of Privy Council, Viscount Haugham said:

"It seems to their Lordships that the provisions as regards the right of a convicted person are not of a merely directory character. Sub-section 2 provides that poor persons in the position of the appellants, having been convicted at the trial, are entitled as of right, on lodging an appeal, to have an advocate assigned to them for the preparation and also for the conduct of such appeal. In the case of Somali natives, who would probably be illiterate, and, therefore, completely unable to make any criticism on the written judgment of the trial judge, even if they could read it, it is clear that the provision is of the utmost importance where the penalty is the death sentence. - The necessary for an assignment of counsel for the purpose of 'conducting an appeal' seems to their Lordships to involve the necessity of seeing that it will be possible for the counsel to be present at the hearing. An appreciation was called for or the difficulties which, in such a case as their Lordships have before them, might well make it impossible for counsel to cross 150 miles of sea by an adequate ship in time to be present on the date originally fixed for the hearing of the appeal. The assignment of counsel in the present case was made of no effect. These considerations seem not to have been present to the mind of the judge sitting as the Appeal Court, and, in the view of their Lordships, the provisions of s.3 of the Poor Persons Defence Ordinance, so far as regards the appeal, have, as a matter of substance, been disregarded. They will add that there does not appear to have been any special reason why the hearing of the appeal should not have stood over for a few days to enable Mr. Manilal to attend, and their Lordships are informed that he, in fact, arrived in British Somaliland on July 2, 1942, so that a comparatively short adjournment would have enabled him to attend and to argue the case on appeal.

The importance of persons accused of a serious crime having the advantage of counsel to assist them before the courts cannot be doubted by anybody who remembers the long struggle which took place in this country and which ultimately resulted in such persons having the right to be represented by counsel. - Just as a conviction following a trial cannot stand if there has been a refusal to hear the counsel for the accused, so, it seems to their Lordships, an appeal cannot stand where there has been a refusal to adjourn an appeal in which the appellant was entitled as of right to be heard by a counsel assigned to him by the government who was unable, without any default on his part, to reach the court in time to conduct the appeal. "

13. In Mary Kingston's case, (1946-48) 32 C.A.R. 183, counsel did not appear due to a misunderstanding as to the time of hearing which was brought forward without notice to counsel. As a result the accused had no legal representation and there was no cross-examination. The Court of Appeal held that the trial judge was correct in refusing an adjournment and that it would not have interfered but for the fact that the judge refused another counsel's offer to hold a watching brief on behalf of the appellant's counsel during his absence. Counsel's absence was due to no fault of his own. The Court of Appeal said the appellant had a right to be heard through counsel. At page 188 Humphreys, J. delivering the judgment of the court said:

"Now, it seems to us that that was tantamount to depriving the appellant of the right which she had of being defended by counsel. She had put herself or her family had put her, in the position of a person who was entitled to the services of counsel. Money had been paid for that purpose by them, and she was entitled by the law of this country to the services of counsel. The result of the whole matter is that, having briefed counsel, she has in fact been tried as an unrepresented person, there being other members of the Bar present, any of whom would have defended her if he had been asked, but of course could not come forward and offer to do so. The result is that the jury have never had any opportunity of knowing what was the defence to this case or hearing any cross-examination of the witnesses for the prosecution. "

Later his Lordship said:

"The circumstances of this case are such that we have two courses open to us. Either we must ignore all that happened at Manchester and say that there is nothing before us which would justify our quashing this conviction, or we must say that the whole matter is so unsatisfactory that we think the conviction ought not to stand. On the whole, we have come to the conclusion, though not without considerable hesitation, that the lesser of the two evils is to quash the conviction, because it is always better that a guilty person should escape conviction than that a possibly innocent person should be convicted. For that reason, this appeal is allowed and this conviction is quashed. "

14. In the case of Howes, (1964) 48 C.A.R. 172, where the selected counsel for a dock brief could not appear and had to return his brief to the applicant without informing the court the applicant did not apply for another dock brief until the second day of trial. The judge refused the application on the misunderstanding that the appellant had withdrawn her instructions from the first counsel. The Court of Appeal while holding that counsel was duty bound to inform the court in addition to returning the brief to his lay client dismissed the appeal because the evidence in that case was overwhelming.

15. The fact in the case of Robinson, (1985) 3 W.L.R. 85, were nearer to those in the appeal before us. There counsel did not appear because they had not been paid their fees in full. When they appeared they merely applied for leave to withdraw and for an adjournment to enable the appellant to apply for legal aid. Both applications were refused. The appellant was left without legal representation. On appeal to the Judicial Committee of the Privy Council the issue first determined was whether section 20 of the Constitution of Jamaica, was entitled the appellant to an absolute right of legal representation and whether the refusal to adjourn hearing to enable the appellant to arrange for alternative legal representation caused a miscarriage of justice. The majority of their Lordships held that there was no such absolute right and dismissed the appeal because there had been no miscarriage of justice on the evidence of case. It is to be observed that in that case the date of trial, albeit adjourned for no less than 19 times, was fixed well in advance before the actual date of hearing and the accused did not apply for legal aid earlier. Delivering the majority opinion of the Board Lord Roskill said that:

"In their Lordships' view the judge's exercise of his discretion, which counsel for the defendant rightly conceded to exist, can only be faulted if the constitutional provisions make it necessary for the judge, whatever the circumstances, always to grant an adjournment so as to ensure that no one who wishes legal representation is without such representation. Their Lordships do not for one moment underrate the crucial importance of legal representation for those who require it. But their Lordships cannot construe the relevant provisions of the Constitution in such a way as to give rise to an absolute right to legal representation which if exercised to the full could all too easily lead to manipulation and abuse.

In the present case the absence of legal representation was due not only to the conduct of counsel but to the failure of the defendant, after his decision not to seek legal aid, to ensure that those by whom he wished to be represented were put in funds within a reasonable time before the trial or, if such funds were not forthcoming, to apply in advance for legal aid. If a defendant faced with a trial for murder, of the date of which the defendant had had ample notice, does not take reasonable steps to ensure that he is represented at the trial, whether on legal aid or otherwise, he cannot reasonably claim that the lack of legal representation resulted from a deprivation of his constitutional rights. "

16. In their dissenting opinion Lord Scarman and Lord Edmund- Davies held that there was a violation of Robinson's constitutional right. At page 95, their Lordships said:

"The judge was placed, by the absence from court of the defendant's counsel, in a dilemma. If he allowed the trial to proceed, the defendant might well have to face trial on a capital charge without defence by counsel: if he adjourned the trial to a later date, the already very serious delay in bringing the trial on would be increased and the vital prosecution witness might vanish. It was not an enviable situation. The judge clearly decided to do what he properly could to persuade the defendant's two counsel, or at least one of them, to defend the defendant without the necessity of yet another adjournment of the trial. He enlisted the support of Gibson's counsel, Mr. Jarrett, who throughout the whole wretched affair showed himself extremely helpful in the cause of justice. Mr. Jarret, it would appear, extracted a promise from Mr. Soutar to get his leader, Mr. Neita, into count the next day. Mr. Jarrett so informed the judge who decided to begin the trial, even though the defendant was then unrepresented, in the hope that on the next day one or other, if not both, of the defendant's counsel might be present to cross-examine the vital prosecution witness and to conduct his defence. "

Then at page 96 their Lordships said:

"The suggestion has, however, been made or, perhaps more accurately, the possibility has been adumbrated that the defendant was, if not a party to his counsel's withdrawal, at least to some extent responsible. There is no evidence of any participation by the defendant in his counsel's decision: indeed, it was plainly against his wish. The reason for their withdrawal, the judge appears to have concluded, was lack of funds to pay them what they required. A conspiracy to prevent the course of justice by delay or obstruction would have been a very serious matter indeed: but it is necessary to emphasise that the judge had no evidence either of anything so sinister or that the defendant had participated in any such conspiracy. The one fact which the judge found or more accurately believed (for there was no direct evidence) to be the likely explanation for counsel's withdrawal was the impecuniousness of the defendant and his family. The lack of finance, if that be the reason why counsel withdrew, should not, however, be attributed to the fault of the defendant: he never did have the resources to instruct counsel but relied on some 'benefactors' (almost certainly members of his family) to find the money, which, if the judge's understanding be correct, they failed at the last minute to find. "

Finally, at page 98 they said:

"It has been suggested, however, that the absence of legal representation would have made no difference to the outcome of the trial. In our view this is no answer to an infringement of constitutional right. We reject the suggestion, however, for a further reason also. A new trial can be ordered under Jamaican law: and this is the course which in our view should be taken. But we must add that we do not accept that the result of the trial would necessarily have been the same even if counsel had acted for the defendant. No one can tell what would have been the impact upon the jury of the alibi defence had the defendant had the advantage of counsel's advice on evidence and conduct of the defence. Nor does it follow from the lack of success of Gibson's counsel in cross-examination that counsel instructed by the defendant would necessarily have failed to destroy the credibility of the witness who implicated him as well as Gibson in the killing. "

17. Lastly in the case of R. v. Harrison which was reported in the Times Law Reports on the 5th of July 1985, the appellant had exhausted his financial resources and when his case came to trial he was granted legal aid only on the condition that he would pay £1,500 into court. As a result he went on trial without legal representation. On appeal Watkins, L. J. said as follows:

"If a man deliberately chooses to represent himself he is fully entitled to, and thereafter cannot complain that he has not understood what has gone on in the trial and has not been able, therefore, to cope with it. But here we look upon an applicant who badly wanted to be represented and made that point insistently, both before the trial and in the initial part of it. "

Later, he said:

"Persuasive though Mr. O'Rorke's argument has been, to the effect that the documents, many though there were, did not require expert assistance to be understood, and the exhibits likewise, and that the factual issues were well known and capable of being handled by the applicant; we are left with the positive feeling that the applicant did not have a fair trial does not simply mean that an applicant who complains that he did not have one was not represented in the actual hearing of it. It includes the giving of advice before and during the trial, and for that matter after conviction and up to the end of sentence. There was certainly, as I have said, no assistance given to this applicant of that kind. We simply do not accept that a man is not under a grave handicap during a trial which lasts for 19 days who, feeling all the while under a disability, has, as I have said, to handle a criminal trial of a kind which usually only an experienced counsel is able to master. "

In that case the appeal was allowed.

18. While we are bound by the majority opinion of the Privy Council in the Robinson's case we feel that the present appeal has some distinguishing features. Firstly, the applicant was not given sufficient notice as to the date of trial. Secondly, he did apply for legal aid, albeit for good reasons, late. Just simply because of his being inarticulate, the judge was not given the full information. The delay in the application for legal aid was due to no fault of his own.

19. The judge was informed, however, that even if the case started on Wednesday instead of Monday the trial would be completed within the week.

20. In our opinion whenever a person who having taken appropriate steps and through no fault of his own, is denied his common law right to be heard through his counsel, there is a miscarriage of justice.  We feel there is great weight in the observation by the minority of the Judicial Committee in the Robinson's case about the unpredictable outcome of the trial or the nature of the sentence had the applicant been legally represented. Obviously he lost the benefit of a skilled cross-examination of the prosecution witnesses as well as the advice for preparation of his defence and plea. We also observed that at the end of the trial after the applicant was convicted there is nothing on record showing that he was allowed a chance to plead in mitigation. As already observed he did not have a copy of the definitions to the judge's knowledge. We also respectfully agree with the observation of Humphreys, J. that even though a guilty person may escape, it is far better than having an innocent person convicted.

21. For these reasons we are of the opinion that there may have been a miscarriage of justice. We grant leave to appeal against conviction. We treat the application as the appeal itself. We quash the conviction and order a new trial.

22. Having disposed of this appeal we must express our views about the conduct of Messrs. Y.K. Poon, the solicitor who represented the applicant in the committal proceedings in the first instance. It appears that having been instructed and no deposit of further fees being forthcoming he felt that he was no longer instructed. That being the case he should have ascertained from either the applicant or his brother, who financed the defence, whether he was still instructed. It would be his duty, if he found out that he was no longer instructed, to return at an early stage all the defence papers plus the depositions to the applicant in the reception centre. We would like to make it known that a solicitor's duty is not to the person who foots the bill but to the client on whose behalf the bill was filed. We would like to issue a firm warning to solicitors generally. In future, if the same thing happens and the papers are not returned to the applicants, the lay client involved, within a reasonable time when there are no further instructions, we may well consider asking the solicitor concerned to show cause why he should not bear the cost of any consequential adjournment.

Representation:

Mr. Michael Lunn (D.L.A.) for appellant

Mr. Boucaut (D.P.P.) for respondent