The Queen v. To Wing Chuen

CACC000164/1986

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang & Fuad, JJ.A.

Date of Hearing: 30th October 1986

Date of Judgment: 30th October 1986

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an application for leave to appeal against a conviction for murder. The conviction was entered on 17th March 1986. The Notice of Appeal was filed on 10th April 1986. Although it was the duty of counsel for the Defendant at the trial to advise him on the prospects of an appeal, the Applicant asserts that he was not so advised. In the event he himself drafted Grounds of Appeal. At no time - and in particular not since solicitors were instructed have perfected grounds of appeal been filed, and we are entitled to assume that his advisers were satisfied that the grounds filed by the Applicant were adequate. If other grounds were thought to be arguable, any difficulty there might be in obtaining counsel to appear at the hearing would not have prevented them from giving notice of such grounds.

2. The appeal took its usual course the necessary papers were filed and the case was fixed for hearing in this court on 20th September 1986. On that day counsel appeared and applied for an adjournment. The court was informed that the Applicant had applied for counsel from London to be briefed on his behalf, that an application for permission to brief London counsel had been made to the Bar Association and that a reply had not been received. On the basis of that position the court saw fit to grant an adjournment, the adjournment being to a date to be fixed.

3. We are now told that instructions had never been given to a solicitor until 4th August 1986. No explanation for the delay has been vouchsafed to us. The solicitors acted very promptly, and on the following day they sought permission to brief London counsel. We are told that a reply from the Bar was in fact written on 24th September, which was before the date of the hearing. However, it was not received until 27th September. From that date it was apparent that other counsel had to be engaged. We were told by counsel who appeared before us this morning to ask for a further adjournment that it had been impossible to brief other counsel. We do not accept that. We have been told that the Applicant wished to have Queen's Counsel to represent him and that Queen's Counsel were not available. Again we are not satisfied that that was so, for we have no affidavit at all. Whether or not Queen's Counsel were available, there was no reason whatsoever why junior counsel should not have been briefed to appear on the appeal for the Applicant today: counsel did in fact appear for him today, but her instructions were limited. The Applicant was entitled so to limit her instructions, but he must take the consequence that, if the application for an adjournment was not successful, the appeal would go on and he would not be professionally represented. In the event another attempt was made to blackmail this court into granting an adjournment, because we were informed while the application for an adjournment was in train that counsel's instructions were so limited. We have said before that that is grossly improper.

4. We turn then to the Grounds of Appeal which have been filed. The first is a complaint relating to the trial within a trial held in respect of the admission of two confession statements. The Applicant alleges that he was not fully heard. He was represented by counsel and he himself gave evidence. There is no possible ground for complaining of the judge's ruling in that matter.

5. The second complaint relates to a reference by the judge in his Summing-up to the fact that the Applicant had drunk wine. It is true that the judge made a reference to that fact, but he pointed out to the jury that there was no defence to the effect that the necessary intent could not have been formed by the Applicant because he was too drunk, and in our view no complaint can properly be made to anything which the judge said in this connection.

6. The third ground of appeal is in effect an assertion that the jury wrongly disbelieved the Applicant. That was a matter entirely for the jury and does not constitute a valid ground of appeal.

7. Counsel who now appears for the Crown has advised us that he is unable to find any arguable ground of appeal. We have all studied the papers before us and we can find no arguable ground of appeal. In the circumstances there is no point in prolonging these proceedings.

8. The application is dismissed.

30th October 1986

Representation:

Selina Lau (K.C. Chan & Co.) for Appellant.

G.J. Lugar-Mawson for Crown/Respondent