R. v. Tam Kwok Wai

CACC000414A/1990

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Coram: Sir Derek Cons, V.-P., Fuad, V.-P. & Kempster, J.A.

Date of Hearing: 2 September 1992

Date of Judgment: 2 September 1992

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the court):

1. The applicant, Tam Kwok Wai, was originally arraigned in the High Court together with five other men and one woman upon an indictment charging them in different combinations with various offences of robbery, possession of a firearm at the time of committing robbery, shooting with intent etc. in 11 counts. The applicant was the 6th accused, and he was charged only in two counts: robbery on 19th October 1989 (count 9) and possessing a firearm at the time of committing that robbery (count 10). The 1st, 2nd, 4th, 5th and 7th accused were dealt with in various ways and only Lam Sze Ming (who became the 1st accused) and the applicant (who became the 2nd accused) were left to be tried on an amended indictment charging them jointly with the offences of robbery on 19th October 1989 near the Kau Kee Restaurant in Kowloon (count 1) and possessing a firearm at the time of committing the robbery (count 2), corresponding with counts 9 and 10 of the original indictment.

2. The applicant and Lam Sze Ming were tried before Deputy Judge Leonard (as he then was) and a jury. They were both convicted on count 1 and both acquitted on count 2. They were each sentenced to 14 years' imprisonment for the robbery.

3. The applicant seeks leave to appeal against his conviction and sentence. We mention that Lam's sentence was reduced to 9 years' imprisonment on 6th May 1992 by this court differently constituted.

4. One of the victims of the robbery charged against the applicant was Mr. Tsang Wah (PW1). He told the jury that shortly before 1 a.m. on 19th October 1989 when he had just left the Kau Kee Restaurant in Granville Road, Tsimshatsui he was surrounded by five or six men, most of whom had weapons; he first saw knives. He was grabbed from the back and a knife was put at his neck. He was pushed against a wall and robbed of various belongings, including his watch, pen and portable telephone. He was warned that if he shouted he would be stabbed. He was also threatened that he would be shot. One of the robbers had what he thought was a gun in his hands.

5. Mr. Tsang went on to testify that he shouted "robbery" as the robbers ran off towards Granville Street and Carnarvon Road and thence into Shun Yee Street. He stood at the corner of Shun Yee Street and saw two cars being driven away. He thought he recognised the robbers in one of the cars.

6. Mr. Tsang swore that he noted down the registration number of one of the cars as EA7712. When he was asked to describe the car, he said that it was late at night but the car looked white to him However, he was not sure what colour it was. He chased after the car in a taxi he managed to hail - 999 calls were made but the car got away.

7. Mr. Chan Chung Kuen (PW2) also gave evidence about the robbery which he witnessed. He had left the restaurant with Mr. Tsang and other friends. He saw the robbers making their getaway. Before he reached Shun Yee Street he saw two cars being driven away. He saw two men in one car and four men in the other. He was very close to both vehicles as they drove past him. He saw and memorised their registration numbers, EB4919 and EA7712 respectively. Although he did not see the robbers face to face when they were in the cars, he saw their profiles.

8. Mr. Chan gave evidence also about an identification parade he attended at Tsimshatsui Police Station on 16th November 1989. There were nine men on the parade. He picked out the man who was No. 3 in the line as one of the robbers. Other evidence was led before the jury to establish that that man was the applicant.

9. Mr. Chui Yick Fai testified that on 16th October 1989, at about 7 p.m., the applicant hired a pink Mitsubishi Lancer, registration number EB4919. The arrangement was that the car was to be returned by 7.10 p.m. on the next day. But the applicant had telephoned to say that it would instead be returned on 18th October but this was not done. When Mr. Chui went to work at 9 a.m. on 19th October, he found the vehicle parked outside his business premises and, half an hour later, the applicant came and gave the keys of the car to him. It was one of the agreed facts under section 65C of the Criminal Procedure Ordinance that the applicant had returned the car to the hire company on 19th October 1989.

In his police statement dated 12th November 1989, the applicant said, inter alia,

"Ah Sir, I remember that after 7 p.m. on the 17th of last month, I went to Ying Wong Motors Company in Shamshuipo alone, where I hired a private car [EB4919] intending to go for a joyride. Having hired the car, I drove it to Solar Year game machine in Kwai Fong to see if any of my friends was there. Having got there, I found my old friend Ah Chi playing video game at Solar Year game machine. Then I invited him to go for a joyride with me. Then we drove around. When we felt sleepy, I parked the vehicle at one side and went to sleep. Until shortly after 9 a.m. on the 19th, we returned the car to Ying Wong Motors Company."

This was one of the questions and answers which followed:

"Q.    Did you drive the car yourself all throughout the period between shortly after 7 p.m. on 17th October, 1989 and shortly after 9 a.m. on 19th October, 1989, when you returned the car?

A.     Yes, I drove the car myself in those two days.

His second statement given on the next day contains the following question and answer:

"Q.    Did you leave Tai Mo Shan at any time during the period between 11 p.m. on 18.10.1989 and shortly after 9 a.m. on 19.10.1989?

A.     No. All throughout Ah Chi and I slept inside the car at Tai Mo Shan."

The applicant did not give evidence before the jury and called no witnesses.

10. In the notice of appeal, complaints are made about the way counsel who represented the applicant at the trial conducted the defence (grounds 1 and 2). There are also complaints about certain aspects of the summing up (grounds 3, 3A and 4).

11. The first two grounds of appeal, in their perfected form, are as follows:

"1.   It is submitted that the conviction is unsafe and unsatisfactory in that the Appellant's case was not fully put to the witnesses, so that the identification evidence was apparently supported by unchallenged evidence of the presence at the scene at the material time of the vehicle which had admittedly been hired by the Appellant.

2.     It is further submitted that the instructions given by the Appellant were not fully put to the witnesses;

(a)     the registration number of a vehicle at the scene was left unchallenged;

(b)     the presence of a person referred to as 'Ah Wai' was not clarified;

(c)     it was not put to the accomplice witness that the Appellant was not present at the scene at the material time;

(d)     it was not put to the accomplice witness that the Appellant was not present at the premises at the material time."

12. With the consent of both counsel appearing before us we approached these grounds upon the basis (without so deciding) that counsel at the trial had received instructions on the lines of those mentioned above.

13. The principles upon which an appellate court will intervene where an appellant seeks to have his conviction set aside on the ground that counsel representing him at the trial conducted his defence incompetently or contrary to instructions are well settled. Several Hong Kong cases have discussed and applied these principles. We will not refer to them all. In R. v. Siu Hon Sum [1989] 1 HKLR 327, Silke, V.P. giving the judgment of the court cited, with approval, at p.335, this passage from the judgment of Cooke, J. in the New Zealand case of Pointon v. R. [1984] 1 CRNZ 348:

"A mere mistake in tactics in the conduct of the defence does not of course afford ground for a new trial. This Court has to be on guard against any tendency of accused persons who have been properly and deservedly convicted to put the result down, not to the crime committed, but to the incompetence of counsel. An accused who has acquiesced in his counsel's advice not to go into the witness box himself or not to call other witnesses will usually have great difficulty in showing any miscarriage of justice on that account."

And at page 337, Silke, V.-P. had this to say:

"So, an applicant who relies upon dereliction of duty on the part of his advocate and legal advisor as a ground of appeal must have a genuine sense of grievance engendered by a clearly shown very high degree of negligence on their part so radical as to give. rise to a miscarriage of justice or, at the very least, to arouse in the mind of an appellant court a well founded feeling that the convictions should be quashed."

14. Another case in which the authorities are reviewed is R. v. Ho Shu Chung, Criminal Appeal 210 of 1988, 26th September 1989 (unreported). In that case, at p.14, Power, J.A, on behalf of the court, said:

"We are respectfully satisfied that the law is correctly stated in Ensor (1989) 89 Cr App R 139, 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."

15. In R. v. Yu Fung Hei [1990] 1 HKLR 355 this court (Kempster, J.A. gave the judgment) found the errors made by counsel so radical that the conviction was held to be unsafe and unsatisfactory. What had taken place, in the court's view, had amounted to a material irregularity in the course of the trial. See also the judgment of Power, J.A. in R. v. Zee Tan, Criminal Appeal No. 48 of 1990, 23rd May 1991.

16. Other jurisdictions adopt the same approach. We find a useful summary of the applicable law in the decision of the Court of Criminal Appeal of New South Wales in Birks (1990) 48 A Crim R 385, where at p.392, Gleeson, C.J. said this:

"The relevant principles may be summarised as follows:

1.    A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2.     As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3.     However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."

17. The principles upon which these authorities are founded concern the proper role of counsel in our system of trial, the scope of his authority and his rights and duties while his mandate remains unrecalled. These are conveniently reviewed in Halsbury's Laws of England (4th edn., reissue, 1989) vol. 3(1) paras.518-519. When a defendant engages the services of counsel he must be taken to have accepted the ordinary relationship of counsel and client and the consequences which flow from that relationship. With very great respect to him, it seems that counsel who put his name to the notice of appeal shares the applicant's misconception (see paragraph 2) that a defendant can dictate to his counsel what questions he must ask a witness and, if he does not obey, this will be a ground of appeal. Of course this is not so. Counsel's advocacy must be shown to have been "flagrantly incompetent" to avail a disappointed defendant.

18. The art of cross-examination is no easy one. Often difficult decisions, involving finely balanced judgments, have to be made. Mr. Chan (PW2) was an independent witness who swore that he saw two cars containing the men he thought had been involved in the robbery drive slowly past him round a corner as he stood on the pavement in a well lit street. He said he had "paid attention" to the cars and had tried "to memorise the numbers" because he thought the robbers were making off in them.

19. Experience has shown that it is usually profitless to take a witness over the version of events he has given in chief in the vain hope that he will change his mind and when he does not, to "put it to him" (particularly where no evidence will be called to contradict what the witness has said) that he was mistaken or lying about a matter such as the registration number of a car. If, as was to be expected having regard to the circumstances in which Mr. Chan said he noted the number EB4919, he had responded by saying that he was quite certain that he had not been mistaken, the jury would have been given another opportunity of observing the conviction with which he gave his testimony and, at the.end of the day, left wondering, perhaps, why the defence were so anxious to dispute the presence of that car on the road at that time and place. Counsel will have assessed the impression Mr. Chan was making on the jury and have made a decision which he felt was in the best interests of his client. Moreover counsel would have known from the depositions whether other witnesses were available to testify about the number of the car if Mr. Chan's evidence was challenged.

20. It is trite to say that questions put to a witness to indicate that his evidence on a particular matter is not accepted do not become evidence. It was the applicant's right not to give evidence, but he could, had he wished, have told the jury where the car he had admittedly hired was at the material time.

21. We wonder how it can fairly be argued that counsel did not act in the best interests of his client in:

(a)    concentrating his cross-examination on the possibility that Mr. Chan had honestly, but mistakenly, identified the applicant while in the car in circumstances which required (and received) a full and careful Turnbull direction; and

(b)    pointing out how unlikely it would be for someone to take part in a robbery where a car was use dwhich could so easily be traced to him because he was known at the car-hire firm and had given his proper name and identity car number.

We think that it is not irrelevant to observe that counsel succeeded in putting a doubt in the mind of one of the jurors, for the applicant was convicted upon a majority verdict of 6:1.

22. All that it is necessary to say about paragraph 2(b) of the notice of appeal is that no counsel of any experience will make the elementary mistake of asking a critical question unless he is reasonably sure what the answer will be. In any event, as we have seen, Miss Shek was not certain about the presence of "Ah Wai", nor did she purport to identify him in or out of court. It would have been most unwise for counsel to have sought "to clarify" this matter. The witness might have responded with blinding clarity by pointing to the applicant and saying "that's him".

23. In respect of paragraphs 2(c) and (d) of the grounds of appeal, since neither witness testified that the applicant was present anywhere at any time, it was quite unnecessary, and might have been dangerous, to seek confirmation of this fact.

24. The complaints raised in paragraphs 1 and 2 of the notice of appeal against counsel who appeared for the applicant at the trial were entirely misconceived and unwarranted. There was nothing Mr. Jeremy Cheung could say about them which had any hope of success.

25. The remaining grounds of appeal move away from the attack on defence counsel and are in these terms:

"3.     The learned judge erred in law in failing to follow the 'Turnbull guidelines' when directing the jury on the correctness of the identification of the registration number of the vehicles and in particular:

as regards P.W.2

The learned judge failed to direct the jury properly on the veracity of P.W.2's memory of the registration number of the vehicles in that P.W.2's recollection of those could well be tainted with an unknown source and therefore it is dangerous to rely on that evidence.

3A.  The evidence given by P.W.2 as to the manner of recording the registration number of the vehicle was hearsay and therefore inadmissible. No objection was raised by Counsel but it was incumbent upon the Learned Judge to direct the jury as to their approach to this tainted evidence.

4.     Likewise grave doubt exists that the identification of the Appellant by P.W.2 may have been tainted by the joint collaboration by P.W.2 and other victims of the robbery."

26. It should not be necessary to point out that the Turnbull guide-lines are only applicable "when the case.... depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken...." per Lord Widgery, C.J. (1976) 63 Cr App R132, at p.137, although, in an appropriate case the judge might feel it right to bring to the attention of the jury any factors which could contribute to an honest mistake having been made about any particular piece of evidence, and some of these factors might coincide with those to which reference is made in the Turnbull warning. This was not such a case.

27. The references to Mr. Chan's evidence in paragraphs 3 and 3A of the grounds of appeal are references to the following passage in the transcript at page 169:

"Q.   You were telling us before the break how you obtained registered numbers of the 2 cars you saw with robbers in them.

A.     Yes.

Q.     How did you remember the numbers?

A.     One was EA7712 and the other was EB4919.

Q.     Yes, you've already told us what the numbers were. How did you remember them?

A.     As I have said that Shun Yee Street is running vertically and Granville Road is in a horizontal direction and, when I was standing in the junction, I saw those 2 cars rounding the corner and being driven slowly. And I paid attention to those cars and also paid attention to the people inside and I found they were the robbers who had earlier on robbed our people. And I tried to memorise the numbers of those cars. And also there were passers-by who helped to note down the registration numbers and later on we found the numbers noted down by them tallied with what we memorised."

28. We do not read this passage as suggesting that the witness did not independently observe and recollect the registration numbers about which he gave evidence. The cases relied upon by Mr. Cheung in his grounds of appeal (McLean (1967) 52 Cr App R 80 and Jones v. Metcalfe [1967] 1 WLR 1286) are not in point. In those cases it was held that there was no admissible evidence to prove the number of the vehicle in question. Here there was evidence based on Mr. Chan's own perception, although strictly speaking the evidence that "the numbers noted down by them tallied with what we memorised" was probably hearsay. However, this could not possibly have had any effect on the verdict. The judge was right to regard Mr. Chan's evidence about the numbers of the cars as not in dispute.

29. The final ground of appeal, in paragraph 4, depends upon the following passage of the transcript (at page 175), when Mr. Chan was being cross-examined:

" Q.  Would you agree with me that, when you picked a person out on that parade, it was on the basis that you were almost sure that he had been present at the incident?

A.     I disagree.

Q.     Because of the long lapse of time and the brief period of time that you had to look at these people, all that you remembered was a profile?

A.     Not only his profile.

Q.     So you picked out this person on the basis of the few seconds you had at the beginning of the incident, is that right?

A.     In my case, it's true that I only had a few seconds' look at them, but TSANG Wah, CHAN Yuk-lan, and CHOI Kwong were being robbed by them. And that incident took quite a long time. And, when we went back, we tried to recall the appearance of those people and discussed about the matter. We were able to make out the appearance of them.

Q.     And it was on that basis that you picked a person out one month later on the 16th?

A.     Yes."

30. We do not agree that Mr. Chan's evidence was possibly "tainted" by any discussion he might have had with his friends about the robbers (which he was honest enough to admit). As we have earlier said, the judge gave a very full and fair Turnbull direction and in fact reminded the jury (at page 31 of the summing up) of the suggestion made to Mr. Chan in cross-examination that he had picked out the applicant "because of descriptions and discussions which had taken place between the victims after the robbery". The judge also reminded the jury of the single question and answer in re-examination:

"Q.   Is there any doubt in your mind that the person you picked out at the identification parade was the person involved in the robbery?

A.     I had no doubt at all. And, after I had looked at those people on parade and after I had a careful recollection of what happened on that day, I was sure that the person standing at no. 3 was one of the robbers."

31. There is no merit in this ground.

32. For these reasons we dismiss the application for leave to appeal against conviction.

[Submissions on the application for leave to appeal against sentence]

33. As we have earlier noted, Lam Sze Ming (who was the 1st accused at the trial when he and the applicant were convicted of the same robbery) was also sentenced to 14 years' imprisonment. On 6th May 1992 this court (Yang, C.J., Silke, V.-P. and Macdougall, J.A.) allowed Lam's appeal against sentence and reduced the term of imprisonment to one of 9 years. The judgment o?the court was delivered by Silke, V.-P. and is unreported.

34. All we feel it necessary to say is that we think that it is not possible to differentiate between the roles played by the applicant and Lam in the robbery. They were both aged about 20 at the time. If the applicant's sentence had been considered by the court which gave judgment on 6th May, we entertain no doubt that it would have been dealt with in the same way. We think that justice dictates that the applicant and Lam should serve terms of imprisonment of equal length.

35. We therefore give leave to appeal against sentence, treat the hearing of the application as the hearing of the appeal and allow the appeal. We set aside the sentence of 14 years' imprisonment and substitute a sentence of 9 year's imprisonment.

Representation:

Mr. Jeremy Cheung (Andy Lo & Co.) for the Applicant

Mr. Andrew Bruce (Crown Prosecutor) for the Crown