HKSAR v. Chan Ying Ho and Others
Read the full judgment text of HCMA 1156/2004 on BabelCite. This High Court CFI judgment was delivered on 8 July 2005.
1. These are appeals against conviction and sentence by the 2 nd , 3 rd and 4 th appellants. The 1 st appellant (the 1 st defendant at trial) had earlier abandoned his appeals and they were dismissed on 18 March 2005. All appellants were convicted after trial.
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HCMA1156/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO.1156 OF 2004 (ON APPEAL FROM KTCC6181 OF 2004) --------------------- BETWEEN
---------------------- Before : Hon McMahon J in Court Date of Hearing : 5 July 2005 Date of Judgment : 8 July 2005 --------------------------- J U D G M E N T --------------------------- 1.These are appeals against conviction and sentence by the 2nd, 3rd and 4th appellants. The 1st appellant (the 1st defendant at trial) had earlier abandoned his appeals and they were dismissed on 18 March 2005. All appellants were convicted after trial. 2.The three remaining appellants had originally been jointly charged with unlawful wounding, contrary to s.19 of the Offences Against the Person Ordinance, but were convicted of the alternative offence of common assault pursuant to the provisions of s.51(2) of the Criminal Procedure Ordinance. Each appellant was sentenced to six months’ imprisonment. 3.The facts of the case as found by the magistrate were that the appellants were members of a gang of eight men, who went to the offices of a real estate agency in Sai Kung for the purpose of collecting a debt from PW2, the girl friend of the proprietor PW1, who worked with him there. The debt was allegedly owed by her to a former business colleague. 4.Five of the gang entered the premises and there confronted both PW1 and PW2. The other three gang members remained on guard outside. A member of the gang inside the shop claimed to be “of the 14K” and threatened to “swipe” the premises. Some of the gang then picked up stools inside the premises. PW1 picked up a pole in response but one of the gang took it from him and later hit him over the back of his head with it causing a 7cm wound. The other gang members inside the shop, including the three appellants, then proceeded to beat PW1 with fists. 5.The police were called by PW2 and while some of the gang left, others, including the three appellants, stayed at the shop. One of them told the staff of the agency to mind what they said to the police. 6.The three prosecution witnesses called at trial were PW1, the male proprietor of the shop who was the victim of the assault, PW2 his girl friend who worked in the agency and who allegedly owed the debt the gang had come to collect and PW3 a staff member of the agency who witnessed the events in the shop and the assault on PW1. 7.The appellants were represented before me by Mr Jeremy Cheung who was not counsel at their trial. Mr Cheung advances two fundamental grounds of appeal. Firstly, he says that the trial magistrate did not adequately consider the evidence and particularly the appellants defence that they had been acting properly as debt collectors, but had been “set up” by PW1 and PW2 who had called the police and fabricated a story against them so as to preserve PW2 from having to pay her debt. Secondly, and as perhaps his major ground of appeal, Mr Cheung complains that counsel for the appellants at trial was incompetent in as much as he did not properly advise the appellants on the presentation of their defence, so that they did not give evidence when they should have and did not put into evidence their statements to the police under caution which statements would have assisted the appellants’ cases at trial, so that the appellants did not receive a fair trial. 8.So far as the first matter is concerned, it is quite plain that the magistrate did properly consider the evidence. The fundamental issue before the magistrate, as the trial was conducted, was the credibility of the three prosecution witnesses. He concluded that PW1 and PW3 were truthful, but declined to rely upon the evidence of PW2 as she had in 2000 been convicted of an offence of misleading the ICAC by providing it with false information. 9.It is true to say that this fundamental issue of the reliability and credibility of the prosecution witnesses was hard fought at trial and comprised the greatest part of counsels cross-examination and submissions to the court. 10.The suggestion of there being a “set up” was simply a motive attributed to PW1 and PW2 for lying (and attributed also indirectly to PW3 their employee). 11.It was put this way in counsels final address :
12.Earlier in his cross-examination of PW1, counsel had put this :
And in cross-examinating, PW2 had done so on this basis :
13.It is true that the magistrate did not directly address the suggested motive at length in either his oral reasons for verdict or his later Statement of Findings. 14.What he said in this regard was simply this :
15.But he was obviously aware of counsel’s earlier cross-examination and submission to the effect that the prosecution witnesses may have “exaggerated” their evidence and had a motive to do so. 16.The magistrate no doubt dealt with the matter briefly. But in my view he did not have to go further than that. The suggested motive was pure speculation. There was no evidential basis available to support the existence of any such motive and, I might add, the giving of evidence by the appellants would not have altered that position. 17.In the absence of any such evidence, there was very little point in the magistrate dealing expressly with the question of motive as an issue he had to resolve. A magistrate is not required to spend time dealing with speculative issues. Rather what he had to do was resolve the fundamental question of the credibility of the prosecution witnesses. That resolution involved the magistrate thoroughly dealing with issues of identification, conflicts of evidence between witnesses and discrepancies between a witnesses evidence and the contents of the witnesses statements. And that is what the magistrate did. 18.In any event, the primary feature of the evidence which supported the appellants’ case that they were simply debt collectors going about their business was the fact that the appellants had stayed at the real estate agency though they knew the police had been called. 19.In regard to this the magistrate said :
That was a finding open to him on the evidence. In my view, the magistrate considered the evidence before him thoroughly and with a proper and balanced approach. There is no merit in the first ground. 20.I turn now to the major complaint of the appellants, that is, that their counsel at trial was so incompetent that their trial was unfair. 21.The most important aspect of the appellants’ complaint in this regard is that their counsel wrongly advised them not to give evidence, and that in following that advice they thereby were unable to present their cases adequately. 22.The reason, the appellants contend in their perfected grounds of appeal, that counsel advised them not to give evidence was that each appellant has a criminal record and counsel advised them that should they give evidence, they would be cross-examined on those criminal records. 23.I allowed evidence in the form of affirmations to be presented before me for the purpose of dealing with this ground of appeal. Those affirmations were provided by trial counsel and by the 3rd appellant whose evidence in this regard was relied upon by the other two appellants. 24.Both trial counsel and the 3rd appellant were subjected to questioning by counsel appearing before me. All appellants waived privilege for the purposes of these proceedings. 25.I accepted trial counsels evidence. He appeared to me to be a frank and thorough witness. He gave evidence in a coherent and sensible manner. The 3rd appellant on the other hand suited his answers to what he understood to be his case He was vague and uncertain in his recollection of what had occurred during the trial. He said he signed Chinese language documents (which transpired to be written instructions) without knowing what their contents were. 26.Trial counsel in his first affirmation of 7 April 2005 said that he had on instructions cross-examined the prosecution witness PW2 on her previous conviction for misleading the ICAC and had advised the appellants that might make the appellants, should they give evidence, vulnerable to cross-examination on their own reasonably significant criminal records. 27.In this regard counsels’ affirmation is as follows :
28.In adopting that course, trial counsel had taken the precaution of obtaining written instructions. Those instructions were in these terms :
29.One can understand why trial counsel would have been keen to cross-examine PW2 on that record. It fitted neatly with the defence case at trial that PW1 and PW2 had effectively lied and provided false information to the police. 30.Subsequently at the conclusion of the prosecution case, trial counsel advised the appellants that in his view he had damaged the credibility of the prosecution witnesses and in this regard, his affirmation proceeds as follows :
31.In the event, the magistrate agreed with trial counsels’ assessment of the damage inflicted on PW2’s credibility and rejected her as a witness of truth, but so far as PW1 and PW3 were concerned accepted them as reliable witnesses, having considered and dealt with the discrepancies in their evidence. 32.Trial counsels affirmation continued :
33.A further written instruction to that effect was then obtained in the following terms :
All of this points to a careful and thorough approach to the appellants case and an accurate appreciation of the issues involved. 34.Mr Cheung for the appellants before me submitted that trial counsel should have strongly advised the appellants that at least one of them should give evidence so as to deal with the strongest aspect of the prosecution case, that is that PW1 suffered a 7cm laceration to the back of his head during the confrontation with the appellants. 35.In his oral evidence before me, trial counsel said that from his instructions he understood that the biggest problem the defence case had to confront was the injury to PW1’s head. He said when he asked the appellants about this they could not initially provide him with a satisfactory answer, though finally one said a cup thrown by PW2 did or might have struck PW1. He said that he had explained to the appellants that the wound to PW1’s head was the weakest part of the defence case and they were aware of that when they elected not to give evidence. 36.Miss Lai for the respondent points out that even if the appellants had gone in to the witness box, it was unlikely that anyone of them would have given compelling evidence about how PW1’s head wound came about. The injury in terms of its size and location was inconsistent with any speculation that PW1 might have been hit accidentally by a tea cup thrown at the appellants by PW2, or would have been caused by the 1st defendant at trial fending off the blows of PW1 in the confrontation between them. 37.In my judgment, trial counsels advice to the appellants at the end of the prosecution case was balanced and thorough. There was no need to strongly advise anyone or all of them to give evidence when it was doubtful whether that evidence would have been capable of addressing the issue. Further the reality of anyone of the appellants giving evidence was that he would have had to explain why eight individuals went to the victim’s premises to collect a debt. When trial counsel had sought instructions on this he received the reply “that’s how it is always done”. 38.One further complaint Mr Cheung makes, is that trial counsel did not put into evidence the statements made by the appellants to the police. He suggests this may have been particularly harmful in circumstances where the appellants had not given evidence, because those statements contained some exculpatory parts. But it is fair to say that so far as the 2nd and 4th appellants are concerned, those statements were simply in the form of denials and would not have added anything to what in fact was contained in the facts admitted pursuant to section 65C of the Criminal Procedure Ordinance to the effect that when cautioned by police each appellant denied the offence. In my view, it was a matter for counsel as to what approach to take to the appellants’ denials. His decision to simply incorporate the 2nd and 4th appellants’ denials upon arrest and caution into the admitted facts cannot, in any real sense, be criticized. 39.So far as the 3rd appellant is concerned, he went into some further detail in his statements to the police where he described a confrontation between PW1 and the 1st defendant whereby at one stage, PW1 picked up a wooden pole and the 1st defendant fended off his blows with a stool, before the 3rd appellant intervened and pushed them apart. 40.Trial counsel however cross-examined PW1 on the basis that the 2nd appellant had tried to separate PW1 and the 1st defendant, while the 3rd appellant had remained throughout on the couch. That, according to trial counsel, was on the basis of his instructions and I accept that to be so. In other words, the instructions trial counsel received differed somewhat from the contents of the 3rd appellant’s statements to the police. 41.In those circumstances, it seems reasonable for the 3rd appellant’s case to have been conducted on the basis of the denials contained in the admitted facts only and that the full contents of his statements to the police not go into evidence. Even if those statements had gone into evidence at the end of the day it is unlikely the exculpatory parts would have been given great weight. 42.In short, in my judgment, trial counsel conducted the defence case sensibly and thoroughly. His advice to the appellants was accurate and balanced. The appellants’ decision not to give evidence was made on a properly informed basis. No part of trial counsels conduct of the defence or his advice to the appellants resulted in any unfairness to them. 43.It may be with hindsight other approaches could have been taken. But the fundamental reality is this : what the appellants are really complaining about before me is simply that the quite reasonable decisions taken by them, after being properly and professionally advised by trial counsel did not result in their acquittal. 44.In my view, this case falls comfortably within that class of cases where tactical options which are adopted by a properly informed defendant, simply do not result in an acquittal and where trial counsel is then blamed in hindsight by that defendant for not having urged another course which in hindsight seems better. 45.That simply forms no basis for any suggestion of unfairness. Indeed, the taking of one tactical option rather than another is a process which properly forms part of every fair trial. 46.A defendant is not entitled to a perfect trial, simply because there is no such thing. With hindsight there can always be seen other, perhaps more advantageous ways of a defence case being run. But that falls a long way short of a miscarriage of justice. 47.In the present case, trial counsel made no substantial error. The appellants were properly advised of their situation. They elected not to give evidence and in doing so they had been made aware of the strengths and weaknesses of their respective cases. They can make no substantial complaint of the conduct of their trial. 48.There is no merit to the second ground of appeal and the appeal against conviction is dismissed. 49.I turn now to the appeals against sentence. 50.Mr Cheung argues simply that the sentence of six months’ imprisonment received by each appellant is too severe. I entirely disagree. A gang of eight persons went to the premises of the victim to collect a debt. That in itself is intimidatory and carries with it the unspoken threat of violence. The victim was then subjected to express verbal threats. Ultimately, he was assaulted and beaten up by the gang. He received a head wound. 51.This sort of behaviour is wholly unacceptable and in my view a person who participates in that sort of activity, even if he has no prior convictions can expect an immediate custodial sentence. Six months’ imprisonment on the facts of the present case cannot be said to be too severe. 52.The appeals against sentence are dismissed.
Ms Anna Lai, SGC, of the Department of Justice, for the Respondent Mr Jeremy Cheung, instructed by Messrs Ivan Tang & Co., for the 2nd to 4th Appellants |