The Queen v. Wilem Atalia Vincent Van Campen
Read the full judgment text of CACC 495/1989 on BabelCite. This Court of Appeal judgment.
1. This is the judgment of the court.
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CACC000495/1989
---------------- Coram: Silke, V.-P., Power & Macdougall, JJ.A. Dates of Hearing: 8th & 9th January 1992 Date of Judgment: 22nd May 1992 ---------------------- J U D G M E N T --------------------- Silke, V.-P.: 1. This is the judgment of the court. 2. Willem Atalia Vincent van Campen - "the applicant" - appeared for trial before His Honour Judge Gall (as he then was) sitting as a Deputy Judge of the High Court, and a jury, on an amended indictment containing a single count of conspiracy to traffic in dangerous drugs. The particulars were that he on divers dates between 18th July 1988 and 20th July 1988 in Hong Kong conspired with Axel Frederik Bolhuis, Camille Joseph Debry, Jean Alphonse Buts and with one De Groot, to traffick in dangerous drugs 3. He was convicted and, on 4th October 1989, filed a Notice of Application for leave to appeal against that conviction. 4. The original indictment., and this has moment., was one containing five counts. The first count concerned Bolhuis who was the 1st defendant, Debry who was the 2nd defendant, Buts who was the 3rd defendant and the applicant and alleged a conspiracy to traffic in dangerous drugs. The second count was that of trafficking in dangerous drugs but concerned only Bolhuis. It alleged that he, on 20th July 1988, at Kai Tak Airport unlawfully trafficked in 4,668.87 grammes of a mixture containing 3,974.94 grammes of salts of esters of morphine. The third count concerned only Debry and was also that of trafficking in dangerous drugs. It alleged that he on 20th July 1988 at Kai Tak Airport unlawfully trafficked in a dangerous drug namely 2,932.12 grammes of a mixture containing 2,520.97 grammes of salts of esters of morphine. The fourth count concerned only Buts (D3), and was that of possession of a dangerous drugs for the purpose of unlawful trafficking. It alleged that he on, 20th July 1988, at the Marco Polo Hotel, Kowloon had in his possession 7,796.37 grammes of a mixture containing 6,795.43 grammes of salts of esters of morphine. The fifth count concerned the applicant and was that of failing to give a specimen of handwriting for comparison contrary to s. 54 of the Dangerous Drugs Ordinance. 5. When the trial commenced the Crown, upon pleas of guilty by Bolhuis, Debry and Buts to the individual charges concerning them, offered no evidence against them on the conspiracy count. They also offered no evidence against the applicant on the failing to give a specimen of handwriting count. Hence, the amended indictment concerning the applicant alone. 6. This matter has had a long period of gestation. A full transcript was asked for and supplied to the solicitors then acting for the applicant. As, the transcript was substantial it was not available until March 1990 and was collected on the 19th day of that month. 7. There was a further request for a transcript of the proceedings at the pre-trial review. This was acceded to and became available in June 1990. 8. Subsequent to that repeated requests were made by the court for the filing of the perfected grounds of appeal. Then on 27th July, the matter having been put in the list for 22nd August 1990, the applicant filed a notice to act in person and requested an adjournment of the hearing date. To facilitate him this was granted. 9. Next the applicant applied for legal aid. That application, having taken some time to process, was eventually refused on 26th November 1990. 10. On 19th December the applicant informed the court that he would not be ready for some time for the hearing of his appeal as he was preparing affidavits relevant to it. By this time the other defendants, who had appealed against their sentence, had abandoned their applications. 11. The matter was then listed for 26th February 1991. Affidavits were then presented to the court by the applicant. These alleged gross professional negligence and required to be served on those named including the applicant's counsel at trial, Mr. Alderdice and his instructing solicitors, Boase & Cohen. Service was also necessary upon the Attorney General. This service was effected and affirmations and affidavits in reply were received from counsel dated 28th March 1991 and from the solicitors concerned dated 26th March and 3rd April 1991. These were forwarded to the applicant through the Commissioner of Correctional Services. On 26th April 1991, an affirmation from a solicitor's clerk was filed. 12. The applicant then applied to the court for a hearing date in September 1991. He was told that this would be done but that he must file any further affidavits which he thought necessary not later than one month before the fixed hearing date. He did file an affidavit in reply in August 1991, the hearing date having been fixed for the 3rd and 4th of September. 13. On 2nd September draft affidavits of two of the co-defendants Debry (D2) and Buts (D3) were submitted on their own. When the hearing commenced on 3rd September the applicant was asked to file a further affidavit exhibiting these draft affirmations and to have that affidavit served upon Debry and Buts. The hearing was adjourned. 14. The Attorney General then asked for an early date as the transfer of Debry and Buts to serve the remaining portion o?their 12 years sentence, which had been imposed on 28th September 1989, in their home country of Belgium was under consideration.. The applicant, in turn, asked for further time to file yet further affidavits. The matter was eventually listed for the 8th of January 1992 when the hearing began. 15. The background to the Crown's case was this: On 18th July 1988 the applicant together with Debry (D2) arrived in Hong Kong. Bolhuis (D1) and Buts (D3) were also in Hong Kong. They were, unknown to themselves, being kept under surveillance from the time of their arrival by members of the Royal Hong Kong Police Force. The applicant had booked the hotel rooms for all three and had paid the air fare for Debry (D2). The applicant stayed in the Grand Hyatt Hotel, Bolhuis in the Marco Polo and Buts and Debry in the Prince Hotel. The applicant was seen to meet individually or collectively with all three during the period between the 18th and the 20th of July. The applicant had gone with Buts to arrange his departure flight from Hong Kong to Madrid via Zurich. 16. On 20th July Bolhuis and Debry went to Kai Tak to take their flights. One was wearing a corset stuffed with heroin; the other a girdle similarly stuffed. They were apprehended. 17. On the same day the police raided Buts' room in the Marco Polo Hotel and there, in a briefcase which belonged to the applicant, was found a portion of the quantity of drugs particularised in the original count 4 laid against Buts. The applicant's room was also searched and he himself was arrested. In his suitcase were found two girdles, similar to the one in which the Debry drugs had been packed, and a pair of scales. There were no traces of heroin upon the scales. There was also found the Marco Polo Hotel headed paper containing figures, figures which the applicant had copied into his own diary. By remarkable coincidence the figures on the Marco Polo paper were noted as adding up to "89". The totality of the packets of drugs found on all three drug carriers also came to 89. 18. It was the case for the defence that the applicant's association with the three drug carriers was a totally innocent one and concerned legitimate business. He was in Hong Kong to negotiate an order for latex gloves with a Mr. Bernard Yuen and documents were produced in this connection. He had intended to employ Debry in a firm of which he was the organiser. 19. The applicant gave evidence to the jury maintaining his innocent association with Bolhuis, Debry and Buts and that his trip to Hong Kong was simply for legitimate business. He offered explanations as to first: how his briefcase came into the possession of Buts. He said he had lent it to him because it was intended to buy a fax machine in Hong Kong, bring it back to Holland and sell it there for a price greater than the Hong Kong cost. In order to allow the fax machine to be carried in it, the briefcase had been emptied of most of its contents, other than some papers and cards, relating to the applicant which were contained in compartments in the lid. 20. He explained his possession of the scales and the girdles by saying that they had been given to him by Bolhuis, (D1), whose own suitcase was over full and with the request that he, the applicant, should bring them back to Holland for Bolhuis. He had received these at the check out desk of the Marco Polo Hotel when Bolhuis and Debry were leaving for the airport. He was simply doing a favour for a friend. 21. He explained, thirdly, the Marco Polo note paper with the figures upon it, and the copying of some of those figures into his own notebook, as simply calculations of diamonds and their weight which Bolhuis had considered buying. His fingerprints upon the Marco Polo Hotel note paper were quite innocent as he had handled it when it was given to him by Bolhuis. He had copied the figures into his own diary as he wanted to have a note of them in case any diamond deal came to fruition. 22. He explained, fourthly, his fingerprint on the plastic bag which was in Buts' heroin briefcase as coming there when he had used the bag to wrap up his folding umbrella and so keep his papers dry. He had simply left it, and innocently, in the briefcase when he lent that case to Buts. 23. All this was fully and comprehensively placed before the jury by the trial judge in his summing up. The suggestion, made in submissions, that everything was done so openly by the applicant as to be indicative of his complete innocence, was also placed before the jury. 24. An edited cautioned statement, to which we shall come back when considering ground 7, was before the jury for the purpose of showing consistency in his explanations. 25. The grounds of appeal filed by the applicant are ten in number. One set having been filed in October 1989 and the second in February 1991. It will be of assistance, if they are briefly set out here. 26. Ground 1 alleges that the trial judge's directions to the jury on the issue of inferences were unclear, inadequate and wrong in law. 27. Ground 2 alleges that the judge erred in his factual directions in the summing up. 28. Ground 3 alleges that the judge failed to direct the jury as to how they should approach circumstantial evidence and the making of findings of primary fact before the jury drew inferences from them. In particular, he failed to direct: the jury that, before they could use a primary fact to draw an inference, they had to be satisfied of that primary fact beyond reasonable doubt. 29. Ground 4 alleges that the barrister (Mr. Alderdice) was manifestly Inadequate in his representations to the court and the members of the jury, by not submitting available evidence to the court and the jury from co-defendants whom he also represented. 30. Ground 5 alleges that by not submitting such available evidence available to the applicant the ' barrister's defence of the applicant, and thus the legal advice given to the applicant, was clearly "precariously unsafe". 31. Ground 6 alleges that the jury were not given full and adequate directions on the meaning of "possession" and the approach they should take to the rebuttal of the accused in respect of the possession of the articles, that is the girdles; the scales; the Marco Polo Hotel paper with figures upon it; the briefcase and the contents of that briefcase. It was these facts upon which the conspiracy case was based and the judge, in particular, failed to direct the jury as to the questions they should ask themselves in considering the issue of the intended possession of those articles or of the lending of them. Further, he failed to direct on the circumstances and manner under which those articles were received or lent and as to guilty knowledge o?the nature of that which the accused had lent and his guilty knowledge at the time of the lending or of the receipt of the individual articles. 32. The seventh ground was that an unedited statement made under caution was passed to the jury. This was inadmissible and gravely prejudicial. 33. The eighth ground alleges that Hyatt Regency Hotel bag (a plastic bag) with fingerprints of the applicant on it was given an importance far exceeding that which was reasonable and that the evidence on this matter was not carefully considered. 34. Ground 9 alleges that counsel for the defence was manifestly inadequate in his representations to the court and the jury and. failed to follow the instructions from his client and further failed to consult his client over the decision not to call Debry (D2) and Buts (D3) as witnesses for the defence. 35. The final ground - Ground 10 - alleges that the totality of the agreed facts as presented to the jury were totally and "considerably" unfair and contained wrong and misleading admissions. 36. The applicant acknowledges that the main thrust of his appeal is contained in grounds 4, 5 and 9. We shall consider those grounds later but first will deal with the rest of the individual grounds. 37. Dealing now with the individual grounds: First, the direction on inferences - ground 1. In this connection, it must be remembered that all the salient facts were uncontested. It was the conclusions that the jury might draw from them that mattered. What the judge said was this:
38. The trial judge had, at an earlier point of the summing up, given explicit and unimpeachable directions upon the burden and standard of proof. 39. While the direction on inferences could perhaps have been expressed with greater clarity, we have no doubt that it was fully capable of being understood by the jury. It was unnecessary for the trial judge to expand upon it further. 40. The evidence that the Crown led was to establish the agreement essential for a conspiracy. It was not, as the applicant seems to think, directed to the offence of physical trafficking in drugs by him. We find no substance in this ground. 41. Ground 2 - factual errors in the summing up.] 42. It is correct that the judge did make two factual errors, one of somewhat greater substance than the other. The first was when he made reference to the applicant as having paid the fares for Bolhuis and Debry: the second, when he made reference to an event having taken place at the Marco Polo Hotel when it had in fact occurred at the Prince Hotel. 43. There was no evidence that the applicant had paid for Bolhuis' air fare. There was evidence, and he accepted this himself, that he had paid for Debry. While we are only too well aware that the evidence against the applicant consisted of the strands of the rope of circumstantial evidence, it had been amply shown to the jury, and indeed uncontested by the defence, that the applicant had arranged many things on behalf of Bolhuis, Debry and Buts including their accommodation. He was clearly shown to be closely associated with them. We do not think that this factual slip by the trial judge was a material misdirection sufficient of itself to vitiate the conviction. The second factual mistake of misnaming the hotel seems to have had no real consequence at all. It was a pure slip. 44. We find no substance in this ground. 45. Ground 3 - the approach to circumstantial evidence. 46. There is no particular form of direction which should be given to a jury when circumstantial evidence is involved.. In any event here, as we have indicated, all the primary facts were uncontested and were fully proved. Once the jury were reminded of the defence raised by the applicant and the explanations which he gave for each of those individual strands we do not think that the trial judge, in this particular case, was called upon to go further. There could be no doubt that the jury were entitled to be satisfied of the existence of each of the primary facts beyond reasonable doubt. 47. We find no substance in this ground. 48. Ground 6 - directions on possession. 49. It was uncontested that the applicant was in possession of the scales, the girdles, the Marco Polo notes and the notes in his diary. It was also undisputed that he had lent his briefcase to Buts. We do not think that it was necessary for the trial judge to give directions additional to those which, as we have indicated, he had already given in relation to these items and the connection of the applicant with them. The applicant, it is worth repeating, faced a count of conspiracy not one of possession for the purposes of unlawful trafficking. 50. Ground 7 - the unedited statement. 51. What had happened at trial was this. A statement made by the applicant, taken down in handwriting and with each question and. answer being initialled by him, was made to a police officer upon the applicant's arrest. An edited version was read to the jury. It was apparently thought that the matters edited would, if they had been before the jury, have been prejudicial to the applicant. We have seen these and are far from convinced that they would have been inadmissible in Evidence. Nevertheless it was decided that they should not be known to the jury, this with the consent of both the Crown. and counsel for the applicant. That statement was before the jury purely to show consistency. The original statement was given an exhibit mark "Exhibit P18". It is amongst the court documents. 52. As the basis for his argument the applicant relies, first, on a passage at p.137 of the transcript where the judge, upon the production by counsel then appearing for the Crown o?the handwritten statement, gave it the exhibit number referred to. Counsel then indicated to the court that the statement had been photocopied and edited. The taker of the statement, who produced it, was subject to a short cross-examination which has no relevance to the point the applicant seeks to make. Then, second, at the conclusion of the summing up, the jury were told that they could have "all the documents", should they wish, in the course o?their deliberations. The applicant contends that this must have included the original unedited handwritten statement for it had been given the exhibit number and that therefore must have been before the jury to his great detriment. 53. For reasons of which we are not aware the Crown had accommodated Mr. Alderdice by agreeing to the editing of the statement.. There is nothing whatsoever to suggest that, in addition to the photocopies of the edited statement, the original had in fact been placed before the jury. The applicant agreed that he was in no position to say that it had been. The giving of an exhibit number to an unedited statement is a common practice. Unless the applicant were in a position to positively assert that this original statement had in. fact come into the hands of the jury in the 1989 trial, we must act on the basis that the normal and regular course, that the edited statement was the only version provided to the jury, was not deviated from here. 54. Ground 8 - the undue prominence given to the fingerprints on the Hyatt Regency Hotel bag. It was not contested that the applicant's fingerprint did appear on the bag found in the briefcase. The Crown for their part led that evidence to, at the very least, suggest that he was involved with the drugs which were found in that case. The applicant placed before the jury his own explanation as to how that fingerprint came upon the bag. It was obviously a matter of some importance and rightly so. Again, the jury were properly directed in relation to it. It was but one of the strands of the rope of circumstantial evidence and was given the precise importance that it merited. 55. Ground 10 - the misleading admissions in the agreed facts. 56. Those agreed facts had been placed before the jury pursuant to s.65C of the Criminal Procedure Ordinance, Cap. 221. They, towards the end of the trial, were given a copy of them. The first related to the hotel bookings made on behalf of Universal Advisors A.G., the applicant's company, by the applicant in the Marco Polo, Prince and Hyatt Regency Hotels; the second was that dangerous drugs were found on Bolhuis and Debry at Kai Tak - these drugs were properly seized, weighed, analysed and produced in court; the third was that dangerous drugs were found in two briefcases during a search o?the room occupied by Buts - one of those briefcases, of course, was the property of the applicant; the fourth, was that fingerprints were lifted from exhibits No.12 and 13; the fifth, relating back to the fourth, was that prints on P12, which were the bags containing heroin, were those of Buts and that the prints of the applicant were found on exhibit P13, the Hyatt Regency plastic bag. 57. The applicant has suggested - and this has bearing on both grounds 8 and 10 - that the jury might have been misled into thinking that his fingerprints were on the bag containing drugs because of some confusion between exhibit numbers in the course of the trial - and he has referred us to the relevant portions o?the transcript. But the matter was clearly and properly placed before the jury in the course of the summing up, and the undoubted confusion was cleared up so that there can be no substance in the suggestion that the jury might have misunderstood. It was never suggested that the fingerprints of the applicant were on the bag containing drugs. 58. The judge at p.22 of his summing up had succinctly placed the issues before the jury. He said this:
59. He had earlier reminded the jury that, on the generality of the evidence, they might have little difficulty in concluding that a conspiracy existed between Bolhuis, Debry and Buts. A full and proper definition of conspiracy had been given. He went on:
60. We find nothing in the grounds to which we have made reference that gives us any cause to think that the conviction of the applicant was in any way unsafe or unsatisfactory. 61. We now come to the grounds 4, 5 and 9 - the allegations made against counsel and instructing solicitors. 62. In connection with the negligence ground we have four main affidavits filed by the applicant. The first sworn on 22nd February 1991, the second on 30th July 1991, the third on 23rd August 1991 and the fourth on 28th November 1991. To each of them is attached numerous items and we have considered all of them and been addressed generally upon them and in particular on certain aspects contained therein. 63. We also have an affidavit of Mr. Colin Cohen sworn on 26th March 1991 to which is attached a large number of attendance notes; a second affidavit of Mr. Cohen sworn on 2nd April 1991; an affirmation, affirmed on 27th March 1991, of John Christie Dunn who, at the time of preparation for trial, was a pupil of Mr. Alderdice; an affidavit sworn by Mr. Alderdice himself on 28th March 1991; an affidavit of Mr. Michael Peart, sworn on 28th March 1991 who was, at the time of preparation for trial, an assistant in the firm of Messrs. Boase & Cohen, to which also is attached a large number of attendance notes; and an affirmation of Wong Kam Mun, a clerk employed by Messrs. Boase & Cohen, sworn on 24th April 1991. 64. In dealing with this aspect of the appeal we have not followed the course taken by leading counsel who appeared for the appellant in R. v. Siu Hon Sum [1989] 1 HKLR 327 - which also concerned allegations of professional negligence - where the counsel concerned was referred to throughout as "leading counsel" and solicitors as "instructing solicitors". This because, at the hearing of this matter, the names of all those concerned were referred to continuously in open court. 65. We have dealt with this issue by considering all. the affidavits and affirmations placed before us. The consideration of' statements is a course generally adopted in matters of this kind though we are fully conscious here that, unlike the position in Siu Hon Sum, there is a direct factual conflict as between the applicant's version and the versions of his counsel and solicitors. We were of the opinion that no useful purpose could be served by hearing evidence from either the applicant or from his legal advisors, the position of both being crystal clear from the material which we have before us. We considered the affidavits and affirmations as evidence sufficient for our purposes and, if need there be, we would, in the interests of justice, accept them as such under the provisions of s.83V of the Criminal Procedure Ordinance. 66. In Siu Hon Sum this court, having considered the . relevant authorities, laid down the test to be applied where professional negligence is alleged. It is sufficient if we make reference to the headnote at page 327 which reads:
67. It is the applicant's contention that he gave explicit instructions to his solicitors, and later counsel, that Buts and Debry should be called in evidence on his behalf. It is his further contention, and this was referred to in detail even in the course of his submissions on his other grounds, that. had they given evidence they would have supported in full his defence of innocent association and the explanations which he had given in respect of each of the strands of the rope. Without them the jury were left improperly advised and his defence evidence uncorroborated. It is suggested that, because his evidence remained unsupported by any other evidence, the jury disbelieved him, were driven to come to a wrong conclusion, his conviction, and that this amounted to a miscarriage of justice. 68. Subsequent to their pleas, Debry and Buts were convicted felons and convicted of matters highly relevant to the count laid against the applicant. This was a matter which concerned counsel, in particular as to the safety of calling them in the course of the applicant's defence. We can well understand his hesitation. For, given that they would have stated their evidence separately, each not hearing what the other said, whatever opportunity the applicant might have had for persuading the jury that his defence was a good one could well have been destroyed. The general evidence had involved them very heavily with the applicant. And they were found with massive quantities of drugs. But, be that as it may, had the applicant in fact given explicit instructions which his counsel was not prepared to accept then counsel was either negligent in failing to carry them out or wrong in not withdrawing from the trial. For, if counsel in the light of those instructions had informed the applicant that he refused to accept them, then, there would have been but one course open to him, that is to return his brief. The issues are: Was counsel given explicit. instructions? Was there discussion about the matter? Was it eventually agreed that it would be too dangerous to call those two men - and by agreed we mean agreed by the applicant, he having been properly advised? 69. We would interpolate here that at no time, at or prior to trial, was it suggested that Bolhuis should be called. He was thought to be far too unstable. Subsequent to the conviction of Bolhuis on plea, and the applicant after trial, the applicant considered a method of introducing in his appeal a cautioned statement made by Bolhuis. In the attendance note of 28th September attached to Mr. Peart's affidavit, and which recorded a time of 45 minutes, it is stated that the applicant suggested that he allege, at the hearing of his appeal, that he had told Mr. Alderdice to call Bolhuis as a witness in order to allow a cautioned statement of Bolhuis to be placed before the jury. He agreed with Mr. Peart that he had given no such instructions and said that he did not wish to do this, because he thought solicitors and counsel had done a good job, but, if this were the only way of getting Bolhuis' cautioned statement before the Court of Appeal, then he would make the allegation. The applicant went on, according to the attendance note that "he was sorry this had to happen but he was now facing 15 years and even if this caused trouble for counsel, he had to look after himself and his colleagues in this position." 70. Attached to one of the applicant's affidavits are the two items which are described as "proofs of evidence" of both Debry and Buts. There are also before us affidavits sworn by them for the purpose of an intended bail application by the applicant long before trial. These latter were, of course, sworn before they eventually pleaded guilty and are, to be kind, self serving. Late in the day the Crown introduced into the hearina two further affidavits from Debry and Buts, both of which categorically state that it was never intended to call them in evidence and, further, that they would not, in any event, have given evidence on behalf of the applicant. The applicant seeks to suggest to us that these last affidavits were made under pressure and out of self-interest; the pressure coming from the police to co-operate and the self-interest being that, if they did not co-operate, then their. removal from Hong Kong to Belgium to serve the remainder of their sentences might not eventuate. Again, we shall come back to that. 71. The applicant said to us that, had he been aware that Mr. Alderdice would not follow his instructions, he would immediately have discharged him. Mr. Alderdice had instructions to appear for three of the original defendants at trial. He negotiated with counsel then appearing for the Crown before the trial proper commenced and succeeded in having the conspiracy charge dropped against Debry and Buts once they had agreed to plead to the substantive charges. 72. He had also succeeded in having the fifth count, the failure to give handwriting samples, dropped as against the applicant. At the first pre-trial review in early September, Bolhuis did not have legal representation and the hearing was adjourned. However, at the next hearing later in that month he was separately represented and continued to be throughout the proceedings. The sentences, incidentally, passed on Bolhuis, Debry and Buts were, on each, a period of 12 years imprisonment: that on the applicant, 15 years imprisonment. 73. Mr. Cohen in a lengthy affidavit dated 26th March 1991 sets out generally the course his firm had taken from the time that they became involved in this matter on 23rd December 1988. He details the numerous attendances upon both the applicant, Buts and Debry, supported by attendance notes, including the various discussions on the matter of extradition. He travelled to Europe in this connection on behalf of the three men. Initially, all three men intended to plea not guilty to all the counts. Because of this he advised them that it would not be in their interest to ask for a full preliminary hearing. He was present at South Kowloon Magistracy on 20th February 1989 when pleas of not guilty were entered and there was a formal committal to the High Court for trial. Subsequently, there were a further large number of attendances upon the three men. On 8th March 1989 Mr. Cohen had formed the preliminary view that Buts and Debry would have no alternative but to plead guilty to some of the counts. He discussed matters relating to the applicant with the applicant separately. The matter of extradition was still alive and it was arranged that a Belgian lawyer would come to the Territory to meet the three men and discuss that issue. Those meetings took place on 16th and 17th March 1989. Eventually, on 24th April 1989, the applicant informed Mr. Cohen that no request would be made to the Hong Kong authorities for extradition. The three men were informed by letter of 12th May 1989 that a pre-trial review would be held on 1st September of that year to be followed by a trial commencing on 12th September. The clients were proofed during the first week of August by Mr. Michael Peart. The proofs of evidence having been obtained, Mr. Cohen met the three men on 25th August 1989 when the question of what course Mr. Bolhuis would take was raised. Mr. Cohen was assured that Bolhuis would not give any Crown evidence nor would he be difficult. There was never any question of Mr. Bolhuis being called to give evidence on the applicant's behalf. 74. The day to day management of the pre-trial review and the trial itself was conducted by Mr. Peart together with Mr. Alderdice of counsel. Mr. Cohen attended on the three men in the holding cells at. the Supreme Court on 14th September 1989. He stated categorically that:
75. After the trial had concluded with the conviction of the applicant and the sentencing of the applicant and the others, the applicant made the allegations which are the subject of grounds 4, 5 and 9. As a result of these, Mr. Cohen felt he could no longer represent the applicant. 76. Mr. Peart in his affidavit of 28th March 1991 generally supported that which Mr. Cohen had said and he also categorically stated that no mention was made by the applicant., during the long proof taking sessions, of calling Buts or Debry to give evidence at trial. He says that the applicant, and we ourselves have noted this, speaks very good English whereas the English of Debry and Buts was poor. The applicant did translation for them. On 23rd August 1989 Mr. Alderdice, his then pupil Mr. John Dunn together with Mr. Peart attended on the clients at Lai Chi Kok Reception Centre. At that time, the applicant did ask counsel whether his co-defendants should give evidence on his behalf. That was the only time at which the issue was raised in Mr. Peart's presence. He says that Mr. Alderdice advised that it would be very dangerous to do so as they would be cross-examined, in particular upon their cautioned statements. As far as he was concerned, on that occasion, all three men were of the view that none of them should give evidence for the other. He deposes to a distinct remembrance of seeing both Buts and Debry shaking their heads and the applicant saying that to call them would be too risky. He says that. the issue of Buts and Debry giving evidence for the applicant was never raised again. He accepts that during the applicant's trial the issue of Buts and Debry giving evidence had not been raised; this, because it had been earlier decided, as indicated in his affidavit, that they would not be called. 77. On 28th September 1989 Mr. Peart attended upon the three men in the holding cell of the Supreme Court immediately after sentencing had taken place. He deposes to the fact that the first thing that the applicant said to him when he entered that room (paragraph 34 page 14) was that he had no complaint about the conduct of the defence by the solicitors or Mr. Alderdice, something the applicant wished to make clear. But the applicant did, as we have indicated earlier, say that, as a ground of appeal, it should be contended that he had instructed Mr. Peart and Mr. Alderdice to present the cautioned statement of Bolhuis to the jury and that they had refused to do so which was not correct.. There was at that time no complaint as to the non-calling of Debry or Buts. 78. Mr. Peart categorically denied that the applicant had approached him during the trial asking when Buts and Debry were going to be called. 79. Mr. Alderdice in his affidavit, dated 28th March 1991, recites his receipt of instructions from the solicitors on behalf of the applicant. He makes mention that at one interview the applicant expressed his grave concern about Bolhuis and how he would conduct his case. Mr. Alderdice says he was told that Bolhuis was a strange and unstable personality who probably had psychiatric problems and that he could be a definite danger to the applicant's case (paragraph 11 page 3). He remembered discussing with the three men, that is the applicant, Debry and Buts, whether or not they would give evidence for the applicant after their plea. He states that. his advice to the applicant was that, while on the surface they could give evidence corroborating him, it would be dangerous to call persons who had admitted trafficking in dangerous drugs as the jury could form an adverse view as to their credibility and thus the general weight to be attached to their evidence. Mr. Alderdice goes on in paragraph 14 of that affidavit to say that he explained to the applicant the circumstances in which Debry or Buts could give evidence if they were to be called because he considered the applicant to be unfamiliar with court procedure. He explained court procedure and emphasised that, if Debry and Buts were called, they would be giving evidence in the absence of each other and would be liable to cross-examination. The applicant said then that to call them was far too risky it was then decided that they would not give evidence should they plead guilty - their stand had not yet been decided. At. a later stage in the affidavit he goes on to say that the calling of Debry and Buts was not further discussed in the course of the trial. 80. Mr. Alderdice's then pupil, Mr. John Dunn, in an affirmation sworn on 27th March 1991 also makes reference to the attendance on 23rd August 1989 and generally supports that which Mr. Alderdice said of what took place at that time. He was present on 18th September 1989 when discussion was held between Mr. Alderdice, Mr. Peart and the applicant in the cells of the High Court. During that meeting, the subject. of calling either Buts or Debry was not raised. 81. The applicant both in submissions to us and in the very lengthy and numerous affidavits which he has placed before us, and which we did not require him to open in full as we indicated to him that we had already read them, has taken strong issue both in detail and generally with the contents of the affidavits of his then instructing solicitors and of counsel. We have taken due note of the many points which he has made. We fully accept. that there were discussions relating to the possible giving of evidence on his behalf by Debry and Buts. It is plain common sense that any counsel would warn his client of the dangers of calling convicted felons who, on the face of all the evidence, had a close association with that client; who had made cautioned statements upon which they were liable to be questioned; and who had pleaded guilty to the substantive counts of trafficking in massive quantities of dangerous drugs, the gravamen of the very count of conspiracy which the lay client himself faced. The applicant suggested in the course of his affidavit that. really the question had never properly arisen in the sense that he had told counsel he wanted them called and therefore had every expectation that they would be. This we do not accept. The versions given by Mr. Cohen, Mr. Peart, Mr. Alderdice and Mr. Dunn are far more likely to be the reality than the versions now presented to us by the applicant. We have no doubt that the applicant was properly advised by counsel as to the course the trial should and would take and that he accepted that advice. The decision not to call either Debry or Buts was one which was well within the competence of counsel to take and which could by no stretch of the imagination, in all the circumstances which existed here, be considered a dereliction of duty. Such a decision is light-years away from "negligence so radical as to give rise to a miscarriage of justice". We have little doubt that, having received a sentence of 15 years imprisonment, the applicant was prepared, as was indicated by the allegation he made in relation to the non-production of Bolhuis' cautioned statements, to pursue any course which would in some way mitigate the difficulties he faced. 82. We have taken a global view of all the material which was before us, as indeed we must. We have noted the gloss that the applicant had sought to place upon various matters which arose during the many attendances upon him and the notes given to him by his instructing solicitors. For example: when the solicitors' clerk, on 4th September 1989, handed him a note which asked what language "they" want to give evidence in at trial, the applicant suggests that "they" referred to Debry and Buts and related only to their giving evidence on his behalf. But that note was delivered before plea and, as indicated earlier, both Debry and Buts did not speak good English. We have little doubt that this note was intended, as Mr. Peart said it was, purely to ask a general question and bore no relation to Debry and Buts being called to give evidence on behalf of the applicant. 83. In our judgment the matter of whether Debry and Buts would be called on behalf of the applicant was finalised long before the trial itself commenced, the applicant having been fully and properly advised. The decision was that Debry and Buts would not be called and this decision was not something which was queried in the days immediately approaching trial or during the course of the trial itself. Having borne in mind all the matters raised to us, and if we have not referred to each and every one of them individually it is not for lack of consideration, we find that the ground o?professional negligence has not been made out. In the event, we would refuse leave to appeal.
Representation: Applicant - in person D.G. Saw, Esq. for Crown/Respondent |
Cases cited in this judgment