HKSAR v. Wong Chi Kwong

HCMA306/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 306 OF 2010

(ON APPEAL FROM TWCC 3386 OF 2009)

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BETWEEN

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Before : Hon McMahon J in Court

Dates of Hearing : 21 October, 19 November and 16 December 2010

Date of Judgment : 6 January 2011

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J U D G M E N T

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1.The appellant was convicted, after a trial before Mr Glass at Tsuen Wan Magistracy, of an offence of trafficking in 0.67 grammes of methamphetamine hydrochloride. He was originally charged jointly with his nephew who was D1 at trial. D1 however pleaded guilty prior to the hearing and the appellant went to trial alone.

2.The prosecution case was that D1 had been found by police in possession of the drug outside a public toilet on Lantau Island, nearby the building where both he and the appellant lived together with the appellant’s mother and D1’s mother, the appellant’s sister.

3.D1 told his arresting officer that the drug (which was contained in a red Marlboro cigarette packet) had been given to him by the appellant, so as to deliver it to another person.  The police then went to the appellant’s home.  He was arrested and subsequently under caution admitted that he had given the drug to D1 to deliver to that other person.  The only evidence against the appellant was his cautioned statement, and it was admitted into evidence by the magistrate after it was ruled voluntary.  The magistrate gave the admissions full weight and the appellant was convicted.

4.The appellant’s case had been that he participated in the making of the cautioned statement because, with both himself and his nephew D1 in custody and his sister not at home, his mother was alone.  She had suffered a stroke some time previously and needed, according to the appellant, full time care.

5.The appellant now appeals his conviction only, he having abandoned his appeal against his sentence of 18 months’ imprisonment.

6.The grounds of appeal advanced by Mr Ross for the appellant are succinct.  They may however be further paraphrased as follows :

(1)   The appellant was not provided with legal representation in breach of article 11(2)(d) of the Hong Kong Bill of Rights.

(2)   As a consequence he did not receive a fair trial.

(3)   The prosecution failed to prove the substance seized from D1 was a dangerous drug.

(4)   The appellant’s cautioned statement was wrongly admitted into evidence.

7.As will be seen, the 1^st ground is sufficient to dispose of this appeal, and in doing so much of that which is the subject matter of Ground 2 will be dealt with.

8.It is however convenient to firstly deal briefly with Grounds 3 and 4.

Ground 3 : The chain of evidence

9.Mr Ross concedes that PW2 (who arrested and searched D1) identified and produced the drugs found on D1 as Exh. P4.  That evidence was never disputed.  The drugs Exh. P4 were produced inside an exhibit envelope which had two reference numbers written upon it.

10.Those same reference numbers were stated in the government chemist’s certificate as describing the sealed packet delivered to the government laboratory containing the substance which, after testing, was found to be the dangerous drugs the subject of the charge.

11.Mr Ross however argues that this evidence was insufficient to prove that the substance seized from D1 was the particularized dangerous drug as there was no evidence to rebut the possibility of the contents of the envelope containing Exh. P4 having been tampered with by some individual.

12.I think, in the absence of any evidential suggestion of such tampering or of any other challenge during trial, the magistrate was right to conclude, as he implicitly did, that the drug contained in the “sealed” and numbered envelope referred to in the government chemist’s certificate, it having been identified as the drug seized from D1 by the evidence of the officer who seized it, was sufficiently identified as that seized from D1 and tested by the government chemist and found to be the “ice” referred to in the charge.  This ground fails.

Ground 4 : The admission into evidence of the appellant’s cautioned statement

13.By this ground Mr Ross asserts, in the course of finding the appellant’s cautioned statement to have been made voluntarily, that the magistrate wrongly assumed that because the appellant had been allowed to borrow money for bail, he had been allowed therefore to make a telephone call or calls if he had wished to do so.

14.The magistrate’s finding in this regard was in the following terms :

“I also found that he had been told by the police to borrow money for bail and I found this meant he was given the opportunity of making telephone calls. However, at the police station, he did not make any telephone calls despite the fact that he would be detained for a period and despite his mother being alone and disabled and that his father might be dying. But instead, he preferred to wait till the police let him go quickly before taking any further action.”

15.Mr Ross argues that the fact the police had suggested that the appellant borrow bail money does not mean that the appellant was allowed to make phone calls.  But in the context of the evidence, the magistrate’s finding is one of common sense.  The simple point the magistrate was making was that if the appellant had been so concerned about the well-being of his mother, whose stroke was said to have rendered her wholly incapable of looking after herself and his father who was said by the appellant to be seriously ill in China, it was incongruous that in the 10 hours or so the appellant was detained in the police station he had not attempted to telephone his sister; the police apparently being prepared to allow him the opportunity to contact outside individuals for the purpose of bail.  This may not have been an overwhelming point, but it was an aspect of the case the magistrate was entitled to take into account.

16.In any event I have read both the evidence of PW1, the officer who recorded the interview he conducted with the appellant, and the evidence of the appellant and agree with the magistrate’s assessment that PW1 was a credible witness and the appellant was not.  On that basis the admissions of the appellant were rightly allowed into evidence.  This ground must fail.

17.I return now to the appellant’s 1^st and primary ground of appeal.

Ground 1 : The lack of legal representation

18.By this ground it is alleged that the right of the appellant to legal representation as provided for in article 11(2)(d) of the Hong Kong Bill of Rights Ordinance (Cap. 383) was breached.  That article is as follows :

“[Article 11]

(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality—

…

(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;” [Emphasis added]

19.The complaint advanced on behalf of the appellant was that he, through no fault of his own, had been denied the services of a duty lawyer for his trial.  As a consequence he had represented himself and had conducted his case poorly, even though assisted by the trial magistrate, and been convicted. 

20.It was common ground that on the day of his plea he had been represented by a counsel provided by the Duty Lawyer Service.

21.On the day of his trial however (some weeks later), he remained unrepresented.  That was because, although legal representation at plea day was provided free of charge by the Duty Lawyer Service, further representation at trial required the payment of a fee of $420.  This fee was termed a “handling fee”.

22.I heard evidence on this issue from both the appellant and Miss Remy Chan Wai Yi of the Duty Lawyer Service.  She was, at the relevant time, and remains, the court liaison officer of the Duty Lawyer Service at Tsuen Wan Magistracy.

23.Miss Chan’s evidence was that the handling fee was a payment required to be made prior to the provision of a legal representative by the Duty Lawyer Service to a defendant for the purposes of a trial.  She said this fee could be waived at the discretion of the Duty Lawyer Service in circumstances where a defendant’s financial capacity rendered him unable to pay that handling fee.

24.Her evidence was that whenever a defendant pro-actively informed a staff member of the Service that he or she had insufficient means to pay the handling fee, that defendant would be advised to apply for a waiver.  Such an application, although dealt with as an exercise of discretion by the Service, would be granted in the case of any defendant whose income was sufficiently small.  A sufficiently small level of income was regarded as being at the level of monthly CSSA welfare payments or less.  There was no issue that the appellant’s income fell below that level, and that the appellant, if he had applied for a waiver of the handling fee, would have had his application approved and he would have been provided with a legal representative for the purposes of his trial.

25.The evidence of the appellant and of Miss Chan was in large part in agreement.  They differed in only one material respect.  The appellant said that he had told Miss Chan that he could not pay the $420 fee on two occasions, though he agreed he had never asked Miss Chan or any other staff member of the Service if it were possible for him to obtain representation even though he could not pay the handling fee.

26.Miss Chan’s evidence was to the effect that though, understandably, she could not remember any conversations she had with the appellant, there was a standard procedure adopted by the Duty Lawyer Service when a defendant informed a staff member that he or she could not afford to pay the handling fee.  When that occurred an internal form of the Duty Lawyer Service was completed and an application for waiver of the handling fee was then set in train on behalf of that defendant.

27.Miss Chan’s evidence was that, though she had no memory of the appellant informing her (or of him informing any staff member) of his inability to pay the handling fee, there was no waiver application documentation on the file maintained by the Service in respect of his case and that meant, in her experience, that he had told no one that he could not afford to pay the handling fee.

28.I accept her evidence in that regard.  She was an extremely candid and well-informed witness who clearly knew the procedures of her service.

29.On the other hand the appellant’s evidence was not candid but opportunistic and in my view improbable.  I cannot accept that he, on two separate occasions, informed the Service that he was unable to afford the handling fee and that nothing was done.

30.What, in my judgment, did occur was that the appellant simply collected the documentation and the pay-in slip, provided to him by Service staff which would in the normal course facilitate and evidence his payment of the handling fee required for him to receive representation at his trial, but that he then did nothing as he was in fact unable to pay that fee. In other words the appellant, when informed of the necessity of paying the handling fee, found himself unable to pay it and assumed, understandably on the information provided, that he would necessarily have to conduct his trial without legal assistance.

31.Where does that leave the appellant so far as his right to representation under article 11(2)(d) is concerned?  

32.Miss Chan, in her thorough explanation of the procedures of the Duty Lawyer Service, explained that there was no procedure by which an impecunious defendant would be alerted to the possibility of waiver of the handling fee of $420 as a matter of course.  No document, notice or other source of information was provided to a defendant concerning his right to apply for a waiver of the fee.  That information was provided to a defendant only if he took the initiative to inform the Service that he was unable to pay the fee.  As Miss Chan candidly said, there is a vested interest in the Service to prevent the abuse of public money.

33.In the circumstances of this case the appellant therefore remained ignorant of the pathway provided by the Service so as to enable him to have representation at his trial.

34.IT IS TRUE THAT THERE IS NO ABSOLUTE RIGHT TO LEGAL REPRESENTATION, AND THAT EVEN IN THE CASE OF IMPECUNIOUS DEFENDANTS, OR DEFENDANTS WHO CLAIM TO BE SUCH, REASONABLE LIMITS MAY BE SET UPON THE PROVISION OF FINANCIALLY ASSISTED LEGAL REPRESENTATION IN THAT REASONABLE CONSTRAINTS CAN BE PLACED BY THE RELEVANT AUTHORITY UPON THE PROVISION OF LEGAL SERVICES IN TERMS OF FINANCIAL MEANS : SEE R V FU YAN [1992] 2 HKPLR 109 AND R V MIRCHANDANI [1992] 2 HKPLR  196. In both cases the Court of Appeal concluded that article 11(2)(d) ofthe Bill of Rights itself recognised that there was no absolute right to legal aid “without payment”.  The same principle must logically apply to the provision of representation by the Duty Lawyer Service.

35.Ms Noelle Chit for the respondent therefore argues that whether or not a fee is charged for the provision of legal representation is a matter for the Duty Lawyer Service.  That is true so long as the fee charged is not of an amount which is effectively a denial of a defendant’s rights under article 11(2)(d).  But it is not the degree of lack of financial resources required of a defendant which is in issue in this case, nor the level of the handling fee charged. 

36.In the present case it is the procedure adopted by the Duty Lawyer Service in not informing the appellant of his right to have the handling fee waived which is challenged.  Mr Ross argues that the procedure adopted by the Duty Lawyer Service effectively meant, and still means, that defendants who fulfil the criteria of article 11(2)(d) may be denied legal representation at trial which, under the terms of the article, they are entitled to.  As will be seen, I agree, and the present applicant’s case demonstrates the lacuna through which an entitled defendant may fall.

37.In my view, as will be shown, the appellant’s case does satisfy, for the purposes of having free legal assistance provided to him, the criteria of “interests of justice” as referred to in article 11(2)(d).

38.As a starting point it should be said that the mere existence of a route to free legal assistance for an entitled defendant is not enough.  The defendant will have his right denied if he is not made aware of the availability of free legal representation.  In Benham v United Kingdom (1996) 22 EHRR 293 the European Court of Human Rights dealt with an applicant who had been committed to prison for 30 days for his failure to pay a community charge of £325.  Having concluded that the applicant had been “charged with a criminal offence” for the purposes of article 6(3)(c) of the European Convention for the Protection of Human Rights, which is in very similar terms to article 11(2)(d) of the Bill of Rights; the court said :

“70. The Commission notes that there exist in England and Wales two forms of assistance for persons in the applicant’s position. First, the Green Form scheme provides for a limited amount of advice from a solicitor, but does not permit representation before a tribunal. The Commission finds that such assistance, whilst it may be a help in certain circumstances, cannot constitute the assistance required of Article 6(3)(c), which by its very nature requires assistance in court at least.

71. Secondly, assistance by way of representation (‘ABWOR’) enables a solicitor who happens to be in court to be called on to assist a party to proceedings before magistrates provided the solicitor was not in court for that very purpose, provided the magistrates consider that the proceedings should proceed the same day, and provided the magistrates consider that they wish to have the assistance of a solicitor under the ABWOR scheme.  The Commission notes that the purpose of ABWOR is to enable magistrates to call on a solicitor who happens to be in court if they feel they need his assistance.  It is not for a defendant to request representation under ABWOR, and an unrepresented defendant will not generally be told of the existence of the scheme.  The applicant was not so told.  A solicitor who represents under the ABWOR scheme is not aware of the background to the case, and may not be familiar with the law involved.  The Commission finds that, although the Commission cannot exclude that where ABWOR is granted it could satisfy the requirements of Article 6(3)(c ), in the present case the mere existence of the scheme cannot satisfy those requirements.”  [Emphasis added]

39.On that basis the court concluded that the applicant had been denied legal representation.  In my view the appellant in the present case, for similar reasons, was also denied legal representation because the procedure adopted by the Deputy Lawyer Service did not make him aware of the avenue by which the handling fee could be waived.

40.Had the procedure of the Service brought to the attention of the appellant the fact that he could apply for the waiver of the handling fee, and had he made such an application, then it appears to me, as will be seen, he would have been entitled to receive free legal assistance at his trial.  It was common ground that the appellant did not have sufficient means to pay for legal assistance.  The remaining issue is whether the “interests of justice” in the present case required that the appellant be given free legal assistance.

41.The court in Benham’s case concluded that as a matter of principle where the immediate deprivation of liberty of a defendant is at stake as in the present case, then “the interests of justice” call for the provision of legal representation.  Earlier decisions of the European Court had considered factors in addition to a defendant’s loss of liberty.  In the case of Quaranta v Switzerland,24 May 1991, Series A, No. 205,the court took into account not only that the applicant’s liberty was at stake, he being charged with various offences including robbery, but also the complexity of the sentencing process involved, he having eventually pleaded guilty to the charged offences :

“34. … The participation of a lawyer at the trial would have created the best conditions for the accused’s defence, in particular in view of the fact that a wide range of measures was available to the Court.

35. Such questions, which are complicated in themselves, were even more so for Mr Quaranta on account of his personal situation: a young adult of foreign origin from an underprivileged background, he had no real occupational training and had a long criminal record. He had taken drugs since 1975, almost daily since 1983, and, at the material time, was living with his family on social security benefit.

36. In the circumstances of the case, his appearance in person before the investigating judge, and then before the Criminal Court, without the assistance of a lawyer, did not therefore enable him to present his case in an adequate manner.”

42.That approach had also been adopted by the European Court in Granger v United Kingdom, 28 March 1990, Series A, No. 174, involving an application by the applicant from an unsuccessful domestic appeal against his conviction for perjury, at which appeal he had been unrepresented and as a consequence had had his sentence of 5 years imprisonment affirmed.  He argued that his right under article 6(3)(c) to be provided with free legal assistance had been breached.  The court had no hesitation in deciding “there can be no question as to the importance of what was at stake in the appeal” and then proceeded to take into account the difficulties experienced by the applicant in representing himself unaided in the domestic court before deciding that the interests of justice had required the applicant be provided with legal aid in that court.

43.The fundamental approach by the European Court to the rights conferred by article 6(3)(c) of the Convention has, in broad terms been in parallel with that of common law jurisdictions, though in the latter jurisdictions it is differently expressed.  In the Australian High Court decision of R v Dietrich [1992] 177 CLR 292, an appeal from the State of Victoria where there is no statutory equivalent to article 11(2)(d) (nor indeed is there at a national level) Brennan J, said in regard to article 14(3)(d) of the International Covenant on Civil and Political Rights (to which Australia is a party) and which is expressed in the same terms as article 11(2)(d) of the Bill of Rights, that :

“Although this provision of the Covenant is not part of our municipal law, it is a legitimate influence on the development of the common law (10). Indeed, it is incongruous that Australia should adhere to the Covenant containing that provision unless Australian courts recognize the entitlement and Australian governments provide the resources required to carry that entitlement into effect. …”

44.In that context therefore considerable weight can be attached to the majorities judgment in Dietrich to the effect that :

“ In view of the differences in the reasoning of the members of the Court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.” [Emphasis added]

45.The concluding sentence of the extracted part of the judgment is important.  It is grounded in long accepted legal principle.  A breach of a right of a defendant would, it seems to me, if the trial of a defendant was in any event fair, not necessarily of itself be sufficient to overturn a conviction.  The same intimation is contained in the approach of the European Court in cases such as Quaranta v Switzerland and Granger v United Kingdom (supra) and is stated more directly in other common law jurisdictions, the most apposite comparison being with that of New Zealand, where section 24(f) of the New Zealand Bill of Rights Act is expressed, so far as its elements are concerned, in similar terms to Hong Kong’s article 11(2)(d) :

“24 Rights of personals charged

Everyone who is charged with an offence—

…

(f) Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; …”

46.As was said by the Supreme Court of New Zealand in R v Condon 1 NZLR 300, at 319 :

“On the other hand, even if an accused’s right to representation is found to have been breached (for example, through the wrongful refusal of an adjournment), it is only if the Court concludes that this breach rendered the trial unfair that the conviction will be quashed on that ground alone.”

47.That approach was echoed in R v Whitelaw [2008] NZCA 307 where the question of whether or not the appellant was prejudiced by the lack of provision of free legal assistance was determined by a consideration of the seriousness of the charge and also a consideration of the complexity of the case.

48.Applying what has been, it seems to me, the common approach of the European Court of Human Rights and common law jurisdictions in considering a breach of a defendant’s rights under their equivalent (whether statutory or common law) of our article 11(2)(d), a breach of the right, of itself, is not sufficient to warrant the setting aside of a conviction.  There must be, at the least, some risk of prejudice to the unrepresented defendant in the conduct of his trial. 

49.It is common sense that a defendant who represents himself is rarely so well off in the conduct of his case as is a represented defendant.  As was said by the Court of Appeal in Dr Ip Kay Lo v Medical Council of Hong Kong [2003] 3 HKLRD 851 per Yuen JA, at para. 94 :

“ I would echo with respect the words of the High Court of Australia in Dietrich v R (1992) 109 ALR 385, when Mason CJ and McHugh J said:

‘The advantages of representation by counsel are even more clear today than they were in the nineteenth century. It is in the best interests not only of the accused but also of the administration of justice that an accused be so represented, particularly when the offence charged is serious. …

An unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge and skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the [prosecution].

A judge… cannot investigate the facts, advise and direct the defence, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.’”

50.Given the difficulties an unrepresented defendant will often face, compelling reasons would generally be required to satisfy an appellate court that such a defendant had not been prejudiced to some degree by the wrongful denial of free legal representation.  In the present case the prosecution alleged the appellant had committed the charged offence jointly with D1 by way of the appellant arranging for D1 to deliver the drugs to a purchaser.  The appellant was not present when D1 had been arrested in possession of the drugs and, as I say, the sole evidence against the appellant comprised his admission in a written cautioned statement to the effect he had arranged for D1 to deliver the drugs after he, the appellant, had purchased them in Kowloon earlier that same day.  The prosecution case therefore required them to prove that the appellant’s cautioned statement was made voluntarily.

51.The appellant challenged the admissibility of his cautioned statement by way of an allegation that the police, knowing his mother required constant care and that the appellant and D1 provided that care and that both were in custody, had placed pressure upon the appellant to admit the offence by promising him bail if he did so.  There was a further complexity.  It is noticeable that the appellant’s counsel, the duty lawyer who represented him at the initial hearing (though obviously not at trial), had informed the court of a number of additional challenges which were to be mounted against the admission of the appellant’s cautioned statement, the main complaint being that the police had threatened to arrest the appellant’s mother if he did not co‑operate in the making of the recorded statement.  The trial magistrate was not informed of these additional objections by the appellant, but only of that related to the promise of bail.

52.I do not think that a lay person such as the appellant would necessarily have sufficient knowledge of the sometimes technical and potentially complex issues that may arise when matters related to the admission of evidence, especially written confessional statements, are concerned; and I accept that there is in this case a risk that the appellant omitted to present the totality of his case.

53.Additionally the appellant in this case may well have had, on the special and general issue, an available “alibi” witness in the form of his mother, whom I accept may have been in a position to give evidence as to his being at home at a time when, according to his cautioned statement, he was in Kowloon purchasing the drugs he subsequently provided to D1.  Regardless of the weight to be eventually attached to that evidence, it was another potential aspect of the appellant’s case that was not dealt with.

54.These are matters which the magistrate was not made aware of by the appellant and no criticism can be made of the otherwise thorough guidance the magistrate gave to the appellant in the conduct of his case.

55.One other matter arose during trial.  The appellant, though he did give evidence on the special issue, elected not to give evidence on the general issue.  Instead he called D1 as a witness.  That was a course of some considerable risk as D1 had pleaded guilty to the offence and had in his interview with the police admitted he had been given the drugs by the appellant for the purpose of delivering them to another person.  As matters transpired however D1 (who was in custody when giving his evidence) was neither a helpful witness for the appellant or the prosecution.  The magistrate placed no weight on his evidence as it was vague and because D1 claimed he could not remember matters.  Nevertheless the calling of D1 as a witness by the appellant does suggest something less than a clear-headed approach to the conduct of the appellant’s defence.

56.In my view there was a real risk, in the circumstances of this case, that the appellant’s defence was prejudiced by a lack of legal representation.

57.The effect of my conclusions therefore is that in circumstances where the indigent appellant was entitled to assisted legal representation as a result of the seriousness of the case against him, and the complexity of the issues, and where, through no fault of his own, he did not obtain that legal representation and as a consequence may have been prejudiced in his defence, there has been a material breach of his right to assisted legal representation provided by article 11(2)(d).

58.To summarise : It was never in issue that the appellant in this case was sufficiently impecunious so as to trigger the discretion of those responsible for the administration of the Duty Lawyer Service to waive the handling fee.

59.That being so on the facts of this case, given the seriousness and complexity of the case which the appellant faced at trial, the appellant was entitled (in the terms of article 11(2)(d)) to have, without payment, legal assistance provided to him “in the interests of justice”.

60.For the appellant not to have been informed of this right was, in effect, a denial of that right.  I might add that a defendant who cannot afford the “handling fee” and who otherwise falls within the ambit of article 11(2)(d) is entitled to be provided with legal representation without payment in such circumstances and it is in my judgment not a matter of discretion on the part of the Duty Lawyer Service, but rather a right of such defendants to be so provided for.

61.For the above reasons the appeal is allowed and the appellant’s conviction is quashed.

Ms Noelle Chit, PP of Department of Justice, for HKSAR

Mr Phillip Geoffrey Ross, instructed by Messrs Tsang, Chan & Woo, assigned by Legal Aid Department, for the Appellant