HKSAR v. Fung Ka Fai

CACC 308/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 308 OF 2011

(ON APPEAL FROM DCCC NO 136 OF 2011)

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Before: Hon Stock VP, Line and Macrae JJ in Court

Date of Hearing: 9 January 2013

Date of Judgment: 9 January 2013

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J U D G M E N T

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Hon Line J (giving the judgment of the court):

1.This is an appeal against conviction following leave granted by a single judge for conspiracy to rob, following a trial in the District Court before Deputy District Judge M Chow in which the appellant was co‑accused with a man called Ma Chi Sang, who had pleaded guilty to the charge.

2.The evidence at trial revealed that there were two containers storing electrical wire worth in excess of half a million dollars in a wired‑off area of a construction site at Sheung Shui, where the appellant worked and where Ma had previously worked; that at around 8.15 pm on 2 December 2010, the two men assaulted and bound the night security guard at the site; that the chain used to lock the front gate to the site was cut; and that at about 9.30 pm, two lorry cranes entered and reversed towards the area which held these two containers; that the police arrived and arrested Ma as he ran away.

3.It was not said that the lorry drivers were criminally involved.  One of them had received an order that afternoon to lift and convey two containers from the construction site to Yuen Long.  The caller specified the size and weight of the two containers.  The first driver recruited the second driver, and they met at Ku Tung Market with the man who had placed the order.  He told them they had to wait for a while, as they could not lift the containers unless the watchman had changed their shifts.  He then boarded one of the vehicles and directed them to the site 15 minutes’ drive away.  He left the scene when the vehicles arrived at the gate.  This man was identified to be the appellant.

4.Ma had been employed as a worker on the site between October 2009 and April 2010. The two containers were placed in position in August of 2010.  The appellant had been employed as a worker there since October 2009, and was still so employed at the time of these events.  His supervisor was called to give evidence and testified that the appellant’s duties as an odd-job worker were cleaning, breaking up concrete, and the moving of some materials, and that he was not required to arrange vehicles.  Ma had been employed as a marble worker.

5.At 8.17 pm that night, some two minutes after the security guard was tied up, there was a telephone call from Ma to the appellant which lasted for 38 seconds.  It was followed by nine further telephone calls between the two which occurred between 8.43 pm and 8.57 pm.  There were two further telephone calls following those at 9.29 and 9.30 pm.  The police arrived at the site at 9.30 pm, and the appellant had left and crossed the border shortly thereafter at 9.43 pm.

6.The appellant elected not to give evidence.  In a record of interview, the appellant had said that in the week before, he had helped Ma look for crane drivers, lending him his telephone to do so, as Ma had said he wanted to carry his own stuff; that a driver rang his telephone, and he accordingly made the arrangements; that on the evening in question, he had wanted to attend a birthday party over the border and had been in a hurry to go, but that he had been persuaded to wait and then direct the drivers to the site.

7.There are two grounds of appeal.  The substance of the first is that there was a material irregularity in the course of the trial because Ma was not called to give evidence despite the fact that he had written to the court exonerating the appellant and explaining why he had earlier falsely accused him, and despite the fact that defence counsel and a clerk from his instructing solicitors had been specifically instructed to call him as a witness.  The substance of the second ground is that there was insufficient evidence to prove the appellant’s involvement in the alleged conspiracy to rob.

8.There is no need for us to go into detail as to how it came about that Ma let it be known that he wished to exonerate and help the appellant.  This is so because the appellant knew of his attitude at least as early as March of 2011.  It is the appellant’s case that he had told his solicitor’s clerk of the letter and had asked him if he could call Ma to give evidence; that he raised the subject again in a second conference, at which counsel attended, about two weeks before his trial, which took place in July; that he was not then properly advised, but was fobbed off with an erroneous explanation about procedure; that he then sent for the solicitor’s clerk from his remand prison to raise the subject again, but he received the same explanation.

9.He said that he then sought to change his counsel, and spoke to a clerk from the Legal Aid Department concerning the matter, who mentioned that the contents of the letter from Ma were very clear; that on the advice of his counsel and solicitor’s clerk, he elected not to give evidence at his trial; and that he recalled being asked to sign two declarations, namely that he would not give evidence, but also that he would not call any witness on his behalf; that nonetheless, he still asked whether he could call Ma to give evidence for him, and that the erroneous advice was repeated about procedures, with the addition that he was told that Ma had pleaded guilty in his case and it did not concern him any more, and the trial was about him alone and had nothing to do with Ma as the two matters were separate.  And finally, he was told that he had to rely on their advice, and had no alternative but to sign the declarations.

10.We have affirmations from both counsel and the solicitor’s clerk.  Counsel affirmed that at the first conference, no mention was made of Ma; that in his written instructions, the appellant had never mentioned any intention to call Ma; that at his conference, the appellant gave further instructions to the effect that he would not call any defence witnesses, including Ma.  These instructions were written down and signed by the appellant.  Counsel produced the written instructions and the further instructions.  Counsel further affirmed that the appellant did not change his instructions during the trial and that the issue of calling Ma was never raised, discussed or advised.  He said that it was untrue that he advised that the appellant had no alternative but to sign the declarations.

11.The solicitor’s clerk affirmed in similar terms to counsel, although he further dealt with the first conference when counsel was absent, and with the last visit before trial to the remand centre, denying that the appellant wanted the witness to be called.  He also said that in cases where there were co-defendants who had elected to plead guilty, it had always been his practice to ask the defendant whether he would call the co‑defendants to give evidence, and in this case he did so, and the appellant indicated he did not wish to call Ma.  He also produced the signed written instruction taken at trial from the appellant to the effect that he would not testify and would not call any witness.

12.Leave was granted by the single judge because of the revelation of Ma’s letter to the District Court, but without the advantage of the evidence now before us.  We have no hesitation in relying on the evidence of counsel and the solicitor’s clerk and in rejecting that of the appellant.  The former is fully supported by contemporaneous documentation.  The latter is flatly contradicted by it.  The explanations advanced as to why the appellant put his signature to the documents, asserting the complete contrary to what he now suggests, are bald and unconvincing.  There would have been nothing to the personal or professional advantage of either counsel or the solicitors in acting in the way the appellant claims.  Such a major dereliction of their duty, accompanied by flagrant dishonesty, if the appellant speaks the truth, would remain inexplicable.  In contrast, the motivation of a man desperate to avoid the consequences of his own crime is all too obvious.

13.Lest it be thought that the failure to call Ma when he was apparently willing to exonerate the appellant provides support for the appellant’s claims, we point out that after his arrest, Ma implicated the appellant in a video-recorded interview.  It is not an uncommon situation in criminal matters that damage capable of being done in cross-examination to such accomplices, who do give evidence, is known from experience to be extensive.  Offering in defence a witness who will be bound to acknowledge that he lied to implicate a man whom he knew to be innocent in circumstances where he now has nothing to lose by changing his story, and when his initial explanation can be seen to fit neatly with the prosecution’s facts and the guilt of the accused, and his story is amenable to attack, not least on the basis of the appellant being bound to turn him in to the police on learning of the successful robbery at his work if his involvement was innocent, is a step few defenders would happily have contemplated taking.

14.We addressed our minds to the question of why go to the length of having Ma write the letter if the applicant made no use of it.  An answer is to be inferred from the fact that the day after the letter was handed in to the District Court, the Legal Aid Department sent to the prosecution a written proposal offering a plea bargain whereby in return for a plea of guilty from Ma, the case would be withdrawn against the appellant.  There is every appearance that the letter was created for this purpose and not as a proof of evidence for the appellant’s trial.

15.We simply do not believe that the appellant was prevented from calling Ma, and accordingly, ground 1 fails.

16.As to ground 2, we agree with the conclusion of the judge that the appellant was part of the scheme to conspire with at least Ma to rob at the construction site.  The untested and self-serving assertions in the appellant’s record of interview did not, in our judgment, begin to explain how it was that the appellant could have thought that the enterprise involving the removal of the containers by Ma from the construction site was anything other than unlawful. How could it be that a marble worker was legitimately removing the containers with vehicles he had hired at night outside working hours?  With his knowledge of the security in place and with the timing of telephone calls when the security guard was tied up, it must have been that robbery was agreed upon, as theft of the valuable wire would not have proceeded without doing violence to its guard.

17.There is nothing in ground 2, and the application for leave to appeal against conviction is dismissed.

Ms Anna Y K Lai, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the respondent

Mr H Y Wong and Mr Kay K W Chan, of the Bar Free Legal Service Scheme, for the applicant