FACC No. 7 of 2003
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 7 OF 2003 (CRIMINAL)
(ON APPEAL FROM CACC NO. 274 OF 2002)
|CHONG CHING YUEN
Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Thomas Eichelbaum NPJ
Date of Hearing: 19 April 2004
Date of Judgment: 30 April 2004
J U D G M E N T
Chief Justice Li :
1. I agree with the judgment of Mr Justice Bokhary PJ and the judgment of Sir Thomas Eichelbaum NPJ.
Mr Justice Bokhary PJ :
2. I have had the advantage of reading in draft the judgment prepared by Sir Thomas Eichelbaum NPJ, and I respectfully agree with his analysis of the material facts and his conclusion that the incompetence of defence counsel had been such as to compromise the fairness of the appellant's trial. Accordingly I, too, would allow this appeal to quash the conviction appealed against and set aside the sentence passed pursuant thereto. As Sir Thomas Eichelbaum NPJ has noted, this is the first time an appeal based on the incompetence of defence counsel has reached this Court. I propose therefore to say a few words as to why I agree with him that the crucial question is whether the appellant had a fair trial.
3. Occasionally alleged incompetence on the part of a defence counsel is put forward as a ground of appeal against conviction. Whether that ground or some other ground is relied upon, the basis on which a conviction is either affirmed or quashed will always be governed by statute. And the statute will always be subject to the constitution. In ascending order of seriousness, criminal trials are held in the Magistrate's Court, the District Court or the Court of First Instance of the High Court. An appeal against a conviction in the Magistrate's Court lies to the High Court. The High Court would normally hear the appeal but may exceptionally refer it to the Court of Appeal. Whether heard by the High Court or by the Court of Appeal, such an appeal would be governed by the Magistrates Ordinance, Cap. 227. An appeal against a District Court conviction lies to the Court of Appeal. So does an appeal against a High Court conviction. Whether against a District Court conviction or against a High Court conviction, the appeal would be governed by the Criminal Procedure Ordinance, Cap. 221. If any criminal appeal were to proceed all the way to this Court, the governing statute would be the Hong Kong Court of Final Appeal Ordinance, Cap. 484.
4. Appeals from the Magistrate's Court are either by way of case stated (pursuant to s.105 of the Magistrates Ordinance) or by way of the alternative procedure (pursuant to s.113 of that Ordinance). At least generally if not inevitably, a complaint that a defence counsel has been incompetent would be pursued by way of the alternative procedure rather than by way of case stated. Section 113(1) provides no more than that:
"Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in manner hereinafter provided to a judge."
5. Nowhere is express provision made for the basis on which a conviction in the Magistrate's Court is to be either affirmed or quashed. But the practice has been ? rightly in my view ? to either affirm or quash such a conviction on the same basis as the one on which a conviction in the District Court or in the High Court is either affirmed or quashed. This basis is expressed thus in s.83(1) of the Criminal Procedure Ordinance:
"Except as provided by this Ordinance, the Court of Appeal shall allow an appeal against conviction if it thinks -
(a) that the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or
(b) that the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law; or
(c) that there was a material irregularity in the course of the trial,
and in any other case shall dismiss the appeal:
Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred."
Subsection (2) of this section provides that in the case of an appeal against conviction the Court of Appeal shall, if it allows the appeal, quash the conviction.
6. In R v. Birks (1990) 48 A Crim R 385, a decision of the New South Wales Court of Criminal Appeal, Gleeson CJ (then the Chief Justice of New South Wales and now the Chief Justice of Australia) said (at p.392) that:
"As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence."
I agree with that as what it plainly is, namely a general statement subject to qualification. Gleeson CJ himself immediately proceeded to qualify it by saying that:
"However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."
7. In R v. Irwin  1 WLR 902 where a conviction was quashed by reason of defence incompetence, the Court of Appeal in England regarded such incompetence as a material irregularity. But it added that the conviction was unsatisfactory. And R v. Clinton (1993) 97 Cr App R 320 Rougier J, delivering the judgment of the Court of Appeal in England, said (at p.325) that "to speak in terms of material irregularity in such cases is likely to be misleading." I leave aside the question of whether incompetence on the part of a defence counsel can ever be analysed in terms of a material irregularity. There is certainly no need to do so in the present case. So much for material irregularity. I turn now to the other bases which s.83(1) of the Criminal Procedure Ordinance provides for quashing a conviction an appeal.
8. Certainly defence incompetence can cause or contribute to the creation of a state of affairs in which a conviction has to be regarded as unsafe or unsatisfactory. In Clinton's case the conviction was quashed as unsafe and unsatisfactory by reason of defence incompetence combined with police non-disclosure. As to decisions on questions of law, I can envisage circumstances where defence incompetence causes or contributes to a wrong decision on a question of law. An appellate court cannot shut its eyes to the unsafe or unsatisfactory state of a person's conviction just because that state was caused or contributed to by his counsel's incompetence. Nor can an appellate court shut its eyes to an error of law against a person just because that error was caused or contributed to by his counsel's incompetence. But it should be clearly understood that appellate courts will approach those situations with a sense of realism, and not in such a way as would put a premium on briefing incompetent defence counsel at trial and then criticising them on appeal in the event of a conviction. As Cooke J (now Lord Cooke of Thorndon) said (at p.114) in the course of delivering the judgment of the Court of Appeal of New Zealand in R v. Pointon  1 NZLR 109, it is necessary "to be on guard against any tendency of accused persons who have been properly and deservedly convicted to put the result down, not to the crime committed, but to the incompetence of counsel".
9. As one would expect and experience confirms, levels of ability vary from counsel to counsel and, moreover, no counsel performs at an unvarying standard. Just because an act or omission or even a series of acts and omissions on the part of a defence counsel can be characterised as incompetent, it does not necessarily follow that the same is to be regarded as having rendered a conviction unsafe or unsatisfactory.
10. In determining whether defence incompetence has rendered a conviction unsafe or unsatisfactory our appellate courts should, in my view, focus firmly on the standard of trial that our system insists upon. As to this standard, I have consulted three things. Of these, the first is the relevant parcel of constitutional rights found in the Basic Law and in the Bill of Rights as entrenched by art. 39 of the Basic Law. The second is the traditional standard of the common law. And the third is what I understand that the public expects. Having consulted these three things, I have no doubt that the sort of trial that our system insists upon is a fair trial. This being an imperfect world, one cannot expect perfect trials. But to be effective, a trial must be fair. If defence incompetence has, all things considered, resulted in the trial being something less than a fair trial, such incompetence constitutes a ground for quashing a conviction. There is direct correlation between the fairness of a trial and the viability of a conviction. This is nowhere better expressed than in the joint judgment of Mason CJ and McHugh J in Dietrich v. R (1992) 177 CLR 292 (in which the High Court of Australia was concerned with unfairness due to a lack of legal...