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Hksar v Chung Chun Fung And Another

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date03 December 2021
Neutral Citation[2021] HKCA 1831
Year2021
Judgement NumberCACC28/2020
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC28/2020 HKSAR v. CHUNG CHUN FUNG AND ANOTHER

CACC 28/2020

[2021] HKCA 1831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 28 OF 2020

(ON APPEAL FROM HCCC NO 199 OF 2019)

________________________

BETWEEN
HKSAR Respondent
and
Chung Chun Fung (鍾振豐) (D1) 1st Applicant
Wong Chun Man (黃俊敏) (D2) 2nd Applicant

________________________

Before: Hon Macrae VP, Zervos JA and A Pang JA in Court

Date of Hearing: 12 November 2021

Date of Judgment: 3 December 2021

____________________

J U D G M E N T

____________________

Hon Macrae VP (giving the Judgment of the Court):

1. The two applicants (whom we shall refer to by their trial designations as D1 and D2) were charged on an indictment with a joint count of murder; the allegation being that they, on 5 October 2008, together with others, murdered Poon Ka Yan (“the deceased”) in Hong Kong, contrary to Common Law and punishable under section 2 of the Offences Against the Person Ordinance, Cap 212.

2. On 9 January 2020, both D1 and D2 pleaded not guilty to murder but guilty to manslaughter upon their formal arraignment; however, their pleas were not accepted by the prosecution. Accordingly, they stood trial before Deputy Judge Keith (“the judge”) and a jury. On 10 March 2020, both applicants were found guilty of murder and sentenced to life imprisonment. They each subsequently appealed against their convictions.

3. In the light of unexpected developments at the hearing of the appeal before this Court, it is necessary to set out certain background facts concerning the representation of the two applicants. On 19 March 2020, D1 and D2 each filed a Notice of Application for leave to appeal against conviction (“Form XI Notice”). On 3 June 2020, Mr Duncan Percy, who had represented D1 throughout his trial, was assigned by the Director of Legal Aid to further conduct his appeal. Accordingly, on 6 August 2020, Mr Percy filed six substantive perfected grounds of appeal against conviction, together with accompanying authorities, which were followed, on 30 December 2020, by a full written argument in support. Thus, D1’s appeal papers were ready and in order more than 10 months before the hearing of the appeal.

4. However, on the morning of the appeal, 12 November 2021, Mr Percy drew to the Court’s attention the fact that D1 might wish to apply in person for an adjournment on the basis that his family intended to instruct a private lawyer. However, until that happened and he was formally discharged, Mr Percy made it clear that he was ready and willing to present D1’s appeal.

5. Accordingly, since the Court had, until the hearing, received no hint of any such development, nor had any other counsel, solicitor or family member, approached or appeared in court either formally or informally to make representations on behalf of the applicant, we made enquiries of the position from the applicant directly. We were informed by him that he had had a video conference from prison with a Senior Counsel on 20 October 2021, some 23 days previously, when he was advised that there were “further and stronger grounds of appeal” which might be advanced before the Court. The video conference took apparently about an hour, but the applicant was unable to remember the name of the Senior Counsel concerned, although he could remember the name of the solicitors’ firm.

6. D1 told us that the consultation with Senior Counsel was a “one off” occurrence and that neither counsel nor solicitors had since been formally retained to represent him, nor had any money been paid over for that purpose by his family. Indeed, as for the rendering of advice about “further and stronger grounds of appeal”, we were shown a letter from D1’s current solicitors assigned by the Legal Aid Department, dated 25 October 2021, five days after the video conference, advising the Legal Aid Department:

“Insofar as at present known to the aided person, his parents have engaged Messrs Fung & Fung, in this respect for seeking legal advice to the merit of the appeal. The aided person further told our representatives that Senior Counsel was engaged to scrutinize the appeal bundles for advising him the merit of the appeal”.

The applicant then made a request for the hearing to be vacated, thus prompting the Director of Legal Aid to write a letter to the assigned solicitors, dated 26 October 2021, saying that they would not approve the request to apply to vacate the hearing date, and making it clear that:

“As far as we are concerned, we shall proceed with the case in accordance with the direction given by the court and the appeal shall be heard on 12 November 2021 as directed”.

The letter added:

“If Mr Chung (D1) has decided to turn private, the proper course to take is for his new solicitor(s’) firm to formally file the Notice to Act and to make such application as they deem fit on Mr Chung’s instructions given to them on private basis”.

With respect, this advice was entirely correct procedurally, and the letter was duly copied to Mr Percy.

7. On 9 November 2021, an assistant solicitor from the assigned solicitors visited the applicant in prison and was informed by him that his “family members had raised funds for him to engage a Senior Counsel and a fresh legal team to conduct his appeal”. However, “they needed time to read through the whole appeal bundles and the case management”. The applicant further requested Mr Percy to apply for an adjournment of the appeal on 12 November 2021, and was duly advised that it was for the Court to determine whether or not to grant an adjournment.

8. On 10 November 2021, the Director of Legal Aid reiterated that the applicant’s request was not approved and that the case would proceed as listed in accordance with the court’s direction. The same advice as to the proper procedure to adopt in the event of private instructions being given was again repeated.

9. Mr Percy, nevertheless, brought this correspondence to our attention at the outset of the appeal hearing, none of which was hitherto known to this Court, and made it clear that he was ready to proceed with D1’s appeal, as were both counsel for the respondent, Ms Jasmin Ching, with her Ms Cherry Chong, and Mr John McNamara, who had been retained by the Director of Legal Aid to assist D2 at the appeal if necessary or called upon by the Court. The respondent objected to any adjournment, while Mr McNamara said he was “in the Court’s hands”.

10. Having made all necessary enquiries with D1 as to the matter, we retired to consider his application to vacate the appeal hearing so that alternative counsel, whoever he was, could be privately instructed, notwithstanding that neither private counsel nor solicitors had in fact so far been instructed in respect of the appeal, no costs on account had been paid, there was nothing before the Court from any such counsel or firm of solicitors to the effect that they had been or were to be instructed and there were no grounds of appeal before us, other than the ones filed by Mr Percy in December of last year.

11. Having taken into account all the relevant circumstances, we refused the application. In addition to the uncertainties just referred to, we pointed out that D1 already had the benefit of competent counsel, who was skilled in both trial and appellate levels of the courts’ jurisdiction, who also had the undoubted advantage of representing D1 at the trial and who would, therefore, be fully conversant with his case. We determined that it was not in the interests of justice to delay further the hearing of this matter, which arose out of an incident on 5 October 2008, more than 13 years ago. There are other parties to consider in an appeal that is adjourned and thereby delayed, including any other applicants and the respondent. There is also a public interest in seeing that defendants are brought to justice and a final determination as to their guilt or innocence made with appropriate expedition and without unnecessary delay. It is also often overlooked in such applications to adjourn appeals that if an applicant is ultimately to be successful in his appeal and a retrial ordered, the retrial would sometimes have to take place many years after the alleged crime; indeed, in this case, if either applicant was to be successful, any subsequent retrial would probably be held close to 15 years after the events giving rise to it. Such a delay inevitably affects witnesses for both sides and does not serve the overall interests of justice well.

12. Accordingly, we refused D1’s application for an adjournment. The applicant immediately responded by indicating his intention to discharge Mr Percy, notwithstanding that we had made it clear to him that he would have to represent himself if he dispensed with his assigned counsel, who was ready, willing and perfectly able to continue to present the appeal on his behalf. Nevertheless, the applicant insisted on going ahead and discharging Mr Percy. On being reminded by the Court that he would have to proceed with the appeal himself, D1 then complained that he was not sufficiently familiar with the papers to present his own appeal.

13. The Court of Appeal is not to be toyed with. Cases which have been set down for appeal, with all parties prepared and able to proceed, will not be adjourned in the vague hope that an applicant might obtain the services of other counsel. Cases can take many months to be set down for appeal: indeed, following the filing of perfected grounds of appeal and written submissions of the parties, this particular case had been listed on 29 March 2021, more than seven months before the hearing of the appeal. It should be remembered that if a case has been listed for a whole day’s hearing but is unnecessarily adjourned for some reason, then...

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