Ipsofactoj.com: International Cases  Part 11 Case 7 [CFA]
COURT OF FINAL APPEAL, HKSAR
- vs -
Hong Kong SAR
CHIEF JUSTICE LI
MR JUSTICE BOKHARY PJ
MR JUSTICE CHAN PJ
MR JUSTICE RIBEIRO PJ
SIR THOMAS NPJ
30 APRIL 2004
Chief Justice Li
I agree with the judgment of Mr. Justice Bokhary PJ and the judgment of Sir Thomas Eichelbaum NPJ. The Court unanimously allows the appeal, quashes the conviction and sets aside the sentence.
Mr. Justice Bokhary PJ
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.
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.
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.
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 -
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.
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.
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.
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".
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.
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 representation). Mason CJ and McHugh J said (at p.299) that "the accused's right to a fair trial is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial".
I have arrived at a "fair trial" criterion essentially on principle. But I have not disregarded the decided cases. Various formulations are to be found in them. I will cite a representative selection of these formulations. In Keung Ping-kai v R  HKLR 239, Roberts CJ, giving the judgment of the Court of Appeal, used the expressions "had not been accorded a fair trial" (at p.245) and "could have caused a miscarriage of justice" (at p.246). Giving the first judgment in Birks' case, Gleeson CJ spoke (at p.392) of "a miscarriage of justice". Lord Steyn, delivering the advice of the Privy Council in Boodram v The State  1 Cr App R 103 said (at p.119) that "there has not been a fair trial or the appearance of a fair trial" and that "the defendant was deprived of due process". And Mr. Justice Chan PJ, giving the determination of the Appeal Committee refusing leave to appeal in Mak Kam Chuen v HKSAR, FAMC No. 35 of 2001, 13 December 2001, said (at p.4) that the question was "whether the conduct complained of has resulted in the accused not getting a fair trial so that the conviction is unsafe or there is a miscarriage of justice". In my view, these cases support, or at least can be reconciled with, a "fair trial" criterion for determining whether defence incompetence constitutes a ground for quashing the conviction. This criterion will, I think, serve to determine most if not all cases of this kind.
It is worth noting that when the United States Supreme Court held in Gideon v Wainwright 372 US 335 (1963) that a person charged with crime had a right to counsel, their Honours did so for the purpose of according him a fair trial. Delivering the opinion of the court, Black J said (at p.344) that "[t]he right of one charged with crime to counsel [is] fundamental and essential to fair trials".
Delivering the advice of the Privy Council in Sankar v The State of Trinidad & Tobago  1 WLR 194 Lord Woolf said this at p.198 B-C:
In an extreme situation where the defendant is deprived of the necessities of a fair trial then even though it is his own advocate who is responsible for what has happened, an appellate court may have to quash the conviction and will do so if it appears there has been a miscarriage of justice.
As I understand that, the question of a miscarriage of justice comes in by reason of the proviso. I would not rule out the possibility of circumstances in which an appellate court can be satisfied that the result of a trial is just even though the trial itself was unfair. But I find such circumstances difficult to envisage. If an accused has been deprived of something that he would have received if his trial had been fair, what the outcome of the trial might have been if he had not been deprived of that thing would naturally tend to be in the impermissible realm of speculation. This (as one sees at pp 200H 201B of the report in Sankar's case) is precisely why the Privy Council declined to apply the proviso in that case.
In R v Ho Ling  1 HKC 733 defence counsel failed to advise his clients, as he plainly ought to have advised them, that the prosecution's evidence against them was such that it was a virtual certainty that they would be convicted unless they gave evidence. They did not give evidence, and they were convicted. The Court of Appeal quashed their convictions. Delivering the judgment of the court, Yang CJ said (at p.736G) that evidence from the accused "might or might not have helped them". This echoes Toohey J's statement in Dietrich's case (at p.356) that "it is the loss of a chance of acquittal fairly open to an accused which in the end leads to a conviction being set aside". No appellate court would lightly declare a trial unfair. But where it concludes that a trial was unfair, that leaves little (if any) room for saying in effect that such unfairness did not really matter.
The Hong Kong and overseas cases helpfully collected in the judgment of the Court of Appeal delivered by Fuad VP in R v Mo Lee-keun  1 HKCLR 78 disclose a tendency on the part of judges to use an adjective such as "flagrant" to indicate the sort of defence incompetence that necessitates the quashing of a conviction. This is quite natural since it is unlikely that anything short of a very high degree of defence incompetence would ever reduce or contribute to reducing a trial to something less than a fair trial. Nevertheless it has to be borne in mind that the appellate court is concerned with what impact defence incompetence had on the trial, and not with whether or how severely defence counsel deserves to be criticised.
Criminal appeals come to this Court under one or both limbs of s.32(2) of the Hong Kong Court of Final Appeal Ordinance. The first is that a point of law of great and general importance is involved. And the other is that substantial and grave injustice has been done. The former needs no explanation. As for the latter, it is well settled by our decision in So Yiu Fung v HKSAR (1999) 2 HKCFAR 539 at p.543 F-G and subsequent cases such as Lo Chun Nam v HKSAR (2001) 4 HKCFAR 1 at p.11 F-G that in order for an appeal brought on the substantial and grave injustice limb to succeed, "it must be shown that there has been to the appellant's disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice". In the absence of a departure from accepted norms, this Court can be expected to support the decision of the intermediate appellate court on the issue of whether defence incompetence has rendered a trial unfair. But where there has been such a departure, this Court will intervene. I am driven to the conclusion that there has been such a departure in the present case.
Mr. Justice Chan PJ
I agree with the judgment of Mr. Justice Bokhary PJ and the judgment of Sir Thomas Eichelbaum NPJ.
Mr. Justice Ribeiro PJ
I agree with the judgment of Mr. Justice Bokhary PJ and the judgment of Sir Thomas Eichelbaum NPJ.
Sir Thomas Eichelbaum NPJ
By leave the appellant, Chong Ching Yuen, appeals against a judgment of the Court of Appeal (Leong CJHC, Cheung JA and Yeung JA) upholding his conviction on a charge of bribery. The sole ground of appeal is that the appellant did not receive a fair trial, owing to gross negligence on the part of his trial counsel.
In the District Court, the appellant faced three charges. The first, the one to which this appeal relates, charged him with conspiracy to offer an advantage to an agent, contrary to common law and to ss 9(2)(b) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201. Here, the trial judge found the appellant guilty. On the second charge, also of bribery, the trial judge ruled there was no case to answer while in respect of the third, using a false instrument, the appellant pleaded guilty. He was sentenced to an effective term of three years imprisonment.
The particulars of the first charge were as follows. They alleged that between 1 February 1994 and 31 July 1996, the appellant conspired with one Mr. Li Chi-hung (the agent), an employee of a bank, to offer advantages to the agent in the form of sums of money, air fares, loans, fees, rewards or commissions, as an inducement to or reward or otherwise on account of the agent showing or having shown favour relating to his principal's affairs or business, to two companies controlled by the appellant, called Grand Youth and Ever Brilliant. The favours alleged were in relation to loan applications made to the bank, the agent's employer.
For purposes of the trial, some of the principal facts were agreed. In summary, they were as follows. In the course of his employment at the bank Mr. Li was responsible for handling the loan arrangements of Grand Youth and Ever Brilliant. On the appellant's instructions, an employee of the appellant, Mr. Tang, repeatedly withdrew cash from a bank account and paid some or all of the money into Mr. Li's account. Further, Grand Youth paid for four air tickets for Mr. Li's travel to and from Shanghai. The bank prohibited staff from accepting any advantage offered by clients. The statement of admitted facts also recorded that in connection with the loan applications, Mr. Li was required to collect from the appellant objective information regarding the appellant's companies, and make sure such information was true and accurate. However, some of the information completed by Mr. Li regarding the personal assets of the shareholders and directors of the companies, and particulars of the guarantor, turned out to be untrue.
After the appellant had been arrested, officers of the Independent Commission Against Corruption (ICAC) conducted a series of video recorded interviews. In the first, the appellant denied he had conspired with Mr. Li to deceive the bank. His explanation of the payments into Mr. Li's account was that they were repayment of capital with interest relating to a personal loan Mr. Li had made to him. In the second interview, he gave an explanation of the payment for air fares, saying that he and Mr. Li had been friends for some time, and that Mr. Li and other friends of his had purchased air tickets through the appellant, and sometimes had not paid for them. As will be mentioned, there were a number of further video recorded interviews which the trial judge ruled to be inadmissible. These interviews, six altogether, were conducted at intervals over a period of nearly a year.
As well as the statement of agreed facts, there was a list of documents which it was agreed could be adduced. This list included Exhibit 184, a document critical in this appeal. It was a letter written by the appellant addressed to Mr. Lui, one of the ICAC's investigating officers, which the appellant faxed to the ICAC about 6 weeks after the video recorded interviews had been completed. In it the appellant stated that Mr. Li had told him, in effect, that the loan applications had to have his support if they were to succeed. Further, Mr. Li had said that "communication" with every level of staff was necessary, and so was "treating them to tea and the like". As a result, the appellant accepted he had committed bribery, but maintained that he was forced to do so; and he denied conspiring with Mr. Li.
The prosecution called two witnesses. The first, Mr. Chan, who had been a friend of the appellant's, related that the appellant introduced him to Mr. Li in 1995. He understood the appellant was seeking to borrow from the bank by which Mr. Li was employed. The appellant persuaded him to sign a document which, as it turned out, was a guarantee although Mr. Chan professed not to understand that at the time. Later he found the bank had been given false information about his financial situation. The second witness, Mrs. Shum, stated that Mr. Li had asked her to lend money to bank clients who were indebted to the bank. The appellant was among those to whom she made loans.
The appellant elected not to give evidence.
In her reasons for the verdict, the trial judge referred to the evidence of Mr. Tang, contained in the statement of admitted facts. As noted on many occasions he had cashed cheques for the appellant and then, on the appellant's instructions, deposited part or all of the sums into Mr. Li's bank account. The judge also recorded that the appellant had responsibility for the daily affairs of the Grand Youth and Ever Brilliant companies. Further, she noted that in the application forms for credit arrangements for the two companies, Mr. Li had given incorrect information.
Then the judge referred to Exhibit 184, saying that the letter, to which reference has already been made, was "of utmost importance". She directed herself that the prosecution had to prove beyond reasonable doubt that the appellant and Mr. Li reached an agreement that the appellant would offer advantages to Mr. Li, and that he intended to fulfil the terms of the agreement when he consented to it. She noted that the prosecution case was circumstantial. The judge accepted the evidence of Mr. Chan and Mrs. Shum. Then, noting that evidence given by video interviews was not tested by cross examination, she said she did not attach much weight to the exculpatory account given by the appellant in his first two interviews.
After that, the judge returned to Exhibit 184. She said the appellant would not have forgotten that he had the right to remain silent. In her view, the evidential value of this letter was very high, and she attached "much weight" to it. She pointed out that two of the three points which, according to the appellant's letter, Mr. Li made regarding the processing of credit applications at the bank related to Mr. Li himself, namely that the loan applications could succeed only if Mr. Li passed them on, and that if Mr. Li commented adversely, the applications would fail. The judge proceeded to find that the appellant's admission in the letter that he bribed with payments meant that he bribed Mr. Li so that the latter could arrange for the companies to obtain credit arrangements with the bank. She did not accept the appellant's assertion that he was forced to offer bribes; rather, faced with Mr. Li's propositions, he elected to do so.
Turning next to the air tickets, the judge did not accept the appellant's explanation. She found that the appellant used gifts of air travel as an inducement or reward for Mr. Li to show favour to the appellant's companies in relation to their loan applications. Having regard to the fact that this occurred on four occasions, the judge considered it was an irresistible inference that there was an agreement between the appellant and Mr. Li, and that the appellant was prepared to carry it into effect. Thus she found the appellant guilty on the first charge.
THE VOIR DIRE
During the trial there was a lengthy voir dire, at which the appellant testified. The evidence under challenge was the contents of six further video interviews which the ICAC conducted with the appellant. In contrast with the first two, which as already noted were exculpatory, the latter 6 contained admissions. In essence the appellant's case on the voir dire was that ICAC officers told him it was aiming at corrupt elements in the banking industry rather than at the appellant, assured him that so long as he co-operated he would be treated as a witness, and rehearsed with him what he should say in the recorded interviews. The grounds of objection also referred to the appellant's anxiety about the effect the investigation would have on the health of his wife, whom the ICAC was questioning as well. Although this was not stated in so many words, the assertion seems to have been that the ICAC exerted pressure on the appellant by continuing to involve his wife in the investigation. In one of his affirmations in the leave application however counsel said explicitly his instructions were that the appellant made admissions because before the third interview, he had reached an agreement with ICAC that so long as he cooperated, and admitted the conspiracy charge, ICAC would not prosecute the appellant or his wife, and would use him as a prosecution witness. Although, in their evidence, the officers of the ICAC denied the appellant's allegations, the judge ruled that the prosecution had not satisfied her that the appellant made the recordings of his own free will. Therefore, without giving any more detailed reasons, she declared they were inadmissible.
IN THE COURT OF APPEAL
In support of his application for leave to appeal against the verdict, the appellant submitted affirmations by his daughter and himself. He said that although, in meetings with counsel pre-trial, he had given his counsel instructions about the video recordings, nobody had mentioned Exhibit 184. At the opening of the trial, when his counsel told him that Exhibit 184 was included in the list of agreed documents, he instructed counsel that he had written this exhibit under circumstances of being forced to cooperate. Further, the appellant said that in conversation with counsel after the voir dire, he strongly objected to the statement of agreed facts including reference to Exhibit 184. The appellant's daughter also referred to this conversation. Counsel however did not object to the exhibit.
In an affirmation in reply, the appellant's trial counsel maintained he had discussed Exhibit 184 with the appellant before trial. According to counsel, the appellant gave him the following background to the creation of this exhibit. About a month after the last of the video recorded interviews, the ICAC officer named Mr. Lui asked him about the repayment of certain debts. Feeling that Mr. Lui's understanding of the matter was confused, the appellant suggested he would send an explanation in writing. Mr. Lui said if he wished to add anything about the case, he could add that too. In his affirmation counsel continued that the appellant did not give him any other instructions about Exhibit 184, nor did he say that any ICAC officer did anything inappropriate which caused him to write what he did. Counsel said had the appellant told him that the exhibit was provided in circumstances of involuntariness, he could readily have made an objection to it. He denied that the appellant raised any objection to the reference to Exhibit 184 in the agreed facts. Counsel also denied the daughter's assertions.
In dealing with the issue of error of counsel the Court of Appeal first set out the applicable principles, as follows.
The burden of proof lay on the appellant, and the standard of proof was on a balance of probability.
Next, the court said a course or a decision which in hindsight might have been wrong or unwise will not suffice to overturn a conviction. It was necessary to demonstrate a situation of serious incompetence.
Finally, in error of counsel cases the ultimate issue is whether the result was that the defendant did not receive a fair trial, or that the conviction was ill founded, or that there had been a miscarriage of justice.
Before this Court neither side took issue with this formulation which, as will be seen, broadly corresponds with my own.
The Court of Appeal then assessed the conflicting evidence. On the issue whether the appellant had, as he claimed, told counsel that the admissions contained in Exhibit 184 were involuntary, the court considered trial counsel's account to be inherently more credible. If, either before or after the voir dire, the appellant wished to object to Exhibit 184, there was simply no reason for counsel not to do so. The court concluded that no such instruction was given and that, absent such an instruction, counsel had no ground to object.
Next, the court said that in his evidence at the voir dire, the appellant did not mention that Exhibit 184 was produced in circumstances where its voluntariness was in question. In cross examination the appellant said that when Mr. Lui made his enquiry he thought he might be charged with a further count of conspiracy unless he cleared the matter up. Further, although the appellant referred to the agreement requiring him to cooperate with the ICAC, he did not mention Exhibit 184 in the context of that agreement. As will become apparent the statement that the appellant did not question the voluntariness of Exhibit 184 was not entirely accurate.
Before the Court of Appeal, evidently the appellant placed reliance on a submission trial counsel made in the course of the voir dire, relating to Exhibit 184. The court considered that what counsel stated in the course of the submission did not support the allegation that counsel had been instructed Exhibit 184 was an involuntary document, being of the opinion that the submission was consistent with the explanation given by counsel in his first affirmation. Counsel wanted the court to give appropriate weight to the document but because of the absence of instructions, could not "object directly" to its admission. The court took the same view of the reference to Exhibit 184 in counsel's closing submissions.
Next, the Court of Appeal addressed the report (the Legal Aid report) trial counsel made to the Director of Legal Aid after trial. In part, this stated:
The defence case in this respect also suggested that aided client was led to believe that ICAC would honour the said promises if he co-operated. In the proceedings, the defence specifically referred to a documentary exhibit No. 184 which was initially admitted into evidence by mutual consent. This document was so admitted to the effect and extent that it was written and faxed to the ICAC by aided client. This document is a letter containing mixed statements written by aided client, and was faxed to the ICAC. Even though it has been admitted as exhibit, the defence alleged that it was made by aided client on the strength of those promises from the ICAC. It therefore formed part and partial (sic) of the involuntary admissions made by him. Despite the fact that the Court was not invited to withdraw the said document from formal admission. The Court is well aware that involuntariness of the said document was in issue as the said document had been specifically dealt with in the voir dire proceedings. The defence case made it clear that the said document was made by the aided client as a result of his continuing co-operation with the ICAC pursuant to inducements as aforesaid. The Court eventually ruled that all those interviews were involuntarily made and not admissible, but made no mention about the said document. [It] therefore remained as an exhibit.
Taken at face value, as the court noted, counsel seemed to be saying that Exhibit 184 was not made voluntarily. But the court accepted the explanation counsel gave in his first affirmation, that he intended to address the weight to be given to the document.
It may be noted that in the initial grounds of appeal contained in the Legal Aid report, trial counsel included as one draft ground that the trial judge ought to have excluded Exhibit 184 together with the six video recorded interviews.
Summing up, the court said counsel was not instructed to object to Exhibit 184; accordingly, there was no question of failure to discharge his duty when he agreed to the admission of this document in evidence.
After discussing other matters no longer in issue, the court dismissed the appeal against conviction. In view of the failure of the conviction appeal, the appeal against sentence was not pursued.
THE APPEAL TO THIS COURT
In this Court, the appellant's written case first analysed the possible thought processes of trial counsel in relation to Exhibit 184. In particular, and understandably, the submissions focused on the passage in the Legal Aid report (para. 38 above) describing it as follows:
Counsel regarded the admission in the statement of agreed facts as to P184 as an admission not to its voluntariness [but] as to its authenticity.
The reference to the statement in P184 being "mixed" statement carries with it the implication that counsel regarded the statement as partly inculpatory and partly exculpatory.
Counsel regarded the statement as bound up with the admissibility of exhibits PP197-PP202 and that the issues in relation to the admissibility of P184 were, in essence, the same as the issues in relation to the admissibility of PP197-PP202.
Counsel took the ruling of the learned trial judge on the voir dire to mean that exhibits PP197-PP202 were held to be inadmissible [but] that exhibit P184 was held to be admissible.
Appellant's counsel pointed out that if trial counsel regarded Exhibit 184 as part and parcel of the video recordings which were held to be involuntary, it is difficult to understand why he did not object to it. Further, the record of the voir dire showed that in the latter stages, trial counsel in fact seemed to be saying that Exhibit 184 was involuntary, yet did not specifically object to it. Although, by then, it was included in the list of documents to be admitted by consent, in appellant counsel's submission trial counsel could have resiled from that agreement. In essence appellant's case was that trial counsel should have objected to Exhibit 184 for the same or substantially the same reasons as he successfully objected to the six video recordings.
For myself I do not believe it is profitable to try to analyse the process of reasoning that may have motivated trial counsel. As Mr. Bruce SC submitted, it is easier to see what went wrong, than why it did so.
Counsel for the respondent in their written submissions accepted that on the face of things, Exhibit 184 was highly incriminatory. They submitted however that the appellant provided it willingly. There was no evidence of any specific threat or inducement. The submission supported the reasoning of the Court of Appeal that the trial counsel's version of events was to be preferred. The submission accepted that if contrary to the Court of Appeal's findings this Court should take the view that trial counsel had been instructed that Exhibit 184 was not made voluntarily, the appeal must necessarily succeed. If on the other hand the Court of Appeal's finding remained undisturbed, the appellant's position was tenuous. Trial counsel's hands were tied. He could not advise the appellant to object to Exhibit 184 on grounds of involuntariness when his instructions were to the contrary. Trial counsel conducted the trial in accordance with his instructions. There was no palpable error of judgment in his conduct of the trial.
In the course of the oral argument the emphasis shifted more to the adequacy of counsel's exploration of the admissibility of Exhibit 184. Trial counsel's affirmations were silent on that issue.
Although counsel properly put before us the relevant authorities, there was no dispute regarding the applicable legal principles. Before turning to the facts, however, it would be appropriate to summarise those principles, this being, I understand, the first occasion on which an appeal based on error by counsel has reached a substantive hearing in this Court.
To follow the concept of error of counsel as a ground of appeal, it is necessary to understand the authority of counsel in regard to the conduct of the trial. This was well described by Gleeson CJ in R v Birks (1990) 48 A Crim R 385, a decision of the Court of Appeal of New South Wales (390 - 391):
In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.
As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. For example, in Rondel v Worsley  1 AC 191 at 241, Lord Morris of Borth-y-Gest quoted with approval the following statement of the Lord President in the Scottish case of Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, concerning the role of an advocate:
In Halsbury's Laws of England (4th ed), Vol 3(1), par 518 at 420, it is stated that:
It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment.
Nevertheless the courts have recognized that in some exceptional instances, an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice. To describe this ground, the expression "flagrant incompetence" has generally been used, see for example R v Mo Lee-kuen  1 HKCLR 78; HKSAR v Wong Chi-keung, Cr App No. 585 of 1996, 3 July 1998; R v Lau Sui Fu  HKLRD 323; HKSAR v Au Yeung Long, CACC No. 522 of 1998, 11 June 1999. While the term is firmly embedded in case law in Hong Kong, and in some jurisdictions overseas as well, it is more a convenient form of shorthand than anything like a comprehensive description of the foundation for a successful appeal. Indeed, at least at first impression the reference to incompetence may suggest an issue about the general competence of counsel, which usually is not in issue at all, and was not in issue here. Occasionally, in extreme cases, an appeal may turn on counsel's conduct of the trial as a whole, for example a failure to conduct the case in accordance with any theory of a defence case where a clear line of defence is available. More often however assertions of "incompetence" will relate to the manner in which counsel dealt with a specific issue during trial, involving a matter of judgment or decision, or advice given to the defendant. The expression "flagrant incompetence" rightly underlines an appellant's need to show much more than a mistake, an error of judgment, or a decision to follow one course when in hindsight another would have been preferable. But it should not deflect attention from the most critical point, namely given that there was a significant error of some kind, what will be decisive is the effect of the error on the trial. As Lord Steyn said, in delivering the judgment of the Privy Council in Boodram v The State  1 Cr App R 103 (at p.118):
.... the general principle requires the court to focus on the impact of the faulty conduct.
The bottom line is that to succeed, an appellant must be able to show he or she received less than a fair trial. As the Appeal Committee said in Mak Kam Chuen v HKSAR, FAMC No. 35 of 2001, 13 December 2001 (at p.4):
.... the ultimate question for the court is whether the conduct complained of has resulted in the accused not getting a fair trial so that the conviction is unsafe or there is a miscarriage of justice.
Having had the advantage of reading in draft the judgment of Mr. Justice Bokhary PJ I respectfully agree with his reasons for coming to the same conclusion.
THE FACTUAL ISSUES
In turning to the facts, I accept Lord Steyn's advice in Boodram (at p.118) that an appellate tribunal must approach complaints about counsel's incompetence with a healthy scepticism. But without overlooking that caution, or the onus on the appellant, it is at once apparent that a major difficulty for the respondent is the inconsistency between trial counsel's version of events as given in his affirmations filed for the appeal, on the one hand, and what he said at trial, and in the Legal Aid report, on the other. For example, in his first affirmation, after giving the appellant's account of how Exhibit 184 came to be provided, he said the appellant "did not give any instructions other than what was mentioned above". That is, the appellant did not say that Exhibit 184 was made as the result of any inducements, as was the case with the six video recorded interviews. But one might obtain a different impression from the explanation counsel gave when, during the voir dire, the judge questioned him about the relevance of Exhibit 184 after counsel introduced it in cross-examination. Asked what it had to do with the issue of the voluntariness of the video recorded statements, counsel maintained that the letter was provided as part of the "ongoing" agreement for cooperation between the appellant and the ICAC, such agreement of course being the basis of the objection to the admission of the video recordings. And as noted (see para. 38 above) in his Legal Aid report counsel said that Exhibit 184 formed part and parcel of the involuntary admissions, and maintained that the defence case made it clear that the appellant provided the document as a result of his continuing cooperation with the ICAC, pursuant to the inducements given by the latter. Further (with respect to the Court of Appeal's acceptance of counsel's proposition, that he was addressing the weight to be given to Exhibit 184 rather than its admissibility) it is clear that in the report he saw these aspects as separate. In para. 16 counsel said:
I therefore took the view that [Exhibit 184] should form part and partial [sic] of the involuntary admissions made by aided client together with the 6 video recorded interviews. The Court should have dealt with it altogether with those interviews in the voir dire. Even if the Court declined to deal with this document in the voir dire, the Court ought not to attach full weight as to its contents in the general issue.
Mr. Saw SC submitted that in principle this Court should not interfere with the Court of Appeal's findings of fact. While generally that may be true, in this case fact finding turned entirely on an analysis of documentary evidence, meaning that this Court is in no less advantageous position in making an assessment. As seen the Court of Appeal accepted trial counsel's explanation that what he meant was that in the voir dire and at trial, he was concentrating on diminishing the weight of Exhibit 184. Although if the decision were mine I would have difficulty reaching that conclusion, I will proceed on the assumption that in the instructions originally supplied to counsel, the appellant did not say, explicitly, that Exhibit 184 was made as the result of any inducements. However, counsel's affirmations are silent on the point of time when it came to his attention that this was an incriminatory document and that the appellant's account of events did not maintain, in so many words, that it was made in circumstances of involuntariness. More importantly, trial counsel does not say what steps if any he then took. I am not to be taken as giving any encouragement to counsel coaching witnesses. However, faced with a situation where six statements made by the appellant over a long period of time were capable of challenge on grounds of inducement, and a seventh and highly damaging statement was provided shortly afterwards, it was elementary that counsel should take steps to clarify whether the admissibility of the seventh was susceptible to attack on the same grounds. If it was not, then counsel ought to have given serious consideration to advising the appellant about the advantages of an early plea of guilty.
As mentioned, trial counsel's affirmations are simply silent on these aspects, while the appellant maintained that he in fact gave counsel instructions that the letter was written as a consequence of inducements. No doubt because of a different emphasis in the conduct of the case before the Court of Appeal, that court did not give consideration to any possible neglect on the part of counsel in not exploring more fully the circumstances in which Exhibit 184 was created. Given the indications gleaned from counsel's remarks during the voir dire, and in the Legal Aid report, I decline to draw any broader inferences unfavourable to the appellant. Even if, like the Court of Appeal, one does not accept the appellant's version, in my view the appropriate conclusion on the further issue is that there was no exploration of whether the inducements continued and elicited the letter.
Mr. Saw SC pointed to the appellant's response when, during the voir dire, he was asked whether, in writing Exhibit 184, he could have taken the opportunity to make a complaint about the conduct of the ICAC officers. As Mr. Saw SC pointed out the appellant's response focused on trying to avert the risk of being subjected to an additional charge; and he submitted that had counsel made further enquiries pre-trial, he would not have elicited anything more. However, immediately after this passage, the appellant said there was no need for any complaint, because he had already reached an agreement with the officer. So there was a clear indication that in the appellant's mind there may have been a link between the inducements and the Exhibit 184 letter.
Of course, on the information before the court there is no certainty that counsel's further enquiries would have elicited sufficient material to enable Exhibit 184 to be challenged, or that any challenge would have been successful. I recognize that arguably, the letter stood on a different footing from the six interviews; for example, the prosecution could point to a heading which referred to "the statement of my defence" to the proposed conspiracy charge. What is clear is there was at least a reasonable prospect that the document could have been ruled out. Indeed in his own affirmation, trial counsel said "objectively speaking", the production of Exhibit 184 was related to the six video recorded interviews, and that "logically" the judge could have refused to admit the letter. Had it been rejected, then given the degree of reliance on Exhibit 184 in the judge's reasons for verdict, the prospects of an acquittal must have been high.
Mr. Saw SC argued it would have been unwise for counsel to enquire further into the circumstances in which Exhibit 184 came into existence, because that might have compromised the instructions the appellant had given in respect of the six interviews. Noting this was not a matter raised by trial counsel himself, I do not see any realistic basis for that concern.
It ought to have been apparent to counsel that, like the six video recordings, Exhibit 184 was a critically important document. Its presence as an exhibit was potentially fatal to the appellant's case. There were indications, if not earlier then at least by the time of the voir dire, of a possible basis for contesting its admissibility. Failure to explore fully and professionally the grounds on which admissibility might be challenged was, in the traditional language, flagrantly incompetent, compromising the fairness of appellant's trial.
In terms of s.83(1) of the Criminal Procedure Ordinance, Cap. 221 the conviction is unsafe. Accordingly I would allow the appeal, quash the conviction and set aside the sentence. Mr. Saw SC informed this Court that in the event the appeal succeeded, having regard to the fact that the appellant had nearly completed his sentence the respondent would not seek a new trial.
R v Birks (1990) 48 A Crim R 385; R v Irwin  1 WLR 902; R v Clinton (1993) 97 Cr App R 320; R v Pointon  1 NZLR 109; Dietrich v R (1992) 177 CLR 292; Keung Ping-kai v R  HKLR 239; Boodram v The State  1 Cr App R 103; Mak Kam Chuen v HKSAR, FAMC No. 35 of 2001, 13 December 2001; Gideon v Wainwright 372 US 335 (1963); Sankar v The State of Trinidad & Tobago  1 WLR 194; R v Ho Ling  1 HKC 733; R v Mo Lee-keun  1 HKCLR 78; So Yiu Fung v HKSAR (1999) 2 HKCFAR 539; Lo Chun Nam v HKSAR (2001) 4 HKCFAR 1; HKSAR v Wong Chi-keung, Cr App No. 585 of 1996, 3 July 1998; R v Lau Sui Fu  HKLRD 323; HKSAR v Au Yeung Long, CACC No. 522 of 1998, 11 June 1999
Magistrates Ordinance: s.105, s.113
Criminal Procedure Ordinance: s.83
Basic Law: Art.39
Prevention of Bribery Ordinance, Cap. 201: s.9, s.12
Mr. Andrew Bruce, SC and Mr. H Y Wong (instructed by Messrs George Tung, Jimmy Ng and Valent Tse and assigned by the Legal Aid Department) for the appellant
Mr. D G Saw, SC and Mr. Alex Lee (of the Department of Justice) for the respondent
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