HKSAR v. LAM SIU FUNG, ANDY

CACC 38/2022 [2024] HKCA 26

On appeal from [2022] HKCFI 1081

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 38 OF 2022

(ON APPEAL FROM HCCC NO 75 OF 2021)

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J U D G M E N T

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1.  This is an unmeritorious application for leave to appeal against conviction based solely on an allegation that the applicant’s legal representatives at trial were flagrantly incompetent. In all other respects, it is accepted that the applicant had a fair trial. No complaint is made against the judge’s summing-up to the jury, which fairly summarised the evidence and the issues for them to consider. The judge’s legal directions to the jury were clear and precise.

The basis of the appeal 

2.  On 26 January 2022, the applicant was convicted after trial before Deputy High Court Judge Maggie Wong (the judge) and a jury by a majority verdict of 5 to 2 of the single count he faced of attempted rape. On 2 March 2022, the applicant was sentenced to 5 years and 8 months’ imprisonment.

3.  On 23 March 2022, the applicant filed a notice of application for leave to appeal conviction and sentence (Form XI).  He did not accept his conviction and sentence, and complained that he did not have a chance to defend himself against the charge. 

4.  On 9 March 2023, Mr Phil Chau, SC, with him Mr Andrew Lau, for the applicant, filed and signed Perfected Grounds of Appeal Against Conviction.  Mr Chau advances one ground of appeal in which he alleges:

“(A)  The applicant’s counsel at trial was flagrantly incompetent in the handling and the conduct of the trial. Counsel did not serve well the applicant, and was grossly negligent, in failing to hold a voir dire on the admissibility of the Notebook entry given;

(B)  The applicant’s counsel at trial failed to cross-examine properly, or at all, the arresting police officers who formed the arresting party of the applicant on (i) the course of the applicant’s arrest; and (ii) the contents of the Notebook entry.”

5.  On 9 March 2023, the applicant filed an affirmation in support of his appeal against conviction, in which he alleges that defence counsel, Mr Paul Leung, was flagrantly incompetent in the conduct of his case at trial.

6.  On 11 April 2023, Mr Leung filed an affirmation in response to the applicant’s allegations.  He stated that the matters complained about by the applicant had been discussed with him, and the applicant agreed with the conduct of his case as carried out by him.

7.  On 17 April 2023, Mr Wong Kwok Kee, the applicant’s solicitor at trial, also filed an affirmation in response to the applicant’s allegations.  He supported Mr Leung’s account of the matters complained about by the applicant.

8.  On 4 May 2023, the applicant filed a second affirmation in which he contested the accounts given by Mr Leung and Mr Wong.

9.  On 5 May 2023, the applicant filed a third affirmation in support of an application for bail pending appeal.  The application was refused by me.

The original basis of the appeal

10.  As I understand the applicant’s original grounds of appeal against conviction in the Form XI, he complained that he did not have a chance to defend the charge against him at trial.  He argued that the young girl in question was not unconscious when she boarded his taxi as claimed by the prosecutor but alighted and boarded the vehicle on her own accord.  He contended that the jury did not accept the judge’s directions because he was unwell during the course of the trial and required hospitalisation.  He said that as a result, trial counsel, having regard to his health, did not adequately question the police constable about a statement he allegedly made. He argued that he did not converse or have contact with the female police constable, who testified of a conversation she had with him, which she mentioned in her Notebook.  He said there was no signature on the page in the Notebook of his confession statement, which he claimed he did not make.  He pointed out that the semen suspected to belong to him was on the inner side of his underpants and that it was undetermined whether the two strands of pubic hair that had been recovered from the young girl’s vagina were his DNA.  He also questioned why the young girl was allowed not to undergo a physical examination. 

11.  The applicant’s remarks that he was unwell during the trial and that he believed counsel took this matter into account when dealing with the police evidence is at variance with the highly critical allegations he is now making against trial counsel.  No reference has been made in the applicant’s submissions that the applicant thought counsel conducted his case taking into account the state of his health.  It will be appropriate to look into this issue in greater detail in the course of this judgment.

The allegation of counsel incompetence

12.  As the sole complaint against conviction is an allegation of counsel incompetence, it is appropriate to state at the outset of this application the seriousness of such an allegation and the heavy burden of establishing that counsel’s conduct caused a miscarriage of justice or the accused to receive something less than a fair trial. 

13.  An appeal on the basis of an allegation of counsel incompetence must be considered in the context of our criminal justice system, which is accusatorial and adversarial.  Trial counsel, therefore, has a wide discretion in the conduct of a criminal trial, and as a general rule, the conduct of counsel binds the accused.  It has been acknowledged that the dynamics and nuances of a criminal trial are very complex.  There are many factors and variables in the conduct of a criminal defence, which invariably interact and influence each other, and it is, therefore, difficult to get a complete and accurate picture of the appropriateness of decisions that are made in the heat of battle of a trial.  It has also been acknowledged that hindsight can sometimes give a distorted or unrealistic view of past events if they are not considered in their full and proper context.  It is for the foregoing reasons, that ordinarily an appellate court will rarely be in as good a position as counsel to assess the relevant considerations that influenced his or her decisions in the conduct of the trial.

14.  The Court of Final Appeal in Chong Ching Yuen v HKSAR[1]provided an important analysis of the appeal ground of counsel incompetence as set out in the separate judgments of Bokhary PJ and Sir Thomas Eichelbaum NPJ, with whom the other judges agreed.  Bokhary PJ agreed with the following passage of the judgment of Gleeson CJ (now Gleeson NPJ) in the New South Wales Court of Appeal in R v Birks:

“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.

…

  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.”

15.  Bokhary PJ stated that in determining whether defence incompetence has rendered a conviction unsafe or unsatisfactory, appellate courts should focus firmly on the standard of trial that our system insists upon.  He stressed that a trial must be fair, and “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.”[2] He also noted that the question of a miscarriage of justice comes in by reason of the proviso in section 83(1) of the Criminal Procedure Ordinance, Cap 221[3].  I would suggest that the test should be whether there has been a miscarriage of justice, adopting the language of section 83(1), although this will inevitably mean that an accused has received something less than a fair trial.

16.  Sir Thomas Eichelbaum NPJ, in his judgment, also adopted the reasoning of Gleeson CJ in R v Birks[4], and proceeded to explain:

“48. 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.

  49.  Nevertheless the courts have recognised that in some exceptional circumstances, an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice. … The expression ‘flagrant incompetence’ rightly undermines 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 then 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. …”

17.  It is not uncommon that a decision made or a course taken at trial reflected a forensic choice which was reasonably open to counsel.  In the Australian case of TKWJ v The Queen [5] the appellant was alleged to have committed sexual offences against the young son (“C”) and daughter (“K”) of a woman with whom he was in a relationship.  He had separate trials for the offences against the son and daughter.  In the course of the trial involving the son, the appellant’s counsel informed the prosecutor that he intended to adduce evidence of the accused’s good character.  The prosecutor informed him that he would seek to call the daughter to give evidence about the allegations relating to her to rebut the evidence of good character.  As a result, counsel did not call evidence of good character, and the appellant complained that this was unfair.  The High Court of Australia held that the decision not to call good character evidence was a matter falling within the discretion of counsel as to how he would conduct the defence, and viewed objectively, the decision was a rational tactical decision made to avoid a forensic risk.  It did not make the trial unfair or produce a miscarriage of justice. 

18.  In one of the leading judgments of the High Court, Gleeson CJ emphasised that decisions of counsel in the conduct of the case had to be considered in the context of the adversarial system of justice:

“8. On the face of it, that was an understandable decision. It was certainly not self-evidently unreasonable, or inexplicable. It was the kind of tactical decision routinely made by trial counsel, by which their clients are bound. And it was the kind of decision that a Court of Criminal Appeal would ordinarily have neither the duty nor the capacity to go behind. Decisions by trial counsel as to what evidence to call, or not to call, might later be regretted, but the wisdom of such decisions can rarely be the proper concern of appeal courts.

…

  16.  It is undesirable to attempt to be categorical about what might make unfair and otherwise regularly conducted trial.  But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused.  For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise.  And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations.  Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative.  That does not make them wrong or imprudent, or expose them to judicial scrutiny.  Even if they are later regretted, that does not make the client a victim of unfairness.  It is the responsibility of counsel to make tactical decisions, and assess risks.”

19.  The appellant in TKWJ also argued that the counsel’s failure to seek an advance ruling as to the admissibility of K’s evidence resulted in a miscarriage of justice.  The High Court held that it had not been established that if counsel had sought an advance ruling, there was a significant possibility that the appellant would have been able to call good character evidence and that the failure to call such evidence resulted in the loss of a chance of acquittal that was fairly open.  Gleeson CJ dismissed this argument on the basis that it engaged in speculation, revealing that the trial could have been conducted differently.  He said:

“14. Let it be assumed that it would have been possible for trial counsel to have sought a ruling in advance. It is possible that the trial judge might have agreed to give such a ruling. It is possible that any such ruling might have been to the effect that, subject to the course of evidence at the trial, the trial judge would be disposed to exclude the evidence of K if the prosecution called her as a witness. These layers of speculation demonstrate nothing more than that the trial could have been conducted differently.”

20.  There is a tendency when all else fails for an accused to blame trial counsel for the conduct of the defence case.  The Appeal Committee of the Court of Final Appeal in HKSAR v Li Xiaoxiang[6] deprecated the fact and trend of misconceived and inappropriate charges of flagrant incompetence levelled at trial counsel.  Stock NPJ stated that counsel had a wide discretion in the conduct of criminal (and civil) litigation, “but for which the machinery of timely advice and efficient but fair litigation would be undermined”[7]. 

21.  It is also appropriate to repeat the concern expressed by Stock NPJ against the exercise:

“in dissecting the minutiae of first instance trials to uncover inconsistencies, to find questions asked which should not have been or questions not asked which should have been and to examine advice given as to the benefits or disadvantages of testifying, from which exercise is then constructed an alternative approach which might have been taken, and that alternative approach is then artificially elevated to the only acceptable approach with a blindness to the realities of trials and the latitude which must be accorded competent practitioners to exercise professional judgment.”[8]

The case against the applicant

22.  The prosecution case was that the applicant, a Chinese male who was about 54 years of age at the time of the offence, worked as a nightshift taxi driver.  The victim, referred to as X, was a 16-year-old expatriate schoolgirl.  She had spent the Friday night, 15 May 2020, before the incident drinking with her friends in Stanley.  By the early hours of Saturday morning, 16 May 2020, she was very drunk.  She was dropped off by a friend near the front entrance of a residential building, but she was disoriented and incoherent due to her inebriated state.  After trying unsuccessfully to hail two taxis, she got into the applicant’s taxi.  X did not remember anything after 10:30 pm on Friday night. 

23.  The evidence was very strong that X was in an intoxicated state when she got into the applicant’s taxi.  She had consumed alcohol that evening and showed signs of intoxication.  There was CCTV footage of a 7-Eleven store at Stanley where X is seen buying and consuming alcohol. There was also evidence from her friend (PW5) that a group of them had been drinking at Stanley for roughly 2 to 3 hours.  Later that night, another friend arranged to take X home and he rang PW5 to obtain X’s address.  X was dropped off at a residential building, and was clearly disorientated as she was unsteady on her feet and dropping things out of her bag onto the ground.  This was observed by the security guard of the residential building (PW3).  He said X appeared to have drunk alcohol or taken some drugs.  He said she was in “a stupor”, not behaving normally and a little unsteady on her feet.  He observed that X tried to hail two taxis before she got into the applicant’s taxi, but she could not tell them her destination so they drove off.  When she got into the applicant’s taxi, he heard her say, “Go, go, go”, and the applicant drove off. Probably the most compelling piece of evidence that X was in an intoxicated state was the CCTV footage of the hotel where the applicant took her about one and a half hours after she had boarded his taxi.  She was pictured in an unconscious state with the applicant carrying her on his back to a hotel room.

24.  X boarded the applicant’s taxi sometime after midnight on Saturday.  She sat in the rear seat on the passenger side of the taxi.  She was carrying a bag in which she had a mobile telephone, a camera, a pack of pills, a passport and other items, but the items kept falling out of her bag onto the floor of the taxi.  It was not in dispute that the applicant took X to the Wan Chai area at about 12:30 am.  He next drove to Tai Tam Reservoir Road near Hong Kong Parkview, arriving at 12:47 am, and remained there for about half an hour. 

25.  A dashcam on the taxi provided a visual recording of the front of the vehicle and an audio recording of inside the vehicle[9].  From the times on the dashcam, at about 12:22 pm, a female is recorded saying, “Go, go, go”.  A little later, between 12:47 and 12:51 pm, the female demands the door to be opened.  She says, “Fucking open it.”  The male says wait for it and then she says, “Dude, I swear to God, I am not going to fucking (unclear), I swear to God, fucking hands off.”  She repeats several times “hands off”, and he says, “please go out”.  At about 12:52 pm, the dashcam no longer provided a visual recording. 

26.  The applicant claimed in his video recorded interviews that the dashcam became dislodged when X climbed from the back to the front seat.  There is no record of any sound of someone climbing over the front seat on the transcript of the dashcam, even though the audio recording picked up other sounds of people speaking and doors opening and closing.  He also claimed that he later installed the dashcam back in its original position when he returned the taxi. 

27.  There is the sound of the door opening and closing and the male saying, “Fuck you” on the transcript of the dashcam. There is no record of the female saying anything during the clips between 12:57 pm and 1:07 pm.  Later, when the applicant has taken X to Tai Tam Reservoir Road, there is murmuring or moaning from a male and female.  I should note that the defence relied on the audio recording to submit that X was a willing participant in the acts of intimacy.  At about 1:20 am, the applicant’s taxi was in the Repulse Bay area and took the Cross Harbour Tunnel to Tsuen Wan.  At about 1:58 am, the applicant entered Hotel Ease in Tsuen Wan and booked a room for the night.  It was an admitted fact that at about 2:00 am on 16 May 2020, the applicant entered the hotel alone.  He approached the reception counter and asked if there were rooms still available. He presented his Home Visit Card for registration.  The hotel receptionist informed the applicant that the room rate was HK$500 per day, and he paid for one day with a China Construction Bank credit card in his name.  Upon completion of payment the hotel receptionist handed the applicant the access card for Room 1905.  He then walked away from the reception counter[10].  In a statement from the hotel receptionist, after completing the room registration, she did not see the applicant again, nor did she see a foreign girl enter the hotel.

28.  The applicant left the hotel and returned at 2:09 am, carrying X on his back.  The CCTV footage shows X in an unconscious state, straddled over the applicant’s back as he carried her into the hotel and the room he had booked.  He then left the hotel at about 2:20 am.  It appears he dropped off the taxi he had been driving and returned on a motorcycle at 3:08 am.  He went to the room and remained there until he left in the morning at 10:08 am.

29.  X woke up at around 9:44 am in a bed in the hotel room that the applicant had booked.  She saw the applicant in the bed with his arms around her.  She screamed and asked who he was.  She collected her telephone and bag and immediately left the hotel.  She telephoned her mother, who took her to hospital.  The matter was reported to the police.

30.  The only issue at trial was consent, as the applicant had admitted that he had intimate sexual acts with X.  Although the applicant did not testify or call any witnesses on his behalf, his defence was that X initiated and consented to the sexual activities between them.  He relied on the explanations he gave in two video recorded interviews in which he had participated after his arrest.

The police investigation

31.  Woman Detective Police Constable 13541 (PW4), recorded in her police Notebook that at 10:40 pm on 16 May 2020, she arrested the applicant for the offence of indecent assault (the Notebook entry).  After she had administrated a caution, he said:[11]

“I was driving taxi on the night shift last night, and did really pick up a foreign female outside [the name of the building and road] some time past one o’clock. I saw that she was very drunk, so (I) suggested screwing her. (I) did not see much of a reaction from her. Then, I drove her up to Tai Tam Reservoir Road near Hong Kong Parkview, ‘parked’ the car and banged her in the car. After the screw, I drove her to Hotel Ease and checked into a room for her to sleep in.”

32.  In light of what he had said, PW4 again cautioned the applicant but this time for the offence of rape, to which he said:

“Yes. I screwed her. I did not see much of the reaction from her and thought she agreed (to it), so (I) screwed her.”

The first interview

33.  The first video recorded interview of the applicant took place on 17 May 2020 (the first interview).  He was interviewed by DPC 17466 and PW4 regarding an allegation that he “raped” a foreign female.

34.  The applicant said X got into his taxi and told him, “Go, go, go.  Hurry, hurry.”[12] He said there was a security guard at the front, and it seemed like he wanted to give something to her as he threw something into the taxi.  He said that X did not tell him where she was going but indicated to go straight when she said, “Go, go, go”[13].  He said he went to Kennedy Town and she said, “Go, go, go straight, go.”[14]  He felt that she seemed a bit unhappy and he continued driving to Queens Road East in Wan Chai[15].  He said X seemed to be pulling the door while the taxi was still moving, so he centrally locked it.  Upon reaching Queens Road East, he said, “You give money.”  Then X went to sit in the front of the taxi, crossing over from the back seat on his left hand side.  He said she grabbed his left hand and put it on her private parts.  There was touching for about 3 or 4 seconds.  He said X told him, “Like me”[16].  He said X wanted to get out of the taxi, so he opened the door to let her out.  She got out, peed at the roadside and suddenly got back into the rear left passenger seat[17]. 

35.  At this stage, the applicant sensed that X seemed to want a “one night stand” and drove to Tai Tam Reservoir Road near Hong Kong Parkview, where he parked the taxi[18]. He had a cigarette and then sat in the back of the taxi with X, who told him, “I love you, like me”[19]. The transcript of the dashcam did not record X making such a statement, which recorded remarks and movements in the taxi on other occasions.  He was asked about why the audio recording did not pick up X making this statement and he said that it must have malfunctioned when X climbed from the backseat over to the front seat and knocked the dashcam[20].

36.  The applicant said that after X told him that she loved him and wanted him to like her, they then fondled, cuddled and kissed[21].  He said that she had taken off her shorts, and he took off his[22].  He cuddled her, rubbing their private parts.  He noticed that she was wearing a sanitary napkin.  He said as they were rubbing private parts, he got excited and continued to go “one step further”, meaning “wanting to have sexual acts”[23]. He pulled out the tampon and threw it out the window.  However, he did not insert his penis into her vagina.  The applicant said X was conscious during the “making out” and that he did not force her into doing anything. 

37.  After the acts of intimacy, he said X seemed very tired, so he helped her put on her shorts, put her in the back seat and drove to find a hotel room to rent for her to stay.  He decided to go to Kwai Chung, where he had to return the taxi, which he said was also convenient for him to go back to see if there was anything wrong with her[24]. 

38.  The applicant was asked about the condition of X and whether she was under the influence of some drugs or alcohol at the time.  He said the girl was in good spirits because she even said, “Like me.”  He said, “It didn’t seem like alcohol, didn’t feel like alcohol.  Because we are afraid of people vomiting very much, if she was drunk, it would not be like this, would not be like this if she was drunk.”[25]  He also said she was “a bit sleepy but conscious”[26]. However, when the applicant checked into the hotel, he had to wake up X, who was in the taxi, and as she got out she staggered and seemed to be unwell, but conscious[27]. He had to carry X on his back. 

39.  When checking into the hotel, the applicant had to fill out a health check-up form.  He said he explained to the service attendant that his friend might be feeling a bit unwell or sleepy and would be unable to wake her up.  He intimated that after X had her body temperature checked, he carried her on his back to the hotel room.  He claimed that he asked her if she would take a shower, and she said she would not.  He said he laid her on the bed, and helped her into a sleeping position[28]. 

40.  The applicant collected X’s telephone and some contraceptive pills in the taxi and put them in his bag before refuelling and returning the taxi.  He said he answered a call on X’s telephone and told the caller that X could not wake up and that he rented a hotel room.  He told the caller the hotel’s name and said he would get X to call her when she woke up[29].  

The second interview

41.  Later in the afternoon on 17 May 2020, the applicant was interviewed a second time, but because of his admission that he had sexual relations with the girl, which did not extend to sexual intercourse, he was cautioned for the offence of attempted rape (the second interview).  During the interview, he was specifically asked about his statement under the first caution upon arrest that he had a “screw” in the car.  In the following exchange, the applicant seemed to confirm that he made a statement to PW4, in which reference was made to him having a “screw” in the car.  He explained that it was the police who asked if he meant to have a “screw”:[30]

“187. A: Hm. [Noise] Okay. According to er, the record of Woman Detective Police Constable 13541 in her police notebook made earlier on, you were cautioned. You said that at that time, near Tai Tam R--Reservoir Road, (you) had a screw in the car. Okay, apart from this, earlier on, you--in the last video-recorded interview, er, Detective Police Constable 17466 had asked you in the video-recorded interview, er, you said that the girl had said something like ‘I love you. Like me.’

188. B: Yes.

189. A: Er, you also agree, these things said by you (sic)?

190. B: Yes, yes.

191. A: Well, okay, one part at a time. In your view, what does ‘screw’ mean? At that time, you said this upon caution in the police notebook.

192. B: No, it was they who asked if I went t-to have a screw.

193. A: Hm.

194. B: Well, I told her that she and I, er, that is, cuddled, er, French-kissed, rubbed. [A: Hm.] In the end, it was she who took the initiative to take off (her) shorts. It was only then that I had further--movement. In fact, did not--er, I, physiologically, did not-not-not-not get hard, that is, no erection.” (Emphasis added)

42.  In Counter 194, according to the original Chinese transcript, the applicant’s answer that “I told her”, correctly translated, should read “I told the person”.  However, it would seem he was referring to PW4 because he was explaining the statement attributed to him in her Notebook entry that he went to Tai Tam Reservoir Road to have a “screw”. He then discussed in further detail the sexual acts he had with X[31].

43.  The applicant was asked questions based on the screenshots and audio recording of the “carcam”.  After he picked up X, a screenshot had his taxi at Admiralty Road at 00:48 am[32], which stopped in Queens Road East at 00:49 am[33]. In response to questions, the applicant described how X made advances to him when he asked for money to pay the fare.  He said she grabbed his hand and he touched her private parts and buttocks.  She said after about half a minute, “Right, is this enough?” and “Stop when it’s enough”[34].  He said X got out of the taxi and peed, and then got back into the taxi at 00:51 am[35].  He described what happened when they reached Tai Tam Reservoir Road near Hong Kong Parkview.  He said they cuddled kissed and rubbed, and X took the initiative, taking off her shorts[36]. He said X said things like, “I love you” and he described how they started cuddling, kissing and rubbing[37].

44.  The applicant said that X gestured him to take off her shorts and as he did he saw that she was having her period[38].  He said X gestured him to pull out her tampon, which he did.  He said he rubbed himself against X’s genitals to get an erection before having sex but he ejaculated prematurely[39].  He tried again to get an erection by rubbing himself against X’s genitals but he had already ejaculated so he did not feel his penis was inserted[40].  He was asked about the recording of a female voice moaning weakly and a male voice panting.  He said it was probably when he was French kissing.  When asked what happened when he said, “Are you okay?” and she answered, “Come”, he explained that it was the time when they were cuddling[41]. He said X fell asleep, and as he just made out with her he thought of renting a room for her to sleep.  He took her to Hotel Ease[42].  He was asked if X consented to go to the hotel and he responded that when he arrived at the hotel, X woke up and saw that he was getting out of the car.  He pointed at the hotel and she did not say anything but nodded her head once[43].  He confirmed that X told him, “I love you.” and “Like me.” but asked why it was not picked up by the carcam, he said he did not know and suggested that may have been due to where it was placed in the front of the vehicle[44]. 

45.  It is important to note that the applicant had decided not to give evidence in his defence and would rely on answers in his two video recorded interviews.  The first interview was in respect of an allegation of rape, but this changed in the second interview to an allegation of attempted rape.  The applicant explained the reference to the word “screw” and X’s state of drunkenness when he was first cautioned.  He said that the word “screw” was mentioned by the police and that X’s condition did not seem like alcohol.  However, he also made comments that reflected on X’s state and condition, such as that X was “very tired” and “sleepy”[45], he had difficulty waking X up[46], and he had to carry X on his back[47].

The evidence of X and her friend

46.  It is appropriate to provide a brief summary of X’s evidence.  She testified that she went out with her friends on Friday night, 15 May 2020.  They went to the seafront at Stanley and drank alcohol which they had purchased from a 7-Eleven store.  She had mixed her drinks and lost her memory because she was drunk.  She could not remember anything after 10:30 pm that evening[48]. She could not remember saying, “Go, go, go”, after she got into the taxi[49].  She could not remember anything at all from the dashcam recording, nor what happened when she said, “Hands off, hands off.”[50] Her memory only returned when she woke in the hotel room with a man’s arms around her.  She screamed and yelled and asked who he was.  He did not say anything.  She felt a little bit dizzy but thought that was from the alcohol she consumed the night before.  She got out of bed, took her telephone and bag, and left[51].  She explained that she was having her period at the time and remembered she wore a tampon the day before.  But when she was home, she noticed the tampon had been removed[52].  She was cross-examined why she refused to be examined by a doctor, and she explained that she waited for hours and the person who showed up was a man, and she did not feel comfortable with him examining her.  She said she had been through enough that day and did not want to go through any more[53].  She also confirmed that she had taken a birth control pill on the day in question but explained that she took the pills because of her period, although she acknowledged she was sexually active and took the pill daily[54]. 

47.  In addition to X’s mother, a friend of X, Z at trial (PW5), also gave evidence about the events on the night in question.  She confirmed that X had been drinking at Stanley on the evening of 15 May 2020. They had been drinking for about two to three hours.  A friend arranged to take X home and he contacted her to obtain X’s address.  After an inquiry from X’s mother about X’s whereabouts, Z attempted to call X a few times.  One occasion at about 3:00 am, a male answered her telephone.  She asked him where her friend was and he replied in bad English, which made it difficult for her to understand what he said.  He had given her the name of a hotel but it was not known to her.  She remembered he said he would call back and hung up the telephone.  She agreed that he told her that X could not wake up, and he rented a room at Hotel Ease[55].

The procedural history

48.  After his arrest on 16 May 2020, the applicant was granted court bail on 19 May 2020.  It was revoked upon his conviction after trial on 26 January 2022.

49.  On 22 December 2020, the applicant was granted legal aid, and Mr Leung and Mr Wong were assigned as his legal representatives.

50.  On 12 January 2021, Mr Wong met with the applicant and discussed his case with him.  He prepared a note of his attendance.  According to the applicant, he provided a written account of his case to Mr Leung and Mr Wong on 15 January 2021, which he described in his affirmation as “Written Instructions”.  Mr Wong prepared a Note to Counsel after his meeting with the applicant on 12 January 2021 (incorrectly dated 2020), which was dated 19 January 2021.  Mr Wong states that on 19 January 2021, he and Mr Leung also had a meeting with the applicant to discuss his case. 

51.  On 25 January 2021, Mr Leung appeared on behalf of the applicant in his committal proceedings at Eastern Magistrate’s Court. Mr Leung requested that he be provided with unused material and asked for an adjournment of the proceedings to 15 March 2021, which was granted. 

52.  On the return date, 15 March 2021, Mr Leung appeared on behalf of the applicant, who entered a plea of not guilty to the charge and was committed to the Court of First Instance for trial.

53.  In a letter dated 22 April 2021, the prosecution enquired whether Mr Wong would admit, amongst other things, the applicant’s oral response upon arrest and caution; and his cautioned video recorded interviews.  In a letter of the same date, the prosecution advised the court that, amongst other things, the defence indicated there would be no voir dire.  Meanwhile, in a letter dated 27 April 2021, Mr Wong informed the prosecution that on the advice of assigned counsel the matters could be admitted.  This was also conveyed in a separate letter of the same date to the Legal Aid Department.  The parties exchanged and completed the Case Management Questionnaire, which stated that there would be no challenge to the admissibility of any admission/confession. 

54.  Mr Leung confirmed with the judge in the pre-trial proceedings, at where the applicant was present, that there would be no challenge to the applicant’s out-of-court statements. 

55.  The first day of trial was 4 January 2022, prior to the arraignment of the applicant, counsel discussed with the judge the evidence to be presented by the prosecution, which included the arresting officer (PW4), and DPC 27790 (PW7), who was a member of the arresting party and participated in the second record of interview. 

56.  Prosecuting counsel in his opening speech referred the jury to the applicant’s statement upon arrest and caution and his two subsequent interviews and explained why the applicant only faced a charge of attempted rape.  He confirmed that the applicant in his interview appeared to deny that he used the word “screw” and that X took the initiative[56].

57.  At the close of the prosecution case on 12 January 2022, the judge proposed to add an alternative offence of indecent assault.  Mr Leung asked for time to obtain instructions and reiterated that the applicant would unlikely give evidence.  The next day on 13 January 2022, the applicant was hospitalised after complaining that he was not feeling well because of his heart.  The case was adjourned to 20 January 2022. 

58.  On the adjourned date, the applicant attended court, having been discharged from the hospital.  In addressing the defence case, Mr Leung informed the court that the applicant elected not to give evidence or call any witnesses.  He adduced into evidence the 5^th Admitted Facts (Exhibit D1), which stated that the applicant was 54 years of age, single and educated up to Form Five Level.  It also contained his criminal record for various traffic offences in 1994, including an offence of driving whilst disqualified, for which he received 6 months’ imprisonment.  The disclosure of the applicant’s criminal record is significant because it was a key feature of the defence case that the applicant had been cooperative and had nothing to hide.  Accordingly, the jury were urged to accept that the applicant believed X was consenting.

The alleged incompetence

59.  The ground of appeal complains of trial counsel’s failure to challenge the admissibility of the Notebook entry.  It is submitted that the applicant never uttered the words as recorded in the Notebook entry, and this was supported by the following:

(1)  the applicant could not have been arrested and cautioned by PW4;

(2)  the applicant did not sign any declaration that he did not wish to challenge the admissibility of the Notebook entry;

(3)  the Notebook entry was completely at odds with the applicant’s statements in the two interviews in respect of:

-  X’s drunkenness;

-  who in fact initiated the intimate contact;

-  whether there was actual penetration.

60.  It is also complained that trial counsel failed to call or cross-examine the arresting officers and engaged in other questionable conduct.

61.  As stated by Mr Chau in his written submission, “the only issue was consent as the applicant had already admitted that he had some intimate sexual acts with Ms X (age 16 at the material time)”[57].  The sexual acts the applicant had with X were described in detail by him in his two video recorded interviews, and it is an understatement to describe them as “some intimate sexual acts”.  Whilst acknowledging that the allegations against trial counsel are serious, Mr Chau directs his criticism against trial counsel on “(i) the failure to challenge the admissibility of the Notebook entry; (ii) failure to call and/or cross-examine the police officers in the applicant’s arresting party.”

62.  In the applicant’s written submission, it is submitted that the failure to reconsider the Notebook entry with the applicant’s video recorded interviews was “fatal to the applicant’s credibility and his defence”[58].

The applicant’s allegations

63.  The applicant states he met with his solicitor on 12 January 2021 and, amongst other things, informed him: [59]

“(i) I had not communicated with any female police officer on the day of my arrest and that I had only spoken to the male police officers from the arresting party; and (ii) I had only signed on pages 3 and 11 of the Notebook upon the request of a male police officer. …”

64.  The applicant refers to the Attendance Note dated 12 January 2021 (12 January note) and the Note to Counsel dated 19 January 2021 (19 January note).  He states that on 15 January 2021, he provided his written instructions (Written Instructions), in which he said: [60]

“(i) the words on pages 3 and 11 of the Notebook were relayed to me by a male officer upon my arrest at home on 16 May 2020; (ii) I had not seen the other contents in the Notebook entry; (iii) the Notebook entry was a preliminary statement; (iv) the police would compile a detailed statement later on; and (v) I had been told to sign on pages 3 and 11 of the Notebook before leaving. …”

65.  The applicant’s account of his arrest and caution is inconsistent with the contemporaneous notes to which he refers.  It is recorded in the 19 January note and the Written Instructions that he was also questioned by the female officer (PW4).  According to his Written Instructions, the male officer told him that “they had recorded their preliminary investigation … in a witness statement, so I signed on pages 3 and 11”.  In the 12 January note, it is recorded that he was not cautioned, but in the 19 January note, it is recorded that he was cautioned after a body search.

66.  The applicant was aware of the correspondence and documents between April and August 2021, in which it was stated that the out-of-court statements would not be challenged.  However, he states he did not instruct his legal representatives to admit his alleged response upon arrest and caution.  He asserts this was inconsistent with the Written Instructions. The Written Instructions give an account of his dealings with the police, in which he was asked questions by the police officers (three male officers and one female officer).  He states he did not make a witness statement with the female officer, but this appears to be inconsistent with his second interview, where he does not disagree that she recorded the statement in her Notebook. Moreover, in the Written Instructions, he acknowledged he made the “witness statement” and signed pages 3 and 11 of PW4’s Notebook.

67.  The English translation of the Written Instructions prepared by the applicant’s legal representatives is not certified, but when the Chinese characters, 搞嘢, are translated into English, they refer to “intimate” or “intimacy”, instead of “screw” or “screwed”.  The English translation provided by the applicant’s legal representatives reads that the applicant was asked by the male officer:

“whether I had been ‘intimate’ with her (搞嘢). I asked what him what he meant by the word ‘intimate’(搞嘢). … I asked him whether hugging and kissing would qualify as being ‘intimate’ (搞嘢); if so, then that was ‘intimacy’ (搞嘢).”

68.  Accepting that the above Chinese characters, when translated into English, convey the vernacular “screw” or “screwed”, which was acknowledged in submissions before me, then it is arguable that the applicant did use the word “screw”, but qualified it by saying it involved “hugging and kissing”.  However, as accepted in his two interviews, his sexual dealings with X went a lot further than just hugging and kissing.

69.  The applicant claims there was no discussion about the Notebook entry at the Case Management Hearing.  However, the Case Management Questionnaire confirmed there would be no challenge to the admissions of the applicant.

70.  The applicant states that on 31 August 2021,[61]

“When I was shown the Notebook entry, I told PL [Mr Leung] and BW [Mr Wong] that (i) I had not seen the contents of the Notebook entry (except for pages 3 and 11) when I was arrested at home on 16 May 2020; (ii) I had only communicated with the male police officers of the arresting party; (iii) I had not spoken to PW4; and (iv) I had not been arrested and cautioned by PW4.”

71.  The applicant states that the Draft Admitted Facts were amended to delete his alleged oral response, that Mr Leung did not cross-examine PW4, and that she did not arrest and caution the applicant as contained in the Notebook entry.

72.  The applicant claims he agreed to the 1^st Admitted Facts because he had no choice.  He states:

“I repeated to PL [Mr Leung] that I could not agree to the 1^st Admitted Facts because (i) I had not spoken to PW4; and (ii) I had not been arrested and cautioned by PW4. However, PL told me that the trial could not proceed without me agreeing to the 1^st Admitted Facts. PL also assured me that paragraph 15 was unimportant in any event. Thinking that I had no choice in the matter, I agreed with Counsel’s advice.”

Mr Leung’s response

73.  Mr Leung’s response to the applicant’s allegations was addressed as follows:

“9. As the Allegations are premised on the Notebook, I wish to first outline my recollection of conferences held with the Applicant since the Written Instructions (which was prepared at a very early stage, before committal, and well before many conferences were held) on this issue as follows:-

i.  First and foremost, the Applicant maintained that questions were asked and answers were given by him consistent with the Notebook. He did, however, mention that he did not make these replies to PW4 and that he was arrested without caution. On numerous occasions, he reiterated that he did not have any sexual intercourse with X and was concerned with the words 扑嘢 / 搞嘢(translated as ‘screw’ /‘screwed’) in the Notebook as he felt that these word (which are capable of various interpretations) gave an impression that he confessed to rape;

ii.  I explained to the Applicant that he was being charged with the offence of attempted rape and not offences of indecent assault or rape for which he was initially cautioned. I further explained that this meant that the prosecution accepted that no actual sexual intercourse had taken place. The Notebook was therefore not an admission to the charge of rape;

iii.  I further explained to the Applicant the procedures of challenging the admissibility of the Notebook if he maintained that he was arrested but not cautioned by PW4. I pointed out the difficulties he might face in mounting such a challenge. As far as I can recall from the case papers, the witness statements of the other police officers present were consistent with PW4’s evidence;

iv.   I also advised the Applicant that challenging the Notebook would most likely require him to give evidence. In this regard, I recall the Applicant's account of whether he had spoken to PW4 was wavering. At times, he would state that he did not speak to PW4 at all,while at other times (as stated in the Written Instructions), he stated that he did converse with both a male officer and PW4. In examining these matters, the Applicant also gave me the impression that he was not keen on going in the witness box to give evidence;

v.  Having considered all the circumstances, I explained my advice that it was not necessary to challenge the Notebook since the defence strategy was to rely on his 2 VRIs which essentially encapsulated his defence of honest belief to be supported by the evidence from the car cam footages;and

vi.  Having heard and understood my advice, he agreed and decided not to challenge the admissibility of the Notebook.” (Emphasis added)

74.  Mr Leung also states that all the correspondence referred to by the applicant was in accordance with the instructions not to challenge the admissibility of the Notebook entry.

75.  As for the complaint about the 1^st Admitted Facts, Mr Leung states that they had been discussed with the applicant, and some changes were made.  At the conclusion of this exercise, the applicant signed a copy of the final version and confirmed he understood and agreed with the matters contained in the 1^st Admitted Facts.

76.  As for the applicant’s allegation that he repeated his instructions regarding PW4 on the second day of the trial, and that Mr Leung told him the trial could not proceed without his agreement of the 1^st Admitted Facts, Mr Leung emphatically states that this was not true.  He points out that the matter was dealt with in open court, and it was explained that the applicant disagreed with part of the prosecution’s opening speech, not the 1^st Admitted Facts[62].  

Mr Wong’s response

77.  The instructing solicitor confirmed defence counsel’s account of what took place.  He states:

“8. As I remember, PL [Mr Leung] and I had a meeting with client on 19 January 2021. At that time, the Applicant expressed his concerned about the use of the words ‘screw’ / ‘screwed’ in the Notebook. He believed that these words, which could be interpreted in different ways, created the impression that he had confessed to committing rape. He also further instructed me and PL that his defence to his charge, i.e. attempted rape, was he had never conducted any sexual intercourse with X and his sexual activity with X in his taxi was under X’s consent.

9. At the same time, the Applicant confirmed with me and PL that the answer provided by him under caution in the video interview with Police are true and it constituted his defence and instructions to us for the Trial.

10. PL thus clarified and explained to the Applicant that he was being accused of attempted rape, rather than rape or indecent assault for which he was initially cautioned for. Furthermore, PL explained that this indicated the prosecution's acknowledgement that no actual sexual intercourse had occurred. As a result, the contents of the Notebook did not constitute an admission to the charge of attempted rape.

11. We also meticulously scrutinized the contents of the witness statements given by the arresting team of police officers and the circumstances surrounding the Applicant got arrested. We then elucidated to the Applicant that the arresting team of police officers had provided a consistent account of events and it is extremely difficult to challenge.

12. Upon considering the advice given by PL, the Applicant had confirmed his instructions and decided not to contest the admissibility of PW4’s Notebook nor to challenge the arrest.

13. With the Applicant’s decision not to challenge the admissibility of PW4’s Notebook, we have minimized our focus on this aspect while preparing the Defence case for the Applicant.” (Emphasis added)

The applicant’s reply

78.  The applicant, in his second affirmation, responds to the affirmations of Mr Leung and Mr Wong, and whilst he states, “the fact that I do not respond to any matter deposed in those affirmations should not be taken that I accept the same as true or correct”, he does not deny or disagree that he had a conference with Mr Leung and Mr Wong on 19 January 2021.  However, he denies the account given by Mr Leung and Mr Wong regarding the position agreed to be taken in respect of the Notebook entry.

79.  The applicant’s response to Mr Leung’s account of the consultation on 19 January 2021, is to state that paragraphs 9(i) and (ii) are irrelevant and because prosecuting counsel had made a point about the difference between the Notebook entry and the video recorded interviews, Mr Leung “ought to have held a voir dire on the admissibility of the Notebook entry for its obvious and glaring inconsistency with the account detailed in the VRIs”.  He questions Mr Leung’s reference to the statements of the other officers present, which were consistent with PW4’s evidence when there was only one other statement from a police officer.  However, Mr Leung prefaces his remark by saying that it is based on his recollection.  The applicant states that paragraphs 9(iv) and (vi) are untrue, reiterating that he was neither arrested nor cautioned by PW4 and that the Notebook entry was “clearly inconsistent” with his instructions.

Discussion

80.  The allegation of incompetence centres on an alleged failure by trial counsel to challenge the record in PW4’s Notebook of the applicant’s response when arrested and cautioned.  The applicant accuses trial counsel of failing to act on his instructions and to challenge the prosecution witnesses as to the contents and circumstances of the Notebook entry in his defence.  The applicant further complains that trial counsel forced him to agree on the 1^st Admitted Facts regarding the Notebook entry and that this acted to his prejudice at trial. 

81.  It is contended that the Notebook entry was inconsistent with the answers the applicant gave in his two interviews on (i) X’s drunkenness; (ii) who initiated the intimate contact; and (iii) whether there was actual penetration.

82.  Before I address in detail the submissions of Mr Chau on behalf of the applicant, it is appropriate to set out a brief summary of my views and observations in respect of the allegations that have been levelled against the applicant’s legal representatives at trial.

83.  Both Mr Leung and Mr Wong have explained that the issue of the admissibility of the Notebook entry was discussed with the applicant, and he agreed not to formally challenge its admissibility.  Whilst certain matters were raised about the circumstances of the making of the Notebook entry, he did not give instructions to challenge the contents of it, except to express concern about the word “screw”.  The applicant was not forced to sign the 1^st Admitted Facts as he claimed.  He endorsed a copy of the final version of the 1^st Admitted Facts, on which he wrote that he had read and agreed with the contents.

84.  As to X’s state of drunkenness, the applicant said in the Notebook entry that X was very drunk, but in the first interview, he made a more general statement that it did not seem like she was under the influence of alcohol, suggesting her condition may have been due to something else.  However, on further questioning in his interviews, he stated that she was very tired and sleepy and had difficulty waking her up[63].  This submission also ignores the totality of the evidence that showed X was in a state of intoxication when the applicant picked her up, and whose condition got progressively worse to the point that the applicant had to carry X on his back into the hotel room.  The judge in her summing-up said that it was “not in dispute that on the night in question Ms X had a great deal to drink.”[64] 

85.  Whilst prosecuting counsel in his closing address made a point about the difference in the applicant’s account of X’s drunkenness in his oral admission and interviews, that was always a possibility on the likelihood that the Notebook entry would be ruled admissible.  In any event, Mr Leung addressed the issue of X’s state of intoxication in his closing address.  He questioned X’s evidence that she had lost her memory and pointed to the evidence that showed she was not inhibited, submitting that whether a person was drunk, depended on the individual[65].

86.  As to who initiated the intimate contact, the applicant stated in the Notebook entry and his interviews that he thought X agreed to have sexual relations with him.  In the Notebook entry the applicant also said that he suggested screwing X, while in the two interviews he elaborated upon the circumstances leading up to his sexual relations with X.  The suggestive utterances he claimed X said to initiate the sexual contact were not captured by the dashcam audio recording that was functioning at the relevant times.

87.  As to whether there was actual penetration, it had been accepted by the prosecution that sexual intercourse had not taken place, but the applicant’s complaint was in respect of the Chinese expression, 搞嘢 (“screw”), and the circumstances in which it was said.  In the second interview, the applicant explained that the word “screw” had been used by the police when he made his oral statement, as recorded in the Notebook entry.  Otherwise, the applicant appeared not to take issue with the Notebook entry or that it had been made by PW4, when answering questions in the second interview on this matter.

88.  As I have already explained, it must be shown that counsel’s conduct has resulted in a miscarriage of justice or has rendered a trial unfair.  The impugned conduct of counsel must be of sufficient proportion and consequence to warrant the court to intervene and avert a miscarriage of justice.  Accordingly, what needs to be shown is “much more than a mistake, an error of judgment, or a decision to follow one course when in hindsight another would have been preferable.”[66]

89.  I am not persuaded at all by the allegations advanced on behalf of the applicant.  I have no hesitation in accepting the accounts and explanations given by Mr Leung and Mr Wong, highly respected and very experienced criminal law practitioners.  The facts and circumstances significantly support their account of their dealings with the applicant and the presentation of the defence case.  In oral submissions, Mr Chau accepted the truthfulness of Mr Leung’s affirmation[67]. He also accepted that the course of conduct taken by Mr Leung was one possible forensic approach or tactic but argued that it was the wrong one to take.  He contended that the applicant gave two versions about the same event, one in the Notebook entry and the other in the two interviews and that no competent counsel would have made the decision not to hold a voir dire[68]. 

90.  There are two fundamental flaws with Mr Chau’s submission.  First, it is not sufficient to argue that there are two versions without considering them in the context of the whole of the evidence and issues at trial, and the nature and basis of the defence case presented to the jury. Secondly, it focuses on how different counsel would have taken a different approach, and not on whether trial counsel’s conduct resulted in a miscarriage of justice (or the accused received something less than a fair trial).

Failure to challenge the admissibility of the Notebook entry

91.  The applicant’s account of his arrest was that the arresting party consisted of four police officers, including PW4.  He had discussions with his legal representatives about the case, including his dealings with the investigating police officers.  In his Written Instructions, the applicant stated that pages 3 and 11 of the Notebook entry, which he signed, were relayed to him by a male officer, but he had not seen the rest of the contents of the entry.  He also stated that he did not sign a statement with the female officer.  However, he stated that he was asked questions by the police officers about his intimate dealings with X, including by the female officer, who asked him questions and spoke to him angrily about being intimate with X. 

92.  Mr Chau argues that from the applicant’s Written Instructions, he was only told about the contents on pages 3 and 11 of the Notebook entry; he was told to sign on those pages at his home to record their “preliminary investigation”; he had not signed any witness statements with the female officer; and apparent threats were made to him when questioned.  He makes the general submission that it was incumbent on the applicant’s legal team to challenge the admissibility of the oral admissions and the Notebook entry, along with the course of the arrest.  This submission ignores a number of pertinent facts and circumstances that Mr Leung obviously took into account. The pages of the Notebook entry that he acknowledged he signed and was told the contents, were page 3, where it was stated that PW4 arrested him, and page 11, where he wrote a declaration that he read the statement, that he could correct or alter, and that he made the statement of his own free will.  There is also the factor that he did not dispute that PW4 had made a record of the statement in her Notebook during the second interview. 

93.  Mr Chau accepts that counsel has “some leeway” in the conduct of the trial.  However, he argues that the failure to challenge the admissibility of the Notebook entry could not be regarded as a tactical decision, primarily because of the following two factors.  First, there was no signed declaration from the applicant not to challenge the admissibility of the Notebook entry.  This is a matter of professional practice and does not address the issue of whether there has been a miscarriage of justice as a result of counsel’s conduct.  Mr Chau also argues that the lack of a signed declaration reinforces the applicant’s case that he did not instruct his legal team to admit his oral statement, but the records and the proceedings point to the applicant agreeing that his case be conducted in the manner carried out by counsel.  Requesting a defendant to sign a declaration in respect of the conduct of the defence case is a mechanism to avoid allegations of incompetence, and is not a matter that goes to the fairness of his or her trial.  Secondly, the Notebook entry was “completely at odds” with what the applicant stated in his two interviews.  I do not find this to be an entirely accurate statement when you consider the applicant’s general description of X’s condition and the nature and degree of the sexual intimacy that he described in the two interviews.  He described X as very tired and sleepy and that he had to wake her up and carry her to the hotel room.  He denied that the intimacy between them involved actual penetration, but he also stated that X wanted “a one night stand” and that he tried to penetrate her, but he had prematurely ejaculated.

94.  There are issues with the applicant’s Written Instructions relating to PW4, that no doubt would have concerned trial counsel.  First, PW4 was present at his home when the applicant was asked questions by the officers and signed the Notebook entry.  Secondly, PW4 asked him questions about being intimate with X.  Thirdly, the Notebook entry was made in PW4’s Notebook, and the applicant confirmed that he signed pages 3 and 11 and alongside his signatures are PW4’s signatures.  Fourthly, the entry on page 3, which he acknowledged was relayed to him, recorded that PW4 arrested him.  Fifthly, he wrote the declaration on page 11, in which he declared that he had read the statement and agreed with it.  Sixthly, he appears to accept in the second interview, or at least it is strongly arguable, that the Notebook entry was made by PW4.

95.  In an effort to show that the applicant did not utter the words in the Notebook entry, Mr Chau contends that this is supported by the failure of PW4 to mention the Notebook entry in the first interview.  PW4 was present when the applicant was interviewed by her colleague, but she did not question him about his statement in her Notebook.  This argument fails for the following reasons.  The interview was conducted by PW4’s colleague, and she only asked a few questions at the end, after the applicant had gone into considerably more detail about his sexual dealings with X than he did in the Notebook entry. In the second interview, the applicant was asked questions about the Notebook entry made by PW4.  Rather than denying it happened, he seemed to accept that he made the statement but that it was the police who asked if he went to have a “screw” and that he “told the person” (indicating this was a reference to PW4 from the previous questions and answers) he and X “cuddled, French kissed, rubbed” and it was X who took the initiative.

96.  In this passage of the second interview, the applicant provided an explanation about the Notebook entry that trial counsel could effectively use without challenging the police officers or calling the applicant to give evidence on the matter.  It would appear that trial counsel was of the view that challenging the admissibility of the Notebook entry was not likely to be successful given the evidence.  Moreover, he considered that very little forensically would be achieved in light of the applicant’s statements in the two interviews, particularly when the sole issue at trial was consent.  It seems that a tactical decision was made that a better strategy would be to highlight that the applicant was cooperative and forthcoming with the authorities and telling the truth when he said he thought X was consenting to have sex with him.  Trial counsel was also faced with the situation that the applicant did not want to give evidence and would rely on the statements he made in his two interviews in contesting the prosecution case.  The applicant was fully aware of the central theme of the defence case and clearly agreed with it.

97.  Mr Chau argues that trial counsel in not challenging the Notebook entry meant that the applicant’s alleged statements that X was “very drunk” and that he “suggested screwing” X could be used against him when in his two interviews, he implied that she might have been under the influence of drugs, not alcohol, and stated that X initiated the sexual contact with him and he did not penetrate her.

(i)  X’s drunkenness

98.  The applicant said in the Notebook entry that X was very drunk.  There was cogent evidence that X was in an intoxicated state. In his interviews, the applicant said that X’s condition “didn’t seem like alcohol, didn’t feel like alcohol”, but he also commented about her condition generally, describing her as “very tired” and “sleepy”[69] and that he had to wake her up and carry her on his back when taking her to the hotel room[70]. 

99.  Whilst prosecuting counsel submitted in his closing speech that the applicant had “changed his tune” about X’s drunkenness, it was anticipated by defence counsel, who addressed X’s memory loss and drunken state in his closing address[71]. The judge gave a lies direction on this matter, emphasising with the jury that they should examine the whole of the applicant’s statement when he was arrested and cautioned as well as the two interviews in their proper context.  She reminded the jury that they not only look at the parts on which the prosecution relied upon but also the explanations given by the applicant[72]. 

100.  The CCTV footage of the applicant carrying X on his back to the hotel room was compelling.  She was clearly in an unconscious state and this was about one and a half hours after the applicant had her picked up.  As highlighted by the judge in her summing-up, it had been accepted at trial that there was no dispute that X had a great deal to drink on the night in question.

(ii)  Who initiated the intimate contact 

101.  Mr Chau highlights the statement, “I suggested screwing her” in the Notebook entry, but does not refer to his further statement that he thought that X agreed to have sexual relations with him.  It also has to be appreciated that the Notebook entry is a brief statement that suggests that the applicant had picked up a female who was drunk , that she did not react against his suggestion to have sexual relations, and that he thought she agreed to be intimate with him. 

102.  The interviews provided an opportunity for the applicant to further explain matters, which he did.  He went into specific detail about the nature and circumstances of the intimacy that took place. However, it would appear that the evidence was against him.  He claimed that X made suggestive comments to him about having sex but none of the remarks had been picked up by the audio recording of the dashcam.  There was moaning and murmuring later when the applicant parked his taxi, which was relied upon by the defence, but the issue was whether she was in a conscious or semiconscious state.

(iii)  Whether there was actual penetration

103.  The issue about the word “screw” in the Notebook entry (whether there was actual penetration) needs to be considered on the basis that the prosecution accepted there was no sexual intercourse and that the applicant described in detail the sexual intimacy with X in the two interviews. In the context of the circumstances of the case, particularly where the only issue in this case was consent, it is understandable that the reference to the word “screw” was not of great moment.  It ignores that the applicant explained the reference to the word in his second interview, attributing the word to the police.  PW4 also accepted that she did not seek clarification of the word’s meaning when mentioned in Chinese.  Moreover, it was not the prosecution case that actual penetration had taken place, as stated by prosecuting counsel in his opening address and explained by the judge to the jury in her summing-up.

104.  Mr Leung states that when he discussed the case with the applicant, he maintained that the police asked questions and that his answers were consistent with the Notebook entry.  However, the applicant told him that he did not make his replies to PW4 and that he was arrested without caution.  Mr Leung stresses that the applicant was mainly concerned by the word “screw” or “screwed” in the Notebook entry because it gave the impression that he had confessed to rape.  Mr Leung explained to the applicant that he had been only charged with attempted rape, and the prosecution had accepted that no actual sexual intercourse took place.  He then discussed the procedures and the difficulties in challenging the admissibility of the Notebook entry, particularly in claiming that PW4 had not cautioned him.  Mr Leung observes that the applicant’s account about whether he had spoken to PW4 was equivocal, stating that he did not speak to PW4 but acknowledged that she asked him questions about being intimate with X.  This inconsistent account about PW4 was in the applicant’s Written Instructions.  He informed the applicant that challenging the Notebook entry, would most likely require him to give evidence, but he appeared unwilling to testify.  He advised the applicant that it was not necessary to challenge the Notebook entry since the defence strategy relied on his two interviews, which essentially encapsulated his defence of honest belief that the complainant was a willing participant and the dashcam could be used to support his case.

105.  Mr Leung emphatically states that the applicant, having understood his advice, agreed and decided not to challenge the admissibility of the Notebook entry.  Therefore, everything that followed in preparing and conducting the defence case was consistent with those instructions[73].

106.  Mr Wong agrees with Mr Leung’s account of the discussions with the applicant about his case.  He confirms that in respect of the Notebook entry, the applicant was concerned about the use of the words “screw” and “screwed” because he claimed he did not have actual sexual intercourse with X.  After Mr Leung explained to the applicant he had only been charged with attempted rape, and the evidence and issues that might arise in challenging the admissibility of the Notebook entry, the applicant agreed not to contest the admissibility of the Notebook entry, nor to challenge the circumstances of his arrest[74]. 

107.  In his Written Instructions the applicant stated that the male officer asked him whether he had been “intimate” with X, and he went on to state, “I asked him whether hugging and kissing would qualify as being “intimate”; if so, then that was “intimacy”.  According to the applicant, he did use the Chinese equivalent of the word “screw”, but gave it a different meaning.  The legal representatives for the applicant have provided an English translation of the Chinese characters in the Written Instructions that they have translated to “intimate” or “intimacy”, instead of “screw” or “screwed”. The latter, having been accepted in submissions, was the English translation of the Chinese characters.  In other words, it would appear that the applicant acknowledged he did refer to the words “screw” or “screwed” (the Chinese characters) in his statement to the police.

Failure to call or cross-examine the arresting police officers

108.  Mr Chau submits that the failure to cross-examine PW4 and call the other arresting officers to give evidence in respect of the Notebook entry was “patently at odds” with the applicant’s instructions.  Mr Leung explains that since it was agreed not to challenge the admissibility of the Notebook entry, it was not necessary to put questions to PW4 about the course of the arrest and the lack of caution.  Nor was it necessary to call any other police officers in the arresting party.  He points out that he did cross-examine PW4 about whether the meaning of the Chinese words “screw” and “screwed” had been clarified with the applicant after the caution or in the interviews.  She said it had not been done, suggesting there may have been a misunderstanding about the words.  She also confirmed that the applicant had been very cooperative and forthcoming.^[75]

109.  During PW4’s testimony, in the absence of the jury, the judge raised several matters, including a question about the English translation of the Chinese, 搞嘢, in the following exchange:[76]

“COURT: And the second matter is I wish to ask there are certain words of -- made by the defendant after the caution that has not been disputed by the defence, is that correct?

MR LEUNG: I don’t know what words your Ladyship is referring to.

COURT: Which is the words -- after the words of caution, this witness said that the defendant said something …

MR LEUNG: Yes.

COURT: … to her after the caution.

MR LEUNG: Yes.

COURT: So that has not been disputed, correct?

MR LEUNG: The Chinese is not disputed. It’s just if -- I think your Ladyship is referring to the word ‘screw’.

COURT: And the whole answer.

MR LEUNG: Yes, the answer is not disputed …

COURT: Mm.

MR LEUNG: … but I have some question to ask of this witness as to how the answer came about.

COURT: Yes.

MR LEUNG:  Yes.”

110.  The above exchange took place in open court in the presence of the applicant.  Throughout the court proceedings in which the applicant is either involved or present, he had at no time displayed any remonstration in the conduct of the defence case where no issue was taken with the Notebook entry.

Other questionable conduct

111.  Mr Chau raises other questionable conduct by the applicant’s legal representatives: (i) Mr Leung submitted in his closing speech that the Notebook entry was made “voluntarily”; (ii) the legal representatives did not explore the possibility of a voir dire; and (iii) the applicant never agreed to the admitted facts regarding the Notebook entry.

(i)  The Notebook entry was made voluntarily

112.  At one stage in his closing address to the jury, Mr Leung said that the Notebook entry was made “voluntarily”.  As I have already pointed out, I accept that the applicant agreed not to challenge the admissibility of the Notebook entry.  Moreover, it was a key feature of the defence case that the applicant had cooperated with the police and had nothing to hide.  He had been full and frank about his dealings with X, and therefore he should be believed that he thought X was a willing participant in the sexual intimacy that took place between them.

(ii)  No consultation about a voir dire

113.  Mr Chau contends that the legal representatives did not explore the possibility of a voir dire with the applicant.  I accept the evidence of Mr Leung and Mr Wong that they had discussed the issue of challenging the admissibility of the Notebook entry with the applicant and it was agreed between them that it would not be made an issue as part of the defence strategy to highlight the applicant’s co-operation and truthfulness with the authorities. 

114.  Mr Chau refers to the relevant correspondence and documents during the period from April to August 2021, in which the applicant’s legal representatives variously confirmed that no voir dire would be held, challenging the admissibility of his out-of-court statements.  This was consistent with the applicant’s instructions that he did not want to give evidence and that he would rely on his caution interviews and not challenge the admissibility of the Notebook entry, subject to the explanation he gave in the second interview about the phrase “搞嘢” (“screw”).  The applicant complains that trial counsel did not act in accordance with his instructions dated 15 January 2021, regarding the Notebook entry.  He contends that correspondence and court documents dated between April and August 2021, stating that there would be no challenge to the Notebook entry, were done without his instructions[77]. 

115.  The applicant referred to the Case Management Hearing on 31 August 2021, at which Mr Leung confirmed with the judge that the video recorded interviews would not be challenged.  He states that he spoke to the trial counsel and the instructing solicitor after the hearing.  When he was shown the Notebook entry, he told them that he had not seen its contents except for pages 3 and 11 and only communicated with the male police officers, not PW4.  He reiterated that he had not been arrested and cautioned by PW4[78]. Mr Leung disagrees with the applicant’s account of their discussion after the hearing.  He states that the judge at the hearing explained that she contemplated revoking his bail and scheduled a bail review hearing two days later.  The discussion that followed was about how to deal with the question of bail[79]. The court’s log confirms that at the close of the hearing, the judge raised the issue of bail, and a hearing to review bail was fixed for 2 September 2021.  No mention is made of this subject matter in the applicant’s submissions.

(iii)  The 1^st Admitted Facts 

116.  Mr Chau complains that the 1^st Admitted Facts were prepared contrary to the applicant’s instructions that he had not been arrested by PW4.  As I have already pointed out, page 3 of the Notebook entry that the applicant stated he signed and had explained to him, recorded that he had been arrested by PW4[80].  Moreover, in his second interview, the applicant did not take issue with PW4 having made a record of his statement in her Notebook when questioned about it[81]. 

117.  The applicant states that in a conference with trial counsel and the instructing solicitor on 13 December 2021, he was shown the Draft Admitted Facts, which included in paragraphs 14 and 15 his alleged response upon arrest and caution.  He claims he reacted by repeating his previous instructions and stating that “I could not admit the matters contained therein.”[82] He states that trial counsel dismissed his concerns and told him that the paragraphs were unimportant.  The applicant’s response upon arrest and caution was removed from the Draft Admitted Facts, except for the part that PW4 arrested him for the offence of indecent assault, which he says was also inconsistent with his instructions.  However, it was consistent with the contents on page 3 of the Notebook entry.

118.  Mr Leung explains that while the applicant agreed not to challenge the Notebook entry as part of the overall defence strategy, he remained concerned about the interpretation of the words “screw” or “screwed” in his statement, as repeated in paragraphs 14 and 15 of the Draft Admitted Facts, and that was why these paragraphs were deleted.  Mr Leung was of the view that the Chinese words were open to various interpretations. This approach was part of the agreed strategy not to challenge the Notebook entry.  Hence, the first sentence in paragraph 14 that PW4 arrested the applicant for the offence of indecent assault remained.  In the attendance note of counsel, a notation is made at the very end, “wording of translation on ‘screwed’ needs to be clarified.”[83] It should be noted that other parts of the Draft Admitted Facts had also been deleted. 

119.  After the Draft Admitted Facts had been corrected, the applicant checked and signed the 1^st Admitted Facts on 15 December 2021.  He wrote in Chinese that he confirmed and agreed with the abovementioned facts and clearly understood the contents.  He signed the document and put his Hong Kong identity card number underneath his signature.  The confirmatory endorsement of the 1^st Admitted Facts by the applicant had not been mentioned in the applicant’s submissions. 

120.  Mr Chau also refers to the applicant’s comment that he did not agree with some of the 1^st Admitted Facts, suggesting that this was a reference to the part that he had been arrested by PW4[84].  The applicant did not make such a statement.  When the matter about the admitted facts had been clarified and further discussed in open court, it was explained that he had taken issue with part of the prosecution’s opening address, not the 1^st Admitted Facts. 

121.  After the 1^st Admitted Facts had been read in open court before the jury, the judge asked the applicant if he understood the 1^st Admitted Facts, and he responded, “Yes, I understand.”  He was then asked if he agreed to the facts, and he said, “Some of them I do not agree.”  Then, the matter was stood down to allow counsel to talk to the applicant.  After that was done, counsel informed the judge that he had clarified the matter with the applicant and explained, “It appears he only disagreed with some of the opening remarks made by my learned friend for the -- when he opened the case.”  He went on to tell the judge, “As far as the contents of the 1^st Admitted Facts is concerned, there is no dispute.”  At counsel’s invitation, the judge confirmed with the applicant that he understood and agreed to the 1^st Admitted Facts.  The jury were brought back into court, and counsel repeated the explanation to them.  The judge asked the applicant if he agreed to the 1^st Admitted Facts and he said, “Yes, I agree.”[85]  

122.  The applicant claims that he did not agree with the admitted facts where it was stated that PW4 arrested him for the offence of indecent assault.  When the case was stood down for counsel to obtain instructions from him, he states that he told counsel that he had not spoken to PW4, and she had not arrested and cautioned him.  He claimed that counsel told him that this paragraph in the 1^st Admitted Facts was unimportant, and he agreed with counsel’s advice because he felt he had no choice in the matter.  Mr Leung, in response, emphatically denies that this took place, particularly that he advised the applicant that the trial could not proceed without his agreement to the 1^st Admitted Facts.  Mr Leung states that after the matter was stood down, he took instructions from the applicant, who clarified that he disagreed with part of the prosecution’s opening speech, not with the 1^st Admitted Facts. 

123.  As already noted, the applicant had previously acknowledged in writing that he had read and agreed with the 1^st Admitted Facts, including the impugned paragraph, and he had signed and read the Notebook entry on page 3 that stated PW4 had arrested him for indecent assault.

The defence case at trial 

124.  It is significant that the only matter in issue at trial was whether X consented to the sexual intimacy with the applicant.  Mr Leung presented the defence case to cater for the applicant’s election, not to give evidence and to impress upon the jury that the applicant genuinely believed that X was a willing participant in the sexual intimacy with him.  To this end, he stressed in his closing address that the applicant had cooperated with the police and had nothing to hide.  As part of the defence strategy, the applicant’s previous criminal record was disclosed to the jury to show that he was full and frank with them and had been out of trouble for a very long time. The applicant’s criminal record was an admitted fact and shows that the applicant must have agreed for it to be produced before the jury as part of an overall defence strategy.  It was all designed to convince the jury that the applicant was being honest with them and that he genuinely thought X wanted to have sexual relations with him.  There were various matters that Mr Leung utilised to the defence’s advantage to argue that X was a willing participant in the sexual intimacy with the applicant.

125.  Mr Leung’s handling of the case was perfectly understandable and appropriate in the circumstances.  It was not an unreasonable nor an inexplicable approach in the conduct of the defence case.

126.  There is no justification whatsoever in the criticisms of Mr Leung’s conduct or performance in this trial, which was competent and clearly in the applicant’s best interests.  I do not find any merit in the serious allegations made against him.

127.  I have serious difficulty understanding how an allegation of flagrant incompetence of the applicant’s legal representatives was ever considered viable, and made the basis for mounting an appeal against the applicant’s conviction of attempted rape, particularly after the provision of affirmed statements from them.

128.  When new counsel advances a ground of appeal alleging trial counsel was flagrantly incompetent in the conduct of the defence case, it is absolutely essential that the basis of such a complaint is put in the context of the case at trial and the matters in issue.  More importantly, it has to address and show that counsel’s conduct has resulted in a miscarriage of justice (or the accused received something less than a fair trial).  

129.  Mr Chau’s submission highlights that he would have conducted the case differently from that of Mr Leung.  Furthermore, he has not shown that a miscarriage of justice has resulted in Mr Leung not challenging the admissibility of the Notebook entry.  Considering all the evidence relating to the Notebook entry, it was reasonable to take the view that such a challenge would have been unsuccessful.  Whilst there were some differences between the Notebook entry and the two interviews, the latter went into further or greater detail about what was recorded in the Notebook entry and what took place between the applicant and X. 

Conclusion

130.  In light of the foregoing, the applicant’s application for leave to appeal against his conviction is refused. 

131.  Mr Chau’s argument amounted to no more than submitting that the defence case could have been conducted differently.  As warned in Li Xiaoxiang, the allegations of counsel incompetence in the present case sought to artificially elevate an alternative approach “with a blindness to the realities of trials and the latitude which must be accorded competent practitioners to exercise professional judgment.”[86]  As this case illustrates, if the principles and realities as stated in Chong Ching Yuen are sufficiently understood, “the unnecessary exertions and anxieties imposed upon counsel against whom unwarranted allegations are made would be avoided.”[87] 

Leave application against sentence

132.  After the leave application to appeal against conviction was heard, the applicant, representing himself in the leave application to appeal against sentence, informed the court for the first time that he was not proceeding with the application.  Accordingly, the application was duly treated as abandoned, and the appeal against sentence was dismissed. 

133.  In his Form XI, the applicant essentially argued that he did not do anything wrong and should not have been sentenced for this offence.  He said he played along with X and interacted with her.  He thought she was a young foreign lady who had overstayed.  To give her a place to rest and out of concern for her safety, he rented a hotel room.  He was critical that X did not appreciate the care he had shown her.

134.  The applicant also noted that the judge took into account that as a taxi driver, he had a responsibility to his passenger.  In response, he said that when X boarded his taxi again, he had his “Out of Service” sign on and therefore she was no longer a passenger in his taxi.

135.  I should say that following the jury’s guilty verdict, the sentence imposed on the applicant was unduly lenient.  The overall nature of the case and the serious aggravating factors had not been appropriately reflected in the sentence that was passed.  The victim of the attempted rape was a young girl, who had just turned 16.  She was in a defenceless and intoxicated state and was taken advantage of by a much older adult male.  The circumstances of the attempted rape were shocking and humiliating, involving the egregious sexual abuse of a young vulnerable girl.  At an isolated location, in the back seat of his taxi, the applicant undressed the young girl, removed her tampon, fondled and caressed her, rubbing his penis against her vagina until he ejaculated over her genitalia and thighs.  He tried again to get an erection to penetrate her but was unsuccessful.  The young girl was in the care of the applicant as a public service vehicle driver, and the fact that the offence occurred in these circumstances was a serious aggravating factor. It was a gross breach of trust.  The offence was further aggravated by the applicant taking her to a hotel room and keeping her there throughout the night and the early morning while her parents were frantically trying to locate her. She was in an unconscious state, having been carried on the applicant’s back into the hotel room.  In a further act of abuse and humiliation, the applicant took photographs of himself with the young girl, cheek to cheek, when she was clearly unconscious.  While the judge acknowledged these aggravating factors, together with the horrendous and enduring trauma that the incident had left the victim and her family, they warranted a substantially more significant enhancement to the starting point that she adopted.

Renewal of the leave application

136.  The applicant is reminded of his right to renew his application for leave to appeal against conviction to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a further direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

137.  As I have already stated, I consider this application to be devoid of merit, and therefore, I also bring to the applicant’s attention the following paragraphs in Practice Direction – SL4:

“10. The Court has also become concerned at the frequency with which unmeritorious allegations of incompetence are made against counsel and solicitors. Such an allegation causes the practitioner whose reputation is thus impugned to expend considerable effort in the preparation of affidavits or affirmations and, often, in attending the hearing of the application. Although allegations of flagrant incompetence will always be examined carefully, the frequency of wholly unwarranted allegations has increased, both at the hands of represented and unrepresented applicants. An unwarranted assertion of incompetence will normally attract an order for loss of time.

11.  In the case of applicants who are unrepresented and his application first comes before a single judge, the single judge has himself the power to order loss of time.  Where an application has been refused by a single judge and the application is nonetheless renewed in the court before which the renewed application is made also takes the view that the application is wholly without merit, and order for loss of time will ordinarily be made.”