HKSAR v. SYED RASHID ASLAM

CACC 170 /2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 170 OF 2010

(ON APPEAL FROM DCCC NO. 1222 OF 2009)

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Hon Hartmann JA (giving the judgment of the Court):

Introduction

1.  On 6 May 2010, following a trial in the District Court before District Judge Douglas Yau, the applicant was convicted of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212, and sentenced to 2 years’ imprisonment.  The applicant, who has appeared before us without the benefit of legal representation, his application for Legal Aid having been refused in June 2010, has sought leave to appeal his conviction.

Background

2.  For all practical purposes, the applicant’s conviction was based on the testimony of a single witness, a man by the name of Imtiaz Khaliq Butt.

3.  Butt testified at trial that at about three o'clock in the morning of 17 June 2008 he and a friend, Ali Aamir, were together in a park in Sham Shui Po when they were attacked by a group of five men.  He said that a number of the group carried sticks and he was beaten so badly that he lost consciousness.  Although the others in the attacking group were strangers to him, Butt testified that he was able to recognise one of his attackers, that person being the applicant.  The applicant, he said, carried a knife.

4.  Both Butt and his friend Aamir were taken to hospital where Butt was treated for his injuries which included the suturing of a 4 cm laceration wound.  He was discharged within a couple of hours.

5.  Two days later, in the early hours of the morning of 19 June 2008, the applicant was arrested.  Later that day, while still in custody, he gave a detailed statement under caution.

6.  In that statement, the applicant denied taking part in the attack or having any involvement in it.  He said that at or about the time of the attack he was at his apartment in Chung King Mansions with a girlfriend and two male friends named Saqib and Saleem.   He said that they were playing poker and that, when the game was finished, all three slept at his apartment.  The applicant gave the contact telephone numbers of the three.

7.  Of significance, in his cautioned statement the applicant admitted being well acquainted with Butt, the two of them having shared lodgings until about the beginning of that month.  However, according to the applicant, there had been a bad falling out.  The applicant gave a detailed account of that falling out.  He said that Butt had not paid his share of the rental as a result of which he was told to leave the lodgings.  This had led to an argument which in turn had led to the applicant making a 999 call to the police.  The applicant asserted that, before leaving the lodgings, Butt had threatened him with a knife and stolen his wallet containing cash in the sum of $2,000.  The applicant had reported the theft to the police.  A few days later, he said, Butt had lodged a malicious complaint with the police, alleging that the applicant had sent him a threatening text message.  In his cautioned statement, the applicant made one further assertion.  It was to the effect that very shortly before his arrest he had been visited by Aamir, Butt’s friend, who demanded that the applicant withdraw his criminal charges against Butt failing which revenge would be taken against him. 

8.  During the trial, that there was at that time a deep animosity between the applicant and Butt was never denied.  When cross-examined by Mr Andrew Raffell for the applicant, Butt admitted the history of events and further admitted feelings of resentment to the applicant.

9.  That state of animosity was central to the defence in two ways.  First, and principally, that Butt, motivated by ill will, had deliberately made a false accusation against the applicant.  Second, that even if the court rejected the assertion that Butt had deliberately lied, it may well have been that, in the chaos of the attack, while being beaten and close to unconsciousness, Butt had come to the mistaken conclusion that the applicant had to be one of his attackers.

10.  At the trial, which for some unexplained reason took place nearly 2 years after the event, the prosecution did not call the other victim of the attack, Aamir, but did call two witnesses in addition to Butt.  They were the two men, Saqib and Saleem, who, so the applicant had asserted in his cautioned statement, had played poker with him on the night of the attack and then slept over at his apartment.  The clear purpose of their testimony was to disprove the applicant’s potential defence of alibi.

11.  Both witnesses, however, confirmed that they had not been approached by the police to give witness statements until some four months after the event.  In the result, after that lapse of time, as both had socialised with the applicant on a regular basis in or about June 2008, they testified that they could no longer remember whether they had or had not been with him on the night in question.  As Saleem said in the course of cross-examination: “It could be possible, it could not be possible, I don’t remember exactly”.

12.  The applicant elected not to give evidence nor did he call any defence witnesses.  However, his cautioned statement was admitted into evidence by consent.

13.  In the result, the success of the prosecution rested on Butt’s credibility.  For all practical purposes that was the single determining issue, a fact recognized by the judge who, early in his Reasons for Verdict, posed the question: “Can the prosecution prove beyond reasonable doubt that PW1 [Butt] is telling the truth about the presence of the defendant at the attack and, if they can, can the prosecution prove that PW1 did not make an honest mistake in his identification of the defendant?”

14.  As it was, the judge made the finding that Butt was an honest and reliable witness.  He was satisfied that Butt gave truthful evidence when he described the attack upon himself and Aamir and was further satisfied that Butt’s identification of the applicant as one of the attackers was a correct identification.  It was on this basis that he convicted the applicant.

The Reasons for Verdict

15.  In his Reasons for Verdict, having posed the question just cited, the judge gave a very full recitation of the evidence including a recitation of the contents of the applicant’s cautioned statement.  It was a ‘recitation’ in the sense that it set out the evidence without in any way seeking to evaluate it.  The judge then moved directly to his ‘findings’, commencing them as follows:

“I find PW1 honest and reliable. He was not shaken at all in his cross-examination. I find that he is telling the truth when he told the court how he and his friend were sitting in the park and suddenly the defendant together with 4 others came up from his right hand side and without saying anything started to attack him with sticks and knives or cutters. I find that he had positively identified the defendant as one of the attackers. In fact, the defendant was the only attacker he knew and could recognize. In so finding, I have directed my mind specifically to the fact [of] the lighting condition in the park (which was not too bright but obviously sufficient to see someone’s face clearly at close distance), the fact that PW1 was already an acquaintance of the defendant and that they were living at the same place for some 4 months, the fact that PW1 did not have too much time to see the defendant’s face before his neck was held from behind and his face was looking up, and the fact that he had lost consciousness at some point after that. Even bearing in mind those facts, I find that PW1 had made a correct identification of the defendant at the attack. I find that the defendant did use a knife that had a blade some 6 inches long to attack PW1, causing him at least some of the injuries….”

16.  The judge then turned his attention to the testimony of the two witnesses, Saqib and Saleem, understandably coming to the conclusion that their evidence had no probative value and did not advance matters.

17.  He then looked to the contents of the applicant’s cautioned statement, finding that it was wholly exculpatory.  He continued:

“Nevertheless, I have given careful consideration as to whether that part of the cautioned statement could have been true, that is to say, that the defendant was at home all the time while the attack was carrying on, and I find that I cannot attach any weight at all to that bare assertion. At the same time, I have the evidence from PW1 who states with certainty that the defendant was his attacker. PW1 was in the witness box, he was cross-examined by counsel and he stood by his story. I find that PW1 is telling the truth.”

18.  The judge concluded:

“As the evidence stands, the story given by the defendant in his cautioned statement is not corroborated by any other evidence. It is true that PW1 had confirmed about the defendant reporting him to the police for a robbery case and that PW1 had also complained to the police about the defendant sending him threatening SMS messages, but those (sic) evidence are not evidence as to whether the defendant was present that night at the attack or not.”

The principal ground of appeal

19.  The applicant, has advanced a number of grounds of appeal.  His principal ground may be summarized as follows, namely, that, in light of the evidence of the bad blood existing between himself and Butt and Butt’s feelings of resentment against him, the judge erred in finding Butt to be a credible witness.

20.  In respect of this ground, while it was clearly open to the judge on the evidence to come to the finding that Butt was a credible witness, what concerns us is the process of evaluation, or more correctly the lack of it, by which he came to that finding.

21.  Reasons for Verdict do not require an exhaustive analysis of every issue, no matter how peripheral, that may arise in a trial.  However, a judge is most certainly required to evaluate the evidence that will determine the outcome of the trial.  As was recently observed by Bokhary PJ in HKSAR v Kevin Egan and Others FACC Nos. 3,4 and 5 of 2009, 28 June 2010, para 2:

“A trial court: notes the common ground; identifies the issues; abstains from making assumptions … makes proper use of its advantage of receiving the testimony of witnesses at first-hand; evaluates the whole of the evidence; makes its findings of fact; and then states them. These are matters of substance, and not of form. Appellate courts intervene for errors of substance, and not for inadequacies of expression. What will be regarded as a flaw in the fact-finding process must depend on all the circumstances. So must whether any such flaw will be regarded as fatal to a finding of fact.”

22.  Later in the same judgment, Litton NPJ (at para 304) observed that to ‘evaluate’ means just that; it means to “measure, to weigh”.  On that basis, as he said –

“When a tribunal in giving judgment recites the testimony of a witness and says “I accept him as a truthful witness”, this is not evaluation: it is a conclusion which might be reached at the end, after weighing the relevant evidence.” 

23.  In the present case, in our judgment, the judge, apart from dealing with matters specific to the circumstances of Butt’s identification of the applicant, fell into the error identified by the Court of Final Appeal, that is, of concluding that Butt was a generally honest and reliable witness after reciting the evidence but failing to articulate in any way how he had weighed that evidence, that is, how he had evaluated it.

24.  As we have said, it was in no way disputed that, at the time when Butt was attacked and when he reported to the police that one of his attackers was the applicant, there existed a high degree of animosity between himself and the applicant.  Butt, who was in Hong Kong as a torture claimant, had not only been ejected from his lodgings by the applicant but had been reported to the police for a significant theft.  More than that, he had complained to the police himself that he was the victim of a threatening text message sent to him by the applicant.  He therefore had compelling reason to harbour ill will against the applicant, sufficient – so it was alleged by the defence – to give false evidence against the applicant.

25.  In the circumstances, the assessment of Butt’s honesty and reliability being entirely determinative of the prosecution, it was, in our view, essential for the judge to evaluate the evidence in the context of the animosity that existed between Butt and the applicant.  Regrettably, the judge in his Reasons for Verdict failed in any way to demonstrate that he had done so.  That failure must render the applicant’s conviction unsafe.

26.  It is true, of course, that the animosity existing between the two men also provided a motive for the applicant to take part in an attack on Butt.  The applicant had complained to the police that Butt had stolen his wallet containing a large sum of cash.  The attack, in which Butt complained that his own wallet had been taken, may therefore have provided the means by which the applicant was able to recover his lost funds.  For the applicant, therefore, the existence of a state of animosity was to some degree a double-edged sword.  But, even if that was the case, bearing in mind that it was for the prosecution to prove its case against the applicant, it only goes to further underscore the need for there to have been a careful evaluation of Butt’s credibility and for that evaluation to have been made in the context of the animosity between the two men.   

Allegations of counsel’s incompetence

27.  The applicant has advanced a number of other grounds of appeal.  We are satisfied that they are of no substance and, in light of the fact that the conviction is in any event to be set aside, need not be traversed.  There is however one ground of appeal which does demand comment and that is the ground which alleges that the applicant’s defence counsel at trial, Mr Andrew Raffell, was guilty of flagrant incompetence.

28.  In this regard, the applicant made a number of allegations.  Among others, he alleged that counsel failed to advise him correctly, failed to obey his instructions, failed to permit him to give evidence when he wished to do so and failed generally to display the kind of aggression which this applicant at least says he expected of his counsel. 

29.  The applicant sought Mr Raffell’s presence in court at the hearing of the application for leave to appeal in order to cross-examine him.  Mr Raffell duly appeared.

30.  The principles governing appeals based on the alleged incompetence of defence counsel at trial are now well-settled.  In Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126, the Court of Final Appeal cited with approval the following words of Gleeson CJ in R v Birks (1990) 48 A Crim R 385:

“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 the 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.”

31.  As the Court of Final Appeal emphasized, allegations of flagrant incompetence must be approached with a sense of realism.  A tactical decision by counsel which, with the benefit of hindsight, ought to have been made differently will not provide grounds for appeal; nor will a mere error of judgment.  But even if significant incompetence on the part of counsel is demonstrated, the critical issue remains whether it has resulted in the appellant receiving less than a fair trial.

32.  Having regard to these principles, we are satisfied that there is no substance whatsoever in the various allegations made by the applicant against Mr Raffell.  We have obtained a full transcript of the hearing.  From a reading of that transcript we have no reason to think that counsel was wanting in the advice he gave or in the manner in which he represented the applicant during the trial.  To the contrary, the transcript reveals that counsel identified the most compelling aspects of the applicant’s defence, cross-examined professionally and effectively in the light thereof and, importantly, made a comprehensive and telling set of submissions to the judge at the conclusion of the hearing.

33.  As to the suggestion that counsel refused to permit the applicant to give evidence even though the applicant was fully desirous of doing so, the transcript reveals that, at the end of the prosecution case, after a 25-minute adjournment to enable counsel to take further instructions from the applicant, the following short statement was made by counsel to the court:

“I have given certain advice to Mr. Syed. My instructing solicitor and I have talked to him. He elects not to exercise his right to give evidence.”

34.  The transcript does not reveal any form of query or objection on the part of the applicant.

35.  In summary, there can be no suggestion that Mr Raffell’s representation of the applicant denied him a fair trial.  The applicant, who is from Pakistan, appears to be a stranger to Hong Kong’s system of criminal justice.  That may explain the waywardness of his allegations.  From a person better acquainted with our system the same allegations would properly be condemned as scurrilous

Conclusion

36.  For the reasons given, we are satisfied that the application for leave to appeal must be granted and, treating the application as the appeal itself, we quash the conviction and set aside the sentence imposed.

37.  We do not believe that it would be in the interests of justice in this case to order a retrial.  We note that the applicant has been in custody for more than eight months pending his appeal. We also take into account the difficulties that will face the prosecution, having to found its case on the testimony of a single witness with a strong motive to exaggerate his evidence.