HKSAR v. LEUNG SHING CHI AND OTHERS

CACC 382/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 382 OF 2012

(ON APPEAL FROM DCCC 280 OF 2012)

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J U D G M E N T

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Hon Stock VP:

1.  Given that the judgment of Line J provides the factual background and addresses all grounds of appeal, in respect of all but one of which the court is in agreement as to the appropriate result, Line J gives the first judgment.

Hon Line J:

2.  This was an application by three applicants for leave to appeal their convictions by Deputy District Judge Ernest Lin on 31 August 2012 for inflicting grievous bodily harm contrary to section 19 of the Offences against the Person Ordinance, Cap 212 and the sentences of 16 months’ imprisonment that followed.

THE BACKGROUND

3.  The applicants were all Correctional Services Department officers serving at the Lai Chi Kok Reception Centre on 15 August 2009.  They had to deal with a remand prisoner named Chen Chu Nan, who had been arrested the day before.  On the morning of 15 August 2009 Chen Chu Nan (the deceased) was examined by a doctor, PW7, who found him perfectly healthy.  Later he was observed to be acting oddly and murmuring to himself.  The CSD officer‑in‑charge thought fit to request another medical examination.  He was not cooperative.  At about 11:00 am, while waiting for his turn to see the doctor, he rushed into the consultation room on the ground floor of Lai Chi Kok Reception Centre, followed by the applicants and then PW1.

4.  PW1 testified that when he entered the room he saw the deceased standing by the doctor's desk, his upper body bent on the same, with the second and third applicant holding down each of his shoulders; that the deceased had kept wriggling his body and shouting that he wanted to go home; that the third applicant repeatedly told the deceased to calm down and then instructed the first and second applicants to force the deceased down onto the floor, but even then the shouting and the struggling continued; that the third applicant then told the deceased not to move anymore otherwise OC foam, pepper spray, would be used.  He said that at this point he left the room and that a few minutes later he saw the three applicants take the deceased up to the hospital ward, the deceased having his face lowered but pepper spray stain visible upon it.

5.  The deceased was then taken to a protected room, in effect a padded cell, for observation.  PW7, a CSD doctor, entered the protected room to examine the deceased at 11:23 am and left it 77 seconds later.  He testified that he found red marks on the deceased’s eyes, both cheeks, anterior chest wall which were consistent with the use of the OC foam.  He said that his purpose in carrying out the examination was to see if the deceased had sustained any serious or obvious injuries and that he detected none.  He gave the deceased an injection to sedate him.  The deceased was monitored by CSD officers checking every fifteen minutes by looking through an observation window and a CCTV camera ran the whole time.

6.  At about 07:48 hours on 16 August 2009, the deceased was found unconscious by CSD officers.  Attempts at resuscitation proved futile.  He was certified dead at 08:48 hours in Princess Margaret Hospital.  The post‑mortem examination identified no less than 117 external bruises and injuries on his person, including reddish bruises to the head, around the eyes, neck, trunk, including shoulders, chest, buttocks and hips, all four of his limbs, and extensive haemorrhaging on the back of the upper right thigh.  On the left side of his scalp there was a deep bruise.  The cause of death was listed in the autopsy report as ‘extensive soft tissue injury’.

7.  The applicants elected not to give evidence themselves.  They called a pathologist, Dr Beh, to give evidence.

8.  The judge made these findings of fact:

“77. From the evidence available I find that the deceased, although emotionally disturbed at the time, was of sound health when he was examined by PW7. I find beyond any doubt that the events leading to the deceased’s rushing into the Consultation Room could not have resulted in any significant injuries found on him.

78. When PW1 left the Consultation Room the deceased was held down by D1 and D2, with D3 overseeing. There could be no doubt that at that point the trio was acting in concert trying to subdue the deceased. They were exercising the power bestowed on them by the law to keep the order in Lai Chi Kok Reception Centre. I am satisfied that up to this point they had not been acting in excess of their power.

79. There is no evidence to make a finding of exactly how long the trio stayed with the deceased inside the consultation room. PW1 estimated it to be several minutes. During this period, OC foam, which only D3 was equipped with, was used on the deceased.

80. There was also no evidence accounting for what had happened during the time the defendants were alone with the deceased in the Consultation Room. Yet after the deceased was detained in the Protected Room for about 21 hours, multiple injuries had been found on his person. From the evidence available there was nothing during his detention that could cause any significant injuries on the deceased.

81. Both experts agree that the injuries found on the deceased were recent ones. They should be visible soon after their infliction. Even Dr Beh, the expert witness for the defence, said that the injuries could have been caused during the time the deceased was with the three defendants in the Consultation Room. On that point I do not accept the evidence of PW7, who said that he could not see the injuries found on the deceased were not visible.

82. From the evidence available I found the only time in which the multiple injuries were inflicted on the deceased was the time the defendants were with the deceased inside the Consultation Room. I was convinced beyond all reasonable doubt that the defendants were responsible for those injuries.

83. While it would be impossible to account for each of the 117 external injuries found on the deceased, I accept PW8’s postulation that at least the injuries to the scalp and thigh were caused by blunt forces. At the time when PW1 left the Consultation Room the deceased had already been overpowered by D1 and D2 who were pinning him down onto the desk and then pressed him down on the floor. At this point D3 had announced his intention to use the OC foam which is designed to inflict discomfort and reduce the will and power to resist. It would seem that no more force was necessary other than continuing to pin him down on the shoulders. Yet after this incident multiple injuries were found on the deceased.

84. They can only be the result of what was done by the CSD officers to the deceased. The extent and the number of injuries were such that I am left with no doubt at all that the defendant had used unnecessary and grossly excessive force in order to subdue him. If the three defendants’ sole intention was to restrain the deceased in order to calm him down and bring him up for detention in the Protected Room, they could have continued restraining him until the OC foam took its effect.

85. Although it is not clear whether the OC foam was administered before or after the aforesaid injuries were inflicted, in both cases the infliction of blunt forces on the head and the thigh was unnecessary, excessive and unjustified. In so doing, the CSD officers were acting outside of their lawful power.

86. There is no evidence for me to find which of the defendants was responsible for which particular injury found on the deceased.  Yet since the three defendants were acting in concert both before and after the attack, I found that all the defendants are jointly liable for the infliction of the aforesaid injuries.”

ALLEGED INCOMPETENCE OF COUNSEL

9.  The amended perfected grounds of appeal advanced five grounds.  The first ground alleged that the applicants were incompetently defended by counsel.  The complaint engaged two areas: firstly a failure to give adequate advice about whether or not to testify, which was said to have been based, in part, on counsel’s misunderstanding of the concept of joint enterprise.  Secondly, that counsel failed to put before the court evidence which tended to establish that the deceased was an alcoholic.

10.  In order to determine the issue of alleged incompetence we heard the testimony of the second applicant and defence counsel at the trial. As to the whether or not the advice on whether to testify was adequate, there is a conflict of evidence.  The extent of the factual dispute is summarized in the applicants’ supplemental written submissions at paragraphs 8‑17.  In essence the applicants’ case was that defence counsel “maintained from the first time he met with the applicants until the prosecution case closed was that there was no need for the applicants to give evidence”. Defence counsel denies that was the case.

11.  Defence counsel was in a position to produce contemporaneously made conference notes.  They were contemporaneous in the sense that they came into existence within two weeks of the conclusion of the proceedings below and were based on notes made at the time of each conference. They were created before complaint was made of his conduct.  His notes recorded that, in conference on 20 July 2012, “All defendants indicated that they would prefer not to testify”; at the conference on 8 August 2012 “Discussed with each defendant concerning giving evidence in court.  Advised defendants of their rights regarding giving evidence including advantages and disadvantages”; and of the conference on 10 August 2012 “Further discussed with defendants regarding testifying in court.  All defendants indicated that they were reluctant to testify.  All defendants, however, advised to prepare to testify.  Final decision would be made after the conclusion of the prosecution case”.

12.  Those notes, especially the last one, are inconsistent with what the applicants claim.  I cannot think they could have negligently recorded what they did if matters had been truly as described by the applicants.  Mistake cannot explain the conflict. I cannot ignore the temptation the applicants face to re‑write history in a way that will help them.  I reject the applicants’ claims in this regard.  I accept the version of defence counsel.

13.  It was further part of the applicants’ case that the advice not to give evidence was based on being told by defence counsel that there was no need to do so as the prosecution could not prove who had done what in the consultation room.  It was said that the applicants would have insisted on giving evidence had they had joint enterprise properly explained to them. It was said that defence counsel did not appreciate the concept of joint enterprise.  It was argued that his submissions in closing to the judge demonstrated this to be so.

14.  These claims were, of course, also vulnerable to the consideration that the applicants’ case could not live with the conference notes.  Further, I would be slow to believe that counsel could be ignorant of the law of joint enterprise.  Counsel had an established criminal practice.  I judge that the experience gained from such a practice would be very unlikely to have left him ignorant of one of the basic concepts of the criminal law, encountered so often at all levels in our courts.

15.  Defence counsel gave evidence before us.  He said that it was never his understanding that the prosecution had to prove any particular applicant struck a blow to secure a conviction.  He explained that the “who did what” line in his submissions embraced his claim that there was insufficient evidence to infer any individual did anything that could be regarded as participation.  In other words it covered secondary liability by way of helping in a joint enterprise or aiding and abetting in some way.  His submission was that could not be inferred.  At the conclusion of his closing address the judge had asked him about joint enterprise and he responded by saying the same thing then.

16.  Further, I am slow to accept that in a case like this any applicant made his decision on the basis of what he understood of joint enterprise.  Four people knew what happened in the consultation room. One was dead and the three applicants elected not to tell of it at their trial. The decision was a fundamental one.  It engaged the burning question of could any applicant explain the extent of the injuries.  We see from paragraph 13 of defence counsel’s second affirmation that at the conference on 5 July 2012, he conducted an exercise of going through with the applicants what they could testify, testing it.  The applicants do not dispute this.  He relates that they did not perform well. They did dispute that.  He condescended to damaging detail.  He noted that no applicant could explain the injuries.  I find that description of events easy to countenance as it was the fact that their instructions to him could be seen to lack a reasonable explanation for the nature and extent of the injuries.  It is thus that I do not find it difficult to accept that the applicants indicated that they would prefer not to testify if possible.

17.  Finally in this regard, I am wary of taking what counsel says on his feet in a closing address as an indication that he did not understand joint enterprise and advised the applicants in a way that demonstrated that to be so.  It is right that the way he expressed himself invited the criticism made and that it was only in answer to the judge that he made clear what he meant.  The fact was that he eventually did so and it showed a proper understanding of the law. It is important to remember that one looks at the closing address, not to judge its competence as a persuasive piece of advocacy to a professional judge, but to see if it truly reveals an ignorance of the law of secondary criminal liability such that one infers that counsel advised the applicants erroneously.

18.  In fact, defence counsel at the opening of his speech went to the case of Robinson, which the prosecutor had cited in closing in support of guilt without proof of a direct blow.  He sought to distinguish it on the facts.  He clearly knew participation, other than by directly inflicting an injury, was a live issue.  I perceive that the burden of the defence speech was to suggest doubt as to whether there was unlawful violence and if so when and where any unlawful injuries were inflicted and to claim insufficient evidence for the judge to be sure that any applicant inflicted such an injury himself or did anything to join in a joint enterprise to do so or anything to indicate aiding and abetting.  In those circumstances I do not find ground to infer that defence counsel did not know sufficient of joint enterprise and so advised on an erroneous basis.

19.  It was the case that defence counsel did advise the applicants that it was his view that they would be better off not giving evidence.  He placed such advice in a context of leaving the decision to them and in a context of him explaining that his view was based on his perception that they would not better their case, which in turn was based on his assessment of their performance in the mock cross‑examination conducted in his chambers.  He denied it was based on a view that the prosecution had to prove any applicant struck a blow to cause an injury as was contended by the second applicant who gave evidence before us.

20.  The burden lay on the applicants to establish flagrant incompetence of counsel.  Bearing in mind the considerations I have just rehearsed, I judge that they have failed to establish the factual basis for which they contended.  I accept the evidence of counsel and reject the evidence of the second applicant in this regard.

21.  However, the resolution of the factual conflict did not put the matter finally to rest as it was suggested to defence counsel by Mr Grossman SC for the applicants that he could never have hoped to secure an acquittal if he did not call evidence from one or more of the applicants.  The question thus arose whether defence counsel was flagrantly negligent on his own story.

22.  In response to the attack defence counsel repeated that it was his view that, based on the mock cross‑examination, he considered that more harm than good would come of calling any applicant and that he had points to make to create a doubt.

23.  The force of what defence counsel was saying came to light when Mr Grossman SC moved to his next ground where he addressed us on the basis that on the evidence the judge could not have safely inferred the use of unlawful force by the three applicants.  They were not unreasonable submissions.  They covered much the same ground as defence counsel had in his closing speech.  It was demonstrated to me that the course taken by defence counsel was one reasonably open to him.  Thus his conduct could never be characterised as flagrantly incompetent in this regard.

24.  I turn to the claim that defence counsel was incompetent because he failed to adduce evidence to suggest that the deceased was an alcoholic. The relevance of adducing such evidence was to establish a reasonable possibility that the deceased’s alcoholism had resulted in him having a blood disorder which had the effect of causing him to bleed more than would otherwise be the case.  If he had the disorder, then the appearance of the bruises on the body of the deceased would look the worse. They would look more sinister, was the way it was put.  That would then stop the inference running that excessive force had been used.  The defence pathologist, Dr Beh, had testified to this effect.

25.  The judge found that the opinion of Dr Beh lacked any basis of established fact in that there was no admissible evidence that the deceased was an alcoholic.  The claim against defence counsel was that he could have provided the missing evidence.

26.  There is no reason to relate what it is that the applicants say defence counsel should have done in this regard.  That is because the issue is a dead one.  It was killed as an issue by the finding of the judge related at paragraph 76 of the reasons for verdict:

“I should also add that Dr Ng, PW8, in his testimony ruled out the possibility of bleeding disorder: if the deceased had suffered from such a condition, it would be chronic and there should be healed injury on the body. There were none. I therefore found that the existence of a bleeding disorder cannot be sustained for want of evidence. Accordingly I prefer the opinion of Dr Ng, PW8, on the cause of injuries.”

27.  Thus, even if the evidential basis of alcoholism had been established, it would not have helped the applicants.  The alcoholism may have created a risk of the alleged blood disorder, but the evidence from the pathologist ruled out its existence.

28.  The pathologist, Dr Ng, was not challenged on this issue.  Dr Beh had been in court to hear his testimony. Dr Beh did not suggest in his evidence that Dr Ng’s opinion in this regard was wrong.

29.  The unchallenged evidence on the matter amply supports the finding the judge made.  The finding puts an end to the argument of incompetence on the second basis.  It is not to be thought that my failure to deal with the allegations made against defence counsel in this regard indicates any acceptance of them as being justified.  It is simply not necessary to deal with them.

30.  One discrete matter which I will mention, however, arises in relation to a claim that the failure of defence counsel to put before the court evidence from a police station sergeant and a police constable whose witness statements disclosed that they had each examined the body of the deceased between 09:20 hours and 09:45 hours on 16 August 2009 and that they only reported eight bruises; and that the large bruise on the upper right side of the thigh of the deceased was measured as being 16 cm x 14 cm, whereas the pathologist found many more bruises and measured the bruising on the thigh at 18 cm x 18 cm.  I do so as it was said that this evidence could have cast doubt on the reliability of Dr Ng who had said that most of the bruises should have been apparent externally very soon after the time they were inflicted.  Casting doubt on the reliability of Dr Ng is something separate from establishing a basis for alcoholism.  It seemed to be suggested that defence counsel had been flagrantly incompetent in this regard.

31.  I am not at all surprised that defence counsel did not seek to take on Dr Ng on the suggested basis.  His own expert pathologist agreed about the time taken for bruises to emerge.  What was he to do?  The argument for the applicants states Dr Ng’s “opinion may have been shown to be wrong by these two police officers, who of course had no motive whatsoever to protect the three applicants.  If his opinion about the appearance of the bruises is wrong the other opinions that he gave such as the causes of the bruises could also be wrong”.  He had given the cause of the bruises as blunt force.

32.  There could never have been any sensible dispute as to the bruises found by Dr Ng at the autopsy.  They were photographed.  The two officers examined the deceased after he was dead. Dr Beh had testified that any bruising that occurred after the heart stopped would be minimal.  The idea of attacking the reliability of the pathologist on this basis was thus not to be sensibly entertained.  The idea of suggesting defence counsel was thereby flagrantly incompetent is entirely unmeritorious.

33.  Let me take one point before leaving this topic.  If one looks at the witness statement of the sergeant it will be seen that he recorded as one item of bruising “bruising on left lower leg”. Contrast this with the autopsy report from Dr Ng where under the heading of "left lower limb" he itemises 15 bruises, recording 22 actual bruises.  Like was not compared with like. 

34.  Mr Grossman SC asked defence counsel why he challenged the admissibility of the witness statements that each applicant had made to the police since they were exculpatory and it may have helped the defence for them to be before the court.  The answer that he received was that at the time he made the challenge, those witness statements were the only evidence the prosecution had served as part of its case to show that it was the applicants who dealt with the deceased in the consultation room.  He agreed that the witness statement of the CSD officer who became PW1 had been served as unused material.  It was not explored with him what he knew, if anything, of the reason why the prosecution did not rely on PW1 from the outset.

35.  It was not a ground of appeal, nor was it mentioned in the applicants’ written submissions, that defence counsel had been flagrantly incompetent to have excluded these witness statements.  The suggestion was, however, made in argument to us.  Not enough was known from the questioning of defence counsel for a sensible view to be formed of his conduct in this regard.  What can be said, is that once the prosecution changed its case to include PW1 as a witness, he should have responded by putting in evidence the witness statements.  Since this was never put to defence counsel we do not know what he would have said.

36.  Mr Tam, for the respondents, says that, whatever may have been the motive of defence counsel, there was sense in his not doing so as it would have let in to evidence the damning comments by Dr Ng concerning whether the accounts given in the witness statements could account for the extent of the bruising which he found.  Following the exclusion of the witness statements, defence counsel had the prosecution remove from Dr Ng’s written report any references to the accounts given in those witness statements.  It is said that he thereby engineered a considerable advantage and that the cost of losing the exculpatory material was worth it, as the judge may easily have dismissed the accounts as self serving and as failing to explain the extent of the injuries.

37.  I agree with Mr Tam.  There is no need to consider what was in defence counsel’s mind as on an objective view the benefit of the course that he took is apparent.

38.  Accordingly, I reject ground one.  I am satisfied that no negligence of counsel denied any applicant the chance of an acquittal that was fairly open to him and that no negligence of counsel caused any applicant to have less than a fair trial.

The Judge’s alleged errors concerning Dr Wong and Dr Ng

39.  The second ground of appeal alleged that the judge:

(1) erred in rejecting the evidence of the prosecution’s own witness Dr Wong, on the basis that his examination of the deceased was insufficiently thorough when there was no forensic evidence to support such a finding;

(2) erred in convicting the applicants on the basis of the evidence of the senior forensic pathologist Dr Ng, whose evidence went no further than finding that “the possibility that the injuries (found on the deceased) were sustained during a vigorous struggle could not be entirely excluded”; and

(3) erred in accepting evidence of Dr Ng whose evidence was not reliable and/or such evidence was insufficient to prove the charge beyond reasonable doubt.

40.  The judge was not impressed by Dr Wong:

“I was not impressed by PW7 as a witness. He was evasive and defensive in answering questions by the prosecution and the defence. Even accepting that he had a heavy workload, for a doctor attached to the hospital of the Correctional Services Department, his primary concern should be the well‑being of the inmates. I find it incredible that PW7 could have no recollection of how many inmates died on his watch, albeit by August 2009 he was attached to Lai Chi Kok for only 17 months. He was either less than honest or simply being callous. The cursory manner in which he carried out the examination of the deceased in the Protected Room was disgraceful to say the least. The indifferent attitude could also be reflected from the CCTV footage: not a moment during the 77 seconds’ examination when he was inside the Detention Room did he approach the deceased to carry out a closer inspection. The CSD officer was always standing in between, directing the doctor’s attention with a torch. I found the part of his observation of the deceased after the latter was taken up to the Protected Room very doubtful.”

41.  We have watched the CCTV footage of the doctor’s examination of the deceased.  It is clear to me that the nature of the examination was not one designed to produce a detailed medical report.  The doctor’s attendance was required following the use of pepper spray.  As he testified, his purpose was to make sure that there were no serious injuries.  In those circumstances I would not agree that his conduct was disgraceful.  It is reasonable to think that the type of injury he was looking for would have been noticeable in a 77 second survey.  It is to be remembered that the large bruise on the thigh was not visible at this time.  If it was not his intention to look for smaller soft tissue injuries, as appears to be the case, then his failure to notice any that may then have existed becomes the more explicable.

42.  Even if the judge had been wrong in his assessment of Dr Wong, what was the consequence?  It could only have been argued that if the evidence of the 77 seconds’ examination precluded injuries indicating a beating having occurred, it must follow that any injuries indicating a beating must have been inflicted after the deceased left the consultation room.  However, there was simply no sensible scope for that to have happened.  The evidence included images from CCTV footage of the deceased being escorted to the padded cell as well as the CCTV footage of the deceased whilst he was in the padded cell.  There was no room for any sensible suggestion that the extensive bruising found upon the deceased had been caused by his own actions in the padded cell.  The pathologists reviewed the CCTV footage, much of which was played in court.  The judge reviewed it all and said “Having reviewed the whole footage I cannot detect any instance in which the deceased tried to mutilate himself.  Given that the walls of the Protected Room are all padded and it is designed to prevent the inmate detained therein from hurting himself, I found his movements during his confinement in the Protected Room did not cause any injuries on him.”

43.  Thus whatever view is taken of Dr Wong’s performance, it must be the case that the bruises found on the deceased had been inflicted by the time he examined him in the consultation room.

44.  It is correct that Dr Ng testified, and the judge accepted, “that the number and distribution of the bruises were suggestive of a violent assault or vigorous struggle”.  That commonsensical observation produced this argument before us: “if a ‘vigorous struggle’ was also a possible cause of the bruises, it could not be proved beyond reasonable doubt that the applicants had assaulted” the deceased.

45.  The idea that such an observation from a pathologist as to what sort of activity could result in the bruising can translate, without more, into an indication of what was lawful or unlawful in that sort of activity is woefully simplistic.

46.  The same goes for what followed: “when the expert himself could not completely rule out the possibility of a vigorous struggle between law enforcing officers and inmates, it was not open to the judge to find that the bruises must, beyond reasonable doubt, have been caused by an assault”.  It was never the job of the pathologist to infer whether the extent and nature of the injuries, under the circumstances in which they came about, supported an inference of excessive and therefore unlawful force.  It was always the job of the judge to do that very thing.

47.  The applicants’ written submissions finally turned to addressing the correct question, which was whether it was possible for the judge to find that the force used was excessive.  It was argued that he should not have found that it was, especially when there was no evidence as to what the deceased had done, or may have done, in resisting the applicants after PW1 had left.  I will return to this in my discussion of ground three. Before leaving ground two, I deal with the claim that the judge erred in accepting the evidence of Dr Ng whose evidence was not reliable and/or such evidence was insufficient to prove the charge beyond reasonable doubt.

48.  I do so simply by saying that all that really mattered in the evidence of Dr Ng was his opinion that the bruising was caused in a period when the deceased was in the consultation room and that the bruising he found was as set out in his autopsy report.  These matters were not put in issue.  That followed because the defence pathologist agreed with the timeframe and because the bruises were photographed before being recorded by an experienced pathologist, whose duty it was to make an accurate record of them.

Injuries from lawful force or resuscitation

49.  Ground three alleged that the judge erred in failing to find on the evidence that many of the injuries said to be found on the deceased could well have been incurred when the applicants were forced to subdue the prisoner inside a consultation room, or that some of the injuries could have been inflicted during the first aid resuscitation.

50.  Dealing with the resuscitation point first, I set out the relevant findings of the judge:

“47. At 07:40 hours PW4 was informed that the deceased had collapsed and went immediately to the Protected Room. He saw two CSD officers performing cardiopulmonary resuscitation (‘CPR’) on the deceased. The cardio‑defibrillator PW4 set up on the deceased did not detect any heart beat. He took over the CPR and then tried to put on an intravenous drip. He gave the deceased an injection of adrenaline and atropine before the deceased was taken to the Princess Margaret Hospital.

48. Mr Ip Chi‑man, PW3, was the paramedic working for the Fire Services Department. When he arrived at Lai Chi Kok Reception Centre, the deceased had already been moved to the corridor and other CSD officers were carrying out CPR on him. He took over the resuscitation procedure and noticed that there were many bruises on the deceased’s trunk and limbs. At the time the deceased was neither breathing nor had any pulse.

49. At 08:16 the deceased was examined by Dr Wong Cheung‑lu, resident of Princess Margaret Hospital (PW5). He too detected no vital signs. In accordance with the standard resuscitation protocol, the deceased was given adrenaline injection, his air passage was kept open by first injecting a muscle relaxant before plying open his mouth by a laryngeal blade and inserting a tube into the deceased’s throat. At the time PW5 noticed there were bruises on the deceased’s eyes, back and sides. There were yellowish discharges close to the eyelids. PW5 maintained that none of the resuscitation procedure carried out would cause the injuries shown on P8 (6, 7 and 13). The deceased did not respond to the resuscitation and was certified dead at 08:48 hours on 16 August 2009 (see P 10).

50. The evidence of PWs 3 to 5 was not challenged.  Having considered their evidence, I found the resuscitation procedure had been carried out by the book and could not have caused any significant external injury to the deceased.”

51.  The judge dealt with the fracture of the ribs when summing up the expert evidence:

“71. Both expert witnesses struck me as fair, impartial and objective. I defer to their expertise on these matters. When read closely, both witnesses were not that different in their opinions. The injuries found on the deceased were recent and there were no signs to suggest that they were self-inflicted. Except for the fractured ribs the injuries could not have been caused by the attempts of resuscitation. Both could not identify exactly the manner in which any of the injuries were inflicted, nor could one correlate the degree of force used to cause any of the injuries found. The absence of abrasion means that the injury could have been caused by a blunt force, although both experts could not give a timeframe in which the injuries must have been visible. Both agreed that it should be very soon after their infliction.”

52.  It was clear that he proceeded on the basis the fracture of the ribs may have been caused by the CPR and that he did not take it into account when he drew the inference that excessive and unlawful force had been used.

The inference

53.  Thus I come to the question of whether there was sufficient evidence to infer unlawful force, especially in view of the fact that the officers were dealing with what was obviously a difficult man in circumstances were they were fully entitled to use reasonable force to restrain and control him.  It goes without saying that this court, like any criminal court at any level, is conscious that CSD officers do a difficult job and that judging the force necessary to restrain violent inmates is not easy. The judge was demonstrably conscious of such considerations.

54.  The question is crucial yet the answer is short.  The judge gave his answer in his findings of fact set out at the commencement of this judgment.  Having found, unassailably, that the bruises were inflicted in the consultation room and that the deceased was held to the floor by two officers in circumstances where PW1 felt it safe to leave the scene, the deceased outnumbered three to one, and with pepper spray available, he judged that the extent of the injuries was such that the only reasonable inference was that excessive, and so unlawful, force had been used.

55.  In my judgment he was entitled to come to that view.  The photographs show injuries that are consistent with an extensive beating.  The restraint of difficult prisoners by both police and CSD officers is sadly a not unfamiliar feature of cases in our criminal courts.  I am of the view that the judge was in a position to infer that the extensive injuries inflicted were inconsistent with lawful restraint.  It has to be remembered that no explanation was offered in evidence by the applicants.  The state of the evidence was such that the judge could sensibly take the view that the circumstances of three to one, armed with pepper spray which was used, with the prisoner held already to the floor, demonstrated for sure the use of unlawful force in the absence of some explanation that dealt with how such extensive injuries came about if only reasonable force had been used.

56.  I reject ground three.

Fresh evidence

57.  I now move to applications made by both the applicants and the respondent to present fresh evidence to this court.  The applications came about as after the trial of this matter an inquest was held into the death.  An open verdict was recorded.  The three applicants gave evidence, as did the pathologists, as well as other witnesses who were not called at the trial.

58.  That the trial took place before the inquest was both right and proper and in accordance with the usual practice.  What is most unusual is that the applicants, having elected not to give evidence at their trial, now seek to put before us their testimony in the coroner’s court. They also seek to adduce evidence from other witnesses that dealt with the issues relating to the question of alcoholism and an associated bleeding disorder.

59.  Save in relation to the proposed fresh evidence from Dr Ng, as to which we reserved our decision, we rejected the application to adduce the inquest evidence.

60.  There are two possible bases for permitting fresh evidence: first, under section 83V(2) of the Criminal Procedure Ordinance, Cap 221, if the evidence would afford a basis for allowing the appeal and there is good reason for not having reduced the evidence at trial; and second, a discretion under section 83V(1) if the court considers reception of the evidence necessary or expedient in the interests of justice.

61.  Neither basis was established. The reason for not adducing the testimony of the applicants at trial was the suggested incompetence of counsel and on the facts of this case if that ground succeeded, the appeal was destined to succeed, unless we were satisfied that the new evidence would have made no difference to the result. But that apart, the presentation of almost 2300 pages of transcript of other proceedings designed to ascertain the cause of death was hardly an appropriate manner in which to present fresh evidence under the relevant statutory provisions. There was no attempt in any affidavit or affirmation to crystallise or précis what the applicants wished to say about the events in the consultation room and it was, further, inappropriate to ask this Court to assess the weight of evidence in other proceedings. Section 83V empowers the court to order any witness whose fresh evidence is sought to be relied upon to attend for examination and the whole point of that is that the court may itself, having heard examination in chief and cross-examination, assess whether the evidence it is likely to have made any difference to the outcome. Furthermore, the effect of the application was to ask the court to cherry-pick from those lengthy proceedings parts favourable to the applicants.

62.  It was the case that in the written submissions of the applicants there are repeated references to what was said at the inquest.  For instance, comment is made concerning what the pathologists said at the inquest.  Such matters may thus not fall directly within the scope of material relating to the alleged bleeding disorder. Nonetheless, we refused the application to receive the material before us as fresh evidence, for the same reason and because the material provided no ground for allowing the appeal.

63.  The respondent sought to adduce evidence that was taken at the inquest in response to the application for fresh evidence by the applicants.  In effect, if this court allowed fresh evidence from the inquest favourable to the applicants, then they wanted those parts of the same material which favoured them.  Their application fell away with the rejection of the applicants’ motion.

64.  We were asked by Mr Grossman to receive some further evidence of what Dr Ng said at the inquest, notwithstanding that he actually gave evidence at the trial and could have then dealt with the subject matter. We did not rule at the hearing in this regard.

65.  The subject concerned his evidence that his findings at the autopsy were such that there was no significant bleeding disorder and that he could not rule out a mild bleeding disorder without having done some further laboratory tests, which were undertaken (emphasis supplied). He had not said this at trial. He had just said that there was no evidence of a bleeding disorder.

66.  No further questions were asked at the inquest about what he meant by “significant”, especially in terms of how a less than significant disorder would translate into giving bruises a more sinister appearance.

67.  Thus this evidence can, at its highest, only pose a possibility of a mild or insignificant blood disorder in the deceased. Without further explanation I can do no more than surmise that a less than a significant disorder would give rise only to a less than significant increase in bleeding.  That being the state of the evidence I cannot see that it would have any impact on the issues or the safety of the convictions.  Accordingly I am not persuaded to exercise the discretion to admit this evidence in the interests of justice.

68.  Mr Grossman SC also sought to adduce as fresh evidence three further passages from the inquest transcript of Dr Ng’s testimony.  I do not consider that the interests of justice justify it.  The passages dealt with matters sufficiently covered at trial.  Nothing in them would have had an impact on the disposal of this application.

69.  Finally, let no one think that it would ever be a sensible course to seek to determine the issues that arose in a criminal trial by reference to evidence taken later at an inquest concerning the same subject matter.  If applicants wish to defend themselves by giving evidence, the time to do so is at their trial in proceedings specifically designed to determine their guilt.  They must not think that by electing to speak at a later inquest, proceedings not designed to determine their guilt, that they will gain a second opportunity to have their say concerning their guilt.

70.  I turn to the sentences of 16 months’ imprisonment.  The maximum sentence for an offence contrary to section 19 of the Offences against the Person Ordinance Cap 212 is three years.  The judge took a starting point of two years and reduced that by one third to reflect the mitigating circumstances that he indentified.

71.  As can be seen from his reasons for sentences the judge was well aware of the implications of his sentences upon men of good character who had made positive contributions to society.  However, he rightly said that they had to be balanced against the interests of the victim and society.

72.  It was argued that the sentences were excessive “as it was impossible to tell which bruises and contusions on the deceased were inflicted during the legitimate attempts to control and subdue him and which were inflicted illegally”.

73.  Whilst, of course, it was right to say that some bruises may have been occasioned in lawful restraint, it is also right to say that one can look at the extent of the bruising and conclude that the deceased received the bulk of them in excess of such restraint.  After all, that was the basis of the convictions.

74.  I do not agree that the sentences were excessive.  Indeed, it can be said that the judge was merciful in the discount he gave for the mitigating factors.  I find no ground to interfere with the sentences.

Hon Macrae JA:

75.  I have read the judgments of Stock VP and Line J and agree with the latter’s analysis and conclusion in relation to Grounds 2 and 3 in this appeal.  I am also in agreement with Line J’s view so far as the second part of Ground 1 is concerned, namely the complaint that the failure by defence counsel to adduce evidence either to support the assumptions of the defence witness, Dr Beh Swan‑lip (DW1), or to undermine the evidence of the prosecution witness, Dr Ng Chung Ki (PW8), amounted to flagrant incompetence on his part.  Had the disposal of this appeal rested upon a rejection of these grounds alone, I would have rejected the application for leave to appeal against conviction. I would also have refused the applications for leave to appeal against sentence.

76.  However, where I must reluctantly and respectfully part company with the reasoning and conclusion of both Stock VP and Line J is in their rejection of the first part of Ground 1, namely that defence counsel’s advice to the applicants that they should not give evidence, inasmuch as such advice was based on counsel’s misunderstanding of the concept of joint enterprise, has meant that they were not competently defended.  Although not specifically pleaded, it is clear that the thrust of Mr Grossman’s argument is that by virtue of this advice which, in the context of the facts and issues in the case, amounted to flagrant incompetence, the applicants did not get a fair trial.

77.  Defence counsel at trial has candidly accepted before us that he did indeed advise the applicants not to give evidence at the close of the prosecution case.  That much, therefore, is not the subject of dispute.  What is disputed, and I shall deal with this matter in detail in due course, are the reasons for this advice.  However, to understand the conflicting arguments as to the competence of such advice, in the context of this particular case, it is necessary to set out certain incontrovertible facts, which were either admitted or unchallenged at trial.

78.  Chen Chu‑nam (Chen), a 33‑year old Taiwanese male, arrived in Hong Kong on 12 August 2009.  He was arrested on the same day for an offence of obtaining property by deception.  He appeared before a magistrate on 14 August 2009 and was remanded in custody at Lai Chi Kok Reception Centre until 11 September 2009.

79.  Upon his admission to Lai Chi Kok Reception Centre, Chen said that he was neither a drug dependant nor suffering from any serious illness, nor did he harbour any intention of harming himself.

80.  At about 9:30 am on 15 August 2009, Chen was physically examined in the hospital at Lai Chi Kok Reception Centre by Dr Wong Chi‑ho (PW7) and found to be in stable condition with good past health.  It was also recorded, among other things, that Chen made no allegations of having been assaulted.

81.  Shortly after this examination, and on his return to the reception office of Lai Chi Kok Reception Centre, Chen was observed to be agitated and behaving strangely.  Arrangements were, therefore, made to escort him back to the hospital for a second examination.  From the time of the initial medical examination to about 10:15 am, Chen was at all times in the custody and under the observation of Correctional Services Department Officer Kwong Kwok‑bun (PW2), while waiting to hear if a doctor was available at the hospital.  When, in due course, PW2 was notified that a doctor had become available, PW2 took Chen back to the hospital where, at about 10:15 am, he handed him over to Correctional Services Department Officer Koon Kin‑yip (PW1).  PW1 was on guard maintaining order in the hospital lobby while inmates were arranged to see a doctor.  The other officers on duty in the hospital lobby included the three applicants.

82.  Chen remained in the hospital lobby awaiting his turn to see the doctor.  There were about 30 other inmates also waiting to see the doctor and PW2 accepted that his eyes were not permanently trained on Chen throughout this time.  He did notice, however, that Chen was “grinning foolishly” and muttering to himself, as a result of which some of the other inmates were trying to distance themselves from him.

83.  At around 11:00 am, PW1 heard a commotion coming from the consultation room.  Evidently, Chen had run into the consultation room pursued by the three applicants.  When he entered the room to render assistance, he saw Chen spread face down across a desk and struggling, with the first and second applicants trying to control him.  He heard the third applicant warn Chen that if he did not desist, pepper spray would be used to subdue him.  PW2 then left the room to control the remaining inmates who, judging from their reactions caught by the closed circuit television images of the lobby area outside the consultation room, had obviously been alerted to this disturbance.

84.  All of the above facts were, as I have said, either admitted or undisputed.  As to what happened inside the consultation room in the minutes that followed PW2’s withdrawal, the judge remarked:

“There is no direct evidence of what happened in the consultation room where the deceased was alone with the three (applicants). What had happened could only be inferred from the factual evidence and from that of the forensic experts.”

85.  It was also undisputed, and indeed an admitted fact, that pepper spray was used by the third applicant on Chen.  As required by prison regulations, a formal report of its discharge was submitted on the same day.  At about 11:09 am, Chen was escorted to a protected padded cell on the first floor of the hospital.  Nine minutes later, at 11:18 am, he was visited by PW7 who, with the aid of a torch, conducted a visual inspection of Chen.  Although he observed red marks on Chen’s eyes, cheeks and anterior chest wall, he did not detect any serious injuries or swelling.  Chen then remained in the protected cell under observation by prison officers at regular 15 minute intervals until 7:30 am on 16 August 2009, when he was found lying unconscious on the floor of the room.  A closed circuit television also continually monitored and recorded his movements in the cell.  The recordings from the closed circuit television were produced at trial.

86.  It was also formally admitted that throughout this period, prison officers observed Chen either sitting or lying on the floor, or walking around the cell.  He intermittently used the right side of his body to bang against the padded cell walls or door, muttering and shouting.  However, nothing else unusual was observed.

87.  During the night, Chen was observed by closed circuit television to be restless.  He occasionally sat or crawled on the floor, attempted to open the door with his hands or legs, wandered around the room and played with his clothing and fingers.  At one stage he took off his underpants.  The judge, having observed the entire closed circuit television footage, said he was unable “to detect any instance in which (Chen) tried to mutilate himself”.  Save for a few minutes when he had covered himself with a blanket inside the protected cell, his body was in full view of the cameras at all times.

88.  When, on the morning of 16 August, Chen was found lying unconscious, first‑aid was initially applied before he was transferred from Lai Chi Kok Reception Centre at 8:08 am to Princess Margaret Hospital for immediate treatment. Unfortunately, he was certified dead at 8:48 am the same day.

89.  The pathologist (PW8) conducted an autopsy on the deceased on 18 August 2009.  Again, it was not challenged that a total of 117 bruises were identified on various parts of the deceased’s body, including his head, neck, chest, back, buttocks, groin and both upper and lower limbs.

90.  Although there was a faint suggestion that Chen might have inflicted injuries on himself while covered by a blanket, none of the above details as to his known movements were, nor could they sensibly be, disputed.  The only other time when Chen might have been out of the immediate sight of a prison officer was while he was waiting to see a doctor in the hospital lobby outside the consultation room.  However, there was no evidence from PW1 or anyone else on duty that any incident had taken place between the prisoners which might have accounted for any injury being caused to Chen at all. Furthermore, any suggestion that the bruises might have been caused post‑mortem was firmly discounted by PW8; so firmly, in fact, that counsel did not renew the suggestion in his closing address.

91.  Given these undisputed and undeniable facts, there was only one time on the evidence during which such extensive injuries could realistically have been caused to Chen, and that was while he was together with the three applicants in the consultation room between about 11:00 am and 11:09 am on 15 August 2009.  Any other suggested occasion during which these injuries might have been occasioned was either without any sensible evidential foundation or it was simply fanciful.  If comfort was drawn from the fact that PW7 had observed no serious injuries or swelling during his 77 second examination of Chen in the protected cell with the aid of a torch at 11:18 am, the pathologist (PW8) testified that while the more superficial soft tissue injuries should have manifested bruises within a few minutes of the trauma which caused them, the more serious areas of bruising to the deep tissues such as the right buttock and thigh would not have been apparent for several hours.

92.  It is against that background and evidence, that the question of defence counsel’s advice to his clients not to give evidence must be viewed.  On this issue there is a dispute as to why he gave the advice he did.  The applicants aver that defence counsel advised them that, without their evidence, no one would be able to say what went on in the consultation room; and, in particular, the prosecution would be unable to cross‑examine the applicants as to who did what to Chen inside the room.  Furthermore, the applicants maintain that no mention was ever made in conference of the concept of joint enterprise.

93.  Defence counsel accepts that his view at the time was that, absent the applicants’ evidence, the prosecution could not prove to the required standard that Chen’s injuries (over and above those necessary to subdue Chen) were caused in the consultation room.  Even if they were, there was no evidence to establish that a particular applicant had done anything other than be present during the incident.  However, he was also concerned that their accounts in conference were at times vague and inconsistent, which led him to think that by giving evidence they could only make their position worse.  Moreover, each of the applicants had expressed his reluctance to give evidence.

94.  On this last matter there is also a dispute between the parties.  The applicants contend that they were all along willing and prepared to give evidence but were advised against it by their counsel.  On the other hand, defence counsel was able to draw support from his contemporaneous notes of nine conferences he had held with the applicants prior to trial, which not only detail the occasions when he canvassed the advantages and disadvantages of giving evidence with them but record his own misgivings about the quality of their evidence and the applicants’ reluctance to give that evidence.

95.  I have not found it necessary to resolve this particular dispute.  The respective positions of the parties are not necessarily irreconcilable: it is possible, for example, that the applicants believed they would make better witnesses than counsel thought they would. Moreover, one can well imagine that many defendants are reluctant to testify: that does not mean that there are not cases where they do so because they are advised that realistically they have no alternative, if they are to deter the fact‑finder from drawing what are otherwise obvious and inescapable inferences.  It is noteworthy, and defence counsel accepts, although he has said he was surprised by the comment, that at a conference at Siu Lam prison shortly after conviction and sentence, the second applicant told him that he had all along wished to testify in court[1]. However, whatever the position as to the applicants’ reluctance to give evidence, it is clear from defence counsel’s notes of the last conference shortly before the trial was due to commence, that the “final decision (as to whether or not to give evidence) would be made after the conclusion of the prosecution case”.  It was at this stage that defence counsel’s advice would have been critical.

96.  Accordingly, I turn to examine what happened at the close of the prosecution case.  It is apparent from the transcript that, after the judge had ruled that there was a case to answer, the matter was stood down to enable defence counsel to take instructions as to the future conduct of the defence.  He has explained that this was to confirm an indication he had obtained during a lunchtime conference on the question of whether the applicants would be giving evidence.  When the court reconvened, defence counsel announced that the defence would call no evidence save for the expert witness, DW1.

97.  Although there is a dispute as to whether or not the question of giving evidence was canvassed over the luncheon adjournment, defence counsel accepts that he did advise the applicants not to give evidence when the prosecution case came to an end.  He has explained to us that the reasons were essentially three‑fold: firstly, there was on the evidence a reasonable doubt as to whether the injuries occasioned to Chen were all caused in the consultation room when being subdued by the three applicants; secondly, that even if the injuries were caused in the consultation room, there was no evidence to show that any particular defendant had done anything other than be present inside the room; thirdly, given his view of their performance in conference and in giving instructions, they would not make good witnesses.

98.  I have set out with some particularity above that evidence for the prosecution which I have described as incontrovertible.  I cannot, on the basis of that evidence, see how Chen’s injuries could have come about at any other time than when he was in the consultation room alone with the applicants between about 11:00 am and 11:09 am on 15 August 2009.  Nor can I accept, on the evidence, that any judge could conceivably have been persuaded otherwise.  If the possibility of such persuasion formed the basis of counsel’s advice, then it was simply bad advice.  But even if it was remotely arguable, as I am prepared to accept defence counsel may have genuinely thought it was, the second reason he gave for advising the applicants not to give evidence compounded the error and effectively sealed his clients’ fate.

99.  There was no doubt that all three applicants were in the consultation room over a period of some nine minutes during which Chen was at the receiving end of something which occasioned 117 bruises to his body.  Nobody else was present.  Chen was not in a position to give evidence, and the applicants chose not to testify as to what had happened inside the room.  Yet something violent had obviously taken place: that much was clear from the unchallenged evidence of PW1 as to what he initially saw inside the room and from the fact that pepper spray had later been used upon Chen in order to subdue him.  The three applicants were all uniformed officers in a position of considerable authority and power in relation to Chen; two of them being armed with extendable truncheons, the third with pepper spray.

100.  To have advised, in those circumstances, that they might be acquitted because the judge could not be sure of the role and participation of a particular applicant in whatever went on inside the room, was not merely highly optimistic, it derived from a fanciful view of the facts which ignored the whole essence and effect of joint enterprise.  It is true that mere presence at the scene of a crime may not be sufficient to attract liability on a joint enterprise basis.  In the classic statement of law on the subject by Hawkins J in R v Coney (1882) 8 QBD 534 at 557, which statement was approved in R v Clarkson [1971] 55 Cr App R 445 at 450, it was accepted that:

“It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non‑interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might, under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted.”

101.  The reality in this case is that there were three uniformed prison officers inside that consultation room issued with truncheons or pepper spray: Chen, on the other hand, was an unarmed inmate.  A violent altercation must have taken place which lasted a significant length of time and resulted in serious injuries to a prisoner.  In the absence of evidence from any one of the applicants, I cannot see how an argument that his mere continued presence in such circumstances should not amount at the very least to encouragement of the joint enterprise could ever succeed.  Certainly, no authority was ever placed before the court by defence counsel in support of such a position.

102.  On the contrary, notwithstanding prosecuting counsel’s clear and accurate exposition of the law of joint enterprise and its application to the facts of this case in her closing submission, defence counsel began his address with these words:

“What the court has to decide is, first of all, did the defendant inflicted the injuries on -- did any of the defendants inflict the injuries on the deceased. If so, which injuries were inflicted -- which defendant inflicted the injuries and if so were the injuries unlawfully inflicted.” (my emphasis)

103.  He went on to distinguish the case of Robinson v R [2011] 4 LRC 231, which had been relied upon by prosecuting counsel, on the basis that the appellant in that case had taken “a much more active part” which made it “very, very clear he was involved in aiding and abetting the actual assault that led to the death of the individual, unlike the present case”.

104.  Defence counsel concluded his submission with the following words:

“We cannot then be sure that these officers used unusual force in the circumstances because the bruises can be explained by pressing and a struggle, that is accepted. But more importantly, we simply cannot be sure what each individual officer would have done there. Was it inflicted by one officer? Was it inflicted by all of them? When was it inflicted, and so on? One simply cannot say. And it’s in those circumstances I would ask this court to acquit these gentlemen.” (my emphasis)

105.  With respect, if defence counsel believed that the prosecution had to show who did what, or which applicant inflicted which injuries on Chen, in order to ground liability for the offence, and if that was what he told his clients, then he was in error in his understanding of the concept of joint enterprise as it applied to this particular set of circumstances.  The judge was rightly concerned that counsel may have missed the point for, immediately following the conclusion of defence counsel’s address, he asked:

“Would you like to make submissions on the prosecution’s contention that it was a joint enterprise. So it matters not that the court is unable to find which officer was responsible for which blow.”

106.  To this question, defence counsel responded:

“Well, the essence of joint enterprise, even in a joint enterprise, there must be evidence that the individual took an active part in that assault. As we’ve seen in the case of Robinson, it’s very, very different that he had in some way either encouraged or gone along or taken an active part, there is none of that here in the present circumstances. All we have evidence‑wise is the officers doing their job. And when -- I think that’s clearly set out in the case of Robinson that is before the court, but if Robinson, when he realised that the stick was going to be used had withdrawn, he wouldn’t be guilty of that assault.

. . .

He wouldn’t be guilty of the joint enterprise. He wouldn’t be taking part in a joint enterprise, whose clear evidence in that case that not only did he stay on, he encouraged and he helped dispose of the body, etc. He told witnesses to leave the room.

Now, in our present case there is no such evidence. All we have is three CSD officers, first of all, performing their duty. The next time that anybody sees anything is when again they are carrying out their duty in accordance -- one simply cannot assume that what happened in between times must have meant that each officer encouraged or took an active part, or even discouraged. We simply do not know -- or even try to protect the man in the circumstances.

So, it’s not something I think this court can seriously say.  That’s as -- I think that’s as far as I can go.  But the truth is there is a dearth of evidence in this case and it’s in those circumstances I would ask this court to acquit these defendants.”

107.  It would be unfair to suggest, in the light of defence counsel’s answers to the judge in this passage, in particular by his references to “encouragement”, that counsel must have been schooled in, and thereafter nursed, a fundamentally flawed understanding of the concept of joint enterprise, which permeated the whole basis of his advice to his clients.  However, even assuming that he realised that encouragement was sufficient to ground liability on a joint enterprise basis, it seems clear that he did not see this case as one of encouragement on the part of any applicant who had not actively participated in the violence (assuming it could be said there was room for finding a reasonable doubt on the basis of non-active presence by any of the applicants).  Moreover, counsel’s view seems to have been, as he explained before us, that since mere presence was not enough and since the prosecution could not establish more than mere presence on the part of any particular applicant, the evidence was insufficient to find any of the applicants guilty of the offence. 

108.  I cannot, with respect, see how the invitation to the judge to acquit on the basis that he could not be sure that each applicant had done something more than merely be present in a room for some nine minutes while Chen was receiving 117 bruises at the hands of his colleague (or colleagues) could oust or frustrate the application of the principle of joint enterprise.  Nor, it would seem, could the judge.  Ultimately and, in my view, inevitably, in the absence of evidence from the applicants, the judge was to find that:

“There is no evidence for me to find which of the defendants was responsible for which particular injury found on the deceased. Yet since the three defendants were acting in concert both before and after the attack, I found that all the defendants are jointly liable for the infliction of the aforesaid injuries.”

109.  Whilst defence counsel’s contemporaneous conference notes tend to support him on the issue of the applicants’ reluctance to give evidence, his viva voce submissions to the judge during the trial (at paragraphs 28 and 30 above) tend to support the applicants’ assertions that defence counsel, even if he properly understood it, had never properly explained to them the application and consequences of the concept of joint enterprise to the facts of their case.  This was a vital issue.  The applicants were not lawyers and they needed to be advised correctly on the law as it applied to the facts of the case against them before they could properly decide whether to give evidence in their defence.  In my judgment, not only was defence counsel’s assessment of the effect and strength of the prosecution evidence fanciful and wholly unrealistic, his failure to advise the applicants that they would almost inevitably be found guilty on the basis of joint enterprise if they did not testify compounded the error.

110.  What the applicants should have been told is that realistically they (or at least one of them) had to give evidence as to what happened inside the consultation room if they were to have any chance of acquittal: instead, they were advised that they did not have to give evidence on a view of the facts and the law which was simply untenable.

111.  In those circumstances, I cannot see how defence counsel could justify the advice, which he accepts he gave to his clients, that they should not give evidence.  The applicants were, with respect, given bad advice on the facts, compounded by wrong advice on the law.  Consequently, inasmuch as their decision not to testify was based upon that advice, it was not properly informed.

112.  Stock VP understandably places considerable reliance upon the contemporaneous notes of the nine conferences held with the applicants by defence counsel for the support they would seem to give, not only to counsel’s concern about the quality of the applicants’ accounts but also to their stated preference not to give evidence.  However, nowhere in any of those conference notes do I see any reference to joint enterprise ever having been discussed with the applicants either in legal or in layman’s terms.  Its apparent absence from the discussions, coupled with a failure properly to engage the issue during defence counsel’s closing address until prompted by the judge at its conclusion, incline me to accept the applicants’ contention that it was never properly explained to them.  And if it was never properly explained to them, I cannot, with respect, see how the conference notes help.  They certainly do not assuage my concerns about the basis of defence counsel’s advice and the quality of any decision by the applicants made as a result of it.

113.  I am acutely conscious of Line J’s concern that there is a temptation, particularly in this area of complaint, for an applicant to re‑write history in a way that will help his cause on appeal. However, that concern in this particular case is, in my judgment, met by defence counsel’s acceptance that he did indeed give advice that none of the applicants should give evidence in their defence.  It is not a case where defence counsel says he advised his client to give evidence but the applicant claims otherwise, or where counsel might, on the state of the evidence, have properly advised that the decision was evenly balanced but nevertheless made it clear that it was his client’s decision.  Here, there is no dispute as to the fact of the advice not to give evidence.  What is in issue is why he gave it.

114.  I am also aware that this court must not encourage complaints of “flagrant incompetence”, simply because it takes the view that the case could have been handled differently.  Such a course might well have the unfortunate effect of discouraging counsel from properly advising their clients.  Appellate courts should also remember that counsel has conduct of the trial and issues which appellate judges must invariably look at within the confines of the papers in front of them may be far removed from the heat of trial, where counsel has to make judgments about the strengths and weaknesses of individual witnesses as the case is unfolding and before later witnesses have been heard, and to make assessments of the immediate impact or impression of that evidence on the tribunal of fact.  The quizzical or incredulous look, the quiet nod of acceptance or agreement, or the emphatic look or tone of disagreement, in relation to a witness’s evidence or a submission, are all matters which counsel are highly sensitive to, whether they emanate from single judges or, in some cases, juries.  These sorts of impressions can sometimes play a part in tactical decisions as to how a defence might be steered or how evidence might be dealt with or not dealt with.  They are not always discernible from a transcript.

115.  As the Court of Final Appeal has said in Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126 at 143, per Sir Thomas Eichelbaum NPJ, with whom all other members of the Court agreed:

“As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.”

116.  Sir Thomas Eichelbaum went on to spell out the consequences of this rule, at 144:

“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 of appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment.”

117.  In one sense, defence counsel’s view of the evidence, and his advice on the law applicable to that evidence, might be described as an error of judgment.  However, it was in my view much more than that.  I am more concerned with the consequences of the advice than trying to fit it within a label which might perhaps justify it.  Similarly, whilst the expression “flagrant incompetence” obviously requires something more than a mistake or error of judgment and should not be devalued, appellate courts should not be distracted by the hyperbole of the term from examining the seriousness of the consequences of the decision or conduct.  As the Court held, at 144:

“The expression ‘flagrant incompetence’ rightly underlines an appellant’s need to show much more than a mistake, an error of judgment, or a decision to follow one course when in hindsight another would have been preferable. But it should not deflect attention from the most critical point, namely given that there was a significant error of some kind, what will be decisive is the effect of the error on the trial. As Lord Steyn said, in delivering the judgment of the Privy Council in Boodram v Trinidad and Tobago [2002] 1 Cr App R 103:

. . . the general principle requires the court to focus on the impact of the faulty conduct. (at p 118)

The bottom line is that to succeed, an appellant must be able to show he or she received less than a fair trial.”

118.  Bokhary PJ, with whom the other members of the Court in Chong Ching Yuen also agreed, considered (at 135) that the concern of the appeal courts, when such a ground is raised, should be the impact of counsel’s incompetence on the trial, and not whether or how severely counsel deserves to be criticised.

119.  If, therefore, I ask myself whether the advice given in this case resulted in the applicants receiving less than a fair trial, I must regrettably find that it did.  I accept Mr Grossman’s submission that defence counsel’s advice not to give evidence, on the facts and in the particular circumstances of this case, effectively closed the only avenue open to them of being acquitted.  Without their evidence as to what had transpired in the consultation room in their dealings with Chen, their conviction was inevitable.  Whether, had the applicants received correct advice and chosen to give evidence, the result would have been different, I cannot say.  That effectively disposes of any argument as to the application of the proviso.  Accordingly, I would give the applicants leave to appeal and allow the appeal.

120.  In deference to defence counsel, I should perhaps add this.  When the case was originally placed before the judge in the District Court, the prosecution relied upon, and intended to introduce into evidence, the witness statements of each applicant in order to establish their presence in the consultation room at the critical time.  The prosecution were not at that stage intending to call PW1.

121.  Defence counsel, accordingly, advised his clients in conference that, since these statements could be said to have been required to be made by them as prison officers, they were made under compulsion and not under caution, and were therefore amenable to challenge as to their voluntariness.  He further advised that without the statements, the prosecution would have no evidence to show that each of the applicants was actually in the consultation room when Chen was being subdued.  He went so far as to advise that, in those circumstances, there would be no case to answer.

122.  Following their pleas, therefore, the case commenced with a voir dire, as a result of which the three statements were ruled inadmissible.  It was only then that the prosecution decided to call PW1 to repair the gap and establish the link between the three applicants and the consultation room.  No criticism can possibly be made of prosecuting counsel’s decision to call PW1, whose witness statement had already been served on the defence by way of unused material.  It was the obvious course to take in the circumstances.

123.  Nevertheless, one can see that the genesis of the advice not to give evidence (and the canvassing of the possibility that there might not even be a case to answer) came early on in defence counsel’s handling of the case.  When the nine conferences took place between defence counsel and the applicants prior to trial, PW1 was not listed as a witness. That is not to say that defence counsel did not need to adjust his thinking when the case took a different turn, but merely to point out that the context in which discussions in conference took place as to the giving of evidence by the applicants changed when the prosecution made its decision to call PW1.

124.  Mr Grossman makes the further point that had defence counsel known that the gap he was exploiting in the prosecution’s evidence by way of a voir dire was going to be repaired and filled by PW1, he might not have advised the challenging of statements which were entirely exculpatory, save for the placing of each of the applicants in the consultation room at the relevant time.

125.  Be that as it may, defence counsel ought to have anticipated that there was another avenue open to the prosecution, should the statements be ruled inadmissible.  Nevertheless, I can at least appreciate why he may have held the initial view that he did, and how his advice and early reservations as to the applicants giving evidence may have been coloured by the way the prosecution case was originally presented.  It is, however, his later advice at the close of the prosecution case as to the evidence and the law with which I take issue, and which has caused me to come to the conclusion I have.

Hon Stock VP:

126.  I agree with the judgment of Line J that the appeals should fail but I respectfully disagree with Macrae JA in so far as he finds that defence counsel acted incompetently in the advice which he gave and in the consequential conduct of the case.

127.  It is important to start by identifying the facet of alleged incompetence upon which there is disagreement between members of the Court.

128.  The alleged incompetence is the advice given that (although the decision was ultimately theirs) it would be better, in defence counsel’s opinion, for the applicants not to testify at their trial.

129.  The next question is why that advice was given.

130.  Once we have determined why that advice was given, the question will be whether the reason provided is acceptable as an understandable tactical decision as opposed to a decision which was not reasonably open to counsel to take.

131.  I turn therefore to the key question: why did counsel advise the applicants that it would in his view be better for them not to testify ?

132.  As to this, we need to decide what evidence before us we accept as to what happened in the many conferences (no fewer than nine) which counsel held with the applicants in his chambers.

133.  That is most important because if we accept the evidence of defence counsel that in the "trial run" - the testing of their evidence by a mock cross‑examination in a conference in July 2012 - the applicants’ answers were such as to lead counsel to believe that giving evidence would only harm their case,  it would follow that the tactical decision to be made by counsel was a very difficult one; for if his evidence be correct he was, in advising as to tactics, caught in a vice.  That is because without their evidence, the case against them was very strong and with their evidence the case against them was also very strong.  There is a material difference on the evidence as to the conclusion drawn after this mock examination, but I will come to that later.

134.  In his second affirmation, which he confirmed in his oral testimony before us, defence counsel explained that in the mock examination the applicants did not perform well:

“I [asked] the applicants to explain how Chen had sustained specific injuries and how he came to sustain so many injuries. Their versions not only differed, but the second applicant’s version gave me the impression that he had used excessive force. At times the second applicant could not answer the questions and paused as if asking me to tell him how to answer. None of the applicants could explain how Chen came to have two swollen eyes, nor could the applicants explain how Chen came to sustain so many bruises. Following the exercise, although I did not specifically say to the applicants that their testimony was vague and inconsistent, it was made clear to the applicants that such testimony would only harm their case. Following the exercise of going through the applicants’ versions of events, I discussed with the applicants whether it would be advisable for the applicants to testify. I recall that I did tell the applicants that it was for them to decide whether to testify or not and that their main consideration should be whether their testimony is likely to help or hurt their case. I also informed them that any evidence they gave could affect the other applicants. I recall that the applicants indicated that they would prefer not to testify if possible.”[2]

135.  It is in the light of this evidence that I note the conclusion of Macrae JA that 'the applicants should have been told that realistically they ( or... one of them) had to give evidence as to what happened if they were to have any chance of acquittal... .'[3] Yet if we accept counsel's testimony (in relation to which, more later) as to the counter-productive quality of the explanations advanced by the applicants for the injuries sustained by Chen, it seems to me, with respect, difficult fairly to conclude that the only reasonable advice for him to have tendered was that they should give evidence.

136.  It was not accepted by the applicants that their performance was poor and not accepted that that is what they were told.  So there is a conflict on the material matter.  For myself, I am satisfied that defence counsel was telling us the truth.  There is material support for what he says :

(1) He made notes of each of his conferences and we have records compiled from those notes.  In his notes of the conference of 5 July 2012, he made specific reference to going through the “defendant’s evidence with each defendant.  It was noted that the defendants were at times vague and inconsistent. Discussed if advisable for defendants to testify in court.”

(2) In his notes of the conference of 20 July 2012 he says: “Discussed with defendants advantages and disadvantages of testifying in court.  All defendants indicated they would prefer not to testify.”

(3) In cross‑examination before us of defence counsel by Mr Grossman SC for the applicants, Mr Grossman sought to support his assertion of counsel’s incompetence by attacking a decision by defence counsel to seek the admission into evidence of a report commissioned by the prosecution from Professor Peter Vanis, an eminent forensic pathologist in the UK.  Mr Grossman’s suggestion was that it was a strange wish on counsel’s part to seek admission of that opinion since as Mr Grossman put it, the report “. . . was not at all helpful to the defendants.”  Defence counsel explained that he wished to have put forward an edited version for its utility, as he saw it, on the question of the effect of alcohol on the blood.  In the event, the report was not in fact put in evidence and counsel’s explanation is not relevant for present purposes.  What is relevant is the part which Mr Grossman no doubt had in mind, which was unhelpful to the applicants.  The Professor had been asked the question by those who commissioned the report:  “Could the struggle as described by the four CSD officers explain the injuries seen on the deceased?”  His answer was: “From the information they have given in their statements, the struggle as they describe, falls a long way short of accounting for the multiplicity of injuries seen on the deceased.”  Since this report was not before the trial judge, it would not be open to us to look at it to review any finding of fact made by the judge as to what in fact the applicants did to Chen and in what circumstances.  But it is open to us to look at it in relation to a question which was not before the trial judge, namely the assertion of counsel’s incompetence and in that context, counsel’s credibility in his testimony to us; and further because counsel for the applicants has referred to it in cross‑examination.  Whilst we do not know the extent to which the statements the Professor examined tallied with the “evidence” the applicants gave in their conference with counsel, the point which can validly be made that defence counsel’s suggestion that the applicants’ explanation of how Chen came by his injuries damaged rather than aided their case, is a suggestion which finds support in the Professor’s report.

137.  The argument that nonetheless pursues the incompetence ground has then to proceed along the lines that, even so, counsel was incompetent because he based his advice as to whether or not the applicants should testify on a misunderstanding of the law of joint enterprise or, if not a misunderstanding, that to run the defence on the notion that one of the three applicants might not by his presence have been encouraging what the other two were doing was to run a defence on a premise which, on the facts of this case, was hopelessly unrealistic.

138.  The problem with this argument is that it isolates the point counsel was making to the judge on the question of joint enterprise as if it was the only point counsel was making and supposes also that the advice which counsel had provided to his clients was based solely on this point.

139.  None of these suppositions is correct.

140.  First, the primary motive behind counsel's advice as to the danger of testifying is to be found in the evidence of his which I have already cited, namely, that their evidence would be counter‑productive.

141.  Second, the argument which he deployed in the court below was multifaceted and, it so happens, ran along almost precisely the same lines as the argument deployed before us by Mr Grossman when, as an alternative to the incompetence argument, he contended that the conclusion at which the trial judge arrived as to what happened in the consultation room did not represent the only reasonable inference to be drawn from the evidence.

142.  In addition to, and quite separate from, the joint enterprise point made by defence counsel – as to which I shall return – he made a number of suggestions or points in his closing submission:

(1) that there was no direct evidence of what happened in the room; no direct evidence of unnecessary force;

(2) that the absence of that direct evidence was to be viewed against the known facts that Chen had on any view to be subdued because of his odd or rash behaviour - in other words it was obvious that some force was necessary to subdue him;

(3) that it was possible that Chen had been assaulted before he rushed into the consultation room;

(4) that the injuries to Chen’s eyes could have been caused by rubbing them after being sprayed with foam;

(5) that injuries to the chest and the arms could have been occasioned when Chen hit out during the struggling which must have taken place;

(6) that when Chen emerged from the room, he was not limping or holding any body parts, as one might expect if he had just been kicked about the legs;

(7) that when asked by Dr Wong shortly after, whether he had any complaints, Chen said No;

(8) that Dr Wong has not seen any significant injuries; and

(9) that there was evidence of mental disturbance and the possibility of self infliction of wounds.

143.  In short, so the submissions in essence went, it was impossible to tell what in truth had happened after the time at which Chen had already behaved in such a way as to require forceful restraint.

144.  None of this is to deny the fact that counsel made a further point in the court below upon which he placed emphasis which was to the effect that it was not possible to be sure what each officer did in the room.  This argument was, on any view, a particularly weak one but it was part of a wider argument.  Upon a reading of the early stages of the submissions which he made on the question of joint enterprise, I did indeed think that counsel had fundamentally misunderstood the law as requiring proof of physical participation of each present person; but a reading of the whole qualifies that interpretation and I am satisfied from the spontaneous nature of counsel’s reaction when that misunderstanding was put to him in the course of his evidence before this court, that at the material time he properly understood the law.  Yet the primary point I seek to make in this context is that it was in any event one of several facets of the submissions: it did not stand alone.

145.  The submissions which defence counsel chose to make must be viewed against the acknowledged facts that before he entered the consultation room, Chen had been acting most oddly – he had rushed upstairs and had to be brought down again; he had been mumbling to himself; and had clearly had to be restrained.  So defence counsel’s tactical decisions and his attempt to construct an argument had an evidential starting point.  That he faced an uphill struggle is not the issue; the issue is whether given the paucity of weapons at his disposal, he obviously blundered in the decisions he made or the advice which he gave.

146.  In this regard one is bound to note – though I do not think it decisive of the matter – that Mr Grossman ran much the same argument before us as defence counsel had run before the court below.  True, Mr Grossman emphasised that it was not his main argument, but an alternative; yet it is an argument that merited consideration, whatever our conclusion, given the starting point to which I have referred and given that, as always, the burden of proof is ever on the prosecution.

147.  Mr Grossman’s alternative argument commenced with drawing our attention to para 62 of the Reasons for Verdict at which the judge referred to a report of the forensic pathologist Dr Ng (PW8) which included a comment that: “. . . just basing on the autopsy findings alone, the possibility that the injuries were sustained during a vigorous struggle could not be entirely excluded.”  On that basis, argued Mr Grossman, the judge ought to have proceeded on the footing that a vigorous struggle had taken place.  The gravamen of this alternative argument was then directed against three particular paragraphs of the Reasons for Verdict:

“82. From the evidence available I found the only time in which the multiple injuries were inflicted on the deceased was the time the defendants were with the deceased inside the Consultation Room. I was convinced beyond all reasonable doubt that the defendants were responsible for those injuries.

83. While it would be impossible to account for each of the 117 external injuries found on the deceased, I accept PW8’s postulation that at least the injuries to the scalp and thigh were caused by blunt forces. At the time when PW1 left the Consultation Room the deceased had already been overpowered by D1 and D2 who were pinning him down onto the desk and then pressed him down on the floor. At this point D3 had announced his intention to use the OC foam which is designed to inflict discomfort and reduce the will and power to resist. It would seem that no more force was necessary other than continuing to pin him down on the shoulders. Yet after this incident multiple injuries were found on the deceased.

84. They can only be the result of what was done by the CSD officers to the deceased.  The extent and the number of injuries were such that I am left with no doubt at all that the defendant had used unnecessary and grossly excessive force in order to subdue him.  If the three defendants’ sole intention was to restrain the deceased in order to calm him down and bring him up for detention in the Protected Room, they could have continued restraining him until the OC foam took its effect.”

148.  Mr Grossman’s submissions were these:

(1) Whereas the judge concluded at para 83 that “at the time when PW1 left the Consultation Room, the deceased had already been overpowered”, one cannot know whether he continued to resume struggling thereafter.  Mr Grossman emphasised that Chen suffered a mental problem and the overwhelming probability was that he was struggling and that when the OC foam was applied he, Chen, was likely to be leaping about;

(2) Whereas the judge noted that the foam was designed to reduce the will and power to resist, the question is whether it in fact had that effect, an answer to which could only be guesswork;

(3) A continued struggle by Chen could not be excluded as a reasonable possibility, and it had to be borne in mind that there were objects, such as a desk, in the room which might account for some of the injuries;

(4) Whereas the judge concluded that “it would seem that no more force was necessary other than continuing to pin him down on the shoulders”, how, it is asked rhetorically, can the judge have known that since there was no evidence as to what happened and no evidence as to the degree to which Chen was struggling;

(5) No complaints were made by Chen that he had been unlawfully assaulted;

(6) When he emerged from the consultation room Chen was not limping, was not bleeding and was not crying; all factors which undermined the prosecution case; and

(7) In the final analysis, the evidence simply did not reveal what happened after PW1 left the room and the case against the applicants was not proved.

149.  On this basis, said Mr Grossman, the inferences which the judge drew could not be justified.

150.  The joint enterprise point aside, these were in effect the same arguments that defence counsel ran in the court below.  Some of the points are stronger than others and at the end of the day they do not individually or cumulatively persuade me that the judge erred.  Yet it cannot be said that they were so nonsensical to run that they should not have been run, or that counsel did other than draw what thin comfort he could from the material to hand.

151.  It comes down therefore to this: that instead of running these points, defence counsel should have taken the alternative course of calling the applicants to give evidence or at least have advised them that that was their only hope of success.  But – and this is an important “but” – since the mock cross-examination led counsel to believe that the applicants’ account would in the result condemn them,  or make their case worse, it would have been entirely illogical for him to advise them that their only hope of success was in giving evidence.  And I fail to see, in those circumstances, how it can reasonably be suggested that counsel’s tactically‑based advice was incompetent.

152.  Defence counsel frankly accepted before us that the course which he advised the applicants to take had its real risk and he told us that he advised the applicants that there was a danger in it.  Yet, the alternative course, that of giving evidence was in his view, for reasons which he has explained, even more dangerous.  So what was he to do?  In my judgment, he was to make the kind of decision which counsel are regularly called upon to make.  He made that decision - or rather, he gave that advice - with the benefit of extensive contact with the applicants and with their case.

153.  I am not prepared against this background to second‑guess that decision, still less to conclude that it was an incompetent decision.

154.  I agree with Line J that the application to adduce fresh evidence of the inquest testimony on Dr Ng should be dismissed and an order to that effect is made.

155.  In the result, whilst I would grant leave to appeal against conviction and treat the hearing of the applications as the appeals. I too would dismiss the appeals.  I agree with Macrae JA and Line J that the applications for leave to appeal against sentence should be dismissed.

Conclusion

156.  It follows that whilst we grant the applicants leave to appeal against conviction and treat the hearing of the applications as the appeals, the appeals are, by a majority, dismissed. The applications in relation to sentence are also dismissed.

[1] Defence counsel’s letter dated 26 October 2012, p 2.

[2] Counsel’s affirmation 30 September 2013, para 13.

[3] See paragraph 110 above.