HKSAR v. LI XIAOXIANG

FAMC No. 65 of 2017

[2018] HKCFA 24

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 65 OF 2017 (CRIMINAL)

(On APPLICATION FOR LEAVE TO appeal from

HCMA No. 16 of 2016)

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REASONS FOR DETERMINATION

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Mr Justice Stock NPJ:

Introduction

1.  This application for leave was advanced on the substantial and grave injustice ground, based on an assertion of flagrant incompetence by trial counsel.  At the hearing, we dismissed the application and these are our reasons.

2.  The applicant was charged with attempted theft and common assault.  The attempted theft was said to be from a lady’s handbag on board an MTR train when it was arriving at Tsim Sha Tsui on 12 October 2015 and the assault was said to have occurred when the lady and the applicant alighted.

The trial

3.  The applicant pleaded not guilty. The complainant and the investigating police officer gave evidence for the prosecution.  The applicant did not testify.  On 18 December 2015, she was convicted of both charges[1]and sentenced to 12 months imprisonment and 7 days imprisonment, respectively, to run concurrently.  Her appeal against conviction was dismissed by a judgment dated 29 November 2017[2].

4.  It was common ground that at the material time, the train was crowded.  The complainant said that when the train arrived at Tsim Sha Tsui, she opened her handbag intending to take out her wallet and saw a hand stretch into her handbag.  She turned her head and saw that it was the applicant’s hand.  She shouted, the applicant withdrew her hand and made to leave the train but when the complainant tried to stop her, the applicant struck her arm.  The police were called.

5.  Counsel who appeared for the applicant at trial held three pre-trial conferences.  Prior to each conference he was given a proof of evidence, in identical terms, with her account of the events in question.  In each the applicant, a person of previous good character, said that when she was due to leave the train someone pushed her from behind and upon stepping onto the platform she turned round and concluded that it was the complainant who had pushed.  There then followed an altercation in the course of which the applicant pushed her back.  The complainant, who was in the company of friends, then scolded her and called the police.  Prior to the arrival of the police the applicant saw the complainant deliberately scratch her right upper arm.  When the police arrived, the complainant said that the scratch had been inflicted by the applicant who had earlier attempted to steal her wallet.

6.  The clear implication of these written instructions was that there had been no attempted theft and that the allegations of attempted theft and assault were made in bad faith as a result of the earlier altercation.

7.  The complainant made a statement to the police as did her friend, Mr Cheng, who was also on the train.  In his statement, he said that after they alighted from the train, he heard the complainant allege an assault and theft, and that the applicant said she had merely bumped into the complainant since there were so many people.  She refused to apologise and alleged that she was being framed.

8.  The defence of bad faith or frame-up was not pursued by counsel for the applicant at trial. Instead he sought to undermine the reliability complainant’s evidence by reference to the crowded conditions and the likelihood of an error in identification.

9.  The magistrate accepted the evidence of the complainant that the applicant’s hand had been in her bag and that that act was intentional.  These findings were made against the background of extensive cross-examination of the complainant by counsel for the applicant, directed at reliability rather than at credibility.

The appeal

10.  In lodging her appeal against conviction to the Court of First Instance, the applicant alleged four instances of flagrant incompetence: first, that defence counsel failed to put forward the defence case in accordance with the written instructions; second, that he failed to cross-examine the complainant in relation to material inconsistencies between her oral testimony and her witness statement; third, that the applicant was bound to be convicted if she did not testify, yet he not only failed to advise her to give evidence but persuaded her not to; and finally that he failed to require the prosecution to tender Mr Cheng for cross-examination, even though his witness statement enured to the benefit of the applicant.

11.  As is standard practice in such cases, the assertions of incompetence were put to defence counsel by letter from those acting for the applicant and, again in accordance with usual practice, counsel in due course filed an affirmation for the purposes of the appeal.

12.  The gravamen of the evidence filed by him was that the written instructions did not survive the account given orally by the applicant in the course of the various conferences. He attested to imprecision and contradictions by the applicant during these conferences, to several features of her account which, in his opinion, were inherently improbable and for which no satisfactory explanations were provided but most particularly to the fact that she changed her instructions and said that despite some harmless pushing as is commonplace in crowded situations, there had been no argument between her and the complainant and, further still, that she resiled from her assertion that the complainant had deliberately scratched her own arm.  It was in those circumstances that it was agreed as between the applicant and counsel that the original defence of a frame-up would not be pursued and instead, the prosecution would be put to proof of its case in the context of the possibility of an error by the complainant.

13.  As for the advice not to give evidence, counsel alluded to the applicant’s highly nervous state on the morning of the trial, her own express wish not to give evidence because of her nervousness and his assessment that likely contradictions by her would only harm her case.

14.  He added that whilst he noticed some discrepancies between the complainant’s evidence and her witness statement, he did not believe them to be significant and there was a risk that in drawing attention to them, other parts of the statement would merely serve to support her credibility.  Finally, he said that he failed to see how the evidence of the Mr Cheng would assist since he did not discern material discrepancies between his statement and the complainant’s testimony.

15.  The Judge had this affirmation before him.  Counsel gave evidence upon the appeal and was cross-examined by the solicitor advocate for the applicant.  The Judge also had before him an affidavit of the applicant’s sister who had attended the pre-trial conferences and who said that there were in fact no changes in the course of these conferences to the instructions contained in the proofs of evidence.  The judgment alludes to an affirmation by the applicant, but it is not in the bundle before us.

Not putting the case of a frame-up

16.  A key feature of the allegation of incompetence levelled against counsel in the written application for leave, as we read it, was that in abandoning the case of a frame up counsel had inexcusably departed from his instructions.  In oral submissions before us the suggestion seemed to be a more general one of not following written instructions.

17.  For the purpose of this application for leave, no transcript of the oral testimony before the Judge has been filed but it is not suggested that it departed from the thrust of counsel’s affirmation.  It is apparent that the Judge accepted the account given by counsel after having heard him cross-examined and, significantly, it is not asserted upon this application that that finding is impeachable.  That being so, it is difficult to see how this application for leave can get off the ground.  That is because the central assertion, that counsel departed from his instructions that the complainant had made a false allegation triggered by a fracas, cannot hold water once it is accepted that those instructions were not pursued and were expressly withdrawn.  If the complaint of a frame-up following a fracas had been maintained by the applicant, counsel would have been duty-bound to represent her on that basis.  But on the evidence accepted by the Judge, that is not what happened.  Nor is it otherwise demonstrated that counsel departed from the applicant’s account conveyed to him as a result of his conferences with her.  There is accordingly no possible basis upon which the first complaint against counsel can succeed.

Inconsistencies

18.  Trial counsel has been shown to have made two errors: one in assuming that if Mr Cheng were to testify, it was for the defence to call him and the other in pointing the magistrate to an inconsistency between the complainant’s testimony and something she said to the police officer without, however, putting that suggested inconsistency to the complainant herself.  We do not think that either error is, in the event, significant.

19.  The suggested inconsistency upon which, amongst one or two others, emphasis is placed for the purpose of this application, is that the complainant’s witness statement has the applicant holding the wallet inside the bag; whereas in her testimony she said that she saw only the applicant’s fingertips inside the bag and did not see what the hand was touching. We see nothing in that part of the transcript which we have which shows the witness saying that she did not see what the hand was touching but, be that as it may, the suggestion that there was a material difference that called for exploration, the failure to do which was a facet of gross incompetence, is simply untenable. In the first place, there is no obvious inconsistency; for all one knows, the culprit may have been able to hold the wallet with her fingertips. Secondly, counsel’s cross-examination of the complainant was designed to show the possibility of a mistake on her part. Despite a tentative suggestion by him that she might be mistaken about the fact of an attempted theft from her handbag, his main thrust was to suggest that whoever’s hand had been in the bag, it had not been the applicant’s and that the complainant had been mistaken about that. In that context, it was entirely sensible of counsel to concentrate on the train’s crowded conditions and on the speed of events, both of which facts were common ground, as undermining the reliability of the identification, and unnecessary to explore apparent discrepancies, especially since the outcome of such an exploration was wholly unpredictable. Other counsel might have attempted to make something of this discrepancy or that but it is altogether unreal to suggest that the failure to do so amounts to incompetence, let alone flagrant incompetence.

20.  There are other suggested inconsistencies to which we have been taken as to who left the train first, at what stage or stages the complainant shouted out and the position in which the complainant was standing when she was struck on her arm by the applicant.  Had the applicant in conference maintained her assertion that the complainant’s accusation of theft was bogus and malicious, some counsel might have preferred an attack on credibility based on discrepancies but even then such a course might instead have lead to an enhancement of credibility if it emerged that the discrepancies were more apparent than real or if the trial court were led to the view that counsel was clutching at straws.  The witness statement made by the applicant was brief, her testimony detailed and the incident to which each related was fast moving. It is hardly surprising in those circumstances to find some material suggestive of inconsistency, but whether such material cries out for exploration in cross-examination in any particular case will depend upon a host of factors, including their centrality to the issues at stake and a judgment as to the likely outcome of that exploration.  In the context of this particular case and of the instructions with which counsel was ultimately left, the failure to identify these further suggested inconsistencies or, if identified, to explore them, does not begin to amount to incompetence.

Not requiring the further witness to be produced

21.  In his letter to the Director of Legal Aid in answer to the original assertion of incompetence, counsel’s reply to the complaint that he had failed to call Mr Cheng as a witness was that there appeared little point since it seemed from his statement that he had not seen the incident in the carriage.  In his affirmation, counsel said that “if the defence was to call him, he would be a defence witness as the prosecution is not obliged to tender him as a prosecution witness for the purpose of cross examination,” but that even if Mr Cheng were to be called as a prosecution witness he did not see how this could advance the applicant’s case, not least because the statement was not inconsistent with the complainant’s account.  Since the prosecutor had listed Mr Cheng as a prosecution witness who was available at court to testify, counsel for the applicant could have required the prosecution to tender him for cross-examination but even so, the question is what was to be achieved by that cross-examination as to render its omission an act of incompetence resulting in an unfair trial ?

22.  The answer advanced is that the witness statement is silent as to events in the train carriage and on its face, the first Mr Cheng knew of the complainant’s accusation of theft was on the platform after alighting so this undermines the complainant’s evidence that there had been shouting on the train - had there been, he would have heard it.  Next, the point is made that in his statement he said that when he first saw the complainant and the applicant in conversation, he thought that they knew each other: this is somehow said to support the applicant’s (original) version of events.  Finally, he said in his statement that the applicant refused his suggestion of an apology and asserted that she was being framed; this is said to be consistent with the applicant’s version and the fact that she refused to resolve matters by an apology is said to support her innocence.

23.  These complaints are without substance.  Once the assertion of a maliciously false accusation of theft was abandoned, it is difficult to understand how his testimony that he heard nothing of consequence whilst on the train - even assuming that cross-examination would have established that - would have operated to the benefit of the applicant, save perhaps for the exculpatory remark made by the applicant when he suggested an apology.  But that request for an apology and the applicant’s reply that she was being framed had already emerged in the complainant’s evidence-in-chief.  One might add in passing that Mr Cheng’s statement hardly supported the applicant’s original instructions to counsel that the whole incident started when the complainant pushed her and she was constrained to push back.  That is because he states that when he asked the applicant why she had hit the complainant, the applicant answered, not that it was in retaliation, but that perhaps she had bumped into the complainant simply because there were so many people on the train.

Whether to testify

24.  In HKSAR v Leung Shing Chi,Tang PJ remarked that “one of the most difficult tactical decisions encountered in the conduct of a defence is whether or not the defendant should testify.”[3]  The decision in this case is one which evidently gave counsel much concern and to which he paid conscientious attention.  Had the factual basis for the original defence been maintained, it might well have been more difficult to maintain the advice that the applicant should, on balance, not testify.  But that factual basis was not maintained and counsel hoped to undermine the prosecution case by drawing out the semi-chaotic conditions which prevailed at the time of the theft so as to weaken the reliability of the conclusion which the complainant drew that the thief was the applicant.  Whether the applicant should testify was in the circumstances a question of judgment bearing in mind such doubt as he hoped had by then been created as well as the strong adverse impression with which he had been left as result of his lengthy conferences with the applicant.  It cannot reasonably be said that the advice he gave was obviously wrong and that the trial was correspondingly unfair.

Conclusion

25.  For these reasons, we concluded that the ground advanced in support of the application for leave, namely, the suggested incompetence of counsel, was not reasonably arguable.

26.  A further ground in the application, not developed in argument before us, involved criticising the Judge for not giving adequate reasons for dismissing the appeal.  We do not think that a valid ground. The Judge clearly held that the criticisms of counsel taken as a whole did not come close to meeting the stringent requirements of an appeal based on flagrant incompetence.

Addendum

27.  This Court has on a number of occasions, most recently in HKSAR v Cheng Yim Fung, Flora[4], deprecated the fact and trend of misconceived and inappropriate charges of flagrant incompetence levelled at counsel appearing at trial.  It seems that the message has not been understood and that some elaboration is warranted.

28.  What appears not to be understood is the number and difficulty of decisions which trial counsel have to make and the wide discretion which must be accorded them in the conduct of criminal (and civil) litigation but for which the machinery of timely advice and efficient but fair litigation would be undermined.  Without understanding this, the legal adviser who is engaged to advise upon possible grounds of appeal will inevitably fail to appreciate the limits of counsel error as a ground of appeal. It is precisely to illustrate the limits of that concept that in Chong Ching Yuen v HKSAR, Sir Thomas Eichelbaum NPJ took pains to explain the authority of counsel in regard to the conduct of a trial[5].  By reference to R v Birks[6], he itemised many of the decisions which counsel in the conduct of proceedings is called upon to make: for example, “what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon … all matters within the discretion of counsel and frequently [involving] difficult problems of judgment, including judgment as to tactics”[7] and that “ [u]nless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client.  This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.”[8]

29. The point then made by Sir Thomas Eichelbaum was that:

‘48. It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment.

49. Nevertheless, the courts have recognised that in some exceptional instances, an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice. To describe this ground, the expression “flagrant incompetence” has generally been used … .’(emphasis added).

30.  If these principles and this reality were sufficiently understood, this Court and others in this jurisdiction would be troubled less frequently by unmeritorious assertions of flagrant incompetence by counsel.  This is not to derogate from the duty of legal advisers to advance such a ground where there is a sound basis for doing so.  But what is happening too frequently is of an altogether different order, namely, an exercise in dissecting the minutiae of first instance trials to uncover inconsistencies, to find questions asked which should not have been or questions not asked which should have been and to examine advice given as to the benefits or disadvantages of testifying, from which exercise is then constructed an alternative approach which might have been taken, and that alternative approach is then artificially elevated to the only acceptable approach with a blindness to the realities of trials and the latitude which must be accorded competent practitioners to exercise professional judgment.

31.  Furthermore, if these principles and realities were sufficiently understood, the unnecessary exertions and anxieties imposed upon counsel against whom unwarranted allegations are made would be avoided.  Any allegation of this kind inevitably requires trial counsel to forage for his or her contemporaneous notes and advice, to write letters and to swear affidavits or make affirmations and then, often, to subject himself or herself to cross-examination.  Where there is substantial cause for asserting flagrant incompetence, this type of pressure and anxiety cannot be avoided for the assurance of a fair trial is paramount.  But the Court of Appeal has had occasion to remark that a culture has developed in this jurisdiction “whereby allegations against other counsel are too easily made with insufficient regard, unless one has been at the receiving end, to the burden that is placed on counsel (or solicitor, as the case may be) against whom the attack is launched, and to the heavy anxiety suffered by a person whose competence and integrity is thereby placed under scrutiny.”  We would endorse the advice of that Court that: “It is incumbent on appellate counsel never to advance such allegations unless there is a palpably sound basis to do so … .”[9].

32.  This determination is substantially longer than usual because we have thought it desirable to dispel in detail the unwarranted allegation of flagrant incompetence persisted in against counsel and to emphasise the need for great care to be exercised before such an accusation can responsibly be levelled at the counsel or solicitors involved.