HKSAR v. KAMUNOKO DANIEL KUDUMO AND ANOTHER

CACC 309/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 309 OF 2008

(ON APPEAL FROM DCCC NO. 290 OF 2008)

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BETWEEN

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REASONS   FOR   JUDGMENT

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Hon Stock VP (giving the Reasons of the Court):

Introduction

1.  On 2 September 2008 the first and second applicants were convicted by Deputy District Judge Woodcock of an offence of conspiracy to defraud, the particulars of which were that between 16 and 22 January 2008 they conspired to defraud Hiteshkumar Patel by dishonestly falsely representing to him that stones which they had shown him on 16 January 2008 were genuine diamonds, thereby causing him to pay them the sum of US$100,000 for the purchase of those stones. The first applicant was also convicted of an offence committed on 22 January 2008 of assaulting police officers in the execution of their duties outside Central Park Hotel in Hollywood Road.

2.  The first applicant was sentenced to undergo imprisonment for 2 years 6 months on Charge 1 (the conspiracy charge) and 6 months on Charge 2 (assault), of which 2 months were ordered to be served consecutively to the sentence on Charge 1, making a total of 2 years 8 months’ imprisonment. He sought leave to appeal against conviction and sentence but later abandoned that against sentence, which was, accordingly, dismissed on 13 August 2009.

3.  The second applicant sought leave to appeal against conviction but subsequently gave notice of abandonment of that application which was dismissed on 20 April 2009. He has been repatriated to Namibia.

4.  On 22 October 2009 we allowed the first applicant’s application for leave to appeal against conviction in respect of Charge 1, treated the hearing of the application as the appeal, allowed the appeal, set aside the conviction as well as all consequent orders and refused an application by the respondent for a retrial. We dismissed the application in respect of Charge 2. We said we would give reasons later. This we now do.

Withdrawal of legal aid and other procedural history

5.  In September 2008 the applicants filed their home-made grounds of appeal. The applicants were granted legal aid and perfected grounds of appeal against conviction were settled by counsel assigned by the Director of Legal Aid. They are dated 23 February 2009. The assertion there made was that “there was a material lack of competence in Defence counsel’s conduct, such as to cause an unfair trial.” That allegation was particularized by two suggestions; first, that trial counsel had advised the applicants that there was merit in an issue of identification which issue was wholly misconceived and in any event inconsistent with the applicants’ substantive defence and instructions and, secondly, that trial counsel had wrongly advised the applicants that there was merit in surrendering their right to cross-examine the complainant.

6.  On 23 March 2009 the first applicant swore an affidavit which he referred to the history of the identification issue and the advice not to cross-examine the complainant. Exhibited to this affidavit were the original detailed instructions he had furnished trial counsel, as well as documents he had signed at trial counsel’s request. Those original instructions were contained in a handwritten document, 19 pages in length, written in English, a language with which the first applicant, Namibian by nationality, claims and exhibits familiarity.

7.  By letter dated 27 March 2009 counsel assigned by the Director of Legal Aid to argue the applications indicated that the appeal could no longer be regarded as “sufficiently arguable” and that he would not be in a position to argue it. Accordingly, legal aid was withdrawn. For whatever reason the applicant did not file his affidavit with the court until August 2009. As will be evident from the reasons which we provide, we are surprised by that advice, for, in our judgment, the application has always been eminently arguable. Indeed, the particulars provided by the grounds drafted by assigned counsel precisely reflect the basis upon which we allowed this appeal.

8.  The hearing of the applications was fixed for 16 April 2009 but it was vacated to enable trial counsel to respond to the allegations of incompetence that appeared in the grounds of appeal. Of course, the court had not seen the first applicant’s first affidavit.

9.  In response to the court’s direction in April 2009, Ms Linda Shine, counsel for the applicants at trial, filed an affidavit dated 28 April 2009 in answer to the allegations made. Similarly, she too had not by then seen the first applicant’s first affidavit.

10.  The Court of Appeal, differently constituted from this Court, convened on 18 August 2009 for the hearing of the application by the first applicant but the existence of the first applicant’s affidavit dated 23 March 2009 was news to that Court and since it was evident that Ms Shine had not seen it, the case was relisted to enable Ms Shine and her instructing solicitors to comment upon it.

11.  It was in those circumstances that Ms Shine filed a second affidavit dated 24 September 2009. Her instructing solicitor filed an affirmation dated 21 September 2009 but there is no need to refer to that affirmation again because it was sparse as to fact and did not assist, one way or the other, in determining the issues before us.

12.  In reply to Ms Shine’ second affidavit, the first applicant filed an affirmation dated 7 October 2009.

13.  The hearing of the appeal had been relisted for 21 October 2009. Ms Shine was asked by this Court only a day before if she was free to attend on 21 October. She was told in a letter that if she was available and felt that she could refresh her memory sufficiently in time to enable her to deal with questions, the hearing would proceed. Not surprisingly, that request clashed with another commitment and she attended instead on 22 October 2009.

14.  At that hearing, the first applicant was unrepresented.

The prosecution case

15.  On 22 January 2008, the applicants were arrested after a police operation had been mounted following a complaint by a Mr Patel, a Belgian diamond merchant that between 16 and 22 January 2008 the applicants had sought to sell him stones which they claimed were diamonds when in truth they were markedly less valuable topaz.

16.  Mr Patel’s evidence was that he arrived in Hong Kong on 16 January 2008. He checked into the Central Park Hotel in Hollywood Road. That evening, he met the two applicants in his hotel room. The first applicant produced about 80 stones and Mr Patel was told that they were diamonds worth about US$ 500,000. On payment of US$700 he was given a sample ‘diamond’ on which to perform tests. The two applicants were in the room for about 40 minutes and then left, after it was agreed that the two sides would contact one another the next day.

17.  On 18 January there was a second meeting in Mr Patel’s room between Mr Patel and the two applicants. Again the first applicant produced the same parcel of diamonds, on all of which Mr Patel performed and received positive results for the appropriate properties of a diamond. He returned the sample diamond which he had been given earlier. He then agreed a price of US$400,000 for all the diamonds, but split to represent four equal sums. Each of the four quantities of diamonds was placed in a folded paper parcel, each of which was assigned a letter of the alphabet, A – D. He or the first applicant wrote the respective letter of the alphabet on the particular parcel. Each parcel was placed in a separate envelope which was sealed with sellotape and on which the first applicant and Mr Patel appended their initials. The alphabetic designation was also written on the respective envelopes. They parted on the basis that Mr Patel would contact them when he had made arrangements for the payment of the first of four tranches of US$100,000. On that day, the meeting lasted about one hour.

18.  There was a third meeting, this time on 21 January 2008, again in Mr Patel’s hotel room. The first applicant produced four envelopes which he identified as the ones that had been sealed at the earlier meeting. The first applicant handed Mr Patel the envelope marked ‘A’ in return for which Mr Patel paid the two men US$100,000 in $100 notes. The two applicants pocketed the money between them equally. They parted company on the basis that Mr Patel would contact them when he had arranged for the next US$100,000 tranche of money to be available for payment. This meeting lasted around one hour.

19.  Mr Patel then ascertained from an expert that the stones in the envelope marked ‘A’ were not real diamonds and at about 2 p.m. on 22 January Mr Patel contacted the police. Once the police confirmed, after a test arranged by them, that the stones were not diamonds, Mr Patel, at the suggestion of the police, made arrangements for a further meeting with the applicants. That meeting was arranged for about 8 p.m., ostensibly to effect the second transaction, for which purpose Mr Patel was provided with marked banknotes.

20.  At about 8 p.m., Mr Patel received a telephone call from the second applicant who told him that he was outside the hotel. The police had set up several observation posts outside the hotel and a Senior Inspector stood at the main doors of the hotel pretending to be a security employee. He could see the street through a glass door.

21.  Mr Patel left the hotel and saw the two applicants about 50 m away. The applicants approached Mr Patel and there the three spoke face-to-face. When Mr Patel refused to effect the exchange of money and diamonds there and then and requested that the two men accompany him to his room for that purpose, the applicants walked away. Mr Patel walked the 2 m distance back into the lobby of the hotel and gave a signal to a police officer. Mr Patel returned to where he had been outside the hotel where he saw plainclothes police officers arrest the applicants as they ran away. Mr Patel estimated that the two men had been out of his sight for about five seconds. He was in no doubt that the two men arrested were the same two who had sold him the fake diamonds.

22.  It was an admitted fact that an envelope marked ‘D’ was found in an inside pocket of the first applicant’s jacket at the time of his arrest and that envelopes marked ‘B’ and ‘C’, each enclosing transparent stones, were found in a safe inside the room which the applicant occupied at the North Point Harbour Plaza Hotel. In that safe was also found US$30,000 in cash, in $100 banknotes.

23.  The second charge arose from police evidence as to what happened when they ordered the first applicant to stop outside the hotel. Their evidence was that he ran away and assaulted police officers who tried to subdue him.

The defence case

24.  The first applicant gave evidence in his defence. The evidence which he gave accorded with the 19 pages of handwritten instructions which he had provided to those representing him and which were in the possession of his trial counsel, Ms Shine. It suffices for present purposes to say that those written instructions were detailed and that their essence was that the applicants had indeed met Mr Patel on several occasions in his hotel room and that stones were sold, but that no misrepresentation had been made about their nature.

25.  The judge’s summary of the first applicant’s evidence at trial was that the applicants and Mr Patel had several meetings in Hong Kong for the purchase of stones and that Mr Patel had provided watches as security for taking 20 stones as samples. However the watches turned out to be fake. On 21 January, according to this evidence, there was a confrontation with Mr Patel in his hotel and he agreed to return the topaz stones in his possession. The first applicant said that he saw police officers walk past the hotel and he threatened Mr Patel that he would report him to the police not only about the fake watches but also about suggested money-laundering activity. Mr Patel thereupon promised to return the stones to the first applicant the next day. On 22 January they met outside the hotel and it was then that the police pounced upon him. The first applicant said that he did not realise that his assailants were police. He had been framed by Mr Patel in an attempt to pre-empt a complaint by the applicants.

The identification ‘issue’

26.  On the basis of those written instructions and the testimony given by the first applicant there was no question of any identification issue in this case. However, in the circumstances which we will now relate, counsel for the applicants at trial made it an issue. It is the fact that she did, and the consequences of doing so, that gave rise to the complaint of incompetence.

27.  In the course of his examination-in-chief on 22 July 2008, Mr Patel, having described his meetings with the two applicants and the incidents surrounding their arrest, was asked if he recognized them in court. There was no objection to that question or to the dock identification that followed. The lack of objection was hardly surprising for there had been several meetings, Ms Shine’s clients accepted that there had been those meetings, the arresting police had seen one of those meetings, and items had been found in the applicant’s jacket and in his hotel room that matched the story given by Mr Patel.

28.  The dock identification having taken place, Mr Patel was asked to say which of the two men played the roles that he had described: he pointed to the first applicant who had called himself Robito and to the second applicant who had called himself Henry. A few questions were then asked about the stones that had been purchased and they were produced as exhibits and then, entirely as an aside, Mr Patel volunteered the fact that he had been shown photographs by the police of the two men after their arrest “to confirm if it’s them”.

29.  Counsel, no doubt recalling cases in which identification was or was likely to be in issue, where the showing of a photograph of the suspect would be impermissible, thought that she had stumbled upon a point. She raised the matter and prosecuting counsel said that she would take instructions. Examination-in-chief proceeded.

30.  When the hearing resumed in the afternoon, Ms Shine applied to adjourn the case because she had in mind an application to challenge the validity of the dock identification, complaining also that there had been material non-disclosure.

31.  It transpired from the information which prosecuting counsel secured and from the evidence which subsequently emerged at trial that after the applicants had been arrested they were taken to Central Police Station where a detective sergeant instructed a junior police officer to take a Polaroid photograph of each arrested person. Evidence, subsequently called, was to the effect that this was done because the two arrested men were, to the officer’s eyes, difficult to distinguish and it was thought that the photographs would facilitate ongoing investigations. After Mr Patel arrived at the police station, not long after the arrest of the applicants, the two photographs were shown to him.

32.  The adjournment was granted. In the course of that afternoon, counsel held a conference with her clients in the cells of the District Court for approximately two hours. It is common ground that in the course of that conference, she put to her clients that this avenue of attack, namely, the suggested impropriety of showing photographs and the resultant diminution of the value of the identification of the applicants, carried some possibility of success. It matters not, for present purposes, what level of success was canvassed but it is perfectly clear from the manner in which the issue arose at trial and from the extensive detail in the two affidavits sworn by Ms Shine for these proceedings, that the idea of running this point was hers.

Whether to cross-examine

33.  The question next raised by counsel with the applicants was cross-examination of Mr Patel. There is a dispute as to when that question was raised: counsel says that she discussed it specifically on the afternoon of 22 July 2008; the first applicant says that it was only suggested by counsel the following morning during a dock-side conference. It does not seem to us to matter when the discussion took place. What matters is that it was common ground that before the proposed cross-examination of Mr Patel, each applicant signed a document. It said, in each case:

“I agree with counsel that because of the “identification” issue, counsel should not cross-examine PW1.”

34.  The signing of this document followed advice from counsel. The first applicant contends that the reason for the advice was not explained whereas counsel says it was. Again, it matters not which version is correct because it is clear that it was signed on the basis of the view that she had formed which she explains in her first affidavit: that “the submission on the issue of identification – to try to discredit the prosecution’s case by reason of [Mr Patel] having been shown two Polaroid photos of the defendants, after the arrest of both defendants – was arguable [and I advised them] that the consequence of running it was that [Mr Patel] would not be cross-examined as this would only be likely to further strengthen [Mr Patel’s] identification of them, but that at least it was an option worth considering and was worth considering because their own defence … was very weak.” She asserted that they accepted her advice but that “in light of my experience with these defendants I took the precautionary measure of getting them to sign a document to confirm their instructions”; a precaution that assumes considerable significance in the light of certain evidence which counsel gave to this court and to which we will later refer.

35.  It is relevant as well to note that counsel took the view that the identification issue was worth running because of her perception of the strength of the prosecution case, a strength evident, according to her own affidavit evidence, from the nature of the items found in the hotel rooms of the applicants.

36.  The following morning, 23 July 2008, proceedings resumed and there followed an extensive exchange between defence counsel and the court in the course of which counsel made it clear to the court that she was going to pursue an application “regarding the validity of [Mr Patel’s] dock identification and [the question of] material nondisclosure by the prosecution.” The court expressed scepticism as to the merits of the proposed argument given that Mr Patel’s evidence was that he had identified the men at the scene of the arrest and had not said that the dock identification was on the basis of the photographs which he had been shown by the police. Counsel persisted, asserting that there was “plenty of case law that showing photographs of arrested persons to the only identifying witness when those persons are in custody is wholly improper and is wholly wrong,” adding that there was no identification parade in this case and suggesting that it was wholly improper for the police to do what they had done. As a result of all this, it was intended by the prosecution to require a series of police officers to attend for cross-examination.

37.  Mr Patel returned to the witness box, and the court asked a few questions for the purpose of clarification of some facts. Defence counsel asked no questions; in other words, she did not cross-examine Mr Patel.

The case put

38.  Then came evidence from a series of police witnesses of whom questions were asked at length by Ms Shine going to the issue of the photographs and the circumstances in which they came to be shown.

39.  One such officer was the Senior Inspector who had been in the hotel lobby and had seen Mr Patel meeting the applicants shortly before their arrest. Amongst the matters put by Ms Shine to this officer were these:

“Q:  I suggest to you that you were not standing at the right just inside the glass door area, but you were in fact stationed at the reception desk area, in there, posing there as a security person of the hotel.

A:  I disagree. …

.…

Q:  I also put to you that the two men only walked past the hotel entrance and did not stop outside nor speak with [Mr Patel] at any stage.

A:  Disagree.

….

Q:  I further suggest to you that the two men who were arrested in that vicinity of the Central Park Hotel on 22 January 2008 were persons who were just in the area, and were not the same persons whom you have testified as having approached and spoken with [Mr Patel].

A:  Disagree.”

40.  To the arresting officer, counsel put the suggestion that at the time of the police observation outside the hotel on the night of 22 January, it was dark “so you could not actually rule out, could you, whether there were any other African men in that vicinity at that time?” To yet another police officer she suggested that that officer had not had the two men under observation the whole time and then went on as follows:

“Q:  I suggest to you that they were not the only two black men in that vicinity at that time?

A:  You mean there were other black men?

Q:  Yes.

A:  Disagree.”

The no case submission

41.  At the close of the prosecution case Ms Shine submitted to the court that “there is insufficient and reliable evidence at this stage to go before, were that evidence to go before a jury, to reach the standard required at the close of the prosecution case or beyond reasonable doubt relating to the purported identification by [Mr Patel] of D1 and D2.” Then this:

“Identification is an issue in respect of both defendants in our submission and there is no onus on the defence to prove that the identification is wrong or unreliable.”

42.  She went on to submit that no proper foundation had been laid by the prosecution for the dock identification and that the showing of the photographs of two persons who had just been captured by the police on the evening of the 22 January was done “with deliberate intent”. She asserted, in a lengthy submission, that “in a case such as this when neither suspect was known to [Mr Patel], the defence say that it is necessary to hold an identification parade.” (Emphasis added).

The election to testify

43.  Not surprisingly, the submission was rejected by the judge. For reasons which are not clear, the trial was adjourned to 19 August 2008 when the first applicant elected to testify. His co-accused did not testify.

44.  In the first of her two affidavits, Ms Shine explained that:

“In electing to give evidence, D1 understood – and had had it previously explained by me – that if he elected to give evidence, the identification issue would fall away and that he would then be placing himself, and D2, at the meetings with [Mr Patel] and that he would be liable to cross-examination by the Prosecution and the Court on all aspects of the case.

….

I made it very clear to both defendants prior to trial and again during trial that the decision whether to give evidence or not – even if the submission of “No case to Answer” on the identification point was rejected by the Court – was very much each of the Defendant’s to make.  Again, in the light of my experience with these Defendants, I took the precautionary measure of having those instructions confirmed in writing by each Defendant.”

45.  The written instructions to which counsel refers is a note which says:

“Upon the legal advice by our Counsel and Solicitor about the legal consequences of giving or not giving evidence in Court, we, the undersigned, hereby confirm that we will/ will not give evidence in Court.”

46.  In the case of the first applicant, the words “will not” were deleted.

47.  The first applicant testified at trial. As we have previously intimated, that testimony accorded, in essence, with the account contained in his lengthy manuscript instructions provided to counsel; asserting that on several occasions he had met Mr Patel, with whom negotiations took place about the purchase of stones, but that he and his co-defendant had never represented them to be diamonds.

48.  At the conclusion of the first applicant’s evidence in-chief and before the prosecutor commenced cross-examination, the following exchange occurred between the judge and counsel:

“Court: … This defendant’s case was not put to PW1.

Miss Shine: Yes, I’m aware of that.

Court: So is it a matter of an oversight, or I’m not seeking to find out in-depth details of your instruction you received, but I think I need to know whether it was an oversight it was not put to PW1.

Miss Shine: No, no, it was because of the identification point that had arisen, and the identification point relating to the dock ID by PW1, so they were advised in terms of that point and the significance of that point as far as their then case was concerned, and then he – D1, this defendant – has elected to give evidence to tell his - - to give evidence before the court now.  They were advised as to the consequences of not – of PW1’s evidence not being tested, but the possibility that then if the submission of identification was not accepted by the court, then it was their right to continue to give evidence if they wished, which is why D1 has elected to give evidence and D2 is reserving his position.”

Court: Right, yes.  I don’t need to enquire any further.”

Counsel’s closing submissions

49.  After the testimony of the first applicant, speeches followed. In the course of her detailed closing submissions to the court below, Ms Shine referred to the question of identification in these terms:

“[Mr Patel] was not cross-examined as the court was informed because of the identification issue which arose in the course of his evidence in-chief and the defence then submitted that the quality of the dock identification was unreliable and it ought not to be admitted into evidence.  That submission was heard at the end of the prosecution case by way of no-case-to-answer submission and the court made its ruling against the defence and found a prima facie case to exist in relation to both charges.  But the court still has to, at this stage, examine [Mr Patel’s] evidence extremely carefully and with great caution, in our submission, because it is completely uncorroborated.

…it remains an undeniable fact that [he] was shown two photographs of each defendant on 22 January 2008 after the defendants had been captured and while [he] was at the station.  So the defence maintain that [Mr Patel’s] evidence in that regard was tainted and his identification was premised on the fact that he had been shown those two photographs, rendering the whole of his evidence unreliable and unsafe.”

50.  It is obvious therefore that counsel was still pressing identification as a live issue in the case. She did so despite her client’s own testimony and despite her further submissions, which followed shortly thereafter:

“ … the defence submit that [Mr Patel] knew exactly what he was getting, topaz, semi-precious stones, not rough, unpolished diamonds… .

….

D1’s evidence was to the effect that all along [Mr Patel] knew that he and D2 were only selling topaz to [Mr Patel], not rough diamonds at all, that he had no intention to defraud [Mr Patel], only to do business with him and selling topaz to him.  … we submit that overall [the inconsistencies in the first applicant’s evidence at trial] are not enough to detract from [his] overall evidence which ought to be accepted, which was to the effect that D1 and D2 were doing a friend a favour in bringing topaz to Hong Kong to meet that friend’s friend who then agreed to buy some semi-precious stones.”

The evidence on appeal

51.  Because of the issues of fact before us and because it seemed to us, on the face of matters, that counsel’s advice required some explanation, we invited Ms Shine to attend court with a view to giving evidence, which, at short notice, she did.

52.  We heard testimony from the first applicant. It is not in the circumstances necessary to summarise his evidence in any detail for we are satisfied, as is obvious from the affidavits sworn by Ms Shine and from most of her oral testimony, that the identification idea was hers and that the decision of the applicants to allow the identification submissions to be made and not to cross-examine Mr Patel, was a result of advice which she had tendered.

53.  There were some aspects of his evidence which we did not accept, for example, that he all along anticipated that Mr Patel would be cross-examined and that Ms Shine had not explained to him why it was proposed not to cross-examine Mr Patel. We were, however, satisfied that the first applicant, after receipt of Ms Shine’s advice, anticipated an attack on the dock identification in the hope that it would succeed but that, if it did not, he would then give evidence in accordance with his actual defence, namely, that Mr Patel’s story of deception was untrue. That is the impression with which he was left as a result of counsel’s advice.

54.  Because the first applicant represented himself, this Court put a series of questions to Ms Shine in the hope of understanding what had happened and, more importantly, why she had tendered the advice which she admittedly gave.

55.  Amongst the explanations which she advanced were the following:

(1)  During the lengthy conference with the applicants on the afternoon of 22 July she explained to them that an issue had arisen because Mr Patel had been shown photographs of the men.  She said to them that as their own defence was weak, the dock identification issue was an arguable one worth pursuing, and that that identification evidence might possibly be ruled inadmissible.

(2)  She then advised the applicants that the consequence of running this issue was that Mr Patel “would not be cross-examined if [the applicants] elected to run this argument on identification, because he [Mr Patel] would only firm up his identification of them in court and his identification of them at the scene; … it would mean that their defence case of frame-up would not be put to [Mr Patel]”.  She added that she told them that “if they wanted to try and succeed in defending and running the defence of frame-up, then it would be difficult to do so unless [Mr Patel] was cross-examined.”

(3)  In the course of that conference, she advised them that the identification argument was an option worth considering and “they could decide and instruct me as to which line they wished to take, whether they wished to maintain their defence of frame-up or whether they wished me to pursue an argument based on identification.  So the two defences that were then available – one, their own instructions of frame-up, and two, a possible argument on identification – were explained to them very carefully.”

(4)  In the “dock-side” conference the following morning “they each confirmed that they wished to run an argument based on identification,” and counsel told us that she had no doubt that the first applicant understood exactly that Mr Patel was not to be cross-examined since that would “only firm up his identification of them at the meetings and at the scene and they, this applicant and his co-defendant, elected to run an argument … a submission based on identification, and for that reason it was so run.”

(5)  This Court asked counsel what she thought the identification issue was.  She confirmed that, to her mind, the identification issue was an argument of law which, if accepted, would result in a ruling that the dock identification was inadmissible or of little weight.

(6)  The advice she thus tendered to the applicants was given “at the very beginning when the issue of identification arose,” at the conference on the afternoon of 22 July.  The question of the first applicant giving evidence was also discussed in the light of the proposed identification issue to be taken.  Counsel told us that “if the identification issue was not accepted by the court, that he could elect to give evidence in any event, but that in doing so, if he chose to do that, then the identification issue would no longer stand.  He would in fact be then putting himself at the scene and he would place himself … contrary to the identification argument, he would then place himself at the meetings and at the scene.  And I am sure that he understood the differences.”

(7)  When asked whether it followed that the first applicant had never told her that he was not at the scene of the arrest or at previous meetings with Mr Patel, she said that the first applicant understood that in running the identification argument, an argument “was being raised on his behalf which meant that those meetings had not taken place and that he was not at the scene.”  The purport of that testimony was difficult to follow, so the Court sought to clarify what counsel meant.  Her answers were to the effect – so it seems – that the argument that no meetings had taken place was to be advanced only for the purpose of the identification submission but not for the purpose of such testimony as the first applicant might subsequently proffer.  The Court asked whether in those circumstances counsel had felt it proper to put to the Senior Inspector in positive terms that the two men arrested had not been seen by him to speak to Mr Patel.  Counsel then asserted that that information had come from the applicants themselves, although those fresh instructions were not reduced to writing.

(8)  This Court wondered whether, once the court below had rejected the dock identification argument, it had occurred to trial counsel to ask for the recall of Mr Patel to enable her to put the case that was going to emerge in the first applicant’s oral testimony at trial.  Counsel told us that she had considered that course but that in her opinion the reliability of Mr Patel’s identification remained an issue until the end of the trial because the standard of proof at the end of a case was different from that which applied at the end of the prosecution case.

(9)  After a break, the Court offered Ms Shine an opportunity to add whatever it was she wished and in the course of what she then told us, she said that she had been surprised that the first applicant had decided to give evidence for, in doing so, he was “flipping back again”; he was “putting himself then again at the scene”.  She then said that the instructions from the applicants were that none of the meetings with Mr Patel had taken place, that Mr Patel was making the whole thing up, and that at the time of the arrest the two applicants were mere passers-by in the area.  She had advised the first applicant that in the circumstances he ought not to put himself in the witness box.  Neither the new instructions, that there had been no meetings with Mr Patel, nor her advice to the first applicant not to give evidence, were reduced to writing.

Our findings

56.  We regret to say that we did not accept counsel’s evidence that the applicants changed the factual basis of their defence to allege that they had not had the meetings with Mr Patel or that they were not the two persons who had met him outside the hotel on the night of their arrest. We are satisfied that the lengthy written instructions which the first applicant provided and with which his oral testimony accorded, were the only factual instructions ever given to counsel. Putting aside the question whether it would have been proper for her to continue acting for the applicants had they changed their story as she suggests, counsel’s evidence that the story was fundamentally changed to give rise to a real issue of identification is countermanded by a number of factors:

(1)  The very reason given by counsel for not cross-examining Mr Patel was that in cross-examination she would be bound to put to him the applicants’ case, which was that they had indeed met Mr Patel on several occasions but that they had not defrauded him; a course which would, so she thought, strengthen his identification of them.  This speaks for itself.  If indeed their new instructions were that they had never met the man, there would have been no need to avoid cross-examination.

(2)  The suggestion of a factual volte-face by the applicants is never mentioned in either of her two detailed affidavits, the tenor of which was that she initiated the identification point because of the perceived weakness of the defence; a proposition that makes no sense if their defence was mistaken identity.  Furthermore, in the submissions to the court below, counsel had made clear that the identification issue “arose in the course of [Mr Patel’s] evidence in chief”.  That is consistent with the fact that that identification was seen by counsel to be an issue because of her perception that it had been improper to show photographs of the two men to Mr Patel; the point was not taken due to, nor did it coincide with, some decision by the applicants to say that Mr Patel had the wrong men.

(3)  Counsel emphasised that in the light of her experience with the applicants, she took the precautionary measure of getting them to sign documents to confirm their instructions, both in relation to their agreement that Mr Patel should not be cross-examined and in relation to their decision to give or not to give evidence.  The absence of any written instructions to the effect that the applicants had had no meetings in the hotel at which Mr Patel was staying or outside the hotel shortly before their arrest, supports the first applicant’s evidence, which we accepted, that from start to finish he never changed the account he had given to counsel.

(4)  As we see from paragraph 55(6) above, counsel’s testimony was that the question of the first applicant giving evidence arose at the conference on the afternoon of 22 July when she told him that “if the identification issue was not accepted by the court, that he could elect to give evidence in any event but that in doing so, if he chose to do that, then the identification issue would no longer stand.  He would in fact be then putting himself at the scene and he would place himself …  contrary to the identification argument, he would then place himself at the meetings and at the scene.”  This advice could not have been given had the client’s story changed to one that asserted that he had never had meetings with Mr Patel.

57.  It was clear to us that at trial the identification point was a point initiated by counsel and was always intended to be restricted to an assertion that the dock identification was either inadmissible or unreliable because it was based on the fact that the photographs had been shown to Mr Patel and that those photographs ought not to have been shown to him. It was clear to us as well that the advice that that was a tenable argument was proffered by counsel to the applicants and that the applicants accepted that advice.

58.  What counsel had alighted upon was what she perceived to be a technical argument that might succeed. It was, however, an argument that was, on any view, destined to fail.

59.  There are indeed circumstances in which a dock identification, if it is the first identification of a suspect, is impermissible and there are indeed circumstances in which it will be impermissible for the police to show a photograph to a witness for identification purposes. This was not one of those cases. Identification was not an issue, nor could it realistically be one. The clients did not suggest that it was an issue and if counsel considered that it might be made an issue in the sense of putting the prosecution to proof of its case – a tactic which is open to counsel and may in certain circumstances be sensible – there was never the slightest chance whatsoever of that tactic succeeding in this case. Not only had Mr Patel had four extensive face-to-face meetings with the two accused in the days prior to their arrest, but he had had a meeting with them immediately before their arrest; they had been seen by the police having that meeting; they had been pointed out by Mr Patel to the police for the purpose of their arrest; the notion that there may have been other African men out and about outside the hotel was an unlikely one; an envelope marked ‘D’ and topaz stones were found in the first applicant’s jacket pocket at arrest and more topaz stones and cash were found in his hotel room. The showing of the photographs could not in the circumstances have made the slightest difference to the strength of the prosecution case in relation to the identification of the applicants as the men who had had business dealings with Mr Patel. The fact that the prosecution had not revealed the showing of those photographs to the defence before trial was a non-disclosure, but it was a non-disclosure that was not material.

60.  The point which counsel sought to make of the dock identification and of the showing of the photographs was, with respect, a non-point and never had the slightest prospect of success. To use the words of the Perfected Grounds of Appeal, the point was “wholly misconceived”.

The test

61.  The test articulated by Sir Thomas Eichelbaum NPJ in Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126 is in these terms:

“49. … the courts have recognized that in some exceptional instances, an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice.  To describe this ground, the expression “flagrant incompetence” has generally been used… .  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. … The bottom line is that to succeed, an appellant must be able to show he or she received less than a fair trial.  As the Appeal Committee said in Mak Kam Chuen v HKSAR (unrep. FAMC 35/2001, 13 December 2001):

‘… the ultimate question for the court is whether the conduct complained of has resulted in the accused not getting a fair trial so that the conviction is unsafe or there is a miscarriage of justice.’”

Conclusion

62.  In our judgment, the advice given by counsel that there was some chance of success in a challenge to the admissibility or reliability of the dock identification and the consequential advice that it would be contrary to the applicants’ interests for her to cross-examine the witness Patel, went beyond the bounds of an error of judgment. The challenge to the admissibility or reliability of the dock identification was, for reasons we have explained, a point that on any reasonable view could not possibly succeed and the failure to cross-examine Mr Patel was destined materially to undermine such chance of an acquittal which the applicants might otherwise have enjoyed.

63.  We would add – though it makes no difference to the basis of our conclusions – that in our judgment it was not proper for counsel to tell the court below that “identification is an issue”; in her no-case submissions to assert that “neither suspect was known to [Mr Patel]”; to put to the Senior Inspector as a fact that the two arrested men had not spoken with Mr Patel outside the hotel entrance; and to put to the arresting officer as a fact that the two applicants were “not the only two black men in that vicinity at that time.”

64.  The remaining question was whether the taking of the dock identification point, ill-conceived as it was, and the consequential failure to cross-examine the main prosecution witness resulted in depriving the applicants of a fair trial. The answer was clearly: yes. It is difficult to see how it could be otherwise, but we are in this instance supported in that conclusion by the reasoning which the judge utilised in coming to her verdict.

65.  In her Reasons for Verdict, the judge recognized the futility of the tactical course which had been adopted by counsel and that it was in pursuit of that tactical decision that “the defendants’ instructions were not put to [Mr Patel] in cross-examination.” She recognized further that “the approach of not putting a case to [Mr Patel] was an attempt to bolster the identification issue which ultimately came to nothing.”

66.  The judge then said this:

“This conduct of the defence will not prejudice or disadvantage the defendants.  In reality, even if there had been an application to recall [Mr Patel] and it had been allowed, he would have denied the versions of events put forward by the defence, the frame-up.  Even though identification is clearly no longer an issue, I can say here it was not going to succeed even at the ultimate standard of proof required.”

67.  If the judge meant only that identification was proved with or without a challenge to the accuracy of Mr Patel’s evidence she was, in that regard, correct. But we could not agree with a conclusion that the conduct of the defence did not otherwise prejudice or disadvantage the applicants. The judge was no doubt accurate in her assumption that had Mr Patel been cross-examined he would have denied the frame-up defence; that is to say, the defence that he had not been defrauded but had, rather framed the applicants to pre-empt complaints which he feared they would make. However, an assumption of such a denial does not begin to deal with the prejudice that was occasioned by the lack of cross-examination. It is impossible to know what might have emerged from that cross-examination. It might have assisted the applicants’ case; it might have harmed it. One cannot say, and it is precisely because one cannot say that one is driven to the conclusion that the trial was not fair.

68.  Furthermore, in this case, there are specific instances in the Reasons for Verdict themselves in which the judge mentioned the effect of the absence of cross-examination:

(1)  at para 44 of the Reasons for Verdict she said:

“Defence submitted [Mr Patel] was not a credible person as he was engaged in a shady, underground banking business and if he thought he was buying diamonds, he did not mention any Kimberley Certificate required for legitimate legal diamond trading.  Since he was not cross-examined on either of these matters, I place no weight on that submission.  The same applies to the allegation of him passing fake watches as genuine.” (Emphasis added)

(2)  at para 46 of the Reasons for Verdict she said:

“[Mr Patel’s] evidence was most detailed, coherent and convincing.  I am sure he was duped as he described.  There is no inconsistency in his evidence that I need to determine as it was not tested under cross-examination.” (Emphasis added).

69.  The testimony of the main prosecution witness was wholly inculpatory, but not accepted by the applicants. They had a contradictory and exculpatory story to tell. Their right to cross-examine that witness was fundamental to a fair trial, yet they were deprived of that right for a reason that was unsound, indeed fanciful.

70.  It was impossible in the circumstances to say that the applicants secured a fair trial and, accordingly, we granted the first applicant leave to appeal against conviction in relation to the charge of conspiracy to defraud, treated the hearing of the application as the appeal, allowed the appeal and quashed that conviction.

71.  There was no merit in the application for leave to appeal against conviction on the second charge and that was dismissed.

The retrial application

72.  To our dismay, there was an application on behalf of the respondent for a retrial in relation to the first charge.

73.  In respect of Charge 1, the applicant was sentenced to a total of 2 years and 6 months’ imprisonment. In respect of Charge 2, he had been sentenced to a term of 6 months’ imprisonment, 2 months of which had been ordered to run consecutively to the term imposed in relation to Charge 1, the remainder to run concurrently; a total of 2 years 8 months’ imprisonment.

74.  On the date upon which we allowed his appeal in relation to Charge 1, the applicant had, taking into account remission for good conduct, served all but one week of his entire sentence: that is to say, he had served the entire sentence for the charge in respect of which a retrial was sought; and one week was left to go of the sentence imposed for the assault.

75.  Yet the application for a retrial was vigorously pursued. This was so, said Mr Lee on behalf of the respondent, in view of the strong evidence against the first applicant, “in view of the fact that the grounds of appeal was only because counsel had not cross-examined [Mr Patel]”, in view of the fact that this was a serious crime and it was important that there be a determination “whether the victim has in fact been defrauded of the money and how the money should be dealt with.”

76.  Given that the first applicant was at the end of the sentence and that a desire to determine ownership of money can hardly constitute a sound reason to place someone on trial, we refused the application. Disposal of the funds can be dealt with by interpleader proceedings.

The second applicant

77.  Given the basis upon which we allowed the first applicant’s appeal in relation to the first charge, we requested the Department of Justice to forward a copy of this judgment to the last known address of the second applicant so that he may take such steps as he may be advised.