HKSAR v. Harpal Singh and Another

CACC 269/2017

[2019] HKCA 325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 269 OF 2017

(ON APPEAL FROM DCCC NOS 1018 AND 1027 OF 2016 (CONSOLIDATED))

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Before: Hon Macrae VP in Court

Date of Hearing: 6 March 2019

Date of Judgment: 13 March 2019

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J U D G M E N T

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A. Introduction

1.The applicants (whom I shall refer to by their trial designations as “D1” and “D2”) jointly faced a charge of blackmailing PW1 on 15 June 2016, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210 (Charge 1).  D1 also faced a further charge of blackmailing the same person on the following day (Charge 2).  They stood trial together in consolidated proceedings before Deputy Judge Wan (“the judge”) in the District Court.

2.On 17 July 2017, D1 and D2 were both convicted on Charge 1, while D1 was additionally convicted on Charge 2.  On 16 August 2017, each defendant was sentenced by the judge to an overall term of 3 years’ imprisonment.

3.By their respective Form XI Notices, both filed on 29 August 2017, the applicants seek leave to appeal against their convictions only.

4.On 18 January 2019, I called for a Directions hearing to be held, since it was apparent that counsel assigned by the Legal Aid Department had consistently failed to comply with various case management directions given by Master Cheung[1]; one of the results of which is that this Court has been significantly impeded from hearing the present leave applications.  It is particularly unfortunate that these applications are being heard so long after each applicant has completed his sentence.

5.I attach an Annex detailing the history of this matter, which does not, with respect, reflect well on the legal profession.  It is the duty of counsel to comply with directions from the court.  If they persistently fail to do so, without good reason, then instructing solicitors also bear a responsibility and must consider retaining counsel who will comply with the court’s directions.

6.At the end of the Directions hearing, I ordered an expedited hearing of these leave applications before myself on 6 March 2019.  I also gave the parties directions in respect of the deadlines for filing written submissions.  Even then, counsel for the applicants was unable to comply with the Court’s directions and filed a 40‑page written argument four days out of time.  At the hearing of the leave applications, which lasted the whole morning, I reserved my decision and said I would hand down my judgment in writing as soon as possible.  This is my judgment.

B.  Prosecution case

7.Before summarising the prosecution case in respect of both charges, it is relevant to note the relationships between the prosecution witnesses and the applicants, all of whom were Pakistani nationals. The prosecution maintained that while PW1 (the victim of the two blackmail incidents) and D2 had known each other for several years[2], and while PW1 knew D1 by name[3], PW2 did not know D1 and had never met him before[4].

B.1    Charge 1

8.The prosecution alleged that, on 15 June 2016, D1 and D2 blackmailed PW1 by making an unwarranted demand of $800,000 with menaces.  At 11 am that morning, D2 had telephoned PW1 asking him to go to a restaurant in Tsim Sha Tsui called “Tandoori Nights”.  When PW1 arrived at the restaurant (together with a friend[5]) at 11:30 am, he saw D1 and D2 sitting together with some other men.  When PW1 asked why he had been asked to come, D2 told him to sit down and have lunch with them first, which PW1 then did.  After lunch, the other men left the restaurant leaving D1 and D2 behind.  D1 and D2 then in turn demanded that PW1 should give them $800,000 lest he get into trouble.  When PW1 refused to pay, D2 hit a wine bottle on the table and pointed it at him, which scared PW1 because he thought he might be assaulted[6]. D2 further threatened that PW1 would not be allowed to leave the restaurant, and that something would happen to him if money was not paid[7].  At that juncture, the restaurant manager came over to the table and asked D1 and D2 to stop smoking, whereupon D1 slapped the manager across the face[8]. PW1 stood up and unsuccessfully tried to leave the restaurant.  It was not until he promised to pay the money at a later time that he was allowed to leave.

B.2  Charge 2

9.At about 4 pm on 16 June 2016[9], when PW1 and his friend PW2 were sitting in the Hung Kee restaurant in Chungking Mansions, Tsim Sha Tsui, D1 came and sat at their table, repeating to PW1 the demand for money he had made the day before.  When PW1 said he did not have the money, D1 became very angry and said to PW1: “Anything happens to you, you’ll be responsible.  Don’t blame us”[10]. As a result, PW1 said he was frightened.

10.There were admitted facts that D1 was arrested by the police on 5 July 2016; and D2 on 17 August 2016[11].  They were positively identified at an identification parade held on 12 August 2016: D1 by PW1 and PW2; D2 by PW1[12].

C.  Defence case

11.At trial, neither D1 nor D2 elected to give evidence.  Nor did they call witnesses in their defence.

12.Each applicant was at trial represented by junior counsel of considerable experience.  The main lines of defence put forward in cross-examination of PW1 were identical and may be summarised as follows (as italicised):

(a)  PW1 had omitted to mention the blackmail incident in Charge 1 at the first available opportunity; accordingly, his evidence was a later fabrication.

The basis of this allegation was that PW1 had made five witness statements[13]: in the first, taken on 25 June 2016 at Queen Elizabeth Hospital (Exhibit D3[14]), PW1 said he remembered meeting D1 and D2 at Tandoori Nights on 13 or 14 June 2016, but did not go on to mention the blackmail incident alleged in Charge 1, which took place on 15 June 2016.  On this matter, PW1 admitted in evidence that he had not reported the two blackmail incidents to the police, explaining that at the time Exhibit D3 was taken he had just been through a surgical operation, having been wounded in a knife attack on 18 June 2016[15].

(b)  PW1’s telephone records (Exhibit D1[16]) revealed that he had had more telephone conversations with D2 from 13 to 17 June 2016 than he testified to or could remember.

In order to attack the credibility of PW1, it was put to him in cross-examination that there were a total of 8 telephone calls between him and D2.  Nevertheless, PW1 repeatedly said he had no recollection about these telephone calls, save the one in which D2 asked him to go to Tandoori Nights[17]. It was put by counsel for D2 to PW1 that “… between the 10^th and the 17^th…there were a number of conversations between you and the 2^nd defendant”, but PW1 disagreed[18].  After cross-examining PW1 by reference to Exhibit D1, counsel said “I put it to you…that this allegation by you against the 2^nd defendant and the 1^st defendant of having blackmailed you on 15 June is an absolute fabrication from start to finish”.  PW1 disagreed[19].

(c)  PW1 fabricated both blackmail incidents against D1 and D2 in order to protect his former employee.

It was alleged by the defence in cross-examination that, since D1 had implicated a former employer of PW1 called Mohammed Waheed Khan (“Waheed”) at Waheed’s trial[20], PW1 had decided to take revenge by falsely implicating D1.  To this suggestion, PW1 said that there was no reason to fabricate a case against D1 to protect Waheed, since Waheed had only worked for him for 3 months and had already left his employment before the blackmail incidents took place[21].

13.Somewhat curiously, it was expressly stated as an admitted fact[22] that, “at the request of counsel for D2”, the latter’s video-recorded interview, which “is a ‘mixed statement’” was produced and admitted into evidence (Exhibit P5A[23]).

D.  Reasons for Verdict

14.In his Reasons for Verdict, the judge noted that PW1 was subjected to a serious physical assault shortly after the two blackmail incidents in question.  The judge expressly reminded himself that the assault was the subject matter of another criminal case and had nothing to do with either D1 or D2[24].

15.In respect of PW1’s evidence, the judge was of the view that he was unshaken as a witness on all important matters and his evidence was reasonable and convincing.[25] In response to the three issues raised by the defence (highlighted at paragraph 12 supra), the judge found:

“20. Defence submitted that PW1 fabricated evidence to frame up D1 and D2 to help his ex-employee. With respect I disagree. First of all, I see no reason why PW1 would take the trouble and risk to help an ex-employee who only worked for him for 3 months[26]. Secondly, I do not see how by framing up D1 and D2 PW1 could help Waheed. Thirdly, if the ulterior motive is to help Waheed, what was the reason to involve D2 as well? After careful consideration I do not believe PW1 fabricated the two incidents to frame up D1 and D2.

21. I have considered the fact that PW1 had not mentioned clearly about the two blackmail incidents in his first witness statement.  After careful consideration, I find his explanation logical and reasonable.  I have also considered the fact that at the material times he had some telephone contacts with D2.  I do not think the existence of these call records affects the credibility of PW1 and the fact that PW1 had no recollection of these calls does not create any doubt in his evidence.  Given the background of the case as testified by PW1, it is not unreasonable that PW1 and D2 would maintain some ongoing contacts.”

16.As between the evidence of PW1 and PW2 on Charge 2, the judge held that, although there was an inconsistency between them as to whether PW2 left the restaurant alone or together with PW1 (the CCTV footage showing that they had in fact left together), he was satisfied that it was an innocent mistake on PW2’s part, which did not affect the witness’s overall credibility.  Otherwise, PW2’s account was generally consistent with that of PW1[27]. Ultimately, the judge found both PW1 and PW2 to be honest and credible witnesses, whose evidence he accepted in full[28].

17.The judge further attached full weight to the inculpatory parts of D2’s video-recorded interview, and rejected the exculpatory parts[29].

18.In the result, the judge convicted both applicants in respect of the charges they faced.

E.  Grounds of appeal and intended new evidence

19.By his Re‑amended Perfected Grounds of Appeal (“RPGA”) dated 8 February 2019 but filed on 26 February 2019, Mr McGowan, counsel for both applicants on appeal, has advanced no less than 9 grounds of appeal, although some of the grounds (in particular Grounds 6 and 7) were pleaded without the required particulars, which were only set out in counsel’s 40‑page written submissions filed on 13 February 2019.

20.In addition, on 8 February 2019, unsupported by any Notice of Motion, both applicants filed their respective affirmations, including attachments (D1’s being 54 pages in length; and D2’s 52 pages in length) to substantiate a common complaint of flagrant incompetence of counsel.

21.By this Court’s directions of 13 February 2019, the legal representatives for D1 at trial were accordingly invited to file evidence in response to the allegations of incompetence made against them.  D2’s counsel had unfortunately passed away since trial.  On 28 February 2019, an affidavit of Mr John Massie, solicitor for D1 at trial, was filed, followed, on 1 March 2019, by an affirmation of Mr John Haynes, counsel for D1 at trial.  It is clear from the latter, and from the way the trial proceedings were conducted, that the defences put forward on behalf of the two applicants at trial were, as Mr Haynes described them, “joint and identical”[30].  One day before the hearing, a second affirmation was filed by D1.  The respondent has in turn sought to adduce fresh evidence to deal with Ground 6 of the RPGA.

E.1  Grounds 1 to 4 – PW1’s evidence should not be believed

22.It is convenient to deal with Grounds 1, 2, 3 and 4 together, since they all centre around the evidence of PW1.  In short, Mr McGowan submits that the judge erred in finding that PW1 was an honest and reliable witness (Ground 1), naming two specific aspects of his evidence said to be incredible (Grounds 3 and 4; see paragraph 25 infra); he further contends that many of the judge’s findings of fact were erroneous and inconsistent with PW1’s evidence (Ground 2).

E.1.1 Applicants’ submissions

23.In respect of Ground 1, Mr McGowan referred me to the evidence, pointing to a number of areas and answers given by PW1 which he said were either inherently unbelievable or indicative of PW1 being an evasive witness[31]; most of which areas concerned the issues identified at paragraph 12 supra.

24.In respect of Ground 2, although a number of mistakes on the part of the judge were averred, the more significant examples seem to be:

(a)  PW1’s evidence that he had met D2 face-to-face on two or three occasions each for 2 or 3 minutes was incorrectly summarised by the judge as: “D2 sometimes walked past PW1’s mobile ‘phone shop and they would chat casually”;

(b)  PW1’s evidence that when he and his friend reached Tandoori Nights, D1 and D2 were sitting there and later on 2 or 3 friends of D2 came, was inaccurately summarised by the judge as: “When they arrived, PW1 saw D2 was already sitting at a table with some men.  He recognized one of the men was D1”; and

(c)  PW1’s evidence that D2 hit a bottle on the table and pointed it at PW1 wrongly became, according to the judge: “Upon hearing PW1’s reply, D2 picked up a wine bottle and smashed it against the table.  He pointed the broken bottle at PW1 and said …”.

25.Grounds 3 and 4 are essentially a repeat of some of the arguments in Ground 1.  The complaints were that the judge was wrong to accept:

(a)  PW1’s explanations as to why he had omitted to mention the two blackmail incidents in his first witness statement[32], despite a lack of evidence showing his ill health at the time (Ground 3); and

(b)  PW1’s evidence that Waheed had worked for PW1 for 3 months only, which evidence was contrary to Waheed’s defence at his trial, namely DCCC 89 & 525/2016, that he had been working for PW1 since September 2015 (Ground 4).

E.1.2 Respondent’s submissions

26.In respect of Ground 1, Mr Man, on behalf of the respondent, submitted that an appellate court should be slow to interfere with a trial judge’s findings in respect of a witness’s credibility[33].  He also listed details of the impugned telephone records, extracted from Exhibit D1[34], arguing that these telephone calls had to be considered in the context of their very short duration and dates[35].

27.Regarding Ground 2, whilst accepting that the judge was inaccurate in the way he summarised certain parts of the evidence, Mr Man submitted that such inaccuracies were trivial in nature and could not have affected the judge’s ultimate conclusion as to the applicants’ guilt[36].  In short, Mr Man’s response to these mistakes was “So what?”

28.Concerning Ground 3, the respondent referred me to the evidence of PW1 that, at the time Exhibit D3 was recorded, he had just undergone two surgical operations and was still on medication.  Accordingly, it was submitted that it was entirely understandable that PW1 should have failed to provide a full account of the incident on 15 June 2016[37].

29.As for Ground 4, Mr Man submits that the judge had taken the initiative, following re‑examination, to clarify the true relationship between PW1 and Waheed, which PW1 had characterised as “general friend(s)”[38]. Nevertheless, even assuming a closer relationship between the two men, it would be rather far‑fetched to believe that PW1 might frame the applicants up and then commit perjury in order to help Waheed[39].

E.1.3 Consideration

30.It is important to bear in mind the principles to be observed when grounds of appeal are put forward challenging a judge or jury’s assessment of facts and credibility, lest the Court of Appeal be drawn too easily into a second trial, but without the benefit of hearing from the witnesses in respect of contested issues.  Before me, Mr McGowan subjected the evidence to a minute examination, contending ultimately that no judge could conceivably have convicted the applicants on the evidence adduced before the court.  That he regarded the applications for leave as tantamount to a rehearing was made abundantly clear by the multitude of factual grounds of appeal; by the attempt to furnish the court with fresh evidence of unidentified WhatsApp messages supposed to show that PW1 was lying; by the allegation of flagrant incompetence on the basis that trial counsel did not do what Mr McGowan as appellate counsel considered he would have done had he been defending; and by the dissection of certain of the principal witness’s answers, which it was argued made any judgment which purported to rely on them “plainly wrong” and the trial unfair.

31.With respect, an appeal to the Court of Appeal is not a rehearing or a re‑trial.  Points about a witness’s credibility and any factual inconsistencies, unless demonstrated to be plainly decisive and fundamental, are best made at trial, not on appeal.

32.In HKSAR v Egan[40], the Court of Final Appeal held, in a passage that bears repeating:

“194. It is well-established that an appellate court should be very slow to interfere with credibility findings made by the primary judge but that, if it can be shown that the findings are plainly wrong, such interference is mandated. Lord Reid’s statement of the position in Benmax v Austin Motor Co Ltd,[41] is well known:

No one would seek to minimize the advantage enjoyed by the trial judge in determining any question whether a witness is or is not trying to tell what he believes to be the truth, and it is only in rare cases that an appeal court could be satisfied that the trial judge has reached a wrong decision about the credibility of a witness. But the advantage of seeing and hearing a witness goes beyond that: the trial judge may be led to a conclusion about the reliability of a witness’s memory or his powers of observation by material not available to an appeal court. Evidence may read well in print but may be rightly discounted by the trial judge or, on the other hand, he may rightly attach importance to evidence which reads badly in print. Of course, the weight of the other evidence may be such as to show that the judge must have formed a wrong impression, but an appeal court is and should be slow to reverse any finding which appears to be based on any such considerations.

195. In Ting Kwok Keung v Tam Dick Yuen,[42] having cited that passage and others to like effect, Mr Justice Bokhary PJ identified the proper approach of the appellate court as follows:

The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong. The Court of Appeal should intervene if so satisfied. But if not so satisfied, the Court of Appeal should defer to the trial judge’s conclusion even if in some doubt as to its correctness.”

See also the further elaboration of Lord Reid’s statement by Lord Wright in Powell v Streatham Manor Nursing Home[43], adopted by McWalters J (as he then was) in HKSAR v Ip Chin Kei[44].

33.I do not consider that any of the points made on behalf of the applicants under Grounds 1 to 4 amount to reasonably arguable grounds of appeal.  As I have said, the Court of Appeal is not a court of trial, the witnesses having, with all their imperfections, been already subject to examination, cross-examination and re‑examination and the judge having made findings, following submissions, on the evidence called before him.  It is to be noted that PW1 was in the witness box for more than two days, during which time he was, as the judge remarked, “cross-examined by the defence very thoroughly”[45]. By contrast, neither of the applicants elected to go into the witness box in order to undermine, contradict or explain the evidence called by the prosecution.

E.2  Grounds 5 and 6 – Non-disclosure of prosecution material

34.Grounds 5 and 6 were pleaded in the RPGA in the following terms:

“5. The overall history of the case and investigation tends to show that PW1 had made a statement or provided information to the Police before 25 June 2016 that had not been disclosed to the Defence.

6. There were further incidents of “Non-Disclosure”.”

E.2.1 Applicants’ submissions

35.It only transpired from Mr McGowan’s subsequent written submissions that the non-disclosed material encompassed:

(a)  The notebook of DPC 9308, which recorded a visit to PW1 on 23 June 2016.

(b)  A police investigation report (Pol 155) which recorded that the security department of Chung King Mansions had told the police on 18 June 2016 that PW1 was the owner of Hung Kee restaurant and that a female staff member of that restaurant had told the police on 30 June 2016 that she had not seen PW1 in the past three months.

36.Mr McGowan submitted that the notebook of DPC 9308 was relevant in showing that PW1 had not related any blackmail incident to the police as early on 23 June 2016, hence casting doubt on his credibility[46]; and that the Pol 155 form was relevant to the judge’s determination of whether Charge 2 was committed on 16 or 17 June 2016, or at all.

E.2.2 Respondent’s submissions

37.Whilst accepting the non-disclosure of the impugned material, Mr Man submitted that, even if there had been timely disclosure of such material, it would not have given rise to any real possibility of a different verdict in the instant case.  In particular, he pointed out that a record similar to that in DPC 9308’s notebook could be discerned from page 2 of PW1’s first witness statement (Exhibit D3).  In terms of the relevance of the Pol 155 form, Mr Man sought to adduce fresh evidence that the female staff member might not have been on duty on the date on which Charge 2 was committed[47].

E.2.3 Consideration

38.On questions of non-disclosure and their effect upon the fairness of the trial, this Court has, in HKSAR v Johnson Benjamin[48], applied the approach described by Lord Hope in McInnes v HM Advocate[49]:

“The question which the appeal court must ask itself is whether after taking full account of all the circumstances of the trial, including the non-disclosure in breach of the appellant’s Convention right, the jury’s verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome - if the jury might reasonably have come to a different view on the issue to which it directed its verdict if the withheld material had been disclosed to the defence.”

39.Applying that test, and for the reasons given by Mr Man, I do not consider that the complaint amounts to a reasonably arguable ground of appeal.

E.3  Ground 7 – Incompetence of counsel

40.In his RPGA, Mr McGowan merely asserted that the applicants were denied a fair trial because of the incompetence of counsel, notwithstanding that at the Directions Hearing of 18 January 2019, I specifically pointed out that the ground as drafted did not comply with the Practice Direction.  The complaint has only crystallised in the written submissions made on behalf of the applicants and in their affirmations.

41.In this connection, paragraph 7A(10) of the Practice Direction 4.2 states that:

“A written submission must not be used as a vehicle to advance a ground of appeal which is not contained in the Perfected grounds of appeal.”

With respect, the complaint should have been properly pleaded in the RPGA with full particulars.

E.3.1 Applicants’ complaints; and replies to such complaints

42.Various complaints have been mounted against D1 and D2’s legal representatives at trial.  Whilst not an exhaustive list, the essence of those complaints and the replies given by the legal representatives for D1 are summarised in the following table, for which I have taken the new evidence into account on a de bene esse basis so as to determine whether there are potentially reasonable grounds of appeal under this ground.

E.3.2 Respondent’s submissions

43.Mr Man contends that there was nothing in the applicants’ complaints that attains the very high degree of incompetence required on the part of their trial legal representatives, who enjoyed a wide discretion as to how the trial was conducted[59]. In any event, what use to make of certain evidence was a matter of tactic and lay within trial counsel’s discretion.  On the one hand, for example, the decision not to show the CCTV recordings of the lunchtime meeting at the Tandoori Nights restaurant arguably deprived the defence of the possibility of showing that PW1 was not telling the truth about the bottle being banged (or “smashed”, to use the judge’s word) on the table during an alleged blackmail in the presence of other diners: on the other, it meant that the judge would not see vivid confirmation of D1 aggressively slapping the restaurant manager’s face.

44.Mr Man further demonstrated that the CCTV recordings were of limited value as to what they actually revealed of the table where the applicants and PW1 were said to be sitting.  Moreover, there was no point in calling other witnesses present at the lunch because they had left by the time the blackmail offence took place.  What witnesses to call or not call were also clearly matters within counsel’s discretion.

45.As for the complaint that the applicants were not advised of their right to testify in their own defence, it is clear that what was being run at trial was a joint defence, in which counsel had agreed on tactics and that D1’s counsel should cross-examine first.  Furthermore, the decisions not to give evidence were given “after a joint discussion and the standard appropriate advice of both counsel” to their clients[60].

E.3.3 Consideration

46.The two defence counsel involved in the trial below were highly experienced criminal advocates, who might be expected to have had a keen tactical sense in conducting trials.  As the Court in Chong Ching Yuen v HKSAR[61] made clear, as a general rule, a lay client is bound by the way his counsel conducts the trial unless and until he withdraws his instructions from counsel.  Given the explanations of counsel and solicitors made on affirmation/affidavit, in what was obviously a joint defence with close cooperation between the applicants and their counsel as to tactics and cross-examination, I can see no reasonable argument of flagrant incompetence being made out on the material before the court.

47.Mr Haynes avers that “the central point of the case for D2 and D1 (namely, a frame-up) was amply, repeatedly and fairly successfully put by Mr Egan and adopted by myself”.  It does indeed seem clear that not only was this matter extensively and competently covered in cross-examination, but the judge plainly grasped the main thrust of the defence, because his first question of PW1 after re-examination was:

“Q.  Witness, there is one matter I really need to know. You have been cross-examined about the incident concerning your ex‑employee Waheed extensively. So, it seems to me that it is the defence – the position that you were trying to help this Waheed, so I need to know a little bit more about your relationship with this Waheed. Can you tell me a bit about the relationship of you two?”

E.4  Ground 8 – Potential further cross-examination of PW1 in light of the findings in the other legal proceedings

48.By Ground 8, Mr McGowan submitted that, in the light of the inconsistent evidence given by PW1 in the subsequent trial of DCCC 1017 & 1020/2016, it might have created potential areas to cross-examine PW1, which in turn would affect his credibility.

E.4.1 Applicants’ submissions

49.The impugned inconsistent evidence is related to the sole issue of whether the content of PW1’s first witness statement (Exhibit D3) had been interpreted to him in his language before he signed on it.  Mr McGowan submitted that, whilst PW1 testified at the trial below that he was given no interpretation as such, he subsequently testified inconsistently on this matter at the trial of DCCC 1017 & 1020/2016.  Mr McGowan referred to HH Judge Dufton’s Ruling of DCCC 1017 & 1020/2016 at paragraphs 26 and 29, where it was held that:

“26.  Mr Sze cross-examined Mr Malik on the content of his first witness statement dated 25 June, taken whilst Mr Malik was in hospital.  The witness statement was written only in Chinese. Mr Malik confirmed that the statement was translated to him in Urdu and that the content was true and correct.

27.  … 

28.  …

29.  Mr Sze also cross-examined Mr Malik on the content of his second witness statement dated 29 June, also taken whilst Mr Malik was in hospital.  The witness statement was also only written in Chinese. Mr Malik again confirmed that the statement was translated to him in Urdu and that the content was accurate.”

50.Counsel submitted that in the absence of an opportunity to further cross-examine PW1 on the above discrepancies, the applicants’ convictions were unsafe and unsatisfactory.

E.4.2 Respondent’s submissions

51.Mr Man countered that, at the instant trial, PW1’s answer was that he did not know whether his statement had been interpreted to him by his niece; whereas, at the trial of DCCC 1017 & 1020/2016, he positively said that his statement was interpreted to him.  The discrepancy, such as it is, was at best a very minor one.

E.4.3 Consideration

52.This ground of appeal is not reasonably arguable.  Even if one places a pejorative interpretation on the discrepancy, it is not reasonably arguable that it might have led the judge to a different view of PW1’s credibility, sufficient to render the verdict unsafe and unsatisfactory or the trial unfair.

E.5  Ground 9 – Convictions unsafe and unsatisfactory

53.Ground 9 is a general ground of appeal, complaining that the applicants’ convictions were unsafe and unsatisfactory. This ground cannot stand by itself without drawing strength from one of the other grounds of appeal.  Since none of the other grounds of appeal is reasonably arguable, this general ground is by itself unarguable.

F.  Conclusion

54.The applications for leave to appeal against conviction by both applicants are refused.  The applicants are both accordingly advised that they have the right to renew their applications for leave to appeal to the Court of Appeal, but they are also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending their respective appeals, if the Court were to come to the view that there was no justification for the renewal of the applications.

55.Given my view that Ground 7 is not reasonably arguable, I should give the applicants a further warning as to the power of the Court in the event that the applicants choose to renew this particular ground of appeal, but the Court nevertheless comes to the conclusion that it is devoid of merit.  In HKSAR v Lam Mei Ching Bet[62], the Court said:

“34.  We wish to add that this Court has the power to order loss of time in appropriate cases under section 83W of the Criminal Procedure Ordinance, Cap 221.  If such grounds are mounted in future and are found to be, as we have found them to be in this case, totally bereft of merit, we shall use that power; whether or not counsel have approved and argued such grounds.  We respectfully remind practitioners of the Practice Note (Crime: Sentence: Loss of Time) issued on 9 October 2013[63].  Having noted, at para 9, that the fact that an applicant is acting under legal advice is not of itself a bar to an order for loss of time, the Practice Note continues:

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

Mr Jonathan Man SADPP, of the Department of Justice, for the Respondent

Mr James HM McGowan, instructed by John M Pickavant & Co, assigned by the Director of Legal Aid, for the 1^st Applicant

Mr James HM McGowan, instructed by Tsangs, assigned by the Director of Legal Aid, for the 2^nd Applicant

Annex 1 – Events which prompted a Directions Hearing