HKSAR v. Apelete Kokou Afla
Read the full judgment text of CACC 176/2017 on BabelCite. This Court of Appeal judgment was delivered on 24 October 2019.
1. Following a trial before Toh J (“the judge”) and a jury, the applicant was convicted on 16 May 2017 in respect of one count of indecent assault on Ms X, contrary to section 122(1) of the Crimes Ordinance, Cap 200 (Count 1); and one count of rape of Ms X, contrary to section 118(1) of the same Ordinance (Count 2). On the following day, the judge sentenced him to an overall term of 9 years’ imprisonment, also making a compensation order against him in favour of Ms X in the sum of HK$48,120, pu
Cited by 9 cases · Cites 7 cases
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CACC 176 /2017 [2019] HKCA 1320 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 176 OF 2017 (ON APPEAL FROM HCCC NO 74 OF 2016) ________________________
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____________________________ REASONS FOR JUDGMENT ____________________________ Hon Macrae VP (giving the Reasons for Judgment of the Court): A. Introduction 1.Following a trial before Toh J (“the judge”) and a jury, the applicant was convicted on 16 May 2017 in respect of one count of indecent assault on Ms X, contrary to section 122(1) of the Crimes Ordinance, Cap 200 (Count 1); and one count of rape of Ms X, contrary to section 118(1) of the same Ordinance (Count 2). On the following day, the judge sentenced him to an overall term of 9 years’ imprisonment, also making a compensation order against him in favour of Ms X in the sum of HK$48,120, pursuant to section 73 of the Criminal Procedure Ordinance, Cap 221. 2.By two Form XI Notices, one filed on 14 June 2017 and the other on 28 June 2019, the applicant seeks leave to appeal out of time against both his conviction and sentence[1]. Although the respondent does not oppose the granting of both extensions of time, it opposes leave being granted in respect of each application. 3.On 24 October 2019, having decided to grant both extensions of time, we refused leave to appeal and dismissed the appeals, also making a “loss of time” order of 3 months against the applicant. We said we would give the reasons for our decision in due course. These are our reasons. B. An overview of the fresh evidence sought to be adduced by the applicant; and the respondent’s position 4.As a result of the argument put forward under Ground 1, which concerns a complaint by the applicant of flagrant incompetence against both his counsel and instructing solicitor at trial, no less than 12 affirmations/affidavits (as italicised below) have been filed with the Court. Whilst we shall deal with some of their contents in greater detail later, it may be useful at the outset of our judgment to set out the essentials of what the new evidence comprises. 5.By a Notice of Motion dated 18 September 2019, the applicant sought leave to adduce the following evidence at the appeal, pursuant to section 83V of the Criminal Procedure Ordinance:
6.In the light of the matters set out in the 2nd, 3rd and 5th affidavits of the applicant, the Court directed the legal representatives at trial to file evidence in response. Such evidence included:
7.By another Notice of Motion, dated 15 October 2019, the 6th affidavit of the applicant, dated 14 October 2019, was filed in reply to the response of the legal representatives at trial. 8.In its written submissions, the respondent indicated its objection to the admission of the affidavits/affirmations set out at paragraph 5(d)-(g) above, on the following grounds:
9.It will immediately be noted that no evidence was put forward by the applicant in support of his claims from his wife, who is a local Chinese woman, or from the Ewe interpreter at trial, whom the applicant claims he was unable to understand. As will become apparent, these two persons were vital in ascertaining the viability of the allegation of flagrant incompetence by the applicant. C. Prosecution case 10.In August 2014, Ms X, who is from the Philippines, came to work for the applicant and his wife. Ms X described her relationship with the applicant and his wife prior to the incident as good. She communicated with both of them in English. 11.Ms X testified that the applicant would normally leave home to go to work between 7 and 8 am, while his wife would usually leave between 8 and 9 am. Although his wife would generally return home between 8 and 9 pm, the applicant would come home at different times; however, on 25 August 2015, he returned home at about 1 pm, which was unusual. Initially, he sat on the sofa in the living room watching television, while Ms X went about her work in the flat. 12.At about 2 pm, the applicant called Ms X into the living room from the kitchen and asked her if she wanted to have a boyfriend in Hong Kong. Ms X said that she did not want a boyfriend, to which the applicant responded “I want you. I want you to be my girlfriend”. When she heard this, Ms X said she was nervous and, after declining his suggestion, she returned to the kitchen. The applicant then came into the kitchen and told her that if she would be his girlfriend, he would support her and her children, as well as her family. He came towards her but she told him again that she did not want to be his girlfriend and reminded him that the CCTV camera in the flat was operating. The applicant, however, said that he had already switched the system off. After asking Ms X to look at him, he returned to the living room. 13.Sometime later, when Ms X was cleaning the bathroom, the applicant came to the doorway and said again “I want you. I want you to be my girlfriend”. He then closed the door and leant against the inside of the door. Ms X said that she was very nervous and started to cry, worried that she might not have a job any more. The applicant repeated his promise to look after her and her family, to which Ms X responded that she was happy with her salary and did not want anything more. Thereupon, the applicant started to kiss Ms X from her face down to her breasts, at which she crossed her arms to prevent him touching the area of her breasts. The applicant, however, removed her arms and hands from her breasts and held them tight, preventing her from leaving. He then sat on the toilet and forcibly pulled Ms X onto his lap. He pulled up her T-shirt, undid her bra and kissed her breasts. 14.The applicant then picked Ms X up and sat her on the sink unit in the bathroom, where he again kissed her from her face to her breasts. The judge was later to observe that Ms X was about 5 feet tall and weighed less than 100 pounds[9]. Ms X tried to get down and leave the bathroom, but the applicant blocked her exit. He told her that if she wanted to leave, she had to hug him first. Ms X then reluctantly hugged the applicant. The applicant left the bathroom and Ms X immediately went to her bedroom, intending to take a bath, since she felt dirty and sticky. However, the applicant followed her into her room and said that he wanted to kiss her again. She noticed that he had removed the shirt he had previously been wearing and was now only wearing a pair of black shorts. He took hold of Ms X and kissed her, undid her bra again and undressed her before placing her forcefully on the bed. Ms X tried to cover the buttons of her own shorts with her hands, but the applicant pushed her hands away and removed her shorts and pants. Although she tried to keep her legs together, the applicant forced them apart. He then had sexual intercourse with her. The applicant subsequently removed his penis and wiped it before going into the bathroom. PW1 was not able to say whether he had ejaculated or not during the encounter. 15.Ms X immediately contacted a Filipina friend called Razel and told her what had happened, before going to the bathroom to clean herself. When she came out, she contacted Razel again. 16.Ms X then resumed cleaning the bathroom, at which point the applicant again spoke to her, saying that he would send money to her family and asking her not to show his wife how sad she was. By this time, Ms X was crying continuously. Having completed her chores, she spoke again with Razel. 17.A number of missed telephone calls between Razel and Ms X, as well as Facebook messages and their contents passing between the two of them, were admitted at trial by way of Admitted Fact evidence[10]. 18.Later the same day, a report was made to the police, as a result of which a party of police officers arrived at the applicant’s flat at 7:52 pm. PW3, the arresting officer, testified that Ms X opened the door and rushed out, crying and in obvious distress. The applicant was arrested and cautioned, upon which he said, in English, “We both agreed before have the sex together”. His answer was recorded in the officer’s police notebook[11], which was subsequently admitted into evidence as Exhibit P7[12]. D. Defence case 19.The applicant elected not to testify, nor did he call any witnesses on his own behalf. Nevertheless, as may be discerned from cross-examination conducted on his behalf, his case was that he and Ms X had been having an affair for some time, during which she had borrowed money from him from time to time; sometimes $500, sometimes $1,000[13]. It was accepted that the applicant and Ms X had touched each other intimately and had sexual intercourse on the day in question, but such sexual activity was said to be consensual, after which she demanded $100,000 to leave and not tell anybody about what had happened[14]. However, the applicant refused to pay. E. Summing-up 20.The judge began her summing-up by contrasting the respective versions of events for the prosecution and defence. She reminded the jury that[15]:
She then directed them that “the real issue you have to decide was whether [Ms] X did give her consent”[16]. F. The allegation of flagrant incompetence (Ground 1) 21.There is considerable factual dispute between the applicant’s account of what happened and that of counsel, the solicitor and the solicitor’s clerk at trial in response. Whilst not exhaustive, the essence of the allegations and the response to them may be summarised as follows. F.1 The applicant’s complaints against his legal representatives 22.The applicant has averred that he began an affair with Ms X, without the knowledge of his wife, in 2015 and had consensual sexual intercourse with her on some six or seven previous occasions. However, he had not had sexual relations with her on the date of the alleged offences[17]. Normally, after having sexual intercourse with Ms X, she would demand money from him. He had paid her initially, but later refused to pay. On 25 August 2015, the applicant was granted sick leave because of an injury to his finger. Accordingly, he returned home in the afternoon, whereupon Ms X repeated her demand for money and he again refused. It was asserted that because of his refusal, Ms X had made a false accusation against him to the police. 23.In respect of his legal representatives, the applicant said that since they insisted on holding the conferences in the presence of his wife, save for the initial meeting in Tuen Mun Police Station after his arrest, he had no opportunity to disclose to them what had actually transpired between himself and Ms X[18]. Although he denied having had sexual intercourse with Ms X on 25 August 2015, his trial counsel had proceeded to defend his case on the basis that consensual sexual intercourse had taken place on the day in question; of which fact he was not aware until after trial, because of his poor English[19]. 24.According to the applicant, his legal representatives had required the presence of his wife at conferences so that she could interpret for him into English what was being said to her in Cantonese[20]. He claimed that during his first conference with his counsel and solicitor in counsel’s chambers, he had indicated that he could speak French[21]. Nevertheless, no French interpreter was ever arranged for him by his then legal representatives. 25.The applicant said that there was nothing from his legal representatives to show that they had taken any written instructions as to his defence before the actual start of the trial[22]. In fact, nothing was discussed concerning his defence, even on 12 May 2017. During a visit from his legal representatives to the cells before the court sat that morning, no instructions concerning his defence were taken. Instead, counsel had told him that he would apply for the case to be re-fixed since the defence were not ready for trial and, if the court refused the request, he would withdraw from representing the applicant. Accordingly, counsel’s attendance note of that particular conference in the cells did not reflect what had actually happened[23]. F.2 The response from the legal representatives at trial 26.Trial counsel stated in his affirmation that he considered that from their first meeting together, the applicant could speak fluent English[24]; he had never told them that he could speak French[25]. Counsel set out the chronology of his meetings with the applicant, citing two occasions when the applicant had come without his wife, the applicant having been advised not to bring his wife because of the nature of the discussions[26]. Counsel went on to state that, whilst the applicant’s instructions had changed on no less than 10 occasions, he had consistently accepted that he had sexual intercourse with Ms X on the date of the alleged offences[27]. His instructions were not finalised because they were constantly changing, and also because the applicant was hospitalised just before the trial was due to begin. However, written instructions were signed by the applicant on 12 May 2017[28]. 27.Both the applicant’s solicitor and solicitor’s clerk at trial confirmed in their respective affirmations that they had no difficulty in understanding the English spoken by the applicant throughout their several conferences[29]. The solicitor’s clerk further produced various WhatsApp text messages[30] and voicemail messages[31] to demonstrate that the applicant could speak English. Both he and the solicitor averred that no one in their legal team had ever insisted that the applicant’s wife be present at any of the meetings[32]. G. Grounds of appeal G.1 Grounds of appeal against conviction 28.Mr Ross, counsel on behalf of the applicant at this appeal, has advanced five grounds of appeal against conviction, namely: Ground 1 Both the applicant’s counsel and solicitor at trial were flagrantly incompetent, in the following respects:
Ground 2 The applicant was deprived of a fair trial because the judge refused to provide him with a Togolese Ewe interpreter, as distinct from a Ghanaian Ewe interpreter; as a result, he could not fully understand the interpretation given by the court interpreter. Ground 3 The judge failed to direct the jury that if they found the explanation in the applicant’s answer to caution that he had consensual sexual intercourse with Ms X was or might be true, they must acquit him of both counts. Instead, the judge had directed the jury that there was “no evidence from the defence”[33] to undermine, contradict or explain the evidence put before them by the prosecution, thus rendering his answer to caution nugatory. Ground 4 The judge’s directions on the drawing of inference were inadequate. Ground 5 The judge failed to direct the jury that if they were not sure Ms X’s distressed condition was genuine, such a finding was capable of undermining Ms X’s credibility. G.2 Grounds of appeal against sentence 29.It was argued that the judge was wrong to have enhanced the sentence passed on the applicant for delaying the proceedings without making any finding that the delay was intentional. Further, both sentences were manifestly excessive by reference to other cases where lower starting points had been adopted. Accordingly, the resulting sentences, both individually and cumulatively, were manifestly excessive. H. Respondent’s submissions H.1 The respondent submissions (on conviction) 30.In relation to Ground 1, Mr Lai, with him Ms Ng, for the respondent, submitted that the suggested need for having the applicant’s wife present in the conferences was absurd: the legal representatives could simply converse, and evidently did converse, with the applicant directly in English[34]. Moreover, if the applicant had felt embarrassed about giving instructions to his legal representatives in the presence of his wife, he was perfectly able to do so privately[35]. Mr Lai said it was self-evident that the applicant was proficient in English and had no difficulty in communicating with his legal representatives in English, as the WhatsApp text and voicemail messages made quite clear[36]. 31.In relation to Ground 2, Mr Lai submitted that, faced with the applicant’s request for an interpreter, the judge took sufficient measures to ensure that his constitutional right to the free assistance of an interpreter was not violated, and his right to a fair trial not thereby compromised. In any event, the applicant did not make any complaint at any stage of the trial to either the court or his counsel or solicitor that he had any difficulty in understanding the proceedings. 32.In relation to Ground 3, the respondent submitted that the judge’s reference to “no evidence from the defence”, when read in its proper context, would have been taken to mean that there was no oral testimony from the applicant to contradict the prosecution case. The judge’s directions were fair to the applicant in their overall effect. 33.In respect of Ground 4, it was pointed out that the evidence on which the prosecution relied to prove lack of consent in relation to the two counts came directly from Ms X herself. There was no circumstantial evidence capable of proving her lack of consent and no need for any direction on inferences. 34.In relation to Ground 5, Mr Lai invited the Court to note that PW3 was not cross-examined on her description of Ms X’s distress, nor was it put to her or Ms X, nor suggested in defence counsel’s closing speech to the jury, that such evidence might have been feigned. And nor had counsel suggested to the jury that if they had a reasonable doubt about the genuineness of Ms X’s distressed condition, they should disbelieve her altogether. Moreover, there was no legal requirement for the judge to give such a direction. H.2 The respondent’s submissions (on sentence) 35.Mr Lai contended that the judge could not be criticised for taking into account the delay in the start of the trial, for which the applicant was entirely responsible, and the additional anxiety such delay would have occasioned Ms X, who had been brought from overseas to give evidence. He also submitted that the overall criminality of the applicant was higher than that of the applicant in HKSAR v Chan Tung Hing[37], which was relied upon in this appeal, but which involved a single count of rape only. He accepted that whilst the sentence of 4 years’ imprisonment on Count 1 may, when viewed in isolation, have been on the high side albeit not manifestly excessive, it did not matter, since the sentence was made wholly concurrent with the much longer sentence on Count 2. I.Discussion I.1 Ground 1 (flagrant incompetence) 36.Although there are no less than six affidavits/affirmations from the applicant (four of them dealing with the allegation of flagrant incompetence), the final one being a reply to the evidence filed by the legal representatives at trial, as well as four affidavits/affirmations purportedly in support of his claims from different witnesses, the allegations against counsel and his solicitor under Ground 1 are in fact very limited. First, it is said that instructing solicitors had never engaged any interpreter when taking instructions from the applicant, instead relying on the applicant’s wife to translate what he said in English to enable counsel and solicitor to understand. Secondly, no written instructions as to the applicant’s defence were taken before trial. It is said that his case was that he did not have sexual intercourse with Ms X, nor did he indecently assault her, on 25 August 2015, yet his counsel had cross‑examined her on the basis that consensual sexual intercourse had taken place on that day. Thirdly, it is complained that his legal representatives had not informed the court that the applicant could accept a French interpreter. 37.When the appeal commenced, we were informed by Mr Ross that he intended to call all five deponents of the affidavits/affirmations as witnesses, including the applicant, notwithstanding that the Court had been supplied with no less than 541 pages of affidavit/affirmation evidence (including exhibits) from the parties. Furthermore, he also wished to play to the Court the WhatsApp voicemail messages between the applicant and trial counsel, which had first been disclosed in the affirmation of the solicitor’s clerk. We pause here to note that one of the rather telling points made by Mr Lai, on behalf of the respondent, was that neither the applicant nor any of his witnesses had ever referred to the existence of such voicemail messages. 38.When, at the outset of the appeal, we queried what Mr Ross hoped to achieve by calling oral evidence, he gave the following reasons. First, so far as the applicant was concerned, Mr Ross wished to play the WhatsApp voicemail messages to him and ask him to comment on them, since that had not been done as part of any affidavit. With respect, we were quite able to draw our own conclusions from listening to this evidence, which we agreed should be played in open court. 39.Secondly, Mr Ross wanted the applicant to explain how his 2nd affidavit had been executed in English without an interpreter. We were not in the least troubled by this matter. Clearly the affidavit would have been prepared in English on instructions and it is not suggested that its contents do not reflect what the applicant said or meant. We have certainly not made use of the absence of any formal proof of translation to demonstrate that the applicant’s English was good enough to sign a legal document prepared on his instructions. 40.Thirdly, Mr Ross wished to call the applicant and NP to explore whether the applicant’s French had improved or not by the time she came to interpret for the fresh solicitors from 18 July 2019 onwards. However, it has never been in dispute that the applicant speaks, to use the language of his 2nd affidavit, “some French”. The issue before this Court is whether his counsel and solicitor at trial were flagrantly incompetent in not informing the trial court that the applicant could accept a French interpreter; particularly when, on the applicant’s own case, he had only mentioned the matter once, on 30 August 2015, almost 21 months before the trial took place. 41.Fourthly, Mr Ross wanted to ask the applicant and MND whether the applicant’s English had improved or deteriorated since MND started translating documents for him in prison. Inasmuch as we understood this extraordinary reason at all, we were far more interested in things as they stood at the time of trial than when the two men first became friendly in prison in December 2017, some seven months after the trial had concluded. In this connection, we should register our strong disapprobation that MND’s affirmation had been placed before us without revealing that he was a prisoner serving 10 years’ imprisonment in respect of nine counts of conspiracy to defraud; a fact which this Court itself had discovered, one of its members having sat on MND’s appeal to the Court of Appeal[38]. Even Mr Ross did not know that MND had previous convictions for dishonesty; although he did know that MND had not wished to disclose in his affirmation that he was a serving prisoner, and yet sanctioned this serious omission from his affirmation. We consider it regrettable that an affirmation should have been placed before us without the deponent disclosing something as fundamental, important and relevant as a criminal record for dishonesty. 42.Fifthly, Mr Ross said that he wished to call FKA, a software engineer living in Hong Kong, who had, we were subsequently informed, briefly encountered the applicant before these proceedings, to explain the linguistic differences between Togolese Ewe and Ghanaian Ewe. However, these had been fully described in his affidavit. Accepting that there are differences, we are not concerned with theoretical distinctions between languages or dialects: we are concerned with whether the applicant understood the proceedings sufficiently to have received a fair trial. 43.This led to Mr Ross’s final point that he also wished to ask the applicant why he did not object to the Ewe interpretation during the actual trial. With respect, this was an obvious matter which lent itself to be dealt with by way of affidavit. Yet, it never was. 44.It thus became apparent that the real purpose of wishing to call live evidence before this Court was to repeat and reinforce the contention that the applicant did not understand English sufficiently and had not received a fair trial because he was unable to communicate properly with his lawyers and did not understand either English or the Ewe language interpreted by the court interpreter at trial, which was different to the Ewe language he spoke. Further, he was never provided with a French interpreter, whom he would have understood. There is clearly a conflation of Grounds 1 and 2 in this regard. 45.Having adjourned to consider the application, we decided that we were not prepared to permit oral evidence to be called on any of the bases proposed by Mr Ross. Not only did his suggested purpose in calling the witnesses not directly address the allegations of flagrant incompetence levelled at trial counsel and his instructing solicitor or, if it could be said to have engaged the issue peripherally, it was unnecessary to give oral evidence given that these matters had been fully engaged and explored by way of 12 affidavits or affirmations (leaving aside two of the applicant’s affidavits which dealt with his applications to appeal out of time). As for the applicant’s linguistic abilities, oral evidence could not take us any further than that which had been stated by way of affidavit/affirmation. We could not see any profit in the applicant listening to, and then commenting upon, his utterances in various WhatsApp voicemail messages, from which we could judge the standard of his English for ourselves. Ultimately, we considered it more desirable that Mr Ross make submissions on the existing evidence, which we were prepared to receive on a de bene esse basis. 46.We must stress that the Court of Appeal is not a court of trial. It rarely receives fresh evidence, still less oral evidence, unless it considers it necessary or expedient in the interests of justice in accordance with the narrow parameters of section 83V of the Criminal Procedure Ordinance. How it determines the scope of its enquiry where flagrant incompetence is alleged, and the methods by which it may receive evidence in any such enquiry, is a matter for this Court, not for the applicant. For any evidence to be admitted on appeal in any form it must be relevant and credible, and otherwise admissible. 47.However, as we have indicated, we did permit Mr Ross to play any relevant recordings of the WhatsApp voicemail messages he considered necessary, and we accordingly listened to those in open court. 48.It will be convenient if we address the question of the applicant’s linguistic abilities (or disabilities) first, since the resolution of this issue impacts not only on Ground 1, and his apparent difficulties in communicating with his solicitor and counsel, resulting in an alleged lack of proper instructions being taken and the putting of an incorrect defence case to Ms X; but also on Ground 2, and the applicant’s alleged inability to understand the proceedings through the Ewe interpreter provided to him. 49.Whilst we, of course, accept that the applicant’s mother‑tongue is Ewe as spoken in Togo, from which country he came to Hong Kong in 2006, we unreservedly reject the claim that the applicant was unable to understand either his lawyers or the proceedings, whether in English or in Ewe. 50.The applicant had been in Hong Kong by the time of his trial for over a decade. He had chosen Hong Kong in order to claim asylum and had subsequently married a local Chinese woman in 2012. A child was born in the following year. He did not speak Cantonese and communicated with his wife in English. At the time of his arrest, he was working for an Australian construction company, which required him to use English at work. As we have already noted, he also communicated with Ms X in English. Accordingly, the language the applicant used in his daily life both at home and at work was English. 51.As for his communications with his legal representatives at trial, their evidence was clear that they had understood each other perfectly well. The applicant’s trial counsel described the applicant as speaking fluent English despite his foreign accent. The applicant’s claim that his English was poor, that he could not understand much English and that he could not express himself well in English was described by the trial solicitor in emphatic terms, as “absolutely not true”; while the solicitor’s clerk recalled that since their first meeting, the applicant had never complained that he could not understand English, nor did he or the legal team have any difficulties in understanding the applicant’s English. 52.These statements by the legal representatives are borne out by what the court was told at various times in the course of pre-trial proceedings. A letter from the solicitors to the Registrar on 14 March 2016 informed the court that “the trial of the above case is preferred to be conducted in English”. The trial was duly fixed by the listing judge for five days from 8 May 2017. No interpreter was ordered, because none was requested. The first mention of a need for any interpreter at all was at the pre-trial review hearing before the judge on 2 March 2017, in which counsel informed the court that his solicitors had just received instructions “a couple of days ago” that the applicant would need an Ewe interpreter at trial. The judge, no doubt taken aback by this sudden development, pointed out that no interpreter had been requested for any of the previous proceedings[39]. Nevertheless, she said that the court would try its best to locate an interpreter, but that it might delay the trial which was only two months away. Counsel then explained to the court[40]:
53.With the trial scheduled to commence on Monday, 8 May 2017, there was an application on Friday, 5 May 2017 for the applicant’s bail to be varied in order to allow him to take possession of his passport so that he could apparently present it to two financial institutions in Tuen Mun. After the judge had dealt with that matter, counsel told the court that the applicant would need an interpreter who spoke Ewe as spoken in the region from which the applicant came in Togo, rather than the Ewe spoken by the current interpreter who spoke Ewe from Ghana. Having pointed out that no application had hitherto been made for any particular strain of Ewe, the judge took the opportunity to ask the Ewe interpreter whether there were any differences between the two forms of Ewe. The interpreter told the judge that there were “a few variations”[41]. He nevertheless agreed that, while there were differences in the use of “technical terms”[42] and “a few things are different”[43], “Ghanaian Ewe was closest to Togo Ewe”. He acknowledged that “those who live around the border with Togo, then their Ewe is slightly different from what I speak, so he may understand. But I don’t know anybody who could do that”[44]. 54.When the trial commenced on 8 May 2017, the applicant was absent, having been hospitalised the previous day. He was similarly absent on 9 May 2017, as a result of which the judge, conscious that the principal witness had been flown from the Philippines and was waiting to give her evidence, revoked the applicant’s bail and ordered that he be taken into custody in Queen Elizabeth Hospital for a comprehensive medical assessment. The judge also indicated to counsel that when the trial began, the applicant could choose which of the two Ewe interpreters he was “more comfortable with”[45]. She also directed that all counsel should keep their questions short and simple so that they could be easily translated[46]. 55.The applicant was again absent on 10 May 2017. We shall have something to say about these absences later. On 11 May 2017, the applicant appeared in court, as did the two Ewe interpreters as directed. It was pointed out by one of the interpreters in the course of proceedings following arraignment that the other interpreter, a Mr Adjorlolo, would be the better interpreter for “explaining the technicalities of the proceedings”[47], since he was a native Ewe speaker[48]. Mr Adjorlolo then told the court, which we find of some interest, that when the applicant spoke to him, the interpreter understood him clearly, yet when the interpreter asked the applicant questions, the applicant apparently did not understand him[49]. The interpreter voiced this concern[50]:
56.In response, the judge then said this[51]:
57.In our judgment, the judge was absolutely right. It should be remembered that there was essentially only one witness for the prosecution who was contentious; the other two witnesses (PW2 and PW3) were not even cross-examined by the defence. The evidence of Ms X, who was PW1 at the trial, lasted from 2:59 pm on Thursday, 11 May to 3:43 pm on Friday, 12 May 2017; indeed, her cross-examination was completed by 12:44 pm on the Friday. Counsel’s speeches were delivered on Monday, 15 May and the summing‑up commenced on Tuesday, 16 May 2017. The verdicts were delivered on the same day. It was an extremely short case with a very simple issue. That issue, as the judge rightly emphasised at the outset of her summing-up, was consent. There was nothing complicated about the case and there were no technicalities involved in the evidence. Nor on a full reading of the transcript was there anything complex about the evidence or the terms or language used. We are in absolutely no doubt that the applicant would have known exactly what the case against him was and what Ms X was saying in her evidence, whether he listened to the Ewe interpreter or the English translation of Ms X’s evidence. Indeed, nowhere in his entire set of affidavits has he actually averred that he did not understand what she was saying. The closest he has come is to claim, belatedly some three days before the re-amended grounds of appeal were filed, and in general and non-specific terms, that he “did not understand what was going on in the trial”[52], which was plainly untrue. 58.We found the WhatsApp voicemail messages rather devastating support for the evidence of the three members of the applicant’s legal team that they and the applicant understood each other perfectly well. Having listened to those recordings ourselves, we had no difficulty in understanding the applicant’s English at all. Indeed, we characterised our impression of the applicant’s English to Mr Ross during the argument as not in any way hesitant, but smooth and intelligible. He did not disagree, but retorted that we did not know whether his wife might have been standing next to the applicant at the time telling him what to say. With respect, such an answer, for which Mr Ross took no instructions before uttering it, was unworthy of any advocate appearing before the Court of Appeal and was as fanciful and devoid of common sense as the ground of appeal itself. 59.Apart from voicemail messages, we were also provided with numerous WhatsApp text messages between the applicant and the solicitor’s clerk between 29 September 2015 and 5 April 2017, all of them written in English. Admittedly, the messages and responses written by the applicant contain fairly basic expressions and phrases, as one might expect in WhatsApp exchanges. Nevertheless, they evince a clear ability on his part to read, write and communicate in English. 60.Furthermore, when the applicant was arrested and cautioned, the arresting officer made a lengthy post-record of the event in his notebook, Exhibit P7, in the presence of a Cantonese to English interpreter. The applicant was able to respond to all questions posed in English, to confirm what he had said in English upon arrest and to confirm the officer’s record as true. We also note that while the applicant did say he did not understand Cantonese, he did not at any stage say he did not understand English. In fact, he wrote several things in the notebook in his own hand in English. Exhibit P7 was produced at trial without objection[53]. 61.It is convenient, since we are dealing with the applicant’s language abilities (or disabilities) and their consequences in relation to the conduct of his defence and the fairness of the trial, if we address the allegation that the applicant’s legal representatives were flagrantly incompetent in failing to inform the court that the applicant could accept a French interpreter. On this issue, it is worth noting the genesis of this complaint. When original perfected grounds of appeal were filed by Mr McGowan of counsel on 29 January 2018, nothing was mentioned at all about the applicant’s ability to speak French, or his desire or preference for a French interpreter at trial. When Mr Ross replaced Mr McGowan as counsel and filed amended perfected grounds of appeal on 4 July 2019, nothing was again mentioned about the applicant’s ability or wish to speak French at trial. 62.The issue reared its head for the first time in the re-amended perfected grounds of appeal filed by Mr Ross on 19 September 2019, more than two years after the applicant’s conviction. The basis for this allegation against the applicant’s legal representatives would appear to be two references in the applicant’s 2nd affidavit, which was exhibited to his 3rd affidavit filed on 25 July 2019, in which it was said, firstly, that he spoke “Togo Ewe and some French and broken English”[54]; and, secondly, that at a meeting on 30 August 2015 in counsel’s chambers:
Indeed, the issue was never mentioned again in any of the remaining four affidavits of the applicant either. 63.This is particularly surprising, given that in the bail variation hearing before the judge on 5 May 2017, the then Ewe interpreter had said in front of the applicant and, of course, his legal representatives that, while the applicant could communicate in French, he could not speak “formal French”, but rather “street French ... pigeon (sic), so to speak”[56]. He went on to tell the judge that the applicant would not understand a formal French interpreter and that one would have to find a Togolese French interpreter[57]. Notwithstanding the interpreter’s remarks being made right in front of him, the applicant took no issue with what the interpreter had said and the subject of the applicant’s preference for a French interpreter was never mentioned again, until, that is, the applicant’s re-amended perfected grounds of appeal dated 19 September 2019. 64.We have now had the applicant before us on two occasions, namely 13 June 2019 and 23 October 2019. We are bound to observe that, on each occasion, he has had no hesitation in drawing to the Court’s attention by hand-signals or requesting to speak to his instructing solicitors, his dissatisfaction with the Ewe interpreter provided or other matters which he wished to draw to his counsel’s attention. Yet, we also note from the transcript of Ms X’s evidence that at no stage did he ever indicate to the court, the interpreter or his counsel that he did not understand what she was saying. 65.We are entirely satisfied that while the applicant may indeed understand “some French”, as he put it in his 2nd affidavit, he is also perfectly comfortable in English and understood the Ewe interpreter provided to him at trial, as indeed the Ewe interpreter understood the applicant. The complaint about his not being provided with a French interpreter, when he had never asked for one, is a recent invention to try and bolster his claim that he did not get a fair trial. Yet, it has never been contended that he did not understand Ms X’s evidence, in whatever language medium he was receiving it. 66.We also emphatically reject the allegations that the applicant’s counsel and solicitor were flagrantly incompetent in failing to engage an interpreter when taking instructions from him and by relying on the interpretation of the applicant’s wife to communicate with him. Quite apart from the fact that we have no evidence to support these allegations from the applicant’s wife, they were completely undermined by the recordings of the WhatsApp voicemail messages, to which we have referred. We have absolutely no doubt that his legal representatives understood the applicant perfectly satisfactorily for the purposes of taking instructions and representing him throughout these proceedings. Indeed, as Mr Lai has pointed out, that would explain why the applicant was content to retain the services of his legal team on a private basis for some 21 months from 26 August 2015, when they first met each other inside Tuen Mun Police Station where trial counsel advised the applicant in English to remain silent at his interview, which advice the applicant followed, until the trial concluded on 17 May 2017. 67.This leads to a consideration of the final complaint of flagrant incompetence levelled against the applicant’s counsel and solicitor at trial that no written instructions were taken from the applicant before trial, which led counsel incorrectly to put a case to PW1 of consensual sexual intercourse on 25 August 2015, when in fact his instructions were that no sexual activity had taken place on that day. 68.In answering this complaint, trial counsel has produced not only his attendance notes detailing no less than seven conferences he had with the applicant prior to trial, including a site visit to the applicant’s home to inspect the scene, he has also produced a type-written document with handwritten amendments, entitled ‘Statement of Apelete Kokou Afla’ (“the Statement”), signed by the applicant and dated 12 May 2017. Mr Ross has confirmed that the Statement was indeed signed by the applicant, although the applicant claims that he never read it (and not, interestingly, that he was unable to read it because it was in English) and, when he signed it, that there were no amendments on the document. The applicant also maintains that he signed the Statement in the morning of 12 May “after [trial counsel] had commenced cross-examination of [Ms X]”[58]. 69.Whatever the position as to how and when the amendments were made, which amendments look to us to be the sort that any counsel might make for his own benefit as a result of further questions clarifying the details of his client’s account, the fact is that the Statement makes it quite clear that the applicant’s original typed-up instructions were that sexual intercourse took place on 25 August 2015. And it would have been obvious to the applicant listening to his counsel cross-examine Ms X that the case being put to her, consistent with the Statement he had signed, was that the two of them had had consensual sexual intercourse on the 25 August 2015, the day of his arrest. Yet, at no stage did the applicant demur, to his legal team, the court or anyone else. 70.However, the Statement was not the only document the applicant signed on 12 May 2017. He has himself produced by way of his 2nd affidavit a signed instruction confirming that he had been fully advised of his choice whether or not to give evidence and, upon careful consideration, decided not to give evidence[59] (“the Instruction”). Interestingly, the Instruction has been signed twice, once at 2:30 pm on 12 May 2017, and once at 10:40 am on 15 May 2017. When we cross‑reference these times and dates with the transcript of proceedings and the judge’s official log kept by her judicial clerk, we can see that the first signature on the Instruction must have been appended a few minutes before the court sat, at 2:34 pm on the afternoon of Friday, 12 May 2017, to hear PW1 being re-examined by prosecuting counsel; while the second signature was appended during the time the jury were outside court, between 10:33 am and 10:50 am on Monday, 15 May 2017, which was an adjournment requested by counsel in order to take instructions from his client. 71.The judge’s official log also confirms the care with which the applicant’s legal representatives had gone about the task of obtaining the applicant’s instructions as to whether or not he would be giving evidence. Right at the end of proceedings on Friday, 12 May 2017, and before the prosecution had closed its case, counsel informed the judge in the absence of the jury at 4:12 pm that the applicant would not be giving evidence. The context of this indication would have been at the end of the week when, as often happens in our experience, the judge reviewed the likely timetable for the remainder of the case. When the prosecution did formally close its case at about 10:30 am on Monday, 15 May 2017, counsel said again that the applicant would not be giving evidence but asked for time to take instructions from his client; which, as we have just noted, was done between 10:33 am and 10:50 am. When the court resumed at 10:50 am, counsel confirmed, for the third time, this time in the presence of the jury, that the applicant would not be giving evidence, by which time the Instruction had been signed once again in order to confirm its correctness. 72.Before leaving this matter, we note that it had been pleaded by Mr McGowan in his original perfected grounds of appeal dated 29 January 2018 as one of the particulars of flagrant incompetence alleged, that his legal representatives had advised the applicant that he “should not and need not give evidence”, which ground was re-drafted by Mr Ross in his amended perfected grounds of appeal dated 4 July 2019 to aver that “the applicant agreed not to give evidence when he wished to do so, after accepting the trial counsel’s advice that the applicant better stay silent because his English was not good and that the applicant will be asked questions by the prosecutor that the applicant could not understand”. However, this particular of complaint of flagrant incompetence has been deleted in the re-amended perfected grounds of appeal dated 19 September 2019. Not only would such an allegation have been untenable in the light of the Instruction, signed twice by the applicant in the circumstances outlined above, but the fact that it was made at all highlights how ill-conceived and unjustified this complaint originally was. 73.We are accordingly of the decided view that the allegations of flagrant incompetence made against the applicant’s trial lawyers in this case were wholly without merit and should never have formed the basis of a ground of appeal. That two experienced counsel saw fit to make the claim in perfected grounds of appeal in this case illustrates three serious inadequacies in our system of criminal appeals wherever flagrant incompetence is sought to be put forward as a ground of appeal. First, the original complaint of flagrant incompetence was filed by Mr McGowan as a ground of appeal on 29 January 2018, without any attempt whatsoever by him or his instructing solicitor to obtain any response from trial counsel or solicitor thereafter to the serious allegations being levelled against them. The first time the applicant’s legal representatives at trial would have known anything about these complaints would have been after Mr McGowan was replaced by Mr Ross and new solicitors on 12 June 2019, more than two years after the trial had concluded. We have already stated in our judgment on wasted costs in HKSAR v Apelete[60] that there must be a palpably sound basis for such a complaint of flagrant incompetence before any counsel can conscientiously regard it as a properly arguable ground of appeal; and that such a test cannot be met without specific and detailed enquiries being made of the legal representatives at trial[61]. We roundly deprecated the notion that simply because an applicant makes an allegation, that by itself is sufficient to justify a ground of appeal[62]. 74.Secondly, we would emphasise, and this case provides a good illustration of the point, that the duty to put forward properly arguable grounds of appeal does not come to an end with the filing of grounds of appeal. If material subsequently comes to light casting doubt on the applicant’s claims, there is a continuing duty to evaluate the propriety of the grounds of complaint[63]. Yet, as the evidence contradicting the applicant’s bare assertions mounted by way of transcript, affidavit/affirmation evidence, text message and voicemail recordings, as well as signed documentation detailing how carefully the legal representatives at trial had dealt with the applicant, Mr Ross’s response was to place yet another affidavit from the applicant before us endeavouring to answer the evidence of counsel, solicitor and the solicitor’s clerk at trial, instead of standing back and making a considered, measured assessment of the merits of the proposed grounds of appeal and giving his client, if necessary, robust advice. 75.Had Mr Ross stood back and exercised his professional judgment in reviewing the state of the evidence, he would quickly have realised that the allegation that there was any lack of understanding between the applicant and his legal representatives, for which the applicant’s wife had to be used as an interpreter, was utterly unarguable; particularly in the absence of the wife’s supporting evidence. Had he stood back and examined the notes made by trial counsel at numerous conferences, as well as the type‑written instructions signed by his own client, he would also have realised that the allegation of counsel obtaining inadequate instructions and putting a case contrary to the instructions he did take, was transparently false and could never amount to a properly arguable ground of appeal before this Court. And had he appreciated that his client only spoke “some French”, which the court interpreter had described as street French or pidgin French, and that the applicant had never asked for a French interpreter but been content to traverse the entire proceedings before the magistrate in English, he would have quickly realised that the ground was factually inaccurate and wholly untenable. 76.Yet Mr Ross has described the ground of flagrant incompetence in this case as one of the “exceptional” instances where this Court should intervene. We emphatically disagree. The ground of appeal of flagrant incompetence alleged in this case represents the worst, most undeserved and most ill-advised instance of such a ground that any member of this Court has ever come across. To that extent only is it exceptional. 77.Thirdly, a complaint of flagrant incompetence should be carefully and specifically pleaded. Such a ground does not represent a general licence for appellate counsel to go outside the terms of the particulars of the ground and make serious attacks on the character and integrity of legal representatives. In the present case, Mr Ross saw fit to include in his written argument filed for the purposes of this appeal an allegation, which bore no relation to the grounds of appeal, that members of the applicant’s legal team had instructed the applicant to take Panadol and other painkillers with an excessive amount of alcohol so as to render him unconscious, requiring urgent hospital treatment and thus leading to an adjournment of the trial. This was said to be so that a friend of one of the legal team would have more time to trace Ms X’s whereabouts in the Philippines and pay her not to testify. The applicant and his wife were told to raise a “bribe” of at least $500,000. 78.These were extremely serious allegations against professional lawyers of suborning witnesses and conspiring to pervert the course of public justice, for which there was not a shred of supporting evidence. They had no business being included in a written argument in support of the complaint of flagrant incompetence. Mr Ross appeared not to fully grasp the gravity and consequences of his accusations. 79.At one stage during the course of oral submissions, Mr Ross purported to submit that there were in fact no written instructions from the applicant in relation to his case. When he was taken to the Statement, Mr Ross argued that because the applicant did not read it when he signed the Statement, it could not be said to be his Statement or instructions. When we pointed out that the Statement contained detailed particulars of his defence duly typed up and dated, Mr Ross contended that the contents were a fabrication created by the applicant’s lawyers. We were frankly astonished that Mr Ross should so readily embrace the accusation that the applicant’s legal representatives had fabricated the Statement, purely on the basis that his client claimed to have given different instructions and not read the Statement. Not only had no allegation previously been made that the legal representatives had actually made up the applicant’s instructions in the Statement, but there was not one scintilla of evidence to support it. 80.It should be remembered that counsel is not a mere mouthpiece for his client and must exercise independent and professional judgment in his conduct of an appeal. That counsel should, with such ease and alacrity, make a serious allegation before this Court of professional misconduct against the former legal representatives of his client that they had fabricated instructions and documents to create a false defence, without any supporting evidence, without notice to those legal representatives and without any proper assessment of the viability of such an allegation, has caused each member of this Court very grave disquiet. 81.As we have said, we wholly reject the allegation of flagrant incompetence by any of the applicant’s legal team at trial. The allegation is so demonstrably lacking in support and credibility that appellate counsel should never have conscientiously put it forward as a properly arguable ground of appeal. We shall return to the consequences of our conclusion in due course. I.2 Ground 2 (the Ewe interpreter) 82.We have already dealt with the issues arising under Ground 2 and the proposition that because the applicant could not fully understand the English to Ewe interpretation of the interpreter, and the judge had “refused” to provide the applicant with an Ewe speaking interpreter from Togo rather than Ghana, the applicant did not get a fair trial. We are entirely satisfied that the applicant, whether he was listening to the Ewe interpreter (who, as we have noted, understood the applicant clearly, but whom the applicant claimed he did not understand) or the English translation of Ms X’s testimony, would have entirely understood the evidence and the issues in this very simple case: as we have pointed out, at no stage during the proceedings did he ever indicate or signify otherwise. 83.As Lord Bingham of Cornhill CJ once famously remarked[64]:
The same may be said of the conduct of a trial and the performance of those who play an essential constituent part of a trial, such as judges, counsel and interpreters. Of the latter, the Supreme Court of Canada in R v Tran[65]noted[66]:
84.In HKSAR v Moala Alipate, the Court also cautioned that[67]:
In practical reality, we should strive, as Brennan J put it in Jago v District Court of New South Wales[68], towards “a trial as fair as the courts can make it”[69]. 85.In the present case, the applicant went through five appearances before a magistrate without recourse to the services of any interpreter before he indicated to the court for the first time at the pre-trial review that he would need an Ewe interpreter. He was present when his counsel made the request and no specificity as to the particular strain of Ewe was indicated. The first occasion that any distinction was drawn between Ghanaian Ewe and Togolese Ewe, the two countries of Ghana and Togo lying next to each other and sharing a common border[70], was on Friday, 5 May 2017, when the applicant claimed he could not understand the court-appointed Ewe interpreter. At that stage, the trial was due to commence on the following Monday, 8 May 2017. 86.Notwithstanding the extremely limited time given to the court to arrange another interpreter, and with Ms X having flown in from the Philippines to give evidence, a second Ewe interpreter was arranged by the court and the judge prudently suggested that they should both speak to the applicant when he eventually appeared in court so that he could decide whom he was more comfortable with as interpreter. It seems that the applicant was not satisfied with either interpreter; nevertheless, the interpreter retained was the more native Ewe speaker, who said he understood the applicant clearly but the applicant claimed not to understand him. The judge made clear that all questions and answers were to be made “as simple as possible”[71]. We can see from the ensuing transcript that her instructions were faithfully obeyed and no complaint was raised by the applicant or anyone on his behalf about his inability to follow or understand the evidence or proceedings until this appeal. 87.As the Supreme Court of New Zealand in Abdula v R held[72]:
Similarly, in Kamasinski v Austria[75], the European Court of Human Rights noted that at the hearing before the trial when the applicant was served with the charge against him, no complaint by the defence was made to the court of inadequate interpretation[76]; whilst at the trial proper, there was no “objection, formal or informal, by Mr Kamasinski or his lawyer regarding the quality or scope of the interpretation”[77]. Accordingly:
The Court found that there had been no violation of his rights under Article 6(3)(e) of the European Convention on Human Rights, which is identical to Article 11(2)(f) in section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. 88.A case we have found very persuasive, in the similarity and resolution of its facts, is the decision of the Scottish Court of Appeal in Lee v HM Advocate[78]. The appellant, who was Korean, was charged with rape before the High Court in Edinburgh. He had, prior to trial, been in the United Kingdom for 10 years, two of them at school, having arrived in the country with the aim of becoming a professional footballer. He was given an interpreter at his trial, whom, the Court noted, the appellant had described in his affidavit as being “from the southeast of South Korea. He had a very strong accent. He was not very good at interpreting, would miss out a lot and was very slow. Sometimes the appellant did not know what the interpreter was saying in Korean. The interpreter had not asked for the witnesses to slow down. The appellant did not do anything about this because he thought that it would not be polite”[79]. The appellant said that he had raised his concerns with his counsel and the matter was discussed with the judge. 89.Comments were sought by the Court from the appellant’s counsel at trial, who stated that the appellant’s English was good enough to provide instructions and understand advice. No interpreter had attended any pre‑trial consultations because the appellant had not requested one and was able to follow what was being discussed. Counsel did confirm, however, that he had raised the matter of interpretation with the judge on the second day of the trial, although the appellant’s difficulties arose out of his trying to listen to the evidence in English rather than the Korean translation. 90.Noting that the appellant “was proficient in English, even if it was not his native tongue”, the Court observed that the case against him came primarily from the complainant, the doctor who examined her and some of her friends who spoke to events in the night club in question. The Court went on[80]:
91.Noting that counsel had, at an early stage of proceedings, raised the issue of interpretation with the trial judge, the Court held[81]:
92.We are quite satisfied that the applicant before us understood what Ms X was saying, whether by listening to the English used in court or the Ewe interpretation of that English in what was a very simple, straightforward and short case. Indeed, he never raised any complaint during the trial with his counsel or the court that he did not understand the proceedings and, in particular, Ms X’s evidence. 93.Finally, it is quite clear from the circumstances we have outlined above that the judge, far from “refusing” to provide the applicant with what he wanted, made every attempt, notwithstanding very little notice, to try and satisfy the applicant’s demands and to ensure that the proceedings were conducted in simple, readily understandable terms. Knowing that there was one simple issue at trial, but also conscious that there was a vulnerable witness waiting to testify, who had been brought from the Philippines to give evidence, the judge is to be commended for going out of her way to accommodate the applicant’s wishes in a practical and sensible way, whilst striving to do justice to everyone concerned. The matter having been fully ventilated before the evidence began, and measures having been put in place to ensure the applicant understood the proceedings, she was entitled to assume from the complete absence of any further complaint from either the applicant or his legal representatives that, in the language of Lee v HM Advocate, “any issue had resolved itself and that there was no ongoing difficulty”. 94.We reject the whole assumption on which Ground 2 is based and are quite satisfied that the applicant understood the evidence and proceedings whether he listened to the English being used in court or to the Ewe interpreter provided. I.3 Ground 3 (the applicant’s answer to caution) 95.Ground 3 avers that the judge failed to direct the jury that if they were satisfied that what the applicant had said in answer to the caution about sexual intercourse having been consensual was or may be true, they should acquit him of both counts. Complaint is made of two passages in the summing-up, which it is suggested rendered what the applicant had said in answer to caution valueless. In the first, the judge was addressing the fact that the applicant had not given evidence[82]:
A little later, in the second passage, the judge said[83]:
96.The Court has said many times that judicial directions must be looked at in context, and the summing-up read as a whole. We agree with Mr Lai that when one examines the first passage in context, it is clear that the judge was explaining the effect of the applicant’s right of silence, and the jury would plainly have understood that there was no testimony from the defendant to contradict Ms X’s account. That was true: the applicant did not testify. However, as she told the jury, the fact that he did not give evidence “cannot be used against him”. This part of the judge’s direction corresponds to Specimen Direction 44. 97.As for the applicant’s statement in answer to the caution, this was a classic “mixed” statement, inasmuch as it confirmed that sexual intercourse had taken place but asserted that it was with Ms X’s consent. The part of the first impugned passage directing the jury that his answer to caution had not been made on oath, repeated on oath or subjected to cross-examination, and that its weight was a matter for the jury, was also correct and in conformity with Specimen Direction 40. 98.The first passage is therefore a combination of two Specimen Directions, moulded to the facts and circumstances of the case and the issues the jury had to decide. We certainly do not read it as telling the jury to ignore what the applicant said to the police upon arrest. 99.The second passage impugned is an almost verbatim rendition of Specimen Direction 44. We cannot see how any complaint can be made of the passage, which is in complete conformity with the Specimen Direction, dealing as it does with the position of a defendant, like the applicant, who has not given evidence. 100.If the argument is that these directions when read together rendered the applicant’s assertion of consent in his answer to caution worthless, we would point out that the judge had made clear at the outset of her summing-up in respect of the issue of consent that[84]:
Later, when giving the jury directions in respect of the applicant’s good character, the judge specifically told them that they could take his character into account in support of what he had said to the police. Having dealt first with the relevance of good character to propensity, she then addressed its relevance to credibility and, since the applicant had not given evidence, this aspect of the direction could only have applied to his answer to caution upon arrest[85]:
101.This direction allowed the jury properly to consider the weight they should give to the applicant’s answer to caution, otherwise the references to his good character being supportive of his claim would have been meaningless. In our judgment, the jury would have clearly understood that the only real issue before them was consent. His answer to caution and the weight to be attached to it, in the absence of his evidence supporting the assertion, was properly before them and would have been taken into account by them on that vital issue. There is nothing in this ground of appeal. I.4 Ground 4 (inferences) 102.Ground 4 avers that the judge did not give a proper direction on inferences, either in terms of a general direction or by setting it in the context of the evidence. The judge’s direction in context was as follows[86]:
103.However, the short answer to this complaint is that this was not an inferential case. The evidence as to what took place and whether the sexual activity was consensual came directly from Ms X. There was no circumstantial evidence relied upon by the prosecution to prove its case, except, arguably, the aspects of recent complaint and distress. But both of those pieces of evidence also derived from the complainant herself and were the subject of specific directions in accordance with the Specimen Directions. The only evidence by which the prosecution could seek to prove the absence of consent, which was the vital issue in the case, was from the complainant herself. 104.A very similar direction had been given by the trial judge in Tang Kwok Wah v HKSAR[87], also a case of the rape of a domestic helper. There, the trial judge had said to the jury:
Bokhary PJ, with whom the other members of the Court of Final Appeal agreed, held that it was not a case calling for an inference direction, the critical issue being whether the jury could be satisfied that the complainant did not consent. On that issue, “the only evidence on which the jury could be satisfied beyond reasonable doubt that the complainant did not consent was her own testimony”[88]. Such other circumstances as there were could not have given rise to the inference that the applicant did not consent; therefore, there was no real danger of any such evidence being misused by the jury. 105.In the present case, there was no other evidence from which the jury could have inferred that Ms X did not consent outside of her own evidence. It was not an inferential case and did not warrant an inference direction. Whilst the judge’s direction may not have been sufficient had a special direction on the drawing of inferences been called for, the reality is that no such direction was called for. Like Bokhary PJ, we think that the judge was merely trying to explain to the jury that they must not speculate, by contrasting between common sense conclusions derived from evidence which they accepted, and theories or guesswork not derived from any evidence[89]. We see no merit in this ground of appeal. I.5 Ground 5 (distress) 106.The proposition which underpins Ground 5 is that while the judge was correct to tell the jury to disregard evidence of Ms X’s distress, if they were not sure such distress was genuine and referable only to the alleged sexual offences, she failed to go on to explain the ramifications of the converse that, if they entertained a reasonable doubt that the distress was genuine, such evidence was capable of undermining Ms X’s credibility. 107.The judge directed the jury as follows[90]:
In our judgment those directions were in accordance with the approach to a complainant’s distressed condition stipulated by the Court of Final Appeal in Leung Chi Keung v HKSAR[91] and incorporated in the Specimen Directions. We see no warrant for adding the refinement proposed. 108.Moreover, as we have said previously, the issue for the jury in this case was very simple: could they be satisfied so that they were sure that Ms X did not consent to the sexual activity alleged? If the jury doubted the genuineness of Ms X’s distress, they did not need to be told how the consequences of such a finding might impinge on her credibility generally. Once again, the summing-up must be looked at as a whole and with common sense. There is no merit in this complaint. 109.Having rejected all of the applicant’s grounds of appeal, the application for leave to appeal against conviction is refused and the appeal dismissed. We turn to the application for leave to appeal against sentence. I.6 Grounds of appeal against sentence 110.As with the rest of her conduct of this trial, the judge passed a carefully considered sentence. She rightly took the view that the element of breach of trust was the most significant aggravating feature in respect of both of the offences before her. She specifically referred[92] to the comments of Ma CJHC (as he then was) in HKSAR v Chan Tung Hing[93], that:
She noted that the applicant in Chan Tung Hing had run a very similar defence to the defendant before her, namely, that consensual sexual intercourse having taken place, the complainant had then demanded money from him and, when it was not forthcoming, had turned against him. She considered, as did the Court in Chan Tung Hing[94], that the applicant had shown no remorse[95]. The sentence on a single count of rape in Chan Tung Hing was 8 years’ imprisonment, a sentence which the Court held not to be manifestly excessive. 111.Apart from the aggravating features of the breach of trust and the fact that the applicant had not worn a condom, it was an admitted fact that the victim was menstruating at the time[96], something which the applicant must on his own case have known, since it was put to Ms X in cross-examination that she was bleeding when he touched her, as a result of which he had suggested not having intercourse until her period had finished[97]. In HKSAR v Chow Kam Wah[98], the Court considered it to be an aggravating fact that the applicant had raped the victim whilst she was menstruating, since “it added to the indignity to which he condemned her”[99]. 112.The judge also had before her a victim impact report. It was clear that the incident had rendered Ms X emotionally fragile, scared of strangers, depressed and unable to sleep. Since the applicant had not worn a condom at the time, she was afraid that she had caught a sexually transmitted disease. She had lost her job and returned to her family in the Philippines, who without her income to support them were suffering financially. She could not face returning to Hong Kong. 113.However, there was another aggravating feature which the judge dealt with in depth. We note that at the pre-trial review on 2 March 2017, when the matter of obtaining an Ewe interpreter was raised by defence counsel for the first time, the judge had remarked, inter alia, that “if we cannot locate an interpreter in time, it may necessitate either we proceed or a delay in the trial”. On the Friday before the trial was fixed to commence on 8 May 2017, the applicant sought a variation of bail so that his passport could be released to him. It was then that the court was told, for the first time, that the applicant needed a particular strain of Ewe interpretation. Although the judge was concerned by this latest development and indicated that the court would do its best to find another interpreter, she also made clear that the case would proceed on 8 May 2017. 114.However, on the night before the trial was due to commence, the applicant checked himself into the Adventist Hospital in Tsuen Wan as a result of what was described by his counsel as a “hypertensive crisis”. Consequently, the case did not begin as scheduled on 8 May. The applicant was still in hospital on 9 May and, in view of the paucity of information about his condition, and with Ms X waiting patiently in the wings to give evidence at the trial, the judge revoked the applicant’s bail and ordered that he be taken into custody at Queen Elizabeth Hospital for a full medical examination, to determine if he was fit to attend court. 115.On 10 May 2017, a report from Queen Elizabeth Hospital was furnished to the court, which referred to the applicant’s “poorly controlled hypertension”, for which his drug compliance at home was “doubtful”. Since no significant abnormalities were found on examination, the applicant was considered fit to attend court on 11 May 2017. He was duly brought to court on 11 May 2017. It may be noted that one of the reasons articulated by Mr Ross in his amended grounds of appeal dated 4 July 2019 in support of the contention that the applicant could not get a fair trial was that he was “not medically fit to stand trial”. How this could have been averred when the associate consultant at Queen Elizabeth Hospital had clearly certified the applicant as fit to stand trial defies belief. Wisely, the assertion was withdrawn by the time the re-amended perfected grounds of appeal came into being on 19 September 2019. 116.Having been brought to court on 11 May 2017, the judge was “informed by counsel and solicitor that the defendant was being uncooperative, and they wanted to cease to act”[100]. The judge refused to allow either counsel or the solicitors to withdraw and warned the applicant that if he discharged his lawyers, or did not cooperate with them, he would have to represent himself. The trial then proceeded and Ms X commenced her evidence. 117.As we have observed, one of the gratuitous allegations made in Mr Ross’s written argument against the defence team at trial, based upon the applicant’s 2nd affidavit, is that they tried to persuade the applicant to have himself admitted to hospital by ingesting a mixture of painkillers and alcohol, in order to precipitate an adjournment so that Ms X’s family could meanwhile be paid off. Since this matter had been raised in the applicant’s 2nd affidavit, trial counsel’s response was that, following the pre-trial review in March 2017, the applicant had made it clear to his legal representatives that he did not want a female judge to try his case and wished to delay the trial so as to locate and “bribe” Ms X into not testifying; as well as use Togolese black magic against her. The applicant’s three methods of achieving this objective were to pretend to be ill, to request an Ewe interpreter, which he reasoned would be hard to find in Hong Kong, and to refrain from communicating with his lawyers so that the trial would not be able to begin. Trial counsel’s evidence is that he warned the applicant in strong terms that the applicant would be perverting the course of public justice if he did so, and counsel would cease to act for him if he did anything of the kind. According to counsel, the applicant then appeared to abandon the idea. 118.We do not need to resolve this issue of fact. We are satisfied that the sequence of events from 5 May 2017 onwards by itself plainly demonstrates that the applicant, for whatever reason, did not want his trial to go ahead and, had it not been for the judge exerting proper judicial control over events, he might well have got his way. She, of course, knew nothing of the background which has been engaged by way of affidavit evidence in this appeal. We consider that the judge was right to take this matter into account in sentencing, particularly with a vulnerable witness waiting anxiously outside court to give evidence. 119.However, we wish to make clear that even without this factor, bearing in mind the other aggravating features to which we have referred, we would have considered an overall sentence of 9 years’ imprisonment appropriate after trial for the two offences. 120.Finally, it is argued that the sentence of 4 years’ imprisonment on Count 1 was manifestly excessive. On its own, perhaps it would have been on the high side. But the offence was not on its own: it was the precursor to a much more serious offence, Ms X having made her position clear after the episode in the bathroom that she did not want the applicant to touch her any further. Whatever the sentence on Count 1 was, the criminality of what was a separate offence would have been factored into the overall sentence and the sentence ordered to run concurrently with the sentence on Count 2, in accordance with the totality principle. The fact that the individual sentence on Count 1 was 4 years’ rather than 3 years’ imprisonment made no real difference to the overall sentence of 9 years’ imprisonment. 121.Since we do not regard the sentence of 9 years’ imprisonment for the applicant’s overall conduct towards Ms X on 25 August 2015 to be manifestly excessive, the application for leave to appeal against sentence must be refused and the appeal dismissed. J. “Loss of time” 122.The ground of flagrant incompetence against both counsel and solicitor in this case should never have been put forward in a set of grounds of appeal, let alone persisted in once it became clear that it had absolutely no substance whatsoever. The two witnesses who, in theory at least, might have been able to support some of the applicant’s allegations if they had any truth in them at all, namely, the applicant’s wife and the interpreter at trial, have not given any evidence. 123.Had appellate counsel been performing his function and exercising his professional judgment properly, he ought to have concluded that this ground of appeal was not properly arguable and advised his client accordingly. Instead, a complaint has been set in motion, encouraged by the applicant’s fresh legal representatives, which will have engaged trial counsel and solicitor (as well as the solicitor’s clerk) over many days in having to recollect and deal with the serious allegations that have been levelled against them. Trial counsel’s affirmation alone runs to 19 pages with 31 pages of exhibits; while the trial solicitor’s affidavit runs to 10 pages with 17 pages of exhibits. The solicitor’s clerk’s affirmation runs to 8 pages and 29 pages, and attaches the CD Rom containing the applicant’s WhatsApp voicemail messages. 124.When Mr Ross appeared in place of Mr McGowan on 13 June 2019, he was reminded by the Court of the “very strong comments that have been made by this Court and the Court of Final Appeal in relation to allegations (of flagrant incompetence) ... and the consequences should the Court not find merit in the allegations”. That advice was given in open court in the presence of the applicant. We cannot imagine that Mr Ross would not himself have known of those consequences, which were fully spelt out by this Court in Practice Note (Crime: Loss of Time)[101], or that he would have failed to explain those potential consequences to his lay client. The applicant, in any event, would have been well aware of the Court’s power to order “loss of time”, having read Note 3 of the Form XI Notice of application for leave to appeal, which he signed on 23 June 2019. 125.Given that we were satisfied that this complaint was wholly (and demonstrably) without merit, we invited Mr Ross to address us as to why we should not exercise the power under section 83W(1) of the Criminal Procedure Ordinance. We also allowed him to address us on the length of any consequent order, were we minded to make one. In the event, he was unable to give any sensible reason why the applicant should not be visited with an order for “loss of time”. 126.There is one very telling detail which emerged in the affirmation of trial counsel. Having described the applicant as “the most difficult client” he had dealt with in several years of practice, he referred to a specific instruction he had been given by the applicant to put before the judge in mitigation; namely, that the applicant’s mother had recently died. Accordingly, counsel duly advanced in mitigation the fact that the applicant’s mother had passed away on 5 May 2017[102]. When, following sentence, counsel asked the applicant whether he wished to pass any message to his wife in respect of his mother’s funeral, the applicant confessed that her recent death was not true; he had said it in order to obtain a lenient sentence. 127.When we asked Mr Ross to take specific instructions on this matter, we were informed that the applicant’s mother had in fact deceased within a few weeks of his birth. This detail is revealing in two respects. First, we cannot imagine why trial counsel would have described the incident at all, which had never been referred to by the applicant in any of his various affidavits, and which involved counsel in confessing to putting something before a court which was a blatant lie, if it had not been his instructions to do so. Secondly, it demonstrates how manipulative and disingenuous the applicant has been throughout these proceedings. It is partly because of the seriousness with which appellate courts regard allegations of flagrant incompetence, and the obvious possibility of applicants manipulating the courts into undertaking painstaking, costly and time-consuming enquiries, with all the inevitable worry that is entailed for those against whom such complaints are made, that fresh legal representatives have a particular responsibility to look for supporting evidence of such claims and then sensibly and realistically evaluate them before they can properly put them forward as grounds of appeal on which submissions are made. 128.Given the total lack of any merit to this complaint and the significant time, effort and inconvenience, not to mention anxiety, that will have been caused to the legal representatives at trial in having to deal with very serious imputations against their professionalism, honesty and competence, none of which imputations we remotely accepted, we considered that there should be an order of “loss of time” of 3 months. We have to say that we gave serious thought to ordering a longer period in the circumstances. It should not be assumed that 3 months is the limit of the Court’s power. 129.Accordingly, the applications for leave to appeal against conviction and sentence are refused and the appeals dismissed. In the exercise of the Court’s power under section 83W of the Criminal Procedure Ordinance, we order that 3 months of the time during which the applicant has been in custody pending the determination of his appeal shall not be reckoned as part of the term of the sentence to which he is for the time being subject.
Mr Ned Lai SADPP and Ms Hermina Ng SPP, of the Department of Justice, for the Respondent Mr Phillip Ross, instructed by K B Chau & Co, assigned by the Director of Legal Aid, for the Applicant [1] The delays in lodging the applicant’s two Form XIs were one day in respect of conviction, and more than two years in respect of sentence. In his 4th affidavit, dated 6 August 2019, the applicant explained, at paragraph 3, that he had not wanted to take the risk of serving a longer sentence should his appeal against sentence fail. [2] 3rd affidavit of the applicant, para 3. [3] Affirmation of MND, para 1. [4] Affirmation of MND, para 11. [5] Affirmation of MND, paras 2-3. [6] Affidavit of FKA, para 13. [7] Affidavit of FKA, para 14. [8] Affirmation of LLH, para 4. [9] AB p 259C. [10] Admitted Facts, paras 1-8: AB pp 9-12. [11] Exhibit P7A: AB p 43. [12] The applicant did not challenge the admissibility of his answer to caution or the notebook, which was produced in evidence by PW3. [13] AB p 90C-F. [14] AB p 86J-K. [15] AB p 15A-E. [16] AB p 16E-F. [17] 2nd affidavit of the applicant, paras 9-10. [18] 2nd affidavit of the applicant, paras 11 and 23. [19] 5th affidavit of the applicant, para 23. [20] 2nd affidavit of the applicant, para 23. [21] 2nd affidavit of the applicant, para 24. [22] 5th affidavit of the applicant, paras 19-20. [23] 5th affidavit of the applicant, para 20. [24] Affirmation of counsel, para 3. [25] Affirmation of counsel, para 10. [26] Affirmation of counsel, para 22. [27] Affirmation of counsel, para 19. [28] Affirmation of counsel, para 20. [29] Affirmation of the solicitor, para 5; Affirmation of the solicitor’s clerk, para 7. [30] Affirmation of the solicitor’s clerk, para 7 and Exhibit 2. [31] Affirmation of the solicitor’s clerk, para 6 and Exhibit 1. [32] Affirmation of the solicitor, para 12; Affirmation of the solicitor’s clerk, paras 8-9. [33] AB p 28M. [34] Respondent’s written submissions, para 16(3). [35] Respondent’s written submissions, para 18. [36] Respondent’s written submissions, para 16(5) and (6). [37] HKSAR v Chan Tung Hing [2010] 3 HKC 304. [38] HKSAR v Nanik Dayaram (Unrep., CACC 274/2015, 19 January 2017). [39] It may be noted that at each of his five appearances before the magistrates’ court (27 August 2015, 20 October 2015, 18 November 2015, 24 December 2015 and 5 February 2016), no interpreter was either used or requested by the applicant. [40] Transcript of pre-trial review hearing of 2 March 2017, at 5H-J. [41] AB p 182O-P. [42] AB p 183A. [43] AB p 183H. [44] AB p 184F-G. [45] AB p 207T. [46] AB p 208A-B. [47] AB p 215J. [48] AB p 215H. [49] AB p 215P-R. [50] AB p 216B-C. [51] AB p 216D-H. [52] 5th affidavit of the applicant, para 13. [53] AB pp 41-46. [54] At para 4. [55] At para 24. [56] AB p 183R-A. [57] AB p 184. [58] 6th affidavit of the applicant, para 34. [59] 2nd affidavit of the applicant, para 66, Exhibit “AKA 5”. Whilst the applicant admits that he signed the Instruction, he claims that it was neither read to him, nor explained. [60] HKSAR v Apelete (Judgment on Wasted Costs) (Unrep., CACC 176/2017, 23 October 2019). [61] Ibid., at para 64. [62] Ibid., at para 62. [63] Ibid., at para 68. [64] Reynolds v Times Newspapers Ltd [2001] 2 AC 127, at 144F. [65] R v Tran [1994] 2 SCR 951. [66] Ibid., at 987. [67] HKSAR v Moala Alipate [2019] 3 HKLRD 20, at para 57. [68] Jago v District Court of New South Wales (1989) 168 CLR 23. [69] Ibid., at 49. [70] It may be noted that Ghana and Togo sit geographically next to each other on the Gulf of Guinea in West Africa. As one of the smallest countries in Africa, Togo is less than 100 miles across at its widest part. [71] AB p 216G. [72] Abdula v R [2012] 1 NZLR 534, at [35]. [73] de la Espriella-Velasco v R [2006] WASCA 31, (2006) 31 WAR 291. [74] Ibid., at [118] per Roberts-Smith JA; and at [360] per Millar AJA. [75] Kamasinski v Austria (1991) 13 EHRR 36 (EHCR). [76] Ibid., at para 80. [77] Ibid., at para 83. [78] Lee v HM Advocate [2016] HCJAC 39. [79] Ibid., at [17]. [80] Ibid., at [35]-[37]. [81] Ibid., at [39]. [82] AB pp 26P-27B. [83] AB p 28J-P. [84] AB p 15D-E. [85] AB p 25B-H. [86] AB p 20A-D. [87] Tang Kwok Wah v HKSAR (2002) 5 HKCFAR 209. [88] Ibid., at para 43. [89] Ibid., at para 42. [90] AB p 28B-J. [91] Leung Chi Keung v HKSAR (2004) 7 HKCFAR 526, at 542I-543D. [92] AB p 263A-D. [93] HKSAR v Chan Tung Hing [2010] 3 HKC 304, at para 11. [94] Ibid., at para 10. [95] AB p 263K-L. [96] Admitted Facts, AB p 12, para 13(d). [97] AB p 92H-J. [98] HKSAR v Chow Kam Wah [2013] 1 HKLRD 377. [99] Ibid., at para 39. [100] AB p 261K-L. [101] Practice Note (Crime: Loss of Time) [2013] 6 HKC 300. [102] AB p 272N-O. |
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