HKSAR v. Wong Wai Yip

CACC000287/1995

CACC287/95

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 287 OF 1995

(ON APPEAL FROM HCCC 325 OF 1994)

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Coram: Hon. Mayo, J.A., Stuart-Moore, J.A., & Gall, J.

Date of Hearing: 12 May 1999

Date of Judgment: 12 May 1999

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J U D G M E N T

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Stuart-Moore J.A. (giving the judgment of the Court):

1. On 31st March 1995, following a trial before Deputy Judge Yeung (as he then was) and a jury, the Applicant was convicted of trafficking in a mixture weighing 345 grammes containing 97.78 grammes of salts of esters of morphine (heroin). He was sentenced to nine years' imprisonment.

2. In view of the relative antiquity of this case, it is necessary to set out a brief history of the background. The Applicant firstly filed a notice for leave to appeal on or before 25th April 1995 and, in any event, well within the time limits for lodging an appeal. He applied for Legal Aid but, as his trial counsel advised that there were no arguable grounds, this was refused. The Applicant then unsuccessfully sought, in writing, an adjournment. In the event the Applicant abandoned his application and, at some time in 1995, it was dismissed.

3. Last year, in two letters to the court dated 5th March 1998, the Applicant set out this history in one of the letters and gave homemade grounds of appeal in the other.

4. The matter came before this court, differently constituted, on 4th September 1998, as an application to treat the abandonment of his previous application for leave to appeal as a nullity. Having read the grounds of appeal, the court was sufficiently concerned, in the light of the Privy Council's judgment in Thongjai and Another v The Queen, (1997) 2 HKC 109, that there may have been some merit to the argument which had been raised on the new application. For this reason, the court decided to indicate that the Applicant should be given Legal Aid and that a transcript should be supplied. Perfected Grounds of Appeal were then prepared by Mr. John Mullick, and these were filed on 10th November 1998.

5. The matter next came before the court, as presently constituted, on 11th March 1999 when the Applicant was represented, as he is today, by Mr. Paul Loughran who, like Mr. Mullick, did not appear in the court below.

6. We firstly heard the preliminary application to decide whether the abandonment of the earlier proceedings in 1995 could be treated as a nullity. We were satisfied that there appeared to be an arguable point on appeal that trial counsel had failed to consider when advising on the merits of an appeal and, following The Queen v Tam Kwok, (1984) HKC 184, which adopted the principles set out in The Queen v Medway, (1975) 62 Cr App R 85, because wrong legal advice might well, in our view, have led to an ill-considered abandonment of the original application for leave to appeal, we gave leave for the present application to proceed.

7. Mr. Andrew Bruce, S.C., for the Respondent, understandably and properly, did not oppose this course having been shown the advice given by trial counsel when Legal Aid was originally refused. It suffices to read the headnote in Medway:

"The Court has jurisdiction to give an applicant or appellant leave to withdraw a notice of abandonment of appeal or application for leave to appeal where the notice of abandonment can be treated as a nullity, i.e. where the abandonment was not the result of a deliberate and informed decision - in other words, where the mind of the applicant or appellant did not go with his act of abandonment. Headings such as mistake, fraud, wrong advice, misapprehension etc. should be regarded only as guidelines, the presence of which may justify the exercise of such jurisdiction of the Court and are not exhaustive of the types of case where this jurisdiction can be exercised.

There is no inherent jurisdiction enabling the Court to give leave in other special circumstances."

8. In the present case, it was at least arguable that the Applicant had not received proper legal advice when he decided to abandon his appeal, and this provided us with justification to proceed with the application, treating the earlier abandonment as a nullity.

9. As the result of lack of time, we were unable on the last occasion to commence the hearing of the application itself and the matter was then adjourned part-heard for hearing today.

10. There was, however, a further reason for adjourning the matter. This was in order to give Mr. Loughran time to have an affidavit prepared by trial counsel who, it was understood, had gone abroad on a permanent basis. This was in order to enable Mr. Loughran to consider the addition of a possible further ground of appeal that counsel had conducted the defence in a flagrantly incompetent manner. As it has transpired, he has chosen not to frame a ground of appeal on this basis.

11. The grounds of appeal were duly amended and they now, as amended further during the proceedings today, read as follows:

"1. That the learned Trial Judge erred in law and/or fact in failing to rule on the voluntariness of oral and/or written admissions alleged to have been made by the Applicant.

2. That the trial was unfair due to Defence Counsel's errors of law, fact and approach, by his failing to act upon his clients instructions, by failing to argue for and seek a ruling as to the voluntariness of the statement in a situation where his instructions were to the effect that such circumstances surrounding the alleged oral and/or written statements were those of assault, threat and inducement.

3. Further, or alternatively, by reason of the matters in ground 2 above, Defence Counsel's conduct of the Defence at trial was materially wanting in competence.

4. In all the circumstances the verdict is unsafe and unsatisfactory."

12. We have now had the benefit of considering what trial counsel has had to say but, before we focus our attention on this aspect, it is necessary to look at the general nature of the case against the Applicant at trial.

13. In view of the grounds of appeal which have been adduced on the Applicant's behalf, little needs to be said about the facts so far as the prosecution's case was concerned. Suffice it to say, on 5th July 1994, the flat where the Applicant was staying with his mother was raided by police at 7.45 a.m. His room, which he was sharing with a girlfriend at the time of the raid, was searched and the heroin was found in a wardrobe in that room. The Applicant allegedly told the police: "All the white powder are mine. Nothing to do with my girlfriend. Don't arrest her." He later confirmed once more to the police that he was referring to the white powder they had found in the room.

14. Later, a post-record (Exh.8) was made of events at the flat and of the conversation which the Applicant acknowledged was a correct record of what had been said and done by signing his name and recording a declaration to that effect. The record itself was prepared between 10.20 and 11 a.m. on the same day as the search and arrest.

15. The defence case was wholly at odds with this account of matters. The Applicant's case was that his girlfriend was a drug addict. He had been in a number of quarrels with her over the drugs she had been taking being kept in the flat, and he believed that she had agreed to his request that she should not keep the drugs there. He did not know that she had the drugs with her. They were nothing to do with him.

16. The Applicant gave a long account, which was denied by prosecution witnesses, of how on the previous day he had met a number of police officers in the street who had searched and questioned him about drugs. He was taken to a staircase in a building and asked if he had any information which would help the police in their inquiries into drug dealers, to which he replied that he had none. At that stage, it was his case that he was subjected to a number of assaults and also to dire threats about what would happen to him if he did not give assistance to the police. His personal details were then taken, one of which was that he had previously been in trouble over drugs.

17. This incident was followed by the raid on his mother's flat next morning when he was awakened by police in his room. He denied having drugs and he was again threatened. Eventually, it was his girlfriend Miss Shum who took a mineral water bottle from one of the shelves to reveal, just inside the cap, a very small quantity of drugs. Miss Shum allegedly said that these were all the drugs she had. She was then taken out of the room. At this stage, the Applicant was again told that he must provide information if he was to be alright. He replied that he had lost contact with the dealer who he had known in the past. In a further effort to threaten him, an officer then said that he would be alright if he could pay $50,000. He protested that the small amount of drugs in the lid of the bottle were not worth that much. At this, an officer brought in a large quantity of drugs and placed it on the Applicant's lap. This made the Applicant protest that he was being framed. He was then allowed to make telephone calls to friends to see if they could raise the money, but neither of the people to whom he spoke were able to do so. Both of these persons were called on the Applicant's behalf to confirm that the Applicant had spoken to them urgently requesting money, and on this aspect it was the prosecution's case that this was something to do with bail money the Applicant was attempting to raise in the sum of $50,000. He was then taken to the police station.

18. It should also be said that during the course of what happened at the flat, it was the Applicant's case that he had been assaulted, prior to his alleged oral admission, by police officers who also threatened him. At the police station, he said there came a time when he fell asleep and it was at this stage that the post-record appeared to have been written up by police. It was his case that he was woken up and signed the post-record. He wrote the declaration because he was told that his girlfriend would be allowed to go if he did so and that she and his mother would not be arrested. Again, there was some evidence of assault at the police station.

19. The summing up of the judge dealt in meticulous detail with every aspect of the defence case in a presentation that was, from the Applicant's point of view, fair and balanced. At the trial, defence counsel indicated at the end of the prosecution's case that he would not be inviting the judge to rule on the voluntariness of the confession. As the result of this, the judge was neither called upon to make a ruling nor did he make it his business to rule at any stage of the trial on the issue.

20. After the prosecution's case closed, there was, at page 123P of the Appeal Bundle, the following exchange between counsel and the judge:

"Mr. To: If your Lordship pleases. Right at the beginning of the trial, the court was told that voluntariness would not be an issue, and questions were put to the police officers, tending to suggest that inducement was used. Of course, there hasn't been any evidence so far capable of supporting that there might have been any sort of inducement. It has been put to the police officer that at the police station the defendant was invited to sign the cautioned statement more or less in exchange for the mother's freedom or the girlfriend's freedom.

Court: I'm not too sure whether that was, in fact, what I have been told insofar as this aspect of the case is concerned. I was certainly told that there would not be any voir dire --

Mr. Necholas: No voir dire will be involved.

Court: But it doesn't preclude the defence from raising this in the presence of the jury.

Mr. To: Yes, of course. The difficulty will be this, my Lord: the defendant would have to know the entirety of the Crown's case against him before he can make a decision as to whether to go to the witness-box. Now, the situation may arise when the defendant goes to the witness-box and there would be evidence before your Lordship, capable of supporting an allegation of inducement. This is my only concern.

Court: I'm not too sure whether I understand what point you are trying to make.

Mr. To: My Lord --

Mr. Necholas: We are not in front of the jury now. You can speak your mind in the plainness of language, you know, what is worrying you.

Mr. To: Yes. What's troubling me is this: when the defendant goes to the witness-box, or if he does, there will be evidence saying that a certain police officer has told him that his mother may be arrested if he does not sign the cautioned statement.

Court: That has been put to the officers, yes.

Mr. To: Yes. But, of course, that was denied by the police officers.

Court: That's right.

Mr. To: So far as the case has gone, there is no evidence whatsoever tending to suggest that the cautioned statement is involuntary. But the situation will change if the defendant goes to the witness-box. Your Lordship has the ultimate control of the question of admissibility of evidence, and my concern is this: when the defendant goes to the witness-box, there may be a situation where we have to stop the trial in front of the jury and conduct a voir dire.

Court: I don't think that will arise at all. I mean I certainly would hear application if Mr. Necholas saw fit to raise the matter, but there is no indication that he would raise the matter.

Mr. To: Yes, I just want --

Court: Although the court can at any time rule certain so-called confession or admission inadmissible, but I don't see how that problem could arise at all in this particular case. Do you anticipate any such application, Mr. Necholas?

Mr. Nicholas: Not at this time, certainly; but that may be at a later time if there is sufficient material before the court for me to invite your Lordship, which is at all times in your discretion, to reject a statement. That is open.

Court: Yes.

Mr. Necholas: The only difference is we are doing everything in the presence of the jury and not in a voir dire situation. That is the only difference in this trial.

Court: I don't see any problem of that kind to arise at all.

Mr. To: Thank you, my Lord. I'm grateful for my learned friend's reassurance that it does not arise at this stage.

Mr. Necholas: But I think my learned friend probably perhaps misconceived the idea that because we are not having a voir dire, therefore it is a case of the defence agreeing that it is voluntary. It is not that case, so that I will let you know for sure, but we are not challenging it as a voir dire situation because --

Court: You are certainly entitled to do it in front of the jury ...

Mr. Necholas: Indeed, yes. And also the tenor of the cross-examination being that all this was written out by the officer, so it is not a case of - it is his statement, but that it was as a result of either beating or inducement. We are saying that it is not his statement - it's written by the officer. That is basically what it is. Therefore it is not a matter of a voir dire. Thank you, my Lord."

21. It should be said that at the time of the trial, the judgment in Thongjai and Another v The Queen (above) had not then been delivered. It is, of course, perfectly true to say that it had been generally understood, albeit erroneously, by many of those who practised in the law that, where an oral statement was being challenged in court as to whether it had been uttered at all, this could not be the subject of an argument as to admissibility on the ground of voluntariness. This followed a line of judicial thought that if a defendant was denying having made any of the oral remarks attributed to him, he could hardly in the same breath be heard to say that the answers had been given involuntarily as the result of some form of coercion or inducement.

22. Thongjai is now a well-known authority for saying that a defendant may challenge an oral admission on the basis that, even though it is his case he never made it, he was ill-treated by police before or at the time of the alleged admission. Extending the principles given in Lord Bridge's judgment in Ajodha v The State, (1982) AC 204, which dealt with the same point in relation to written statements, Lord Hutton, in giving the judgment in Thongjai at page 116E, said:

"Whilst the statements considered by the Board in Ajodha were written statements, their Lordships are clearly of opinion that the principle stated by Lord Bridge applies also to oral admissions. Therefore where the prosecution alleges that the defendant made an oral admission, and the case is raised on behalf of the defendant that he did not make the oral admission and that he was ill-treated by the police before or at the time of the alleged admission, two issues are raised which are not mutually exclusive. The first issue, which is for the judge to decide, is whether, on the assumption that the alleged admission was made, it is inadmissible as being involuntary. The second issue, which is for the jury to decide if the judge rules that the alleged admission is admissible in evidence, is whether the admission was in fact made."

23. Their Lordships in Thongjai therefore concluded that it was erroneous to rule in a case where a defendant denied making oral admissions, that there was no jurisdiction on a voir dire to rule that the admission, if made, was involuntary. At page 124E, the judgment continued:

"It is sufficient to raise the issue of voluntariness for consideration by the trial judge if an allegation of ill-treatment is put to a police officer in cross-examination, even if the defendant does not give evidence in support of the allegation. This is what occurred in MacPherson where the defendant made allegations of ill-treatment in his cross-examination of the police officers, but gave no evidence in support of the allegations and made no reference to the ill-treatment in his statement from the dock. In their judgment, Gibbs CJ and Wilson J stated at p.524:

'As we have already pointed out, once a real question arises as to the voluntariness of a confession tendered in evidence, the judge has a duty to satisfy himself of the voluntariness of the confession, and usually must hold a voir dire for that purpose, even if the accused does not object to the evidence or seek a voir dire.' "

24. It needs to be remembered, however, that the case of MacPherson v The Queen, (1981）47 CLR 512, which was referred to more fully earlier in the Thongjai judgment, the position was very different. There the defendant at trial was not represented and therefore could not be expected to have known his legal right to have evidence excluded.

25. Mr. Bruce, S.C., appearing on behalf of the Respondent, points out that the Applicant's "statement" in this case was not only an oral admission, it was also reduced into writing and signed by him. It became, thereby, a written rendition of his earlier oral replies.

26. The written statement, which is in the Appeal Bundle at pages 57-59, was tendered as Exh.8 in the trial and, as Mr. Bruce also rightly points out, no sensible, let alone experienced, counsel in Hong Kong would have been unaware that he could not challenge the admissibility of a written statement on the ground that it had not been made voluntarily.

27. It would, of course, have been open to trial counsel to have conducted a voir dire with a view to obtaining a ruling on the admissibility of Exh.8 in accordance with the usual practice. This was not, however, mandatory.

28. In Ajodha's case (above), Lord Bridge's judgment helpfully set out four typical situations which practitioners would be most likely to encounter in approaching admissibility, where voluntariness was the issue that had to be decided. These points are set out at page 222A to E:

"(1) The accused admits making the statement (orally or in writing) but raises the issue that it was not voluntary. This is a simple case where the judge must rule on admissibility and, if he admits the evidence of the statement, leave to the jury all questions as to its value and weight. (2) The accused, as in each of the instant appeals, denies authorship of the written statement but claims that he signed it involuntarily. Again, for the reasons explained, the judge must rule on admissibility, and, if he admits the statement, leave all issues of fact as to the circumstances of the making and signing of the statement for the jury to consider and evaluate. (3) The evidence tendered or proposed to be tendered by the prosecution itself indicates that the circumstances in which the statement was taken could arguably lead to the conclusion that the statement was obtained by fear of prejudice or hope of advantage excited or held out by a person in authority. In this case, irrespective of any challenge to the prosecution evidence by the defence, it will be for the judge to rule, assuming the prosecution evidence to be true, whether it proves the statement to have been made voluntarily. (4) On the face of the evidence tendered or proposed to be tendered by the prosecution, there is no material capable of suggesting that the statement was other than voluntary. The defence is an absolute denial of the prosecution evidence. For example, if the prosecution rely upon oral statements, the defence case is simply that the interview never took place or that the incriminating answers were never given; in the case of a written statement, the defence case is that it is a forgery. In this situation no issue as to voluntariness can arise and hence no question of admissibility falls for the judge's decision. The issue of fact whether or not the statement was made by the accused is purely for the jury."

29. In further helpful guidance, the judgment gave an indication as to how practitioners might proceed to deal with these four situations, and it is (2) which is relevant for present purposes. At page 223D, Lord Bridge said this:

"(2) Though the case for the defence raises an issue as to the voluntariness of a statement in accordance with the principles indicated earlier in this judgment, defending counsel may for tactical reasons prefer that the evidence bearing on that issue be heard before the jury, with a single cross-examination of the witnesses on both sides, even though this means that the jury hear the impugned statement whether admissible or not. If the defence adopts this tactic, it will be open to defending counsel to submit at the close of the evidence that, if the judge doubts the voluntariness of the statement, he should direct the jury to disregard it, or, if the statement is essential to sustain the prosecution case, direct an acquittal. Even in the absence of such a submission, if the judge himself forms the view that the voluntariness of the statement is in doubt, he should take the like action proprio motu." (Emphasis added.)

30. The situation which has arisen in this case is not unusual. Almost exactly the same situation arose in this court in R v Jim Chong-shing, (1988) Criminal Appeal No.79, where at page 8 of the judgment Penlington J.A. said:

"We are quite satisfied that if, at the conclusion at the Crown's evidence, or alternatively when all the evidence had concluded relating to the statement, the judge had been of the view in the absence of any submission that he was not satisfied it was voluntary he would have directed the jury to disregard it. We do not consider that in Ajodha Lord Bridge meant that in all instances where the second alternative procedure is followed the judge must give a ruling on admissibility whether or not a submission is made, but to do so only when he considers, on the evidence, that he should." (Emphasis added.)

31. We have had the benefit of hearing evidence from trial counsel. He told the court, in the course of his evidence today from the witness box, that he was given instructions which revealed that the Applicant was saying that he was subjected to a number of threats and had been assaulted before he signed Exh.8, having earlier at the flat been subjected to a number of assaults. He accepted, of course, that the statement contained highly damaging admissions. However, he said that there was no realistic prospect of mounting a successful application to have the statement excluded on the ground that it had been made involuntarily for a number of reasons that he gave.

32. In the light of his reasons, there was, said trial counsel, having called all the evidence for the defence, simply no point in making the application to the judge to have the statement excluded on the ground of involuntariness.

33. It should be said that trial counsel was called to the Bar in 1972 and has practised in criminal law continuously in Hong Kong since 1975. He explained that, tactically, he was hoping that the jury would believe that the case against his client was a frame-up so that everything else would fall away. He said that he thought it was not a decision that he would have taken without consultation with the client and also, of course, the representative from the Legal Aid Department. Normally, he would have notes that were signed by the client but, having written to the Legal Aid Department, he understands that they have not been located. This, needless to say, is hardly surprising in view of the age of this case and the lapse of a good many years.

34. The apparent contradiction in trial counsel's recollection today, as compared to what he had said in the affidavits he provided many weeks ago, was also explained. He said that when he made his affidavits to the effect that voluntariness as such was not an issue, this was as the result of a hazy memory of the case which he has now reflected upon with the benefit of a detailed consideration of all the papers which were eventually put before him.

35. We do say this about trial counsel's decision, that it does appear to have been a curious decision to have made. He could have put an application before the trial judge to rule upon Exh.8, on the ground that it had been made involuntarily, at the conclusion of all of the evidence, however hopeless he might have perceived that application to be. We note also that it is particularly curious as he did make an application to have the statement excluded on other technical and discretionary grounds. There was, as Mr. Loughran said, nothing to be lost by making the application on an outside chance, however remote it might have seemed, that it might succeed.

36. The judge, as we have pointed out from an earlier transcript reference, was aware of the possibility that the issue might call for a ruling from him. If the Applicant had been unrepresented, then we think the judge would and should, in present circumstances, have made a ruling, whether called upon or not to do so, since the Applicant would not have been deemed to know his right in law to have a statement excluded on the ground that it was involuntary. Perhaps, even represented as here, when the issue arose, it might have been a wiser course for the judge to have given a formal ruling, even though not called upon to do so, to the effect that he would have admitted the statement as voluntary if he had been asked to rule upon it.

37. Alive to the issues, as the trial judge clearly was, we are satisfied it is safe to conclude that, if the judge had not been satisfied about the voluntariness of the statement, he would have ruled it to be inadmissible of his own motion. It is quite inconceivable in Hong Kong, where the issue is commonly raised in voir dire proceedings, and occasionally where it is raised before the jury, that the judge was not aware of his duty in this respect.

38. We have, so far as trial counsel is concerned, no reason to doubt what he said. Trial counsel had a wide discretion as to how he conducted his case on behalf of his lay client. This aspect was considered in HKSAR v Wong Chi-keung and Others, Criminal Appeal 585 of 1996, where Mayo, J.A. cited a number of authorities including a citation from The Queen v Birks, (1990) 48 A Crim R 385, where Gleeson, C.J. had this to say at page 390:

"In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.

As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. For example, in Rondel v Worsley [1969] 1 AC 191 at 241, Lord Morris of Borth-y-Gest quoted with approval the following statement of the Lord President in the Scottish case of Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, concerning the role of an advocate:

'... His legal right is to conduct the cause without any regard to the wishes of his client, so long as his mandate is unrecalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client's interests are thereby prejudiced.'

In Halsbury's Laws of England (4th ed), Vol 3(1), par 518 at 420, it is stated that:

'... a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.'

(See also Edward Underwood and Edwards (1848) 3 Cox CC82; Hatch v Lewis (1861) 2 F&F 467; 175 ER 1145; Matthews v Munster (1887) 20 QBD 141 and Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1 at 24 per Isaacs J.)

There is an evident tension between those principles, on the one hand, and on the other hand, the power and duty of a Court of Criminal Appeal to correct a miscarriage of justice. It would be wrong, however, simply to regard these as two competing considerations which must from time to time yield to some compromise. The principles as to the role of counsel, and the capacity of counsel to bind the client, are fundamental to the operation of the adversary system, and form part of the practical content of our notions of justice."

39. In the light of the matters we have considered, we are unable to say that the way in which trial counsel conducted his case was incompetent in any degree. He was at liberty to decide for himself whether or not to object to the admissibility of the statement or rather to seek to persuade the jury that no weight should be attached to it in deciding the issues before them. This was a tactical decision that had to be left to him to decide, and the courts will be very slow to interfere with the approach taken by counsel in the conduct of their case unless, of course, it can be demonstrated that this amounted to flagrant incompetence. By no stretch of the imagination was this such a case and, for this application to have succeeded on ground 3, this is what would have had to be established.

40. In addition, we can see no reason in the present circumstances for the judge to have made a ruling when he was specifically told that this was not required at the end of the prosecution's case and where we regard it as inconceivable that the trial judge would not have ruled of his own motion if he had come to the conclusion that the evidence of the statement was inadmissible.

41. All of the grounds must fail in the light of what we have said and we consider that there is nothing to suggest that the verdict was unsafe or unsatisfactory.

42. Accordingly, the application must be dismissed.

Representation:

Mr. A.A. Bruce, S.C., S.A.D.P.P. and Mr. Anthony Cheang, G.C. for D.P.P./Respondent

Mr. Paul Loughran assigned by D.L.A. for Applicant.