HKSAR v. Lee Sze Lung and Another
Read the full judgment text of CACC 16/2010 on BabelCite. This Court of Appeal judgment was delivered on 14 October 2011 before Cheung JA, Yuen JA, Line J.
Criminal law – rape – section 118(1) Crimes Ordinance (Cap. 200) – conviction – application for leave to appeal against conviction – whether trial counsel was flagrantly incompetent in failing to put his client's written instructions to the complainant that she changed position during intercourse to allow penetration from behind – whether the trial judge's directions purged the resulting prejudice – Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126 – Sankar v Trinidad and Tobago – Boodram v Trinidad and Tobago – the majority (Cheung and Yuen JJA) held the omission was a serious misjudgement which, together with counsel's failure to seek instructions on discharge of the jury, deprived the 1st defendant of a fair trial such that the proviso could not be applied; Line J dissenting held the trial judge's strong and clear directions that the fault lay with counsel and that no adverse inference should be drawn against the 1st defendant adequately cured the prejudice – whether a genuine but mistaken belief direction under DPP v Morgan [1976] AC 182 was required – held by majority that on the facts a Morgan direction was required for the 1st defendant because the complainant was an acquaintance with prior MSN contact, was not drink-spiked, was capable of apparently autonomous actions on CCTV, and her state of awareness was variable, all of which could support a belief of consent; Line J dissenting held there was no realistic room for genuine mistake given the complainant's described condition – held unanimously that no Morgan direction was required for the 2nd defendant, who was a near stranger, had no prior intimate contact with the complainant, and stopped immediately when she said 'No' – held that the 1st defendant's challenge to the prosecution's cross-examination of him under Browne v Dunn was unsustainable – whether evidence and direction on the complainant's self-induced intoxication and on suspected spiking of drinks were adequate – held that the judge's directions on intoxication, on ignoring the 1st defendant's drug-taking, and against speculating about spiking were proper – whether the judge erred in not discharging the jury – held by majority not necessary to consider in light of finding on counsel's incompetence; Line J held the decision was right after nine days of trial – result: 1st Applicant's conviction quashed and matter stood over for written submissions on retrial; 2nd Applicant's application dismissed – application for a retrial by the Respondent in relation to the 1st Applicant to Court of Appeal was subsequently granted by a separate determination dated 14 November 2011.
Legal issues: Flagrant incompetence of defence counsel for failure to put instructions to complainant · Whether a genuine but mistaken belief direction was required for the 1st defendant · Whether a genuine but mistaken belief direction was required for the 2nd defendant
Outcome: By majority, the 1st applicant's application for leave to appeal against conviction is treated as the appeal proper and allowed; the conviction is quashed and the parties are to be heard on the question of a retrial. The 2nd applicant's application is unanimously dismissed.
Cited by 7 cases · Cites 9 cases
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CACC 16/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 16 OF 2010 (On Appeal From High Court Criminal Case No. 209 of 2009) ________________________ BETWEEN
________________________ Before : Hon Cheung, Yuen JJA and Line J in Court Date of Hearing : 21-22 July 2011 Date of Judgment : 14 October 2011 ________________________ J U D G M E N T ________________________ Hon Cheung JA : 1.The two applicants were each indicted separately of one count of rape, contrary to section 118(1) of the Crimes Ordinance (Cap. 200). They pleaded not guilty but were convicted after trial by the late Mackintosh J sitting with a jury. They were sentenced to 6 years’ imprisonment. They lodged applications for leave to appeal against conviction and sentence. They abandoned their application for leave to appeal against sentence at the hearing. Accordingly that application was dismissed. For ease of reference I will refer to the applicants as the 1st and 2nd defendants. Facts 2.The judge summarised the facts of this case in his direction to the jury which I will gratefully adopt :
PW1’s evidence against the 1st defendant 3.The judge summarised PW1’s evidence against the 1st defendant as to what had happened inside the hotel room as follows :
PW1’s evidence against the 2nd defendant 4.The Judge summarised the evidence of PW1 against the 2nd defendant.
Evidence of PW2 5.The Judge summarised the evidence of PW2 after she arrived at the hotel room with the 2nd defendant. She saw PW1 sleeping on the bed covered with a blanket. She told PW1 to get up and go home, but PW1 said that she was very sleepy and tired. PW2 then asked PW1,
6.PW2 then contacted a friend and asked him to take them home.
Evidence of the 1st defendant 7.The 1st defendant chose to give evidence. He admitted that he had sexual intercourse with PW1 but with her consent. The Judge summarised the 1st defendant’s evidence as follows :
The 2nd defendant’s defence 8.The 2nd defendant did not give evidence but relied on the record of interview he had given to the Police. The Judge summarised the contents of the interview :
Grounds of appeal of the 1st defendant 1) Flagrant incompetence of defence counsel 9.The first ground of appeal of the 1st defendant is concerned with the incompetence of counsel at the trial for the 1st defendant (not Mr. McCoy S.C. and Mr. Daniel Hui who only appeared in the appeal for the 1st defendant). This involved three issues. First, matters that were only raised in the 1st defendant’s evidence but not put to PW1. Second, counsel agreed with the Judge not to discharge the jury without taking instructions from the 1st defendant. Third, the issue of dangerous drugs. (1) Matters not put to PW1 10.This complaint arose in this way. In the evidence-in-chief of the 1st defendant, after he described that he entered PW1, the following question and answer appeared :
11.That the 1st defendant and PW1 had changed their positions was not a matter that was put to PW1 in her cross-examination as can be seen from the following evidence of PW1 :
Exchange between the Judge and counsel 12.The Judge was aware of the omission and brought up the matter with counsel in the absence of the jury. The Judge was concerned that the jury might be under a misapprehension as to the turn of events which he described as a ‘startling revelation’ that came out from the 1st defendant’s evidence. The Judge said,
13.Counsel confirmed that he had written instructions from the 1st defendant on this point. He informed the Judge the reason why he did not put the parties’ change of sexual positions to PW1 :
14.Counsel for the 1st defendant further informed the Judge that,
15.On the next day the Judge brought up the issue again in the absence of the jury :
16.The Judge stated that he had considered discharging the jury but had decided against taking such a step. The Judge informed counsel that he would raise the matter in the presence of the jury. 17.When the jury returned, the Judge referred to the evidence of the 1st defendant about the change of positions and that 1st defendant had entered PW1 from behind. This was followed by the following exchange between the Judge and counsel.
The Judge gave the first direction 18.The Judge then directed the jury as follows (‘the first direction’) :
The summing up 19.In his summing up to the jury the Judge stated that :
For ease of reference I have given numbers to the paragraphs. Applicable principles on counsel’s flagrant incompetence 20.The Court of Final Appeal in Chong Ching Yuen v. HKSAR (2004) 7 HKCFAR 126 addressed the circumstances in which incompetence of counsel may constitute a proper ground of appeal. It must be an error of significance which would preclude the defendant from having a fair trial. It is generally described as flagrant incompetence. Sir Thomas Eichelbaum NPJ held that,
21.Bokhary PJ discussed the relationship between a defendant not having a fair trial due to counsel’s flagrant incompetence and the application of the proviso.
My view on counsel’s incompetence in respect of matters not put to PW1 22.Counsel had filed an affidavit in response to the allegations made against him. He also attended the hearing of the appeal. Although there is certain discrepancy between what counsel said at the trial and the content of his affidavit, Mr. McCoy S.C. did not make any oral submissions on the affidavit. Mr. McCoy S.C. and Mr. William Tam SADPP, counsel for the respondent, informed the Court that they had no questions to ask counsel. The Court also had no questions. Counsel declined when asked whether he wished to say anything in response. 23.I will deal with this issue on the basis of the contemporaneous exchange between the Judge and counsel at the trial. Much as I regret finding incompetence against counsel, I have to say that counsel was flagrantly incompetent in not observing his instructions and not putting forward his instructions to PW1 that she had changed her position and the 1st defendant had entered her from behind. Although counsel said that he chose not to put this matter to PW1 because she was unconscious at that time, he did, however, put to her other sexual acts between her and the 1st defendant. Hence the decision not to put the matter to her could not be for tactical reasons. In my view the omission is significant for the following reasons : 1) It precluded the 1st defendant from having his case fully presented before the jury. His case that PW1 had indeed changed her position and let him enter from behind was part and parcel of his case that the sexual intercourse with PW1 was consensual. As the Judge observed, what more could there be by way of submission and consent which was the very issue that the jury had to decide. 2) The jury was precluded from observing PW1’s reaction if this matter was put to her and if she was cross-examined on it. There was a significant gap when they come to assess the evidence. 3) The jury may draw adverse inference against the 1st defendant in not putting the matter to PW1 and only chose to raise it in his own evidence. They might have the suspicion that the 1st defendant belatedly made up a story about PW1 consenting to the sexual intercourse. 24.The omission is a serious one. This together with the subsequent decision by counsel agreeing with the Judge not to discharge the jury without seeking instructions from the 1st defendant do have the effect of preventing the 1st defendant from having a fair trial. 25.The more difficult decision in this appeal is whether the 1st defendant was indeed precluded from having a fair trial? To consider the question one has to examine the directions given by the Judge. 26.In my view the first direction given by the Judge to the jury immediately after the topic was raised and in the first two paragraphs in his summing up which I had quoted had certainly removed the possible prejudice of a recent invention. The Judge had clearly directed the jury that the fault lay with counsel and not the 1st defendant in not putting the matter to PW1. They were directed not to draw inference against the 1st defendant. 27.However, I have serious difficulties with the contention that the other prejudice to the 1st defendant was also cured by the directions. The fact remains that the 1st defendant was deprived from having his case of a consensual intercourse being presented fully because of counsel. As a result there was still the missing evidential gap when the jury assessed the case. Added to the difficulty is the Judge’s direction in the third paragraph of the summing up which I have quoted. The Judge had told the jury that they were deprived of any reaction that PW1 might have had to the allegation that she had changed her sexual position during the intercourse because this matter was not put to her in her cross-examination and they had to judge not merely by words but also how a witness would respond to a significant matter. The Judge further stated that in that regard, the jury did not have PW1’s response to what, if true, was ‘a manifest indication of co-operation and consent to sexual intercourse.’ They were told not to speculate. These were clearly proper directions. But having said that, the Judge went on to direct the jury in the third paragraph that nonetheless they were entitled to judge whether they would believe PW1 might have acted as suggested or whether it was an invented story to strengthen the 1st defendant’s claim that she was consenting to the sexual intercourse. Short of recalling PW1 (which was not done) to have this matter put to her and obtain an answer from her, I just do not see how the jury could adjudicate in the way as directed by the Judge. The matter that was not put to PW1 was not trivial but significant. As the Judge himself had observed it bears directly on the issue of whether there was consensual sex. This is precisely the problem caused by the failure of counsel to cross-examine PW1 on this very issue. To say that the jury must have by their verdict accepted the evidence of PW1 and rejected that of the 1st defendant begs the question as to why in the first place a defendant was not entitled to have his case fully presented in an unembellished way. 28.As to the rhetorical question of how a fair trial could be vitiated by the omission of one matter, the answer must be that the omitted matter must be considered in its context. I, on my part, would hold that the 1st defendant did not have a fair trial. This was caused by the flagrant incompetence of counsel and on that basis, there is no room to apply the proviso. (2) Counsel’s incompetence in not taking instructions on discharge 29.I have already addressed this point earlier. (3) Counsel’s incompetence in not challenging allegation of drug use 30.When PW1 decided to report to the Police, her complaint was that she suspected that she had been drugged. When asked by the Police why she had such a suspicion she revealed the story of sexual assault. PW1 accepted that in her initial report, she informed the Police of sexual assault and not rape. In her evidence in Court she mentioned that the 1st defendant had a soft drugs habit. PW2 also mentioned that the 1st defendant took soft drugs. My view on the drugs issue 31.It is plain from the Judge’s summing up that the 1st defendant wished to highlight PW1’s reason for approaching the Police :
32.Earlier on the Judge had given a similar direction to the jury :
33.Mr. McCoy S.C.’s real complaint is that, while the issue of spiking of drinks may be relevant, PW1 should not be allowed to refer to the 1st defendant’s habit of taking soft drugs and counsel was incompetent in not objecting to it. 34.In my view although PW1 and PW2 had given evidence on the 1st defendant taking drugs, the Judge had properly directed the jury that they should ignore the allegation of the 1st defendant taking drugs. This issue had no impact on a fair trial.
2) Judge not discharging jury 35.In the light of my view on counsel’s incompetence, it is not necessary for me to consider the ground of appeal concerning the Judge’s wrong exercise of discretion in not discharging the jury. 3) Flagrant incompetence of prosecuting counsel 36.Another ground of appeal relied upon by the 1st defendant is that prosecuting counsel had in breach of the rules of fairness and/or the rule in Browne v Dunn (1894) 6 R 67 and/or with flagrant incompetence failed to fairly put the prosecution case to the 1st defendant in relation to the matters that were not put to PW1 and the circumstances leading up to, during and after the sexual intercourse with the complainant. 37.The transcript of evidence showed that prosecuting counsel at the trial (not Mr. William Tam, who only appeared in this appeal) only asked a few questions in her cross-examination of the 1st defendant on what had happened inside the hotel room.
38.Lord Herschell LC in Browne v Dunn at70 stated that,
This principle applies to both civil and criminal cases : Fenlon and others (1980) 71 Cr. App. R. 307. My view on prosecuting counsel’s incompetence 39.It is a startling proposition that prosecuting counsel was required to cross-examine the 1st defendant on the matters not put to PW1 and also on matters relating to the sexual activities between 1st defendant’s and PW1 in the hotel room and that the failure to do so would vitiate a fair trial. It may well be that the omission would preclude prosecuting counsel from commenting on the truthfulness of the 1st defendant’s evidence but this is a long way away from saying that a fair trial has been vitiated. I do not regard this ground to be sustainable. 4) Direction on PW1’s self induced intoxication 40.Although it was raised as a ground of appeal, Mr. McCoy S.C. conceded at the hearing that the Judge had given proper directions on the self-induced intoxication of PW1. In my view, the direction given by the Judge was clear and provided proper guidance for the jury on this point. 5) The Judge’s refusal to give a ‘genuine but mistaken’ belief direction 41.The Judge gave a recklessness direction but refused to give a ‘genuine but mistaken’ belief direction. Counsel at the trial considered that such a direction was not necessary for the 1st defendant. 42.Mr. McCoy S.C. argued that a belief is not inconsistent with the recognition of the possibility of a contrary state of affairs : but a belief is inconsistent with knowledge of a contrary state of affairs. A defendant believed that by acquiescent conduct the complainant is consenting to sexual intercourse; that belief may prove to be mistaken, but as long as genuinely held (even if unreasonable) it is a full defence; but it is no defence if the defendant knows that the complainant is not consenting. 43.The 1st defendant’s mistaken belief can itself be an inference drawn from all of PW1’s conduct e.g. proceeding to the love hotel, walking hand-in-hand, she leading the way down the corridor, no objection by her to sexual activity became of her drunken state. As PW1 on her own evidence was perfectly capable of being ‘unconscious’ yet able to carry out autonomous integrated physical acts before the hotel room door, the fact-specific basis for the 1st defendant’s possible perception exists that on the other side of the hotel door her so-called ‘unconscious’ physical acts were equally consensual. A drunken / tired / exhausted consent by PW1 is still consent. The scope for the 1st defendant to misunderstand or misinterpret her capacity to give consent is real. The (un-cross-examined) fact that she said ‘Mm’ is obvious and relevant to the 1st defendant’s perception. Relevant principles 44.In the House of Lords decision of DPP v Morgan [1976] AC 182, Lord Hailsham of St. Marylebone held (at p.214) that : (1) The ‘actus reus’ for the offence of rape is having sexual intercourse with the victim without her consent. (2) The ‘mens rea’ for that offence is the defendant’s intention to have sexual intercourse with the victim without her consent. (3) The prosecution has to prove that the defendant had such an intention in order to have him convicted. (4) If the defendant genuinely believed that the victim consented to sexual intercourse, the aforesaid intention would be negated. Standard direction 45.The standard jury direction issued by the Judicial Studies Board on genuine but mistaken belief is as follows :
Authorities 46.In Cheung Moon Tong and Another v. The Queen [1981] HKLR 402 at 406, this Court (Huggins VP, Cons JA and Silke J) stated that,
47.In HKSAR v. Ma Kin Yiu [2008] 1 HKCLRT 350, this Court (Cheung, Yeung and Yuen JJA) stated that,
48.In Ma Kin Yiu the Court reviewed the cases where the direction was either given or not given. The following cases should also be considered. In respect of HKSAR v. Yiu Chi Wang (CACC 582/2002) where at first instance the judge gave the direction, on appeal it was held that the direction was not necessary. In that case the complainant got drunk at a bar. When she regained consciousness, she found herself lying on the defendant’s bed and had been raped by the defendant. She had no recollection of what happened that night save that she had got drunk at the bar. The defendant alleged that the victim consented to sexual intercourse with him. 49.This Court (Stuart-Moore VP, Yeung JA and Beeson J) in Yiu Chi Wang also referred to the following decision :
50.In R v. Chow Siu Hei and another (CACC 692/1995), this Court (Power VP, Bokhary and Mayo JJA) dealt with a case where the complainant was in a comatose state due to excessive alcoholic intake when she was raped. The defence was consensual sex. This Court held that,
51.In HKSAR v. Wai Sze Lim (CACC 442/2006), the complainant and the defendant were former schoolmates. They attended a reunion dinner together. Afterwards they went for drinks at a bar. The defendant drove the complainant home. She sat at the back of the car and fell asleep. When she woke up, the car was stationary and the defendant was trying to arrange her clothing. She suspected that she had been molested by the defendant. The defendant was charged with rape. The defendant relied on consensual sex. He said that the complainant was not drunk and had not fallen asleep. She removed her clothes and demanded sex from him. This Court (Stuart-Moore VP, Beeson and McMahon JJ) first discussed whether there was the need to give a recklessness direction,
52.Referring to the possibility that the jury may reject the defendant’s evidence and accept that of the complainant to the effect that she did not consent to any sexual intercourse because she was asleep and the jury may have thought the defendant may have had intercourse with the complainant without his being sure whether she was consenting or not, this Court held that,
53.The Court further rejected the need for a genuine belief direction
My view on genuine but mistaken belief direction 54.As pointed out in Cheung Moon-tong the direction is only necessary when the effect of the evidence as whole shows that the defendant believed or may have believed that the woman was consenting. I do not consider that as a prerequisite for the direction to be given it is necessary for the defendant to state that he was genuinely mistaken that the woman had consented. Rather, the Court is to ascertain whether on the evidence the defendant believed or may have believed there was indeed consent. While the belief is subjective, the Court has to ask itself whether objectively the evidence may give rise to the possibility of the defendant believing that the complainant had consented. In this case, PW1 and the 1st defendant were not strangers. They knew each other at school. Prior to the night in question, in March 2008, they started sending messages to each other by MSN and on 14 June 2008 PW1 attended the 1st defendant’s birthday party. As the Judge directed the jury some of the texted messages were personal in nature although not exceptionally so. On the night in question the CCTV tape also showed PW1 and the 1st defendant were holding hands when they exited from the lift of the building where the club was. After they got on the taxi, PW1 realised that they were going to a hotel. When they arrived at the hotel the CCTV tape showed that PW1 was standing with the 1st defendant at the hotel counter before proceeding on her own to a sofa and sat down. Afterwards, PW1 and the 1st defendant were seen holding hands after they exited the lift and walked along the corridor towards the hotel room. 55.Although the 1st defendant agreed with the question put to him by prosecuting counsel that when they entered the room the condition of PW1 was such that all she wanted to do was to sleep on the bed, he also said that after he had used the washroom, he saw PW1 lying on the bed and that she was awake. 56.The evidence of PW1 is that on the night in question her state of awareness of what was happening to her or around her varied from time to time. This being the case, could she really be in a position to refute what the 1st defendant said had happened that night? In the context of this case (and I emphasis this direction must be considered in the context of each case), I would hold that the direction was needed despite the contrary view of the Judge and trial counsel. It is not suggested that a further direction along the lines stated by the trial judge in Wai Sze Lim had been made in the present case. 57.The Court has raised the issue in the course of the discussion whether the genuine but mistaken belief direction was not necessary because of the ‘recklessness’ direction given by the Judge, namely,
58.In view of the fact that this issue has not been fully canvassed by counsel in the appeal, I would refrain from dealing with it. It is sufficient for me to say that it seems that there is indeed a distinction between belief and knowledge and the genuine but mistaken belief direction is distinct from the recklessness direction. Disposal of the 1st defendant’s application 59.I would, on my part, grant leave to the 1st defendant and allow his appeal against conviction. I would like to indicate that my intention is to hear arguments on a retrial if his conviction is quashed. The 2nd defendant’s grounds of appeal 1) Genuine but mistaken belief direction 60.The 2nd defendant argued that a genuine but mistaken belief direction is required. Mr. Bruce Tse who appeared below had requested such a direction but was refused by the Judge. Mr. Plowman S.C. and Mr. Tse, counsel for the 2nd defendant referred to the following parts of the summing up :
61.Counsel further referred to the following evidence of PW1
62.It was submitted by counsel for the 2nd defendant that the sexual activity between the 2nd defendant and PW1 lasted for about two to three minutes or so and PW2 was watching closely nearby all the time; PW2 believed PW1 was sober/conscious and knew what she was doing. PW2’s evidence was
63.PW2 further testified that the 2nd defendant stopped and left PW1 alone just seconds after PW1 said she was cold.
64.In my view there was no room for the direction to be given for the 2nd defendant. (1) PW1 only met the 2nd defendant twice at the club where he worked as a bartender. She described the 2nd defendant as an ‘absolute stranger’ to her. In the early part of the night in question, the 2nd defendant’s role was to serve drinks to the party goers including PW1. He had described no intimate acts between him and PW1 at the bar which might give him the impression that PW1 would be willing to have sex with him later on. The fact that PW1 seemed to be willing to go to a hotel with the 1st defendant cannot be the basis for the 2nd defendant to have a genuine but mistaken belief that she would be willing to have sex with him as well. (2) The 2nd defendant did not in his record of interview adopt what PW2 had said, namely, she believed the 1st defendant said to the 2nd defendant that ‘She’s (i.e. PW1) Okay. You can do it’, to be the basis for his belief that PW1 was consenting to have sex with him. This was also not relied upon in the appeal. (3) The 2nd defendant must have seen the state of PW1’s intoxication when he accompanied her and the 1st defendant to the hotel. The fact that PW1 initially did not resist him when he kissed her, touched her breast and rubbed against her (because she was unable to resist) could not have given him the mistaken belief that she was consenting. (4) The fact that the 2nd defendant stopped when PW1 pushed him away and shouted ‘no’ does not mean that there was room for a genuine but mistaken belief that PW1 was consenting to have sex with him in the first place. On the contrary the resistance put up by PW1 is an indication that she had not given consent to the sexual intercourse at all. (5) PW2 thought that PW1 was conscious, this must be understood in the context in which PW2 gave this evidence. She said ‘…. I would think that if someone touch you or have any movement, if you are conscious then you would be able to feel that… and at that time because of such I thought she was conscious or sober.’ Properly understood, it could only mean that PW2 thought PW1 to be conscious because she did not immediately stop the 2nd defendant from having sex with her. The intoxicated state of PW1 must be considered. 2) The Judge erred in allowing evidence of suspicion of PW1’s drinks being spiked to be given 65.This is not a valid point because counsel for the 1st defendant wanted this issue to be before the jury as part of the 1st defendant’s defence. The Judge could not have excluded such evidence from being adduced. In any event, the Judge had given proper direction to the jury that it was unsafe to speculate that the drinks had been contaminated with drugs. 3) Inadequate direction on self induced intoxication 66.The 2nd defendant adopted the submission of the 1st defendant on this issue. However, the 1st defendant conceded that adequate direction was given by the Judge. This point was not pressed by the 2nd defendant. In any event, as pointed out earlier, a proper direction had been given. Disposal of the 2nd defendant’s application 67.I would dismiss the 2nd defendant’s application for leave to appeal against conviction. Hon Yuen JA : 68.I have read the draft judgments of Cheung JA and Line J. After much deliberation I have come to the view that the appeal must be allowed on the ground that no direction was given to the jury on genuine but mistaken belief. Before I give the reasons for that decision however, I will first express my views on the counsel’s incompetence ground. Counsel’s incompetence ground 69.In respect of the 1st ground of appeal, I take the view that whilst counsel appearing at trial for the 1st Defendant (hereafter “trial counsel”) had no good reason for omitting to put to PW1 his client’s instructions concerning the allegation that she changed her position during intercourse to facilitate his entering her from behind, in the circumstances of this case it did not amount to flagrant incompetence such as to warrant the appeal to be allowed on this ground. 70.First and foremost the prejudice suffered by the 1st Defendant by this omission was the risk that the jury would draw an adverse inference against him that he had invented this allegation whilst giving evidence because it had not been put to PW1 by trial counsel in cross-examination. However this prejudice was completely purged by the trial judge’s strong and clear direction to the jury that the fault for the omission lay with trial counsel and not with him. 71.1 Whilst it is true that the judge also took trial counsel to task as the jury had been deprived of the opportunity to observe PW1’s reaction when such an allegation is put to her in cross-examination, I take the view that this did not result in the 1st Defendant not having a fair trial. 71.2 It was clear from the cross-examination that PW1 categorically and consistently denied all allegations put to her which suggested that sexual intercourse was, as trial counsel expressly put to her, “consensual and reciprocal”. When she had denied even having talked and laughed about a relatively innocuous act such as the 1st Defendant’s offer to massage her head and shoulders, it is unrealistic to expect that her reaction to an allegation of change of position could be anything other than adverse to the 1st Defendant. 71.3 The trial judge alluded to this when he said to the jury that “you might infer, given the rest of her evidence, that she would have denied it”, but this was followed by his direction that as it was the decision of trial counsel, not the 1st Defendant, not to put the allegation to PW1, it would be unfair to criticize and that the jury was not to speculate about how PW1 would have reacted if such an allegation had been put to her. 71.4 There is also the point that PW1 could have been recalled for the allegation to be put, and her reaction observed, so that the evidence could be complete. That this step was not taken was not a ground of appeal. The fact that the experienced trial judge did not, in his discussions with counsel, suggest recalling PW1 demonstrates that in substance the only real prejudice suffered by the 1st Defendant by the omission had been purged by the trial judge’s directions. 72.As for the trial judge’s direction that the jury was entitled to judge from all the evidence whether PW1
the allegation about the change of position was part of the 1st Defendant’s evidence and the judge could not have ignored it in his summing-up to the jury. I take the view that this was a proper direction in the circumstances, given the matters I have discussed in the preceding paragraph. Genuine but mistaken belief ground 73.I now come to the genuine but mistaken belief ground. It is well-established that whether such a direction should be given depends on the particular circumstances of each case. 74.In the present case, the undisputed evidence was that PW1 and the 1st Defendant were at school together, and for 3 months prior to the incident, had been chatting to each other on MSN, involving messages about relationships which were, in the judge’s words, “quite personal in nature but not exceptionally so”. She was 20 and the 1st Defendant was 23. They were both single and employed in responsible positions, she at an airline and he as a financial planner. 75.The judge left it to the jury to decide whether, having seen the MSN messages, “was this [PW1] a young woman pushing herself forward to commence a relationship with a young man?” According to the 1st Defendant he had asked her out on a date a couple of months before the incident but that did not materialise. There were MSN messages about his taking her out. 76.1 More importantly it is clear from the judge’s summing-up that it was part of the 1st Defendant’s case that some MSN messages from PW1 gave the 1st Defendant the impression that she was a “hardened drinker”. 76.2 A few days before the incident the 1st Defendant invited PW1 to his birthday party at a club. PW2 called the 1st Defendant a few days later proposing drinks at the same club. According to the 1st Defendant she told him PW1 would come, as in fact she did. It is not disputed that at the club, PW1 voluntarily had a substantial quantity of alcohol. On PW1’s own evidence, she had consumed similar quantities before. This may support the defence case that she was a “hardened” or at least regular drinker. 77.1 PW2 fell asleep at the club. PW1 did not. PW1 said frequently during her evidence that after drinking at the club, she was “unconscious”. It is important to note that when PW1 used this term, she did not mean “comatose” or “sleeping”, but in effect “unaware” of what was going on, even though she was apparently autonomous. 77.2 Therefore the cases cited to us dealing with sexual intercourse with women who were comatose or sleeping are not apposite. 78.1 There was no evidence that PW1’s drinks had been “spiked”. The only evidence before the jury was that when PW1 went to hospital the morning after the incident, the results of her tests did not indicate the presence of any drugs. 78.2 More importantly there is in any event no evidence that the 1st Defendant was aware that PW1’s drinks had been “spiked”. He was of course aware that she had been drinking - but his perception of her ability to hold her drink had to be considered in the context of the MSN messages suggesting that she was a “hardened” or at least regular drinker, and there were no previous occasions when they had been drinking together when he had been able to assess her ability to hold her drink (other than the birthday party where there was no evidence that she had got intoxicated). 79.It is correct that even on the 1st Defendant’s own case, he helped PW1 off the floor of the toilet, and the CCTV images taken in the lift of the club showed PW1 on the floor, but PW1 also admitted that she was able to make a telephone call to a friend whilst in the toilet, and afterwards the CCTV images showed her walking out of the building. It may be that she was being led out of the building by the 1st Defendant, but her physical state was not such that she needed to be supported. 80.More importantly, in her statement to the police, PW1 said that she knew, whilst she and the 1st and 2nd Defendants were in the taxi, that their destination was the hotel. 81.1 The CCTV images from the hotel lobby show that only the 1st Defendant and PW1 went in. They show PW1 tidying up her hair, and walking by herself to an armchair where she sat after the 1st Defendant left the hotel to use a teller machine. 81.2 She did not call the friend whom she knew had called her in the taxi, or leave the hotel, or at least approach the lobby staff for assistance if she was feeling ill. 81.3 The CCTV images showed that after the 1st Defendant returned, PW1 went up the lift with him and walked down the corridor with the 1st Defendant holding her hand. Again it may be that she was being led to the room by the 1st Defendant rather than holding hands walking, but her physical state was not such that she needed to be supported. Her actions were apparently autonomous. 82.It is against the backdrop of these matters that the issue whether there should have been a direction of genuine but mistake belief arises. If the 1st Defendant genuinely had or might have had the belief that PW1 was consenting to sexual intercourse, then the prosecution would have failed to prove that he knew or was reckless about lack of consent. 83.The specimen direction is as follows:
84.In the present case, matters which could have been left to the jury as reasonable grounds for such belief included:
85.1 Of course PW1 also said in evidence that she had just wanted to sleep in the hotel and that from time to time she was not aware of her actions. 85.2 The jury could have been directed to consider whether the 1st Defendant might have thought that PW1 could have slept at the club which was what PW2 was doing and that the 1st Defendant’s evidence was that when he proposed going home, she said “my home or your home?” 85.3 As for PW1’s state of awareness, there was no evidence that her drinks had been “spiked”, or that the 1st Defendant was aware of that, and the 1st Defendant’s evidence was that the impression she gave him in the MSN messages was that she was a hardened or at least regular drinker. The jury would have to consider the 1st Defendant’s belief when PW1 was aware that they had gone to a hotel, and as the CCTV images showed, she was capable of autonomous actions, and had the opportunity to leave. 86.In these circumstances, I take the view that a direction should have been given to the jury that they should consider whether the 1st Defendant had a genuine but mistaken belief that PW1 was consenting to sexual intercourse, and if that were the case, then the prosecution would have failed to prove that he knew or was reckless about lack of consent. 87.1 The issue was not whether the jury believed that PW1 was from time to time unaware of what she was doing, as she repeatedly explained - at the trial in the witness box -, but whether the prosecution could prove that the 1st Defendant knew - that evening in the hotel room - that she was not so aware, despite her apparently autonomous actions. 87.2 As for the fact that PW1 allowed the 2nd Defendant, a brief acquaintance, to have sexual intercourse with her, that does not affect the 1st Defendant’s awareness of PW1’s condition as he (the 1st Defendant) had already finished intercourse with her before the 2nd Defendant commenced. 88.Finally I would add for the sake of completeness that to only give a direction that a defendant would be reckless
may or may not be inadequate, as the jury is not told that “the question must always be whether you are sure that he himself did not hold such a belief” (emphasis added). However as this has not been argued, I should say no more. 89.In the circumstances I take the view that the appeal should be allowed so far as the 1st Defendant is concerned and that the parties should be heard on the question whether there should be a re-trial. As for the 2nd Defendant, I agree with the reasons given by Cheung JA for dismissing his appeal. Hon Line J : 90.The facts have already been set out. 91.Ground one of the amended perfected grounds of appeal of the first applicant complains that defence counsel at trial displayed flagrant incompetence:
92.Ground two complains “that the Judge’s directions to the jury in this regard were inconsistent, confusing and invited the jury to even speculate to the extent that they were invited to decide whether the “unput” instruction may have been a false invention to strengthen the applicant’s affirmative case. This only exacerbated the original failure of defence counsel”. 93.Ground three complains that the Judge erred in the exercise of his discretion to refuse to discharge the jury. 94.These three grounds involve the cross examination of PW1 by counsel for the first applicant. The relevant part of it reads thus:
95.Whilst it may have been preferable for counsel to have put directly to the witness that she was moaning with pleasure, I am of the view that his question “you reciprocated the passion that he’d demonstrated for you”, against the background of the other matters he had put, was sufficient to avoid the omission as being correctly characterised as flagrantly incompetent or in significant error. 96.I judge that the changing of positions and the reason for it should have been put to the witness. It was an error not to do so. As the judge said to the jury, it was “a manifest indication of co-operation and consent in relation to sexual intercourse”. What was its impact on the trial? It is common ground that the first applicant must show that he received less than a fair trial by reason of the error if he is to succeed on these grounds, (per Sir Thomas Eichelbaum in Chong Ching Yuen v. HKSAR (2004) 7 HKCFAR at paragraph 49). 97.The most immediate damage to a defendant that may arise when a significant matter is not put by his counsel is that the jury may think his evidence about it to be a late invention. This not uncommon situation is habitually dealt with by counsel acknowledging the fault in front of the jury and the judge giving a warning in terms that tells them they must draw no adverse inference against the defendant because of it. 98.This course was adopted in this case. When the matter was first ventilated the judge had counsel tell the jury that he had written instructions about the change of positions and he then gave the jury the relevant warning in the strongest possible terms. The judge then repeated the warning in his summing up. He said this:
99.The jurors can have been left in no doubt that they must not take the omission to have the matter put to PW1 in any way against the first applicant and that they must not think he was making the matter up in the witness box. I am satisfied that the potential prejudice in this regard was nullified by these directions. 100.The claim in ground two that these directions were inconsistent and confusing and exacerbated the matter are in my judgment unsustainable. The alleged inconsistency was between inviting an inference that PW1 would have denied the suggestion and a direction not to speculate about how she would have reacted to the allegation. The judge was making a clear distinction between the very reasonable expectation that she would not have accepted the allegation, given her other answers about what was going on, and how that may have been expressed: in other words her demeanour. Denial was capable of inference: how she may have denied was not. 101.Mr McCoy SC suggested in argument that the judge was not entitled to invite the jury to draw the inference that she would have rejected the allegation. I regret to say that I find it to be a submission that has lost touch with reality. One only has to cast one’s eye over the transcript to see the material which would justify the jury in coming to that sensible conclusion. She can be seen to be rejecting each and every suggestion of consensual intimacy. The idea that this further single suggestion, albeit important, would not have gone the same way is fanciful. 102.At the same time the judge was right to point out that one could not know how she would have responded in the sense of her demeanour or emotional response. It may be that she would have adopted the single word “incorrect” as she did to other suggestions. It may be that it would have prompted more. There are examples in the transcript where this occurred. There was no obvious inference in this regard and this was the area where the judge rightly told the jury not to speculate for the suggestion was one that may have produced a more emotional response, given how it graphically suggested enjoyment. 103.The final paragraph quoted above was one that attracted attack from Mr McCoy SC because, he said, it invited the jury to consider whether the first applicant’s allegation may have been an invention. If I followed him correctly, it was said that this was either an impossible or impermissible task as the matter had not been put. The invitation by the judge was no more than an invitation to asses any available evidence that bore on the topic. He mentioned in particular the evidence of the first applicant and that of PW1. The idea that the jury was prevented judging the matter from the evidence because there was no direct question of PW1 on the topic is frankly simplistic. They were well able to do so and were fully entitled to rely on the indirect evidence from PW1, namely her other repeated denials of what was put as part of the suggested course of consensual conduct. The paragraph also reminded them to address the question in terms of the burden and standard of proof. 104.The second potential for prejudice from counsel’s failure is that the jury was deprived of seeing PW1’s response to the suggestion. It is true, of course, that they did not see her reaction to this one question, but the idea that this rendered the trial unfair is one that cannot be countenanced. They saw her dealing with the course of consensual conduct that was suggested by counsel. They saw her rejecting her alleged enthusiastic participation with both applicants. She was in the witness box for just short of four days. The jury had ample material on which to form a sound judgment. Nothing has been suggested that would lead one to think that her reaction to this particular mode of participation would have been any different to the others that were suggested. There was nothing to suggest that her reaction, even if different, would have been different in a way that could have been favourable to the first applicant, let alone so potentially favourable that his trial became an unfair one. There was every reason to infer an unfavourable answer and reaction. 105.For the same reasons that the trial was not unfair, the judge was right not to discharge the jury after nine days of hearing. The matter was canvassed between bench and bar and no counsel asked for it. The decision was so obviously right that it calls for no further discussion. What passed between the first applicant and his counsel concerning a re-trial is thus of no account. 106.What was not canvassed was the prospect of re-calling PW1 so that the matter could be put to her. Neither was the failure made the subject of a ground of appeal although it was adverted to in argument. At first blush that may seem surprising, but experience shows that recalling a witness on a topic like this pays only lip service to the rules and serves no real purpose. The cross examination cannot be undertaken again. The single question is put, the witness predictably says no or disagree and leaves. The addition to the evidence is theoretical rather than real. It is impossible to re-create the feelings and atmosphere that cross examination produces. The context for an emotional response has passed and cannot be re-created. Recalling a witness is desirable if it is likely to lead to something new which should have been in evidence if the case had been properly put to the witness in question. That was not the case here. Recalling PW1 and putting the question was likely to lead to no more than that which was to be readily inferred: verbal rejection. It is these considerations that would explain why the course was neither discussed nor taken. The failure to do so had no impact on the fairness of the trial. 107.The idea that applicants can successfully come to this court for the failure of their counsel to put one line of their instructions, when the general gist of the case was put, is one that would be met with dismay by those who try these cases and appreciate the realities of such trials at first instance, including the quality and timing of the instructions counsel receive. 108.Turning to the question of whether the judge should have given an honest belief direction, I need only deal with the case of the first applicant, agreeing as I do with the majority that there was no room for such in the case of the second applicant. 109.The law is easy to state in this regard: if the evidence calls for such a direction it must be given. It is a question of fact in each case. The authorities cited to us provide factual examples. Cases such as HKSAR v. Yiu Chi Wing CACC 582/2002 (woman waking up in defendant’s bed, with no recollection how she got there, with him having intercourse with her); R v. Chow Siu Hei CACC 692/1995 (woman comatose whilst gang raped); HKSAR v. Wai Sze Lim CACC 442/2006 (woman waking in back of car to find defendant re-arranging her clothes after the intercourse) show that, where the condition of the victim, especially her state of awareness or consciousness, was such that a man could not have mistakenly thought she was consenting, the direction was not necessary and indeed was best avoided lest it distract the jury from the real issue. 110.Counsel for the first applicant, when the question of whether or not to give the direction was raised, said this: “that at the heart of this matter there is an issue of consent or no consent, and there could have been no mistake about this”. I agree with him. The first applicant was in the best position to say whether or not his belief in consent was based on fact or mistake. Counsel did not wish the direction to be given and there is no criticism of his competence in this regard. It was a legitimate tactical decision. Counsel must have judged that he was better off with the directions catering for the way the case had been conducted, which was on the issue of consent. He must have judged that he was not better off with directions about a defence he had not adopted and which proceeded on the basis that PW1 had not in truth been consenting. 111.Was there evidence in the case that made it imperative for the judge to go behind the issue that the parties framed and argued to the jury? I judge not. If there was to be any doubt about a lack of consent then the jury was obviously bound to acquit. The jury would have to believe PW1’s evidence about her condition for them to find a lack of consent and so convict the first applicant, as they unanimously did. Once sure of her condition what room was there left for a mistaken belief in her consent? I judge that there was realistically none. For that condition was one which she had described as being beyond the usual effects of taking alcohol. It allowed the first applicant to have sex with her without her being aware of it. It allowed a virtual stranger to have sexual intercourse with her almost immediately thereafter, of which she was only dimly aware, in circumstances where she lacked the ability to prevent it, even though her friend was there to call upon for help. The jury must have been sure that she did not consent to this second act of sexual intercourse for the second applicant was convicted of rape. How could mistake sensibly run if she was in such a condition that allowed for all of this? It is no surprise to me that counsel did not want to argue for it. It is no surprise to me that the judge considered it unnecessary and of no help to the jury in its task. 112.What is capable of being identified in the evidence that would afford scope for mistake and the need for the direction? Let me turn to those matters at paragraphs 54-56 in the judgment of Hon Cheung JA. I will take the matters in turn. 113.The fact that the two had some acquaintance and had some SMS contact before the events in question cannot of itself have laid the ground for a mistaken belief in consent. 114.The next three facts (two hand contacts and going to the sofa in the lobby) came from the CCTV tapes. The judge summed up all the points to be made from the CCTV tapes (and there were more than these three, both for and against) comprehensively and with balance and fairness. The jury obviously believed her evidence about the state she was in. Her state obviously explained satisfactorily to them her actions as seen on the CCTV tapes such that they were not to be taken as an indication of any conscious and willing co-operation with a view to going for sex in the hotel with the first applicant. If they had not believed her about her condition they would have been bound to acquit, for her condition was the sole explanation of how it was possible that she was raped by the first applicant. I would suggest that there was simply no scope for the jury to think that the first applicant could have mistaken her condition given the amount of time he spent with her in intimate circumstances and his ample opportunity to perceive and appreciate her condition. 115.As to knowing the taxi was going to a hotel she said this: “on board the taxi and even though I heard that the destination was hotel, I was feeling very unwell and I had just thrown up and feeling dizzy so I did not have the strength to ask Lee Sze-lung (the first applicant) the reason.” 116.Finally, at paragraph 56 above, this question is posed on the issue: “The evidence of PW1 is that on the night in question her state of awareness of what was happening to her or around her varied from time to time. This being the case, could she really be in a position to refute what the first defendant said had happened that night?” With great respect, this question addresses the sufficiency of the evidence of lack of consent. It does not address the scope for a mistaken belief in another person about PW1’s condition and attitude to sex. Since it is posed, however, it can be answered with confidence. The answer is that she was in a position to be able to refute what the first applicant said about what happened that night as she convinced the whole jury that there was no truth in it. If they had harboured any reasonable doubt about her refutation of the first applicant’s account they would have acquitted him. With respect I cannot see that this court should take a different view about her ability to refute his claims of her conscious consent. 117.As regards those matters identified in the judgement of Hon Yuen JA as giving rise to the need for the direction, I would agree with the proposition “that the issue was not whether the jury believed that PW1 was from time to time unaware of what she was doing, as she repeatedly explained - at the trial in the witness box -, but whether the prosecution could prove that the first defendant knew - that evening in the hotel room - that she was not so aware, despite her apparently autonomous actions.” It is with the greatest of respect that I differ as to whether the issue, in the context of this trial, called for the direction about mistake. I would suggest that the jurors had to make their minds up about her condition and then make their minds up about the first applicant’s knowledge of it, just as the judge guided them. I cannot see, and neither did the first applicant’s counsel nor the judge, that there was sensible room to introduce mistake into that hotel room if her condition was that which she described. The relevance of the sexual intercourse that took place with the second applicant, with her only being dimly aware of it, so soon after that with the first applicant, is that it indicated the nature and quality of her condition. That condition did not arise between the two acts of sexual intercourse. For reasons I have already given, it must have been the case that if PW1’s condition was not established the prosecution case would fail. If it was established there was no room for mistake. 118.It is right to point out that there was no evidence of PW1’s drink being spiked. She did seek a test to establish whether it had been. By the time one was arranged 34 hours after the event, it was too late to detect the presence of any substance of a type which could be expected to account for her earlier condition. As the judge pointed out, the evidence of the testing was neutral on the issue. 119.PW1 had described the quality and nature of her condition as being one beyond the usual effects of taking alcohol. The judge rightly directed the jury that there was no evidence that her drink had been spiked, let alone by either of the applicants and advised them to concentrate on her condition as opposed to how it came about. I mention this lest those other matters described as “autonomous actions” could be said to be inconsistent with the taking of alcohol alone. This jury was not obliged to decide the case on the basis that alcohol must have been the only explanation for PW1’s condition. Using their knowledge of the world, they may have had little trouble in contemplating what is well-known in our criminal courts, that substances exist which in the hands of the unscrupulous expose victims to criminal exploitation, of either their bodies or their possessions, by interference with their consciousness short of knocking them out cold. 120.The cases cited dealing with sexual intercourse with women who were comatose or sleeping are, in my respectful opinion, apposite. The live issue in those cases was whether or not the woman was telling the truth about her condition and the circumstances of the sexual intercourse. They show that if the woman’s account is accepted and she was not conscious of her penetration, then the direction about genuine mistake is not to be given. The evidence given by PW1 in this case amounts to that very thing: she was not conscious of her penetration by the first applicant. A genuine belief in consensual sex must involve some appreciation of the state of mind of the other party to it. What could the first applicant have appreciated about her state of mind that would have allowed him to believe, albeit mistakenly, that she was consenting? There was simply no room for genuine mistake. 121.It is thus that I am unable to agree that the matters identified as giving rise to a need for the mistaken belief direction did so. 122.In argument, Mr McCoy SC suggested that one could not proceed on the basis of the jury being sure of lack of consent and use it as I have in an argument for the direction on mistaken belief being unnecessary. He based this on a claim that the jury may have decided the mental state of the first applicant without having decided whether or not PW1 had consented or not. I find the idea of that quite unrealistic. The idea that jurors would seek to work out what the first applicant knew or foresaw about any lack of consent without having resolved the issue of whether she had consented can safely be disregarded. The whole thrust of the trial and common sense demanded that the issue of consent had to come first, before resolving what the first applicant must have appreciated about it. 123.If, contrary to any reasonable expectation, a juror had decided to consider the question of whether the first applicant had mistaken lack of consent for consent, despite mistake not being mentioned at all in the evidence or in counsels’ speeches or by the judge, what would that juror have known to do? 124.I would suggest that such a juror would have turned to the written directions about the offence with which he had been provided by the judge. 125.The juror would have seen from the written directions that the prosecution had to prove that the first applicant knew that PW1 was not consenting or was reckless as to it. The definition of reckless was set out:
126.It demanded proof that the first applicant must at least know that there was a risk of the woman not consenting. The jury was told that, before they could convict, they had to be sure that the first applicant at the least knew or realized that there was a risk that PW1 was not consenting. A genuine mistake could allow for no such knowledge or realization. Thus if the juror did turn his mind to whether the first applicant may have mistakenly believed PW1 was consenting when she was not, he would have been bound to acquit as the prosecution would have failed to prove knowledge of the risk of no consent. I say this as no man, in the circumstances of a case like this one, about to have sexual intercourse with a woman for the first time, who knew that there was a risk of a lack of consent to it, could sensibly have an honest and genuine belief in her consent. 127.Thus, even if it could be said that the issue of honest belief had arisen on the evidence, I would still dismiss this appeal as in the circumstances of this case the basic direction sufficed. Of course there is a distinction between the basic direction and the honest but mistaken belief direction. I do not suggest that the distinction does not exist: all I say is that on the facts of this case it could never have mattered. If the case of the first applicant had even hinted at genuine mistake, I would agree that the direction was required. 128.The full direction, concerning the nature of the mistake as needing to be honest and genuine and not necessarily reasonable, is to do with the quality of the mistake. I would suggest that on the evidence in this case the most a juror could ever have contemplated was the existence of a mistaken belief as there was simply no evidence or submission about the quality of such a belief. No questions were directed to mistaken belief. (I remark that if there had been, it would have taken no great forensic skill for prosecuting counsel to have had the first applicant agree that mistake had no place in the case). In other words, the basic direction amply covered that which could arise: existence of such a belief. 129.Mr McCoy SC dealt with the question of the basic direction being sufficient. He had overnight to consider it and came back with written submissions. He argued that a man could honestly believe in consent whilst knowing there was a risk the woman was not consenting so that the basic direction did not suffice. Whether or not that is a theoretical possibility, it is one that I am confident no jury would accept in a case of this nature. If they thought the first applicant knew of the risk of no consent they would never countenance an honest and genuine belief by him in her consent, not least because such knowledge of the risk demands a man check before proceeding to the penetration of a woman, let alone a woman who was intoxicated and who had been vomiting and with whom he had shared no previous sexual contact. 130.I would dismiss both applications. Conclusion 131.By a majority, the Court allows the 1st applicant’s application. The Court will treat the application as the appeal proper, allow the appeal and quash the conviction. The Court directs the parties to lodge written submissions within 14 days on re-trial. 132.The Court unanimously dismisses the application of the 2nd applicant.
Mr. William Tam, SADPP of Department of Justice, for the Respondent Mr. Gerard McCoy SC and Mr. Daniel Hui, instructed by Messrs Tsang, Chan & Woo, for the 1st Applicant Mr. Gary Plowman SC and Mr. Bruce C H Tse, instructed by Messrs H. L. Wong & Co. for the 2nd Applicant (on conviction) 2nd Applicant : in person, present (on sentence) Application for a retrial by the Respondent in relation to the 1st Applicant to Court of Appeal granted. Please refer to CACC16/2010 dated 14 November 2011 |
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