HKSAR v. Barry Peter Miller

CACC000127/2000

CACC 127/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 127 OF 2001

(ON APPEAL FROM HCCC NO. 236 OF 1999)

Coram: Hon Stuart-Moore, VP, Stock JA and Lugar-Mawson J in Court

Dates of Hearing: 19-20 February 2002

Date of Judgment: 22 February 2002

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

The Indictment

1.Between 28 February and 7 March 2000, the applicant was tried before Jackson J and a jury upon an indictment containing two counts. Count 1 charged that on 20 April 1997, the applicant had unlawfully wounded Gary John Tait inside the New Pussy Cat Pub in Fenwick Street, Wanchai; and the second count alleged manslaughter of Tait, namely, that on 29 April 1997 the applicant had unlawfully killed Tait.

Trial Result

2.On 7 March 2000 the applicant was convicted upon both counts, by a majority on the first, and unanimously upon the second. He was sentenced to six months' imprisonment on the first count, to two years' imprisonment on the second, these two sentences to run concurrently. He now seeks leave to appeal against both convictions.

The Contending Cases

3.The two counts arise out of incidents on the same day, 20 April 1997, at the New Pussy Cat Pub ("the pub"), one inside the pub, the other on the pavement downstairs and outside. The applicant was at the time a member of the British armed forces then stationed in Hong Kong, and he was due to leave Hong Kong on 22 April. 20 April was a Sunday, and he and some friends spent the morning and afternoon in various eating and drinking venues on the Island, ending up at the pub in the late afternoon or early evening. Also there, at the pub, and apparently the worse for drink, were two men, Gary Tait and Stephen More, who were not members of the armed forces, but were in Hong Kong working as supervisors at the construction of the new airport. It is common ground that, in the pub, words were exchanged between the applicant and Tait, and that the applicant struck Tait in the face or head, causing him an injury over any eye, which required the application of a plaster. The applicant's case was that he was acting in self defence and that, in any event, the injury did not constitute a wound. This incident was the subject of count 1.

4.There was adduced a considerable body of evidence that not long after, sometime before 8 pm, the man Tait was struck by someone outside the pub, or to be more exact, outside a neighbouring bar called the Dragon Club. There was evidence that Tait fell and struck the back of his head on the concrete pavement. It was common ground that shortly after this happened the applicant was seen attending to, and seeking to resuscitate, Tait, who was unconscious. Tait was taken then to the Tang Shiu Kin Hospital, and thereafter to the Queen Mary Hospital. There he was found to have a blood clot on the front of the brain and in due course, on 29 April, he died.. The cause of death was a subdural haemorrhage. The prosecution case was that after the incident in the pub, the applicant left and stood outside the Dragon Club waiting for Tait and hoping further to 'sort matters' out with him; that Tait in fact followed him out; and that there the applicant struck him a blow which felled him to the concrete, causing the injury to his head which led to Tait's death. This was the assertion behind count 2. In relation to count 2, the applicant's case was that he had nothing to do with any punching outside the pub. When he, the applicant, went out, there was Tait already on the floor, and what the applicant did was to seek to revive him, and to wait until the ambulance arrived. His case was that, if indeed someone struck Tait outside the pub, it was not the applicant; alternatively, that Tait slipped, or perhaps that he fell as a result of the earlier blow delivered in self defence.

The Evidence

5.The sources of evidence which implicated the applicant were varied; a fact of some significance, for the evidence against him was constituted not only by Tait's friend, More, who was the person who accompanied Tait in the pub that afternoon, as well as by wholly independent evidence, but also by servicemen who knew the applicant.

(1) Prosecution evidence

6.The first prosecution witness was Tait's friend, Stephen More. He gave evidence of a totally unprovoked assault by the applicant in the pub. The applicant and Tait started a conversation about their respective nationalities, and the applicant said that he wanted a fight, and then came the blow. More contended that a bouncer showed the applicant out, but that the applicant kept returning, at least to the doorway of the pub which was on the first floor, and was asking Tait to go outside to finish the fight. The applicant left, and then about ten minutes later Tait said that he was going outside to sort the matter out. More left as well and there, outside, he saw the applicant and Tait talking outside the Dragon Club, facing each other and then he, More, heard what sounded like a punch. Then he saw Tait fall, and saw Tait hit the back of his head hard on the concrete. There was no one near to Tait or the applicant at all. He next witnessed the applicant attempt to resuscitate the injured man.

7.The second prosecution witness was a man called Sinclair. Sinclair was a member of the Royal Navy, and he knew the applicant, although not socially. After 4 pm the applicant arrived with a few other servicemen including a man called Best, who, as we shall see, features heavily in this application. He saw the applicant throw a punch at Tait and he, Sinclair, walked the applicant out in an attempt to calm the situation but, according to this witness, the applicant returned and hit the man Tait yet again, and the applicant was then told by a Major Huffen to calm down, so the applicant left. Some minutes later, Tait and his colleague left, and then so did Sinclair. What Sinclair then saw was that Tait was lying on the ground outside and was unconscious, and the applicant was crouching by him seeking to give assistance.

8.The evidence of Miao Shing Wa, a cashier in the Dragon Club, is very significant. It is significant because it is evidence from an independent source, and because of what it reveals when viewed in the light of uncontested evidence. Mr Miao was standing outside the Dragon Club, and he says that he saw "a male foreigner with short and blonde hair coming down from the Pussy Cat which was next door." He, the foreigner, stood leaning against the wall of the Dragon Club and, shortly afterwards, two other foreigners came out of the Pussy Cat Bar and stood in front of the first man. One of the two newcomers pointed to his left eye, and said to the blond man : "Why did you hit me?" Mr Miao did not see a blow struck, but he did hear a sound and then he saw the man who had spoken fall to the ground; and then, after some sort of "face off" between the short man and the third man, the two men sought to assist the man who had fallen, that is, Tait. Miao was asked if there was a fourth person involved and he said no, he did not think so. To the significance of this evidence we shall later return.

9.Ms Cheung was a friend of the applicant. He had taught her diving and she lunched with him on 22 April, when the applicant had said he had hit someone once in the bar itself. He had also told her that he had performed "CPR" upon that man.

10.Finally, as to the alleged assaults themselves, the prosecution adduced the deposition of Timothy Best. Best is, or was, a sergeant with the British Army and in 1997 he was stationed in Hong Kong. He too left Hong Kong, and became resident in the United Kingdom. His evidence was taken on 17 December 1999 in London before a magistrate at Bow Street Magistrate's Court in response to a letter of request issued pursuant to the provisions of s. 77E of the Evidence Ordinance. In attendance on behalf of the applicant was his counsel, Mr McNamara, who cross-examined Best, after Best had given evidence-in-chief. The deposition thus taken was read to the jury at the Hong Kong trial. The circumstances of the evidence in London form the basis of one of the grounds of application and to those circumstances we shall in due course turn. As for the substance of Best's evidence, he arrived at the Pussy Club Pub with the applicant and the others. He did not see any assault in the pub, but he was aware of an altercation between the applicant and two men and then the applicant left, at which point, according to his evidence, this witness, Best, went over to the two men to ask if everything was 'okay'. A while later he saw the two men leave and he followed to make sure, he said, that everything was 'okay'. When he emerged from the pub, he saw the applicant on the pavement arguing with the two men who had just left, and the applicant was pointing his fingers at one of them. Best, who had a friend with him, then saw the applicant 'strike one of the guys'. Best looked away to tell his friend what was happening, and when he looked back he saw 'the guy was on the floor'. The applicant was trying to bring the felled man round and then started an attempt at resuscitation. So Best went over and felt the man's heartbeat, and he noticed that the man had urinated, which he took to be a sign of unconsciousness, and he tried to make the man stand up and walk, but to no avail. The applicant looked after the man and he, Best, knew that the ambulance was on its way, so he left and went home.

(2) Defence evidence

11.The applicant gave testimony on his own behalf. He spoke of going to the pub with the other men, including Best, and how the two large men approached him, one of them aggressively, and how that man struck him in the chest, and that in self defence he, the applicant, hit Tait and, to his surprise, the man's legs just folded and he fell to the ground. Tait's colleague helped Tait up, as did the applicant, and then he noticed a graze over Tait's eyes. Nothing particular then happened the two aggressors carried on drinking, and the applicant went to tell his superior officer, who was in the bar, what had transpired; and he, the applicant, went to see if the man was 'okay' and he offered to shake the man's hand, but received an offensive rebuff. So the applicant went to report that to his superior officer, but he offered no more violence. Then there came a time when he, the applicant, left the bar. He left on his own, and when he reached outside he saw the man on the pavement, on his back, and he was shocked. No-one was trying to help the man and so he went over and checked for vital signs, and the man was not breathing; there was no pulse, and so he administered mouth to mouth and chest resuscitation. The man did not come round. Then the ambulance arrived, and at the invitation of a friend he, the applicant, returned to the bar for another drink.

12.As part of the defence case, an ambulanceman gave evidence and he said that More had told him that Tait had slipped and fallen on the ground carelessly.

(3) The medical evidence

13.Such was the evidence about the events themselves. But there was also medical testimony adduced as part of the prosecution case. First, there was a Dr Ku, who attended Tait at the Tang Shiu Kin Hospital. Tait was unconscious. He was given a saline drip as well as a dose of Narcane, the latter because the doctor had been told that Tait had been drinking and there was thus a possibility of drug ingestion as well, and Narcane in such circumstances normally results in the swift recovery of consciousness. On this occasion, however, there was but a partial recovery of consciousness. He was cross-examined at length about this, and about the apparent absence of any record of a skull fracture upon admission, the significance of which we will canvass when considering one of the complaints in this application for leave. There seemed at one stage of the evidence to be some uncertainty whether a skull X-ray was taken at Tang Shiu Kin, but it is accepted that the effect of the evidence was that an X-ray was taken there.

14.Dr Chiu of the Queen Mary Hospital Admission and Emergency Unit spoke of Tait's condition on his admission there. He was comatose. On the scales which measure degrees of unconsciousness, Tait's condition was the worst in other words, he was deeply comatose. That conclusion was confirmed by the evidence of Dr Chan of the Neurological Unit of Queen Mary Hospital into which unit Tait was next admitted. A CT scan of the brain showed a left frontal acute (that is, fresh) subdural haematoma. So the doctors performed an emergency craniotomy. In his opinion, the cause of this 5 cm diameter clot was a direct impact to the head and, in his opinion, the cause of death was severe head injury. In cross-examination, he said that no X-ray had been performed; they had immediately performed the CT scan. Moreover, he said, a CT scan would not show a fracture to the skull.

15.The pathologist, Dr Beh, gave evidence about the findings of an autopsy he had performed, in the course of which he discovered a fission fracture of the skull, almost at the base of the skull; and he gave evidence, too, about the possible cause of the subdural haemorrhage. As for the fracture, his evidence was that fractures of the base of the skull were very difficult to detect by conventional skull X-rays unless examined by a very experienced radiologist. It has, he said, been a question for constant argument; the base of the skull has a lot of structures, and there are many lines on an X-ray, and it was not easy to identify a line as abnormal.

16.It is against the background of that evidence that this application for leave is launched.

The Sleeping Juror

17.The first ground of appeal, or proposed appeal, is that there were material irregularities in the trial of the applicant, and it is contended that by reason of those irregularities the convictions are unsafe and unsatisfactory. There are a number of suggested irregularities. It is appropriate to deal first with the contention that there were prolonged periods of the trial during which a juror was asleep and, furthermore, that that fact was allegedly drawn to the attention of defence counsel who acknowledged the fact, but decided to do nothing about it. The complaint is framed thus in the perfected grounds of appeal :

“ Contrary to the applicant's instructions the fact that the same member of the jury fell into sleeping each afternoon during the trial was not brought to the attention of the Court."

18.In relation to this issue, as well as in relation to other suggested irregularities, each of which constitutes or encompasses a complaint against counsel who acted for the applicant at trial (and by necessary implication, in some instances, against his solicitors), we have affidavit evidence from the applicant, from counsel and solicitors; and we have heard the oral testimony of the applicant, of a witness called on his behalf, and of counsel, Mr McNamara.

(1) The evidence

19.It is the applicant's evidence that for several days during the trial one of the jurors, a male in the front row, was nodding off and was asleep. This happened on about three days. It was blatantly obvious, so that he, the applicant, would have thought the judge should have noticed it. The applicant says that he mentioned the problem after his conviction to the Legal Aid authorities, but he was advised, he says, that if the point had not been taken at trial it could not now form the basis of an appealable ground. But the complaint does not stop at the suggestion that a juror was asleep for prolonged periods. It goes on, importantly, to assert that defence counsel Mr McNamara was told about it and that he acknowledged the fact, but dismissed it by saying: "Yes, but I think he's on our side". It is the applicant's evidence that he, the applicant, said nothing about this to counsel at the time of trial or to his solicitors, even though it was a matter of keen concern to him.

20.His assertion was supported in testimony by a Ms Robertson who is a teacher of English. She was in court. She says that she knew of the applicant from her diving lessons, but did not (prior to the trial) know him personally. Nonetheless she, and an aunt then visiting Hong Kong and who enjoyed watching trials, came to watch this one; the aunt for more days than Ms Robertson. Sitting next to Ms Robertson was a gentleman, a former ICAC officer from whom there is no evidence, who was, or is, a friend of the applicant. Ms Robertson attended the first day of the trial, and she says that she was in court on the day of the summing up, and that she sat making notes; and she has produced the booklet in which she made the notes, most of which are in shorthand. She was making notes out of professional interest, for she is a teacher of English, and the notes were all part of something about which they meaning herself and other supporters of the applicant could all laugh about "in two days when the applicant was proved innocent". It is evident, and she conceded as much, that she was part of a group of supporters of the applicant. On the day the judge was summing up, she noticed this juror, on the back row, she believes, nodding off pretty much all afternoon, whilst the judge was addressing the jury. That juror slept for most of the afternoon. She could not believe this was happening. It made no sense to her that the court could condone it when an important decision was to be made; and she made a little drawing in her book denoting a closed eye, and added a note that the person was second from the left in a grey suit. She was the one who mentioned it to counsel at the end of the day's proceedings as counsel was leaving court, and it was to her that the dismissive response was given. She was astonished by his reply, despite which suggested fact she said nothing to the solicitors or, for that matter, to the applicant. She told us that until a few days ago she did not even know whether the applicant himself saw what she saw by 'a few days ago', we mean a few days before the hearing of this application. No one in court said anything to the judge. She did not even mention it to the applicant during the trial. But she wrote to him subsequently, and mentioned it in a letter. She was first asked to give evidence this last Sunday, that is, two days before the hearing of this application for leave to appeal. The applicant had told her this last Saturday that she might have to give evidence and confirmed it on Sunday, and she gave instructions directly to counsel over the telephone on Sunday night. Then, at 3 am on Monday morning, she awoke, and suddenly remembered this notebook, which she duly handed to her solicitors one day before the hearing. It had therefore been obscured from her recollection for two years since the date of the event itself.

21.Mr McNamara's evidence about this was that he did not notice a sleeping juror, and that if he had done he would have raised the matter with the court. He says categorically that the suggested conversation with Ms Robertson never took place.

(2) Analysis

22.In determining the worth of the applicant's assertion, as supported by Ms Robertson, we shall for the moment put to one side the evidence of Mr McNamara, and examine the assertion in the light of the commonly accepted facts.

23.What we have is an assertion that over a period of several days, and in any event for some hours on the day the judge was addressing the jury, a juror was quite obviously asleep, and was asleep for significant periods. In court were two counsel for the prosecution, one of whom is Mr Wong who appears on this application with Mr Reading. Also in court was Mr McNamara, of course, as well as solicitors behind him, who have been identified, and who are solicitors of experience. And there was the judge who was addressing the jury, and addressing them over an extended period that afternoon, an address during which there was one 15 minute break. None of these persons mentioned, or raised the question of, the sleeping juror. That much is common ground.

24.One of three conclusions follow :

1) that none of the central participants in the trial noticed what Ms Robertson and the applicant allegedly noticed; participants who would all, by reason of their training, be acutely aware of the signal significance of a juror being asleep or;

2) that they noticed, as surely they must have done in the face of such a prolonged and blatant event, but that each one of them, including of course the judge who was talking to them, decided for his own reason to ignore the matter. In the case of the prosecutors, they would be ignoring such a matter at the peril of the trial; in the case of the defence, ignoring it to the disadvantage of their client; and in the case of the judge, ignoring it, thereby imperilling a serious trial, for the fairness of which he was responsible, and in respect of which he had prepared a summing up; or

3) that what we have been told by the applicant and Ms Robertson is not the truth.

25.It is we think obvious that neither the first or second suggested conclusions carry any semblance of reality or good sense. We are satisfied that we have not been told the truth. Quite apart from the factors leading to that conclusion to which we have just referred, there are other clear indicia of the truth of the matter :

(1) It is common ground that in the course of the trial the applicant did not suggest either to his solicitors or to counsel or to his supporters, one of whom was Ms Robertson, that the juror was asleep. It is obvious from the papers we have seen in this case, in particular the many attendance notes, that the applicant, who faced a most serious charge, was astute in taking up with his advisers every point which might conceivably assist in his fight against conviction. That is perfectly understandable, but it is an outstanding feature of his approach nonetheless, and it is inconceivable that had the applicant seen, as he says, a juror asleep for days on end, he would have maintained silence.

(2) In the first grounds of appeal lodged by the applicant and dated 23 October 2000, he made no mention whatsoever of a sleeping juror.

(3) We have before us a copy of written advice given to the applicant by a barrister, Mr Cosgrove, dated 23 October 2000; that is, seven months after conviction, during which time, so we are given to understand, Ms Robertson had specifically raised with the applicant what she allegedly saw, and during which period the applicant would have had time to consider more maturely the grounds of complaint which he had, or which might possibly be advanced on appeal. The Opinion to which we refer is a very detailed one, an Opinion on possible grounds of appeal; and it is a lengthy Opinion running to some 14 pages, an Opinion that is bullish about the chances of success, and which is fulsome in its criticism of counsel at trial for suggested failures to follow this or that line of inquiry or attack. It is similarly inconceivable that had the applicant told Mr Cosgrove about the sleeping juror and about Mr McNamara's suggested brushing off of the alarm raised by Ms Robertson, that the matter would have been ignored in this Opinion. But the fact is that there is, in the Opinion, not a whisper about the sleeping juror.

(4) Ms Robertson told this court that until two days before the hearing of this application she did not know that the applicant had also seen the sleeping juror. That, frankly, is incredible. It is now almost two years since the event about which she speaks, an event of the greatest importance, an event which alarmed her, during which two years it is a subject which, on her account and the applicant's, had been discussed. It is a matter which she had, she says, written to him about (though the suggested letter has not been produced), and she visited him on about ten occasions whilst he was serving his prison term. The idea that the applicant had not himself made plain that he, too, had seen one of those who convicted him fast asleep, and fast asleep not only on the day Ms Robertson saw it, but on other days to boot, does not accord with reality unless, of course, he saw no such thing.

(5) Whilst not in itself conclusive on this issue of credibility, we find the circumstances of the production of the notebook odd. Of course people forget matters, even matters of importance, and then have their recollection triggered. That said, we have here a situation in which two years ago Ms Robertson allegedly made a note about a matter which was of more than passing interest. It was a note about a matter that caused her the gravest concern. On the day after she made the note, a note made amongst others relating to the trial, the man whom she had befriended, and whom she was convinced was innocent, was nonetheless convicted and sent to prison. She was fully aware, according to her own evidence, of the significance of the sleeping juror, in that she thought it horrific that the person asleep had to make an important decision about a man's future. She knew it was important, so she told others about it, and she wrote to the applicant about it. Yet at no stage over a period of two years did it occur to her to look at the notes she made about the trial or did she recall that she had by a sketch drawn the matter to the attention of the person next to her in court, a friend of the applicant, whom she knew. It is not as if the significance of contemporaneous notes was unbeknown to this non-lawyer, so that she went looking for a record only at the behest of a legal adviser. She herself knew that the very existence of such a note was important, as is demonstrated by her conduct in producing it excitedly and of her own motion to the lawyers. One can but comment that it is passing strange that she recalls the sketch two years after it was made and one day before the appeal.

(6) We note that the applicant and Ms Robertson recall differently the position of the sleeping juror; not as to his seat, but as to the row in which he was sitting. One might have expected the position of the juror to have been firmly implanted in the witnesses minds.

(3) Conclusion

26.These then are the independent pointers to the truth. That is not to say that Mr McNamara's testimony carries anything other than considerable weight in itself. It is merely to say that the evidence of the applicant and of Ms Robertson of itself is demonstrably unreliable and is not worthy of credit. There is nothing whatsoever to undermine Mr McNamara's recollection, and we accept his evidence. We are satisfied that there was no sleeping juror, and no conversation with Mr McNamara about such an event.

27.It follows that this ground of application fails.

28.We have dealt with this ground of complaint first because it is the ground, or the particular, which depends entirely on credibility. To the extent that other grounds, or particulars, depend for their merit upon undisputed facts (such as the mere fact of a breakdown in the audio link; or the content of the judge's summing up), then of course this finding of credibility does not touch upon those grounds. In so far as we are invited to consider whether the applicant was given certain advice and whether he accepted that advice, the credibility of the applicant's stance and of Mr McNamara's evidence is of course relevant, and our findings in relation to the sleeping juror issue bear stating at the outset.

The London Hearing and the Bill of Rights

29.In so far as in relevant to this application, article 11(2) of the Hong Kong Bill of Rights Ordinance provides as follow :

" Article 11
Rights of persons charged with or convicted of criminal offence

(1) ....

(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality-

(a) ....

(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) ....

(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

... ."

30.It is said that there has been a breach of the provisions of article 11(2)(b) and (e) because of the events surrounding the giving of evidence in London by the witness Best. The grounds encapsulated under the general heading of suggested material irregularities, are to be found as grounds 1.1 and 1.2 :

"1. The Applicant had no opportunity to communicate with his counsel from the time he became aware of the fact that the prosecution witness BEST was granted immunity to the time BEST's evidence was completely taken.

2. Contrary to the instructions of the Applicant's neither was the Court informed of the break-down of the one-way telephone link when BEST's evidence was taken nor was any issue taken on the admission of the same."

(1) Background

31.What happened was that the witness Best had made known the fact that he would not return to Hong Kong to give evidence at the applicant's trial. The reason which, in due course, he gave for that stand was that he had made a statement to the police shortly after the events of 20 April 1997 in which he had said that he had seen no fighting. That, according to later statements and to his oral testimony, was quite untrue. He in fact saw fighting and, in particular, it was his evidence that he saw the applicant strike the deceased. His explanation for the initial lie was a belief that he was expected to protect the applicant from incrimination.

32.On 29 October 1999, an order was made by Jackson J pursuant to the provisions of section 77E of the Evidence Ordinance for the issue of a letter of request, by which the appropriate authorities in England were requested to assist in obtaining evidence from the witness Best for the purpose of the Hong Kong proceedings against this applicant. A date was fixed for the taking of Best's evidence in London, and that was 17 December 1999. Mr McNarama travelled to London to be present at the hearing, and he went to London with Mr Derek Finch, a solicitor with the firm of Haldanes, which firm at all material times, before and during the trial, acted for the applicant.

(2) The complaints

33.It is no longer the case, or so we were latterly told, that any complaint is advanced about the fact that the applicant did not attend the hearing in London. That is hardly surprising. Given the fact that the applicant left Hong Kong on 22 April 1997 despite the events of 20 April but, more particularly, the fact that he resisted returning to Hong Kong, and fought an extradition request for two years or so, there was no realistic chance of a successful application for him to be permitted to leave Hong Kong. So much is now accepted by Mr Yeung, who appears on this application for the applicant. There can be no question from the attendance notes which we have read but that the position was explained to the applicant in good time and that he accepted it. The question then is not his absence from the hearing, but whether his rights, and in particular the ones in article 11(2) of the Bill of Rights Ordinance were protected nonetheless. He says not.

34.He complains that he was not able to follow the Bow Street proceedings because there was a break in the audio link; and that counsel did not communicate with him before conclusion of the evidence, so that he, the applicant, was not able to give to counsel relevant instructions for questions to put in cross-examination. It is accepted that counsel spoke to the solicitor, Mr Powner, then present with the applicant in Hong Kong but, still, counsel did not confer with him, the applicant.

35.Most particularly, he is upset at the fact that it was only on the day of Best's evidence, about half an hour or so before the evidence, that he, the applicant, discovered that Best had been given immunities from prosecution, one by the Department of Justice in Hong Kong, the other by the Army Prosecuting Authority (UK). He would have wished to discussed this with counsel. He would have asked counsel to ask Best whether it was he, Best, who had struck Tait; and to ask Best whether he, Best, would have given the same answers had he not been the recipient of an immunity. No one ever explained to the applicant, he says, why Best was given an immunity, or in respect of what suggested conduct. It was only a few days before this appeal hearing that he realised in respect of what that immunity had been granted.

(3) The facts

36.It is accepted that there was a break in the audio link and that that break extended over a significant proportion of Best's evidence, most particularly for the duration of cross-examination. It is also accepted that counsel for the applicant was aware of the break, but decided not to ask the court to adjourn; and it is further accepted that counsel did not consult the applicant over the telephone before he, counsel, commenced cross-examination. It is furthermore accepted that the fact and content of the immunity was first brought to the attention of the applicant on the day of the evidence in London. The immunities themselves (one from the Department of Justice, the other from the Army Prosecuting Authority) were dated 13 and 16 December 1999 respectively. The applicant's team of advisers had themselves not received copies until 17 December, or perhaps in Mr McNamara's case the day before.

37.The evidence of Mr McNamara, which we accept, is that he and Mr Finch were aware before the evidence commenced that there was a problem with the audio link and he telephoned Mr Powner, the solicitor with Haldanes who was with the applicant in Upper Levels Police Station, which venue had been arranged as the Hong Kong end of the link. Mr McNamara made it clear that he was happy to proceed, and he says that Mr Powner asked him to try to call before cross-examination to see if there were additional matters to be raised. Mr McNamara replied that if he needed further instructions he would call. In the event, the evidence of Best ran according to expectations and he, Mr McNamara, felt that there was no need in the circumstances to seek instructions before undertaking cross-examination. He did, however, telephone Mr Powner again after cross-examination concluded, to report what had happened. The court was to resume that afternoon to have the deposition read to Best. There was no suggestion made to Mr McNamara that when the court resumed, he should seek leave to put anything further to the witness. Counsel took the view that cross-examination went well, or as well as might be hoped; and there is an attendance note which suggests that Mr McNamara had said over the telephone that he had proceeded to cross-examine because he felt it right in the circumstances which presented themselves to strike whilst the iron was hot. Mr McNamara's evidence is that he was satisfied that the applicant was not prejudiced by what transpired and that, when he returned to Hong Kong, he went through the evidence of Best with the applicant and that the applicant was not unhappy with what had happened. We accept this evidence.

(4) The professional setting

38.It is convenient at this point to examine the setting of professional advice and conduct against which this particular complaint about the events in London, as well as other complaints, are made. It is quite obvious to us from what we have seen of the attendance notes, and the evidence which we heard from Mr McNamara, that this applicant, throughout the period of his representation until the conclusion of the trial, had the benefit of constant and frequent advice by a team of lawyers who were listening to and recording his every concern, and who were tendering considered advice in relation to each query he raised. He had the benefit of highly experienced representation, both in the counsel assigned to him and in the solicitors. Mr McNamara tells us that the legal team did nothing without discussing the matter with the applicant; that he, the applicant, kept raising points and that each was addressed; and that Mr McNamara would then, as one would expect, take a view and tender advice which ultimately the applicant accepted. We unreservedly accept this evidence.

(5) Analysis

39.We are satisfied that there was no breach of article 11(2) of the Bill of Rights Ordinance in any of its provisions. We have been taken by Mr Reading to a number of authorities which address the question whether the taking of a letter of request was or was not part of the trial, thus entitling an accused to be present at the hearing. DPP v. Alexander (1993) 69 A. Crim. R 396 is a decision that such a proceeding is not part of the trial, and is no more than a procedure by which evidence will subsequently be tendered at trial. R. v. Branco (1998) 62 C. R. 371, a decision of the Court of Appeal of Ontario, would appear to reach the same conclusion, although in that case the appeal was allowed in the face of the refusal of a specific application by the accused to attend a commission hearing in California, when no reasons had been advanced by the prosecutors as to why he should not be present. The Court there suggested, at page 375, that the question whether the taking of a commission formed part of the trial was not without difficulty, but the tenor of its comments suggest that the Court accepted that it was not, but that "if it develops that there were defects in the taking of the evidence then those defects are as significant ... as they would be if they had occurred at trial." We rather think that if significant defects to the prejudice of an accused are demonstrated, they might provide good reason for the exclusion of the resulting deposition by the trial judge.

40.There was no application made for the applicant's presence at the hearing, and it is evident that that course was adopted for perfectly sound reasons, and it is as well to state, even though the point appears to have been abandoned, that we consider in the circumstances that no breach arises from the applicant's absence at the hearing. He was represented at the taking of a deposition, and his counsel had every opportunity to cross-examine the witness, an opportunity of which he made full use.

41.Assuming, without deciding, for the purposes of this case, that the proceedings in London formed part of 'the determination of the criminal charge' to which article 11(2) refers, the question we ask is whether the applicant had adequate time to prepare his defence and to cross-examine the witness Best, and to defend himself.

42.The applicant certainly had ample time to prepare his case and to prepare for the London hearing. Those acting for him had been acting for him for months, and there had been numerous conferences. He had Best's witness statements. He knew, as the lawyers did, what they contained. He knew, as did the lawyers, of the inconsistencies between them, and of the all-important first statement which said that Best had seen no fighting.

43.Counsel had been given full instructions, and one has but to examine the cross-examination of Best itself to see how comprehensive it was.

44.It is apparent from the attendance notes that the applicant knew already in October that he would not be going to London, and the question of the London hearing and what would happen there was the subject of many a discussion.

(6) The immunity issue

45.The applicant complains about the suddenness of the immunity, and how that came upon him by surprise, and how its lateness made all the difference; a lateness which, says Mr Yeung, meant that, in the event, the applicant was deprived of an opportunity to prepare his defence; in other words, of his opportunity to see how Best could be tackled.

46.We find that the immunity issue is a non-issue; that the applicant was not in the slightest prejudiced by it, and knew full well at the time why the immunity had been given. In particular, we reject the evidence of the applicant that he did not know until recently why Best was given an immunity. That suggestion is also demonstrably untrue. An attendance note before us shows that at a conference on 29 October, well before the immunity was granted, the question of a possible prosecution of Best "for giving divergent evidence" was discussed, and thought to be unlikely. The immunities themselves, copies of which we have, and which the applicant had in the company of his solicitor on 17 December 1999, actually spell out the suggested offence for which the immunities were granted, namely, perverting the course of justice. There was never a suggestion that Best was seeking or was granted an immunity for any part in the assault on the deceased. Mr McNamara confirmed in his evidence before us that the applicant was told, and knew full well, why the immunity was granted. We find that he knew why at the time; and we find that the applicant's evidence, that he only discovered the reason a few days ago, is untrue.

47.What, one asks, was the great significance of the immunity, which required a delay, a change of approach or fresh instructions? It had been known for a long time that Best was a reluctant witness; and we note from the cross-examination of Best in London, that Mr McNamara questioned Best about his refusal to come to Hong Kong; and that he was asked also about the immunities given. So what would Mr Yeung have made of this new information had he been advising the applicant on 17 December 1999? Well, he told us, he would have advised his client that such hope as the client might have had of the prosecution dropping the manslaughter charge was gone, so that the applicant needed now to prepare for that. He needed to prepare against Best in detail. In the light of what had transpired, in the light of the immunity, he, Mr Yeung, would have asked the applicant if the applicant now wanted to pursue the suggestion that Best himself was the assailant and he, Mr Yeung, took the view that if his client had wanted to suggest that Best had been the assailant, then he, Mr Yeung, would have been bound to put the applicant's allegation.

48.There was no proper basis for suggesting that Best was the assailant, and Mr McNamara's view that it would have been a prosecutor's dream to have been the beneficiary of such a defence tactic is a correct view. In any event, the advent of the immunity did not all of a sudden make the point a live point. It was either always a good point or never a good one. The immunity made no difference.

(7) Questions not put

49.Then it is said that there should have been questions asked which were not asked, and that had the applicant had the benefit of a continuous audio link, and had counsel spoken to the applicant after cross-examination, the applicant would have had the opportunity to tell counsel to ask certain pertinent questions. We have no intention of rehearsing in this judgment each of the suggested questions. It suffices to say that in relation to some of them, a reading of the transcript shows that the issues were in fact properly addressed. In relation to the others, the questions would have been of no possible benefit.

(8) The audio link

50.We note too that the whole question of the audio link, and the question of contacting the client, was the subject of discussion before the trip to London. It would appear from the attendance notes that it was at one stage even thought that there would, or might be, no audio link at all. On 8 December 1999, Mr McNamara convened a conference specifically to discuss with the applicant 'the problems with the audio link up in London'. He said that in his opinion the lack of a link would not affect proceedings in the slightest, and that he would rather that the proceedings went on on 17 December. The client would be contacted if counsel required instructions. The attendance note records the applicant's agreement, and records his further comment that 'he would be more frustrated if he were to hear the evidence down an audio link'. Then there was a telephone conference between the solicitor and applicant on 13 December, where the applicant is recorded as saying that if it were thought that there was no significant benefit to him, then he did not want the link, and the solicitor is recorded as saying that he would tell the Department of Justice that no audio link was required. The solicitor said that counsel would be fully prepared, and was unlikely to call the client before and after every question and answer.

51.So this is the background against which the present complaints are made, and it is a background which speaks for itself. Despite the doubts whether there would be a link at all, it is apparent that one was, in the event, arranged. The evidence is that on 17 December 1999, Mr McNamara telephoned Hong Kong and spoke to Mr Powner, and that Mr Powner was with the client. He spoke at a stage when it was apparent that there would be a problem with the link. There was no suggestion that he should not proceed, or that he should ask for an adjournment. Nor, after he had finished cross-examination and telephoned to tell the Hong Kong end what had happened and how cross-examination had gone, was there any suggestion that he should ask for the opportunity to put further questions to Best when the court resumed, with Best present, that afternoon.

(9) Conclusion

52.It may well be that the applicant felt in the event that he wished Mr McNamara had put further questions. It is evident that there are many issues which, throughout the lead-in to the trial, he raised. A client is entitled to do so, and one understands that any defendant, naturally anxious, will wish to put every conceivable matter that might assist his case. That said, neither his anxiety nor his lack of professional training make him the best judge of what is wise and what, conversely, is disastrous. That is a matter for counsel, and that is what happened here. Counsel took decisions as to the conduct of the London hearing. The applicant was well-prepared, as was counsel; and the late grant of an immunity and the breakdown of the audio link, and the conclusion of cross-examination without counsel speaking to the client, gave rise to no unfairness at all; and there is contained in the events through which we have been trawled in detail not a trace of ill judgment by counsel, and not a trace of dereliction of his duty.

Why not challenge Best as the culprit?

53.As for the suggestion that Mr McNamara should have put to Best that he, Best, had assaulted Tait, it is a suggestion advanced on the premise that because of the immunity and his reluctance to come to Hong Kong, Best must have had something to hide; and on the footing that in his evidence, Mr Miao said that the man who came out and had an altercation with the two men outside the Dragon Club, was a man with short blond hair. So, too, apparently, did More mention a blond man in a written statement which he had made. It is said that Best had blond hair and that the applicant has dark hair.

54.Mr McNamara's explanation for the course he took is this. It was Miao's evidence that the man who had been confronted by the two men, including Tait, outside the Dragon Club, was the same man who sought to resuscitate Tait. It was common ground that the man who attempted resuscitation was the applicant. There was absolutely no evidence that the assailant was Best and, as we have already remarked, Mr McNamara has suggested that it would have been a prosecutor's dream for the defence to say that there had been an assault by Best. We agree.

55.There are several factors to note. The first is the significant of Miao's evidence. The significance of his evidence, if accepted, reveals itself in several ways. First, it accords with the evidence of More and of Sinclair that one man emerged from the pub followed by Tait and More, and that the one who emerged first, and waited outside, was the same man who rendered assistance to Tait after Tait fell onto the concrete pavement; and we know that that man was the applicant. It is perfectly clear from the evidence of Miao that the man who tended to Tait after Tait fell outside the Dragon Club was also the man who struck or allegedly struck Tait outside the Dragon Club; that there was no fourth person involved; and it is common ground that the man who tried to revive Tait was the applicant. The significance of all of this was evidently appreciated by the applicant and his counsel, as we see when the witness Miao was recalled specifically so that counsel for the applicant could put to him in terms that the 'short man came down after the two very big men'.

56.In any event, Best was not blond; his hair was ginger. So much is evident from the photograph of Best, as well as from the description of his colouring in the army records. There is no suggestion by anyone that Best was involved in any aggression in the pub or later. Although More mentioned a blond person in his statement, he identified the applicant at a photographic identification exercise.

57.The defence team pursued an approach to the case based upon the wealth of evidence there was against the applicant. We shall spell out the approach or tactic when we come to consider the question of medical evidence, but it suffices for present purposes to say that it was a wholly acceptable approach, and to start suggesting an assault by Best would merely have undermined the value of defences for which there could be said to be some evidential support.

58.Furthermore, and importantly, we have Mr McNamara's evidence, which we accept, that the decision not to make an issue of the blond man point was not a decision taken upon a whim, or on the spur of the moment. It was discussed on many occasions and he, Mr McNamara, came to a conscious decision that there was no mileage in trying to be smart about such a point. He has told us, and we accept, that all tactical decisions were ones with which the applicant in the end agreed.

59.Now let us consider, for but one moment, what it is that Mr Yeung, who asserts Mr McNamara's incompetence - for that is what he asserts, no matter how eager he is to shy away from attaching that label expressly - let us consider what he would have done. We consider it at the risk of overburdening an already long judgment, because it is incumbent on counsel who assert gross negligence by other counsel to make good their assertions. And we consider it because it is necessary, and because it is just, to illustrate the weakness of the fabric of which this attack on counsel is made.

60.The question which Mr Yeung tells us he would have put to Best would have been along this line : 'I would suggest to you that if Tait was hit, he was hit by you'. Putting aside altogether the question of the evidential basis for such a suggestion, and putting aside altogether the question within the question whether Tait was hit at all, the court was then interested to know what Mr Yeung would have expected the answer to be. He asserted that the answer from Best might have been that the assailant might have been someone who looked like Best. We think it unrealistic to have expected any such answer and, with respect, damaging to the credibility of the entire defence case had the suggested question been put.

The Relationship between Counsel and Client

61.As to Mr Yeung's comment that he would have considered himself obliged to put to Best that Best had assaulted the man Tait, once the applicant insisted on that being put (assuming he did), it is a stance which misapplies the relationship between client and counsel. Counsel is not some mere mouthpiece to put whatever point the client throws out, no matter how fatuous, no matter how damaging to the credibility of the client's case, and no matter how lacking in evidential support is the proposition to be put. The relationship is encapsulated in R. v. Birks [1990] 48 A Crim. R. 385 at 390 :

" 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. ...

...

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 which 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 R. v. Wong Chi Keung [1996] Cr. App. 585 and R. v. Mo Lee Kuen [1993] 1 HKCLR 78.

Admissibility of the Deposition

62.The next piece of negligence alleged against Mr McNamara is his failure to challenge the admissibility of the deposition taken from Best. The deposition was admitted pursuant to the provisions of section 77F of the Evidence Ordinance. The deposition was admitted by agreement, and its contents were therefore admissible under section 77F(1)(a). We have no doubt but that even had the deposition not been admitted under section 77F(1)(a), the circumstances were such that the court would inevitably have admitted the deposition under section 77F(1)(d). But this is not quite the point which Mr Yeung takes. He says that had Mr McNamara told the judge about the events of 17 December, the judge would not have admitted the deposition. Since we find that there is nothing worthy of complaint in relation to the events of 17 December, it follows that we do not agree that there was a prospect of success had such an application been made. But even assuming that there had been, even assuming that the events of that day had moved the judge to put aside that particular deposition, the result would have been the taking of a fresh deposition in London from the witness; or even, armed with the immunity, evidence in Hong Kong by the witness, a witness who Mr McNamara had assessed (as we see from the attendance notes) as confident, articulate and well-presented. Mr McNamara has also told us that he and the legal team discussed the question of admissibility of the evidence and took the view that there was no basis for a challenge. This ground of appeal is also bereft of merit.

The Approach to the Medical Evidence

(1) The complaints

63.We turn then to the question of medical evidence. The applicant told us, in essence, that he took the view that there was evidence which cast doubt on the issue of causation. There were a lot of missing links, he says - for example, the evidence was that Narcane had been administered to Tait, and that Tait had partially responded, suggesting (says the applicant) that Tait had ingested drugs; and there was evidence of a fission fracture at the back of the skull which was seen in the postmortem examination but not in the X-ray taken upon the applicant's admission to Tang Shiu Kin Hospital. Had Tait therefore suffered an injury - perhaps a fall - whilst in hospital? There was also the question of sutures put into a suggested wound, whereas two out of three doctors had talked not of a wound but of an abrasion. Yet despite the client's concerns in these regards, counsel is said to have told the applicant that he was not to going to challenge the medical evidence. Counsel said it was a non-runner.

64.Counsel indeed gave precisely that advice. He told us so. He told us that, in his opinion, to suggest that there had been some intervening act would have been a stupid way to proceed. It was an issue discussed many times with the client, and the client appeared to agree with the advice. It is also evident from the attendance notes that the question of medical negligence and causation was discussed frequently, and that counsel's advice on the matter was clear.

(2) The fracture

65.Much was made, in the course of argument before us, of the fact that, when Tait was admitted to hospital, a fission fracture of the skull was not observed on an X-ray, but was observed at the autopsy. Yet it is common ground that the evidence was that such a fracture might well not be seen either on an X-ray or on a CT scan. There was no evidence to the effect that there was in fact no fracture at the time of admission. To this very day, two years after conviction and some considerable time after the applicant instructed his present legal team, there remains no evidence adduced, or sought to be adduced, which might suggest a mishap at the hospital, or which could establish the actual absence of a fracture on his admission to the hospital.

(3) The starting point

66.The prosecution had to prove that an act of the applicant was a significant cause of death. The approach adopted by Mr McNamara, in the conduct of this case, was in our judgment an approach which took cognisance of the nature and strength of the evidence against the applicant, and was one which, whilst fully according with the account of events given by the client to counsel, had about the only realistic chance of success that existed.

(4) The key facts

67.The applicant and Mr McNamara were faced with key facts from which there was no escape. It was conceded that the applicant had thumped Tait in the pub, and had done so with such force that Tait, a 6 ft 4 in. man, had fallen to the ground. There was evidence from every source, except the applicant, that he left the bar ahead of Tait. There was evidence that, having left, he tried to re-enter in order to take up his argument with Tait anew. There was evidence that after the applicant finally left, Tait followed, on one account to respond to the invitation tendered earlier by the applicant to go and sought matters out. There was evidence, putting aside that of Best, that the applicant was talking to Tait outside the Dragon Club, and that the subject of the conversation was a blow earlier delivered. There was evidence from Miao which clearly suggested, in conjunction with conceded evidence, that the applicant, and no one else, was the man who had hit Tait outside the pub, if indeed there was a blow outside. And there was evidence from several sources that outside the pub Tait, a 6 ft 4 in. man, had fallen onto the pavement, which evidence included that of More, who said that Tait hit the back of his head. It was accepted by the applicant that when he attended to the man Tait, Tait was unconscious. He was not breathing. He had no pulse. It was accepted that some days later Tait died from a subdural haemorrhage, a haemorrhage discovered on the very day of his admission to hospital, and that when admitted to hospital, Tait was deeply unconscious.

(5) Analysis

68.Against this background, the suggestion that counsel was in some way negligent in not taking issue with the question of causation is purely fanciful. Mr McNamara says that for him to suggest in the circumstances that a doctor had been negligent or, as the applicant had posed as some possibility, that Tait had fallen off a bed, was ludicrous, and would only have alienated a jury. We agree. Such a course would have been interpreted by a jury as an immature attempt to scrape the bottom of the barrel in order to hide the truth. Instead, what counsel did was to address the real issues in the case in a common sense way, and in a way which had regard to the evidence, and to the realities.

69.The approach which Mr McNamara adopted is evident from his closing address to the jury, and from his evidence before this court. The medical evidence allowed for the possibility that the injury to the head which proved fatal might have been caused by the blow in the pub, or by the fall in the pub, or by a fall with or without a punch outside the pub. There was an evidential basis upon which to suggest that the blow delivered by the applicant in the pub was delivered in self defence. If that had a chance of acceptance, then that chance could be maintained in tandem with a number of possibilities. There was a suggested possibility that Tait had merely fallen outside the Dragon Club, a possibility buttressed by the evidence of the ambulance driver and Tait's state of drink. Alternatively, if his fall outside the club was caused by the earlier blow, then the defence of self defence in relation to the events in the pub would carry over, as it were, to that fall. So, too, if his death was the result of the blow and the resulting fall in the pub, then again self defence would run. There was yet a further possibility which Mr McNamara also ran before the jury : the effect of the evidence of Miao and More was that there were two men confronting the applicant outside the pub and pointing fingers at him - that again raised the possibility of self defence. This was the approach discussed, and accepted by the applicant; and it was a sensible, as well as a fully comprehensive, approach to adopt. It is an approach which stands as a solid contrast to the approach suggested by Mr Yeung in the course of this hearing.

(6) Wounding

70.For the sake of completeness, we mention as well the issue of wounding. It was the applicant's case that, as a result of the blow he delivered in the pub, he did not cause a wound but only an abrasion. That was an issue thoroughly canvassed at trial. It is said that there was insufficient evidence of a wound and that whilst one of the doctors spoke of a wound, two who saw the applicant at Queen Mary Hospital spoke only of an abrasion; and it is further said that it is odd that the pathologist noticed sutures over the wound, whereas they are not mentioned by the two Queen Mary Hospital doctors. Supposedly, this is further to suggest that something went amiss at the hospital.

71.The simple fact is that there was ample evidence of a wound quite apart from the evidence of the one doctor, and it is to be found in the evidence of the lay witnesses. There was clear evidence that once Tait had been felled in the pub, there were people who were trying to stop the bleeding, and eventually put plaster over his eye; and there was the further evidence of Mr Sinclair that he saw the applicant punch Tait and cause a cut over the eye. Mr Yeung and his team have had ample opportunity to ascertain what the factual position is in relation to the time at which the sutures were put in place at the hospital, but he has presented no evidence about it, telling us that the hospital has no information as to when the sutures were inserted. The point canvassed points nowhere.

(7) Conclusion

72.There is, as has at length been demonstrated, nothing of any merit whatsoever in the complaint about the defence team's approach to the medical evidence.

Not Putting the Case

73.Finally, as against Mr McNarama, complaint is made that he did not put the applicant's case, in that he did not put to the witnesses that the applicant was not present outside the Dragon Club, or indeed outside in the street, when Tait was there assaulted - assuming that he was assaulted at all.

74.We are satisfied that the applicant's case was adequately put. It was expressly put to the witness More that the applicant's first contact with Tait was when he, the applicant, saw Tait lying on the ground. It was expressly put to Miao that the applicant had arrived downstairs in the street after the two men. And it was expressly put to Best that the applicant was not involved in any fight outside the Pussy Cat Club. These were matters about which the jury were also reminded in the summing up.

The Allegations of Incompetence: Conclusion

75.This completes our review of the many complaints which fall under the first ground of application, the suggested material irregularities in the trial. We find that none of them has substance, and the ground fails. The label "material irregularities" has been put forward as a cover for an assertion of incompetence or significant fault. Not only have the allegations of neglect not been made out, but there is not a scintilla of justification for them. More than that, we are wholly satisfied that Mr McNamara conducted this trial - and we have the whole transcript - with consummate skill, with the common sense for which he is known, and with complete propriety.

76.The fact that counsel has acted with skill and competence, and with complete propriety, and that there is no justification for the attacks which have been levelled against him, have not saved him from having to swear affidavits, and to appear in court, and to withstand the wide publicity which the allegations have inevitably attracted, and in respect of which an exonerating judgment such as this provides, in reality, small comfort.

77.The same is to be said for Messrs Haldanes, and for each of the solicitors within that firm who had the conduct of this case. They too have, self-evidently, acted in the best interests of the applicant, and have at all times acted competently, and with propriety, and with the skill which one expects from a firm of that experience. They, too, have been put to considerable inconvenience and, no doubt, to embarrassment, by the ill-based allegations which have been made.

78.None of this is to say that when there are good grounds for levelling assertions of incompetence, counsel must do other than pursue the interests of his client fearlessly, and it should go without saying that this court will, in an appropriate case, allow an appeal on such grounds : see, for example, the case cited by Mr Yeung, HKSAR v. Wan Ho Man, Cr. App. 155 of 2000, unreported, 20 March 2001. But it is incumbent upon counsel who are asked to advise on the possible merits of an appeal, particularly in relation to complaints against trial counsel, to approach his or her task with a proper degree of objectivity and:

'Unless in the particular circumstances it can be demonstrated that in the light of the information available to him at the time no reasonably competent counsel would sensibly have adopted the course taken by him at the time when he took it, such grounds of appeal should not be advanced' (See R v. Doherty and McGregor [1997] 2 Cr. App. R. 218, 220).

79.It has become apparent to this court that assertions of incompetence against counsel are too readily made. It is a very serious matter to allege professional incompetence, a matter which, if the complaint is without merit, causes waste of time and considerable professional embarrassment. We repeat that counsel should not, in a proper case, be deterred from advancing the allegation, but it is one to be made only after mature and objective assessment; and not lightly and without proper foundation. Certainly, it should not be made simply because the client has a notion that there has been incompetence, and hopes that his notion will find a willing mouthpiece in counsel on his behalf.

80.The allegations in this case were baseless.

The Judge's Directions about Best

81.The second ground of this application for leave falls within a short compass. It reads as follows :

"II. The learned judge failed to exercise his discretion to direct the jury properly, adequately or at all that

(i) whether the witness BEST was a witness with his own purposes to serve was a question of fact for the jury to decide;

(ii) if the jury decided that he was,

(a) they should warm themselves of the danger of relying on his evidence to convict without corroboration;

(b) provided that they have so warned themselves, the jury might still rely on such evidence without corroboration; and

(c) what evidence capable of corroboration was a question for the learned Judge whereas whether such evidence in fact corroborate was for the jury; or

(d) at least to warn the jury to approach this with care or caution;

when such a direction would clearly be necessary in light of the conduct and accounts given by the witness BEST."

82.Quite how this point comes to be advanced in the light of the following passage from the judge's summing up, it is difficult to comprehend :

" It is plain, is it not, members of the jury, from reading that transcript, and in particular that part of it relating to his cross-examination that he was at least to some degree, and possibly a substantial degree, a reluctant witness who had in his witness statements to the police in Hong Kong altered his account of matters. And, as I understand it, as a result he brought himself under suspicion of at least one criminal offence.

In the light of that revelation, members of the jury, coupled with his admitted drunken state, how much reliance can you place on what he told the court in London? Particularly bearing in mind that he had already given two different versions of the events. And again, members of the jury, that is a matter for you as the judges of the facts in this case, bearing in mind, as I said to you earlier, that you have not had the opportunity of seeing Mr Best give his evidence in this court in Hong Kong."

83.The care to be taken in approaching Best's evidence was there fully and adequately covered, and there was no need, either as a matter of law or in the circumstances of the case, to import the question of corroboration. The point is a poor one, and it fails.

Result

84.The final ground of application is the sweep-up ground which says that 'in the premises the conviction is unsafe and unsatisfactory'. This ground relies entirely on the suggested validity of the other grounds, and the other grounds have no validity. Nothing arises in this case to warrant the suggestion that the conviction on either count was unsafe or unsatisfactory. Accordingly, the application for leave to appeal against conviction is, in the case of each count upon which the applicant was convicted, dismissed.

[Submissions as to costs]

85.The applicant will pay to the respondent its costs of and in connection with the appeal, to be taxed if not agreed.

Representation:

Mr YC Yeung, instructed by Messrs Leung Kin & Co., for the Applicant

Mr John Reading SC, DDPP leading Mr Vincent Wong, SGC of the Department of Justice, for the Respondent