HKSAR v. Li Chi Shing

FAMC No 49 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 49 OF 2014 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACC NO 203 OF 2012)

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REASONS FOR DETERMINATION
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Mr Justice Tang PJ:

1.The applicant was convicted on one count of trafficking in dangerous drugs.  He applies to us for extension of time for leave to appeal and for leave to appeal against conviction on the ground that there was a miscarriage of justice caused by the flagrant incompetence of trial counsel.

2.The prosecution case was that the applicant and his brother (who was seated in the driver’s seat) were in a stationary vehicle.  They were told to alight and PC 33410 searched the applicant and the drugs were found in the back left trousers pocket.  Nothing was found on his elder brother but both were arrested.  It was also the prosecution case that at the time of arrest the applicant had made a verbal admission to PC 33410 which was subsequently post-recorded in PC 33410’s notebook.  There was also a subsequent video recorded interview in which the applicant made admissions.

3.There was a voir dire at trial.

4.The defence allegation at the voir dire was that the applicant was beaten up when arrested that he and his brother were taken by PC 33410 and PC8195 to the police canteen at the Tsuen Wan Police Station where they were told that if one of them would admit to possessing the dangerous drugs the other would be let go.  The post-recorded admission was allegedly made in the canteen.  The applicant was able to describe the canteen and drew a sketch which became exhibit D1.  The police evidence was that neither he nor his brother had been taken to the canteen.  An employee (“DW3”) of the solicitors representing the applicant went to the canteen (after the voir dire proceedings had begun) and prepared a sketch plan of the canteen.  The trial judge ruled the admissions inadmissible basically because the sketch drew by DW3 was on the whole consistent with the applicant’s sketch and the police had failed to rebut beyond reasonable doubt the possibility that the post record was made in the canteen as alleged by the defence so that a doubt existed as to the voluntariness of the confession.

5.After the learned judge had ruled as inadmissible the various admissions made by the applicant he said to counsel, that as a result of his ruling the focus should be on the circumstances in which the drugs were allegedly found and that counsel should be careful not to inadvertently bring before the jury the admissions which would be prejudicial to the defence.  

6.After the jury was empanelled, counsel for the applicant said that, according to his instructions he would ask about the alleged improper conduct of the police at the scene (for example, a beating), but not about what happened after they had gone to the police station.  The judge told counsel it was a matter for him.

7.The applicant did not give evidence at trial and he was convicted by the jury.  His application for leave to appeal to the Court of Appeal having been dismissed, he applied to us for leave to appeal.  Before us, he was represented by Mr Walter Lau of counsel.  And for the first time it is said that there was a miscarriage of justice caused by flagrant incompetence of counsel at trial.  In the Court of Appeal the applicant was represented by Mr Alex Ng, who was not the trial counsel.  Three grounds of appeal[1]were relied on, none of which concerned the competence of trial counsel.  The court’s approach to allegations of flagrant incompetence of counsel are well-known and it is sufficient if we remind ourselves of what Sir Thomas Eichelbaum NPJ said in Chong Ching Yuen v HKSAR (2004) 7 HKCFAR126 at 144:

“The expression ‘flagrant incompetence’ righty underlines an appellant’s need to show much more than a mistake, an error of judgment, or a decision to follow one course when in hindsight another would have been preferable. But it should not deflect attention from the most critical point, namely given that there was a significant error of some kind, what will be decisive is the effect of the error on the trial. ...

The bottom line is that to succeed, an appellant must be able to show he or she received less than a fair trial.”

8.Essentially, the complaint centred on trial counsel’s failure to cross-examine PC 33410 about the canteen incident, which it is said would have seriously damaged PC 33410’s credibility. We do not agree with Mr Lau that merely cross-examining PC 33410 without going into why the applicant was taken there or what happened whilst they were there would have serious impact on PC33410’s credibility.  The trip to the canteen was meaningless outside the context of the admissions.  Moreover, this is not a case where there was a positive finding by the trial judge that the applicant had been taken to the canteen.  The trial judge recognized the possibility that the applicant might have obtained information about the canteen from other sources.  He would not draw any such inference and he was not satisfied beyond reasonable doubt about the voluntariness of the admissions.  Nor did the trial judge make any adverse finding regarding PC 33410’s credibility.  Cross-examining PC33410 on the alleged canteen incidence would have been wrought with difficulties, and counsel’s decision not to do so should not be criticized.

9.It is also said that the applicant would have given evidence had he not been told that he would not be allowed to give evidence about the visit to the canteen.  There are documents signed by the applicant acknowledging that he had been advised on his right to give evidence, that he did not wish to give evidence and that he couldn’t find the pair of beach shorts he was wearing when he was arrested.  The applicant now claims that he had all along wanted to give evidence and would have done so if he had not been told that he would not be allowed to mention the canteen incident. And that he had been strongly advised not to give evidence.  All these have been denied by trial counsel, who said in reply to letters written to him on behalf of the applicant, that he and those instructing him repeatedly advised the applicant to give evidence and to produce the shorts that he was wearing at the time, that the applicant had repeatedly said he couldn’t find the shorts and that his decision not to give evidence was entirely voluntary.  Ordinarily, the intermediate Court of Appeal might receive evidence to resolve such a conflict of evidence.  The complaint about counsel’s competence was raised for the first time before us.  We could take the highly unusual step and receive evidence if we deem it appropriate. But it is not a step we would lightly take.  Certainly not in a case where we are not satisfied the applicant has raised a plausible and prima facie sustainable complaint.  This is not a case where we are prepared to entertain a new complaint. 

10.For these reasons we did not consider it reasonably arguable that there has been flagrant incompetence on counsel’s part and dismissed the application.

Mr Eddie Sean, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the respondent

Mr Walter Lau, instructed by ONC Lawyers, for the applicant