Hong Kong Bar Association Circular No. 245/19
To : All Members & Mess Members of the Bar Association
From : Jonathan Chang – Honorary Secretary
Date : 3 December 2019
PRACTICE NOTE : NEW PRACTICE WHERE FLAGRANT INCOMPETENCE IS ADVANCED AS A GROUND OF APPEAL
Members’ attention is drawn to the Court of Appeal judgment in HKSAR v Apelete [2019] HKCA 1189 whereby a new practice is imposed by the Court where flagrant incompetence of legal representative(s) at trial is advanced as a ground of appeal:
1. An appellate counsel has a duty to satisfy himself that the ground is properly arguable, i.e. there is a palpably sound basis for such allegations to be made, failing which such allegations must never be advanced: see also HKSAR v Li Xiaoxiang (2018) 21 HKCFAR 272 at [31].
2. In making that assessment, the appellate counsel must look for independent and objective evidence to support the complaint and, save where there are good and compelling reasons not to do so, make full and proper enquiries of the previous legal representatives at trial in relation to the complaint before articulating it as a ground of appeal. The appellate counsel must then add an appropriate certificate in the grounds of appeal that he has complied with this duty when relying on such a ground.
3. Further, a signed waiver of LPP from the applicant in respect of the trial legal representatives and an affirmation in support of the complaint must be filed at the same time as the ground of appeal.
4. If subsequent material comes to light casting doubt on the applicant’s claims, there is a continuing duty on the appellate counsel to evaluate the propriety of the grounds of the complaint.
5. The above duties also apply to any ground of appeal which seeks to assert that something happened or did not happen at trial, which should or should not have occurred, even though in respect of which no allegation of flagrant incompetence is made. The appellate counsel must make enquiries of the previous legal representatives as to what was done or not done, and why, and must certify in the grounds of appeal that they have complied with this duty.
The appellate counsel should advise the applicant of the consequences of the Court ordering “loss of time” if it is found that there is no merit in the allegation, bearing in mind in particular the significant time, effort and inconvenience, and anxiety, that will have been caused to the trial legal representatives in having to deal with very serious imputations against their professionalism, honesty and competence: Practice Note (Crime: Loss of Time) [2013] 6 HKC 300; HKSAR v Apelete (No 2) [2019] HKCA 1320 at [124] and [127].
A copy of the Court of Appeal judgment in HKSAR v Apelete [2019] HKCA 1189 and HKSAR v Apelete (No 2) [2019] HKCA 1320 is attached to this Circular.
A A
B CACC 176/2017 B
[2019] HKCA 1189
C C IN THE HIGH COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF APPEAL E E
CRIMINAL APPEAL NO 176 OF 2017
F (ON APPEAL FROM HCCC NO 74 OF 2016) F
G G
BETWEEN
H H HKSAR Respondent
and I I
古晉希 Applicant APELETE Kokou Afla ( ) J J
K K Before: Hon Macrae VP, McWalters JA and Zervos JA in Court
Dates of Hearing: 18 September 2019 & 23 October 2019 L L
Dates of Written Submissions (on quantum): 9 October 2019
M (Mr McGowan); 10 October 2019 (Mr Mohnani); 26 September & M
18 October 2019 (Mr Lai)
N Date of Judgment on Wasted Costs: 23 October 2019 N
O O
JUDGMENT ON WASTED COSTS P P
Q Hon Macrae VP (giving the Judgment of the Court): Q
R R A. Introduction and chronology of events
S S 1. On 16 May 2017, the applicant was convicted before Toh J
T and a jury of one count of indecent assault, contrary to section 122(1) of T
the Crimes Ordinance, Cap 200 and another count of rape, contrary to U U
V V A - 2 - A
B section 118(1) of the same Ordinance. He was sentenced on the B
following day to an overall term of 9 years‟ imprisonment. C C
2. On 14 June 2017, the applicant filed a Notice of D D
Application for leave to appeal (Form XI) in respect of conviction only.
E E On 4 September 2017, his application for Legal Aid was refused by the
Director of Legal Aid. F F
G 3. On 24 November 2017, Messrs Mohnani & Associates G
(“the solicitors”), who had been retained by the applicant on a private H H
basis, filed a Notice to Act on behalf of the applicant. On 29 January
I 2018, Mr McGowan of counsel, having been briefed by the solicitors on a I
private basis to advise, filed perfected grounds of appeal on behalf of the J J
applicant. There were five substantive grounds of appeal, Ground 5 of
K which was drafted in the following terms: K
L “5. The conduct of the Applicant‟s Defence was such as to L
amount to “Incompetence of Counsel”. This included, but was not limited to:- M M
a) A lack of direct communication between his lawyers and the Applicant; N N
b) A failure to take written instructions before trial;
O c) The general inexperience of his privately instructed O
Counsel;
P d) Advising him that he should not and need not give P
evidence despite the nature of the case.”
Q Q
4. In view of the terms and nature of Ground 5, and in
R accordance with the current practice where such grounds of appeal are R
averred, Master Cheung, the Registrar of Criminal Appeals S S
(“the Master”), gave written directions on 7 February 2018, which were
T T incorporated in a formal letter dated 9 February 2018 from the Registrar
of the High Court, that the solicitors were to file a waiver of legal U U
V V A - 3 - A
B professional privilege (“LPP”) by the applicant within 14 days, and an B
affirmation in support of his complaint of counsel‟s incompetence within C C 28 days of the letter.
D D
5. Nothing thereafter was received from the solicitors and, on
E E 23 March 2018, the Master issued a reminder to the solicitors to comply
with her directions. F F
G 6. There was still no response and, on 4 May 2018, the Master G
wrote again to the solicitors, with a copy being sent to Mr McGowan, H H
noting that neither the waiver of LPP nor the affirmation in support had
I yet been received, and giving the solicitors 7 days to confirm in writing I
whether they were still pursuing Ground 5. The solicitors were further J J
warned that if they failed to file the documents concerned, they would not
K be able to pursue Ground 5 at the application for leave to appeal. K
L L 7. On 10 May 2018, Mr McGowan wrote to the Registrar of the
M High Court acknowledging the reminder of 4 May 2018 and apologising M
for the delay. He said that, although drafting of the affirmation had N N begun, he and the solicitors had made arrangements to see the applicant
O in order to continue with the affirmation and obtain his formal waiver of O
LPP on 21 April 2018, but were unable to do so before prison visits P P
ended for the day. No separate letter was sent by the solicitors to the
Q Registrar. Q
R R 8. On 14 May 2018, in response to Mr McGowan‟s letter, the
Master granted an extension of 21 days from the date of her letter for the S S
applicant to file the required documents in respect of Ground 5.
T T
U U
V V A - 4 - A
B 9. However, the documents were still not forthcoming and, on B
11 June 2018, the solicitors wrote to the Registrar, for the attention of the C C Master, requesting a further extension of 21 days in order to file them.
D In that letter, it was asserted that “there have, unfortunately, been funding D
issues which has hindered us taking [the applicant‟s] matter forward”. E E
This letter was copied to Mr McGowan.
F F
10. On 26 June 2018, the Master granted the extension sought
G G and directed that the documents were to be filed “on or before 9 July
2018”. H H
I 11. Meanwhile, on 17 August 2018, Legal Aid was granted to I
the applicant; Mr McGowan being on the same day assigned to be the J J
applicant‟s counsel at the appeal, and Mr Mohnani his instructing
K solicitor. K
L L 12. Since there had been no compliance with the directions of
M 26 June 2018, the Master wrote again to the solicitors on 5 September in M
the following trenchant terms: N N
“The Applicant‟s solicitors are to file within 7 days from today a written explanation of their blatant disregard of the Court‟s O O directions regarding the filing of the Applicant‟s waiver of LPP
and affirmation in support of the flagrant incompetence of P counsel ground.” P
Q 13. This letter prompted a response from the solicitors, by letter Q
of 10 September 2018, to the effect that there had, again, been “funding R R
issues which has hindered us taking [the applicant‟s] matter forward”,
S and requesting yet another extension of 21 days to complete and file the S
documents concerned. It will be noted from the above chronology, T T
however, that Legal Aid had been granted to the applicant some 3 weeks
U before this letter was written. U
V V A - 5 - A
B 14. On 12 September 2018, the Master took note of the solicitors‟B
“repeated explanation”, but pointed out that: C C
“unless and until the solicitors have been absolutely discharged from representing the Applicant, they are reminded that there is D D a positive duty for them to comply with all the court‟s
directions and in the circumstances that they might fail to E comply, they should report to the court and make necessary E
arrangements/applications in a timely manner”.
F F
A further extension of 21 days to file the waiver of LPP and affirmation
G in support of Ground 5 was granted, but it was emphasised that no further G
extension would be granted “without cogent justification”. The Master H H
reiterated that any failure to comply might result in the applicant not
I being able to pursue the said ground of appeal. I
J J 15. Thereafter, nothing more was heard from either the solicitors
K or counsel for more than 7 months, until 17 April 2019. Meanwhile, on K
7 November 2018, the application for leave to appeal was ordered to be L L listed and, on 14 November 2018, set down for a one-day hearing
M on 13 June 2019. Consequent orders as to the filing of written M
submissions by the parties (no later than 28 days and 14 days before the N N
hearing for the applicant and respondent respectively) were also made on
O 7 November 2018. O
P P 16. On 11 April 2019, having heard nothing further after the
granting of a 21-day extension on 12 September 2018, the Court directed Q Q
that, since there had been a persistent failure to comply with the Court‟s
R R directions for the filing of the necessary documents in respect of Ground
S 5, the applicant was prohibited from pursuing Ground 5 at the appeal. S
The direction was sent to the solicitors by way of letter of 12 April 2019. T T
U U
V V A - 6 - A
B 17. This direction from the Court prompted a letter from B
Mr McGowan on 17 April 2019, acknowledging the Court‟s criticism but C C seeking to explain that repeated attempts had been made to contact the
D applicant‟s wife for support of the serious allegations being levelled at D
trial counsel, as well as obtain certain WhatsApp messages on the E E
applicant‟s telephone, but to no avail. The Court was invited to
F reconsider its direction disallowing Ground 5 to be argued. Mr F
McGowan wrote, inter alia: G G
“With respect, not to allow this particular Ground to proceed
H would, effectively, sanction [the applicant] for our H
acknowledged failings, which were not his fault.
I We therefore respectfully ask the Court to reconsider the I
Direction given on 12 April, and allow Ground 5 to be fully argued. J J
We, further in fairness to those he accuses, and to the Respondent, accept this may well require an adjournment of the K th K 13 June hearing, and this could result in costs and other sanctions”.
L L
Enclosed with Mr McGowan‟s letter was an unsigned draft affirmation
M M from the applicant, but no separate waiver of LPP.
N N
18. On 10 May 2019, the Court directed that its earlier direction
O would stand. O
P P 19. On 12 June 2019, the day before the scheduled hearing of
the appeal, the Court received a letter from Mr Ross of counsel indicating Q Q
that he had just been assigned counsel for the applicant in place of the
R R applicant‟s previous legal team, which had been discharged by the
S Director of Legal Aid. Mr Ross requested the hearing of the appeal to S
be vacated and re-fixed in accordance with his diary. T T
U U
V V A - 7 - A
B 20. On the same day, the Court directed that the appeal would B
remain as listed and indicated its concern at “the failure by counsel and C C solicitors to abide by the court‟s directions and orders in this case”. The
D Court also ordered Mr McGowan and Mr Mohnani, together with D
Mr Chow, the handling solicitor at the Legal Aid Department (“LAD”), E E
to appear before it on 13 June 2019.
F F
B. The hearing of the wasted costs order
G G
21. On 13 June 2019, Mr Ross and new solicitors having been H H
assigned to the applicant by the Director of Legal Aid on 11 June 2019
I upon the discharge of Mr McGowan and the previous solicitors the same I
day, the Court felt obliged to adjourn the hearing of the leave application. J J
Nevertheless, we indicated, having set out the above chronology in open
K court, that we were considering the making of costs orders under K
sections 17 and/or 18 of the Costs in Criminal Cases Ordinance, Cap 492 L L
(“the CCCO”) and that we wished to give the parties a reasonable
M M opportunity to appear before the Court to show cause why such orders
should not be made. We further made clear that the parties were entitled N N
to provide evidence at the adjourned hearing by way of affirmation if they
O O wished and, in view of the seriousness of the matter, that Mr McGowan,
Mr Mohnani and Mr Chow might wish to be separately legally P P
represented.
Q Q
22. When the matter of a costs order came back before the Court R R
on 18 September 2019, neither Mr McGowan nor Mr Mohnani had
S sought to obtain legal representation and were content to represent S
themselves, while Mr Chow was represented by Mr Yeung of the LAD. T T
Although Mr Chow had filed a sworn affidavit, Mr McGowan and Mr
U U
V V A - 8 - A
B Mohnani had each written a letter to the Court, which they wished to B
adopt as their respective explanations. When we pointed out that there C C were questions arising out of those explanations which we wished to ask
D and that they did not have to answer if they felt their positions might be D
compromised in relation to other consequent proceedings, each said that E E
he was willing to answer questions from the Court.
F F
23. Having heard extensively from Mr McGowan, Mr Mohnani
G G and Mr Yeung, as well as from Mr Lai on behalf of the respondent, we
said we were satisfied that we should make wasted costs orders against H H
Mr McGowan and Mr Mohnani under section 18 of the CCCO. We
I I were equally satisfied that we could not make a wasted costs order
J against Mr Chow. However, as to the quantum of those costs and any J
issue of possible apportionment between the two, we ordered further K K submissions in writing from Mr McGowan and Mr Mohnani as well as
L from Mr Lai as to the breakdown of the costs incurred by the respondent L
and generally, and gave time limits for the filing of those submissions. M M The submissions were duly received by the Court and have been
N considered in the orders we have made. N
O O C. The law governing wasted costs orders
P P
24. Before explaining our reasons for making orders under
Q section 18 of the CCCO, we should say something of the law governing Q
the making of wasted costs orders against legal or other representatives R R
under the Ordinance. In doing so, we have been greatly assisted by the
S efforts of Mr Lai, with him Ms Ng and Mr Leung, in their comprehensive,S
fair and lucid arguments on behalf of the respondent, with which T T
U U
V V A - 9 - A
B submissions none of the other parties to these proceedings have taken B
issue. C C
25. The term “wasted costs” is defined in section 2 of the CCCO D D
as:
E E “…any costs incurred by a party to the proceedings –
(a) as a result of – F F
(i) any seriously improper act or omission; or
G (ii) any undue delay or any other serious G misconduct, on the part of any representative or
any employee of a representative; or H H (b) which, in the light of any such act, omission, delay or
misconduct occurring after they were incurred, the I court considers it is reasonable to expect that party to I
the proceedings to pay.”
J J
26. It was observed of the power to make an order for wasted
1 K costs by this Court in HKSAR v Tam Yi Chun (No 2) , at paragraph 6: K
L “The legislature in Hong Kong has made a deliberate choice to L circumscribe the circumstances in which the power may be
exercised, in a way which is much narrower than the M circumstances permitted by the legislation of England and M
Wales. There is, for example, no reference in Hong Kong to a negligent act. It must be something much more than that, as N N emphasised as well by the repeated use of the word “serious”.”
O O Similarly, in HKSAR v Harjani; Re Sutherland (Appeal: Wasted Costs
Order)2, the Court held, at paragraph 236: P P
“By the use of the words “seriously” and “serious” in the Q Q definition of “wasted costs” in the CCCO, a higher threshold is required under s.18 of the CCCO, when compared with its civil
R or United Kingdom counterparts.” R
27. The Court in Harjani also dealt with the meaning of the S S
word “improper” in the context of wasted costs, at paragraph 235:
T T
1 HKSAR v Tam Yi Chun (No 2) [2014] 4 HKLRD 27. U 2 HKSAR v Harjani; Re Sutherland (Appeal: Wasted Costs Order) [2017] 3 HKLRD 1. U
V V A - 10 - A
B “The word “improper” in the definition of “wasted costs” in the B CCCO covers, but is not confined to, conduct which would
ordinarily be held to justify disbarment, striking off, suspension C from practice or any other serious professional penalty. It C
covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. It also extends to any D D conduct which would be regarded as improper according to the
consensus of professional (including judicial) opinion, whether E or not such conduct violates the letter of a professional code”, E
F which statement was derived from the judgment of Sir ThomasF
3 Bingham MR (as he then was) in Ridehalgh v Horsefield , at 232D-E; a G 4 G judgment approved by the House of Lords in Medcalf v Mardell , by this
H Court in Tam Yi Chun (No 2) and by the Court of Final Appeal in Ma So SoH
5 v Chin Yuk Lun & Anor . I I
28. As for the question of “undue delay”, paragraph 9(a) of J J
Practice Direction 4.2 Criminal Appeals to the Court of Appeal stipulates:
K K
“Applicants and their legal representatives are required to take all the steps necessary to bring on an application with due L L diligence. Delay should be avoided and undue delay may be considered a dereliction of duty by the counsel or solicitor
M concerned.” M
The question of what may amount to undue delay was considered in this N N
jurisdiction in the civil context in China Metal Recycling (Holdings)
O 6 O Limited (In Compulsory Liquidation) & Anor v Chun Chi Wai & 12 Ors .
P There, new solicitors for the two appellants had formally taken over the P
appeal from the former solicitors on 29 November 2016, by which time Q Q directions had already been issued by the Registrar of Civil Appeals
R on 6 September 2016 for the appellants to lodge appeal bundles by R
11 January 2017 and skeleton submissions by 18 January 2017. No S S
3 Ridehalgh v Horsefield [1994] Ch 205. T 4 Medcalf v Mardell [2003] 1 AC 120. T 5 Ma So So v Chin Yuk Lun & Anor (2004) 7 HKCFAR 300. 6 China Metal Recycling (Holdings) Ltd (In Compulsory Liquidation) & Anor v Chun Chi Wai & 12 U Ors (Unrep., CACV 109/2016 & CACV 155/2016, 27 January 2017). U
V V A - 11 - A
B progress whatsoever was made throughout December 2016 by the new B
solicitors in compliance with the directions of 6 September 2016, as a C C result of which they failed to lodge any appeal bundles or skeleton
D submissions. D
E E 29. The new solicitors explained that they were unable to take
instructions from the appellants and did not have the appeal papers; F F
however, they had failed to obtain the papers from sources other than the
G G former solicitors. Yet the new solicitors remained on the record as the
appellants‟ solicitors and no application for any extension of time was H H
made. The Court of Appeal dismissed the appeal for want of
I I prosecution, ordering the new solicitors to pay wasted costs on the basis
J that they were “guilty of undue delay in the preparation of the appeals J
and, in the context of these appeals the delay amounted to a serious K 7 K dereliction of duty on the part of [the new solicitors]” .
L L
30. Lam VP, giving the judgment of the Court, held:
M M “8. Nowadays the courts place great regard to proper
preparation and expect parties to comply with case N management directions. In the context of an appeal, the N
relevant practices are now set out in the new Practice Direction 4.1 which will come into force on 1 March 2017. Before that, O O as in the present appeal, the Registrar of Civil Appeals usually
gives case management directions when the date of appeal is P fixed. Solicitors are expected to take the necessary steps to P
comply with such directions diligently and timely. …
Q 9. If it transpires that there are difficulties in complying Q
with directions due to unforeseen developments, a solicitor should inform the court as soon as practicable. … R R
10. We must stress that case management directions issued by the Registrar of Civil Appeals are made to facilitate the S S efficient and proper preparation of appeals. They are meant to
be taken seriously. Non-compliance can lead to the disruption T of the preparation work undertaken by judges sitting in the T
appeals as well as the preparation work by those acting for the
U 7 Ibid., at paragraph 40. U
V V A - 12 - A
B opposite parties. Hence, the court expects solicitors to comply B with such directions diligently and conscientiously.
Non-compliance has to be explained as unfair disruption in the C preparation may, in serious cases, lead to the adjournment or C
even dismissal of an appeal. Even though the courts nowadays are more proactive in case management, the whole D D process would only be effective if litigants and their lawyers
co-operate and adhere to directions given by court, thus the E importance of the duty under Order 1A Rule 3. E
…… F F 17. All in all, it is wholly unacceptable that no progress
whatsoever was made in the whole of December by [the new G solicitors] towards the compliance with the directions.” G
H 31. Albeit in the civil context, and with due emphasis and H
recognition being given to the seriousness of the impropriety or I I
misconduct by the legal representative(s) which has been deliberately
J injected into the provisions of the CCCO by the legislature, we regard J
these remarks as equally apposite in the criminal context. Certainly, K K
counsel is required by the Code of Conduct of the Bar of the Hong Kong
L Special Administrative Region “in every case [to] use his best endeavours L
8 to avoid unnecessary expense and waste of the Court‟s time” ; while it M M
has been said that a “solicitor‟s overriding duty to the court requires him
9 N not to waste the court‟s time” . As Ma CJHC (as he then was) stated in N
10 Yeung Mok Yeh & Anor v HKSAR , at paragraph 14: O O
“Solicitors are expected to do more than merely refer all P matters to counsel. The proper observance of time limits and P
practice directions are matters which a competent solicitor is expected to do.” Q Q
32. It must be remembered that quite apart from the fact that R R
delays and failures to comply with directions from the Court in criminal
S cases result in wasted preparation, delayed appeals and potentially S
T 8 Code of Conduct of the Bar of the Hong Kong Special Administrative Region, Paragraph 10.36. T 9 The Professional Conduct of Lawyers in Hong Kong, (Desk Edition 2014) by Wilkinson & Sandor, paragraph 11.58. U 10 Yeung Mok Yeh & Anor v HKSAR [2005] 4 HKLRD 357. U
V V A - 13 - A
B successful applicants remaining in custody longer than necessary, B
unnecessary adjournments inevitably affect other applicants in other cases C C who are patiently waiting for their appeals to be heard, and who could
D have been dealt with earlier. Such delays are not conducive to the D
efficient and proper administration of justice. In HKSAR v Ma Siu E E 11 Chiu , Ma CJHC said:
F F “In Yau Chiu Wah v Gold Chief Investment Ltd & Anor (No 2)
[2003] 3 HKC 91 at 102, [2003] 3 HKLRD 553 at 564 (in G para 32), I referred to the crucial role of solicitors and barristers G
in promoting the administration of justice. This is a paramount duty. I do not repeat that part of the judgment here H H but it is as applicable to criminal cases as it is to civil cases, as applicable to barristers as it is to solicitors. The courts will
I not be prepared to countenance any dilution of this paramount I duty.”
J J 33. In Harjani, the Court approved of a three-stage test in
K considering a wasted costs application in respect of the conduct of a K
12 barrister . The test in criminal cases, applicable equally to solicitors, L L may be stated as follows:
M M (1) Has the barrister of whom complaint is made acted seriously
N improperly, or been guilty of undue delay or other serious N
misconduct; O O
(2) If so, has such conduct caused the applicant to incur P P
unnecessary costs;
Q Q
(3) If so, is it in all the circumstances just to order the barrister
R to compensate the applicant for the whole or any part of the R
relevant costs? S S
T T 11 HKSAR v Ma Siu Chiu [2004] 1 HKC 253. 12 HKSAR v Harjani; Re Sutherland (Appeal: Wasted Costs Order) [2017] 3 HKLRD 1, at U paragraph 240. U
V V A - 14 - A
B The Court in Harjani held that, in relation to stage (2), there must be a B
causal link between the offending conduct and the extent of the costs C C incurred or wasted; while stage (3) involves the exercise of discretion.
D Noting the differences in the law applicable to wasted costs in Hong D
Kong as between the civil and criminal jurisdictions, and between the E E
relevant legislation in Hong Kong and the United Kingdom, the Court
F held that the three-stage test catered for the higher threshold under the F
13 CCCO . G G
34. With this exposition of the applicable law wherever a wasted H H
costs order is contemplated under section 18 of the CCCO, we turn to a
I I consideration of the test in the present case.
J J
D. The parties’ positions
K K
D.1. Mr McGowan’s position L L
35. In his letter to the Court dated 12 July 2019, Mr McGowan M M
said he understood that the applicant‟s wife, Ms Yuen, had been the
N N conduit for conveying the applicant‟s instructions to the legal
representatives at trial. Having received the initial call from Ms Yuen in O O
June 2017, as a result of which Mr McGowan had furnished her with a
P P list of solicitors, she was unable to be further contacted. Consequently,
the new defence team could not corroborate what had transpired between Q Q
the applicant and his former legal representatives. He also referred to
R R funding difficulties before Legal Aid was granted, although he accepted
that no mention of such difficulties had been made in his letter to the S S
Registrar of 10 May 2018. Mr McGowan offered his sincere apologies
T T
U 13 Ibid., at paragraph 278. U
V V A - 15 - A
B for his conduct which he described as a non-compliance, but not defiance, B
of the Court‟s directions, for which he accepted full responsibility. C C
36. Before us, Mr McGowan candidly admitted that his actions D D
(or lack thereof) were such as to bring him within the meaning of section
E E 18 of the CCCO. In particular, he accepted that on his part there had
been undue delay as well as a repeated failure to comply with the Court‟s F F
directions, which amounted to serious professional misconduct.
G G
37. Inasmuch as Mr McGowan had floated the notion in his H H
letter to the Court that some of the Court‟s directions were not copied to
I him, he properly accepted before us, as we believe must have been the I
case given that he as counsel was directly affected by the orders and J J
extensions sought, that he would have been aware of them. This matter
K was laid to rest by Mr Mohnani, who said that all of the Court‟s K
directions would have been communicated by him to counsel. L L
M D.2. Mr Mohnani’s position M
N N 38. In his letter to the Court dated 19 July 2019, Mr Mohnani
explained that he first paid a visit on a pro bono basis to the applicant in O O
Stanley Prison on 12 July 2017. Although he had only ever had one
P P telephone conversation with the applicant‟s wife in March 2018, and
despite repeated assurances from the applicant that he would retain his Q Q
firm‟s legal services in the event that legal aid was not granted, the
R R applicant was ultimately unable to come up with sufficient funds to fund
the appeal. Mr Mohnani nevertheless took responsibility for his failures S S
to comply with the Court‟s directions, albeit that he also termed them as
T T non-compliance with, rather than defiance of, the Court‟s directions and
U orders. U
V V A - 16 - A
B 39. Before us, however, Mr Mohnani also candidly admitted that B
there had been repeated non-compliance with orders and directions of the C C Court, which amounted to seriously improper conduct. In particular, he
D was unable to explain why nothing had been done on his part following D
the directions from the Master of 12 September 2018. E E
40. It is to be observed, and we shall return to this matter in due F F
course, that both Mr Mohnani and Mr McGowan further accepted that
G G they had never made any enquiries of either counsel or solicitors at trial
in response to the allegations of flagrant incompetence being made H H
against them.
I I
D.3. Mr Chow’s position J J
K 41. It was Mr Yeung‟s submission that Mr Chow as supervising K
counsel at the LAD was not a “party to the proceedings” within the L L definition of the “wasted costs” provision in section 18 of the CCCO.
M The LAD performs an administrative role in approving legal aid to M
eligible applicants and settling legal fees and disbursements. It also N N monitors the progress of cases handled by the assigned legal
O representatives so as to ensure that public resources are being used in an O
appropriate and cost-effective way. P P
42. In his affidavit, Mr Chow explained that LAD monitored its Q Q
assigned counsel and solicitors and there were several cases where legal
R R representatives had been removed from the Legal Aid Panel because of
their unsatisfactory performance. Those assigned to a case had a S S
positive duty to keep the LAD informed of the conduct of the case so that
T T the LAD could properly oversee its progress. In the present case, the
U LAD were unware of the non-compliance with the Court‟s directions by U
V V A - 17 - A
B Mr McGowan and Mr Mohnani. Mr Yeung raised the issue of whether B
all court directions and orders should in future be copied to the LAD so C C that it could provide more effective supervision of the conduct of the
D appeal. D
E E D.4. The respondent’s position
F F
43. As we have indicated, no issue was taken by any of the
G parties with the submissions as to the law in respect of the making of G
wasted costs orders advanced by Mr Lai, with him Ms Ng and Mr Leung. H H
Given that we accept those submissions, the salient features of which we
I have already set out above, we shall not set out their very detailed and I
comprehensive arguments here. Attached to their submissions, however, J J
was an annex quantifying the wasted costs amounting to $443,500
14 K incurred by the respondent in this matter . Subsequent to the Court‟s K
order on 18 September 2019, the Annex was revised to $356,850 when L L
Mr Lai accepted, among other reasons, that he should waive the costs
M M incurred by one of the three counsel appearing for the respondent.
N N 44. Whilst Mr Lai submitted that a wasted costs order could be
O made by the Court against both the solicitor and counsel appearing in the O
case, he submitted that such an order could not be made against Mr Chow P P
personally or the LAD, since neither of them was a “legal or other
Q representative” or “a party to the proceedings” within the meaning of Q
section 2 of the CCCO. R R
S S
T T
14 Annex II of the Respondent‟s written submissions dated 2 August 2019. The unnecessary work U includes preparation for and appearance at the hearings on 13 June 2019 and 18 September 2019. U
V V A - 18 - A
B E. Consideration of the making of a wasted costs order B
C C 45. We agree that a wasted costs order cannot be made against
Mr Chow of LAD. He was not “a party to the proceedings” at the D D
relevant times. However, we agree with Mr Yeung‟s submission that in
E E future all Court directions and orders to assigned counsel and solicitors in
appeal proceedings should be copied to the LAD, so that it can play a F F
more effective role in monitoring the performance of those assigned to
G G the appeal.
H H
46. Whilst Mr Chow may not have been “a party to the
I proceedings”, the same cannot be said of Mr McGowan and Mr Mohnani. I
Even if one accepts that there may have been funding issues affecting the J J
solicitors, the fact is that they remained on the record as the applicant‟s
K solicitors and were obliged, until such time as they ceased to act, to K
comply with the Court‟s directions and time limits. They L L
were reminded of this obvious duty by the Master in her letter of
M M 12 September 2018, granting the solicitors a further extension of 21 days
to comply: N N
“… unless and until the solicitors have been absolutely O discharged from representing the Applicant, they are reminded O
that there is a positive duty for them to comply with all the Court‟s directions and in the circumstances that they might fail P P to comply, they should report to the court and make necessary
arrangements/applications in a timely manner”. Q Q
At no stage did they ever comply with the order to file the required
R R documents concerned from the time the first direction was given by letter
S of 9 February 2018 until they were discharged by the Director of Legal S
Aid on 11 June 2019. While an unsigned affirmation was sent to the T T Court accompanying Mr McGowan‟s letter of 17 April 2019, the
U applicant‟s waiver of LPP was never sent. U
V V A - 19 - A
B 47. Whatever the position may have been in respect of funding, B
the applicant was legally aided as from 17 August 2018. There can be C C no excuse for either Mr Mohnani or Mr McGowan failing to comply with
D the Court‟s directions thereafter and no conceivable justification for D
allowing 7 months to go by from 12 September 2018 (the granting of yet E E
another 21-day extension) until Mr McGowan‟s plea to be allowed to
F argue Ground 5 of 17 April 2019. Even then, the documents were not F
properly signed and filed. G G
48. The result of this astonishing and repeated failure to comply H H
with the orders of the Court is that the appeal was left languishing in the
I I listing office until, pursuant to a direction from the Vice President of the
J Court of Appeal on 7 November 2018, the appeal was ordered to be listed,J
which it was a week later. Even then, nothing was forthcoming from the K K solicitors or counsel until 5 months later, with 2 months to go before the
L hearing of the appeal, when the Vice President directed that, the required L
documents having not been filed despite repeated and persistent M M directions and extensions, the applicant was prohibited from arguing
N Ground 5 at the application for leave to appeal. N
O O 49. The ultimate consequences of this catalogue of defiance and
delay in repeatedly failing to comply with the directions and orders of the P P
Court are that the appeal fixed for 13 June 2019 could not take place; the
Q Q appeal had to be re-fixed to a date more than 4 months later; and the
respondent‟s submissions will have had to be redrafted to meet a rather R R
different appeal. Moreover, the respondent will now have to deal with
S S Ground 5 in its new incarnation, the ground of appeal having been
substantially amended by new counsel assigned by the Director of Legal T T
Aid. Considerable costs have thereby been wasted.
U U
V V A - 20 - A
B 50. On these facts alone, and even without the candid acceptance B
by Mr McGowan and Mr Mohnani before the Court that they were each C C liable to a wasted costs order being made, we were satisfied that an order
D under section 18 of the CCCO should be made against each of them. D
Accordingly, on 18 September 2019, we made the order and adjourned E E
the matter for written submissions on the issues of quantum and
F apportionment. These we have now received and read. F
G G F. The wasted costs orders
H H
51. In quantifying the amounts payable under the order, we are
I conscious that any order we make should be compensatory of the party I
15 whose costs have been wasted . Accordingly, we have examined the J J
bill of costs placed before us by the respondent and reduced the overall
K costs claimed to have been wasted by the respondent in respect of their K
preparation for the hearing of 13 June 2019, and the hearing itself, from L L
$145,000 to $107,300. We considered that Item 1a in the bill of costs
M M prepared by Mr Lai should be reduced from $40,600 (representing 7
hours‟ preparation) to $29,000 (representing 5 hours‟ preparation); Item N N
1c(1) should be reduced from $23,200 (representing 4 hours‟ preparation)
O O to $11,600 (representing 2 hours‟ preparation); and Item 1c(3) should be
reduced from $29,000 (representing 5 hours‟ preparation) to $14,500 P P
(representing 2½ hours‟ preparation).
Q Q
52. The result is that the total bill of the respondent‟s costs for R R
preparation for the abortive hearing of 13 June 2019 is, therefore, on our
S assessment, reduced from $139,200 to $101,500; while the costs for the S
hearing itself remain at $5,800. Making a further slight reduction of the T T
overall figure from $107,300 to $100,000, and finding that the costs
U 15 See Ma So So v Chin Yuk Lun & Anor (2004) 7 HKCFAR 300, at para 7. U
V V A - 21 - A
B should be equally apportioned, we make an order that Mr McGowan and B
Mr Mohnani are each to pay a wasted costs order of $50,000 pursuant to C C section 18 of the CCCO.
D D
53. The respondent further applies for the costs of the making of
E E the application, which necessitated considerable preparation for the
hearing on 18 September 2019 and attending that hearing itself, as well as F F
the preparation of a revised statement of costs, amounting in all to
G G $211,850. We take into account that both Mr McGowan and Mr
Mohnani, after some initial prevarication, did not ultimately contest the H H
application for wasted costs and that much of the research which forms
I I the greater part of the respondent‟s submissions was done more to assist
J the Court than to advance the respondent‟s application. In these J
circumstances, we consider that the justice of the case warrants an order K K for costs in favour of the respondent of a further sum of $50,000 against
L Mr McGowan, and a further sum of $50,000 against Mr Mohnani. We L
shall order that the full amount of their respective costs orders shall be M M paid by Mr McGowan and Mr Mohnani by 31 December 2019.
N N
54. For the sake of completeness, we did not consider the
O O making of a costs order under section 17 of the CCCO to be appropriate.
Such an order is contemplated where “costs have been incurred … by a P P
party to the proceedings as a result of an unnecessary or improper act or
Q Q omission by or on behalf of the other party to the proceedings”, in which
circumstances, “the court or the judge may … order all or part of the R R
costs so incurred” to be paid to one party by the offending party; the term
S S “party to the proceedings” being defined in section 2 as meaning “the
defendant or the prosecutor”. Since neither the defendant (or applicant) T T
U U
V V A - 22 - A
B nor the prosecutor were here at fault, let alone the LAD, we declined to B
make an order under section 17 of the CCCO. C C
G. Complaints of flagrant incompetence D D
E 55. In considering the conduct of counsel in this matter, another E
issue has emerged which we regard as being of considerable importance F F
to the administration of justice. Both Mr McGowan and Mr Mohnani
G accepted that at no stage after they entered the picture following the filing G
of the Notice to Act on 24 November 2017, did they ever approach H H
either counsel or solicitors at trial for a response to the complaints
I Mr McGowan had seen fit to include in his perfected grounds of appeal I
of 29 January 2018. J J
K 56. As we have noted, by the time Mr McGowan and Mr K
Mohnani were discharged from representing the applicant by the Director L L of Legal Aid on 11 June 2019, more than 16 months had lapsed since
M perfected grounds of appeal had been filed with the Court. That no M
enquiries had ever been made during that time of either previous N N solicitors or counsel as to the allegations of flagrant incompetence made
O against them is as extraordinary as it is unacceptable. O
P P 57. It should be remembered that the allegations forming the
basis of the „perfected‟ grounds of appeal were, at that stage, simply bare Q Q
assertions by someone aggrieved by his conviction. No independent
R R evidence had been obtained and, critically, no attempt was made to ask
the parties against whom the allegations were directed what they had to S S
T T
U U
V V A - 23 - A
B say to these complaints. Of this practice, Lord Thomas of Cwmgiedd CJ B
16 said in R v A(EO) : C C
“Of late it has become the habit for a number of cases to be brought on appeal to this court on the basis of incompetent D D representation by trial solicitors or trial counsel. As in this
case, many such cases proceed without any enquiry being made E of solicitors and counsel who acted at trial. That means that E
the lawyer who brings such an application acts on what is, ex hypothesi, the allegations of a convicted criminal – and in F F this case a convicted paedophile. For a lawyer to put forward
such allegations based purely on such a statement, and without G enquiry, is in our view impermissible. Before applications are G
made to this court alleging incompetent representation which is based upon an account given by a convicted criminal, we H H expect lawyers to take proper steps to ascertain by independent means, including contacting the previous lawyers, as to whether
I there is any objective and independent basis for the grounds of I appeal.
J As long ago as 1997 in R v Doherty and McGregor [1997] 2 Cr J App R 218, this court drew attention to the fact that it was
proper for fresh representatives as a matter of courtesy to speak K to former counsel before grounds of appeal are lodged. Today K
circumstances have changed. The frequency of this kind of appeal makes it clear to us that counsel and solicitors would be L L failing in their duty to this court if they did not make inquiries
which would provide an objective and independent basis, other M than complaints made by the convicted criminal, as to what had M
happened.”
N N 17 58. In the subsequent case of R v McCook (Practice Note) ,
O Lord Thomas CJ, sitting with the President of the Queen‟s Bench O
Division and the Vice President of the Court of Appeal (Criminal P P 18 Division), reiterated :
Q Q “… First, it is always desirable to consult those who have acted
before in a case where fresh counsel and solicitors have been R instructed. In R v A(EO) … we stated that it was necessary to R
do so where criticisms of previous advocates or solicitors were made, or grounds were to be put forward where there was no S S basis for doing so other than what the defendant said.
Secondly, it is clear from this case that we must go further to T T 16 R v A(EO) [2014] 2 Cr App R 7, at paragraph 16. 17 R v McCook (Practice Note) [2016] 2 Cr App R 30. U 18 Ibid., at paragraph 11. U
V V A - 24 - A
B prevent elementary errors of this kind. In any case where B fresh solicitors or fresh counsel are instructed, it will henceforth
be necessary for those solicitors or counsel to go to the C solicitors and/or counsel who have previously acted to ensure C
that the facts are correct, unless there are in exceptional circumstances good and compelling reasons not to do so. It is D D not necessary for us to enumerate such exceptional
circumstances, but we imagine they will be very rare.” E E
59. In the most recent case of R v McGill19, Lord Thomas CJ
F F again repeated the importance of proper enquiries being made whenever
G fresh solicitors and counsel are instructed, pursuant to what he had earlier G
characterised as a „duty‟ on the new legal representatives to ensure that H H any facts relied upon at the appeal were correct:
I I “127. In McCook [2014] EWCA Crim 734, [2016] Crim App R 30, [2015] Crim LR 350 this court set out the duty of an advocate instructed by an applicant or appellant on an appeal J J where the advocate had not been the advocate at trial,
irrespective of whether there was any criticism of the trial K advocate. The court said: K
“In any case where fresh solicitors or fresh counsel L are instructed, it will henceforth be necessary for L
those solicitors or counsel to go to the solicitors and/or counsel who have previously acted to M M ensure that the facts are correct, unless there are in
exceptional circumstances good and compelling N reasons not to do so. It is not necessary for us to N
enumerate such exceptional circumstances, but we imagine that they will be very rare.” O O
128. Unfortunately, this did not happen in the present appeal, as far as all the applicants are concerned. By the time of the P P first hearing of the appeal on 15 June 2017, those now
instructed by the applicants (McGill and Corey Hewitt) had Q made some, but inadequate, enquiries of the legal team at trial. Q
One of the teams on the application made a few enquiries of trial counsel and then sent them a 39-page draft setting out the R R grounds of appeal followed by a 28-page finalised grounds.
129. We directed that proper enquiries be made and full S S disclosure given before the resumed hearing on 11 and 12 July 2017. Even then, the enquires were not adequate.
T We directed that further specific questions which we drafted be T
put to the previous legal teams.
U 19 R v McGill [2017] EWCA Crim 1228. U
V V A - 25 - A
B 130. Although applications for leave to appeal which involve B either express or implicit criticism of the lawyers at trial, or
where the information available to the new advocate is C incomplete (for example where an application is made to C
adduce fresh evidence) ought to be few and far between, we have noted an increase in such cases. There seems to be an D D assumption that enquiries are only necessary where criticism is
made of the trial representatives. That is not the case. E E 131. For the avoidance of doubt, new advocates instructed in
a case, whether or not they believe the grounds involve F criticism of the trial representatives, must make all proper and F
diligent enquiries of previous counsel, advocates and solicitors, so that they have all the information properly to understand G G what took place prior to and during the trial. This will also be necessary in every case involving an application to call fresh
H evidence. They must then expressly certify in the grounds of H
application for leave to appeal submitted to the court on form NG that that has been done. The court will not entertain an I application without such a certification. I
132. As the present applications have shown, a failure to J J make proper enquiries before the application is made can result in very significant extra time and cost being expended and
K grounds being pursued which are found to be unsustainable. K
133. We would emphasise that it is a wholly inadequate
L compliance with this duty to send the lawyers instructed at the L trial the grounds of appeal and to ask for comments.
Inevitably the application will be made sometime after the trial M and those representing the applicant at the trial must have M
identified for them the issues that relate to the conduct of the trial which are relevant to the appeal. Specific questions must N N be formulated and specifically put. Some questions will
simply be for information that is not apparent from the papers. O In other cases, there will be implicit criticism; in such a case O
there can be no shying away from putting fairly and squarely the implicit criticism of those then acting for the applicant at P P the trial so that the appellate court has all the information before it when it commences the consideration of the
Q application. The fact that a trial lawyer might have retired or Q
left the profession to take up office or for some other reason does not excuse the newly instructed advocate from pursuing R R such enquiries with that person.”
S 60. In the wake of the Lord Chief Justice‟s statements in this S
trilogy of authorities, it is now the duty of fresh legal representatives on T T
appeals in England and Wales to check any matters of fact that are to be
U U
V V A - 26 - A
B asserted on appeal and to certify in the perfected grounds of appeal that B
that has been done. That duty on fresh legal representatives coming into C C an appeal has been described in Court of Appeal Criminal Division:
D A Practitioner’s Guide, one of whose authors is the current Registrar of D
20 Criminal Appeals in England and Wales, as follows : E E
“Duties of fresh representatives
F F Before lodging grounds, fresh legal representatives have a duty to ensure that they have taken appropriate steps to ensure that
G any factual matters asserted therein have been verified by G independent means. This will usually always involve
ensuring that the trial representatives have verified any factual H matters asserted in the grounds of appeal before they are lodged H
(R v McCook [2014] EWCA Crim 734). It is essential that the grounds of appeal include a statement that the fresh I I representatives have complied with these duties. In addition,
if complaints are made of the trial representatives‟ conduct of J the trial, a signed waiver of privilege form from the defendant J
must also be lodged with the grounds (R v Achogbuo [2014] EWCA Crim 567. See also R v Lee [2014] EWCA Crim K K 2928).”
L L 61. We are of the view that appellate courts in Hong Kong have
hitherto perhaps not been as stringent as they should have been in dealing M M
with complaints of flagrant incompetence in which serious allegations
N N against trial counsel and/or solicitors are put forward in perfected grounds
of appeal, without any proper enquiries having been made of the previous O O
legal representatives and without any sensible consideration of whether
P P such grounds are properly arguable.
Q Q
62. At one point during exchanges with the Court, Mr McGowan
R sought to suggest that counsel on appeal putting forward a complaint of R
flagrant incompetence against trial counsel was “in the same position in a S S
trial where a defendant‟s account of something is extraordinary, but that‟s
T T what he said happened”. For the reasons articulated by Lord Thomas CJ
U 20 Court of Appeal Criminal Division: A Practitioner’s Guide (2nd edn), at paragraph 5-008. U
V V A - 27 - A
B in A(EO), we emphatically repudiate such thinking. An appeal is not a B
trial: unlike the putting of instructions at a trial, appellate counsel is C C required to make his own conscientious assessment of such allegations as
D a professional barrister before putting them forward as a “properly D
21 arguable” ground of appeal ; and no such assessment can properly be E E
made without first looking for independent confirmation of the
F allegations and consulting the previous legal representatives. F
G G 63. As the Appeal Committee of the Court of Final Appeal has
recently seen fit to remind the profession, in HKSAR v Li Xiaoxiang22, H H
where allegations of flagrant incompetence are put forward:
I I
“Any allegation of this kind inevitably requires trial counsel to forage for his or her contemporaneous notes and advice, to J J write letters and to swear affidavits or make affirmations and then, often, to subject himself or herself to cross-examination.
K Where there is substantial cause for asserting flagrant K
incompetence, this type of pressure and anxiety cannot be avoided for the assurance of a fair trial is paramount. But the L L Court of Appeal has had occasion to remark that a culture has developed in this jurisdiction “whereby allegations against other counsel are too easily made with insufficient regard, M M unless one has been at the receiving end, to the burden that is
placed on counsel (or solicitor, as the case may be) against N whom the attack is launched, and to the heavy anxiety suffered N
by a person whose competence and integrity is thereby placed under scrutiny”. We would endorse the advice of that Court O O that: “It is incumbent on appellate counsel never to advance
such allegations unless there is a palpably sound basis to do so 23 P …” .” P
Q 64. The test for a ground to be “properly arguable”, which is Q
founded upon counsel‟s duty to the court, must now be understood in R R respect of this particular ground, as requiring a “palpably sound basis” for
S any allegation to be made against former legal representatives. We have S
T T 21 Practice Direction – 4.2 “Criminal Appeals to the Court of Appeal‟, para 7(1). 22 HKSAR v Li Xiaoxiang (2018) 21 HKCFAR 272, at paragraph 31. U 23 HKSAR v Ou Jiejing [2013] 2 HKLRD 258, at paragraph 95. U
V V A - 28 - A
B difficulty in conceiving of any circumstances where this test could ever B
be met without the enquiries to which we have referred being conducted. C C
H. The new practice where flagrant incompetence is advanced as a D D ground of appeal
E E 65. From henceforth, therefore, any appellate counsel (by which
F term we include a solicitor or solicitor-advocate acting on an appeal) F
putting forward a ground of appeal alleging flagrant incompetence on the
G G part of the legal representative(s) at trial has a duty to satisfy himself that
H the ground is properly arguable, as that test has now been explained. In H
making that assessment, he will be required to look for independent and I I objective evidence to support the complaint and, in every case, unless
J there are in exceptional circumstances good and compelling reasons not J
24 to do so , make full and proper enquiries of the previous legal K K representatives at trial in relation to the complaint before articulating it as
L a ground of appeal. Simply sending the previous legal representatives a L
copy of the grounds of appeal and asking for comments will not suffice: M M
specific questions must be formulated for comment. Counsel must then
N add an appropriate certificate in the grounds of appeal themselves that he N
has complied with this duty when relying on such a ground. O O
Furthermore, a signed waiver of LPP from the applicant in respect of the
P legal representatives at trial, together with an affirmation in support of the P
complaint, must be filed at the same time as the ground of appeal. Q Q
R 66. These requirements may by comparison with previous R
practices seem onerous. But they are consonant with the seriousness S S with which appellate courts regard such allegations, the impact and effect
T 24 One obvious circumstance in which fresh solicitors and counsel cannot go back to trial counsel is T
where counsel has deceased since trial, as was the case with one of the defence counsel in HKSAR v Harpal Singh & Anor (unrep., CACC 269/2017, 13 March 2019). However, that does not mean U that enquiries should not be made of any junior or co-counsel or the solicitors concerned. U
V V A - 29 - A
B of such complaints upon any professional lawyer and the solemn duty B
upon appellate counsel not to put forward such grounds of appeal unless C C they are properly arguable.
D D
67. We recognise that such duties may take time to comply with.
E E However, the sooner they are addressed, the easier it will be for the trial
lawyer concerned to deal with the issues raised against him. The later F F
they are addressed, the more difficult it will be for the trial lawyer to
G G recollect events and the more such complaints may risk being seen as
grounds of last resort. There is, of course, nothing to prevent H H
applications to amend perfected grounds of appeal being made, once
I I appellate counsel has complied with these duties.
J J
68. We would also emphasise that the duty to put forward
K properly arguable grounds of appeal in this particular area does not end K
with the filing of grounds of appeal. If subsequent material comes to L L
light casting doubt on the applicant‟s claims, there is a continuing duty on
M M counsel to evaluate the propriety of the grounds of the complaint. It is
no part of counsel‟s duty to argue the unarguable. N N
O I. Other grounds of appeal attacking the conduct of trial lawyers O
P P 69. Not infrequently, counsel on appeal, impliedly or explicitly,
attack the conduct of the legal representatives at trial, which is said to Q Q
have affected the fairness of the trial, but in respect of which no
R R allegation of flagrant incompetence is made. We wish to make it clear
that the duties which we have set out in respect of complaints of flagrant S S
incompetence, shall also apply to any ground of appeal which seeks to
T T assert that something happened or did not happen at trial, which should or
U should not have occurred. In such a situation, fresh counsel on appeal U
V V A - 30 - A
B will also be required to make enquiries of the previous legal B
representatives as to what was done or not done, and why. Having done C C so, they are likewise required to certify in the grounds of appeal
D themselves that they have complied with this duty. D
E E 70. For example, where, on an application to adduce fresh
evidence on appeal, it is argued that there was evidence which for some F F
reason was not called or produced at trial, it is the duty of fresh counsel
G G on appeal to find out from the legal representatives at trial the reason for
it not being adduced. Where an applicant‟s previous convictions were H H
revealed in evidence and it is suggested on appeal that they should not
I I have been referred to, it would be incumbent on fresh counsel on appeal
J to find out the reasons at play at trial. Where a particular argument or J
issue was or was not advanced at trial, which is said on appeal to have K K been contrary to the applicant‟s instructions or to have resulted in an
L unfair trial, fresh counsel on appeal is obliged to make enquiries from his L
predecessor as to why he took or did not take a particular course. M M
71. We stress that these are merely examples of the types of N N
facts and circumstances which might be asserted on appeal, which oblige
O O fresh appellate lawyers to make proper enquiries of the previous legal
representatives. It is not an exhaustive list of such circumstances. P P
Q 72. It is easy, with the benefit of hindsight, to be critical of the Q
actions and decisions of trial counsel. Where the acts or omissions of R R
trial counsel are the result of the exercise of professional judgment, then
S the hurdle for establishing professional incompetence, and that the trial S
was consequently unfair, is a high one indeed. In this respect, we T T
U U
V V A - 31 - A
B remind practitioners of that which was said in Li Xiaoxiang, at paragraphs B
28-30. C C
73. Even if it is possible to show that there was fault in the acts D D
or omissions of trial counsel, it does not necessarily follow that an appeal
E 25 E will be successful. In Chan Fat Chu v HKSAR , the Court of
Final Appeal held, when discussing flagrant incompetence as a ground of F F
appeal:
G G
“It is to be noted, however, that it is not sufficient for an appellant to show that, in a particular aspect of the proceeding, H H the lawyer has fallen below the required standard. It must also be shown that what has happened has resulted in unfairness or
I injustice.” I
74. This statement echoed what had previously been said by J J
the Court of Final Appeal in its seminal judgment on this issue in
K 26 K Chong Ching Yuen v HKSAR :
L “…The expression “flagrant incompetence” rightly underlines L
an appellant‟s need to show much more than a mistake, an error of judgment, or a decision to follow one course when in M M hindsight another would have been preferable. But it should
not deflect attention from the most critical point, namely given N that there was a significant error of some kind, what will be N
decisive is the effect of the error on the trial. As Lord Steyn said, in delivering the judgment of the Privy Council in O O Boodram v Trinidad and Tobago [2002] 1 Cr App R 103:
… the general principle requires the court to focus P P on the impact of the faulty conduct. (at p.118)
The bottom line is that to succeed, an appellant must be able to Q Q show he or she received less than a fair trial. As the Appeal
Committee said in Mak Kam Chuen v HKSAR (unrep., FAMC R No 35 of 2001, [2002] HKLRD (Yrbk) 276, [2001] HKEC R
1521):
S … the ultimate question for the court is whether the S
conduct complained of has resulted in the accused
T T 25 Chan Fat Chu v HKSAR (2004) 7 HKCFAR 775, per Lord Woolf NPJ, at 782F-G. 26 Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126, per Sir Thomas Eichelbaum NPJ, at U 144G-145B. U
V V A - 32 - A
B not getting a fair trial so that the conviction is B unsafe or there is a miscarriage of justice. (at p.4)”
C C J. Conclusion
D D
75. In imposing these duties on appellate counsel, we are
E bringing our practices into line with those that have been successfully E
operating in in England and Wales. We consider that the experiences of F F
our own courts when faced, for example, with complaints of flagrant
G G incompetence mirror those of that jurisdiction and must now yield to a
swifter, more streamlined and modern approach which adequately H H
recognises the gravity of the complaint; fully informs the Court as to what
I I took place in the court below and why; and is comprehensively fair to all
parties. Hopefully, it will cause fresh counsel not to rush to judgment J J
on their predecessors‟ conduct based upon the bare assertions of their
K K clients but to stand back and make a measured and considered assessment
of the merits of the proposed ground of appeal, fully conscious of their L L
duties to the court and fully informed of the reasons underlying the
M M actions and decisions of counsel and solicitors at trial.
N N
76. Appellate counsel will no doubt also advise their lay clients
O as a matter of course of the effect of the Practice Note (Crime: Loss of O
27 Time) issued on 9 October 2013 and the Court‟s power to order loss of P P
time under section 83W of the Criminal Procedure Ordinance, Cap 221,
Q where allegations of flagrant incompetence are found to be wholly Q
without merit. R R
S S
T T
U 27 Practice Note (Crime: Loss of Time) [2013] 6 HKC 300. U
V V A - 33 - A
B K. Post-script B
C C 77. Finally, we wish to make clear that nothing we have said in
this judgment is intended to touch upon the merits of the applicant‟s D D
complaint of flagrant incompetence against his legal representatives at
E E trial, which complaint we note is being pursued by Mr Ross in his
amended grounds of appeal as the applicant‟s new counsel. That F F
complaint will be dealt with on its merits at the substantive application
G G for leave to appeal against conviction by the applicant, which is listed to
be heard on 24 October 2019. H H
I 78. This judgment concerns the actions (or inaction) of the I
applicant‟s previous legal representatives on appeal, who have now been J J
discharged, and the consequences of those actions. In addressing these
K matters, however, we have also taken the opportunity to lay down new K
procedures to be followed and duties to be complied with by appellate L L
lawyers coming into an appeal whenever a complaint of flagrant
M M incompetence is to be advanced as a ground of appeal; or whenever other
facts or circumstances occurring at trial are sought to be relied on in N N
argument at the appeal.
O O
P P
Q Q
R R
(Andrew Macrae) (Ian McWalters) (Kevin Zervos) S S Vice President Justice of Appeal Justice of Appeal
T T
U U
V V A - 34 - A
B Mr Ned Lai SADPP, Ms Hermina Ng SPP and Mr Ivan Leung SPP(Ag), B
of the Department of Justice, for the Respondent
C C Mr James HM McGowan, former counsel for the Applicant
D D Mr Mohnani Dheeraj Suresh, of Mohnani & Associates, former solicitors
for the Applicant E E
Mr Phillip Yeung, Contract Legal Aid Officer, for the Director of
F Legal Aid F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B CACC 176/2017 B
[2019] HKCA 1320
C C IN THE HIGH COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF APPEAL E E
CRIMINAL APPEAL NO 176 OF 2017
F (ON APPEAL FROM HCCC NO 74 OF 2016) F
G G
BETWEEN
H H HKSAR Respondent
and I I
古晉希 Applicant APELETE Kokou Afla ( ) J J (No 2)
K K
Before: Hon Macrae VP, McWalters JA and Zervos JA in Court L L Date of Hearing: 24 October 2019
M Date of Judgment: 24 October 2019 M
Date of Reasons for Judgment: 25 November 2019
N N
O O REASONS FOR JUDGMENT
P P Hon Macrae VP (giving the Reasons for Judgment of the Court):
Q Q
A. Introduction
R R
1. Following a trial before Toh J (“the judge”) and a jury, the S S applicant was convicted on 16 May 2017 in respect of one count of
T indecent assault on Ms X, contrary to section 122(1) of the Crimes T
Ordinance, Cap 200 (Count 1); and one count of rape of Ms X, contrary U U
V V A - 2 - A
B to section 118(1) of the same Ordinance (Count 2). On the following B
day, the judge sentenced him to an overall term of 9 years‟ imprisonment, C C also making a compensation order against him in favour of Ms X in the
D sum of HK$48,120, pursuant to section 73 of the Criminal Procedure D
Ordinance, Cap 221. E E
2. By two Form XI Notices, one filed on 14 June 2017 and the F F
other on 28 June 2019, the applicant seeks leave to appeal out of time
G 1 G against both his conviction and sentence . Although the respondent
does not oppose the granting of both extensions of time, it opposes leave H H
being granted in respect of each application.
I I
3. On 24 October 2019, having decided to grant both J J
extensions of time, we refused leave to appeal and dismissed the appeals,
K also making a “loss of time” order of 3 months against the applicant. K
We said we would give the reasons for our decision in due course. L L
These are our reasons.
M M
B. An overview of the fresh evidence sought to be adduced by the N applicant; and the respondent’s position N
O 4. As a result of the argument put forward under Ground 1, O
which concerns a complaint by the applicant of flagrant incompetence P P
against both his counsel and instructing solicitor at trial, no less than
Q 12 affirmations/affidavits (as italicised below) have been filed with the Q
Court. Whilst we shall deal with some of their contents in greater detail R R
later, it may be useful at the outset of our judgment to set out the
S essentials of what the new evidence comprises. S
1 T The delays in lodging the applicant‟s two Form XIs were one day in respect of conviction, and T more than two years in respect of sentence. In his 4th affidavit, dated 6 August 2019, the applicant explained, at paragraph 3, that he had not wanted to take the risk of serving a longer
sentence should his appeal against sentence fail. U U
V V A - 3 - A
B 5. By a Notice of Motion dated 18 September 2019, the B
applicant sought leave to adduce the following evidence at the appeal, C C pursuant to section 83V of the Criminal Procedure Ordinance:
D nd D (a) 2 affidavit of the applicant, undated but apparently signed
2 E on 5 June 2019 ; E
rd F (b) 3 affidavit of the applicant, dated 23 July 2019; F
th G (c) 5 affidavit of the applicant, dated 16 September 2019; G
(The applicant‟s complaints against his legal representatives H H st were made in the three affidavits above. His 1 affidavit,
I I which was entitled an affirmation, dated 14 June 2017, was
related to his explanation for the delay in lodging his leave J J
application in respect of conviction; whilst his 4th affidavit,
K K dated 6 August 2019, related to his explanation for the delay
L in lodging his leave application in respect of sentence.) L
M (d) Affirmation of Nathalie Pasquier, dated 16 September 2019; M
N (Ms Nathalie Pasquier (“NP”) is the interpreter retained by N
the fresh solicitors for the applicant. NP met the applicant O O on 6 occasions between July and September 2019 (beginning
P some 26 months after the date of his sentence) and gave her P
opinion that he could understand French.) Q Q
(e) Affirmation of Chu Yan Ting Frances, dated 17 September R R
2019;
S S (Ms Chu Yan Ting Frances (“CYTF”) specialises in
computer forensics and compiled a report on the WhatsApp T T
2 3rd affidavit of the applicant, para 3. U U
V V A - 4 - A
B conversations on the applicant‟s mobile telephone from B
11 February to 9 May 2017, which were exchanged within a C C WhatsApp group called “Apelete‟s case”, whose members
D comprised the applicant, his wife and his legal D
representatives at trial.) E E
(f) Affirmation of Mahesh Nanik Dayaram, dated 17 September F F
2019;
G G (Mr Mahesh Nanik Dayaram (“MND”), whose first language
is English3, first met the applicant in October 2017, but has H H
become good friends with him since early 2018 4 . He
I I claimed that when they first became acquainted, the
J applicant‟s standard of English was “extremely poor”, and J
sometimes a common friend was needed to translate from K 5 K either the applicant‟s French or his native tongue ).
L L (g) Affidavit of Fangnikoue Komabou Ayao, dated 18 September
M 2019. M
(Mr Fangnikoue Komabou Ayao (“FKA”), a software N N
engineer living in Hong Kong, was born in Lomé in Togo.
O O He sought to compare the differences in grammar and
vocabulary between Togolese Ewe and Ghanaian Ewe, and P P
the different meanings arising from the differences in
Q 6 Q pronunciation and tone . His conclusion was that the
applicant would have difficulty in understanding someone R R 7 speaking Ghanaian Ewe .)
S S
3 Affirmation of MND, para 1. 4 Affirmation of MND, para 11. T 5 T Affirmation of MND, paras 2-3. 6 Affidavit of FKA, para 13.
7 Affidavit of FKA, para 14. U U
V V A - 5 - A
nd rd B 6. In the light of the matters set out in the 2 , 3 and B
th 5 affidavits of the applicant, the Court directed the legal representatives C C at trial to file evidence in response. Such evidence included:
D D (a) Affirmation of trial counsel, dated 8 October 2019;
E E
(b) Affidavit of the trial solicitor, dated 8 October 2019;
F F
(c) Affirmation of the solicitor’s clerk, dated 8 October 2019;
G G
(d) Affirmation of Lau Lap Huen, dated 8 October 2019.
H H
(Mr Lau Lap Huen (“LLH”) was a private investigator
I instructed by the applicant‟s wife to check whether Ms X I
had any history of setting up “sex traps for the purpose of J J 8 blackmailing for money” ; the investigation yielded no
K result.) K
L L 7. By another Notice of Motion, dated 15 October 2019,
th M the 6 affidavit of the applicant, dated 14 October 2019, was filed in M
reply to the response of the legal representatives at trial. N N
8. In its written submissions, the respondent indicated its O O
objection to the admission of the affidavits/affirmations set out at
P P paragraph 5(d)-(g) above, on the following grounds:
Q Q (a) NP and MND were not in any position to comment on the
applicant‟s spoken English and/or French language ability R R
prior to or at the time of the trial;
S S
(b) CYTF, by not referring to the missing audio messages in her
T T forensic report, did not disclose the full picture;
8 Affirmation of LLH, para 4. U U
V V A - 6 - A
B (c) FKA‟s purported expertise in linguistic matters was B
disputed. C C
9. It will immediately be noted that no evidence was put D D
forward by the applicant in support of his claims from his wife, who is a
E E local Chinese woman, or from the Ewe interpreter at trial, whom the
applicant claims he was unable to understand. As will become apparent, F F
these two persons were vital in ascertaining the viability of the allegation
G G of flagrant incompetence by the applicant.
H H
C. Prosecution case
I I
10. In August 2014, Ms X, who is from the Philippines, came to
J J work for the applicant and his wife. Ms X described her relationship
K with the applicant and his wife prior to the incident as good. She K
communicated with both of them in English. L L
11. Ms X testified that the applicant would normally leave home M M
to go to work between 7 and 8 am, while his wife would usually leave
N N between 8 and 9 am. Although his wife would generally return home
between 8 and 9 pm, the applicant would come home at different times; O O
however, on 25 August 2015, he returned home at about 1 pm, which was
P P unusual. Initially, he sat on the sofa in the living room watching
television, while Ms X went about her work in the flat. Q Q
R 12. At about 2 pm, the applicant called Ms X into the living R
room from the kitchen and asked her if she wanted to have a boyfriend in S S
Hong Kong. Ms X said that she did not want a boyfriend, to which the
T applicant responded “I want you. I want you to be my girlfriend”. When T
she heard this, Ms X said she was nervous and, after declining his U U
V V A - 7 - A
B suggestion, she returned to the kitchen. The applicant then came into B
the kitchen and told her that if she would be his girlfriend, he would C C support her and her children, as well as her family. He came towards
D her but she told him again that she did not want to be his girlfriend and D
reminded him that the CCTV camera in the flat was operating. The E E
applicant, however, said that he had already switched the system off.
F After asking Ms X to look at him, he returned to the living room. F
G G 13. Sometime later, when Ms X was cleaning the bathroom, the
applicant came to the doorway and said again “I want you. I want you H H
to be my girlfriend”. He then closed the door and leant against the
I I inside of the door. Ms X said that she was very nervous and started to
J cry, worried that she might not have a job any more. The applicant J
repeated his promise to look after her and her family, to which Ms X K K responded that she was happy with her salary and did not want anything
L more. Thereupon, the applicant started to kiss Ms X from her face down L
to her breasts, at which she crossed her arms to prevent him touching the M M area of her breasts. The applicant, however, removed her arms and
N hands from her breasts and held them tight, preventing her from leaving. N
He then sat on the toilet and forcibly pulled Ms X onto his lap. He O O pulled up her T-shirt, undid her bra and kissed her breasts.
P P
14. The applicant then picked Ms X up and sat her on the sink
Q Q unit in the bathroom, where he again kissed her from her face to her
breasts. The judge was later to observe that Ms X was about 5 feet tall R R 9 and weighed less than 100 pounds . Ms X tried to get down and leave
S S the bathroom, but the applicant blocked her exit. He told her that if she
wanted to leave, she had to hug him first. Ms X then reluctantly hugged T T
9 AB p 259C. U U
V V A - 8 - A
B the applicant. The applicant left the bathroom and Ms X immediately B
went to her bedroom, intending to take a bath, since she felt dirty and C C sticky. However, the applicant followed her into her room and said that
D he wanted to kiss her again. She noticed that he had removed the shirt D
he had previously been wearing and was now only wearing a pair of E E
black shorts. He took hold of Ms X and kissed her, undid her bra again
F and undressed her before placing her forcefully on the bed. Ms X tried F
to cover the buttons of her own shorts with her hands, but the applicant G G
pushed her hands away and removed her shorts and pants. Although she
H tried to keep her legs together, the applicant forced them apart. He then H
had sexual intercourse with her. The applicant subsequently removed I I
his penis and wiped it before going into the bathroom. PW1 was not
J able to say whether he had ejaculated or not during the encounter. J
K K 15. Ms X immediately contacted a Filipina friend called Razel
L and told her what had happened, before going to the bathroom to clean L
herself. When she came out, she contacted Razel again. M M
16. Ms X then resumed cleaning the bathroom, at which point N N
the applicant again spoke to her, saying that he would send money to her
O O family and asking her not to show his wife how sad she was. By this
time, Ms X was crying continuously. Having completed her chores, she P P
spoke again with Razel.
Q Q
17. A number of missed telephone calls between Razel and Ms R R
X, as well as Facebook messages and their contents passing between the
10 S two of them, were admitted at trial by way of Admitted Fact evidence . S
T T
10 Admitted Facts, paras 1-8: AB pp 9-12. U U
V V A - 9 - A
B 18. Later the same day, a report was made to the police, as a B
result of which a party of police officers arrived at the applicant‟s flat at C C 7:52 pm. PW3, the arresting officer, testified that Ms X opened the door
D and rushed out, crying and in obvious distress. The applicant was D
arrested and cautioned, upon which he said, in English, “We both agreed E E
before have the sex together”. His answer was recorded in the officer‟s 11 F police notebook , which was subsequently admitted into evidence as F
12 Exhibit P7 . G G
D. Defence case H H
I 19. The applicant elected not to testify, nor did he call any I
witnesses on his own behalf. Nevertheless, as may be discerned from J J
cross-examination conducted on his behalf, his case was that he and Ms
K X had been having an affair for some time, during which she had K
borrowed money from him from time to time; sometimes $500, L L 13 sometimes $1,000 . It was accepted that the applicant and Ms X had
M M touched each other intimately and had sexual intercourse on the day in
question, but such sexual activity was said to be consensual, after which N N
she demanded $100,000 to leave and not tell anybody about what had
O 14 O happened . However, the applicant refused to pay.
P P
Q Q
R R
S S
11 Exhibit P7A: AB p 43. 12 T The applicant did not challenge the admissibility of his answer to caution or the notebook, which T was produced in evidence by PW3. 13 AB p 90C-F.
14 AB p 86J-K. U U
V V A - 10 - A
B E. Summing-up B
C C 20. The judge began her summing-up by contrasting the
respective versions of events for the prosecution and defence. She D D 15 reminded the jury that :
E E
“…it was put to Madam X that the sexual intercourse was with the full consent of Madam X and that in fact this was not the F F first time and their sexual liaison had begun since before they moved to Kingston Terrace and that she did the sexual act with the defendant for money. If you think that what the defendant G G alleges was true or may be true then you have to acquit”.
H H She then directed them that “the real issue you have to decide was
16 I whether [Ms] X did give her consent” . I
J J F. The allegation of flagrant incompetence (Ground 1)
K 21. There is considerable factual dispute between the applicant‟s K
account of what happened and that of counsel, the solicitor and the L L
solicitor‟s clerk at trial in response. Whilst not exhaustive, the essence
M of the allegations and the response to them may be summarised as M
follows. N N
O F.1 The applicant’s complaints against his legal representatives O
P P 22. The applicant has averred that he began an affair with Ms X,
without the knowledge of his wife, in 2015 and had consensual sexual Q Q
intercourse with her on some six or seven previous occasions. However,
R R he had not had sexual relations with her on the date of the alleged
offences17. Normally, after having sexual intercourse with Ms X, she S S
would demand money from him. He had paid her initially, but later
T 15 T AB p 15A-E. 16 AB p 16E-F.
17 2nd affidavit of the applicant, paras 9-10. U U
V V A - 11 - A
B refused to pay. On 25 August 2015, the applicant was granted sick B
leave because of an injury to his finger. Accordingly, he returned home C C in the afternoon, whereupon Ms X repeated her demand for money and he
D again refused. It was asserted that because of his refusal, Ms X had D
made a false accusation against him to the police. E E
23. In respect of his legal representatives, the applicant said that F F
since they insisted on holding the conferences in the presence of his wife,
G G save for the initial meeting in Tuen Mun Police Station after his arrest, he
had no opportunity to disclose to them what had actually transpired H H
between himself and Ms X18. Although he denied having had sexual
I I intercourse with Ms X on 25 August 2015, his trial counsel had
J proceeded to defend his case on the basis that consensual sexual J
intercourse had taken place on the day in question; of which fact he was K 19 K not aware until after trial, because of his poor English .
L L
24. According to the applicant, his legal representatives had
M M required the presence of his wife at conferences so that she could interpret
20 for him into English what was being said to her in Cantonese . He N N
claimed that during his first conference with his counsel and solicitor in
O 21 O counsel‟s chambers, he had indicated that he could speak French .
Nevertheless, no French interpreter was ever arranged for him by his then P P
legal representatives.
Q Q
25. The applicant said that there was nothing from his legal R R
representatives to show that they had taken any written instructions as to
S S
18 2nd affidavit of the applicant, paras 11 and 23. T 19 th T 5 affidavit of the applicant, para 23. 20 2nd affidavit of the applicant, para 23.
21 2nd affidavit of the applicant, para 24. U U
V V A - 12 - A
22 B his defence before the actual start of the trial . In fact, nothing was B
discussed concerning his defence, even on 12 May 2017. During a visit C C from his legal representatives to the cells before the court sat that
D morning, no instructions concerning his defence were taken. Instead, D
counsel had told him that he would apply for the case to be re-fixed since E E
the defence were not ready for trial and, if the court refused the request,
F he would withdraw from representing the applicant. Accordingly, F
counsel‟s attendance note of that particular conference in the cells did not G G 23 reflect what had actually happened .
H H
F.2 The response from the legal representatives at trial
I I
26. Trial counsel stated in his affirmation that he considered that J J
from their first meeting together, the applicant could speak fluent
24 25 K English ; he had never told them that he could speak French . Counsel K
set out the chronology of his meetings with the applicant, citing two L L
occasions when the applicant had come without his wife, the applicant
M M having been advised not to bring his wife because of the nature of the
26 discussions . Counsel went on to state that, whilst the applicant‟s N N
instructions had changed on no less than 10 occasions, he had
O O consistently accepted that he had sexual intercourse with Ms X on the
date of the alleged offences 27 . His instructions were not finalised P P
because they were constantly changing, and also because the applicant
Q Q was hospitalised just before the trial was due to begin. However, written
instructions were signed by the applicant on 12 May 201728. R R
22 th S 5 affidavit of the applicant, paras 19-20. S 23 th 5 affidavit of the applicant, para 20. 24 Affirmation of counsel, para 3. 25 Affirmation of counsel, para 10. T 26 T Affirmation of counsel, para 22. 27 Affirmation of counsel, para 19.
28 Affirmation of counsel, para 20. U U
V V A - 13 - A
B 27. Both the applicant‟s solicitor and solicitor‟s clerk at trial B
confirmed in their respective affirmations that they had no difficulty in C C understanding the English spoken by the applicant throughout their
29 D several conferences . The solicitor‟s clerk further produced various D
30 31 WhatsApp text messages and voicemail messages to demonstrate E E
that the applicant could speak English. Both he and the solicitor averred
F that no one in their legal team had ever insisted that the applicant‟s wife F
32 be present at any of the meetings . G G
G. Grounds of appeal H H
I G.1 Grounds of appeal against conviction I
J J 28. Mr Ross, counsel on behalf of the applicant at this appeal,
K has advanced five grounds of appeal against conviction, namely: K
L Ground 1 L
M M Both the applicant‟s counsel and solicitor at trial were flagrantly
incompetent, in the following respects: N N
i. They failed to engage any interpreter when taking O O
instructions from the applicant, relying merely on the
P P applicant‟s wife to interpret what he said in English so that
they could understand; Q Q
ii. They failed to take written instructions on the applicant‟s R R
defence before trial, resulting in Ms X being cross-examined
S S
29 Affirmation of the solicitor, para 5; Affirmation of the solicitor‟s clerk, para 7. T 30 T Affirmation of the solicitor‟s clerk, para 7 and Exhibit 2. 31 Affirmation of the solicitor‟s clerk, para 6 and Exhibit 1.
32 Affirmation of the solicitor, para 12; Affirmation of the solicitor‟s clerk, paras 8-9. U U
V V A - 14 - A
B on the erroneous basis that consensual sexual intercourse had B
taken place on the day in question; C C
iii. They failed to inform the court that the applicant could D D accept a French interpreter.
E E
Ground 2
F F
The applicant was deprived of a fair trial because the judge refused
G G to provide him with a Togolese Ewe interpreter, as distinct from a
Ghanaian Ewe interpreter; as a result, he could not fully understand the H H
interpretation given by the court interpreter.
I I
Ground 3 J J
The judge failed to direct the jury that if they found the explanation in the K K
applicant‟s answer to caution that he had consensual sexual intercourse
L with Ms X was or might be true, they must acquit him of both counts. L
Instead, the judge had directed the jury that there was “no evidence from M M 33 the defence” to undermine, contradict or explain the evidence put
N N before them by the prosecution, thus rendering his answer to caution
nugatory. O O
P Ground 4 P
Q The judge‟s directions on the drawing of inference were inadequate. Q
R Ground 5 R
S S
T T
33 AB p 28M. U U
V V A - 15 - A
B The judge failed to direct the jury that if they were not sure Ms X‟s B
distressed condition was genuine, such a finding was capable of C C undermining Ms X‟s credibility.
D D
G.2 Grounds of appeal against sentence
E E
29. It was argued that the judge was wrong to have enhanced the F F
sentence passed on the applicant for delaying the proceedings without
G making any finding that the delay was intentional. Further, both G
sentences were manifestly excessive by reference to other cases where H H
lower starting points had been adopted. Accordingly, the resulting
I sentences, both individually and cumulatively, were manifestly excessive. I
J J H. Respondent’s submissions
K K
H.1 The respondent submissions (on conviction)
L L
30. In relation to Ground 1, Mr Lai, with him Ms Ng, for the M M respondent, submitted that the suggested need for having the applicant‟s
N wife present in the conferences was absurd: the legal representatives N
could simply converse, and evidently did converse, with the applicant O 34 O directly in English . Moreover, if the applicant had felt embarrassed
P about giving instructions to his legal representatives in the presence of his P
35 wife, he was perfectly able to do so privately . Mr Lai said it was Q Q
self-evident that the applicant was proficient in English and had no
R difficulty in communicating with his legal representatives in English, as R
36 the WhatsApp text and voicemail messages made quite clear . S S
T 34 T Respondent‟s written submissions, para 16(3). 35 Respondent‟s written submissions, para 18.
36 Respondent‟s written submissions, para 16(5) and (6). U U
V V A - 16 - A
B 31. In relation to Ground 2, Mr Lai submitted that, faced with B
the applicant‟s request for an interpreter, the judge took sufficient C C measures to ensure that his constitutional right to the free assistance of an
D interpreter was not violated, and his right to a fair trial not thereby D
compromised. In any event, the applicant did not make any complaint at E E
any stage of the trial to either the court or his counsel or solicitor that he
F had any difficulty in understanding the proceedings. F
G G 32. In relation to Ground 3, the respondent submitted that the
judge‟s reference to “no evidence from the defence”, when read in its H H
proper context, would have been taken to mean that there was no oral
I I testimony from the applicant to contradict the prosecution case. The
J judge‟s directions were fair to the applicant in their overall effect. J
K 33. In respect of Ground 4, it was pointed out that the evidence K
on which the prosecution relied to prove lack of consent in relation to the L L
two counts came directly from Ms X herself. There was no
M M circumstantial evidence capable of proving her lack of consent and no
need for any direction on inferences. N N
O 34. In relation to Ground 5, Mr Lai invited the Court to note that O
PW3 was not cross-examined on her description of Ms X‟s distress, nor P P
was it put to her or Ms X, nor suggested in defence counsel‟s closing
Q speech to the jury, that such evidence might have been feigned. And nor Q
had counsel suggested to the jury that if they had a reasonable doubt R R
about the genuineness of Ms X‟s distressed condition, they should
S disbelieve her altogether. Moreover, there was no legal requirement for S
the judge to give such a direction. T T
U U
V V A - 17 - A
B H.2 The respondent’s submissions (on sentence) B
C C 35. Mr Lai contended that the judge could not be criticised for
taking into account the delay in the start of the trial, for which the D D
applicant was entirely responsible, and the additional anxiety such delay
E E would have occasioned Ms X, who had been brought from overseas to
give evidence. He also submitted that the overall criminality of the F F
applicant was higher than that of the applicant in HKSAR v Chan Tung
G 37 G Hing , which was relied upon in this appeal, but which involved a single
count of rape only. He accepted that whilst the sentence of 4 years‟ H H
imprisonment on Count 1 may, when viewed in isolation, have been on
I I the high side albeit not manifestly excessive, it did not matter, since the
J sentence was made wholly concurrent with the much longer sentence on J
Count 2. K K
I. Discussion L L
M I.1 Ground 1 (flagrant incompetence) M
N N 36. Although there are no less than six affidavits/affirmations
from the applicant (four of them dealing with the allegation of flagrant O O
incompetence), the final one being a reply to the evidence filed by the
P P legal representatives at trial, as well as four affidavits/affirmations
purportedly in support of his claims from different witnesses, the Q Q
allegations against counsel and his solicitor under Ground 1 are in fact
R R very limited. First, it is said that instructing solicitors had never
engaged any interpreter when taking instructions from the applicant, S S
instead relying on the applicant‟s wife to translate what he said in English
T T to enable counsel and solicitor to understand. Secondly, no written
37 HKSAR v Chan Tung Hing [2010] 3 HKC 304. U U
V V A - 18 - A
B instructions as to the applicant‟s defence were taken before trial. It is B
said that his case was that he did not have sexual intercourse with Ms X, C C nor did he indecently assault her, on 25 August 2015, yet his counsel had
D cross-examined her on the basis that consensual sexual intercourse had D
taken place on that day. Thirdly, it is complained that his legal E E
representatives had not informed the court that the applicant could accept
F a French interpreter. F
G G 37. When the appeal commenced, we were informed by Mr Ross
that he intended to call all five deponents of the affidavits/affirmations as H H
witnesses, including the applicant, notwithstanding that the Court had
I I been supplied with no less than 541 pages of affidavit/affirmation
J evidence (including exhibits) from the parties. Furthermore, he also J
wished to play to the Court the WhatsApp voicemail messages between K K the applicant and trial counsel, which had first been disclosed in the
L affirmation of the solicitor‟s clerk. We pause here to note that one of L
the rather telling points made by Mr Lai, on behalf of the respondent, was M M that neither the applicant nor any of his witnesses had ever referred to the
N existence of such voicemail messages. N
O O 38. When, at the outset of the appeal, we queried what Mr Ross
hoped to achieve by calling oral evidence, he gave the following reasons. P P
First, so far as the applicant was concerned, Mr Ross wished to play the
Q Q WhatsApp voicemail messages to him and ask him to comment on them,
since that had not been done as part of any affidavit. With respect, we R R
were quite able to draw our own conclusions from listening to this
S S evidence, which we agreed should be played in open court.
T T
U U
V V A - 19 - A
B 39. Secondly, Mr Ross wanted the applicant to explain how his B
nd 2 affidavit had been executed in English without an interpreter. We C C were not in the least troubled by this matter. Clearly the affidavit would
D have been prepared in English on instructions and it is not suggested that D
its contents do not reflect what the applicant said or meant. We have E E
certainly not made use of the absence of any formal proof of translation
F to demonstrate that the applicant‟s English was good enough to sign a F
legal document prepared on his instructions. G G
40. Thirdly, Mr Ross wished to call the applicant and NP to H H
explore whether the applicant‟s French had improved or not by the time
I I she came to interpret for the fresh solicitors from 18 July 2019 onwards.
J However, it has never been in dispute that the applicant speaks, to use the J
nd language of his 2 affidavit, “some French”. The issue before this K K Court is whether his counsel and solicitor at trial were flagrantly
L incompetent in not informing the trial court that the applicant could L
accept a French interpreter; particularly when, on the applicant‟s own M M case, he had only mentioned the matter once, on 30 August 2015, almost
N 21 months before the trial took place. N
O O 41. Fourthly, Mr Ross wanted to ask the applicant and MND
whether the applicant‟s English had improved or deteriorated since MND P P
started translating documents for him in prison. Inasmuch as we
Q Q understood this extraordinary reason at all, we were far more interested in
things as they stood at the time of trial than when the two men first R R
became friendly in prison in December 2017, some seven months after
S S the trial had concluded. In this connection, we should register our
strong disapprobation that MND‟s affirmation had been placed before us T T
without revealing that he was a prisoner serving 10 years‟ imprisonment
U U
V V A - 20 - A
B in respect of nine counts of conspiracy to defraud; a fact which this Court B
itself had discovered, one of its members having sat on MND‟s appeal to C 38 C the Court of Appeal . Even Mr Ross did not know that MND had
D previous convictions for dishonesty; although he did know that MND had D
not wished to disclose in his affirmation that he was a serving prisoner, E E
and yet sanctioned this serious omission from his affirmation. We
F consider it regrettable that an affirmation should have been placed before F
us without the deponent disclosing something as fundamental, important G G
and relevant as a criminal record for dishonesty.
H H
42. Fifthly, Mr Ross said that he wished to call FKA, a software
I I engineer living in Hong Kong, who had, we were subsequently informed,
J briefly encountered the applicant before these proceedings, to explain the J
linguistic differences between Togolese Ewe and Ghanaian Ewe. K K However, these had been fully described in his affidavit. Accepting that
L there are differences, we are not concerned with theoretical distinctions L
between languages or dialects: we are concerned with whether the M M applicant understood the proceedings sufficiently to have received a fair
N trial. N
O O 43. This led to Mr Ross‟s final point that he also wished to ask
the applicant why he did not object to the Ewe interpretation during the P P
actual trial. With respect, this was an obvious matter which lent itself to
Q Q be dealt with by way of affidavit. Yet, it never was.
R R
44. It thus became apparent that the real purpose of wishing to
S call live evidence before this Court was to repeat and reinforce the S
contention that the applicant did not understand English sufficiently and T T
38 HKSAR v Nanik Dayaram (Unrep., CACC 274/2015, 19 January 2017). U U
V V A - 21 - A
B had not received a fair trial because he was unable to communicate B
properly with his lawyers and did not understand either English or the C C Ewe language interpreted by the court interpreter at trial, which was
D different to the Ewe language he spoke. Further, he was never provided D
with a French interpreter, whom he would have understood. There is E E
clearly a conflation of Grounds 1 and 2 in this regard.
F F
45. Having adjourned to consider the application, we decided
G G that we were not prepared to permit oral evidence to be called on any of
the bases proposed by Mr Ross. Not only did his suggested purpose in H H
calling the witnesses not directly address the allegations of flagrant
I I incompetence levelled at trial counsel and his instructing solicitor or, if it
J could be said to have engaged the issue peripherally, it was unnecessary J
to give oral evidence given that these matters had been fully engaged and K K explored by way of 12 affidavits or affirmations (leaving aside two of the
L applicant‟s affidavits which dealt with his applications to appeal out of L
time). As for the applicant‟s linguistic abilities, oral evidence could not M M take us any further than that which had been stated by way of
N affidavit/affirmation. We could not see any profit in the applicant N
listening to, and then commenting upon, his utterances in various O O WhatsApp voicemail messages, from which we could judge the standard
P of his English for ourselves. Ultimately, we considered it more P
desirable that Mr Ross make submissions on the existing evidence, which Q Q
we were prepared to receive on a de bene esse basis.
R R
46. We must stress that the Court of Appeal is not a court of trial.
S S It rarely receives fresh evidence, still less oral evidence, unless it
considers it necessary or expedient in the interests of justice in T T
accordance with the narrow parameters of section 83V of the Criminal
U U
V V A - 22 - A
B Procedure Ordinance. How it determines the scope of its enquiry where B
flagrant incompetence is alleged, and the methods by which it may C C receive evidence in any such enquiry, is a matter for this Court, not for
D the applicant. For any evidence to be admitted on appeal in any form it D
must be relevant and credible, and otherwise admissible. E E
47. However, as we have indicated, we did permit Mr Ross to F F
play any relevant recordings of the WhatsApp voicemail messages he
G G considered necessary, and we accordingly listened to those in open court.
H H
48. It will be convenient if we address the question of the
I applicant‟s linguistic abilities (or disabilities) first, since the resolution of I
this issue impacts not only on Ground 1, and his apparent difficulties in J J
communicating with his solicitor and counsel, resulting in an alleged lack
K of proper instructions being taken and the putting of an incorrect defence K
case to Ms X; but also on Ground 2, and the applicant‟s alleged inability L L
to understand the proceedings through the Ewe interpreter provided to
M M him.
N N 49. Whilst we, of course, accept that the applicant‟s
O mother-tongue is Ewe as spoken in Togo, from which country he came to O
Hong Kong in 2006, we unreservedly reject the claim that the applicant P P
was unable to understand either his lawyers or the proceedings, whether
Q in English or in Ewe. Q
R R 50. The applicant had been in Hong Kong by the time of his trial
for over a decade. He had chosen Hong Kong in order to claim asylum S S
and had subsequently married a local Chinese woman in 2012. A child
T T was born in the following year. He did not speak Cantonese and
U U
V V A - 23 - A
B communicated with his wife in English. At the time of his arrest, he was B
working for an Australian construction company, which required him to C C use English at work. As we have already noted, he also communicated
D with Ms X in English. Accordingly, the language the applicant used in D
his daily life both at home and at work was English. E E
51. As for his communications with his legal representatives at F F
trial, their evidence was clear that they had understood each other
G G perfectly well. The applicant‟s trial counsel described the applicant as
speaking fluent English despite his foreign accent. The applicant‟s H H
claim that his English was poor, that he could not understand much
I I English and that he could not express himself well in English was
J described by the trial solicitor in emphatic terms, as “absolutely not true”; J
while the solicitor‟s clerk recalled that since their first meeting, the K K applicant had never complained that he could not understand English, nor
L did he or the legal team have any difficulties in understanding the L
applicant‟s English. M M
52. These statements by the legal representatives are borne out N N
by what the court was told at various times in the course of pre-trial
O O proceedings. A letter from the solicitors to the Registrar on
14 March 2016 informed the court that “the trial of the above case is P P
preferred to be conducted in English”. The trial was duly fixed by the
Q Q listing judge for five days from 8 May 2017. No interpreter was ordered,
because none was requested. The first mention of a need for any R R
interpreter at all was at the pre-trial review hearing before the judge on
S S 2 March 2017, in which counsel informed the court that his solicitors had
just received instructions “a couple of days ago” that the applicant would T T
need an Ewe interpreter at trial. The judge, no doubt taken aback by this
U U
V V A - 24 - A
B sudden development, pointed out that no interpreter had been requested B
39 for any of the previous proceedings . Nevertheless, she said that the C C court would try its best to locate an interpreter, but that it might delay the
D trial which was only two months away. Counsel then explained to the D
40 court : E E
“Yes, because we‟ve always communicated in English and it
F seems to us that he can speak English quite well but he told F us … shortly before his mother language is Ewe, so in his
interests … I think we are best to have an Ewe interpreter …” G G
53. With the trial scheduled to commence on Monday, H H 8 May 2017, there was an application on Friday, 5 May 2017 for the
I applicant‟s bail to be varied in order to allow him to take possession of I
his passport so that he could apparently present it to two financial J J
institutions in Tuen Mun. After the judge had dealt with that matter,
K counsel told the court that the applicant would need an interpreter who K
spoke Ewe as spoken in the region from which the applicant came in L L
Togo, rather than the Ewe spoken by the current interpreter who spoke
M Ewe from Ghana. Having pointed out that no application had hitherto M
been made for any particular strain of Ewe, the judge took the N N
opportunity to ask the Ewe interpreter whether there were any differences
O between the two forms of Ewe. The interpreter told the judge that there O
41 were “a few variations” . He nevertheless agreed that, while there were P P 42 differences in the use of “technical terms” and “a few things are
Q 43 Q different” , “Ghanaian Ewe was closest to Togo Ewe”. He
acknowledged that “those who live around the border with Togo, then R R
39 S It may be noted that at each of his five appearances before the magistrates‟ court (27 August 2015, S 20 October 2015, 18 November 2015, 24 December 2015 and 5 February 2016), no interpreter was
either used or requested by the applicant. 40 Transcript of pre-trial review hearing of 2 March 2017, at 5H-J. T 41 T AB p 182O-P. 42 AB p 183A.
43 AB p 183H. U U
V V A - 25 - A
B their Ewe is slightly different from what I speak, so he may understand. B
44 But I don‟t know anybody who could do that” . C C
54. When the trial commenced on 8 May 2017, the applicant D D
was absent, having been hospitalised the previous day. He was similarly
E E absent on 9 May 2017, as a result of which the judge, conscious that the
principal witness had been flown from the Philippines and was waiting to F F
give her evidence, revoked the applicant‟s bail and ordered that he be
G G taken into custody in Queen Elizabeth Hospital for a comprehensive
medical assessment. The judge also indicated to counsel that when the H H
trial began, the applicant could choose which of the two Ewe interpreters
I 45 I he was “more comfortable with” . She also directed that all counsel
J should keep their questions short and simple so that they could be easily J
46 translated . K K
55. The applicant was again absent on 10 May 2017. We shall L L
have something to say about these absences later. On 11 May 2017, the
M M applicant appeared in court, as did the two Ewe interpreters as directed.
It was pointed out by one of the interpreters in the course of proceedings N N
following arraignment that the other interpreter, a Mr Adjorlolo, would be
O O the better interpreter for “explaining the technicalities of the
proceedings”47, since he was a native Ewe speaker48. Mr Adjorlolo then P P
told the court, which we find of some interest, that when the applicant
Q Q spoke to him, the interpreter understood him clearly, yet when the
R R
S S
44 AB p 184F-G. 45 AB p 207T. T 46 T AB p 208A-B. 47 AB p 215J.
48 AB p 215H. U U
V V A - 26 - A
B interpreter asked the applicant questions, the applicant apparently did not B
49 50 understand him . The interpreter voiced this concern : C C
“… I‟m just wondering how this process can go on and the sanctity of the whole case if he keeps on insisting that he D D doesn‟t understand what I‟m saying.”
E 51 E 56. In response, the judge then said this :
F “Yes. I quite understand. I did notice that you understood F
everything he said, that he claims not to understand you. But we are providing him with an Ewe interpreter, on top of the fact G G that all the evidence will be translated into English. He‟s been
living in Hong Kong, he‟s been working in Hong Kong, he H understands English too. So he will actually have the benefit H
of two translations. So I don‟t think that is a matter that should delay the trial, Mr Adjorlolo. Don‟t worry, we will try I I --- we will make it as simple as possible, all right, the questions and the answers. There isn‟t very much confusion in the
J evidence, all right. Thank you, Mr Adjorlolo.” J
K 57. In our judgment, the judge was absolutely right. It should K
be remembered that there was essentially only one witness for the L L prosecution who was contentious; the other two witnesses (PW2 and
M PW3) were not even cross-examined by the defence. The evidence of M
Ms X, who was PW1 at the trial, lasted from 2:59 pm on Thursday, 11 N N May to 3:43 pm on Friday, 12 May 2017; indeed, her cross-examination
O was completed by 12:44 pm on the Friday. Counsel‟s speeches were O
delivered on Monday, 15 May and the summing-up commenced on P P
Tuesday, 16 May 2017. The verdicts were delivered on the same day.
Q It was an extremely short case with a very simple issue. That issue, as Q
the judge rightly emphasised at the outset of her summing-up, was R R
consent. There was nothing complicated about the case and there were
S no technicalities involved in the evidence. Nor on a full reading of the S
T 49 T AB p 215P-R. 50 AB p 216B-C.
51 AB p 216D-H. U U
V V A - 27 - A
B transcript was there anything complex about the evidence or the terms or B
language used. We are in absolutely no doubt that the applicant would C C have known exactly what the case against him was and what Ms X was
D saying in her evidence, whether he listened to the Ewe interpreter or the D
English translation of Ms X‟s evidence. Indeed, nowhere in his entire E E
set of affidavits has he actually averred that he did not understand what
F she was saying. The closest he has come is to claim, belatedly some F
three days before the re-amended grounds of appeal were filed, and in G G
general and non-specific terms, that he “did not understand what was
52 H going on in the trial” , which was plainly untrue. H
I I 58. We found the WhatsApp voicemail messages rather
J devastating support for the evidence of the three members of the J
applicant‟s legal team that they and the applicant understood each other K K perfectly well. Having listened to those recordings ourselves, we had no
L difficulty in understanding the applicant‟s English at all. Indeed, we L
characterised our impression of the applicant‟s English to Mr Ross during M M the argument as not in any way hesitant, but smooth and intelligible. He
N did not disagree, but retorted that we did not know whether his wife N
might have been standing next to the applicant at the time telling him O O what to say. With respect, such an answer, for which Mr Ross took no
P instructions before uttering it, was unworthy of any advocate appearing P
before the Court of Appeal and was as fanciful and devoid of common Q Q
sense as the ground of appeal itself.
R R
59. Apart from voicemail messages, we were also provided with
S S numerous WhatsApp text messages between the applicant and the
solicitor‟s clerk between 29 September 2015 and 5 April 2017, all of T T
52 5th affidavit of the applicant, para 13. U U
V V A - 28 - A
B them written in English. Admittedly, the messages and responses B
written by the applicant contain fairly basic expressions and phrases, as C C one might expect in WhatsApp exchanges. Nevertheless, they evince a
D clear ability on his part to read, write and communicate in English. D
E E 60. Furthermore, when the applicant was arrested and cautioned,
the arresting officer made a lengthy post-record of the event in his F F
notebook, Exhibit P7, in the presence of a Cantonese to English
G G interpreter. The applicant was able to respond to all questions posed in
English, to confirm what he had said in English upon arrest and to H H
confirm the officer‟s record as true. We also note that while the
I I applicant did say he did not understand Cantonese, he did not at any stage
J say he did not understand English. In fact, he wrote several things in the J
notebook in his own hand in English. Exhibit P7 was produced at trial K 53 K without objection .
L L
61. It is convenient, since we are dealing with the applicant‟s
M M language abilities (or disabilities) and their consequences in relation to
the conduct of his defence and the fairness of the trial, if we address the N N
allegation that the applicant‟s legal representatives were flagrantly
O O incompetent in failing to inform the court that the applicant could accept
a French interpreter. On this issue, it is worth noting the genesis of this P P
complaint. When original perfected grounds of appeal were filed by
Q Q Mr McGowan of counsel on 29 January 2018, nothing was mentioned at
all about the applicant‟s ability to speak French, or his desire or R R
preference for a French interpreter at trial. When Mr Ross replaced Mr
S S McGowan as counsel and filed amended perfected grounds of appeal on 4
T T
53 AB pp 41-46. U U
V V A - 29 - A
B July 2019, nothing was again mentioned about the applicant‟s ability or B
wish to speak French at trial. C C
62. The issue reared its head for the first time in the re-amended D D
perfected grounds of appeal filed by Mr Ross on 19 September 2019,
E E more than two years after the applicant‟s conviction. The basis for this
allegation against the applicant‟s legal representatives would appear to be F F nd two references in the applicant‟s 2 affidavit, which was exhibited to his
G rd G 3 affidavit filed on 25 July 2019, in which it was said, firstly, that he
spoke “Togo Ewe and some French and broken English”54; and, secondly, H H
that at a meeting on 30 August 2015 in counsel‟s chambers:
I I
“I think it was then that I said I could speak French. It was never mentioned again.”55 J J
Indeed, the issue was never mentioned again in any of the remaining four K K
affidavits of the applicant either.
L L
63. This is particularly surprising, given that in the bail variation M M hearing before the judge on 5 May 2017, the then Ewe interpreter had
N said in front of the applicant and, of course, his legal representatives that, N
while the applicant could communicate in French, he could not speak O O 56 “formal French”, but rather “street French … pigeon (sic), so to speak” .
P He went on to tell the judge that the applicant would not understand a P
formal French interpreter and that one would have to find a Togolese Q Q 57 French interpreter . Notwithstanding the interpreter‟s remarks being
R made right in front of him, the applicant took no issue with what the R
interpreter had said and the subject of the applicant‟s preference for a S S
54 At para 4. T 55 T At para 24. 56 AB p 183R-A. 57 AB p 184. U U
V V A - 30 - A
B French interpreter was never mentioned again, until, that is, the B
applicant‟s re-amended perfected grounds of appeal dated 19 September C C 2019.
D D
64. We have now had the applicant before us on two occasions,
E E namely 13 June 2019 and 23 October 2019. We are bound to observe
that, on each occasion, he has had no hesitation in drawing to the Court‟s F F
attention by hand-signals or requesting to speak to his instructing
G G solicitors, his dissatisfaction with the Ewe interpreter provided or other
matters which he wished to draw to his counsel‟s attention. Yet, we also H H
note from the transcript of Ms X‟s evidence that at no stage did he ever
I I indicate to the court, the interpreter or his counsel that he did not
J understand what she was saying. J
K 65. We are entirely satisfied that while the applicant may indeed K
nd understand “some French”, as he put it in his 2 affidavit, he is also L L
perfectly comfortable in English and understood the Ewe interpreter
M M provided to him at trial, as indeed the Ewe interpreter understood the
applicant. The complaint about his not being provided with a French N N
interpreter, when he had never asked for one, is a recent invention to try
O O and bolster his claim that he did not get a fair trial. Yet, it has never
been contended that he did not understand Ms X‟s evidence, in whatever P P
language medium he was receiving it.
Q Q
66. We also emphatically reject the allegations that the R R
applicant‟s counsel and solicitor were flagrantly incompetent in failing to
S engage an interpreter when taking instructions from him and by relying S
on the interpretation of the applicant‟s wife to communicate with him. T T
Quite apart from the fact that we have no evidence to support these
U U
V V A - 31 - A
B allegations from the applicant‟s wife, they were completely undermined B
by the recordings of the WhatsApp voicemail messages, to which we C C have referred. We have absolutely no doubt that his legal
D representatives understood the applicant perfectly satisfactorily for the D
purposes of taking instructions and representing him throughout these E E
proceedings. Indeed, as Mr Lai has pointed out, that would explain why
F the applicant was content to retain the services of his legal team on a F
private basis for some 21 months from 26 August 2015, when they first G G
met each other inside Tuen Mun Police Station where trial counsel
H advised the applicant in English to remain silent at his interview, which H
advice the applicant followed, until the trial concluded on 17 May 2017. I I
J 67. This leads to a consideration of the final complaint of J
flagrant incompetence levelled against the applicant‟s counsel and K K solicitor at trial that no written instructions were taken from the applicant
L before trial, which led counsel incorrectly to put a case to PW1 of L
consensual sexual intercourse on 25 August 2015, when in fact his M M instructions were that no sexual activity had taken place on that day.
N N
68. In answering this complaint, trial counsel has produced not
O O only his attendance notes detailing no less than seven conferences he had
with the applicant prior to trial, including a site visit to the applicant‟s P P
home to inspect the scene, he has also produced a type-written document
Q Q with handwritten amendments, entitled „Statement of Apelete Kokou Afla‟
(“the Statement”), signed by the applicant and dated 12 May 2017. R R
Mr Ross has confirmed that the Statement was indeed signed by the
S S applicant, although the applicant claims that he never read it (and not,
interestingly, that he was unable to read it because it was in English) and, T T
when he signed it, that there were no amendments on the document.
U U
V V A - 32 - A
B The applicant also maintains that he signed the Statement in the morning B
of 12 May “after [trial counsel] had commenced cross-examination of C 58 C [Ms X]” .
D D
69. Whatever the position as to how and when the amendments
E E were made, which amendments look to us to be the sort that any counsel
might make for his own benefit as a result of further questions clarifying F F
the details of his client‟s account, the fact is that the Statement makes it
G G quite clear that the applicant‟s original typed-up instructions were that
sexual intercourse took place on 25 August 2015. And it would have H H
been obvious to the applicant listening to his counsel cross-examine Ms
I I X that the case being put to her, consistent with the Statement he had
J signed, was that the two of them had had consensual sexual intercourse J
on the 25 August 2015, the day of his arrest. Yet, at no stage did the K K applicant demur, to his legal team, the court or anyone else.
L L
70. However, the Statement was not the only document the
M M applicant signed on 12 May 2017. He has himself produced by way of
nd his 2 affidavit a signed instruction confirming that he had been fully N N
advised of his choice whether or not to give evidence and, upon
O 59 O careful consideration, decided not to give evidence (“the Instruction”).
Interestingly, the Instruction has been signed twice, once at 2:30 pm on P P
12 May 2017, and once at 10:40 am on 15 May 2017. When we
Q Q cross-reference these times and dates with the transcript of proceedings
and the judge‟s official log kept by her judicial clerk, we can see that the R R
first signature on the Instruction must have been appended a few minutes
S S before the court sat, at 2:34 pm on the afternoon of Friday, 12 May 2017,
T 58 th T 6 affidavit of the applicant, para 34. 59 2nd affidavit of the applicant, para 66, Exhibit “AKA 5”. Whilst the applicant admits that he
signed the Instruction, he claims that it was neither read to him, nor explained. U U
V V A - 33 - A
B to hear PW1 being re-examined by prosecuting counsel; while the second B
signature was appended during the time the jury were outside court, C C between 10:33 am and 10:50 am on Monday, 15 May 2017, which was an
D adjournment requested by counsel in order to take instructions from his D
client. E E
71. The judge‟s official log also confirms the care with which F F
the applicant‟s legal representatives had gone about the task of obtaining
G G the applicant‟s instructions as to whether or not he would be giving
evidence. Right at the end of proceedings on Friday, 12 May 2017, and H H
before the prosecution had closed its case, counsel informed the judge in
I I the absence of the jury at 4:12 pm that the applicant would not be giving
J evidence. The context of this indication would have been at the end of J
the week when, as often happens in our experience, the judge reviewed K K the likely timetable for the remainder of the case. When the prosecution
L did formally close its case at about 10:30 am on Monday, 15 May 2017, L
counsel said again that the applicant would not be giving evidence but M M asked for time to take instructions from his client; which, as we have just
N noted, was done between 10:33 am and 10:50 am. When the court N
resumed at 10:50 am, counsel confirmed, for the third time, this time in O O the presence of the jury, that the applicant would not be giving evidence,
P by which time the Instruction had been signed once again in order to P
confirm its correctness. Q Q
72. Before leaving this matter, we note that it had been pleaded R R
by Mr McGowan in his original perfected grounds of appeal dated
S S 29 January 2018 as one of the particulars of flagrant incompetence
alleged, that his legal representatives had advised the applicant that he T T
“should not and need not give evidence”, which ground was re-drafted by
U U
V V A - 34 - A
B Mr Ross in his amended perfected grounds of appeal dated 4 July 2019 to B
aver that “the applicant agreed not to give evidence when he wished to do C C so, after accepting the trial counsel‟s advice that the applicant better stay
D silent because his English was not good and that the applicant will be D
asked questions by the prosecutor that the applicant could not E E
understand”. However, this particular of complaint of flagrant
F incompetence has been deleted in the re-amended perfected grounds of F
appeal dated 19 September 2019. Not only would such an allegation G G
have been untenable in the light of the Instruction, signed twice by the
H applicant in the circumstances outlined above, but the fact that it was H
made at all highlights how ill-conceived and unjustified this complaint I I
originally was.
J J
73. We are accordingly of the decided view that the allegations K K of flagrant incompetence made against the applicant‟s trial lawyers in this
L case were wholly without merit and should never have formed the basis L
of a ground of appeal. That two experienced counsel saw fit to make the M M claim in perfected grounds of appeal in this case illustrates three serious
N inadequacies in our system of criminal appeals wherever flagrant N
incompetence is sought to be put forward as a ground of appeal. First, O O the original complaint of flagrant incompetence was filed by Mr
P McGowan as a ground of appeal on 29 January 2018, without any attempt P
whatsoever by him or his instructing solicitor to obtain any response from Q Q
trial counsel or solicitor thereafter to the serious allegations being levelled
R against them. The first time the applicant‟s legal representatives at trial R
would have known anything about these complaints would have been S S
after Mr McGowan was replaced by Mr Ross and new solicitors on 12
T June 2019, more than two years after the trial had concluded. We have T
U U
V V A - 35 - A
60 B already stated in our judgment on wasted costs in HKSAR v Apelete that B
there must be a palpably sound basis for such a complaint of flagrant C C incompetence before any counsel can conscientiously regard it as a
D properly arguable ground of appeal; and that such a test cannot be met D
without specific and detailed enquiries being made of the legal E E 61 representatives at trial . We roundly deprecated the notion that simply
F because an applicant makes an allegation, that by itself is sufficient to F
62 justify a ground of appeal . G G
74. Secondly, we would emphasise, and this case provides a H H
good illustration of the point, that the duty to put forward properly
I I arguable grounds of appeal does not come to an end with the filing of
J grounds of appeal. If material subsequently comes to light casting doubt J
on the applicant‟s claims, there is a continuing duty to evaluate the K 63 K propriety of the grounds of complaint . Yet, as the evidence
L contradicting the applicant‟s bare assertions mounted by way of transcript,L
affidavit/affirmation evidence, text message and voicemail recordings, as M M well as signed documentation detailing how carefully the legal
N representatives at trial had dealt with the applicant, Mr Ross‟s response N
was to place yet another affidavit from the applicant before us O O endeavouring to answer the evidence of counsel, solicitor and the
P solicitor‟s clerk at trial, instead of standing back and making a considered,P
measured assessment of the merits of the proposed grounds of appeal and Q Q
giving his client, if necessary, robust advice.
R R
75. Had Mr Ross stood back and exercised his professional
S S judgment in reviewing the state of the evidence, he would quickly have
60 HKSAR v Apelete (Judgment on Wasted Costs) (Unrep., CACC 176/2017, 23 October 2019). T 61 T Ibid., at para 64. 62 Ibid., at para 62.
63 Ibid., at para 68. U U
V V A - 36 - A
B realised that the allegation that there was any lack of understanding B
between the applicant and his legal representatives, for which the C C applicant‟s wife had to be used as an interpreter, was utterly unarguable;
D particularly in the absence of the wife‟s supporting evidence. Had he D
stood back and examined the notes made by trial counsel at numerous E E
conferences, as well as the type-written instructions signed by his own
F client, he would also have realised that the allegation of counsel obtaining F
inadequate instructions and putting a case contrary to the instructions he G G
did take, was transparently false and could never amount to a properly
H arguable ground of appeal before this Court. And had he appreciated H
that his client only spoke “some French”, which the court interpreter had I I
described as street French or pidgin French, and that the applicant had
J never asked for a French interpreter but been content to traverse the entire J
proceedings before the magistrate in English, he would have quickly K K
realised that the ground was factually inaccurate and wholly untenable.
L L
76. Yet Mr Ross has described the ground of flagrant M M incompetence in this case as one of the “exceptional” instances where this
N Court should intervene. We emphatically disagree. The ground of N
appeal of flagrant incompetence alleged in this case represents the worst, O O most undeserved and most ill-advised instance of such a ground that any
P member of this Court has ever come across. To that extent only is it P
exceptional. Q Q
77. Thirdly, a complaint of flagrant incompetence should be R R
carefully and specifically pleaded. Such a ground does not represent a
S S general licence for appellate counsel to go outside the terms of the
particulars of the ground and make serious attacks on the character and T T
integrity of legal representatives. In the present case, Mr Ross saw fit to
U U
V V A - 37 - A
B include in his written argument filed for the purposes of this appeal an B
allegation, which bore no relation to the grounds of appeal, that members C C of the applicant‟s legal team had instructed the applicant to take Panadol
D and other painkillers with an excessive amount of alcohol so as to render D
him unconscious, requiring urgent hospital treatment and thus leading to E E
an adjournment of the trial. This was said to be so that a friend of one of
F the legal team would have more time to trace Ms X‟s whereabouts in the F
Philippines and pay her not to testify. The applicant and his wife were G G
told to raise a “bribe” of at least $500,000.
H H
78. These were extremely serious allegations against
I I professional lawyers of suborning witnesses and conspiring to pervert the
J course of public justice, for which there was not a shred of supporting J
evidence. They had no business being included in a written argument in K K support of the complaint of flagrant incompetence. Mr Ross appeared
L not to fully grasp the gravity and consequences of his accusations. L
M M 79. At one stage during the course of oral submissions, Mr Ross
purported to submit that there were in fact no written instructions from N N
the applicant in relation to his case. When he was taken to the
O O Statement, Mr Ross argued that because the applicant did not read it
when he signed the Statement, it could not be said to be his Statement or P P
instructions. When we pointed out that the Statement contained detailed
Q Q particulars of his defence duly typed up and dated, Mr Ross contended
that the contents were a fabrication created by the applicant‟s lawyers. R R
We were frankly astonished that Mr Ross should so readily embrace the
S S accusation that the applicant‟s legal representatives had fabricated the
Statement, purely on the basis that his client claimed to have given T T
different instructions and not read the Statement. Not only had no
U U
V V A - 38 - A
B allegation previously been made that the legal representatives had B
actually made up the applicant‟s instructions in the Statement, but there C C was not one scintilla of evidence to support it.
D D
80. It should be remembered that counsel is not a mere
E E mouthpiece for his client and must exercise independent and professional
judgment in his conduct of an appeal. That counsel should, with such F F
ease and alacrity, make a serious allegation before this Court of
G G professional misconduct against the former legal representatives of his
client that they had fabricated instructions and documents to create a false H H
defence, without any supporting evidence, without notice to those legal
I I representatives and without any proper assessment of the viability of such
J an allegation, has caused each member of this Court very grave disquiet. J
K 81. As we have said, we wholly reject the allegation of flagrant K
incompetence by any of the applicant‟s legal team at trial. The L L
allegation is so demonstrably lacking in support and credibility that
M M appellate counsel should never have conscientiously put it forward as a
properly arguable ground of appeal. We shall return to the N N
consequences of our conclusion in due course.
O O
I.2 Ground 2 (the Ewe interpreter) P P
82. We have already dealt with the issues arising under Ground Q Q
2 and the proposition that because the applicant could not fully
R R understand the English to Ewe interpretation of the interpreter, and the
judge had “refused” to provide the applicant with an Ewe speaking S S
interpreter from Togo rather than Ghana, the applicant did not get a fair
T T trial. We are entirely satisfied that the applicant, whether he was
U U
V V A - 39 - A
B listening to the Ewe interpreter (who, as we have noted, understood the B
applicant clearly, but whom the applicant claimed he did not understand) C C or the English translation of Ms X‟s testimony, would have entirely
D understood the evidence and the issues in this very simple case: as we D
have pointed out, at no stage during the proceedings did he ever indicate E E
or signify otherwise.
F F 64 83. As Lord Bingham of Cornhill CJ once famously remarked :
G G
“…there is no such thing as a perfect summing up”.
H H
The same may be said of the conduct of a trial and the performance of
I those who play an essential constituent part of a trial, such as judges, I
counsel and interpreters. Of the latter, the Supreme Court of Canada in J J 65 66 R v Tran noted :
K K “… it is important to keep in mind that interpretation is an
inherently human endeavour which often takes place in less L than ideal circumstances. Therefore, it would not be realistic L
or sensible to require even a constitutionally guaranteed standard of interpretation to be one of perfection. M M
……
N In light of the fact that interpretation involves a process of N
mediation between two people which must occur on the spot with little opportunity for reflection, it follows that the standard O O for interpretation will tend to be lower than it might be for
translation, where the source is a written text, where reaction P time is usually greater and where conceptual differences which P
sometimes exist between languages can be more fully accommodated and accounted for.” Q Q
67 84. In HKSAR v Moala Alipate, the Court also cautioned that : R R
“…when it comes to assessing the standard of the interpretation S service provided and determining whether it led to an unfair S
64 Reynolds v Times Newspapers Ltd [2001] 2 AC 127, at 144F. T 65 T R v Tran [1994] 2 SCR 951. 66 Ibid., at 987.
67 HKSAR v Moala Alipate [2019] 3 HKLRD 20, at para 57. U U
V V A - 40 - A
B trial we must not lose sight of the very important principle that B a fair trial is not a perfect trial and a court will adopt a practical
view of the circumstances when adjudging the merits of a claim C that a breach of the fair trial right took place.” C
D In practical reality, we should strive, as Brennan J put it in Jago v D
68 District Court of New South Wales , towards “a trial as fair as the courts E E 69 can make it” .
F F
85. In the present case, the applicant went through five
G G appearances before a magistrate without recourse to the services of any
interpreter before he indicated to the court for the first time at the pre-trial H H
review that he would need an Ewe interpreter. He was present when his
I I counsel made the request and no specificity as to the particular strain of
J Ewe was indicated. The first occasion that any distinction was drawn J
between Ghanaian Ewe and Togolese Ewe, the two countries of Ghana K 70 K and Togo lying next to each other and sharing a common border , was on
L Friday, 5 May 2017, when the applicant claimed he could not understand L
the court-appointed Ewe interpreter. At that stage, the trial was due to M M commence on the following Monday, 8 May 2017.
N N
86. Notwithstanding the extremely limited time given to the
O O court to arrange another interpreter, and with Ms X having flown in from
the Philippines to give evidence, a second Ewe interpreter was arranged P P
by the court and the judge prudently suggested that they should both
Q Q speak to the applicant when he eventually appeared in court so that he
could decide whom he was more comfortable with as interpreter. It R R
seems that the applicant was not satisfied with either interpreter;
S S
68 Jago v District Court of New South Wales (1989) 168 CLR 23. 69 Ibid., at 49. T 70 T It may be noted that Ghana and Togo sit geographically next to each other on the Gulf of Guinea in West Africa. As one of the smallest countries in Africa, Togo is less than 100 miles across at
its widest part. U U
V V A - 41 - A
B nevertheless, the interpreter retained was the more native Ewe speaker, B
who said he understood the applicant clearly but the applicant claimed C C not to understand him. The judge made clear that all questions and
71 D answers were to be made “as simple as possible” . We can see from the D
ensuing transcript that her instructions were faithfully obeyed and no E E
complaint was raised by the applicant or anyone on his behalf about his
F inability to follow or understand the evidence or proceedings until this F
appeal. G G
87. As the Supreme Court of New Zealand in Abdula v R held72: H H
“Failure by an accused, however, to raise concerns over the I I quality or scope of interpretation during the trial is a factor that will be taken into account by the Court in determining if there has been a breach. Likewise, in de la Espriella-Velasco v R73, J J the Court of Appeal of Western Australia saw it as relevant to
whether the judge had sufficiently ensured that the appellant K understood the proceedings that he and his counsel had queried K 74 the quality of interpretation only once .”
L L 75 Similarly, in Kamasinski v Austria , the European Court of Human
M Rights noted that at the hearing before the trial when the applicant was M
served with the charge against him, no complaint by the defence was N N 76 made to the court of inadequate interpretation ; whilst at the trial proper,
O O there was no “objection, formal or informal, by Mr Kamasinski or his
77 lawyer regarding the quality or scope of the interpretation” . P P
Accordingly:
Q Q
“The Court did not find it substantiated on the evidence taken as a whole that Mr Kamasinski was unable because of deficient R interpretation either to understand the evidence being given R
71 S AB p 216G. S 72 Abdula v R [2012] 1 NZLR 534, at [35]. 73 de la Espriella-Velasco v R [2006] WASCA 31, (2006) 31 WAR 291. 74 Ibid., at [118] per Roberts-Smith JA; and at [360] per Millar AJA. T 75 T Kamasinski v Austria (1991) 13 EHRR 36 (EHCR). 76 Ibid., at para 80.
77 Ibid., at para 83. U U
V V A - 42 - A
B against him or to have witnesses examined or cross-examined B on his behalf”.
C C The Court found that there had been no violation of his rights under
D Article 6(3)(e) of the European Convention on Human Rights, which is D
identical to Article 11(2)(f) in section 8 of the Hong Kong Bill of Rights
E E Ordinance, Cap 383.
F F
88. A case we have found very persuasive, in the similarity and
G G resolution of its facts, is the decision of the Scottish Court of Appeal in
78 Lee v HM Advocate . The appellant, who was Korean, was charged H H
with rape before the High Court in Edinburgh. He had, prior to trial,
I I been in the United Kingdom for 10 years, two of them at school, having
arrived in the country with the aim of becoming a professional footballer. J J
He was given an interpreter at his trial, whom, the Court noted, the
K K appellant had described in his affidavit as being “from the southeast of
South Korea. He had a very strong accent. He was not very good at L L
interpreting, would miss out a lot and was very slow. Sometimes the
M M appellant did not know what the interpreter was saying in Korean. The
interpreter had not asked for the witnesses to slow down. The appellant N N
did not do anything about this because he thought that it would not be
O 79 O polite” . The appellant said that he had raised his concerns with his
P counsel and the matter was discussed with the judge. P
Q 89. Comments were sought by the Court from the appellant‟s Q
counsel at trial, who stated that the appellant‟s English was good enough R R
to provide instructions and understand advice. No interpreter had
S S attended any pre-trial consultations because the appellant had not
requested one and was able to follow what was being discussed. T T
78 Lee v HM Advocate [2016] HCJAC 39.
79 Ibid., at [17]. U U
V V A - 43 - A
B Counsel did confirm, however, that he had raised the matter of B
interpretation with the judge on the second day of the trial, although the C C appellant‟s difficulties arose out of his trying to listen to the evidence in
D English rather than the Korean translation. D
E E 90. Noting that the appellant “was proficient in English, even if
it was not his native tongue”, the Court observed that the case against him F F
came primarily from the complainant, the doctor who examined her and
G G some of her friends who spoke to events in the night club in question.
The Court went on80: H H
“There was no technical evidence. It reflected, according to I I his own trial counsel, what had been anticipated in advance and discussed pre-trial. … At no point did the appellant identify anything specific that he either did not follow or had been J J unable to deal with. The appellant elected not to give
evidence, apparently well in advance of trial, so there is no K issue in relation to his ability to present his account adequately K
to the jury. In these circumstances it is impossible to perceive any unfairness such as would be conducive to a miscarriage of L L justice.
…… M M
The appellant‟s complaint was that parts of the witnesses‟ testimony were not interpreted into Korean. He was aware of N N this because he could hear in English and those parts which (he
says) were not interpreted. He did not, however, attempt to O identify those parts said to have been omitted and what O
difference this made. It is difficult to see what difference could have been made. The appellant‟s counsel and agent and P P the interpreter have all confirmed that, fundamentally, there
was no material language difficulty at trial. There was no Q complaint made by the appellant in the course of the evidence, Q
speeches or charge. Notwithstanding the complaints made post-conviction by the appellant … the court is not persuaded R R that this appellant had any difficulty in understanding the case against him or in communicating the nature of his defence to
S his representatives. There was no technical material requiring S special translation. The fact that, occasionally, it was not
possible or practicable to translate absolutely everything word T for word, because of the speed of diction used by the witnesses T
80 Ibid., at [35]-[37]. U U
V V A - 44 - A
B or counsel, is not per se indicative of substantial unfairness. It B is in the nature of a trial where interpreting facilities are
provided.” C C
91. Noting that counsel had, at an early stage of proceedings, D 81 D raised the issue of interpretation with the trial judge, the Court held :
E E “If there had been any continuing difficulty with the interpreter, the appellant could have drawn that to the court‟s attention,
F through his representatives. On the basis that the minute of F 25 June 2014 records that any issue with the interpretation
would be re-visited at lunch time „if need be‟, in the absence of G any further complaint, the judge was entitled to assume that any G
issue had resolved itself and that there was no ongoing difficulty.” H H
92. We are quite satisfied that the applicant before us understood I I
what Ms X was saying, whether by listening to the English used in court
J J or the Ewe interpretation of that English in what was a very simple,
straightforward and short case. Indeed, he never raised any complaint K K
during the trial with his counsel or the court that he did not understand the
L L proceedings and, in particular, Ms X‟s evidence.
M M
93. Finally, it is quite clear from the circumstances we have
N outlined above that the judge, far from “refusing” to provide the applicant N
with what he wanted, made every attempt, notwithstanding very little O O
notice, to try and satisfy the applicant‟s demands and to ensure that the
P proceedings were conducted in simple, readily understandable terms. P
Knowing that there was one simple issue at trial, but also conscious that Q Q
there was a vulnerable witness waiting to testify, who had been brought
R R from the Philippines to give evidence, the judge is to be commended for
going out of her way to accommodate the applicant‟s wishes in a practical S S
and sensible way, whilst striving to do justice to everyone concerned.
T T The matter having been fully ventilated before the evidence began, and
81 Ibid., at [39]. U U
V V A - 45 - A
B measures having been put in place to ensure the applicant understood the B
proceedings, she was entitled to assume from the complete absence of C C any further complaint from either the applicant or his legal
D representatives that, in the language of Lee v HM Advocate, “any issue D
had resolved itself and that there was no ongoing difficulty”. E E
94. We reject the whole assumption on which Ground 2 is based F F
and are quite satisfied that the applicant understood the evidence and
G G proceedings whether he listened to the English being used in court or to
the Ewe interpreter provided. H H
I I.3 Ground 3 (the applicant’s answer to caution) I
J J 95. Ground 3 avers that the judge failed to direct the jury that if
K they were satisfied that what the applicant had said in answer to the K
caution about sexual intercourse having been consensual was or may be L L true, they should acquit him of both counts. Complaint is made of two
M passages in the summing-up, which it is suggested rendered what the M
applicant had said in answer to caution valueless. In the first, the judge N 82 N was addressing the fact that the applicant had not given evidence :
O O “…I have also said the defendant has an absolute right to choose not to give evidence or call witnesses because he does
P not have to prove anything. And the fact that he does not give P
evidence is his right and cannot be used against him. However, the fact that he does not give evidence means there is Q no evidence to contradict what the witness, Madam X, has said. Q
What he had said in answer to the police was a statement. It has not been subject to cross-examination or been made on oath R R or affirmation in front of you. So how much weight you put
on that sentence is a matter for you because it has not been S subject to cross-examination or repeated on oath or S
affirmation.”
T T
82 AB pp 26P-27B. U U
V V A - 46 - A
83 B A little later, in the second passage, the judge said : B
“Now, before I come to the evidence I must repeat again that C C the defendant does not have to give evidence. He is entitled to
sit back and let the prosecution prove its case. You must not D assume that he is guilty because he has not given evidence. D
The fact that he does not --- he has not given evidence proves nothing. On the other hand, it means that there is no evidence E E from the defence to undermine, contradict or explain the evidence put before you buy the prosecution. You will have
F to decide on the prosecution‟s evidence whether you are sure of F the defendant‟s guilt.”
G G 96. The Court has said many times that judicial directions must
H be looked at in context, and the summing-up read as a whole. We agree H
with Mr Lai that when one examines the first passage in context, it is I I clear that the judge was explaining the effect of the applicant‟s right of
J silence, and the jury would plainly have understood that there was no J
testimony from the defendant to contradict Ms X‟s account. That was K K true: the applicant did not testify. However, as she told the jury, the fact
L that he did not give evidence “cannot be used against him”. This part of L
the judge‟s direction corresponds to Specimen Direction 44. M M
97. As for the applicant‟s statement in answer to the caution, this N N
was a classic “mixed” statement, inasmuch as it confirmed that sexual
O O intercourse had taken place but asserted that it was with Ms X‟s consent.
The part of the first impugned passage directing the jury that his answer P P
to caution had not been made on oath, repeated on oath or subjected to
Q Q cross-examination, and that its weight was a matter for the jury, was also
R correct and in conformity with Specimen Direction 40. R
S 98. The first passage is therefore a combination of two Specimen S
Directions, moulded to the facts and circumstances of the case and the T T
83 AB p 28J-P. U U
V V A - 47 - A
B issues the jury had to decide. We certainly do not read it as telling the B
jury to ignore what the applicant said to the police upon arrest. C C
99. The second passage impugned is an almost verbatim D D
rendition of Specimen Direction 44. We cannot see how any complaint
E E can be made of the passage, which is in complete conformity with the
Specimen Direction, dealing as it does with the position of a defendant, F F
like the applicant, who has not given evidence.
G G
100. If the argument is that these directions when read together H H
rendered the applicant‟s assertion of consent in his answer to caution
I worthless, we would point out that the judge had made clear at the outset I
84 of her summing-up in respect of the issue of consent that : J J
“If you think that what the defendant alleges was true or may K be true then you have to acquit”. K
L Later, when giving the jury directions in respect of the applicant‟s good L
character, the judge specifically told them that they could take his M M character into account in support of what he had said to the police.
N Having dealt first with the relevance of good character to propensity, she N
then addressed its relevance to credibility and, since the applicant had not O O
given evidence, this aspect of the direction could only have applied to his 85 P answer to caution upon arrest : P
“You may consider whether [his clear criminal record] supports Q Q what he said to the police after being cautioned subsequently …
that he did not rape Madam X and that … “We both agreed R before have the sex together”. So you may consider what he R
has said, whether the fact that he has … no previous conviction in Hong Kong makes him less likely to have committed the S S crime now and whether it lends some support to what he said.”
T T
84 AB p 15D-E.
85 AB p 25B-H. U U
V V A - 48 - A
B 101. This direction allowed the jury properly to consider the B
weight they should give to the applicant‟s answer to caution, otherwise C C the references to his good character being supportive of his claim would
D have been meaningless. In our judgment, the jury would have clearly D
understood that the only real issue before them was consent. His answer E E
to caution and the weight to be attached to it, in the absence of his
F evidence supporting the assertion, was properly before them and would F
have been taken into account by them on that vital issue. There is G G
nothing in this ground of appeal.
H H
I.4 Ground 4 (inferences)
I I
102. Ground 4 avers that the judge did not give a proper direction J J
on inferences, either in terms of a general direction or by setting it in the
K context of the evidence. The judge‟s direction in context was as K
86 follows : L L
“You may come to common sense conclusions based on the M evidence which you accept, and we call that inferences. But, M
members of the jury, you must not speculate about what evidence there might have been or allow yourself to be drawn N N into speculation. Speculating in a case amounts to no more than guessing or making up theories without good evidence to
O support them. So you should not do that.” O
P 103. However, the short answer to this complaint is that this was P
not an inferential case. The evidence as to what took place and whether Q Q the sexual activity was consensual came directly from Ms X. There was
R no circumstantial evidence relied upon by the prosecution to prove its R
case, except, arguably, the aspects of recent complaint and distress. But S S both of those pieces of evidence also derived from the complainant
T herself and were the subject of specific directions in accordance with the T
86 AB p 20A-D. U U
V V A - 49 - A
B Specimen Directions. The only evidence by which the prosecution B
could seek to prove the absence of consent, which was the vital issue in C C the case, was from the complainant herself.
D D
104. A very similar direction had been given by the trial judge in
E 87 E Tang Kwok Wah v HKSAR , also a case of the rape of a domestic helper.
There, the trial judge had said to the jury: F F
“You must decide this case only on the evidence which has G been placed before you. There will be no more evidence. If G
you think that there is a gap in the evidence, or there is a lack of evidence, you must accept that and make your decisions in its H H absence. You are entitled to draw inferences from the
evidence. That is, come to some common sense conclusion I based on the evidence which you accept but you may not I
speculate about what evidence there might have been or in any way allow yourself to be drawn into speculation.” (Emphasis J J supplied)
K K Bokhary PJ, with whom the other members of the Court of Final Appeal
agreed, held that it was not a case calling for an inference direction, the L L
critical issue being whether the jury could be satisfied that the
M M complainant did not consent. On that issue, “the only evidence on
which the jury could be satisfied beyond reasonable doubt that the N N 88 complainant did not consent was her own testimony” . Such other
O O circumstances as there were could not have given rise to the inference
that the applicant did not consent; therefore, there was no real danger of P P
any such evidence being misused by the jury.
Q Q
105. In the present case, there was no other evidence from which R R
the jury could have inferred that Ms X did not consent outside of her own
S evidence. It was not an inferential case and did not warrant an inference S
direction. Whilst the judge‟s direction may not have been sufficient had T T
87 Tang Kwok Wah v HKSAR (2002) 5 HKCFAR 209.
88 Ibid., at para 43. U U
V V A - 50 - A
B a special direction on the drawing of inferences been called for, the B
reality is that no such direction was called for. Like Bokhary PJ, we C C think that the judge was merely trying to explain to the jury that they
D must not speculate, by contrasting between common sense conclusions D
derived from evidence which they accepted, and theories or guesswork E E 89 not derived from any evidence . We see no merit in this ground of
F appeal. F
G G I.5 Ground 5 (distress)
H H
106. The proposition which underpins Ground 5 is that while the
I judge was correct to tell the jury to disregard evidence of Ms X‟s distress, I
if they were not sure such distress was genuine and referable only to the J J
alleged sexual offences, she failed to go on to explain the ramifications of
K the converse that, if they entertained a reasonable doubt that the distress K
was genuine, such evidence was capable of undermining Ms X‟s L L
credibility.
M M
90 107. The judge directed the jury as follows : N N
“How would the signs of distress help you? You must be satisfied so that you are sure, when considering this, that O O Madam X‟s distressed condition was genuine, that it was not
just an act. And that there was a connection between the P distressed condition and the sexual offence. That the distress P
was only due to or referable to the sexual offence and not to any other cause. Q Q
So in deciding those two points, you must take into account all the relevant circumstances. If you are sure that the distress R R was genuine and referable to the alleged sexual offences and
nothing else, then you may give the evidence of distress as S much weight as you like. If you are not sure that the distress S
was genuine and was not only referable to the alleged sexual
T T
89 Ibid., at para 42.
90 AB p 28B-J. U U
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B offences, then disregard the evidence of the distress, ignore that B evidence of her distress.”
C C In our judgment those directions were in accordance with the approach to
D a complainant‟s distressed condition stipulated by the Court of D
Final Appeal in Leung Chi Keung v HKSAR91 and incorporated in the
E E Specimen Directions. We see no warrant for adding the refinement
F proposed. F
G G 108. Moreover, as we have said previously, the issue for the jury
in this case was very simple: could they be satisfied so that they were sure H H
that Ms X did not consent to the sexual activity alleged? If the jury
I I doubted the genuineness of Ms X‟s distress, they did not need to be told
how the consequences of such a finding might impinge on her credibility J J
generally. Once again, the summing-up must be looked at as a whole
K K and with common sense. There is no merit in this complaint.
L L
109. Having rejected all of the applicant‟s grounds of appeal, the
M application for leave to appeal against conviction is refused and the M
appeal dismissed. We turn to the application for leave to appeal against N N
sentence.
O O
I.6 Grounds of appeal against sentence P P
110. As with the rest of her conduct of this trial, the judge passed Q Q
a carefully considered sentence. She rightly took the view that the
R R element of breach of trust was the most significant aggravating feature in
92 respect of both of the offences before her. She specifically referred to S S
T T
91 Leung Chi Keung v HKSAR (2004) 7 HKCFAR 526, at 542I-543D.
92 AB p 263A-D. U U
V V A - 52 - A
B the comments of Ma CJHC (as he then was) in HKSAR v Chan Tung B
93 Hing , that: C C
“… in a relationship of employer and domestic helper, it is often the case that the helper is in a particularly vulnerable D D position. Not only is the helper financially dependent on the
employer, the helper will be far away from her home country E and her immediate family. We view the preying on such E
persons particularly seriously.”
F F
She noted that the applicant in Chan Tung Hing had run a very similar
G defence to the defendant before her, namely, that consensual sexual G
intercourse having taken place, the complainant had then demanded H H
money from him and, when it was not forthcoming, had turned against
94 I him. She considered, as did the Court in Chan Tung Hing , that the I
95 applicant had shown no remorse . The sentence on a single count of J J
rape in Chan Tung Hing was 8 years‟ imprisonment, a sentence which the
K K Court held not to be manifestly excessive.
L L 111. Apart from the aggravating features of the breach of trust
M and the fact that the applicant had not worn a condom, it was an admitted M
96 fact that the victim was menstruating at the time , something which the N N
applicant must on his own case have known, since it was put to Ms X in
O cross-examination that she was bleeding when he touched her, as a result O
of which he had suggested not having intercourse until her period had P P 97 98 finished . In HKSAR v Chow Kam Wah , the Court considered it to be
Q an aggravating fact that the applicant had raped the victim whilst she was Q
R R
S S 93 HKSAR v Chan Tung Hing [2010] 3 HKC 304, at para 11. 94 Ibid., at para 10. 95 AB p 263K-L. T 96 T Admitted Facts, AB p 12, para 13(d). 97 AB p 92H-J.
98 HKSAR v Chow Kam Wah [2013] 1 HKLRD 377. U U
V V A - 53 - A
B menstruating, since “it added to the indignity to which he condemned B
99 her” . C C
112. The judge also had before her a victim impact report. It D D
was clear that the incident had rendered Ms X emotionally fragile, scared
E E of strangers, depressed and unable to sleep. Since the applicant had not
worn a condom at the time, she was afraid that she had caught a sexually F F
transmitted disease. She had lost her job and returned to her family in
G G the Philippines, who without her income to support them were suffering
financially. She could not face returning to Hong Kong. H H
I 113. However, there was another aggravating feature which the I
judge dealt with in depth. We note that at the pre-trial review on J J
2 March 2017, when the matter of obtaining an Ewe interpreter was
K raised by defence counsel for the first time, the judge had remarked, inter K
alia, that “if we cannot locate an interpreter in time, it may necessitate L L
either we proceed or a delay in the trial”. On the Friday before the trial
M M was fixed to commence on 8 May 2017, the applicant sought a variation
of bail so that his passport could be released to him. It was then that the N N
court was told, for the first time, that the applicant needed a particular
O O strain of Ewe interpretation. Although the judge was concerned by this
latest development and indicated that the court would do its best to find P P
another interpreter, she also made clear that the case would proceed on 8
Q Q May 2017.
R R
114. However, on the night before the trial was due to commence,
S the applicant checked himself into the Adventist Hospital in Tsuen Wan S
as a result of what was described by his counsel as a “hypertensive crisis”. T T
99 Ibid., at para 39. U U
V V A - 54 - A
B Consequently, the case did not begin as scheduled on 8 May. The B
applicant was still in hospital on 9 May and, in view of the paucity of C C information about his condition, and with Ms X waiting patiently in the
D wings to give evidence at the trial, the judge revoked the applicant‟s bail D
and ordered that he be taken into custody at Queen Elizabeth Hospital for E E
a full medical examination, to determine if he was fit to attend court.
F F
115. On 10 May 2017, a report from Queen Elizabeth Hospital
G G was furnished to the court, which referred to the applicant‟s “poorly
controlled hypertension”, for which his drug compliance at home was H H
“doubtful”. Since no significant abnormalities were found on
I I examination, the applicant was considered fit to attend court on 11 May
J 2017. He was duly brought to court on 11 May 2017. It may be noted J
that one of the reasons articulated by Mr Ross in his amended grounds of K K appeal dated 4 July 2019 in support of the contention that the applicant
L could not get a fair trial was that he was “not medically fit to stand trial”. L
How this could have been averred when the associate consultant at Queen M M Elizabeth Hospital had clearly certified the applicant as fit to stand trial
N defies belief. Wisely, the assertion was withdrawn by the time the N
re-amended perfected grounds of appeal came into being on 19 O O September 2019.
P P
116. Having been brought to court on 11 May 2017, the judge
Q Q was “informed by counsel and solicitor that the defendant was being
uncooperative, and they wanted to cease to act”100. The judge refused to R R
allow either counsel or the solicitors to withdraw and warned the
S S applicant that if he discharged his lawyers, or did not cooperate with them,
T T
100 AB p 261K-L. U U
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B he would have to represent himself. The trial then proceeded and Ms X B
commenced her evidence. C C
117. As we have observed, one of the gratuitous allegations made D D
in Mr Ross‟s written argument against the defence team at trial, based
E nd E upon the applicant‟s 2 affidavit, is that they tried to persuade the
applicant to have himself admitted to hospital by ingesting a mixture of F F
painkillers and alcohol, in order to precipitate an adjournment so that Ms
G G X‟s family could meanwhile be paid off. Since this matter had been
raised in the applicant‟s 2nd affidavit, trial counsel‟s response was that, H H
following the pre-trial review in March 2017, the applicant had made it
I I clear to his legal representatives that he did not want a female judge to try
J his case and wished to delay the trial so as to locate and “bribe” Ms X J
into not testifying; as well as use Togolese black magic against her. The K K applicant‟s three methods of achieving this objective were to pretend to
L be ill, to request an Ewe interpreter, which he reasoned would be hard to L
find in Hong Kong, and to refrain from communicating with his lawyers M M so that the trial would not be able to begin. Trial counsel‟s evidence is
N that he warned the applicant in strong terms that the applicant would be N
perverting the course of public justice if he did so, and counsel would O O cease to act for him if he did anything of the kind. According to counsel,
P the applicant then appeared to abandon the idea. P
Q Q 118. We do not need to resolve this issue of fact. We are
satisfied that the sequence of events from 5 May 2017 onwards by itself R R
plainly demonstrates that the applicant, for whatever reason, did not want
S S his trial to go ahead and, had it not been for the judge exerting proper
judicial control over events, he might well have got his way. She, of T T
course, knew nothing of the background which has been engaged by way
U U
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B of affidavit evidence in this appeal. We consider that the judge was B
right to take this matter into account in sentencing, particularly with a C C vulnerable witness waiting anxiously outside court to give evidence.
D D
119. However, we wish to make clear that even without this
E E factor, bearing in mind the other aggravating features to which we have
referred, we would have considered an overall sentence of 9 years‟ F F
imprisonment appropriate after trial for the two offences.
G G
120. Finally, it is argued that the sentence of 4 years‟ H H
imprisonment on Count 1 was manifestly excessive. On its own,
I perhaps it would have been on the high side. But the offence was not on I
its own: it was the precursor to a much more serious offence, Ms X J J
having made her position clear after the episode in the bathroom that she
K did not want the applicant to touch her any further. Whatever the K
sentence on Count 1 was, the criminality of what was a separate offence L L
would have been factored into the overall sentence and the sentence
M M ordered to run concurrently with the sentence on Count 2, in accordance
with the totality principle. The fact that the individual sentence on N N
Count 1 was 4 years‟ rather than 3 years‟ imprisonment made no real
O O difference to the overall sentence of 9 years‟ imprisonment.
P P
121. Since we do not regard the sentence of 9 years‟
Q imprisonment for the applicant‟s overall conduct towards Ms X on 25 Q
August 2015 to be manifestly excessive, the application for leave to R R
appeal against sentence must be refused and the appeal dismissed.
S S
T T
U U
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B J. “Loss of time” B
C C 122. The ground of flagrant incompetence against both counsel
and solicitor in this case should never have been put forward in a set of D D
grounds of appeal, let alone persisted in once it became clear that it had
E E absolutely no substance whatsoever. The two witnesses who, in theory
at least, might have been able to support some of the applicant‟s F F
allegations if they had any truth in them at all, namely, the applicant‟s
G G wife and the interpreter at trial, have not given any evidence.
H H
123. Had appellate counsel been performing his function and
I exercising his professional judgment properly, he ought to have I
concluded that this ground of appeal was not properly arguable and J J
advised his client accordingly. Instead, a complaint has been set in
K motion, encouraged by the applicant‟s fresh legal representatives, which K
will have engaged trial counsel and solicitor (as well as the solicitor‟s L L
clerk) over many days in having to recollect and deal with the serious
M M allegations that have been levelled against them. Trial counsel‟s
affirmation alone runs to 19 pages with 31 pages of exhibits; while the N N
trial solicitor‟s affidavit runs to 10 pages with 17 pages of exhibits. The
O O solicitor‟s clerk‟s affirmation runs to 8 pages and 29 pages, and attaches
the CD Rom containing the applicant‟s WhatsApp voicemail messages. P P
Q 124. When Mr Ross appeared in place of Mr McGowan on Q
13 June 2019, he was reminded by the Court of the “very strong R R
comments that have been made by this Court and the Court of Final
S Appeal in relation to allegations (of flagrant incompetence) … and the S
consequences should the Court not find merit in the allegations”. That T T
advice was given in open court in the presence of the applicant. We
U U
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B cannot imagine that Mr Ross would not himself have known of those B
consequences, which were fully spelt out by this Court in Practice Note C 101 C (Crime: Loss of Time) , or that he would have failed to explain those
D potential consequences to his lay client. The applicant, in any event, D
would have been well aware of the Court‟s power to order “loss of time”, E E
having read Note 3 of the Form XI Notice of application for leave to
F appeal, which he signed on 23 June 2019. F
G G 125. Given that we were satisfied that this complaint was wholly
(and demonstrably) without merit, we invited Mr Ross to address us as to H H
why we should not exercise the power under section 83W(1) of the
I I Criminal Procedure Ordinance. We also allowed him to address us on
J the length of any consequent order, were we minded to make one. In the J
event, he was unable to give any sensible reason why the applicant should K K not be visited with an order for “loss of time”.
L L
126. There is one very telling detail which emerged in the
M M affirmation of trial counsel. Having described the applicant as “the most
difficult client” he had dealt with in several years of practice, he referred N N
to a specific instruction he had been given by the applicant to put before
O O the judge in mitigation; namely, that the applicant‟s mother had recently
died. Accordingly, counsel duly advanced in mitigation the fact that the P P 102 applicant‟s mother had passed away on 5 May 2017 . When,
Q Q following sentence, counsel asked the applicant whether he wished to
pass any message to his wife in respect of his mother‟s funeral, the R R
applicant confessed that her recent death was not true; he had said it in
S S order to obtain a lenient sentence.
T T
101 Practice Note (Crime: Loss of Time) [2013] 6 HKC 300.
102 AB p 272N-O. U U
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B 127. When we asked Mr Ross to take specific instructions on this B
matter, we were informed that the applicant‟s mother had in fact deceased C C within a few weeks of his birth. This detail is revealing in two respects.
D First, we cannot imagine why trial counsel would have described the D
incident at all, which had never been referred to by the applicant in any of E E
his various affidavits, and which involved counsel in confessing to
F putting something before a court which was a blatant lie, if it had not F
been his instructions to do so. Secondly, it demonstrates how G G
manipulative and disingenuous the applicant has been throughout these
H proceedings. It is partly because of the seriousness with which appellate H
courts regard allegations of flagrant incompetence, and the obvious I I
possibility of applicants manipulating the courts into undertaking
J painstaking, costly and time-consuming enquiries, with all the inevitable J
worry that is entailed for those against whom such complaints are made, K K
that fresh legal representatives have a particular responsibility to look for
L L supporting evidence of such claims and then sensibly and realistically
evaluate them before they can properly put them forward as grounds of M M
appeal on which submissions are made.
N N
128. Given the total lack of any merit to this complaint and the O O significant time, effort and inconvenience, not to mention anxiety, that
P will have been caused to the legal representatives at trial in having to deal P
with very serious imputations against their professionalism, honesty and Q Q
competence, none of which imputations we remotely accepted, we
R considered that there should be an order of “loss of time” of 3 months. R
We have to say that we gave serious thought to ordering a longer period S S
in the circumstances. It should not be assumed that 3 months is the limit
T of the Court‟s power. T
U U
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B 129. Accordingly, the applications for leave to appeal against B
conviction and sentence are refused and the appeals dismissed. In the C C exercise of the Court‟s power under section 83W of the Criminal
D Procedure Ordinance, we order that 3 months of the time during which D
the applicant has been in custody pending the determination of his appeal E E
shall not be reckoned as part of the term of the sentence to which he is for
F the time being subject. F
G G
H H
I I
J J (Andrew Macrae) (Ian McWalters) (Kevin Zervos)
Vice President Justice of Appeal Justice of Appeal K K
L L
Mr Ned Lai SADPP and Ms Hermina Ng SPP, of the Department of M M Justice, for the Respondent
N Mr Phillip Ross, instructed by K B Chau & Co, assigned by the Director N
of Legal Aid, for the Applicant
O O
P P
Q Q
R R
S S
T T
U U
V V