FAMC No. 65 of 2017
 HKCFA 24
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 65 OF 2017 (CRIMINAL)
(On APPLICATION FOR LEAVE TO appeal from
HCMA No. 16 of 2016)
|Appeal Committee : Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Mr Justice Stock NPJ
|Date of Hearing and Determination
15 May 2018
|Date of Reasons for Determination :
21 May 2018
REASONS FOR DETERMINATION
Mr Justice Stock NPJ:
1. This application for leave was advanced on the substantial and grave injustice ground, based on an assertion of flagrant incompetence by trial counsel. At the hearing, we dismissed the application and these are our reasons.
2. The applicant was charged with attempted theft and common assault. The attempted theft was said to be from a lady’s handbag on board an MTR train when it was arriving at Tsim Sha Tsui on 12 October 2015 and the assault was said to have occurred when the lady and the applicant alighted.
3. The applicant pleaded not guilty. The complainant and the investigating police officer gave evidence for the prosecution. The applicant did not testify. On 18 December 2015, she was convicted of both chargesand sentenced to 12 months imprisonment and 7 days imprisonment, respectively, to run concurrently. Her appeal against conviction was dismissed by a judgment dated 29 November 2017.
4. It was common ground that at the material time, the train was crowded. The complainant said that when the train arrived at Tsim Sha Tsui, she opened her handbag intending to take out her wallet and saw a hand stretch into her handbag. She turned her head and saw that it was the applicant’s hand. She shouted, the applicant withdrew her hand and made to leave the train but when the complainant tried to stop her, the applicant struck her arm. The police were called.
5. Counsel who appeared for the applicant at trial held three pre-trial conferences. Prior to each conference he was given a proof of evidence, in identical terms, with her account of the events in question. In each the applicant, a person of previous good character, said that when she was due to leave the train someone pushed her from behind and upon stepping onto the platform she turned round and concluded that it was the complainant who had pushed. There then followed an altercation in the course of which the applicant pushed her back. The complainant, who was in the company of friends, then scolded her and called the police. Prior to the arrival of the police the applicant saw the complainant deliberately scratch her right upper arm. When the police arrived, the complainant said that the scratch had been inflicted by the applicant who had earlier attempted to steal her wallet.
6. The clear implication of these written instructions was that there had been no attempted theft and that the allegations of attempted theft and assault were made in bad faith as a result of the earlier altercation.
7. The complainant made a statement to the police as did her friend, Mr Cheng, who was also on the train. In his statement, he said that after they alighted from the train, he heard the complainant allege an assault and theft, and that the applicant said she had merely bumped into the complainant since there were so many people. She refused to apologise and alleged that she was being framed.
8. The defence of bad faith or frame-up was not pursued by counsel for the applicant at trial. Instead he sought to undermine the reliability complainant’s evidence by reference to the crowded conditions and the likelihood of an error in identification.
9. The magistrate accepted the evidence of the complainant that the applicant’s hand had been in her bag and that that act was intentional. These findings were made against the background of extensive cross-examination of the complainant by counsel for the applicant, directed at reliability rather than at credibility.
10. In lodging her appeal against conviction to the Court of First Instance, the applicant alleged four instances of flagrant incompetence: first, that defence counsel failed to put forward the defence case in accordance with the written instructions; second, that he failed to cross-examine the complainant in relation to material inconsistencies between her oral testimony and her witness statement; third, that the applicant was bound to be convicted if she did not testify, yet he not only failed to advise her to give evidence but persuaded her not to; and finally that he failed to require the prosecution to tender Mr Cheng for cross-examination, even though his witness statement enured to the benefit of the applicant.
11. As is standard practice in such cases, the assertions of incompetence were put to defence counsel by letter from those acting for the applicant and, again in accordance with usual practice, counsel in due course filed an affirmation for the purposes of the appeal.
12. The gravamen of the evidence filed by him was that the written instructions did not survive the account given orally by the applicant in the course of the various conferences. He attested to imprecision and contradictions by the applicant during these conferences, to several features of her account which, in his opinion, were inherently improbable and for which no satisfactory explanations were provided but most particularly to the fact that she changed her instructions and said that despite some harmless pushing as is commonplace in crowded situations, there had been no argument between her and the complainant and, further still, that she resiled from her assertion that the complainant had deliberately scratched her own arm. It was in those circumstances that it was agreed as between the applicant and counsel that the original defence of a frame-up would not be pursued and instead, the prosecution would be put to proof of...