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Hksar v Li Xiaoxiang

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date21 May 2018
Neutral Citation[2018] HKCFA 24
Judgement NumberFAMC65/2017
Citation(2018) 21 HKCFAR 272
Year2018
Subject MatterMiscellaneous Proceedings (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FAMC65/2017 HKSAR v. LI XIAOXIANG

FAMC No. 65 of 2017

[2018] 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)

_____________________

Between

HKSAR Respondent
and
LI XIAOXIANG Applicant

_____________________

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:

Introduction

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.

The trial

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 charges[1]and 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[2].

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.

The appeal

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 its case in the context of the possibility of an error by the complainant.

13. As for the advice not to give evidence, counsel alluded to the applicant’s highly nervous state on the morning of the trial, her own express wish not to give evidence because of her nervousness and his assessment that likely contradictions by her would only harm her case.

14. He added that whilst he noticed some discrepancies between the complainant’s evidence and her witness statement, he did not believe them to be significant and there was a risk that in drawing attention to them, other parts of the statement would merely serve to support her credibility. Finally, he said that he failed to see how the evidence of the Mr Cheng would assist since he did not discern material discrepancies between his statement and the complainant’s testimony.

15. The Judge had this affirmation before him. Counsel gave evidence upon the appeal and was cross-examined by the solicitor advocate for the applicant. The Judge also had before him an affidavit of the applicant’s sister who had attended the pre-trial conferences and who said that there were in fact no changes in the course of these conferences to the instructions contained in the proofs of evidence. The judgment alludes to an affirmation by the applicant, but it is not in the bundle before us.

Not putting the case of a frame-up

16. A key feature of the allegation of incompetence levelled against counsel in the written application for leave, as we read it, was that in abandoning the case of a frame up counsel had inexcusably departed from his instructions. In oral submissions before us the suggestion seemed to be a more general one of not following written instructions.

17. For the purpose of this application for leave, no transcript of the oral testimony before the Judge has been filed but it is not suggested that it departed from the thrust of counsel’s affirmation. It is apparent that the Judge accepted the account given by counsel after having heard him cross-examined and, significantly, it is not asserted upon this application that that finding is impeachable. That being so, it is difficult to see how this application for leave can get off the ground. That is because the central assertion, that counsel departed from his instructions that the complainant had made a false allegation triggered by a fracas, cannot hold water once it is accepted that those instructions were not pursued and were expressly withdrawn. If the complaint of a frame-up following a fracas had been maintained by the applicant, counsel would have been duty-bound to represent her on that basis. But on the evidence accepted by the Judge, that is not what happened. Nor is it otherwise demonstrated that counsel departed from the applicant’s account conveyed to him as a result of his conferences with her. There is accordingly no possible...

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