By Richard Thomas
Court of Final Appeal
Fairness - Translations
HKSAR v Chan Ka Chun
 HKCFA 31; FAMC 1/2018 (27 June 2018)
The Appellant was convicted of trafficking in a dangerous drug which was found in a box in his possession and in a car next to him. His case at trial was that he did not know what the box contained or about the presence of drugs in the car. He did not give evidence at trial but relied on the contents of a video recorded interview (‘VRI’). There were three mistranslations in the VRI which were unhelpful to the Appellant’s case. The trial judge did not speak Cantonese and relied on the English translations when summing up the case to the jury. The CFA held that whether a mistranslation leads to unfairness in a trial will necessarily depend on the nature and context of the mistranslation and its importance to the issues in the particular case. It was speculative to assume all jurors were native Cantonese speakers. On the particular facts of the instant case, substantive and grave injustice had been done to the Appellant and the conviction was quashed.
Court of Appeal
HKSAR v Lam Mei Ching, Bet
 HKCA 321; CACC 24/2015 (1st June 2018)
These case summaries have, over the last year, sought to highlight what is plainly something that is of real concern to the Court of Appeal and Court of Final Appeal, namely the proliferation of appeals based on impermissibly pedantic criticism of the trial advocate. Plainly all counsel practising in the appellate courts must make themselves aware of these authorities, and given the importance of this issue, the judgment has been repeated in greater detail than usual as it is essential reading. Of course, there will be occasions where trial representation is so poor as to have had an impact on the fairness of the trial but in pleading an appeal on this basis it is imperative that both the high threshold is addressed and met and there is a focus on the impact of the alleged incompetence. It is not the level of incompetence that is relevant but rather the impact of that incompetence.
The material parts of the judgment of the Court of Appeal are:
The applicant was represented at trial by an experienced criminal advocate. That is not to say that experienced criminal advocates do not make mistakes. However, whether counsel makes a mistake or commits an error of judgment, or whether arguably something should have been done differently at trial, is not the test for flagrant incompetence. In Chong Ching Yuen v HKSAR, the Court of Final Appeal endorsed the judgment of Gleeson CJ (now NPJ) in the Court of Appeal of New South Wales in R v Birks, where he held:
“…counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case”.
9. The Court of Final Appeal concluded, at para 48:
“It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment”.
10. However, the Court went on to recognise, at para 49, that “in some exceptional instances, an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice” (emphasis added). The critical question is whether an applicant can show that, as a result of that error, he or she received less than a fair trial.
30. What appears to have happened in this case, with respect, is that [appellate counsel] has indulged in a minute dissection of the witness statements, notebooks and evidence of the prosecution witnesses and formed the view that the chain of evidence should have been attacked, and not agreed. In effect, he is saying that, as a result of perceived discrepancies in the material, he would have done things differently from trial counsel. However, [appellate counsel] was not trial counsel and the conduct of the defence was not his discretion to exercise. In order to try and satisfy the very rigorous criteria which must be satisfied before this Court will entertain such arguments, he has sought to suggest that trial counsel was flagrantly incompetent. With respect, we see no justification whatsoever for him to have done so.
31. The Appeal Committee of the Court of Final Appeal have on three separate occasions within the space of barely 6 months, criticised the practice of making wholly unwarranted allegations of flagrant incompetence against trial counsel on appeal: see HKSAR v Chow Wing Wai; HKSAR v Cheng Yim Fung, Flora; and HKSAR v Li Xiaoxiang. We cannot help but observe that, in all three cases, [appellate counsel] was appellate counsel, albeit that he was led by Senior Counsel in the most recent case, acting on the instructions of the same set of solicitors. This repeated and undiscerning practice of impugning the conduct of trial counsel as flagrantly incompetent is evidently of as much concern to the Court of Final Appeal as it is to this Court.
32. We thoroughly endorse the emphatic remarks of the Appeal Committee in its most recent determination in HKSAR v Li Xiaoxiang, at para’s 27‑32, which we respectfully set out in full:
“27. This Court has on a number of occasions, most recently in HKSAR v Cheng Yim Fung, Flora, deprecated the fact and trend of misconceived and inappropriate charges of flagrant incompetence levelled at counsel appearing at trial. It seems that the message has not been understood and that some elaboration is warranted.
28. What appears not to be understood is the number and difficulty of decisions which trial counsel have to make and the wide discretion which must be accorded them in the conduct of criminal (and civil) litigation but for which the machinery of timely advice and efficient but fair litigation would be undermined. Without understanding this, the legal adviser who is engaged to advise upon possible grounds of appeal will inevitably fail to appreciate the limits of counsel error as a ground of appeal. It is precisely to illustrate the limits of that concept that in Chong Ching Yuen v HKSAR, Sir Thomas Eichelbaum NPJ took pains to explain the authority of counsel in regard to the conduct of a trial. By reference to R v Birks, he itemised many of the decisions which counsel in the conduct of proceedings is called upon to make: for example, “what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon … all matters within the discretion of counsel and frequently [involving] difficult problems of judgment, including judgment as to tactics” and that “[u]nless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.”
29. The point then made by Sir Thomas Eichelbaum was that:
‘48. It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment.
49. Nevertheless, the courts have recognised that in some exceptional instances, an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice. To describe this ground, the expression “flagrant incompetence” has generally been used ….’ (emphasis added).
30. If these principles and this reality were sufficiently understood, this Court and others in this jurisdiction would be troubled less frequently by unmeritorious assertions of flagrant incompetence by counsel. This is not to derogate from the duty of legal advisers to advance such a ground where there is a sound basis for doing so. But what is happening too frequently is of an altogether different order, namely, an exercise in dissecting the minutiae of first instance trials to uncover inconsistencies, to find questions asked which should not have been or questions not asked which should have been and to examine advice given as to the benefits or disadvantages of testifying, from which exercise is then constructed an alternative approach which might have been taken, and that alternative approach is then artificially elevated to the only acceptable approach with a blindness to the realities of trials and the latitude which must be accorded competent practitioners to exercise professional judgment.
31. Furthermore, if these principles and realities were sufficiently understood, the unnecessary exertions and anxieties imposed upon counsel against whom unwarranted allegations are made would be avoided. Any allegation of this kind inevitably requires trial counsel to forage for his or her contemporaneous notes and advice, to write letters and to swear affidavits or make affirmations and then, often, to subject himself or herself to cross-examination. Where there is substantial cause for asserting flagrant incompetence, this type of pressure and anxiety cannot be avoided for the assurance of a fair trial is paramount. But the 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, unless one has been at the receiving end, to the burden that is placed on counsel (or solicitor, as the case may be) against whom the attack is launched, and to the heavy anxiety suffered by a person whose competence and integrity is thereby placed under scrutiny.” We would endorse the advice of that Court that: “It is incumbent on appellate counsel never to advance such allegations unless there is a palpably sound basis to do so … .”
32. This determination is substantially longer than usual because we have thought it desirable to dispel in detail the unwarranted allegation of flagrant incompetence persisted in against counsel and to emphasise the need for great care to be exercised before such an accusation can responsibly be levelled at the counsel or solicitors involved.”
33. With respect to [appellate counsel], the complaints of flagrant incompetence he has levelled against trial counsel in this appeal betray a misunderstanding of the authorities and their application. In our judgment, there was no basis at all for the making of such complaints in this case.
34. We wish to add that this Court has the power to order loss of time in appropriate cases under section 83W of the Criminal Procedure Ordinance, Cap 221. If such grounds are mounted in future and are found to be, as we have found them to be in this case, totally bereft of merit, we shall use that power; whether or not counsel have approved and argued such grounds. We respectfully remind practitioners of the Practice Note (Crime: Sentence: Loss of Time) issued on 9 October 2013. Having noted, at para 9, that the fact that an applicant is acting under legal advice is not of itself a bar to an order for loss of time, the Practice Note continues:
“10. The Court has also become concerned at the frequency with which unmeritorious allegations of incompetence are made against counsel and solicitors. Such an allegation causes the practitioner whose reputation is thus impugned to expend considerable effort in the preparation of affidavits or affirmations and, often, in attending the hearing of the application. Although allegations of flagrant incompetence will always be examined carefully, the frequency of wholly unwarranted allegations has increased, both at the hands of represented and unrepresented applicants. An unwarranted assertion of incompetence will normally attract an order for loss of time.” (emphasis added)
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