Chief Justice Ma: 1. At the conclusion of submissions of leading counsel for the appellants, we dismissed the appeals of the appellants, with our Reasons to be handed down. I agree with the judgment of Mr Justice Tang PJ. 2. On 30 May 2014 the Appeal Committee granted leave to appeal to this Court on the basis it was reasonably arguable that there had been a substantial and grave injustice by reason of flagrantly incompetent advice given by the appellants’ counsel at trial. In the written case of the appellants, a number of other grounds were identified. No leave had been sought advance these other grounds nor any explanation given us to why leave was not sought or why it was justified to run them. In the end, at the hearing, counsel did not pursue the other grounds. Mr Justice Ribeiro PJ: 3. I agree with the Judgment of Mr Justice Tang PJ. Mr Justice Tang PJ: 4. Mr Chen Chu-nan (“the deceased”), a 33 year old visitor from Taiwan, was arrested on 12 August 2009 and was remanded in custody at the Lai Chi Kok Reception Centre (“the Centre”). He was found unconscious in a Protected Room[1] at 0748 hours on 16 August and certified dead at 0848 hours at the Princess Margaret Hospital. The autopsy report showed that 117 bruises were found on various parts of his body. 5. The appellants were Correctional Services Department (“CSD”) officers. On 31 August 2012, they were convicted for inflicting grievous bodily harm on the deceased on 15 August 2009 and were each sentenced to imprisonment for 16 months. 6. The prosecution case was that the injuries were inflicted at about 1100 hours in the Consultation Room on the ground floor of the Centre, whilst the deceased was in the custody of the appellants who were the only other persons in the room. The prosecution was unable to show which one or more of the appellants inflicted the grievous bodily harm and it relied on joint enterprise. The appellants did not give evidence. In the Reasons for Verdict (“the Reasons”), Deputy District Judge E Lin said: “86. There is no evidence for me to find which of the defendants was responsible for which particular injury found on the deceased. Yet since the three defendants were acting in concert both before and after the attack, I found that all the defendants are jointly liable for the infliction of the aforesaid injuries.” 7. They appealed to the Court of Appeal.[2] Their grounds of appeals included complaints about the competence of defence counsel at trial.[3] One such complaint was that counsel was flagrantly incompetent because he had failed to give adequate or correct advice on whether or not they should testify, and that he had given wrong advice because of his misunderstanding of the law relating to joint enterprise. Although the Court of Appeal was unanimous in rejecting all other grounds of appeal, they disagreed on this particular complaint, and the appeal against conviction was dismissed by a majority.[4] 8. On 30 May 2014, an appeal committee granted leave to appeal on the basis that it was reasonably arguable that there had been a substantial and grave injustice in connection with the appellants’ trial by reason of flagrantly incompetent advice given to them. 9. In the Reasons, the trial judge gave a detailed account of the movements of the deceased commencing 0930 hours on 15 August, when he was examined by Dr Wong Chi-ho (“PW7”), a doctor who was attached to the Centre. It was admitted or not disputed that, as a result of this examination, the doctor made the following remarks in the Health Screen Form: “Good past health”, “Not known drug addict”, “No alleged assault”, “No claimed allergy” and “stable”. He found the deceased’s condition stable and general health satisfactory[5]. 10. Shortly afterwards, Mr Kwong Kwok-bun (“PW2”), a CSD officer, saw the deceased at the reception office. According to PW2, the deceased was behaving strangely, so he arranged for him to be seen by the doctor again. 11. At about 1030 hours, Mr Koon Kin-yip (“PW1”), whose duty was to maintain order in the hospital corridor heard commotions and saw the deceased standing on the staircase leading to the hospital floor, where inmates were not allowed. The deceased was told to wait outside the MO’s office, where he was observed to be murmuring to himself and grinning. The deceased was told to sit outside the Treatment Room. 12. At about 1100 hours, PW1 heard So Ka-wai, the 2nd appellant (“D2”), and Leung Shing-chi, the 1st appellant (“D1”), shout at someone in Putonghua and saw the deceased running into the Consultation Room. They tried to stop the deceased. They also went inside the Consultation Room. So did Mr Tang Yuk-po, the 3rd appellant (“D3”). PW1 followed them into the room some 20-30 seconds later. According to the trial Judge: “27. In the Consultation Room PW1 saw the deceased standing next to the doctor’s desk, his upper body bent on the same, with D2 and D3 holding down each of his shoulders. From the way PW1 described it, the deceased’s head must have propped on his chin on the desk and his face was facing the computer table (see P9(22) and P2A). The deceased kept wriggling his body, shouting, “I want to go home”. D3 repeatedly told the deceased to calm down and then instructed D1 and D2 to force the deceased down onto the floor, but even then the shouting and the struggling continued. Then D3 told the deceased not to move any more or OC foam will be used. 28. At that point PW1 suddenly remembered there were some 30 inmates waiting in the corridor and that there was only one other colleague on duty, so he left the room to attend to other duties. He stated that he did not witness the use of OC foam, nor did he see anyone using the extendable truncheons. He did not remember hearing any noise coming out of the Consultation Room. 29. At about 1059 hours D3 came out and instructed PW1, who was about 4 metres away from the Treatment Room, to escort all other inmates back to their own cells before going back into the room again.” 13. Shortly before 1109 hours the deceased came out of the Consultation Room and a CCTV recording showed that at 1109 hours the deceased was in the elevator on the way to the Protected Room on the first floor. The deceased entered the Protected Room at 1118 hours. There he remained until he was found collapsed at about 0740 hours on 16 August. Whilst in the Protected Room his movements were monitored and recorded by a CCTV camera. According to the trial judge, the CCTV footage is grainy and of very low resolution. However: “45. … the deceased’s body was in full view at all times, except for the few minutes during which he covered himself with a blanket, and there were a few seconds in which one could not make out where his hands were.” 14. He was examined by Dr Wong at 1118 hours, 15 August 2009 in the Protected Room: “52. … He found red marks on the deceased’s eyes, both cheeks, anterior chest wall, which were “consistent with OC foam” … He saw no foreign substance on the deceased’s face, nor did he detect any serious injuries and swelling.” 15. At 1120 hours, a CSD officer took Polaroid photographs of the deceased. He was not wearing any upper garment. However, the photographs were so poor that it is impossible to tell if he had injuries on his body. 16. At 0340 hours, 16 August 2009, CSD officer Chiu Pak-ming (“PW4”) checked on the deceased and found him sitting on the floor. PW4 noticed that a bruise the size of a fist on the deceased’s outer thigh but did not notice if he had any bruises on his face. 17. At 0740 hours, PW4 was told that the deceased had collapsed. PW4 could not detect any heart beat[6]. By the time, Mr Ip Chi-man (“PW3”), a paramedic with the Fire Services Department, arrived, the deceased had been moved to the corridor. He noticed that there were many bruises on the deceased’s trunk and limbs. The deceased was not breathing and had no pulse. The deceased was taken to the Princess Margaret Hospital. He was examined by a doctor there at 0816 hours and certified dead at 0848 hours. 18. Dr Ng Chung-ki (“PW8”), a senior forensic pathologist of Kwai Chung Mortuary, who had prepared the autopsy report, gave evidence for the prosecution. He said the injuries found on the deceased could not have been inflicted by himself when he was in the Protected Room. Nor were they caused post-mortem or by efforts to resuscitate him. 19. He said in his report of 10 August 2011: “The sort of injuries sustained during an assault or a struggle depends on the degree and form of violence of the event. Therefore, to determine whether the injuries present are resulted from an assault or a struggle often relies on the circumstantial evidence of the event. In the present case the number and severity of the deceased’s injuries are suggestive of a violent assault. Nonetheless, just basing on the autopsy findings alone, the possibility that the injuries were sustained during a vigorous struggle could not be entirely excluded.” 20. The trial Judge noted: “64. PW8 further stated that the bruise found on the deceased’s head were not visible externally and could be caused by blunt forces. If the deceased was suffering from bleeding disorder, PW8 would expect it to be a persistent condition. Therefore he would expect to find bruises showing signs of healing, but none of which was found.” 21. The defence called Dr Beh Swan Lit, a Clinical Associate Professor at the Faculty of Medicine, University of Hong Kong. In addition to saying that the injuries could be less serious than they looked and that they could have been caused by less violence, he said, on the assumption that the deceased was suffering from a bleeding disorder, the resulting bruises would be bigger than on a person without the disorder.[7] 22. An inquest was held to determine the cause of the death of the deceased from 5 October 2012 to 20 November 2012. At the Inquest, the appellants gave evidence. The jury returned an open verdict. 23. In the Court of Appeal, Mr Grossman SC appeared for the appellants. There were several grounds of appeal. As explained above, all but one were unanimously rejected. [8] 24. The sole point[9] on which leave was given to appeal concerned counsel’s advice to the appellants on whether they should give evidence. It became clear in the course of Mr Grossman’s submissions that the real complaint was that having regard to the prosecution evidence counsel should have advised the appellants in strong terms that they or some of them must testify.[10] He submitted that unless they or one of them should do so conviction was inevitable and that counsel was flagrantly incompetent in failing to do so. 25. As Sir Thomas Eichelbaum NPJ explained, the expression “flagrant incompetence” is used to underline “an appellant’s need to show much more than a mistake, an error of judgment, or a decision to follow one course when in hindsight another would have been preferable.” Also, critically, what is decisive is the effect of the error, and whether as a result the appellant had not had or might not have had a fair trial.[11] 26. It is well known that one of the most difficult tactical decisions encountered in the conduct of a defence is whether or not the defendant should testify. Hartmann J (as he then was) explained in HKSAR v Chow Kit Kwong CACC 370/2007; unreported, 23 July 2008: “32. … Counterbalancing factors will have to be taken into account. By way of illustration, these may include an assessment of the true strength of the prosecution case after it has been tested by way of cross-examination, an assessment of the degree to which the defendant will be able to give evidence of value and, in addition, the degree to which he will be able to withstand the rigours of cross-examination. It is notorious that, in some cases, the best hope of an acquittal lies in advising a defendant in the strongest terms not to testify. No defence can be professionally managed by rote.” 27. In the Court of Appeal, both Mr Davies and the 2nd appellant gave evidence and were cross-examined.[12] The 2nd appellant’s evidence was that throughout Mr Davies was of the view that there was no need for them to give evidence. Mr Davies denied this allegation and said the question of their giving evidence was a subject of continuing discussions. 28. Mr Davies’s evidence was supported by notes of conferences made within two weeks of the conclusion of the trial from notes made at the time of such conferences and before any complaint was made of his conduct. The conference notes showed that between 8 June 2012 and 10 August 2012, Mr Davies was in conference with the appellants on eight occasions, lasting a total of 19 hours and one conference with Dr Beh[13] which took one hour. These conferences were also attended by a solicitor and a legal clerk[14]. The contents of these conference notes, showed quite clearly that the subject of the appellants testifying was discussed more than once. I quote from some of these notes: 5 July 2012:[15] “Went through defendant’s evidence with each defendant. It was noted that the defendants were at times vague and inconsistent. Discussed if advisable for defendants to testify in court.” 20 July 2012: “Discussed with defendants advantages and disadvantages of testifying in court. All defendants indicated that they would prefer not to testify. Final decision to be made by defendants later.” 8 August 2012: “Discussed with each defendant concerning giving evidence in court. Advised defendants of their rights regarding giving evidence including advantages and disadvantages. Asked Defendants to prepare for mitigation. Took full background details from defendants and asked them to provide copies of all qualifications, commendations etc obtained by them. Also obtain letters from friends colleagues and relatives.” 10 August 2012: “Further discussed with defendants regarding testifying in court. All defendants indicated that they were reluctant to testify. All defendants, however, advised to prepare to testify. Final decision would be made after the conclusion of the prosecution case.” 29. Line J rejected the evidence of the second appellant and accepted the evidence of Mr Davies that the question of their testifying was a subject of ongoing discussion. Macrae JA noted the disagreement but he had not found it necessary to resolve it.[16] Stock VP did not deal with this specifically but on the other factual dispute between the parties[17] he preferred the evidence of Mr Davies noting that he was supported by the conference notes.[18] I believe he shared Line J’s view on this part of Mr Davies’s evidence too. 30. However, as one would expect, and the conference note dated 10 August 2012 confirmed this, the final decision on whether any of the appellants should testify would only be made after the conclusion of the case for the prosecution. At the conclusion of the prosecution case, the court was told that none of them would give evidence. Mr Davies’ evidence was that he advised the appellants that it would be better if they did not testify. 31. I turn to Mr Grossman’s submission that having regard to the evidence, Mr Davies should have advised the appellants in strong terms that one or more of them should give evidence, otherwise conviction was inevitable. This submission does not depend on whether Mr Davies had misunderstood the concept of joint enterprise. Like Stock VP[19], I would first consider why counsel advised the appellants against testifying and then decide whether it was reasonable for him to give such advice. 32. What happened after the conclusion of the prosecution case[20] was dealt with in some detail by Mr Davies in his first affirmation affirmed on 9 May 2013 where he said: “14. On 21st August [2012] (sic), immediately after the trial was adjourned for lunch I held a meeting with the applicants to discuss whether they wished to testify. All applicants indicated that they would prefer not to testify. 15. At that meeting, I did advise the applicants that I believed it would be better if they did not testify and I informed the applicants of my reasons for this namely the following: (i) The poor performances of the applicants when going through their evidence in chambers; and (ii) My belief, that in order to convict, the judge would have to determine that the injuries to the victim could only have been inflicted inside the consultation room at around 11:00 am on the day of the incident. In order to make such a finding, the court had to find that Dr Wong’s [PW7] initial examination of the victim at 9:30 a.m. was reliable but his second examination at 11:20 was unreliable. Dr Ng and Dr Beh had testified that the wounds should have been visible by 11:20 a.m. Neither of the medical examinations carried out by Dr Wong had been challenged and it was my belief that no reasonable court could reach such a conclusion. 16. At about 3 p.m. that afternoon, the prosecution closed their case and I applied to court to stand down the case to confirm the applicant’s election. … Each applicant then signed a form prepared by the solicitor confirming their election not to testify.” 33. The other factual dispute adverted to in para 29 above was whether the appellants had performed poorly in a mock-examination conducted in conference. On this factual issue, Stock VP accepted counsel’s evidence that the appellants’ answers in a testing of their evidence by a mock-examination in a conference in July 2012 led him to believe that giving evidence would only harm their case.[21] 34. Stock VP concluded that counsel was faced with the difficult situation that without their evidence, the case against the appellants was very strong[22] but their evidence might make the case against them even stronger. 35. Stock VP then dealt with the argument that counsel should have advised the appellant that their only hope of an acquittal was to testify and said: “151. … since the mock cross-examination led counsel to believe that the applicants’ account would in the result condemn them, or make their case worse, it would have been entirely illogical for him to advise them that their only hope of success was in giving evidence. And I fail to see, in those circumstances, how it can reasonably be suggested that counsel’s tactically-based advice was incompetent. 152. Defence counsel frankly accepted before us that the course which he advised the applicants to take had its real risk and he told us that he advised the applicants that there was a danger in it. Yet, the alternative course, that of giving evidence was in his view, for reasons which he has explained, even more dangerous. So what was he to do? In my judgment, he was to make that kind of decision which counsel are regularly called upon to make. He made a decision - or rather, he gave that advice - with the benefit of extensive contact with the applicants and with their case.”[23] 36. Line J also accepted Mr Davies’s evidence that his advice was based on his perception that they would not better their case, which was based on his assessment of their performance in the mock cross-examination conducted in his chambers.[24] 37. With respect, I agree with Stock VP that it could not reasonably be said that counsel was incompetent. It follows that no question of flagrant incompetence can arise. 38. Macrae JA was of the view that: “119. … on the facts and in the particular circumstances of the case, … Without their evidence as to what had transpired in the consultation room in their dealings with (the deceased), their conviction was inevitable. …” 39. I begin by considering what evidence the appellants would have given. We have their witness statements. They show that they would say that the deceased had struggled violently. They had to restrain and use OC foam (twice) to subdue him. These facts were not in dispute. The critical issue was whether they or some of them had used excessive force. On that, their evidence was that none of them had used excessive force during the approximately 9 minutes they were in the Consultation Room with the deceased. In other words, if any of the injuries on the deceased could only have been caused by excessive force they had no explanation for them. In para 19 above, I have set out the extracts from Dr Ng’s report dated 10 August 2011 which was quoted by the learned Deputy District Judge at para 62 of the Reasons. The learned trial judge in para 61 cited extracts from Dr Ng’s further written opinion on the cause of bruises of 18 August 2012. Dr Ng gave oral evidence and was cross-examined. Whilst Dr Ng could not entirely exclude the possibility that the injuries were sustained during a vigorous struggle, he said: “ … the number and severity of the deceased’s injuries are suggestive of a violent assault.”[25] 40. On the basis of Dr Ng’s evidence the learned Deputy District Judge concluded that: “83. While it would be impossible to account for each of the 117 external injuries found on the deceased, I accept PW8’s (Dr Ng) postulation that at least the injuries to the scalp and thigh were caused by blunt forces.” 41. After concluding that the injuries could only have been inflicted in the Consultation Room and by the appellants, the learned Deputy District Judge said: “84. … The extent and the number of injuries were such that I am left with no doubt at all that the defendant had used unnecessary and grossly excessive force in order to subdue him. …” 42. Given the fact they were convicted because some of the injuries could only have been caused by excessive force, their evidence that they had not used excessive force would not have helped. 43. Moreover, I cannot agree that absent their testimony conviction was inevitable. I have already referred to Dr Ng’s evidence that he could not rule out the possibility that the injuries were the result of a violent struggle. There was of course the evidence of Dr Beh, the defence expert. And there was the evidence of Dr Wong[26]. There was also the argument that the conclusion that the injuries were caused by unlawful force in the Consultation Room did not represent the only inference to be drawn from the evidence[27]. These and other arguments were repeated by Mr Grossman in the Court of Appeal. These arguments failed in the Court of Appeal but given their different functions, I believe they were tenable arguments at first instance. It follows that in my opinion, there was a chance of an acquittal. It might have been a slender one but a real chance, nonetheless. 44. That being the case, like Stock VP: “I am not prepared against this background to second-guess (counsel’s decision to advise against testifying), still less to conclude that it was an incompetent decision.”[28] 45. For the above reasons, it could not be said that they did not have or might not have had a fair trial. And their appeals must be dismissed. 46. It follows it is unnecessary to go on to consider whether counsel had misunderstood the law of joint enterprise. In the Court of Appeal, Stock VP and Line J were of the view that there was no misunderstanding. Macrae JA thought otherwise. Had it been necessary to decide this point, it would be necessary to probe deeper into the law of joint enterprise, the leading authority on which is Sze Kwan Lung and Others v HKSAR (2004) 7 HKCFAR 475. At trial, Ms Lau, prosecuting, in her oral submission, referred to and relied on Robinson v R (2011) UKPC 3, in support of her alternative case that some of the appellants could be guilty as accessory. Robinson, an appeal to the Privy Council from Bermuda is authority that although aiding imports a positive act of assistance, being present and communicating to the person committing the offence that one was ready and willing to help may be a sufficient positive act of assistance. Mr Davies responded to the submission on Robinson and some of the passages highlighted by Macrae JA[29] might have been directed to the prosecution’s case on Robinson. It is not necessary for the disposal of this appeal to go into this further and I will not do so. 47. For the above reasons, the appeals were dismissed. Mr Justice Fok PJ: 48. I agree with the Judgment of Mr Justice Tang PJ. Lord Hoffmann NPJ: 49. I agree with the Judgment of Mr Justice Tang PJ. Mr Clive Grossman SC, Mr Osmond Lam and Ms Emerald Shek, instructed by Leung & Lau, for the 1st, 2nd and 3rd appellants. Mr Nicholas Cooney, SC, on fiat of the Department of Justice and Mr William Tam, DDPP and Ms Virginia Lau, ADPP, of the Department, for the respondent. [1] With padded walls and used to confine refractory or violent inmates. [2] Stock VP, Macrae JA, and Line J. Judgment handed down on 15 January 2014 (“the Judgment”). [3] Mr Oliver Davies. [4] Macrae JA dissenting. The appeal against sentence was dismissed unanimously. [5] Para 51 Reasons. [6] Para 47 Reasons. [7] Para 72 Reasons. The bleeding disorder was a possible consequence of alcoholism. [8] Para 7 above. There was also an application for leave to adduce fresh evidence which included the appellants’ evidence at the inquest. The application was rejected and the appeal committee refused leave to appeal. [9] Other points were raised in the printed case, however, they were rightly not pursued because leave to appeal had not been given in respect of them. [10] R v Clinton [1993] 1 WLR 1181 was a case where it was held that counsel should have advised the appellant in the strongest possible terms to give evidence. [11] Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126, at 143-4. Chan Fat Chu v HRSAR (2009) 12 HKCFAR 775, 781F. [12] They had also each made two affidavits/affirmations. [13] The conference with Dr Beh took place on 21 July. At a subsequent conference with the appellants on 27 July to discuss Dr Beh’s report, it was recorded “Agreed report favourable to the defendants.” [14] The solicitors produced virtually identical notes, presumably based on counsel’s notes. The solicitors’ notes also showed the duration of each conference. [15] This was the fourth conference and lasted 3 hours. The first three had taken a total of 8 hours. [16] Judgment para 97. [17] Para 33 below. [18] Judgment para 136. [19] Judgment para 130. [20] The trial commenced on 13 August 2012 and the prosecution case ended at about 3 pm on 21 August 2012. [21] Judgment paras 133 and 136, where, with respect, Stock VP carefully and convincingly explained why he accepted counsel’s evidence. [22] Indeed, the fact that the appellants were faced with a strong case was clearly recognized. Long before it was decided that they should not give evidence, they were advised in the conference on 8 August 2012 to prepare for mitigation. [23] Line J was also of the view that as counsel considered that “more harm than good would come of calling any applicant and that he had points to make to create a doubt.” “23. … his conduct could never be characterised as flagrantly incompetent in this regard.” [24] Judgment paras 19-20. [25] Report date 10 August 2011. [26] See para 15(ii) of Mr Davies’s first affirmation quoted in para 32 above. [27] Judgment para 141. [28] Judgment para 153. [29] Judgment paras 102-107.