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Held, allowing the appeal and setting aside the Order, that:
(1) Two important assumptions pervaded the reasoning of the
Tribunal, which could not be sustained. First, both the Court
of Appeal and the Tribunal proceeded on the assumption that
W would have testified in accordance with his witness
statement and that his evidence would have remained intact
after cross-examination. However, the assumption that W
would have said what he was recorded as saying, that he
would have emerged unscathed from cross-examination and
that he would have been accepted by the fact-finding Judge
as a witness of truth, was a dangerous one and not one on
which any trial counsel could unreservedly rely when deciding
how best to advance the defence case. (See paras.18, 23–24,
35.)
(2) The second assumption was that even if W’s evidence had
remained intact after cross-examination and been accepted by
the Judge, it would or might have led to D4’s acquittal. While
in those circumstances, W’s evidence might have supported
the defence’s general point “that [D4’s] underlying purpose
or motive was not to damage any economic interest of [C]”,
it would not ultimately have provided an answer to the charge
in the way it was alleged by the prosecution. On the other
hand, if W’s evidence did not remain intact or was not
accepted by the Judge, the inference that the payment in
question was unlawful and not a genuine arrangement would
not have assisted the defence. (See paras.18, 29, 34.)
(3) The Tribunal’s finding against B was not that she did not
advise her client at all as to the merits and demerits of
adducing W’s evidence but that she did not advise her client
properly in the light of the view that she erroneously formed
as to its relevance and significance. The Tribunal accepted B’s
evidence as to what advice she gave to D4. That advice
engaged the very issues which had led to the two assumptions
described above, which assumptions B plainly did not accept.
Contrary to the Tribunal’s view, B’s advice was correct in
law and thus it could not conceivably be said that B was
“flagrantly negligent” in the conduct of D4’s defence which
resulted in D4 not getting a fair trial. (See paras.36–40, 51.)
(4) (Obiter) While it was not necessary to resolve the wider issue
of the extent of counsel’s autonomy and discretion when
conducting a criminal trial, the following observations were
made. Times had changed considerably since 1876 and 1967
when Batchelor v Pattison and Mackersy and Rondel v
367 2015/10/6—10:33
[2015] 4 HKLRD 367 Wong Kam Kuen Catherine v Bar Council 369
Appeal
This was an appeal by a barrister against the finding of professional
misconduct made against her by the Barrister’s Disciplinary Tribunal.
The facts are set out in the judgment.
Mr David Perry QC, Mr Peter Duncan SC and Ms Maggie Wong,
instructed by Ho Tse Wai, Philip Li & Partners, for the appellant.
Mr Robert SK Lee SC, Mr YL Cheung and Mr Brian Chau,
instructed by Cheung, Tong & Rosa, for the respondent.
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370 HONG KONG LAW REPORTS & DIGEST [2015] 4 HKLRD 367
Macrae JA
1. On 25 July 2014, consequent upon its earlier finding of
professional misconduct by the appellant, the Barrister’s Disciplinary
Tribunal (the Tribunal) ordered inter alia that the appellant be
suspended from practice as a barrister in Hong Kong for a period
of one month and that she should pay the costs of the enquiry on
an indemnity basis. The Order was at the same time stayed pending
determination of any appeal.
2. On 3 June 2015, after hearing the parties, we allowed the
appellant’s appeal against the finding of the Tribunal and set aside
the Order made consequent upon that finding. We indicated that
we would hand down the reasons for our decision in due course.
This we now do.
The complaint
3. The appellant was alleged to have breached para.6(d) of the
Code of Conduct of the Bar of the Hong Kong Special
Administrative Region, between about 28 April and June 2008, by
not acting with competence in her preparation and conduct of the
defence of her client, Madam Lau Sau Yu (D4), in District Court
Case No DCCC 1008 and 1009 of 2007, in connection with a
witness statement made by Law Kar Po (Law) dated 4 January 2007,
in that:
367 2015/10/6—10:33
Wong Kam Kuen Catherine v Bar Council
[2015] 4 HKLRD 367 Macrae JA 371
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Wong Kam Kuen Catherine v Bar Council
[2015] 4 HKLRD 367 Macrae JA 373
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Wong Kam Kuen Catherine v Bar Council
[2015] 4 HKLRD 367 Macrae JA 375
decision and has played no part in our reasoning. Other than its
part in the chronology of events described above, we did not
consider it to be relevant to the arguments advanced and have
ignored it.
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Her defence was that there was no dishonesty on her part and that
she simply trusted Tong, who had asked her to make such an
arrangement. He submitted that it was, therefore, crucial to her
defence that Tong, who had already testified that he knew Elvis
Wong was allowed to receive the rebate, was telling the truth and
was a trustworthy person. Law’s evidence that Elvis Wong was in
fact permitted to receive the purchaser’s rebate would have
strengthened Tong’s assertion and thereby redounded to D4’s benefit
on the issue of dishonesty.
22. A subsidiary argument contended that the appellant ought
to have realised that Law’s evidence, in conjunction with Shih’s
evidence, could have provided the basis of a defence that the
conspiracy alleged in Charge 10 was legally impossible.
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[2015] 4 HKLRD 367 Macrae JA 377
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Later, when dealing with the case of D4 on Charge 10, the judge
expressed himself in similar terms:
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32. In our judgment, this was a perfectly proper way for the
prosecution to put its case on Charge 10 (and on Charge 7) and for
the judge to assess the nature of the conspiracy to defraud operated
upon Centaline. There was nothing impossible about it. In the Privy
Council decision of Wai Yu-tsang v The Queen [1992] 1 AC 269,
Lord Goff of Chieveley, giving the judgment of the Board, held at
279A–C:
In the context of conspiracy to defraud, it is necessary to bear in
mind that such a conspiracy is an agreement to practise a fraud on
somebody (cf Welham v Director of Public Prosecutions [1961] AC
103, 133, per Lord Denning). In R v Allsop 64 Cr App R 29, what
the defendant agreed to do was to present the company with false
particulars, in reliance upon which, as he knew, the company
would decide whether to enter into hire-purchase transactions. It
is then necessary to consider whether that could constitute a
conspiracy to defraud, notwithstanding that the defendant’s
underlying purpose or motive was not to damage any economic
interest of the company but to ensure that the transaction went
through so that he would earn his commission. Their Lordships
can see no reason why such an agreement should not be a
conspiracy to defraud the company, substantially for the reasons
given by the Court of Appeal. The defendant was, for his own
purposes, dishonestly supplying the company with false information
which persuaded it to accept risks which it would or might not
have accepted if it had known the true facts. Their Lordships cannot
see why this was not an agreement to practise a fraud on the
company because, as Shaw LJ said, it was a dishonest agreement
to employ a deceit which imperilled the economic interests of the
company.
Later, at 279H–280A, he said:
The question whether particular facts reveal a conspiracy to defraud
depends upon what the conspirators have dishonestly agreed to
do, and in particular whether they have agreed to practise a fraud
on somebody. For this purpose it is enough for example that, as
in R v Allsop and in the present case, the conspirators have
dishonestly agreed to bring about a state of affairs which they realise
will or may deceive the victim into so acting, or failing to act, that
he will suffer economic loss or his economic interests will be put
at risk.
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Wong Kam Kuen Catherine v Bar Council
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37. She explained in respect of the failure to call Law that she
was concerned about Law being cross-examined as to why a
document suggesting that Tommy Electric, a company which had
nothing to do with the transaction, should have been paid a referral
fee, part of which ultimately found its way to Elvis Wong but was
never accounted for in any document or account. She considered:
If I venture to ask that question, I may possibly end up by Law
saying that that may not be legal and he will say no to that
arrangement. Then I may destroy the defence case, which I
perceive at that time is quite good.
Similarly, she did not want to confront Shih with Law’s account
because she was concerned that, if it involved illegality:
I may end up with an unfavourable answer.
38. In respect of the issue as to whether Law’s evidence could
provide an answer to the charge, the appellant considered that it
would not. She told the Tribunal in evidence-in-chief that her advice
to D4 had been:
… that the charge itself was talking about falsely representing to
Centaline, with the use of Tommy Electric. In fact, according to
her instructions, she knew full well that Tommy Electric was not
the actual referrer in the transaction. So, whether Law Kar Po
allowed (Elvis Wong), his then employee or agent, to receive that
commission would not assist her defence.
In cross-examination, she reiterated:
As I said, Tong’s evidence was to the effect that this arrangement
was accepted by the company and it was a normal arrangement.
There is no dishonesty, there is no deception in this type of
arrangement, and that is why he approached (D4) to ask for
assistance. As I said, Law’s permission does not answer the charge
itself, because it was Centaline who is being deceived by that false
representation with the use of Tommy Electric.
39. If the Tribunal accepted the appellant’s advice that that is
what she had indeed told D4, and if that advice is in fact right in
law, then we cannot see how it can conceivably be said that the
appellant was “flagrantly negligent in the conduct of the defence
of (D4), which negligence resulted in (D4) not getting a fair trial”.
40. It is not alleged that the appellant failed to advise her client
at all about the relevance and significance of Law’s evidence. We
have already suggested that Law’s evidence, assuming it would have
come out and remained as expected, may have supported the general
point being made by the defence that “the defendant’s underlying
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Wong Kam Kuen Catherine v Bar Council
[2015] 4 HKLRD 367 Macrae JA 383
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384 HONG KONG LAW REPORTS & DIGEST [2015] 4 HKLRD 367
44. In view of the fact that the Tribunal accepted that the
appellant had indeed advised her client about Law’s evidence,
whether it be after Shih’s evidence and/or later at the close of the
prosecution case, and given our view that the advice she gave was
correct as a matter of law, it does not become necessary to resolve
the wider issue raised by Mr Perry of the extent of counsel’s
autonomy and discretion when conducting a criminal trial. In the
course of argument, he contended that counsel’s autonomy and
discretion cannot be contained or qualified unless and until his
instructions are withdrawn, and appeared to go so far as to say that
this would encompass not only decisions made in the conduct of
the trial but also advice (or, perhaps, the lack of it) given to the lay
client in the course of the proceedings. He referred in support of
the proposition to the judgment of the Lord President in Batchelor
v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, which was
referred to with apparent approval in the speech of Lord Morris of
Borth-y-Gest in Rondel v Worsley [1969] 1 AC 191, 241B–F.
However, we would make these observations about the argument.
45. In Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126,
an appeal before the Court of Final Appeal dealing with an allegation
of flagrant incompetence by counsel conducting a criminal trial, Sir
Thomas Eichelbaum NPJ, with whom the other members of the
Court agreed, held, at 142J:
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Conclusion
52. For the above reasons, we allowed the appeal. We
accordingly quashed the finding of the Tribunal and set aside its
Order of 25 July 2014. We further ordered that the respondent pay
the appellant’s costs both at the hearing and this appeal, to be taxed
if not agreed on the party and party basis. We were informed that
both leading and junior counsel, acting on behalf of the appellant
at both the Tribunal hearing and this appeal, were to their credit
acting on a pro bono basis.
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