HKSAR v. APELETE KOKOU AFLA

CACC 176 /2017

[2019] HKCA 1189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 176 OF 2017

(ON APPEAL FROM HCCC NO 74 OF 2016)

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JUDGMENT ON WASTED COSTS

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Hon Macrae VP (giving the Judgment of the Court):

A. Introduction and chronology of events

1.  On 16 May 2017, the applicant was convicted before Toh J and a jury of one count of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200 and another count of rape, contrary to section 118(1) of the same Ordinance.  He was sentenced on the following day to an overall term of 9 years’ imprisonment.

2.  On 14 June 2017, the applicant filed a Notice of Application for leave to appeal (Form XI) in respect of conviction only. On 4 September 2017, his application for Legal Aid was refused by the Director of Legal Aid.

3.  On 24 November 2017, Messrs Mohnani & Associates (“the solicitors”), who had been retained by the applicant on a private basis, filed a Notice to Act on behalf of the applicant.  On 29 January 2018, Mr McGowan of counsel, having been briefed by the solicitors on a private basis to advise, filed perfected grounds of appeal on behalf of the applicant.  There were five substantive grounds of appeal, Ground 5 of which was drafted in the following terms:

“5.  The conduct of the Applicant’s Defence was such as to amount to “Incompetence of Counsel”.  This included, but was not limited to:-

a)  A lack of direct communication between his lawyers and the Applicant;

b)  A failure to take written instructions before trial;

c)  The general inexperience of his privately instructed Counsel;

d)  Advising him that he should not and need not give evidence despite the nature of the case.”

4.  In view of the terms and nature of Ground 5, and in accordance with the current practice where such grounds of appeal are averred, Master Cheung, the Registrar of Criminal Appeals (“the Master”), gave written directions on 7 February 2018, which were incorporated in a formal letter dated 9 February 2018 from the Registrar of the High Court, that the solicitors were to file a waiver of legal professional privilege (“LPP”) by the applicant within 14 days, and an affirmation in support of his complaint of counsel’s incompetence within 28 days of the letter.

5.  Nothing thereafter was received from the solicitors and, on 23 March 2018, the Master issued a reminder to the solicitors to comply with her directions.

6.  There was still no response and, on 4 May 2018, the Master wrote again to the solicitors, with a copy being sent to Mr McGowan, noting that neither the waiver of LPP nor the affirmation in support had yet been received, and giving the solicitors 7 days to confirm in writing whether they were still pursuing Ground 5.  The solicitors were further warned that if they failed to file the documents concerned, they would not be able to pursue Ground 5 at the application for leave to appeal.

7.  On 10 May 2018, Mr McGowan wrote to the Registrar of the High Court acknowledging the reminder of 4 May 2018 and apologising for the delay.  He said that, although drafting of the affirmation had begun, he and the solicitors had made arrangements to see the applicant in order to continue with the affirmation and obtain his formal waiver of LPP on 21 April 2018, but were unable to do so before prison visits ended for the day.  No separate letter was sent by the solicitors to the Registrar.

8.  On 14 May 2018, in response to Mr McGowan’s letter, the Master granted an extension of 21 days from the date of her letter for the applicant to file the required documents in respect of Ground 5.

9.  However, the documents were still not forthcoming and, on 11 June 2018, the solicitors wrote to the Registrar, for the attention of the Master, requesting a further extension of 21 days in order to file them.  In that letter, it was asserted that “there have, unfortunately, been funding issues which has hindered us taking [the applicant’s] matter forward”.  This letter was copied to Mr McGowan.

10.  On 26 June 2018, the Master granted the extension sought and directed that the documents were to be filed “on or before 9 July 2018”.

11.  Meanwhile, on 17 August 2018, Legal Aid was granted to the applicant; Mr McGowan being on the same day assigned to be the applicant’s counsel at the appeal, and Mr Mohnani his instructing solicitor.

12.  Since there had been no compliance with the directions of 26 June 2018, the Master wrote again to the solicitors on 5 September in the following trenchant terms:

“The Applicant’s solicitors are to file within 7 days from today a written explanation of their blatant disregard of the Court’s directions regarding the filing of the Applicant’s waiver of LPP and affirmation in support of the flagrant incompetence of counsel ground.”

13.  This letter prompted a response from the solicitors, by letter of 10 September 2018, to the effect that there had, again, been “funding issues which has hindered us taking [the applicant’s] matter forward”, and requesting yet another extension of 21 days to complete and file the documents concerned.  It will be noted from the above chronology, however, that Legal Aid had been granted to the applicant some 3 weeks before this letter was written.

14.  On 12 September 2018, the Master took note of the solicitors’ “repeated explanation”, but pointed out that:

“unless and until the solicitors have been absolutely discharged from representing the Applicant, they are reminded that there is a positive duty for them to comply with all the court’s directions and in the circumstances that they might fail to comply, they should report to the court and make necessary arrangements/applications in a timely manner”.

A further extension of 21 days to file the waiver of LPP and affirmation in support of Ground 5 was granted, but it was emphasised that no further extension would be granted “without cogent justification”.  The Master reiterated that any failure to comply might result in the applicant not being able to pursue the said ground of appeal.

15.  Thereafter, nothing more was heard from either the solicitors or counsel for more than 7 months, until 17 April 2019.  Meanwhile, on 7 November 2018, the application for leave to appeal was ordered to be listed and, on 14 November 2018, set down for a one-day hearing on 13 June 2019.  Consequent orders as to the filing of written submissions by the parties (no later than 28 days and 14 days before the hearing for the applicant and respondent respectively) were also made on 7 November 2018.

16.  On 11 April 2019, having heard nothing further after the granting of a 21-day extension on 12 September 2018, the Court directed that, since there had been a persistent failure to comply with the Court’s directions for the filing of the necessary documents in respect of Ground 5, the applicant was prohibited from pursuing Ground 5 at the appeal.  The direction was sent to the solicitors by way of letter of 12 April 2019.

17.  This direction from the Court prompted a letter from Mr McGowan on 17 April 2019, acknowledging the Court’s criticism but seeking to explain that repeated attempts had been made to contact the applicant’s wife for support of the serious allegations being levelled at trial counsel, as well as obtain certain WhatsApp messages on the applicant’s telephone, but to no avail.  The Court was invited to reconsider its direction disallowing Ground 5 to be argued.  Mr McGowan wrote, inter alia:

“With respect, not to allow this particular Ground to proceed would, effectively, sanction [the applicant] for our acknowledged failings, which were not his fault.

We therefore respectfully ask the Court to reconsider the Direction given on 12 April, and allow Ground 5 to be fully argued.

We, further in fairness to those he accuses, and to the Respondent, accept this may well require an adjournment of the 13^th June hearing, and this could result in costs and other sanctions”.

Enclosed with Mr McGowan’s letter was an unsigned draft affirmation from the applicant, but no separate waiver of LPP.

18.  On 10 May 2019, the Court directed that its earlier direction would stand.

19.  On 12 June 2019, the day before the scheduled hearing of the appeal, the Court received a letter from Mr Ross of counsel indicating that he had just been assigned counsel for the applicant in place of the applicant’s previous legal team, which had been discharged by the Director of Legal Aid.  Mr Ross requested the hearing of the appeal to be vacated and re-fixed in accordance with his diary.

20.  On the same day, the Court directed that the appeal would remain as listed and indicated its concern at “the failure by counsel and solicitors to abide by the court’s directions and orders in this case”.  The Court also ordered Mr McGowan and Mr Mohnani, together with Mr Chow, the handling solicitor at the Legal Aid Department (“LAD”), to appear before it on 13 June 2019.

B. The hearing of the wasted costs order

21.  On 13 June 2019, Mr Ross and new solicitors having been assigned to the applicant by the Director of Legal Aid on 11 June 2019 upon the discharge of Mr McGowan and the previous solicitors the same day, the Court felt obliged to adjourn the hearing of the leave application. Nevertheless, we indicated, having set out the above chronology in open court, that we were considering the making of costs orders under sections 17 and/or 18 of the Costs in Criminal Cases Ordinance, Cap 492 (“the CCCO”) and that we wished to give the parties a reasonable opportunity to appear before the Court to show cause why such orders should not be made.  We further made clear that the parties were entitled to provide evidence at the adjourned hearing by way of affirmation if they wished and, in view of the seriousness of the matter, that Mr McGowan, Mr Mohnani and Mr Chow might wish to be separately legally represented.

22.  When the matter of a costs order came back before the Court on 18 September 2019, neither Mr McGowan nor Mr Mohnani had sought to obtain legal representation and were content to represent themselves, while Mr Chow was represented by Mr Yeung of the LAD.  Although Mr Chow had filed a sworn affidavit, Mr McGowan and Mr Mohnani had each written a letter to the Court, which they wished to adopt as their respective explanations.  When we pointed out that there were questions arising out of those explanations which we wished to ask and that they did not have to answer if they felt their positions might be compromised in relation to other consequent proceedings, each said that he was willing to answer questions from the Court.

23.  Having heard extensively from Mr McGowan, Mr Mohnani and Mr Yeung, as well as from Mr Lai on behalf of the respondent, we said we were satisfied that we should make wasted costs orders against Mr McGowan and Mr Mohnani under section 18 of the CCCO.  We were equally satisfied that we could not make a wasted costs order against Mr Chow. However, as to the quantum of those costs and any issue of possible apportionment between the two, we ordered further submissions in writing from Mr McGowan and Mr Mohnani as well as from Mr Lai as to the breakdown of the costs incurred by the respondent and generally, and gave time limits for the filing of those submissions.  The submissions were duly received by the Court and have been considered in the orders we have made.

C. The law governing wasted costs orders

24.  Before explaining our reasons for making orders under section 18 of the CCCO, we should say something of the law governing the making of wasted costs orders against legal or other representatives under the Ordinance.  In doing so, we have been greatly assisted by the efforts of Mr Lai, with him Ms Ng and Mr Leung, in their comprehensive, fair and lucid arguments on behalf of the respondent, with which submissions none of the other parties to these proceedings have taken issue.

25.  The term “wasted costs” is defined in section 2 of the CCCO as:

“…any costs incurred by a party to the proceedings –

(a)  as a result of –

(i) any seriously improper act or omission; or

(ii) any undue delay or any other serious misconduct, on the part of any representative or any employee of a representative; or

(b)  which, in the light of any such act, omission, delay or misconduct occurring after they were incurred, the court considers it is reasonable to expect that party to the proceedings to pay.”

26.  It was observed of the power to make an order for wasted costs by this Court in HKSAR v Tam Yi Chun (No 2)[1], at paragraph 6:

“The legislature in Hong Kong has made a deliberate choice to circumscribe the circumstances in which the power may be exercised, in a way which is much narrower than the circumstances permitted by the legislation of England and Wales.  There is, for example, no reference in Hong Kong to a negligent act.  It must be something much more than that, as emphasised as well by the repeated use of the word “serious”.”

Similarly, in HKSAR v Harjani; Re Sutherland (Appeal: Wasted Costs Order)[2], the Court held, at paragraph 236:

“By the use of the words “seriously” and “serious” in the definition of “wasted costs” in the CCCO, a higher threshold is required under s.18 of the CCCO, when compared with its civil or United Kingdom counterparts.”

27.  The Court in Harjani also dealt with the meaning of the word “improper” in the context of wasted costs, at paragraph 235:

“The word “improper” in the definition of “wasted costs” in the CCCO covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or any other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. It also extends to any conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion, whether or not such conduct violates the letter of a professional code”,

which statement was derived from the judgment of Sir Thomas Bingham MR (as he then was) in Ridehalgh v Horsefield[3], at 232D-E; a judgment approved by the House of Lords in Medcalf v Mardell[4], by this Court in Tam Yi Chun (No 2) and by the Court of Final Appeal in Ma So So v Chin Yuk Lun & Anor[5].

28.  As for the question of “undue delay”, paragraph 9(a) of Practice Direction 4.2 Criminal Appeals to the Court of Appeal stipulates:

“Applicants and their legal representatives are required to take all the steps necessary to bring on an application with due diligence. Delay should be avoided and undue delay may be considered a dereliction of duty by the counsel or solicitor concerned.”

The question of what may amount to undue delay was considered in this jurisdiction in the civil context in China Metal Recycling (Holdings) Limited (In Compulsory Liquidation) & Anor v Chun Chi Wai & 12 Ors[6]. There, new solicitors for the two appellants had formally taken over the appeal from the former solicitors on 29 November 2016, by which time directions had already been issued by the Registrar of Civil Appeals on 6 September 2016 for the appellants to lodge appeal bundles by 11 January 2017 and skeleton submissions by 18 January 2017.  No progress whatsoever was made throughout December 2016 by the new solicitors in compliance with the directions of 6 September 2016, as a result of which they failed to lodge any appeal bundles or skeleton submissions.

29.  The new solicitors explained that they were unable to take instructions from the appellants and did not have the appeal papers; however, they had failed to obtain the papers from sources other than the former solicitors.  Yet the new solicitors remained on the record as the appellants’ solicitors and no application for any extension of time was made.  The Court of Appeal dismissed the appeal for want of prosecution, ordering the new solicitors to pay wasted costs on the basis that they were “guilty of undue delay in the preparation of the appeals and, in the context of these appeals the delay amounted to a serious dereliction of duty on the part of [the new solicitors]”[7].

30.  Lam VP, giving the judgment of the Court, held:

“8. Nowadays the courts place great regard to proper preparation and expect parties to comply with case management directions. In the context of an appeal, the relevant practices are now set out in the new Practice Direction 4.1 which will come into force on 1 March 2017. Before that, as in the present appeal, the Registrar of Civil Appeals usually gives case management directions when the date of appeal is fixed. Solicitors are expected to take the necessary steps to comply with such directions diligently and timely. …

9. If it transpires that there are difficulties in complying with directions due to unforeseen developments, a solicitor should inform the court as soon as practicable. …

10. We must stress that case management directions issued by the Registrar of Civil Appeals are made to facilitate the efficient and proper preparation of appeals. They are meant to be taken seriously. Non-compliance can lead to the disruption of the preparation work undertaken by judges sitting in the appeals as well as the preparation work by those acting for the opposite parties. Hence, the court expects solicitors to comply with such directions diligently and conscientiously. Non-compliance has to be explained as unfair disruption in the preparation may, in serious cases, lead to the adjournment or even dismissal of an appeal. Even though the courts nowadays are more proactive in case management, the whole process would only be effective if litigants and their lawyers co-operate and adhere to directions given by court, thus the importance of the duty under Order 1A Rule 3.

……

17.  All in all, it is wholly unacceptable that no progress whatsoever was made in the whole of December by [the new solicitors] towards the compliance with the directions.”

31.  Albeit in the civil context, and with due emphasis and recognition being given to the seriousness of the impropriety or misconduct by the legal representative(s) which has been deliberately injected into the provisions of the CCCO by the legislature, we regard these remarks as equally apposite in the criminal context.  Certainly, counsel is required by the Code of Conduct of the Bar of the Hong Kong Special Administrative Region “in every case [to] use his best endeavours to avoid unnecessary expense and waste of the Court’s time”[8]; while it has been said that a “solicitor’s overriding duty to the court requires him not to waste the court’s time”[9]. As Ma CJHC (as he then was) stated in Yeung Mok Yeh & Anor v HKSAR[10], at paragraph 14:

“Solicitors are expected to do more than merely refer all matters to counsel. The proper observance of time limits and practice directions are matters which a competent solicitor is expected to do.”

32.  It must be remembered that quite apart from the fact that delays and failures to comply with directions from the Court in criminal cases result in wasted preparation, delayed appeals and potentially successful applicants remaining in custody longer than necessary, unnecessary adjournments inevitably affect other applicants in other cases who are patiently waiting for their appeals to be heard, and who could have been dealt with earlier.  Such delays are not conducive to the efficient and proper administration of justice.  In HKSAR v Ma Siu Chiu[11], Ma CJHC said:

“In Yau Chiu Wah v Gold Chief Investment Ltd & Anor (No 2) [2003] 3 HKC 91 at 102, [2003] 3 HKLRD 553 at 564 (in para 32), I referred to the crucial role of solicitors and barristers in promoting the administration of justice. This is a paramount duty. I do not repeat that part of the judgment here but it is as applicable to criminal cases as it is to civil cases, as applicable to barristers as it is to solicitors. The courts will not be prepared to countenance any dilution of this paramount duty.”

33.  In Harjani, the Court approved of a three-stage test in considering a wasted costs application in respect of the conduct of a barrister[12]. The test in criminal cases, applicable equally to solicitors, may be stated as follows:

(1)  Has the barrister of whom complaint is made acted seriously improperly, or been guilty of undue delay or other serious misconduct;

(2)  If so, has such conduct caused the applicant to incur unnecessary costs;

(3)  If so, is it in all the circumstances just to order the barrister to compensate the applicant for the whole or any part of the relevant costs?

The Court in Harjani held that, in relation to stage (2), there must be a causal link between the offending conduct and the extent of the costs incurred or wasted; while stage (3) involves the exercise of discretion.  Noting the differences in the law applicable to wasted costs in Hong Kong as between the civil and criminal jurisdictions, and between the relevant legislation in Hong Kong and the United Kingdom, the Court held that the three-stage test catered for the higher threshold under the CCCO[13].

34.  With this exposition of the applicable law wherever a wasted costs order is contemplated under section 18 of the CCCO, we turn to a consideration of the test in the present case.

D. The parties’ positions

D.1. Mr McGowan’s position

35.  In his letter to the Court dated 12 July 2019, Mr McGowan said he understood that the applicant’s wife, Ms Yuen, had been the conduit for conveying the applicant’s instructions to the legal representatives at trial.  Having received the initial call from Ms Yuen in June 2017, as a result of which Mr McGowan had furnished her with a list of solicitors, she was unable to be further contacted.  Consequently, the new defence team could not corroborate what had transpired between the applicant and his former legal representatives. He also referred to funding difficulties before Legal Aid was granted, although he accepted that no mention of such difficulties had been made in his letter to the Registrar of 10 May 2018.  Mr McGowan offered his sincere apologies for his conduct which he described as a non-compliance, but not defiance, of the Court’s directions, for which he accepted full responsibility.

36.  Before us, Mr McGowan candidly admitted that his actions (or lack thereof) were such as to bring him within the meaning of section 18 of the CCCO.  In particular, he accepted that on his part there had been undue delay as well as a repeated failure to comply with the Court’s directions, which amounted to serious professional misconduct.

37.  Inasmuch as Mr McGowan had floated the notion in his letter to the Court that some of the Court’s directions were not copied to him, he properly accepted before us, as we believe must have been the case given that he as counsel was directly affected by the orders and extensions sought, that he would have been aware of them.  This matter was laid to rest by Mr Mohnani, who said that all of the Court’s directions would have been communicated by him to counsel. 

D.2. Mr Mohnani’s position

38.  In his letter to the Court dated 19 July 2019, Mr Mohnani explained that he first paid a visit on a pro bono basis to the applicant in Stanley Prison on 12 July 2017.  Although he had only ever had one telephone conversation with the applicant’s wife in March 2018, and despite repeated assurances from the applicant that he would retain his firm’s legal services in the event that legal aid was not granted, the applicant was ultimately unable to come up with sufficient funds to fund the appeal.  Mr Mohnani nevertheless took responsibility for his failures to comply with the Court’s directions, albeit that he also termed them as non-compliance with, rather than defiance of, the Court’s directions and orders.

39.  Before us, however, Mr Mohnani also candidly admitted that there had been repeated non-compliance with orders and directions of the Court, which amounted to seriously improper conduct.  In particular, he was unable to explain why nothing had been done on his part following the directions from the Master of 12 September 2018.

40.  It is to be observed, and we shall return to this matter in due course, that both Mr Mohnani and Mr McGowan further accepted that they had never made any enquiries of either counsel or solicitors at trial in response to the allegations of flagrant incompetence being made against them.

D.3. Mr Chow’s position

41.  It was Mr Yeung’s submission that Mr Chow as supervising counsel at the LAD was not a “party to the proceedings” within the definition of the “wasted costs” provision in section 18 of the CCCO.  The LAD performs an administrative role in approving legal aid to eligible applicants and settling legal fees and disbursements.  It also monitors the progress of cases handled by the assigned legal representatives so as to ensure that public resources are being used in an appropriate and cost-effective way. 

42.  In his affidavit, Mr Chow explained that LAD monitored its assigned counsel and solicitors and there were several cases where legal representatives had been removed from the Legal Aid Panel because of their unsatisfactory performance.  Those assigned to a case had a positive duty to keep the LAD informed of the conduct of the case so that the LAD could properly oversee its progress.  In the present case, the LAD were unware of the non-compliance with the Court’s directions by Mr McGowan and Mr Mohnani.  Mr Yeung raised the issue of whether all court directions and orders should in future be copied to the LAD so that it could provide more effective supervision of the conduct of the appeal.

D.4. The respondent’s position

43.  As we have indicated, no issue was taken by any of the parties with the submissions as to the law in respect of the making of wasted costs orders advanced by Mr Lai, with him Ms Ng and Mr Leung.  Given that we accept those submissions, the salient features of which we have already set out above, we shall not set out their very detailed and comprehensive arguments here.  Attached to their submissions, however, was an annex quantifying the wasted costs amounting to $443,500 incurred by the respondent in this matter^[14]. Subsequent to the Court’s order on 18 September 2019, the Annex was revised to $356,850 when Mr Lai accepted, among other reasons, that he should waive the costs incurred by one of the three counsel appearing for the respondent.

44.  Whilst Mr Lai submitted that a wasted costs order could be made by the Court against both the solicitor and counsel appearing in the case, he submitted that such an order could not be made against Mr Chow personally or the LAD, since neither of them was a “legal or other representative” or “a party to the proceedings” within the meaning of section 2 of the CCCO.

E. Consideration of the making of a wasted costs order

45.  We agree that a wasted costs order cannot be made against Mr Chow of LAD.  He was not “a party to the proceedings” at the relevant times.  However, we agree with Mr Yeung’s submission that in future all Court directions and orders to assigned counsel and solicitors in appeal proceedings should be copied to the LAD, so that it can play a more effective role in monitoring the performance of those assigned to the appeal.

46.  Whilst Mr Chow may not have been “a party to the proceedings”, the same cannot be said of Mr McGowan and Mr Mohnani.  Even if one accepts that there may have been funding issues affecting the solicitors, the fact is that they remained on the record as the applicant’s solicitors and were obliged, until such time as they ceased to act, to comply with the Court’s directions and time limits.  They were reminded of this obvious duty by the Master in her letter of 12 September 2018, granting the solicitors a further extension of 21 days to comply:

“… unless and until the solicitors have been absolutely discharged from representing the Applicant, they are reminded that there is a positive duty for them to comply with all the Court’s directions and in the circumstances that they might fail to comply, they should report to the court and make necessary arrangements/applications in a timely manner”.

At no stage did they ever comply with the order to file the required documents concerned from the time the first direction was given by letter of 9 February 2018 until they were discharged by the Director of Legal Aid on 11 June 2019.  While an unsigned affirmation was sent to the Court accompanying Mr McGowan’s letter of 17 April 2019, the applicant’s waiver of LPP was never sent.

47.  Whatever the position may have been in respect of funding, the applicant was legally aided as from 17 August 2018.  There can be no excuse for either Mr Mohnani or Mr McGowan failing to comply with the Court’s directions thereafter and no conceivable justification for allowing 7 months to go by from 12 September 2018 (the granting of yet another 21-day extension) until Mr McGowan’s plea to be allowed to argue Ground 5 of 17 April 2019.  Even then, the documents were not properly signed and filed.

48.  The result of this astonishing and repeated failure to comply with the orders of the Court is that the appeal was left languishing in the listing office until, pursuant to a direction from the Vice President of the Court of Appeal on 7 November 2018, the appeal was ordered to be listed, which it was a week later.  Even then, nothing was forthcoming from the solicitors or counsel until 5 months later, with 2 months to go before the hearing of the appeal, when the Vice President directed that, the required documents having not been filed despite repeated and persistent directions and extensions, the applicant was prohibited from arguing Ground 5 at the application for leave to appeal. 

49.  The ultimate consequences of this catalogue of defiance and delay in repeatedly failing to comply with the directions and orders of the Court are that the appeal fixed for 13 June 2019 could not take place; the appeal had to be re-fixed to a date more than 4 months later; and the respondent’s submissions will have had to be redrafted to meet a rather different appeal.  Moreover, the respondent will now have to deal with Ground 5 in its new incarnation, the ground of appeal having been substantially amended by new counsel assigned by the Director of Legal Aid.  Considerable costs have thereby been wasted.

50.  On these facts alone, and even without the candid acceptance by Mr McGowan and Mr Mohnani before the Court that they were each liable to a wasted costs order being made, we were satisfied that an order under section 18 of the CCCO should be made against each of them.  Accordingly, on 18 September 2019, we made the order and adjourned the matter for written submissions on the issues of quantum and apportionment.  These we have now received and read.

F. The wasted costs orders

51.  In quantifying the amounts payable under the order, we are conscious that any order we make should be compensatory of the party whose costs have been wasted[15]. Accordingly, we have examined the bill of costs placed before us by the respondent and reduced the overall costs claimed to have been wasted by the respondent in respect of their preparation for the hearing of 13 June 2019, and the hearing itself, from $145,000 to $107,300.  We considered that Item 1a in the bill of costs prepared by Mr Lai should be reduced from $40,600 (representing 7 hours’ preparation) to $29,000 (representing 5 hours’ preparation); Item 1c(1) should be reduced from $23,200 (representing 4 hours’ preparation) to $11,600 (representing 2 hours’ preparation); and Item 1c(3) should be reduced from $29,000 (representing 5 hours’ preparation) to $14,500 (representing 2½ hours’ preparation). 

52.  The result is that the total bill of the respondent’s costs for preparation for the abortive hearing of 13 June 2019 is, therefore, on our assessment, reduced from $139,200 to $101,500; while the costs for the hearing itself remain at $5,800.  Making a further slight reduction of the overall figure from $107,300 to $100,000, and finding that the costs should be equally apportioned, we make an order that Mr McGowan and Mr Mohnani are each to pay a wasted costs order of $50,000 pursuant to section 18 of the CCCO.

53.  The respondent further applies for the costs of the making of the application, which necessitated considerable preparation for the hearing on 18 September 2019 and attending that hearing itself, as well as the preparation of a revised statement of costs, amounting in all to $211,850. We take into account that both Mr McGowan and Mr Mohnani, after some initial prevarication, did not ultimately contest the application for wasted costs and that much of the research which forms the greater part of the respondent’s submissions was done more to assist the Court than to advance the respondent’s application.  In these circumstances, we consider that the justice of the case warrants an order for costs in favour of the respondent of a further sum of $50,000 against Mr McGowan, and a further sum of $50,000 against Mr Mohnani. We shall order that the full amount of their respective costs orders shall be paid by Mr McGowan and Mr Mohnani by 31 December 2019.

54.  For the sake of completeness, we did not consider the making of a costs order under section 17 of the CCCO to be appropriate. Such an order is contemplated where “costs have been incurred … by a party to the proceedings as a result of an unnecessary or improper act or omission by or on behalf of the other party to the proceedings”, in which circumstances, “the court or the judge may … order all or part of the costs so incurred” to be paid to one party by the offending party; the term “party to the proceedings” being defined in section 2 as meaning “the defendant or the prosecutor”.  Since neither the defendant (or applicant) nor the prosecutor were here at fault, let alone the LAD, we declined to make an order under section 17 of the CCCO.

G. Complaints of flagrant incompetence

55.  In considering the conduct of counsel in this matter, another issue has emerged which we regard as being of considerable importance to the administration of justice.  Both Mr McGowan and Mr Mohnani accepted that at no stage after they entered the picture following the filing of the Notice to Act on 24 November 2017, did they ever approach either counsel or solicitors at trial for a response to the complaints Mr McGowan had seen fit to include in his perfected grounds of appeal of 29 January 2018.

56.  As we have noted, by the time Mr McGowan and Mr Mohnani were discharged from representing the applicant by the Director of Legal Aid on 11 June 2019, more than 16 months had lapsed since perfected grounds of appeal had been filed with the Court.  That no enquiries had ever been made during that time of either previous solicitors or counsel as to the allegations of flagrant incompetence made against them is as extraordinary as it is unacceptable.

57.  It should be remembered that the allegations forming the basis of the ‘perfected’ grounds of appeal were, at that stage, simply bare assertions by someone aggrieved by his conviction.  No independent evidence had been obtained and, critically, no attempt was made to ask the parties against whom the allegations were directed what they had to say to these complaints. Of this practice, Lord Thomas of Cwmgiedd CJ said in R v A(EO)[16]:

“Of late it has become the habit for a number of cases to be brought on appeal to this court on the basis of incompetent representation by trial solicitors or trial counsel. As in this case, many such cases proceed without any enquiry being made of solicitors and counsel who acted at trial. That means that the lawyer who brings such an application acts on what is, ex hypothesi, the allegations of a convicted criminal – and in this case a convicted paedophile. For a lawyer to put forward such allegations based purely on such a statement, and without enquiry, is in our view impermissible. Before applications are made to this court alleging incompetent representation which is based upon an account given by a convicted criminal, we expect lawyers to take proper steps to ascertain by independent means, including contacting the previous lawyers, as to whether there is any objective and independent basis for the grounds of appeal.

As long ago as 1997 in R v Doherty and McGregor [1997] 2 Cr App R 218, this court drew attention to the fact that it was proper for fresh representatives as a matter of courtesy to speak to former counsel before grounds of appeal are lodged.  Today circumstances have changed.  The frequency of this kind of appeal makes it clear to us that counsel and solicitors would be failing in their duty to this court if they did not make inquiries which would provide an objective and independent basis, other than complaints made by the convicted criminal, as to what had happened.”

58.  In the subsequent case of R v McCook (Practice Note)[17], Lord Thomas CJ, sitting with the President of the Queen’s Bench Division and the Vice President of the Court of Appeal (Criminal Division), reiterated[18]:

“… First, it is always desirable to consult those who have acted before in a case where fresh counsel and solicitors have been instructed. In R v A(EO) … we stated that it was necessary to do so where criticisms of previous advocates or solicitors were made, or grounds were to be put forward where there was no basis for doing so other than what the defendant said. Secondly, it is clear from this case that we must go further to prevent elementary errors of this kind. In any case where fresh solicitors or fresh counsel are instructed, it will henceforth be necessary for those solicitors or counsel to go to the solicitors and/or counsel who have previously acted to ensure that the facts are correct, unless there are in exceptional circumstances good and compelling reasons not to do so. It is not necessary for us to enumerate such exceptional circumstances, but we imagine they will be very rare.”

59.  In the most recent case of R v McGill[19], Lord Thomas CJ again repeated the importance of proper enquiries being made whenever fresh solicitors and counsel are instructed, pursuant to what he had earlier characterised as a ‘duty’ on the new legal representatives to ensure that any facts relied upon at the appeal were correct:

“127. In McCook [2014] EWCA Crim 734, [2016] Crim App R 30, [2015] Crim LR 350 this court set out the duty of an advocate instructed by an applicant or appellant on an appeal where the advocate had not been the advocate at trial, irrespective of whether there was any criticism of the trial advocate. The court said:

“In any case where fresh solicitors or fresh counsel are instructed, it will henceforth be necessary for those solicitors or counsel to go to the solicitors and/or counsel who have previously acted to ensure that the facts are correct, unless there are in exceptional circumstances good and compelling reasons not to do so.  It is not necessary for us to enumerate such exceptional circumstances, but we imagine that they will be very rare.”

128. Unfortunately, this did not happen in the present appeal, as far as all the applicants are concerned. By the time of the first hearing of the appeal on 15 June 2017, those now instructed by the applicants (McGill and Corey Hewitt) had made some, but inadequate, enquiries of the legal team at trial. One of the teams on the application made a few enquiries of trial counsel and then sent them a 39-page draft setting out the grounds of appeal followed by a 28-page finalised grounds.

129. We directed that proper enquiries be made and full disclosure given before the resumed hearing on 11 and 12 July 2017. Even then, the enquires were not adequate. We directed that further specific questions which we drafted be put to the previous legal teams.

130. Although applications for leave to appeal which involve either express or implicit criticism of the lawyers at trial, or where the information available to the new advocate is incomplete (for example where an application is made to adduce fresh evidence) ought to be few and far between, we have noted an increase in such cases. There seems to be an assumption that enquiries are only necessary where criticism is made of the trial representatives. That is not the case.

131. For the avoidance of doubt, new advocates instructed in a case, whether or not they believe the grounds involve criticism of the trial representatives, must make all proper and diligent enquiries of previous counsel, advocates and solicitors, so that they have all the information properly to understand what took place prior to and during the trial. This will also be necessary in every case involving an application to call fresh evidence. They must then expressly certify in the grounds of application for leave to appeal submitted to the court on form NG that that has been done. The court will not entertain an application without such a certification.

132. As the present applications have shown, a failure to make proper enquiries before the application is made can result in very significant extra time and cost being expended and grounds being pursued which are found to be unsustainable.

133.     We would emphasise that it is a wholly inadequate compliance with this duty to send the lawyers instructed at the trial the grounds of appeal and to ask for comments.  Inevitably the application will be made sometime after the trial and those representing the applicant at the trial must have identified for them the issues that relate to the conduct of the trial which are relevant to the appeal.  Specific questions must be formulated and specifically put.  Some questions will simply be for information that is not apparent from the papers.  In other cases, there will be implicit criticism; in such a case there can be no shying away from putting fairly and squarely the implicit criticism of those then acting for the applicant at the trial so that the appellate court has all the information before it when it commences the consideration of the application.  The fact that a trial lawyer might have retired or left the profession to take up office or for some other reason does not excuse the newly instructed advocate from pursuing such enquiries with that person.”

60.  In the wake of the Lord Chief Justice’s statements in this trilogy of authorities, it is now the duty of fresh legal representatives on appeals in England and Wales to check any matters of fact that are to be asserted on appeal and to certify in the perfected grounds of appeal that that has been done.  That duty on fresh legal representatives coming into an appeal has been described in Court of Appeal Criminal Division: A Practitioner’s Guide, one of whose authors is the current Registrar of Criminal Appeals in England and Wales, as follows[20]:

“Duties of fresh representatives

Before lodging grounds, fresh legal representatives have a duty to ensure that they have taken appropriate steps to ensure that any factual matters asserted therein have been verified by independent means.  This will usually always involve ensuring that the trial representatives have verified any factual matters asserted in the grounds of appeal before they are lodged (R v McCook [2014] EWCA Crim 734).  It is essential that the grounds of appeal include a statement that the fresh representatives have complied with these duties.  In addition, if complaints are made of the trial representatives’ conduct of the trial, a signed waiver of privilege form from the defendant must also be lodged with the grounds (R v Achogbuo [2014] EWCA Crim 567.  See also R v Lee [2014] EWCA Crim 2928).”

61.  We are of the view that appellate courts in Hong Kong have hitherto perhaps not been as stringent as they should have been in dealing with complaints of flagrant incompetence in which serious allegations against trial counsel and/or solicitors are put forward in perfected grounds of appeal, without any proper enquiries having been made of the previous legal representatives and without any sensible consideration of whether such grounds are properly arguable. 

62.  At one point during exchanges with the Court, Mr McGowan sought to suggest that counsel on appeal putting forward a complaint of flagrant incompetence against trial counsel was “in the same position in a trial where a defendant’s account of something is extraordinary, but that’s what he said happened”.  For the reasons articulated by Lord Thomas CJ in A(EO), we emphatically repudiate such thinking.  An appeal is not a trial: unlike the putting of instructions at a trial, appellate counsel is required to make his own conscientious assessment of such allegations as a professional barrister before putting them forward as a “properly arguable” ground of appeal[21]; and no such assessment can properly be made without first looking for independent confirmation of the allegations and consulting the previous legal representatives.

63.  As the Appeal Committee of the Court of Final Appeal has recently seen fit to remind the profession, in HKSAR v Li Xiaoxiang[22], where allegations of flagrant incompetence are put forward:

“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 …”[23].”

64.  The test for a ground to be “properly arguable”, which is founded upon counsel’s duty to the court, must now be understood in respect of this particular ground, as requiring a “palpably sound basis” for any allegation to be made against former legal representatives.  We have difficulty in conceiving of any circumstances where this test could ever be met without the enquiries to which we have referred being conducted.

H. The new practice where flagrant incompetence is advanced as a ground of appeal

65.  From henceforth, therefore, any appellate counsel (by which term we include a solicitor or solicitor-advocate acting on an appeal) putting forward a ground of appeal alleging flagrant incompetence on the part of the legal representative(s) at trial has a duty to satisfy himself that the ground is properly arguable, as that test has now been explained.  In making that assessment, he will be required to look for independent and objective evidence to support the complaint and, in every case, unless there are in exceptional circumstances good and compelling reasons not to do so[24], make full and proper enquiries of the previous legal representatives at trial in relation to the complaint before articulating it as a ground of appeal.  Simply sending the previous legal representatives a copy of the grounds of appeal and asking for comments will not suffice: specific questions must be formulated for comment.  Counsel must then add an appropriate certificate in the grounds of appeal themselves that he has complied with this duty when relying on such a ground.  Furthermore, a signed waiver of LPP from the applicant in respect of the legal representatives at trial, together with an affirmation in support of the complaint, must be filed at the same time as the ground of appeal.

66.  These requirements may by comparison with previous practices seem onerous.  But they are consonant with the seriousness with which appellate courts regard such allegations, the impact and effect of such complaints upon any professional lawyer and the solemn duty upon appellate counsel not to put forward such grounds of appeal unless they are properly arguable.

67.  We recognise that such duties may take time to comply with.  However, the sooner they are addressed, the easier it will be for the trial lawyer concerned to deal with the issues raised against him.  The later they are addressed, the more difficult it will be for the trial lawyer to recollect events and the more such complaints may risk being seen as grounds of last resort.  There is, of course, nothing to prevent applications to amend perfected grounds of appeal being made, once appellate counsel has complied with these duties.

68.  We would also emphasise that the duty to put forward properly arguable grounds of appeal in this particular area does not end with the filing of grounds of appeal.  If subsequent material comes to light casting doubt on the applicant’s claims, there is a continuing duty on counsel to evaluate the propriety of the grounds of the complaint.  It is no part of counsel’s duty to argue the unarguable.

I. Other grounds of appeal attacking the conduct of trial lawyers

69.  Not infrequently, counsel on appeal, impliedly or explicitly, attack the conduct of the legal representatives at trial, which is said to have affected the fairness of the trial, but in respect of which no allegation of flagrant incompetence is made.  We wish to make it clear that the duties which we have set out in respect of complaints of flagrant incompetence, shall also apply to any ground of appeal which seeks to assert that something happened or did not happen at trial, which should or should not have occurred.  In such a situation, fresh counsel on appeal will also be required to make enquiries of the previous legal representatives as to what was done or not done, and why. Having done so, they are likewise required to certify in the grounds of appeal themselves that they have complied with this duty. 

70.  For example, where, on an application to adduce fresh evidence on appeal, it is argued that there was evidence which for some reason was not called or produced at trial, it is the duty of fresh counsel on appeal to find out from the legal representatives at trial the reason for it not being adduced.  Where an applicant’s previous convictions were revealed in evidence and it is suggested on appeal that they should not have been referred to, it would be incumbent on fresh counsel on appeal to find out the reasons at play at trial.  Where a particular argument or issue was or was not advanced at trial, which is said on appeal to have been contrary to the applicant’s instructions or to have resulted in an unfair trial, fresh counsel on appeal is obliged to make enquiries from his predecessor as to why he took or did not take a particular course. 

71.  We stress that these are merely examples of the types of facts and circumstances which might be asserted on appeal, which oblige fresh appellate lawyers to make proper enquiries of the previous legal representatives.  It is not an exhaustive list of such circumstances.

72.  It is easy, with the benefit of hindsight, to be critical of the actions and decisions of trial counsel.  Where the acts or omissions of trial counsel are the result of the exercise of professional judgment, then the hurdle for establishing professional incompetence, and that the trial was consequently unfair, is a high one indeed.  In this respect, we remind practitioners of that which was said in Li Xiaoxiang, at paragraphs 28-30.

73.  Even if it is possible to show that there was fault in the acts or omissions of trial counsel, it does not necessarily follow that an appeal will be successful.  In Chan Fat Chu v HKSAR[25], the Court of Final Appeal held, when discussing flagrant incompetence as a ground of appeal:

“It is to be noted, however, that it is not sufficient for an appellant to show that, in a particular aspect of the proceeding, the lawyer has fallen below the required standard. It must also be shown that what has happened has resulted in unfairness or injustice.”

74.  This statement echoed what had previously been said by the Court of Final Appeal in its seminal judgment on this issue in Chong Ching Yuen v HKSAR[26]:

“…The expression “flagrant incompetence” rightly underlines 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. But it should not deflect attention from the most critical point, namely given that there was a significant error of some kind, what will be decisive is the effect of the error on the trial. As Lord Steyn said, in delivering the judgment of the Privy Council in Boodram v Trinidad and Tobago [2002] 1 Cr App R 103:

… the general principle requires the court to focus on the impact of the faulty conduct. (at p.118)

The bottom line is that to succeed, an appellant must be able to show he or she received less than a fair trial.  As the Appeal Committee said in Mak Kam Chuen v HKSAR (unrep., FAMC No 35 of 2001, [2002] HKLRD (Yrbk) 276, [2001] HKEC 1521):

… the ultimate question for the court is whether the conduct complained of has resulted in the accused not getting a fair trial so that the conviction is unsafe or there is a miscarriage of justice. (at p.4)”

J. Conclusion

75.  In imposing these duties on appellate counsel, we are bringing our practices into line with those that have been successfully operating in in England and Wales.  We consider that the experiences of our own courts when faced, for example, with complaints of flagrant incompetence mirror those of that jurisdiction and must now yield to a swifter, more streamlined and modern approach which adequately recognises the gravity of the complaint; fully informs the Court as to what took place in the court below and why; and is comprehensively fair to all parties.  Hopefully, it will cause fresh counsel not to rush to judgment on their predecessors’ conduct based upon the bare assertions of their clients but to stand back and make a measured and considered assessment of the merits of the proposed ground of appeal, fully conscious of their duties to the court and fully informed of the reasons underlying the actions and decisions of counsel and solicitors at trial.

76.  Appellate counsel will no doubt also advise their lay clients as a matter of course of the effect of the Practice Note (Crime: Loss of Time)[27] issued on 9 October 2013 and the Court’s power to order loss of time under section 83W of the Criminal Procedure Ordinance, Cap 221, where allegations of flagrant incompetence are found to be wholly without merit.

K. Post-script

77.  Finally, we wish to make clear that nothing we have said in this judgment is intended to touch upon the merits of the applicant’s complaint of flagrant incompetence against his legal representatives at trial, which complaint we note is being pursued by Mr Ross in his amended grounds of appeal as the applicant’s new counsel.  That complaint will be dealt with on its merits at the substantive application for leave to appeal against conviction by the applicant, which is listed to be heard on 24 October 2019. 

78.  This judgment concerns the actions (or inaction) of the applicant’s previous legal representatives on appeal, who have now been discharged, and the consequences of those actions.  In addressing these matters, however, we have also taken the opportunity to lay down new procedures to be followed and duties to be complied with by appellate lawyers coming into an appeal whenever a complaint of flagrant incompetence is to be advanced as a ground of appeal; or whenever other facts or circumstances occurring at trial are sought to be relied on in argument at the appeal.