HKSAR v. HO HON-CHUNG, DANEL & OTHERS

CACC 269/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 269 OF 2000

(ON APPEAL FROM DCCC 626 OF 1999)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 21 June 2001, CACC 269/2000 was listed to be heard before this court. This was a prosecution appeal by way of case stated. Two days were set aside for the hearing. Mr Turnbull represented the Appellant. There were three Respondents represented by Mr Andrew Allman-Brown (for R1), Mr Philip Wong (for R2) and Mr Kevin Egan (for R3).

2. In the event, the appeal had to be adjourned and Mr Wong was told that the matter would be listed in due course for him to show cause why the wasted costs of the appeal hearing should not be borne by him under section 18 of the Costs in Criminal Cases Ordinance, Cap. 492. It was for these purposes that the matter was re-listed before this court on 31 October 2001.

The hearing on 21 June 2001

3. Before the hearing of the appeal was due to commence on 21 June 2001, we had been made aware that Mr Wong, who had also appeared before two members of this court in a sentence appeal ending at 12.22 p.m. on 20 June 2001, was engaged to act for one of two defendants in a part-heard commercial crime case before Deputy Judge Whaley and a jury in Court 4 (HCCC 107/2000). At a pre-trial review, twenty days had been allocated for that case. It had commenced on 21 May 2001 with a voir dire which had taken five days longer than expected. On 14 June 2001, a jury was sworn and on 21 June, the prosecution case was still in progress, although it was believed by then to be nearing its end.

4. Having discussed with the trial judge the nature of the case at first instance and its state of play, we were most concerned. Our concern was directed at the interests of Mr Wong's client in the trial, and at the circumstances in which this conflict of apparent commitments had arisen. We therefore embarked upon an enquiry as to how Mr Wong had considered himself able to appear before the Court of Appeal on 21 and 22 June for the appeal in CACC 269/2000 when he was at the same time engaged in a trial where no adjournment of the trial proceedings had been granted, and upon whether there was, as we apprehended, any real risk of prejudice to the defendant in the criminal trial.

5. In summary, Mr Wong informed the court that the solicitors who were instructing him in the appeal had sent him the brief with a covering letter on, he believed, 12 or 13 June 2001. This was after he had "formalised" his agreement to accept instructions on 11 June 2001. He explained that although his solicitors had lodged a Notice to Act a long time ago (the Notice to Act is dated 3 October 2000), it was not until some time prior to 11 June 2001 that Mr Wong had discussions with Mr Ronald Poon, a partner in Messrs. K.B. Chau and Co., as to whether he would be briefed in the appeal. This was apparently going to depend on whether the client (R2) was prepared to accept him as counsel to conduct the appeal. Mr Wong told us that there was no date recorded in the solicitors' file for these discussions or indeed any note about them at all.

6. Mr Wong confirmed that in the trial (HKSAR v. Yip Chi-fun (D1) and Yiu Chun-pong (D2), HCCC 107/2000) before Deputy Judge Whaley he was instructed on behalf of the first defendant. He told us that he had absented himself from that case, to be present at this appeal, by prior arrangement with the solicitors who were instructing him in the trial and with D1's consent.

7. Mr Wong went on to inform this court that counsel, Mr Paul Tse, was covering for him during his absence from the trial. Although he at first referred to Mr Tse as one of "the team", it quickly emerged that Mr Tse had, apart from having conducted the transfer proceedings in the Magistrates' Court, no physical connection with the trial itself until 20 June 2001. However, Mr Wong said that he had conferred with Mr Tse two days earlier in order to inform him about what had happened in the trial.

8. Mr Wong informed us that he had spoken directly to his client about his intended absence from the trial for the purposes of conducting the sentence appeal on 20 June 2001. In respect of his appearance for R2 at the two-day appeal hearing which was due to commence on 21 June 2001, Mr Wong said that he had had a short conference with his client (D1), Mr Tse and his solicitors, and that D1 had been "fully aware" of his commitment in the Court of Appeal "ten days ago". This would have been before Mr Wong had received his brief in the two-day appeal. He said that he had sought D1's approval for his absence in order to find out if he had his client's agreement to being briefed in the appeal proceedings.

9. Mr Wong admitted knowing that the criminal trial might still be in progress at the time he accepted the brief for the two-day appeal. He said he had made a "contingency" arrangement with his client in case the trial overran. He went on later to say that 21 June was the 21st day of the trial proceedings, although four of those days had been, for one reason or another, non-sitting days which had extended the trial beyond 15 June 2001 when it had originally been expected to finish. Two of the days on which the trial court had been unable to sit were the Monday and Tuesday immediately prior to the two-day appeal hearing. Both the judge and D2 had problems with their health on those days.

10. More importantly, Mr Wong informed us that none of the witnesses to be heard in the trial proceedings on 21 June 2001 would directly concern D1, saying that: "basically the whole of the case against my client has finished". He described the witnesses who remained to be called in the trial as "formal witnesses". He had also drafted a submission of no case to answer which would form the basis of his submission at the close of the prosecution's case.

11. Mr Wong went on to inform the court that 21 June 2001, the first day of the two-day appeal, was expected to be the last day of the prosecution's case in HCCC 107/2000. The "formal witnesses" to be called while he was appearing in the Court of Appeal were expected to prove the "company structure" of some of the companies mentioned in the trial. One witness statement was to be read under section 65B of the Criminal Procedure Ordinance, Cap. 221. Two or three other witnesses were to be called, but these were only relevant, Mr Wong told us, to the running of a company which was not the concern of his client and would not overlap with evidence which involved his client. He added that the witnesses might affect D2's case because D2 was a director of the company about which they would be testifying. They were expected to say that D2 had done all the paperwork which was involved in the alleged letters of credit bank frauds. The anticipated witnesses for the proceedings on 21 June 2001 were named as Mr Alan Law, Ms. Rebecca Lai, Mr Fu and Mr Ip Lau-hing.

12. Mr Wong was asked if the case involved a "cut-throat" defence, where the defendants were blaming each other. He replied that D1 was not blaming D2. D1's defence was simply that he was "not involved". When the court went on to enquire about D2's defence, the reply was that D2, by his cross-examination, had suggested that D1 might be the "mastermind". Mr Wong then amended this description to say that in fact the suggestion had been that D1's "family as a group" was behind the frauds and that it was not clear whether D2 was blaming D1 or simply blaming D1's family.

13. Mr Wong was asked whether there was any witness who was expected to be called in his absence who might be described as an accomplice. He replied that Ip Lau-hing was an accomplice who might implicate D2.

14. As Mr Wong seemed, at first, to believe that the remainder of the prosecution's evidence would be completed on 21 June 2001, he was asked what he expected would happen in the trial court during the second day of the appellate proceedings in this court. Mr Wong said that if the prosecution case closed on 21 June or on 22 June, a submission of no case to answer might then have to be made and that, if so, it would be Mr Paul Tse who would be making it with the benefit of Mr Wong's prepared submission. Mr Wong also stated that his client (D1) had agreed to this arrangement and, in doing so, he had been given a "choice".

15. Mr Wong continued by saying that his client had been told "many times", in "very clear terms" that it was the client's choice and that: "If he (D1) feels unhappy about the arrangements, then I must not accept (the appeal). This is clearly conveyed to him." He said that on Monday, 18 June 2001, when he had told D1 about the possibility that he might not be able to do the "no case" submission, D1 had then given his consent to Mr Wong's absence on 21 and 22 June. Mr Wong added that he was satisfied that there would be "no detriment" to his client if Mr Tse made the submission in his absence.

16. Mr Wong informed the court that he had mentioned to the trial judge on 13 June 2001, because of the danger even at that stage that the trial was going to overrun, that he would be in difficulties if the case overran to 20 June 2001. This was a reference to his sentence appeal which duly came before this court on 20 June 2001.

17. Mr Wong said that he had told the trial judge that he would bring in another counsel to cover him if the need arose. The judge had said that it was a matter for him. When the case overran more than expected, Mr Wong said that he had again informed the judge of his intentions.

18. Mr Wong ended by saying that "the most important one" was the client. He accepted that by 18 June 2001, it was apparent that the trial would overrun and that he could have returned the two-day appeal brief but he said that the arrangements had been made and, although it was "not the most satisfactory way", he had advised his client (D1) that he did not believe he would suffer any detriment by reason of his absence.

19. Proceedings before us, on 21 June 2001, were then adjourned so that we could again speak to Deputy Judge Whaley who by then had sent his jury away until noon.

20. Following a discussion with the judge, we concluded that it would be wholly inappropriate to allow the trial to proceed in Mr Wong's absence. On any view, one of the most critical stages of the case was the submission of no case to answer which was to be made on D1's behalf. We concluded also that it was inconceivable that stand-in counsel should be asked to make the submission in a commercial fraud trial which had already lasted many days. Additionally, there could be no question of "covering" counsel being in any position to deal with the accomplice witness, or any evidence which was not purely formal, while Mr Wong was appearing in the Court of Appeal.

21. The court reassembled at about 11.30 a.m. for Mr Wong to be told that on no account could he be allowed to absent himself from the trial. He was told that he had "double-booked" by his agreement, on or about 11 June 2001, to accept instructions in the two-day appeal. Accordingly, we informed Mr Wong that we would not be prepared to hear him on the appeal because this would have left his client open to the risk of being prejudiced by his absence in the criminal trial.

22. Mr Wong was told that he should immediately return to the trial court and that the two-day appeal would be adjourned to a convenient date to suit counsel's diaries. He was also told that he should acquaint himself with the wasted costs provisions under section 18 of the Costs in Criminal Cases Ordinance, Cap. 492, and that the matter would be listed in due course for him to show cause why such an order should not be made. Additionally, Mr Wong was informed that it might be considered necessary for the Bar Association to be notified about his conduct.

23. The matter was then adjourned.

The transcripts of proceedings in the trial court

24. Subsequently, transcripts of the proceedings before Deputy Judge Whaley for 11 June 2001, and for all subsequent days until the submission of no case to answer, were obtained. Their purpose was two-fold. Firstly, we wished to see what Mr Wong had told the judge, and what the judge had said to him, about his request to be absent. Secondly, we felt we should see the nature of the evidence which was called in what would have been Mr Wong's absence had we not sent him back to complete his part in the trial.

25. Mr Wong was provided with copies of these transcripts together with a transcript of the proceedings before this court on 21 June 2001.

26. The trial transcript reveals that shortly before the jury was empanelled on 11 June 2001, Mr Wong was expressing his concern about his difficulty for "20th onwards". At that time, there was an optimistic hope, held by the prosecutor at least, that the trial might finish by the end of that week (15 June). Mr Wong said: "I have already taken instruction that I will have a co-defence counsel to stand in my place for the time I was absent from this court" (Tr. p. 3). He added: "Of course I would do the submission at the end of the day" (Tr. p. 4). In response, Deputy Judge Whaley said: "Yes, well provided the smooth progress of this trial is not interrupted, Mr Wong, as I've made clear".

27. It is to be noted that this was happening on the very same day that Mr Wong informed this court he had agreed to accept instructions for the two-day appeal in the Court of Appeal. No specific mention of this was made to the trial judge. The nearest Mr Wong came to saying that his commitments in the Court of Appeal extended beyond a sentence appeal was when he said:

"I'll be required to continue from 20th onwards, that is next Wednesday ...." (Tr. p. 3)

28. Now that we have had the opportunity to examine the trial transcript, it is apparent that on 11 June 2001, either one or two days before Mr Wong physically received the brief in the two-day appeal listed for 21 and 22 June 2001, he had anticipated difficulties about absenting himself from the time on 20 June when his sentence appeal was due to be heard. Perhaps he was in a better position to gauge the length of the trial than the prosecutor had been with his optimistic forecast that the trial might only last a week. Whether or not this is so, Mr Wong had plainly realised that it would be prudent to arrange for stand-in counsel to replace him in case he needed to be absent from the trial from 20 June 2001 onwards. However, as we have said, no mention was made to the judge about having agreed to take on a two-day appeal on that very day.

29. The trial, as we now know, extended not only into its second week, but also into a third. The submission of no case was eventually made by Mr Wong on 26 June, following the public holiday on 25 June.

30. Good fortune almost favoured Mr Wong on 20 June 2001 when his sentence appeal was listed. On that morning the court was unable to sit until 12 noon because of reasons related to D2's health. When Mr Wong had not appeared by 12.02 p.m., the court assembled and Mr Paul Tse, who was covering for Mr Wong, asked for a 15-minute adjournment to give Mr Wong time to return to court. (The transcript at p. 285 refers to 50 minutes but in the context, Mr Tse was clearly requesting only 15 minutes.) Deputy Judge Whaley stated that he was not disposed to grant an adjournment because he had made it clear to Mr Wong that there would be no further delay in the progress of the trial.

31. Later in the trial that day, after Mr Wong had rejoined the proceedings, the Deputy Judge asked Mr Wong in the jury's absence, whether this was "becoming a cut-throat defence" (Tr. p. 298). Mr Wong replied in the affirmative.

32. At the end of the proceedings on 20 June, Deputy Judge Whaley heard submissions in the jury's absence from Mr Wong about his difficulties and how he proposed to resolve them. He described the position as being: "beyond (his) control that the case overruns to such an extent" (Tr. p. 332). He then said that Mr Paul Tse was at court to protect D1's interests: "in case that I have to be absent because of my duty at the Court of Appeal". He went on to say that he understood his client's interests had priority over everything.

33. The trial judge pointed out that from Mr Wong's own experience:

".... if that means you've got to give away other briefs, so be it, that's the way it's got to work."

Mr Wong responded:

"I tried, but that .... well, that commitment is I really cannot ask somebody to take over, because I was the one that all along from the trial up to now....." (Tr. p. 332)

34. Again, at this stage, it is evident that no mention was made by Mr Wong about having only seven days earlier, or thereabouts, taken possession of the brief in the appeal. He then went on to say that discussions with counsel for his two co-respondents in the two-day appeal had led him to believe that the appeal could be finished in a day or even earlier.

35. On this point, we digress to say that the prosecution's appeal was to this court's knowledge likely to be both lengthy and complex, and the estimate of two days was wholly realistic. Indeed, Mr Wong himself seemed to have recognised that this was so. In a letter dated 18 June 2001, he wrote to the Registrar of the High Court to point out that the case had been set down for hearing on 21 June but that he had "only just received instruction to represent the captioned respondent a few days ago." The letter went on to say:

"Because of the complexity of the arguments involved in the said Appeal I am unable to settle my written submission with the necessary authorities for filing until today. I apologise for my failure to meet the direction of filing in the said submission 7 days prior to the hearing date and hope that my late filing of same will not cause too much inconvenience to all concerned."

36. Returning to the proceedings on 20 June, Mr Wong continued by saying to Deputy Judge Whaley that the remaining witnesses in the trial were "unimportant witnesses to (his) case, which I don't worry. It's only .... Mr Ip Lau-hing's evidence I suppose I should be here, despite Mr Tse." (Tr. pp. 332-333). This last answer is to be contrasted with the understanding we were given by Mr Wong that Ip Lau-hing was a witness of no significance to D1's case.

37. The judge informed Mr Wong that if he was asking for any "accommodation" on time, he was asking "the impossible" (Tr. p. 333). The judge added, quite understandably, that he should not have been put in the position of having to rule upon such a request, whereupon Mr Wong, in spite of the number of times he had been told that there would be no adjournment, asked the judge to "spare one day of hearing for tomorrow". The transcript (at p. 333) continues:

"Court: What, you're asking that we don't sit tomorrow?

Mr P. Wong: May be half a day tomorrow.

Court: Really, Mr Wong, I've made it clear to you this must not happen. You should have arranged your diary. I made that quite clear early on ..... I just believe it would not be right to delay the matter any further."

38. On 21 June 2001, after Mr Wong was despatched from the Court of Appeal back to the trial in the Court of First Instance, it is to be noted that not only did he cross-examine Ip Lau-hing (Tr. pp. 473-483), he also cross-examined Rebecca Lai (Tr. pp. 407-411) who Mr Wong had told this court was a witness who he had thought did not concern his client. In addition, he cross-examined (Tr. pp. 353-359) a witness named Kan Wai-yee, to whom we had heard no reference made by Mr Wong before. We shall proceed on the basis that this was due to oversight on his part.

39. All in all, Mr Wong's day, once he had returned to his trial court, left him occupied with no less than three witnesses to cross-examine and in circumstances where it was wholly unrealistic to have expected stand-in counsel to be of any practical use.

40. These features, concerning the evidence before Deputy Judge Whaley on 21 June 2001, obviously stand in contrast to the way Mr Wong had described the likely significance of the evidence he would have missed on that day. We had been given the impression that his presence was unnecessary.

41. We notice also from the transcript (p. 334) that a day earlier, on 20 June 2001, prosecuting counsel had revised his estimate as to when the prosecution would finish. His view was that he might close his case on 21 June 2001. In these circumstances, Mr Wong must have been aware of the real risk that his anticipated "no case" submission would have had to be made at a time when, if he retained the two-day appeal brief, he would be in the Court of Appeal.

42. However, as we have already said, Mr Wong had been well aware of the risk he was running on 11 June 2001 when the timetable was being debated before the jury was empanelled. By 13 June, when in all probability he received the brief in the two-day appeal, Mr Wong must have been even more acutely aware of his potential difficulties. On Monday, 18 June, the Judge was ill and he announced in court his decision not to sit that day. Counsel for D2 then said that D2 had medical problems which necessitated hospital treatment on Tuesday, 19 June, as well as on Wednesday, 20 June, until noon (Tr. p. 280). In yet another estimate by prosecuting counsel, he expressed the view that the prosecution might now conclude on Thursday, 21 June. Mr Wong added to the debate by reminding the trial judge of his problems (Tr. p. 282). The case was then adjourned to 12 noon on 20 June 2001.

Wasted costs applications

43. With that background, on 31 October 2001, we addressed the question whether a wasted costs order should be made against Mr Wong in favour of R1 and R3 whose legal costs for 21 and 22 June were thrown away by reason of the adjournment of the appeal. Each of their counsel indicated that they sought a wasted costs order in their client's favour.

44. Mr Graham Harris, on Mr Wong's behalf, submitted that this court's approach might be assisted by looking at the circumstances which arose in In re a Barrister (Wasted Costs Order No. 4 of 1993), TLR April 21, 1995. It is a short report and, stating it in full, it reads:

"It was important for a judge considering making a wasted costs order, which was a draconian order, to remember that he was removed from the daily demands of practice and to make allowance for difficulties with the estimates.

The Court of Appeal (Lord Justice Auld, Mr Justice Mantell and Mr Justice Sachs) so held on April 6, allowing a barrister's appeal against a wasted costs order of ￡380 made against him by Judge Pitchers on June 25, 1993 in Nottingham Crown Court.

Lord Justice Auld said that the appellant had accepted a brief for a two-day trial listed at Derby Crown Court immediately prior to another trial in which he was to appear at Nottingham Crown Court.

It was considered particularly important both by the appellant and his instructing solicitors that he have conduct of the second trial, which involved a mentally retarded defendant whose confidence the appellant had gained.

However, the first trial was late starting and progressed more slowly than anticipated. Counsel sent a pupil to ask for an adjournment in the second trial and the judge listed the case for mention so that the appellant could appear to explain why he had not been ready. Having heard the appellant's explanation the judge made a wasted costs order.

The question for the court was whether the appellant's conduct had been reasonable.

Although he had been over-optimistic in failing to anticipate delays in the first trial, his conduct could not be described as unreasonable. Accordingly the order would be quashed."

45. In the present case, unlike the situation which had arisen in the English case just cited, Mr Wong was well aware when he agreed to accept, and did accept, the two-day appeal brief that his trial was at risk of overrunning. In addition, he did not have a long-standing commitment to do the appeal. In any event, the issues involved in the appeal related to points of law only and could have been argued by any member of the Bar who had the experience and competence to deal with them. In the English case, there was good reason why counsel briefed to appear for the mentally retarded defendant should have acted for him if possible and counsel had not undertaken to do that case when he already knew there was a risk of his earlier case overrunning. For these reasons, the course adopted in the English case is clearly distinguishable from the situation which has arisen before us.

46. In saying this, we have not lost sight of the fact that Mr Wong had conducted the defence on behalf of R2 in the original trial in the District Court which was the subject of the appeal. Mr Harris was at pains to emphasise that whilst Mr Wong had only agreed to accept the two-day appeal brief on 11 June 2001, it had always been expected that he might be called upon to conduct the appeal. However, as we have already said, this was not an appeal in which R2 would particularly have benefited from his trial counsel representing him on the appeal bearing in mind that the issues at stake centred on matters of law with which any competent counsel would have been capable of dealing.

47. Mr Harris, to whom we are grateful for his helpful submissions, also reminded us of the duties of advocates so far as their attendance at court is concerned. These are contained, so far as they are relevant to these proceedings, in paragraph 151 of the current Hong Kong Code of Practice which states:

"(c) Where an accused is represented by only one Counsel, that Counsel must normally be present throughout the trial and may only absent himself in exceptional circumstances which he could not reasonably have been expected to foresee and provided (1) he obtains the consent of the solicitor or his representative and his client and (2) a competent deputy takes his place. A deputy is not to be regarded as competent unless he is well informed about the case and able to deal with any question which might reasonably be expected to arise.

(d) Sub-paragraphs (a), (b) and (c) above are subject to the following modification in respect of lengthy trials involving numerous defendants. Where, after the conclusion of the opening speech by the prosecution, defending Counsel is satisfied that during a specific part of the trial there is no serious possibility that events will occur which relate to his client, he may, with the consent of (1) the person instructing him in the matter or his representative and (2) his client, absent himself for that part of the trial. He should also inform the judge. In this event it is his duty (1) to arrange for other defending Counsel to guard the interests of his client; (2) to keep himself informed throughout of the progress of the trial and in particular of any development which could affect his client; and (3) not to accept other commitments which would render it impracticable for him to make himself available at reasonable notice if the interests of his client so require." (Emphasis added)

48. Mr Harris realistically conceded during his submissions that he "could not excuse the inexcusable". He went on to say that "on reflection, Mr Wong ought not to have accepted the instructions" (for the two-day appeal) and that he "ought to have returned (those) papers in sufficient time to enable someone else to be instructed". He agreed that Mr Wong's "proper place" was to have remained in the trial. Once this was very properly conceded, the merits of the matter would seem to dictate that the wasted costs should be borne by counsel whose conduct occasioned the adjournment, notwithstanding that Mr Harris described Mr Wong's actions as having been an error of judgment rather than a flagrant or wilful breach of the code.

49. We are satisfied that Mr Wong must have foreseen, or certainly ought to have foreseen, the likely prejudice which would be caused to his client by his absence from the trial. In such circumstances, the obtaining of a captive client's consent is of scant avail, as it ought never in the first place to have been sought. The lay client was being asked, in a case with a "cut-throat" element to the defence, to agree to his counsel leaving the trial at about the time when the potentially very important accomplice witness (Ip Lau-hing) was to be called and a submission of no case to answer was anticipated. Furthermore, whilst there are certainly circumstances in which it is permissible for counsel to request someone else hold his brief in the course of a trial, this was not one of them.

50. We have been left in no doubt that the agreement by Mr Wong to accept the two-day appeal brief on 11 June 2001, his acceptance of the brief on or about 13 June, and Mr Wong's failure to return that brief on 18 June 2001 when it had become absolutely plain that he could not absent himself from the trial, all combined to leave the trial judge in an impossible situation. By the same token, it also left this court with no realistic alternative to adjourning the appeal in order to ensure Mr Wong carried out his primary duty to the trial court.

51. We have considered whether the trial judge may have contributed to the situation in which Mr Wong found himself on 21 June 2001 by not saying to him on 11 June 2001, when Mr Wong was already contemplating the need for stand-in counsel, that the course he was proposing was unacceptable. However, the jury was at that stage about to be empanelled and it was too early for the judge to have made such an emphatic ruling bearing in mind the natural desire of any judge to accommodate counsel wherever possible. The judge had, however, consistently, and very understandably, made it clear that he would not entertain an adjournment, and had quite properly left the decision with counsel as to whether he felt able to take temporary absence from the case without prejudicing his client and without causing any disruption to the smooth course of the trial.

52. Mr Wong has considerable experience, having been called to the Bar in 1984, and the judge was entitled to expect that he would not abandon his lay client at a time which might leave open the risk of his being prejudiced. The fact that the judge could, and probably should, have acted more robustly than he did, does not detract from Mr Wong's decision to double-book his court commitments and then, to compound the matter, to hold on to his newly acquired brief, in the knowledge that it was likely he would have to leave the trial at a critical stage in the proceedings.

53. Accordingly, we were driven to abort the hearing of the appeal knowing that if we did not do so, D1's trial in Deputy Judge Whaley's court might well be severely prejudiced by Mr Wong's absence.

54. It is plain that Mr Wong's conduct has had the result that R1 and R3 have been left with the burden of such wasted legal costs as they must have incurred for the aborted two-day appeal proceedings in this court. Those costs may have been considerable. A further consequence of the hearing on 21 June 2001 not being able to proceed has been that the prosecution's costs have also been thrown away because they were unable to pursue their appeal. These costs will have to be borne by public funds.

55. Section 18 of the Costs in Criminal Cases Ordinance makes provision for wasted costs in these terms:

"18. Liability of legal or other representatives for wasted costs

(1) In any criminal proceedings a court or a judge may order the legal or other representative concerned to meet the payment of any wasted costs or any part thereof.

(2) No order under subsection (1) shall be made unless the legal or other representative concerned has been given a reasonable opportunity to appear before the court or the judge and show cause why the order should not be made.

(3) Any wasted costs ordered to be paid by a legal or other representative under subsection (1) shall be a debt due to the party to the proceedings in whose favour such order was made from the legal or other representative and enforceable as a civil debt ......"

56. These provisions, however, have to be read in conjunction with the meaning of "wasted costs" set out in section 2 of the same Ordinance. This provides that the expression "wasted costs" means:

"(a) any costs incurred by a party to the proceedings as a result of-

(i) any failure to appear; or

(ii) lateness,

without reasonable cause leading to an otherwise avoidable adjournment on the part of any legal or other representative or any employee of a legal or other representative; or

(b) any costs incurred by a party to the proceedings which, in the light of such failure or lateness occurring after they were incurred, the court or the judge considers it is unreasonable to expect that party to the proceedings to pay." (Emphasis added)

57. Mr Allman-Brown, on behalf of R1, submitted that although Mr Wong may not have "failed to appear", in the physical sense, at the appellate proceedings listed for 21 June 2001, nevertheless his conduct "amounted to a failure to appear in court because he was unable to perform his professional duty." Mr Egan, for R3, did not contribute further to this submission. He merely supported it.

58. In making our decision on this issue, we have considered the equivalent provisions in England. There, the meaning of wasted costs, as set out in section 19A of the Prosecution of Offences Act 1985, which was inserted by section 111 of the Courts and Legal Services Act, 1990, (see: Archbold 2000, paragraph 6-40) is :

".... any costs incurred by a party -

(a) as a result of any improper, unreasonable or negligent act or omission on the part of any representative or any employee of a representative; or

(b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay." (Emphasis added)

59. It is plain that the meaning to be attributed to "wasted costs" in England is far broader than in Hong Kong. Whilst the English provision would have covered the situation which has arisen in these proceedings, we do not consider that the Hong Kong provision was intended to do so. This view was shared by Mr Turnbull on behalf of the prosecution.

60. It is a matter of some surprise that on a question as fundamental as jurisdiction, neither Mr Turnbull nor Mr Harris drew the point to the court's attention either orally or in writing until, in Mr Harris' case, late in his submission and in Mr Turnbull's case, until he was asked about it after Mr Harris had finished his address. Both were alerted to the point, an unarguable point, before the hearing commenced. Given however that we were addressed at length on the merits of the matter and given that the merits show how glaring is the lacuna in the legislation, we have, as is obvious, addressed the merits in full.

Conclusion

61. Accordingly, because we lack jurisdiction to make a wasted costs order in this case, we have to reject the applications made on behalf of R1 and R3 for the costs they have undoubtedly wasted.

62. In coming to this conclusion, we consider that the courts in Hong Kong have been rendered, for almost all practical purposes, unable to remedy the kind of grievance which has arisen in this case. If the same grievance had been brought before a court in England and Wales, a remedy would have been readily available under the legislation.

63. In practical terms, section 18 of the costs in Criminal Cases Ordinance, as read with section 2 of that Ordinance, provides an almost worthless sanction for wasted costs because of an apparently deliberate decision on the part of the Legislature in Hong Kong to depart from the wider provisions of the English legislation. It is rarely that counsel is ever late and we suspect it is an extremely rare occurrence that counsel fails to attend at all. In either event, there is likely to be a good reason for which the making of a wasted costs order would be wholly inappropriate. We can see no sensible justification for the departure. Conscious of the costs of R1 and R3 which were wasted through no fault of their own, and the wasted prosecution costs which will have to be borne by public funds, this court is nonetheless powerless to make the order which is, on the merits, the appropriate order to make. In another case, were it to arise, where all defendants are legally aided, all the wasted costs would fall on the taxpayer. What this legislation has done is to leave the practitioner open to condemnation in costs in highly limited circumstances, unlikely ever to arise, and yet to protect him or her in the very circumstance where the public purse, or a litigant, and not the practitioner, deserves protection.

64. It is a matter for policy makers, and not this court, to consider further, if so minded, whether this is a satisfactory piece of legislation or whether it merits amendment.

65. In the result, we are unable to make a wasted costs order. We shall, however, send to the Bar Association the transcripts with which we have been provided for the purposes of this hearing, for consideration under the terms of the enquiry it has undertaken.