HKSAR v. WONG CHI WAI

CACC176/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 176 OF 2010

(ON APPEAL FROM DCCC NO. 1090 OF 2007)

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BETWEEN

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J U D G M E N T

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Hon Stock VP:

Introduction

1.  This case concerns a solicitor, Mr Yeung and a barrister, Mr Wong, each charged with attempting to pervert the course of public justice.

2.  Mr Yeung was charged in November 2007.  After a trial before Deputy Judge M Chow in the District Court, he was convicted on 22 July 2009 and sentenced to 4 months’ imprisonment suspended for 12 months.  He now seeks leave to appeal that conviction; whereas the Secretary for Justice asks this Court to review that sentence.

3.  Mr Wong was charged in September 2009 and was tried in the District Court before Judge Tallentire.  He was convicted on 19 May 2010 and sentenced to 6 months’ imprisonment.  He seeks leave to appeal the conviction and the Secretary for Justice seeks a review of that sentence.

4.  The hearings of Yeung’s and Wong’s applications were consolidated and this judgment addresses both.

5.  Mr Yeung was admitted as a solicitor in England and Wales in September 1996 and in Hong Kong in February 1997 and at all material times was a consultant of Messrs Lau Chan & Ko (LCK), solicitors.

6.  Mr Wong is a barrister.  He was called to the Hong Kong Bar in 1984 and has practised in criminal law.  He was regularly instructed by LCK.

7.  The essence of the case against both applicants was that in connection with a trial in late 2005 and early 2006 in which they represented a defendant charged with theft, they sought by improper pressure to force a prosecution witness, herself a solicitor, to claim, on a basis in which Wong and Yeung had no faith, that by reason of legal professional privilege she was precluded from testifying.

8.  The charge against Yeung was that between 24 November 2005 and 20 January 2006 with intent to pervert the course of public justice, he did a series of acts which had a tendency to pervert the course of public justice in that he sent three letters to the solicitor, Ms Mak, attempting to have her not testify at the trial.

9.  The charge against Wong was in the same terms save that the acts constituting the attempt were alleged to be the drafting of the three letters for Yeung, to be sent to Ms Mak.

The facts and evidence

10.  The case against the applicants and the basis of the convictions are highly fact-sensitive, for which reason it is necessary to state in some detail the evidence and the assertions arising from that evidence.

11.  The charges against these applicants have their genesis in the trial of a lady called Lau Wing Sun (Lau).  In April 2005, she was charged with theft.  She was eventually acquitted, though the fact of that acquittal is not relevant to this case.

12.  Lau was a director of a company called Brightway International which in turn was a corporate director of a company called EC Textiles.  The allegation against her was that she created a deed of charge securing facilities at KBC Bank over property which did not belong to her; that that constituted a dishonest appropriation of the goods and therefore theft.  The parties to the deed of charge were EC Textiles as chargor and the bank as lender.

13.  It was important to the prosecution case in the theft trial to prove that Lau had signed the deed of charge on behalf of the corporate director of the chargor.  To that end, the prosecution intended to call Ms Fanny Mak, a solicitor with the firm Lily Fenn & Partners, who acted for the bank in relation to the charge.  Lau had been asked to attend Ms Mak’s offices to execute the deed.  She did so and there identified herself to Ms Mak.  Ms Mak saw Lau sign the deed and she witnessed the signature. 

14.  Wong was instructed by LCK to represent Lau before and at her trial.  He was one of three counsel at trial acting for Lau, although he came into the picture on her behalf as early as April 2004 when he was instructed to act on her behalf in connection with the police investigations then under way.  It is clear from the evidence that he took a proactive role throughout in advising Lau and in drafting letters to be sent to the police and to prosecuting counsel.

15.  At LCK, Yeung was the solicitor nominally in charge of the case.  I say “nominally” because it appears that he did not have a great deal to do with the case.  As seems to be relatively common in certain firms in this jurisdiction the running of the case, on the solicitorial side, was left to a solicitor’s clerk, a person with no formal qualifications in the law or as a legal executive.  The clerk in this instance was Jacob Cheung (Cheung).  Yeung attended court briefly on a couple of occasions or so and signed such letters in connection with the case as had to be dispatched.  But he attended no conferences or meetings with the client.  It is clear from the evidence that it was Cheung who effectively attended, throughout the course of the police investigations as well as during the trial, to the solicitorial side of things on behalf of Lau.  For example, we see correspondence between the Commercial Crime Bureau and LCK in July 2004 which referred to conversations between the relevant police officer and Cheung concerning the details of the case.  We also see that advices as to the course to take were written by Wong to Cheung, rather than to Yeung; and that correspondence from prosecuting counsel was addressed for Cheung’s attention. 

16.  For the purpose of the police investigation, Fanny Mak made two witness statements: one on 2 February 2005, the other on 7 February 2005.

17.  The first witness statement was about copies of documents shown to Ms Mak, including the deed of charge and resolutions of EC Textiles.  She was unable to say whose signatures appeared on those documents.  The second witness statement, however, dealt with the originals from which she was able to say that the signature of Lau had been appended to the relevant documents in her presence.

18.  These witness statements, together with others, were served well before the trial on those acting for Lau.  Wong studied them and the notion came to his mind that the making of these witness statements or the giving of evidence in accordance with the second statement might be in breach of legal professional privilege, assuming that a solicitor-client relationship existed between Mak and Lau or EC Textiles.  So much is clear from two pieces of evidence:

(i)    A “Note of possible defences” dated 22 October 2005 in which he said:

“Finally, PW10 Fanny Mak who is expected to testify against the Defendant was her solicitor at the material time, so as her intended act of testifying in court is likely a breach of the privilege between solicitor/client which belongs to the client and not the solicitor. Further research needs to be done to find out the relevant authorities … and whether Defendant is entitled to enjoin the said solicitor not to do so.”

One of the counsel engaged on behalf of Lau, Lawrence Ngai, commented in writing on this potential objection by pointing to authority which would seem to suggest that privilege might attach not only to proof of what he said during a solicitor-client interview but also to the identity of the client; although counsel added that it was “arguable that EC Textiles … was the client of Fanny Mak” so that the duty was owed to the company rather than to Lau.

(ii)   A “Further Note on Preparation of Defence” dated 3 November 2005 in which Wong told his instructing solicitors:

“I would like to know as well from Ms Lau the exact circumstances she was under (ie the communication between she and the Solicitor Fanny Mak) leading to her signing the Deed of Charge on 28/9/2001. On this aspect, I need to know why the said Deed of Charge was necessary… .”

19.  At no stage prior to 24 January 2006, the day Ms Mak was due to testify, did Wong, or the solicitors on his instructions, draw the attention of the court or of those prosecuting the case, despite correspondence with the prosecution on other issues, to his intention to pursue or raise this issue.  None of the correspondence between LCK and Ms Mak, to which I shortly turn, was copied to the prosecutor.

20.  Lau’s trial commenced in the District Court on 15 November 2005 before Deputy District Judge Yiu.  It lasted 24 days, the evidence and submissions spreading from mid-November to the end of the first week of December 2005 and resuming on 23 January 2006.  Ms Mak was due to testify on 24 January.  She attended court that day but, given argument about her proposed testimony, she did not testify that day but the next, that is, on 25 January 2006.

The letters

21.  On 24 November 2005, Wong drafted a letter which he caused to be delivered to LCK.  He advised the firm that it be typed and sent to Fanny Mak.  Yeung read the draft, spoke to Wong over the telephone about it, and he signed a letter in terms identical to that drafted by Wong.  On the same day, the letter was sent by fax to the general office number of Lily Fenn & Partners, and on the following day was also sent by post to Ms Mak at her office.  The letter was written openly, by which I mean on LCK’s letterhead with a reference identifying Yeung and Cheung as the persons to whom a reply might be sent.  Given the centrality of this letter and others to the case against the applicants, I need to set out its terms in full:

“URGENT BY FAX (…) & HAND

Dear Ms. Mak,

Deed of Charge dated 28 September 2001 between

KBC Bank N.V. and EC Textiles Limited

We are the Solicitors acting for EC Textiles Limited and you were the Solicitors acting for the same in the captioned transaction. A copy of your bill of costs issued to the said EC Textiles Limited is enclosed for your easy reference.

Despite that you now no longer act for the said EC Textiles Limited but you still have a duty of confidentiality towards the said company and the said company expects you to protect the privileged communications as well as the privacy attached thereto arising from the captioned transaction you had handled on its behalf.

The information we have now is that you have been invited to act as a prosecution witness by CCB in the District Court case reference DCCC 320/2005 and for which you have provided to CCB a witness statement together with documentary exhibits dated 2/2/2005 as well as an Affidavit under Section 20 of the Evidence Ordinance dated 13/9/2005. We have instructions to point out to you that your aforesaid acts constitute breaches of your duty towards EC Textiles Limited to preserve its confidentiality, privilege and privacy under the Basic Law and the Hong Kong Bill of Rights Ordinance.

By the serving of this letter on you, we remind you of EC Textiles Limited’s rights for taking remedial actions including a remedy under Section 6 of the Hong Kong Bill of Rights Ordinance against you. On behalf of EC Textiles, we respectfully urge you not to aggravate the aforesaid breaches and stop doing anything that would aggravate the said breaches.

In this connection, we are instructed that EC Textiles Limited shall reserve the right to take out civil action against you as well as refer the matter to the Law Society of Hong Kong for taking disciplinary action against you if the need exists.  On the other hand, EC Textiles Limited would welcome from you any suggestions that would mitigate against the damage already caused by the said breaches.”

22.  I pause to note that the letter gives no hint that the solicitors were at all material times engaged to act for Lau in the criminal case; or that in that capacity they were interested in the question of supposed confidentiality and privilege; or of the respect in which confidentiality and privilege was allegedly breached.  It is noteworthy, too, that they do not spell out what it is they intended by the phrase “stop doing anything that would aggravate the said breaches.”  The draftsman of the letter knew what he meant, which begs the question why he did not say what he meant.  The suggestion that section 6 of the Bill of Rights Ordinance provided a remedy was wrong in law, but that is by the by.  As for the threat of civil action, presumably for breach of confidentiality, and the implicit threat that the damages for which Ms Mak had already allegedly rendered herself liable might be mitigated: again, the draftsman knew what he meant, which begs the question why he did not say what he meant.  What was meant by doing nothing to aggravate the situation and by mitigating damage was not testifying, using privilege as the bar to giving the evidence contained in her second witness statement.  Questions of criminality aside, one is bound to ask how counsel acting for Lau could think it proper to cause a letter to be sent without frankly stating the full position.

23.  One notes as well that this was a letter sent two months before Ms Mak gave evidence and that in those two months no move was made to issue the threatened proceedings despite the fact that – as we shall shortly see – Ms Mak made it apparent, time and again, that she had no intention of conceding any breach, let alone of giving way to the threat of an action or of a disciplinary report.  So, it is an inference to be drawn, it seems to me, that there was never an intention to take proceedings should Ms Mak prove stubborn.

24.  We see from the admitted facts in Wong’s case that on 25 November 2005, Ms Mak informed the Commercial Crime Bureau that she had received the letter of 24 November and that that information was passed to prosecuting counsel in the Lau case on 28 November 2005.

25.  By letter dated 30 November 2005, Ms Mak replied.  She said:

“Dear Sirs,

Re: Deed of Charge dd. 28 Sept. 2001 between KBC Bank N.V. and EC Textiles Ltd.

I refer to your letter dated 24 November 2005 on the above and write to put on record that while whether I acted for your client on the above matter is a matter to be determined on the facts of the case, I deny owing the duties towards your client as alleged, and more particularly, of any breach of duty towards your client. I must stress that any claim by your client on the issues raised in your letter will be met with strenuous defence and I reserve my rights to claim against you and/or your clients for all loss and damages on all or any of such claims including all legal costs on full indemnity basis.

In any event, I write to inform you that witness summons pursuant to s. 35 of the Criminal Procedure Ordinance have been served on me. As such I am required by law to serve as a witness in the hearing of the case DCCC 320/2005. It would be for you to take out proceedings to set aside such witness summons if you so wish. You should appreciate that unless and until you have successfully obtained such order to set aside the said witness summons served on me, I would be obliged by law to be a witness in the court unless otherwise ordered.

I note your firm is also acting for the Defendant in that case, no doubt you must be fully aware of the progress of the court proceedings; and it would not be necessary for me to notify you whether and when I have to attend court as a witness in that case anyway.

All my rights are hereby expressly reserved.”

26.  The reply from Ms Mak was shown to Wong who immediately drafted a letter to the Law Society.  The draft was forwarded to LCK, and a letter in the same terms was signed by Yeung and sent to the Law Society.  That letter is dated 30 November 2005 and it reads thus:

“Dear Sirs,

Professional Privilege and the Acceptable and/or Unacceptable Scope of a Solicitor in Testifying Against His/Her Own Client in a Criminal Trial

Further to our 2 letters both dated 29 November 2005 on the subject of “Watching Brief”, we have further queries below arising out of the same District Court criminal trial:-

1. Whether a solicitor who had previously represented and advised a lay client in a property transaction can claim professional privilege when he or she is invited by the police to give a witness statement against his/her client.

2. Whether the said transaction and its circumstances also give rise to a duty of confidentiality and/or right of privacy enjoyed by the lay client, the disclosure of which requires the lay client’s consent.

3. Whether the same considerations applicable to (1) and (2) above apply to the situation when the said solicitor is summoned to testify against his or her lay client.

4. Whether in the situation as described in (3), the said solicitor can claim privilege against self-incrimination and refuse to answer questions, the answering of which are against his or her lay client.

Thank you for your attention and we invite your prompt response.”

27.  Once again I pause to note certain features of this letter.  It was not copied to Ms Mak.  As must have been obvious to Wong, who drafted it, it failed to tell the Law Society anything upon which a sensible answer could be given for it was couched as broadly as could be, was entirely non-case specific and offered no details of the case at hand or of the reasons for the query.  It was, on any view, a strange letter for counsel to draft.

28.  A reply came from the Law Society dated 9 December 2005.  It addressed an earlier query dated 29 November 2005 on an issue which is not presently relevant, but in connection with the letter of 30 November merely drew the attention of LCK to Chapter 8 of the Solicitor’s Guide to Professional Conduct and enclosed a copy of that chapter.

29.  On 12 December 2005, Wong drafted another letter which he again sent to LCK with the advice that it be typed on LCK’s letterhead and sent to Mak.  The letter was typed and sent, signed by Yeung.  It enclosed copies of the correspondence with the Law Society and it invited Ms Mak to apply to the court “to nullify the summons”:

“Date: 12 December 2005

BY FAX (2522 3367) & BY HAND Private & Confidential

Ms. Fanny S. F. Mak

C/o Messrs. Fenn Lily & Partners

Solicitors

…

Dear Ms. Mak,

Deed of Charge dated 28 September 2001 Between KBC Bank N.V. and EC Textiles Limited

Thank you for your letter of 30 November 2005.

Further to our letter dated 24 November 2004 [sic], we enclose copies of correspondence between our firm and The Law Society of Hong Kong respectively dated 30 November 2005 and 9 December 2005; which are self-explanatory.

For setting aside witness Summons, Section 34(2) of CPO dictates that it is for the witness who is served with the said Summons to apply to the issuing court to nullify the said Summons. The ground for so doing is that the said witness cannot give material evidence. And the House of Lords in R v Derby Magistrates’ Court, ex parte B and another appeal [1995] 4 All ER 526 held that if the intended evidence from the said witness is covered by professional privilege, then it would not be “material evidence” for the purpose of Section 34(2) CPO.

For your easy reference, we enclose copies of Section 34 CPO and extract of the House of Lords’ decision aforesaid.”

30.  Even then, counsel had not seen fit – and all this is common ground – to tell Ms Mak, through LCK, that she was correct in assuming that the solicitors acted for the defendant in the criminal case or what it was in her proposed evidence that would render that evidence, if given, in breach of confidentiality or legal professional privilege.  Neither had counsel seen fit to draw the attention of prosecuting counsel to his concern about the supposedly privileged nature of the evidence which this prosecution witness was intending to give.  It is said that there was no obligation upon him to do so; which is true if the issue of law was not going to be argued by him in the criminal proceedings.  And it is said that it was not a matter for the accused Lau to raise because it was a third party’ s privilege that was at issue.  And that is true too in the sense that, generally speaking, if privilege was indeed at issue at the behest of a third party it was for the third party’s solicitor witness to raise in the criminal hearing or for the third party to fight out with the prospective witness in some collateral proceeding.  We will come in due course to the theory or principle of it, for it has formed a central plank of the argument: that the principle was not understood by the judge.  But I use the word ‘theory’ advisedly because that is not how the applicant Wong saw matters.  He saw Lau and EC Textiles as the same for this purpose.  He said in terms in cross-examination that she, Lau, was entitled to enforce legal professional privilege[1]; that Ms Mak’s role in acting for the Bank ‘did not preclude [her] also acting for the defendant at the material time’[2] and that, for the purpose of the privilege issue, he saw EC Textiles and Ms Lau as one and the same[3].  The issue of privilege was, he said “a matter between Miss Mak as a solicitor and Ms Lau as the client”[4]: so that it was for the two of them to resolve the issue, not for the prosecutor, but if the two could not ultimately resolve it, it was ultimately for the court to do so.  Yet it must have been perfectly clear to Wong by Ms Mak’s reply to the letter of 12 December (to which reply I shall next turn) that this was not an issue which was going to be resolved, and that the issue would have to be decided by the court – in his mind, the trial court.  And it is against that backdrop that we shall shortly move to see what happened.

31.  Ms Mak’s reply of 19 December 2005 ran as follows.

“I refer to your letter dated 12 December 2005 on the above.

I repeat that while whether I acted for your client on the above matter is a matter to be determined on the facts of the case, I deny owing the duties towards your client as alleged, and more particularly, of any breach of duty towards your client.

Section 34(2) of CPO and the case cited in your letter are irrelevant.

I repeat it would be for you to take out proceedings to set aside such witness summons if you so wish. Unless and until you have successfully obtained such order to set aside the said witness summons served on me, I would be obliged by law to be a witness in the court unless otherwise ordered.

All my rights are hereby expressly reserved.”

32.  Still Wong did not inform the prosecutor of the issue or of the likely argument; nor was the court forewarned.  The court was not alerted to the issue until the very moment that Ms Mak was called as a witness in late January and, as we shall see, that last moment notice resulted, not surprisingly, in an adjournment so that the issue of law could properly be researched.

33.  On 22 December 2005, according to the facts admitted in Wong’s trial, Ms Mak informed the police of the receipt of the letter dated 12 December 2005 and described its contents and that information was passed on the same day to prosecuting counsel in the Lau trial. 

34.  On 16 January 2006, a week before Ms Mak was due to give evidence, Wong drafted two letters to be sent by LCK.

35.  The first was a letter to prosecuting counsel saying that: “As indicated by defence counsel prior to the adjournment of the case, the rest of the [prosecution witnesses] would be handled by Philip Wong of counsel who would have to attend a short magistracy appeal in the morning of 24/1/06.  In this connection, we request that witnesses other than KBC staff, Rita Chan and Fanny Mak as well as a handwriting expert and also WPC Tam be called in Mr Wong’s absence on 24/1/06.”

36.  What is significant about that letter is that it shows that by 16 January 2006, Wong anticipated the possibility of having to deal with the Fanny Mak issue.  Yet, on the very same day he drafted another letter, again to be sent by LCK, to the Law Society but to be copied to Ms Mak and to be headed “Urgent – by fax and by post”.  The draft was sent to LCK with a request that it be discussed with counsel before it was issued.

37.  The letter to the Law Society, copied to Ms Mak, to Lau and to the other counsel acting for Lau, was dated 20 January 2006 and it said:

“URGENT

BY FAX (…) & HAND

The Law Society of Hong Kong

…

Professional Privilege and the Acceptable and/or Unacceptable Scope of a Solicitor in Testifying Against His/Her Own Client in a Criminal Trial

(Deed of charge dated 28 September 2001 between KBC Bank N.V. and EC Textiles Ltd.)

We refer to our previous correspondence on duty of confidentiality etc. owed by solicitor to client and enclosed please find copied correspondence between our firm on behalf of EC Textiles Ltd. and Ms. Fanny Mak, a member solicitor practicing in Hong Kong, concerning her intended giving of evidence in a District Court case against EC Textiles Ltd. and its officers in connection with the captioned transaction handled by Ms. Mak.

We are concerned that despite repeated reminders, Ms. Mak has adopted an attitude of defiance towards complying with her duty of upholding client’s privilege/confidentiality as well as privacy which are important professional ethics a HK Solicitor should take heed of.  In this connection, we are instructed to invite you to look into the matter and take whatever preventive and/or remedial measures necessary to uphold professional ethics applicable to a member solicitor of the Law Society of Hong Kong.”(Emphasis added)

38.   I pause this time to note the following:

(1)   The Law Society was not told the date upon which Ms Mak was due to give evidence, which begs the question whether the letter was truly intended for the Law Society to act upon or was merely an intimidatory vehicle for the eyes of Ms Mak.

(2)   The Law Society was told that the solicitor intended to give evidence in a District Court case against EC Textiles Limited.  That was untrue.

(3)   The Law Society was asked to take preventive measures, yet still without information sufficiently detailed for them to act upon.

(4)   The Law Society was not told that those writing the letter acted also for an individual defendant – the only defendant in the case – and that counsel acting for that defendant intended (as without doubt he intended – he said so in his evidence) to raise the issue of privilege at the hearing if all else failed.

39.   On 21 January 2006, according to the facts admitted in Wong’s trial, Ms Mak informed the police about the receipt of the letter dated 20 January and described its contents and asked for a conference with prosecuting counsel; a conference which was held on 23 January 2006.

The hearing on 24 January 2006

40.   Ms Mak was due to testify on 24 January 2006.  At 3.57 in the afternoon, counsel on fiat announced that he was calling the next witness, Ms Mak at which point Wong said :

“Before Ms Mak is … I mean arranged to be called or come into the court, I have a certain submission on her evidence. … can Ms Mak stay outside.  I understand that Ms Mak is dealing with the deed of charge. …  My instruction is that at that time she was the solicitor acting for EC Textile and its officers.  And insofar as the transaction is concerned, there is legal professional privilege attached.  And we object to her giving evidence against EC Textile or its officers.  The authority I rely, may I hand in a copy of Blackstone, as well as the receipt of charge Ms Mak charged EC Textile for the work she had done for EC Textile.”

41.   Prosecuting counsel was then asked by the court what the purpose was in calling the witness and he said that the purpose was to identify who executed the deed of charge; the identity of the person who signed on behalf of EC Textiles.

42.   Argument then proceeded.  Wong placed heavy reliance on the bill issued by Ms Mak’s firm to EC Textiles; a charge of $31,430 for “our professional charges for preparing, engrossing and attending execution of the above security documents by the above companies [one of which was EC Textiles].”

43.   Counsel submitted that, prima facie, the bill was proof of a professional relationship between EC Textiles and Ms Mak.  As for the law of professional privilege he provided to the court page 2342 of the 2006 edition of Blackstone’s Criminal Practice.  He read to the court a passage from the page, relying on the part which stated that “communications between the client and his legal adviser made for the purpose of enabling the client to obtain or the adviser to give legal advice about any matter, whether or not litigation was contemplated the time” was one of the types of confidential communication within the scope of legal professional privilege.

44.   What Mr Wong did not provide to the court was the next page, page 2343, at the foot of which was the following passage:

“The privilege attaches to communications between the client and his legal adviser for the purposes of obtaining and giving legal advice, and not to facts perceived by the legal adviser in the course of that relationship.  Thus a solicitor may generally be compelled to give evidence as to his client’s identity (Studdy v Sanders) (1823) 2 Dow & Ry KB 347).  In R (Howe) v South Durham Magistrates’ Court [2005] RTR 55, it was held that a solicitor present in court when an order had been made disqualifying a person from driving could be compelled in a subsequent prosecution to give evidence as to the identity of that person and to produce attendance notes in relation to the disqualification (with anything in the notes attracting privilege blacked out).  Equally, a solicitor may be compelled to give evidence as to his client’s handwriting (Dwyer v Collins (1852) 7 Exch 639) or mental capacity (James v Godrich (1844) 5 Moore PCC 16).  See also Brown v Foster (1857) 1 H&N 736: a barrister who has seen a book produced at his client’s trial may give evidence in subsequent proceedings as to its contents.” (Save for the word “facts”, the emphasis is added).

45.   Counsel for the prosecution informed the court that the issue was merely one of identification and not of any communication between the solicitor and Lau.  Wong said that it was not simply a question of identification but that the identification flowed from communication and that he was also concerned that the witness might go further than her witness statements.

46.   Argument was quite extensive with prosecuting counsel saying that on any view the question did not arise because EC Textiles was not the defendant in the case and that the defendant, Lau, enjoyed no privilege in the context of the transaction in question.  Wong replied that his understanding of privilege in relation to companies was that it extended to its officers.  Wong suggested that a voir dire be held.  He said that “the whole occasion of attending the office of the solicitor is in order to have the advice and then execution of document…. My gut reaction is never have I come across solicitor working for a client have to come forward to testify on what happened at the meeting you have with your client.  I’ve never come before … I don’t know whether there is a direct authority.  There may be …”.

47.   The court categorised the point taken as an interesting and important one and was unsure whether what was at issue was within the scope of professional privilege and counsel were invited to look into the matter further and return the following morning.

48.   The following morning was 25 January 2006.  Wong showed the court an extract from Phipson (2005) in its reference to China National Petroleum Corporation v Fenwick[5] which suggested that in the context of taking a proof from a potential witness, privilege attached not merely to prove what was said in the interview but also to the identity of the witness.

49.   Counsel for the prosecution referred to authority the effect of which was that the identity of the client was not privileged.

50.   The judge ruled that insofar as the proposed evidence was limited to the extent highlighted by prosecuting counsel, he would receive the evidence but if it went further he would review the matter on a question by question basis.

51.   I have referred earlier to counsel’s failure to draw to the attention of the court to the passage in Blackstone – on the very next page to the one that counsel had caused to be copied and shown to the court – the passage which suggested that a solicitor may generally be compelled to give evidence as to his client’s identity.  That is remarkable enough, but there is something else that counsel failed to disclose to the court.  He failed to disclose the fact that his solicitors had been in regular correspondence with Ms Mak and that she had more than once asserted that she owed no duty of confidentiality to EC Textiles.  Throughout Wong’s lengthy and insistent submissions on two consecutive dates, he failed to provide the court with so much as a hint that Ms Mak had been invited to make an application to set aside the witness summons, that she had refused to do so, and that she had repeatedly asserted that she owed no duty of confidentiality to EC Textiles.  Howsoever this may impact on the ultimate issue of criminal liability, it is difficult to understand how counsel could bring himself to withhold these facts from the court.

52.   In the course of her testimony, Ms Mak revealed that she had received correspondence from LCK, intimating that she had found it disturbing. Prosecuting counsel expressed outrage at the fact of the correspondence about which he said he had only heard the previous afternoon.  This appears to conflict with the admitted facts in Wong’s case, but it may be, I know not, that it was only the previous day that prosecuting counsel saw the letters themselves.  Whatever the case, he knew as long ago as late November 2005 of the fact that LCK had been corresponding with this prosecution witness and raised no issue about it either with Wong or with the court.  The judge did not consider it relevant to investigate the fact or nature of this correspondence.   

53.   Nonetheless, the matter was investigated by the police.  In May 2007, the police searched the offices of LCK and found copies of the correspondence in question and Yeung was charged.

54.   In the course of Yeung’s trial, Wong testified and said that he had drafted the letters.  Prosecution of Wong followed.

The evidence at Yeung’s trial

55.   It is trite that proof of an offence of attempting to pervert the course of justice does not depend upon proof that the course of justice was in the event perverted.  The question is always whether the impugned conduct had that tendency.  In the present case it is evident that Ms Mak was not dissuaded from giving evidence in the Lau trial nor cajoled to claiming privilege.  She adhered to her intention to obey the witness summons and to provide testimony along the lines of her second witness statement.

56.   Nonetheless, the testimony adduced at the trials of Wong and Yeung reveal how she in fact reacted to the letters which, the applicants might argue, is testament to the professional reaction which they anticipated; a reaction of relying on advice and of resolve.  But, as we shall see, the effect of her testimony at each trial was that she became disturbed and unhappy with events as they progressed.

57.   In Yeung’s trial, Ms Mak said in relation to the first of the three letters that she did not really know whether the solicitors were reluctant for her to act as a prosecution witness but in response to that letter and its threat of civil proceedings and disciplinary action she did not “really feel much because it is the normal wordings used by lawyers”.  Nonetheless, she felt a bit disturbed and discussed it with a lawyer versed in criminal trials.

58.   When she received the letter dated 12 December she felt “a bit upset or confused”, because she believed that it was up to them to make an application to set aside the summons and she had never before been a witness in a criminal trial.  She told the police about the correspondence because it was their job to protect witnesses.

59.   As for the letter dated 20 January 2006, she was not happy about it; first, because allegations in it were, in her view, untrue and she would have to respond to the inevitable enquiries from the Law Society and, in addition, she was shortly to testify in court.

60.   She told the court that the first letter made her feel strange; the second unhappy; and that when she received the third letter “I felt a lot of pressure because I would be giving evidence in court in the coming few days and I did not have time to handle it.”

61.   In cross-examination, she was insistent that she had no solicitor-client duty to EC Textiles or to Lau.  She was asked whether it was possible that she had had to explain to Lau the content and effect of the documents she was signing and she said she could not particularly recall whether she did so for the instant case but her usual practice was to explain the documents to the client.

62.   Yeung stated in evidence that he did not do much criminal work; it was mainly civil work and that at the material time he worked very long hours dealing with something like 30 or 40 files a day.  When he received the draft for the letter of 24 November 2005, he received also a copy of the bill.  He telephoned Wong who informed him that he, Wong, had instructions to issue the letter on behalf of EC Textiles.  He thereafter gave the matter little thought because, after all “ the letter was drafted by Mr Philip Wong and the case was represented by three counsel at that stage, I strongly believe that they were clear about the situation having conference held and they have had clear instructions already.  I signed the letter without any doubt.”  He himself conducted no research into the question.  It never occurred to him that the effect of the letter was to put the recipient under pressure not to testify as a prosecution witness: the letter merely reminded the solicitor that she was in breach of privilege.  The wording used was quite normal as between solicitors.  He did not know what evidence Ms Mak was to give.  He also said that at the time he sent the letter dated 20 January 2006, he did not know that the trial was still going on.  He telephoned Wong to confirm that there were instructions for issuing the letter.  

The prosecution assertion in Yeung’s case

63.   In opening the case in the Yeung trial, Mr McCoy SC, for the prosecution, contended that:

“In the letters the accused knowingly advanced a preposterous and false claim for legal professional privilege on behalf of …E C Textiles. …the accused tried to cause the Law Society, on deliberately false and misleading information, to take pre-emptive steps against [Mak] to prevent her from giving the critical evidence…. All steps were taken by the accused with the intention to improperly threaten [Mak] not to give evidence…. The sent letters were never a genuine alert as to LPP but were at all times instead a deliberate and calculated sham, being an attempt to try and stop [Mak] to give evidence by pressuring, humiliating and threatening her with civil and disciplinary proceedings. … the accused intentionally implemented that series of communications for an improper purpose, namely to dissuade [Mak] from giving evidence, knowing that such purpose and means were improper and would have, as the accused intended, the tendency thereby to pervert the course of justice.  If, which is not accepted, the accused sent the letters on the instructions of Lau … or indeed any other person and/or on the advice of any other person(s), then those instructions and advices were themselves patently unlawful and the accused knew or must have known that, and accordingly any LPP in this regard is lost, as being in furtherance of a criminal purpose.”

64.   In his closing submissions, Mr McCoy emphasised the evidence of Mak that neither Lau nor EC Textiles were her clients at any material time and he contended that:

“ … the whole basis of the claim to legal professional privilege… was just wholly false and, indeed, it is nonsensical.  No one, including the accused, could have believed it was valid.  The accused used the vehicle of a nonsensical claim to legal professional privilege as a means of being able to deliver the repeated threats to Fanny Mak.  Even if the accused believed that legal professional privilege existed somehow between Fanny Mak and Lau… the accused would know that Fanny Mak acted for the bank and no LPP could possibly exist in signing a commercial charge .. .  The relevant signature of Lau could never be privileged.  The whole allegation as to the existence of LPP was preposterous and intentionally false.” [T507 to 508].

65.   After closing submissions by leading counsel, Ms Li SC, for the accused Yeung, and in response to questions from the court, Mr McCoy repeated his assertion that the claim to legal professional privilege was “manifestly a fake claim and it was being used as a pretext all the way along for the purpose of threatening the witness not to give evidence.”  If the defendant did not know the relationship between EC Textiles and Ms Mak then he was being reckless and “recklessness is sufficient mens rea for this offence.”

The Prosecution opening in Wong’s trial

66.   Amongst the material averments in the prosecution’s opening in Wong’s trial were these:

(1)   No legal professional privilege or duty of confidentiality was owed by Ms Mak to EC Textiles or to Lau.

(2)   The acts relied upon, namely, the sending of the letters, amounted to an attempt to prevent or dissuade Ms Mak from testifying in court as a prosecution witness in the criminal trial.

(3)   “The accused at all times knew that no bone fide claim of legal professional privilege could be made in respect of the evidence it was proposed that Ms Mak give in the trial concerning the execution of the deed of charge.”

(4)   The letters drafted by Wong “were designed and intended to improperly influence Ms Mak not to give evidence.”

(5)   The timing of the letter sent on 20 January 2006 was highly significant: Wong had been involved in the case for many months but “at the crucial time, the time just before [Ms Mak] was to give evidence, and in the course of the trial, he chose to send these letters. … that was unfair and unlawful pressure to bring to bear on a witness.  Mr Wong was involved in the trial.  It was open to him to go to the trial judge and explore any issues of legal professional privilege, instead of which he chose to approach the witness directly.”

 The evidence in Wong’s trial

67.   Ms Mak testified at Wong’s trial.  She said that :

(1)   It was normal practice on occasions such as the visit of Lau clearly to explain the contents of a deed of charge to a person who signs it; an explanation which would include the rights and obligations to which the document gave rise, but she would also remind the person concerned that he or she could seek independent legal advice if he or she so wished.  If the party concerned asked questions seeking further explanation or clarification she would answer the questions.  The process might take as little as 20 minutes or as long as one hour.

(2)   She was certain that EC Textiles had not been her client.  In her opinion, whether or not EC Textiles was a client was a matter that mainly depended upon her intention and “whether there was any holding out or whether I had given advice to them or whether I had taken any instructions from them.”

(3)   When she received the first letter she was very surprised because she had received a witness summons and did not know why the solicitors would write to a witness.

(4)   She was asked what her reaction was to the references in the letter to civil action and reporting to the Law Society and she said: “I felt that if they were in the opinion that I was in breach, in the normal circumstances civil action or reporting to the Law Society would be quite normal.  And on this point my reaction was not that big.”  The letter had no effect on her emotions: it was drafted with exaggerated phraseology normal for communications between lawyers.

(5)   However her reaction to the letter dated 12 December was not the same.  This was not usual solicitor-to-solicitor communication and it confirmed the suspicion that “they did not want me to act as a witness… they wanted to give pressure through the Law Society.”

(6)   The letter dated 20 January made her “very confused because I was to give evidence in four days.  I did not know what I could do during that time.  I had sought advice from lawyer or lawyers, and I wanted the court to give a ruling as to whether I had to give evidence or not before I was to give evidence to protect myself.”

(7)   She reported these letters to the police because she felt the police had a duty to protect their witnesses and although she felt that she was “not too much in need of protection”, she was not sure whether “the other side” should issue letters to witnesses.

(8)   Whilst she thought she was strong enough to “tough it out” and was “not under too much pressure before this letter”; after the letter “I did have pressure.”

(9)   She had received legal advice to ask the court to give a ruling on the matter and that is what she intended to do.

68.   The theme of Mr Wong’s evidence was as follows:

(1)   After reading the papers in the case he spoke to Jacob Cheung and “asked for clarification from the client as to the relationship between… EC Textiles and… Fanny Mak”.

(2)   The prosecution case in Lau’s trial was that Lau was the alter ego of EC Textiles.  He, Wong, saw Lau and EC Textiles as one and the same entity for the purpose of the issue at hand.

(3)   Accordingly, when he wrote his Note of 24 October 2005, he expressed an honestly held view on the question of legal professional privilege.

(4)   A conference was held with the client, Lau, and the production of the solicitor’s invoice to EC Textiles strengthened his view on the matter.  He was given instructions to draft a letter before action.  He emphasised that he was not a civil practitioner but his understanding was that it was not unusual for a solicitor to act for both sides in such a transaction.

(5)  He and the other counsel in the case then discussed what remedy might be pursued.  A number of options were considered including a letter before action; although he conceded that he had never previously written a letter to a prosecution witness.  It never occurred to him that the sending of such a letter might amount to an attempt to pervert the course of justice: all he was trying to do was to protect the interests of the client, namely, the client’s company EC Textiles.

(6)   It never crossed his mind to copy the correspondence to the prosecutor; but he thought Ms Mak would inform the prosecutor and that, as a lawyer, she would form her own view on the matter.

(7)   The point of the letter of 30 November was to do no more than to seek guidance so that Ms Mak could be reminded of her duty.

(8)   Ms Mak’s reply of 19 December reinforced his view that the issue “might have to be voiced out in court”.  It was not, in his view, for the prosecutor to enforce legal professional privilege for EC Textiles or Lau and so it was a matter for discussion between the parties and, if the issues could not be resolved, then it was a matter for the court.

(9)   His recollection (soon shown to be inaccurate) was that he handed in all relevant pages of Blackstone when he argued the issue on 24 January 2006.  In any event, he believed that the point was reasonably arguable and that identity was also covered by legal professional privilege if revealed as a result of communication.  It was put to him in terms that he withheld the relevant page of Blackstone precisely because he knew that his argument did not hold water; with this he firmly disagreed.  One notes in this regard that in cross-examination he said that he had read the whole section dealing with legal professional privilege.  He said too that the legal team had conducted research into the issue of privilege.  I observe in passing that if indeed he had read the whole section and if he had conducted research, it is a matter for concern that he failed to draw the attention of the court to authorities against his argument.

(10) As to the effect of the correspondence upon Mak, it did not cross his mind that she might feel under pressure.  It was regularly put to him in cross-examination, first, that the object of the correspondence was to dissuade Mak from coming to court and, later, that he wanted to take the issue out of the court’s hands by persuading Mak to claim privilege when he, Wong, must have known that the claim was not justified.

Attempting to pervert the course of justice

69.   An attempt to pervert the course of justice is a substantive offence.  HKSAR v Egan (2010) 13 HKCFAR 315 para 123.

70.   The offence is the doing of an act which has a tendency and is intended to pervert the administration of public justice: R v Vreones [1891] 1 QB 360, 369.

71.   It is immaterial whether justice is in the event perverted, in other words whether the result of the case is in fact affected by the impugned conduct.  What matters is the tendency of the conduct upon the course of justice: “…it is the course of justice to which the conduct is directed, and that is what must be protected in every case, not the justice of the result in the particular case” : R v Kellett [1976] 1 QB 372, 387.

72.   That central feature, that what the law guards against is interference with the process of justice, is most important to emphasise in the context of this case.  The question in this case is not whether the conduct of the applicants tended to and was intended to cause an ultimate injustice; but whether it tended to and was intended, by improper pressure, to distort the process by which the trial court administered justice.

73.   So, it is important in the context of this case, to ask: what is the “course of justice”?

“The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case.  The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice.  The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various.  Those ways comprehend, in our opinion, erosion of the integrity of the court of competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions.  An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice.”

                                 R v Rogerson (1992) 174 CLR 268 at 280.

74.   It must also follow that the course of justice is deflected by causing applications to be made to a court which, but for improper pressure, would not be made.  Once legal proceedings are in motion they should be permitted “to flow unobstructed and undiverted… justice should be administered in the way which is ordinarily pursued”: R v Taffs [1991] 1 NZLR 69.

75.   Whether conduct has the proscribed tendency is a matter to be objectively construed : Connelly v Dale [1996] QB 120 at 126.

76.   An approach to a witness may or may not have a tendency to pervert the course of justice.  Whether it does depends on the circumstances.  “Such an approach can only properly be made if its purpose is lawful and no unlawful or improper means are used to secure that purpose.” Egan at para 134.  (Emphasis added).  Improper means includes improper pressure : Egan at para 24.  The means may be improper even though not in themselves unlawful: see, for example, R v Kellett [1976] 1 QB 372.  Conduct designed to overbear the free choice of an accused or witness will constitute improper means: Meissner v The Queen (1995) 184 CLR 132 at 148; Attorney-General (Victoria) v McLachlan (1997) 93 A Crim R 557.  So, for example, “it is lawful to try to dissuade a witness from committing perjury by reasoned arguments supported by material facts and documents, but threats or improper pressure take the interference across the line and into criminality”: Taffs at 72.  See also R v Selvage [1982] 1 QB 372 at 379H.

77.   What constitutes legitimate persuasion, on the one hand, and conduct designed to overbear free choice, on the other, is a question of fact according to all the circumstances of the case: see the citation from R v Kellett at para 81 below.

78.   Thus in Meissner at 143 the High Court of Australia said in the context of an attempt to influence an accused to plead guilty :

“Any conduct designed to intimidate an accused person to plead guilty is improper conduct and necessarily constitutes an attempt to pervert the course of justice even if the intimidator believes that the accused is guilty of the offence with which he or she is charged. … .. improper conduct of any kind that has the tendency to interfere with an accused person’s right to make a free and voluntary decision to plead not guilty to a charge must be regarded as having a tendency to pervert the course of justice.  If that conduct is accompanied by an intention to pervert the course of justice, the person engaging in the conduct will be guilty of attempting to pervert the course of justice.

… Reasoned argument or advice that does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge.  As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make that choice, no interference with the administration of justice occurs.” (Emphasis added)

79.   The same rationale is necessarily applicable to the harassment of a witness which has a tendency to prevent that witness from exercising a free and voluntary choice whether to give evidence or, in the case of a summons and subpoena, whether to seek to have that summons or subpoena set aside.

80.   Ribeiro PJ in Egan explained the point thus:

“136. … the propriety of the means used to influence a witness may also usefully be tested by asking whether the methods used leave the witness genuinely “free to make the choice” as to whether to give evidence and what evidence to give….

137. On the other hand, an approach to a witness would obviously be unlawful if its object were, for example, to persuade the witness to give false or perjured evidence or to refrain from telling the truth.  In such cases, it is unnecessary to consider the means used.  It is no defence to say that the accused merely threatened the witness with the exercise of a legal right.  The unlawfulness of the object is sufficient to found the offence.

138. Even where the purpose of the approach is itself proper – for instance, to dissuade the witness from giving what is perceived to be false evidence – the offence is committed if the means used to attain that purpose are unlawful or improper. …

139.   Whether conduct constitutes improper pressure may involve questions of fact and degree.” 

81.   This is an echo of the judgment in Kellett which the Court of Appeal of England and Wales emphasized, at 391, that “ … the exercise of a legal right or the threat of exercising it does not excuse interfering with the administration of justice by deterring a witness from giving the evidence which he wishes to give before he has given it” ; and then this at 392 to 393, most apposite to the present case:

“There may be cases of interference with a witness in which it would be for the jury to decide whether what was done or said to the witness amounted to improper pressure, and so wrongfully interfered with the witness and attempted to pervert the course of justice, and it would be not only unnecessary and unhelpful but wrong for this court or the trial judge to usurp their function.  The decision will depend on all the circumstances of the case, including not merely the method of interfering, but the time when it is done, the relationship between the person interfering and the witness and the nature of the proceedings in which the evidence is being given.  Pressure which may be permissible at one stage of the particular proceedings may be improper at another.  What may be proper for a friend or relation or a legal adviser may be oppressive and improper coming from a person in a position of influence or authority.”

See also, to like effect, Meissner at 148 to 149, per Deane J.

82.   As for the requisite mens rea, the offence is one of specific intent.  The intent required is that the course of justice be deflected.  The prosecution has to prove either an intent to pervert the course of justice or an intent to do something which if achieved will have that effect.  In the case of contact with a witness, “ the offence is complete if a defendant makes a threat to a witness with the intention of persuading him to alter or withhold his evidence” : R v Lalani [1999] 1 Cr App R 481 at 491.( Emphasis added)  In Meissner the mens rea was the intention to induce a guilty plea when the person who pleaded guilty “would not or might not have [done so] if she had exercised a free choice in her own interests”: see Meissner at 144.

83.   Taffs, above, was a case in which a lawyer, believing a witness was about to give false testimony against his client, threatened to humiliate the witness in cross-examination and with that threat sought to influence the witness’ mother to persuade the witness not give evidence.  It was in that context that the Cooke P remarked, at 73, in a passage that might be thought to resonate with the case before us, that :

“It would be dangerous to allow a lawyer, perhaps uncritically espousing his client’s case, to threaten to use legal proceedings to publicly humiliate the adversary.  To leave the lawyer free to utter such threats, provided only that he genuinely believes his client to be in the right, would savour of transferring the responsibility of judging the case from the Court to the legal representatives of the parties.”

84.   In some cases the tribunal of fact will more readily be able to infer the requisite intent than in others.  Where the tendency is manifest the intent may more readily be inferred.

85.   Motive is not an element of the offence, though a corrupt or improper motive may go to establish the requisite intent: Criminal Law New South Wales, para 2.31574.

The contentions and the context

86.   The contending arguments in the courts below and before this Court may be summarised against the backdrop of the law thus stated.

87.   There is a question of some significance which I must later address, whether the prosecution case changed.  Put broadly for present purposes, the prosecution case was that Ms Mak was required to appear as a prosecution witness in the Lau trial and that she intended to give evidence along the lines of the second statement which she had provided to the police, and that she had no intention of advancing privilege as a bar or possible bar to the testimony which was to be adduced from her.  Faced with this resolve or wish, the applicants, so it was (or could have been) put, exerted improper pressure upon her to take a course which, but for that pressure, she had no intention of taking; namely, to claim privilege on behalf of Lau or EC Textiles. This conduct, it was contended, went clearly beyond permissible persuasion and crossed well over the border into intimidation or harassment and that it was intended by the applicants thereby to deflect the course of justice which otherwise that course would have followed.  In this way, the offence was in each case made out.

88.   In the courts below, the assertion appears to have been that neither applicant had any faith in the legal professional privilege argument; that that argument was a sham, for which reason the intention to deflect the course of justice was readily to be inferred.  But the argument before us is that even if the applicants misguidedly believed that the legal professional privilege point was arguable, it mattered not for the purpose of proving the offence with which these applicants were charged, since the pressure which they exerted upon the witness was improper pressure tending against her free will, and intended so to operate, and that in those circumstances the elements of the offence were proved.

89.   The improper pressure was manifest, so said the prosecutors, by the tone and content of the letters and most particularly by the timing of the letter of 20 January, a mere weekend before the witness was due to testify.  The applicants could have been under no illusion but that the manner of their approach went well beyond the bounds of legitimate persuasion, a contention reinforced by the fact that all this was happening in the midst of the trial and without any hint to the court or to the prosecutor of the issue supposedly concerning EC Textiles and/ or Lau or of the correspondence with the witness.

90.   The applicants, on the other hand, say that this approach is to ignore the context in which the impugned conduct occurred.  An important and unique feature of that context was the claim of legal professional privilege.  The importance of that feature was that by its very nature, legal professional privilege is designed to preclude the disclosure of information by a witness whose testimony might, but for a claim of privilege, breach the privilege.  A claim or application that a witness should withhold the disclosure of such information is itself part of the course of justice, so an attempt to enforce the privilege can hardly be said to be an attempt to deflect the course of justice.  And the feature is unique, so the argument progresses, because none of the many authorities touching upon the characteristics of the offence, engages this context.

91.   In this peculiar and unusual context, it is said, there was nothing improper in the party to whom the privilege belonged seeking to require the solicitor to respect that privilege; nor was it incumbent upon that party, EC Textiles, to await a determination by the judge in the criminal trial upon the issue; indeed, it is contended that that was not the appropriate forum for EC Textiles to enforce the privilege.  In such a case, and since there is no property in a witness, a letter before action and other attempts to persuade the solicitor of the validity of the point were perfectly proper steps.

92.   The second unusual feature, it is argued, is the position and status of the witness.  In that Kellett emphasises the relationship between the accused and the witness as going to the question whether the approach to the witness constituted improper pressure, it is to be remembered that the recipient of the letters was a solicitor, a highly experienced one at that, who, if she did not agree with the representations made to her, could be expected to stand her ground; and who might be expected – as indeed proved the case – to take advice, if she needed it, and in any event to draw the matter to the attention of the prosecuting authority.

93.   The third unusual feature prayed in aid, is the status and duties of the applicants when in contact with the solicitor witness.  At all material times, the applicants were acting in their professional capacities as lawyers representing the interests of a client and, furthermore, the steps which they took were steps pursued on the instructions of that client; so that before it could properly be concluded that they were engaged upon an attempt to pervert the course of justice, it would have most clearly to be shown that their conduct was obviously professionally improper and that they intended to go beyond that which they reasonably believed to be in permissible execution of their duty to the client.

94.   These are cardinal features of the case which, it is said, the trial judges failed to recognise or to accord anything like sufficient weight.

What needs to be decided

95.   Much of the argument before this Court was devoted to an analysis of the law of legal professional privilege; in particular:

(1)   the circumstances which might give rise to an implied retainer of a solicitor such as to create a relationship of confidentiality – a discussion which went to the question whether there was a solicitor-client relationship in this case between Ms Mak and EC Textiles or Lau;

(2)   when a solicitor-client relationship obtains, whether the solicitor is nonetheless obliged to reveal the identity of the client when called upon to do so by a court; and

(3)   the machinery in law available to a client for the protection of his legal professional privilege when a perceived breach is threatened by a witness due to give evidence in criminal proceedings.

96.   These issues were canvassed in these applications because it was said that the courts below held that there was no solicitor-client relationship; that even if there was, the resulting contract of confidentiality did not, as a matter of law, preclude Ms Mak from revealing the identity of the person who signed the deed of charge on behalf of EC Textiles; that the applicants were aware of the obvious validity of both propositions; and that in any event the only appropriate avenue by which to air their contentions – even if they held any belief in them – was, as they well knew, to canvass them before the judge of the criminal charge.  These findings, say the applicants, were flawed, yet they informed the decision in each case to convict.

97.   The respondent asserts that those findings were unimpeachable but that the decision to convict was not, in either case, dependent upon those findings; for the essence of the decision to convict, it is argued, depended upon the finding that, whatever the state of the law, whatever the degree of belief by the applicants in the propositions of law which they advanced, and whatever legitimate avenues exist by which to enforce legal professional privilege or to prevent a breach of confidentiality, they chose instead an impermissible path, namely, one that ventured outside any of the recognised legitimate avenues and which tended and was intended to deprive the solicitor of free choice.

98.   Although it is necessary for this Court to examine the three legal issues specified at paragraph 95 above, it is not necessary definitively to determine them, for the correct state of the law is not to the point.  What is to the point is whether the issues are at all arguable for, if they are, then that fact must be set against the tenor of the findings of the courts below that they are not and that the applicants could have had no belief in them; and we would then have to see where that takes us in terms of the safety of the convictions.

99.   Those are not the only issues to be decided.  Even if the findings of the courts below on the issues of law were correct or, if not correct, did not infect the decisions to convict, there are other issues to address, namely:

(1)   whether the courts below failed to take into account material factors which lay in favour of the applicants, particularly as to their mens rea;

(2)   whether the courts below assumed impropriety in the very fact of contacting a prosecution witness or in not notifying the prosecutor of the fact; and

(3)   whether the manner in which the prosecution put their cases in the courts below changed in a material way by the time cases were closed and, if so, whether that operated to the prejudice of the particular applicant.

Legal professional privilege

100.   The privilege consists of “a right to resist the compulsory disclosure of information” : R v Auckland District Law Society [2003] 2 AC 736, at para [67].  The position has been said[6] classically to have been stated by Sir Rupert Cross in Cross on Evidence (5th ed. 1979), 282 as follows:

“In civil and criminal cases, confidential communications passing between a client and his legal adviser need not be given in evidence by the client and, without the client's consent, may not be given in evidence by the legal adviser in the judicial proceeding if made either (1) to enable the client to obtain, or the adviser to give, legal advice; or (2) with reference to litigation that is actually taking place or was in the contemplation of the client”.

101.   The privilege is now generally regarded as a substantive right rather than a mere rule of evidence: Phipson on Evidence 17th ed., [23-02] and [23-05].

102.   The subject matter of the privilege is communications between a client and his solicitor, intended by the fact and terms of their relationship to be confidential.  The justification for the rule is that:

“A man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth.  The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent.  Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the effects of a particular case.  It is a fundamental condition on which the administration of justice as a whole rests.”

                       R v Derby Magistrate’s Court, ex p. B [1996] 1 AC 487, 507.

103.   The principle is a fundamental condition of the administration of justice because without the assurance of confidentiality, those who seek to order their affairs lawfully or to pursue or defend their rights in law will be deprived of the assistance of those versed in the law and the procedures of the law: see Greenough v Gaskell (1833) 1 My & K 98 at 104; Anderson v Bank of British Columbia (1876) 2 Ch D 644 at 649.

104.   We are concerned in this case with privilege said to have fallen into the category of legal advice privilege.  Legal advice privilege covers communications between lawyers and their clients whereby legal advice is sought or given: Three Rivers DC v Bank of England (No 6) [2005] 1 AC 610.  But “giving and receiving legal advice is interpreted expansively, stretching the scope of the privilege”: Roberts and Zuckerman, above, p 318. What matters “is whether the lawyers are being asked qua lawyers to provide legal advice”[7]; it goes further than explanation of “legal rights and obligations strictly so-called”[8] but includes “advice as to what should prudently and sensibly be done in the relevant legal context”[9], although “there will always be borderline cases in which it is difficult to decide whether there is or is not a legal context.”[10]  In cases of doubt, the tribunal:

“…should ask whether the advice relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law. … If it does so relate then ... the judge should ask himself whether the communication falls within the policy underlying the justification for legal advice privilege in our law.  Is the occasion on which the communication takes place and is the purpose for which it takes place such as to make it reasonable to expect the privilege to apply?  The criterion must …be an objective one.”[11]

105.   Of particular significance to the arguments advanced on behalf of the applicants is the paramountcy of legal professional privilege, by which principle I have in mind the statement in Three Rivers at para [34] that such is the public policy justification for legal advice privilege that “as a result cases may sometimes have to be decided in ignorance of relevant probative material”.  So, the court does not in the face of a claim to legal professional privilege carry out a balancing exercise to weigh its importance against other factors: Derby & Co Ltd and others v Weldon and others [1991] 1 WLR 73.  See also Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1996-1997] 188 CLR 501, 551.  These principles apply even though the evidence is material in a criminal trial: see, for example, Derby Magistrates ex p. B.  There may be a question whether in the light of the constitutional right to a fair trial, embodied in the Basic Law and reflected in the Hong Kong Bill of Rights Ordinance, the privilege is absolute; but that was not an issue canvassed in the courts below or before us and is not necessary for us to determine.[12]

Implied Retainers

106.   Ms Mak’s assertion in the trials of both applicants was that she acted for the bank and not for EC Textiles or Lau.  It is evident, as we shall see when we examine the reasons for verdict, that her view of the matter carried considerable, perhaps conclusive, weight with the judges.  Certainly, the prosecution at both trials contended that the notion of a solicitor–client relationship was, to the knowledge of the applicants, bereft of foundation.

107.   The applicants on the other hand, particularly Mr Wong, relied for their argument that there was an implied retainer upon the facts that EC Textiles had no solicitors acting separately for them in the transaction, that Ms Mak’s communication with Lau included an explanation of the legal effect of the document or documents she was to sign, and that an invoice was rendered by Ms Mak’s firm to EC Textiles with no indication that the payment was to be made in settlement of part of the fees incurred by the bank in retaining Ms Mak or her firm.

108.   We have been taken to a succinct summary of the position in Professor Dal Pont’s work Lawyers’ Professional Responsibility 4^th ed., 2010 [3.50]:

“Retainers, like other contracts, need not be created by express words, whether written or oral; the existence can be inferred or implied from the circumstances.  In this context it is the existence of the retainer that is implied, not its terms…

Proof of an implied retainer rests on proof of facts and circumstances sufficient to establish a tacit agreement to provide legal services.  Its existence is determined by inference from objective facts, not merely by the lawyer’s belief as to which clients he or she was acting for.  The reasonable expectations of the alleged client carries significant weight here, as the lawyers may always take steps to dissuade any person from a belief that the lawyer acts for that person.

… Aspects that may impact upon the client’s reasonable expectations of a retainer include the capacity in which the lawyer acted … , who instructed the lawyer, who is liable for the lawyer’s charges, and whether a contractual relationship existed with the claimant in the past… .” (Emphasis added).”[13]

See also, as to the implication of a retainer arising from the payment of the solicitor’s fees : International Trading Co Ltd v Lai Kam Man & others [2004] 2 HKLRD 937.

109.   That a solicitor sometimes finds himself acting in an advisory capacity for both sides of a transaction is not unique and the fact that a conflict might arise between the duties owed to each does not negate the fact of that relationship or the duties arising under it: Watson v Ebsworth & Ebsworth [2010] VSCA 335 at [124].  In this regard our attention has been drawn to Pegrum v Fatharly (1996) 14 WAR 92 in which Anderson J said, at 102:

“When both parties to a transaction consult the same solicitor and together give him the information needed to prepare documents in which their respective rights and obligations are to be set out and the solicitor accepts responsibility to prepare the documents without any indication that he cannot fully discharge his professional duties to them both there is a strong bias towards finding that the solicitor tacitly agrees to act for both parties and to undertake the usual professional responsibilities to them both: Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch 384 esp at 396.  In the absence of a clear indication by the solicitor that the solicitor does not accept one of the parties as his client it is natural in such a case to assume both are relying on him for professional advice and assistance.  This follows from the mere fact that both have consulted him.  There may be other circumstances which show that there is no reliance by one or other of the parties on the solicitor, but, if not, reliance should be inferred as a fact….

This does not mean a solicitor whose services are sought by both parties is bound to accept that he is to serve both parties.  He can refuse to do so and elect to act for one party only.  This requires a very clear statement by the solicitor that this is to be his position.  It has even been held that he is duty bound in such a case to positively recommend that the other party get another solicitor and take independent advice before entering into the transaction and, in the event that recommendation is not followed, to give him proper advice as to the risks in signing the documents: see Irvine v Shaw [1992] ANZ Conv R 83.”

110.   It is not necessary for the purposes of this appeal to determine whether an implied retainer was created by reason of the facts that Ms Mak explained the effect of the deed of charge to Lau, that she rendered a bill to EC Textiles and that she did not positively recommend Lau to seek the advice of another solicitor – although she did tell her that she might seek such advice if she wished.  It is merely necessary to say that Ms Mak’s ipse dixit was not conclusive of the matter and that the foundation existed of an arguable point, albeit not a strong foundation.  It is not even necessary to go that far; for what suffices for part of the applicants’ purposes is some footing from which to accept that Wong genuinely thought he had the makings of an argument, an argument which he thought possible once he had sight of the solicitor’s invoice.

Legal Professional Privilege and Identity

111.   At the heart of Ms Mak’s intended testimony for the Lau trial was her identification of Lau as the person who signed the deed of charge.

112.   I can say at once that the suggestion made by Wong that his concerns went further, perhaps to other matters revealed or discussed in the course of the meeting between Lau and Mak, smacks of disingenuity; because, first, other matters were not touched upon in either of Mak’s witness statements; second, such concern, had it existed, could readily have been resolved either in the correspondence with Mak or by discussion with the prosecutor; and, third, it is obvious from the interchange at Lau’s trial, that assurances that such other matters were not the prosecutor’s objective did not persuade Wong to relinquish the identity issue.

113.   I am satisfied that it was the identity issue which was Wong’s sole objective and it is difficult to see that EC Textiles could at the time of the implied retainer, even if there was one, have seen any benefit in the confidentiality of its identity or that of Lau.  Identity was Wong’s sole objective, because he knew – it was obvious – that proving that Lau signed the deed of charge was part of the chain of evidence without which the prosecution would fail.

114.   It is central to the theme of legal professional privilege that what is protected is information given in confidence.  If the communication between client and solicitor is not given in confidence, the fact of the relationship is of no significance to protection of that communication from disclosure.

115.   The principle was explained in Bursill v Tanner (1885) 16 QBD 1, a case in which a solicitor to the trustees of a marriage settlement was subpoenaed by a judgment creditor in the context of an inquiry as to whether the judgment debtor, a married woman, was possessed of a separate estate.  The solicitor refused, on the ground of professional privilege, to state the names of the trustees or produce the deed.  Cotton LJ said, at 5: 

“I see no reason why the solicitor should not be obliged to state the names of the trustees. It is not everything that solicitors learn in the course of their dealings with clients that is privileged from disclosure.. … The privilege extends only to confidential communications…. In my opinion the names of the trustees did not constitute such a communication. The mere fact who the trustees are cannot be said to be a matter communicated to the solicitor confidentially for the purpose of obtaining his professional advice, or at any rate, it is highly improbable that it should be so.”

116.   There is much authority to the same effect which reveals itself without too much research.  In R (Miller Gardner Solicitors) v Minshull St Crown Court [2002] EWCH 3077, Fulford J said at para [20]:

“The provision of an individual's name, address and contact number cannot, without more, be regarded as being made in connection with legal advice.  It records nothing which passes between the solicitor and client in relation to the obtaining of or giving legal advice.  Taking down the name and telephone number is a formality that occurs before the legal advice is given … providing these details does no more than create the channel through which advice may later flow.”

See also Pascall v Galinksi [1970] 1 QB 38 at 44.

117.   The question was extensively examined in Miley v Flood [2001] IEHC 9, by reference to the law in several jurisdictions. In that case, a tribunal of inquiry requested a solicitor to inform the tribunal of the identity of the persons from whom the solicitor had received instructions on behalf of a company whose conduct was under investigation.  The solicitor claimed legal professional privilege on the basis that the information sought was confidential and that his client had given specific instructions not to breach privilege.  The tribunal judge held that legal professional privilege did not cover the identity of the persons providing these instructions and as a result of that ruling judicial review proceedings were commenced.

118.   Kelly J. noted that “none of the English decisions cited took the view that the identity of a solicitor’s client was a matter in respect of which privilege could be claimed” ; and that in Australia, the decision in Federal Commissioner of Taxation v Coombs (1999) 164 ALR 131 at para [31] was that:

“Privilege attaches to communications [by the client to the lawyer] only if they are confidential.  In almost all cases the client’s name and address will not have been communicated confidentially… As a general rule, the identity of the client will not be privileged as the privilege belongs to the client and the retainer between the lawyer and the client must be demonstrated in order to establish the privilege.  This requires disclosure of the client's identity”;

although the Australian Court accepted that there will be cases where the client’s identity is so intertwined with the confidential communication that to disclose the identity would be to disclose that communication.

119.   Similarly, in Canada, in Re Ontario Securities Commission (1983) 146 DLR (3d) 73, the Ontario High Court stated:

“The general rule is that whenever a solicitor asserts that a communication is protected by the solicitor and client privilege, he cannot refuse to identify the client on whose behalf the privilege is asserted. The identity of the client is not the subject of a professional confidence.”

120.   There are exceptions to the general theme that client identity is not covered by legal professional privilege.  Disclosure of a name given in confidence to a solicitor may be a breach of privilege: Rosenberg v Jaine [1983] NZLR 1 at 6 discussed in Police v Mills [1993] 2 NZLR 592 at 597-8.  Further, a client’s identity may be privileged where disclosure “would implicate the client in the very criminal activity for which legal advice was sought.”: United States of America v Hodge and Zweig 548 F 2d 1347 (1977) at 1353, cited in Mills, above, at 599.  No argument was ever advanced by Wong in the Lau trial that the basis for the privilege claim was that the disclosure of Lau’s name might incriminate her.

121.   We were taken to Conoco (UK) Ltd v The Commercial Law Practice [1997] SLT 372 as an authority contrary to the general theme but I note that the facts of that case strongly suggest that identity was intended by the client to be confidential.   

122.   There could in the present case be no viable suggestion that any circumstance of confidence attached to the identity of the person who signed the deed of charge.  The argument that privilege attached to the identity of Lau was a palpably unmeritorious one even if Lau rather than EC Textiles was the client.  If EC Textiles was the client, it is even more difficult to see what possible interest the company could have in confidentiality of the identity of Lau.  Further, EC Textiles and Lau must be taken to have known that the bank had a direct interest in being assured that the person signing the deed of charge was a bona fide signatory on behalf of EC Textiles; in other words, they must be taken to have known that that identity could not be kept confidential.  The argument was a nonsense.

123.   Yet that conclusion as to law does not resolve the issue of criminal culpability as against the applicants, for one of the questions in the case is whether the point was known to the applicants to be a bad one and, if so, the extent to which that matters.  One can at least see from the very fact that the issue has been canvassed in so many jurisdictions, that the argument has frequently been put forward.

The procedure for invoking privilege

124.   A central plank of the argument for the applicants was that the courts below erred in their findings that the proper place for the invocation of the suggested privilege was the criminal court and that the applicants well appreciated that fact; findings of some importance, it is said, because correspondence composed or sent by the applicants which threatened civil proceedings, far from constituting an improper threat, was precisely the correct remedial avenue in law for the client whose privilege was about to be breached.  The failure by the courts below to appreciate that fact informed their decisions to convict.  The courts convicted on the false premise, so the argument runs, that the correct parties for resolution of the privilege issue were Lau and the prosecuting party; that therefore it was incumbent on Wong and Yeung to inform the prosecutor of the issue and that the failure to do so was knowingly improper and one of the indicia in the case of an intent to pervert the course of justice.

125.   The point argued by Ms Montgomery QC, for Wong, was that the privilege was that of EC Textiles, which was not a party to the criminal proceedings so that EC Textiles had no locus to make an application in the criminal proceedings.  EC Textiles was entitled therefore to seek to restrain by civil proceedings a threatened breach of confidentiality by the solicitor.  Counsel contended further that the criminal court had no power to restrain the disclosure but merely a discretion to exclude the evidence.  One is bound to remark at once that that is not how Wong himself saw it.  The first letter aside, which threatened civil action, he purported to act throughout on the basis that the sole remedy lay in the criminal proceedings.  That was also the basis also upon which the witness Mak proceeded in response to the letters written or copied to her.

126.   There can be no question but that a claim against the admission of evidence on the basis that disclosure of the evidence would breach legal professional privilege can be made in the criminal proceedings themselves and that if the proposed evidence would breach privilege, the evidence may not be given; it is not a question of discretion.  But I take Ms Montgomery’s submissions to be founded on the basis that by disclosing the identity of the signatory to the deed to the prosecuting authorities, Ms Mak had already breached the privilege so that its use at trial could only be prevented on the basis of confidentiality.  Again it is worthy of note that Wong’s assertion at Lau’s trial was that the evidence was – in other words, remained – privileged and barred from production at trial.

127.   Ms Montgomery relies on the decision in Rockefeller & Co Inc v Secretary for Justice & Another [2000] 3 HKLRD 351.  In that case, documents had been produced by the plaintiff to the Securities and Futures Commission (SFC), which documents included documents covered by legal professional privilege.  Copies of the documents were handed by the SFC to the Independent Commission Against Corruption who in turn forwarded copies to the Secretary for Justice.  A criminal prosecution was commenced against one Kevin Lee who had been the managing director of the Hong Kong subsidiary of the plaintiff and the copy documents were disclosed to his lawyers as unused material.  At Lee’s criminal trial, the plaintiff sought injunctive relief against the use in the criminal proceedings of the documents said to be privileged.  The trial judge refused the application and the plaintiff appealed.  Godfrey V-P pointed out, at 355, that the procedure by which that relief was sought was misconceived:

“It appears to have been thought that, since this claim was being made in the course of criminal proceedings, the proper way to assert it was simply to make an application for the purpose to the Judge hearing those criminal proceedings.  If the plaintiff (or some proper officer of the plaintiff) had been served with a subpoena duces tecum to produce the documents to the court seized of the criminal proceedings, and the plaintiff had wished to object to producing the documents on the grounds of "privilege", it could no doubt have applied to the trial judge to have the subpoena set aside.  But that is not at all what happened.  What happened was that the documents had already come to the hands of the parties whose use of them the plaintiff wanted to restrain.  That is an entirely different scenario.  In those circumstances, the proper course for the plaintiff to take would have been to institute civil proceedings against the parties whose use of the documents it sought to restrain, invoking the equitable jurisdiction of the court to grant injunctive relief to protect the victim of a threatened breach of confidence.”

128.   The present situation is different from either contemplated by the Vice-President, in the sense that there was a summons requiring Ms Mak’s attendance to give evidence but she was not the one objecting to tendering the evidence for which the summons was issued.  

129.   The suggestion is made that statute provides only for an application to set aside to be made by the party summoned: section 34 (2) Criminal Procedure Ordinance, Cap. 221.  I do not take section 34 as excluding the common law jurisdiction of the court to set aside a summons other than upon an application by the person summoned; no doubt in the exercise of its inherent powers to prevent an abuse of process, it could do so upon the application of another or of its own motion: see Chu Piu-wing v Attorney General [1984] HKLR 411.  In Marcel v Commissioner of Police [1991] 2 WLR 1118 at 1129, Sir Nicolas Browne-Wilkinson V-C, in proceedings seeking an injunction to restrain the use of documents brought to a criminal court in obedience to a subpoena duces tecum said, at 1129, of the suggestion that only the person upon whom a subpoena has been served has locus standi to apply to set it aside:

“I was not referred to any case where a third party has made such an application.  But I can see no reason why any person whose legal rights will be interfered with by the execution of the subpoena should not be heard.  Say a former, disillusioned, member of the security services, for example Mr Wright of Spycatcher fame, was subpoenaed to produce secret documents and chose not to resist such subpoena.  Can it seriously be thought that the Crown would be held to have no locus standi to apply to set aside the subpoena or otherwise subject to the production of secret documents?”

130.   In that case the subpoena was set aside as an adjunct to the injunction granted in the civil proceedings and although in relation to the summons to Ms Mak that civil avenue was open to EC Textiles (though I have no doubt it would have failed), it seems to me that it would also have been open to EC Textiles to make the application to the court that issued the summons.

131.   But all this is rather academic for present purposes since it is apparent from the facts of the case that no civil proceedings were intended.  There was a threat of them in the letter of 24 November 2005 but the threat of that avenue was never pursued.  It was only six days later that Ms Mak made it perfectly clear that she was not going to succumb to the threat and yet no move was thereafter made to seek an injunction.  All that happened immediately was a vague letter to the Law Society – deliberately vague, as it seems to me – the response to which was copied to Ms Mak, with no accompanying suggestion that if she insisted still upon giving the testimony, civil proceedings would have to be launched.  On 19 December, she maintained her stance: she owed no duty, she said, towards EC Textiles.  Still no civil proceedings were launched.  Nor was advice given by Wong to consider or to institute such proceedings.  On 16 January 2006 a letter drafted by Wong was sent to the prosecutor, with no hint of the issue and no suggestion that civil action might be taken which might or might not hinder the progress of the ongoing criminal trial.  On 20 January 2006, a letter was sent to the Law Society telling the Law Society to take preventive measures; no suggestion there that if they failed to do so, EC Textiles would be forced to the expenditure of a civil suit.  And on 24 January 2006, what is it we see?  We see an application in the criminal proceedings made on behalf of EC Textiles based on a claim of privilege.  That was the basis of the argument on 24 and 25 January with no suggestion to the court of criminal trial that civil proceedings had been or were contemplated.

132.   As for the testimony of Wong himself at his trial, he said that remedies had been discussed as between counsel acting for Lau and a letter before action was one step.  There was no suggestion from him that after the letter of 24 November, civil action was ever considered; this despite the fact that the privilege point had occurred to him well before his note of 22 October which addressed possible defences.  When he wrote that note he referred to further research since, he said, “the defence team needed to be prepared for legal argument in the event that [privilege was] disputed” – legal argument, not the launch of civil proceedings.  The defendant, he said, was entitled to enforce legal professional privilege; and for those purposes EC Textiles and the defendant were, as far as he was concerned, one and the same.  Once Ms Mak said that section 34 of the Criminal Procedure Ordinance was irrelevant that “reinforces my view that all this is still between the defendant…and Ms Mak [which] might have to be voiced out in court.”  It was the trial judge who would decide the matter.  It was specifically put to him that all along, since the case started on 15 November, he must have understood that it was the trial judge would decide the issue and he accepted that to be so:

“Q:      You were in court from 15 November, going to court every day and all the parties assembled there and a judge, at any time you could have raised this as a point of law, sought guidance from the judge, sought a ruling, but you chose not to do that?

A:        Why, my belief was that it would have to be raised when the witness came to testify.” [2 March 2010]

133.   It was simply never Wong’s case that the reason he did not raise the matter with the prosecutor or the court prior to 24 January 2006, was that, in his view, the criminal proceedings did not provide the appropriate forum in which to resolve the issue.  Indeed, according to his evidence and to all the extraneous facts, his only recourse, his last resort, if Ms Mak did not herself assert privilege, was to argue the point in the criminal proceedings and, even then, at the last gasp opportunity.

134.   Yeung’s testimony took the matter no further in this regard.  He did what he was told, he said, by Wong; did not consider himself responsible for the contents of the letters sent from his firm in the sense that he did not turn his mind to their content.  He did not even know what evidence it was intended that Ms Mak was to give and, indeed, did not even know in January 2006 that the trial was still in progress.  No suggestion was made in his testimony that it was ever intended to resort to civil proceedings.

Approaching prosecution witnesses

135.   In the Reasons for Verdict in Wong’s trial, the judge commented that whilst not every approach to a prosecution witness amounts to improper interference, nonetheless “what is clear from the authorities and from the defence’s own evidence and from common sense is that it should only happen in the most exceptional circumstances and be attended by the utmost circumspection and probably transparency.”  He noted that one of Wong’s own witnesses, a Senior Counsel, testified that in his experience, correspondence with a prosecution witness was unheard of.

136.   In Yeung’s case, the judge said that “the defendant knew it was exceptional to approach a prosecution witness during the trial.”

137.   The contention on behalf of both applicants is that the judges’ approach to this question was contrary to well-established principle and practice.

138.   There is no property in a witness.  That proposition is trite and extensively examined by reference to authority in the judgment of the Court of Appeal in HKSAR v Kanjanapas, Chong Kwong Derek and others[14] CACC 248 of 2006 12 February 2009 , unreported, paras [75] to [105].  In the decision of the Court of Final Appeal on appeal from that judgment, Ribeiro PJ at para [132] referred to the judgment of Lord Denning MR in Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 who, at 1384, said in reference to the Law Society’s guidance on the point that :

“… the Council have always held the view that there is no property in a witness and that so long as there is no question of tampering with the evidence of witnesses it is open to the solicitor for either party to civil or criminal proceedings to interview and take a statement from any witness or prospective witness at any stage in the proceedings, whether or not that witness has been interviewed or called as a witness by the other party.”

139.   In this regard Ribeiro PJ pointed out that the Hong Kong Law Society has given similar guidance and he added :

“133.   Indeed, the right to approach a witness for such proper purposes is protected by the courts treating as a contempt, any attempt to prevent a party or his lawyers from engaging in that process.

134.   But great care must be taken if an approach is to be made with a view to influencing a witness in relation to his or her anticipated evidence.  Such an approach can only properly be made if its purpose is lawful and if no unlawful or improper means are used to secure that purpose.”

140.   The guidance provided by the Law Society of Hong Kong in this respect warns, at Chapter 10.12, that:

“A solicitor should be aware that in seeking to exercise his right to interview a witness who has already been called by the other side or who to his knowledge is likely to be called by them, he may be exposed to the suggestion that he has tampered with the evidence.  This may be so particularly where the witness subsequently changes his evidence.  It may be wise in the circumstances for the solicitor to offer to interview the witness in the presence of a representative of the other side.”

141.   I therefore do not accept the conclusion of the judge in Wong’s case that approaching a prosecution witness “should happen only in the most exceptional circumstances.”  It is common knowledge that from time to time the police interview defence witnesses.  So long as they do not seek to influence what that witness says, there is nothing improper in the practice.  Accordingly, with the same caveat, solicitors acting on behalf of an accused in a criminal trial are entitled to approach a prosecution witness and are entitled to do so without informing the prosecution; although, for the reasons provided in the Law Society guidance, it would be prudent in the normal case to do so.

142.   In the circumstances with which we are concerned, there was nothing improper in the mere fact of correspondence with Ms Mak by those acting on behalf of Lau or in the fact, of itself, that the prosecutor was not informed.  The central question though lies not in the fact of the correspondence but in its manner and purpose.

WONG’S CASE

Reasons for Verdict

143.   Against this detailed examination of the facts and the law, it is time now to study the Reasons for Verdict and the criticisms of them.  I turn first to Wong’s case.

144.   Judge Tallentire commenced his reasons with a recitation of the factual background.  At an early stage he said that at all material times Mak “was acting in her capacity as a solicitor for the bank. … She did not act for EC Textiles nor did she give Ms Lau advice in the theft case.  … the parties to the deed were EC Textiles as the chargor and KBC Bank as the lender.  No legal professional privilege or duty of confidentiality was owed by [Mak] to EC Textiles or to Ms Lau.”

145.   He then rehearsed the central themes of the prosecution case, which included the suggestion that Wong “at all times knew that no bona fide claim of legal professional privilege could be made.. ,” and that the letters sent to Mak “were designed and intended to improperly influence her not to give evidence.”[15]

146.   He summarised in detail the evidence of the prosecution witnesses and that of the applicant and his witnesses, and no complaint is made as to the accuracy of that summary.

147.   When he turned to his analysis, he recognised the fact that he presided over a criminal trial and not a disciplinary hearing but even so, he remarked that Wong had “behaved in a manner far below that required of your noble profession.  By any test, what you did was wrong.  You instigated communications with a prosecution witness which contained clear and unambiguous threats, without informing the prosecution and in circumstances where you had, and you knew you would have, the opportunity to properly pursue this application when you appeared on behalf of your client in the District Court.”[16]

148.   In relation to the question whether there existed a client-solicitor relationship between Mak and Lau, the judge said that whatever conclusion he reached in that regard was “not conclusive of guilt or innocence; merely a cogent milestone on the journey.”[17]

149.   The judge was satisfied that the applicant had embarked upon a course of conduct, the first element of the offence which the prosecution set out to prove.  As to the question of tendency and intention to pervert, he said that:

“89. ... it seems to me that you have two major hurdles.  The first was that you said your actions were designed to resolve the matter between parties.  In the context of the criminal trial of which we have spoken in the District Court, the parties must perforce be the prosecution and the defence; not defence and a prosecution witness.  Therefore, if the matter was to be resolved between parties, it was the prosecution who should have been approached.  You, however, did not do this; nor did you even inform the prosecution of your direct approach to the prosecution witness, even after the commencement of the trial.

90.   The second hurdle, one of great difficulty, is that the judge in the trial was the person to settle the matter.  Your evidence that you intended this to be done, albeit by Miss Mak’s raising it, does not ring true.  In my opinion, the point has not been faced squarely or satisfactorily dealt with by defence, mindful though I am that the onus of proof lies elsewhere.” (Emphasis added).

150.   In relation to the privilege point itself, he said that despite the fact that the applicant had conducted limited research and received a cautionary response from one of the other counsel in the defence team that the authority upon which Wong relied was distinguishable, Wong pursued the point with terrier-like tenacity and that “what weighs heavily with me is why you did not seek to clarify the situation via the prosecution.  This is unexplained and in my opinion is not capable of explanation.  Further, it seems your research extended to extracts from Blackstone, choosing to ignore the exceptions, especially as to identity and to fraud, and that the scenario involving a barrister of over 20 years’ experience and one whose own witnesses say is well capable of looking up the law is bizarre.”

151.   He noted that Wong had said in his testimony that he had expected Mak to alert the prosecution to the letters and yet, remarked the judge, “by the time this was taking place, the trial had commenced.  You were sitting next to the prosecutor and you were well able to raise it yourself.”[18]

152.   Then he returned to the propriety question: whether it was proper to approach the prosecution witness saying that whilst not every such approach was improper “it should happen only in the most exceptional circumstances and be attended by the utmost circumspection and probably transparency.”

153.   He turned next to the content and tone of the correspondence; this in the context of Wong’s evidence that it constituted no more than legitimate persuasion and not undue pressure.

154.   He said that the letter dated 24 November 2005 was “remorseless in its lack of compromise”; invited no contrary argument nor did it seek to make inquiry or seek information.  It threatened legal action as well as disciplinary action and there was in it “not the slightest hint of persuasion.”  It is at this stage that he dismissed the idea that this was in truth a letter before action, noting that “this is a criminal matter.”

155.   As for the letter dated 12 December 2005, he noted the assertion in it that it was for Mak to apply to set aside the summons but “again, there was no hint of persuasion; simply a clear threat that it (sic) had been brought into the game her professional body, the Law Society, to force her to make an application, an application that you [Wong] wanted her herself to make.”[19] In this regard our attention has been drawn to a remark made by the judge when he sentenced Wong, namely, that: “The intention of [the] pressure [applied to the prosecution witness] … was not, I am prepared to accept, to force her simply to refuse to enter the witness box, nor to absent herself from the trial of [Wong’s] client.  It was to force her to make an application to the court which she did not wish to make and which she, in my opinion rightly … had no need and no basis to make.  The application was to set aside a witness summons properly issued and demanding of her to give admissible evidence.”[20]

156.   He noted that despite Ms Mak’s repeated denials of the asserted duty, the letter of 20 January was drafted on 16 January and reached her “just days before she is to give evidence”; and then this remark with which it is difficult to disagree:

“One might wonder how a report to a witness’s disciplinary body with an explicit demand for action against the witness could be seen as persuasive.”[21]

157.   The judge was not impressed by the suggestion that the letters were typical of communications as between lawyers noting, in this regard, the use of the Law Society as “another stick with which to beat her.”

158.   He concluded with the following observations and findings:

(1)   “… in view of the clear evidence of Ms Fanny Mak, I am satisfied beyond reasonable doubt that there was no legal professional privilege that did exist in favour of Miss Lau” and even if there were a solicitor-client relationship, privilege was excluded by reason of the exceptions to which he had referred.[22]

(2)   Wong “had little or no belief in the actual existence of legal professional privilege”; and, in any event “if you did hold such a belief, it was a self-induced delusion contrary to the facts, the law and procedure.”  Further that:

“104.   Whether you believed in its existence or not seems to me to be of limited relevance subservient to what you did and intended to do.  If you had a genuine belief in the true existence of legal professional privilege, there were at least two proper lines of enforcement, probably three.  The first, an obvious one, is to bring this to the attention of the prosecution and invite the prosecutor to look into the matter; and / or the second was: either after, or even not taking the first step, to wait until the trial and place an objection before the court to Fanny Mak’s evidence.  There may even have been a third lawful approach and that was to write a neutral letter which was non-threatening to Fanny Mak with a copy to the prosecution.”

105.   That you did none of these save (b), which was to apply to the court after all else had failed, leads me to draw an adverse inference to your case.  Subject to the rules of law and procedure, the course of public justice requires that a witness should without fear or pressure be able to carry out his or her duty to enter the witness-box and testify truthfully.  In my view, the only possible inference one can draw from your conduct is that in pursuance of the defence of your client you wilfully and consciously set aside legitimate lines of defence in order to try to force by threats and intimidation Miss Mak … to adopt and embrace a position she did not accept or believe in and take a course of action she did not wish to take.” (Emphasis added)

(3)   The wording of the letters to Ms Mak and the sending to her of a copy of a letter of complaint to the Law Society could hardly be categorised as persuasion:

“106.   They are threats simpliciter, threats intended to deflect her from her legal duty and to force her to make an application contrary to her beliefs and wishes.”

(4)   The only possible inference, he concluded, was that Wong knew full well that his objections to her testimony would be rejected by her and therefore he resolved upon and put in motion a scheme to try to thwart the assistance she could provide to the prosecution case.  It was clear to him, the judge, as it had been to Wong, “that if Ms Mak herself was to assert she was bound by legal professional privilege, as a solicitor, the court would be more likely to accept that position.”[23]

(5)   He was fortified in his conclusions by the timing of events the effect of which was to say to the witness: “Do not give evidence or we will use all means available to us to stop and punish you.”

(6)   In the event, Wong “ …intended to undermine her free will and choice by a course of conduct which clearly had a tendency and was intended to pervert the course of justice.  Of this I am satisfied beyond all reasonable doubt.  It is a matter of simple fortune that you were ineffective in what you attempted to do. Therefore, in all the circumstances, you are convicted.”[24]

The argument in Wong’s appeal

(1) The avenue for enforcement

159.   One of the main complaints advanced on behalf of Wong is that Judge Tallentire made a number of errors in his approach to the question of legal professional privilege.

160.   The first suggested error by the judge is in his conclusion or assumption that the proper avenue for the enforcement of legal professional privilege was in the criminal proceedings, as between the prosecution and the defence.  This assumption is evidenced by a number of comments by him in the Reasons for Verdict, including the comment that a letter before action was a civil concept which had no application in the instant case, his reference to the fact that Wong’s failure to clarify the situation with the prosecution weighed heavily with him, and his omission to refer to civil remedies when he discussed the “proper lines of enforcement” available to Lau to enforce legal professional privilege.

161.   The point is made by Ms Montgomery that the client, EC Textiles, was not party to the criminal proceedings and had no standing in those proceedings to take the objection and that, in any event, a civil action was entirely the appropriate avenue.

162.   For reasons which I have provided (paras 129 to 132 above) the point is, in my judgment, academic.  It was and is not a live issue because it is obvious that there was never an intention to utilise the civil route.  It is simply not the case that Wong sought to avoid the criminal forum because he viewed the civil courts as the appropriate forum; neither is it the case that during the two months in which pressure was applied to Ms Mak, he avoided informing the trial judge in the ongoing criminal proceedings on the grounds that that judge was not the appropriate tribunal to address.  So much is obvious from the history of the matter.  And in any event, that was not his case.  His case, as no doubt the judge recognized, was that persuading Ms Mak to seek to set aside the summons – persuading her by letters to her and to the Law Society – was the principal course, failing the success of which an application would be made “when the witness came to testify”.  It is obvious as well that at all material times – including from the very outset in his Note of 22 October 2005 – Wong drew no distinction for present purposes between Lau and EC Textiles.

163.   It is, with respect, therefore unrealistic in context to suppose that had the judge appreciated the circumstances in which collateral civil proceedings might have been taken, this would or could have made any difference.

(2) The nature of a claim for LPP

164.   The point next made in relation to the judge’s approach is that he failed to appreciate the overriding nature of legal professional privilege.  He failed to understand its paramount importance, its very nature, which is “to restrict the power of a court to compel the production of what would otherwise be relevant evidence;” so much so that “it may thus impede the proper administration of justice in the individual case...”: Three Rivers [2005] 1 AC 610 at para [61].  In other words, to seek to preclude the giving of evidence, when its provision as evidence would breach legal professional privilege, can hardly constitute impermissible conduct; it could hardly have a tendency to pervert the course of justice since the preclusion of that evidence would be a product of the proper application of the doctrine of legal professional privilege and an attempt to preclude it on that ground is therefore incapable of constituting an attempt to divert the course of justice.  Hence the judge’s comment that “subject to the rules of law and procedure, the course of public justice requires that a witness should without fear or pressure be able to carry out his or her duty to enter the witness box and testify truthfully”[25] ignored the fact, the argument runs, that application of the doctrine was intended by law to do precisely what the judge said was not to be done: to preclude, in appropriate circumstances, a witness from testifying.

165.   Apart from the fact that the qualifying phrase “subject to the rules of law and procedure” undermines the force of the argument, the argument is, in my view, off the mark.

166.   A claim for privilege is indeed consistent with the course of justice and that is so even where the court’s search for the facts relevant to determination of the issue at hand may be impeded by the withholding of evidence on that basis.  But – and this is the point – the machinery, the route, by which that claim comes before a court is itself also part of the course of justice.

167.   The assertion by a third party that a witness is about to disclose material which is covered by legal professional privilege cannot of itself force that witness to assert that privilege, let alone to apply to set aside a summons to provide relevant evidence; even less so when the assertion is made at the behest of an accused person in a criminal case the true objective of which assertion may not be to protect confidentiality for the benefit of another but to secure the exclusion of evidence vital to the prosecution case.

168.   To seek to force a third-party witness by threats, intimidation, oppression or harassment (as opposed to advice or persuasion or court order) to apply to set aside a summons on the grounds of legal professional privilege when such an application is against that person’s wishes or that person’s belief in the existence of the privilege is – if the attempt were to succeed – to divert the course of justice, because it is to force the presentation of an application as if it were voluntarily made, to force the putative witness to assert that she has no material evidence which she may legitimately provide, when patently the witness believes she has material evidence the provision of which is not precluded by law and when, furthermore, the claim of privilege is advanced by a solicitor, for such a claim from such a quarter is likely to carry considerable weight; more weight on its face than if the claim were made by the client. 

169.   It matters not for present purposes whether the application is one to set aside a witness summons or is an application for an injunction.  Both are part of the course of justice.  But the course of justice requires that neither application should be made as a result of unlawful or improper pressure or harassment.  Therein lies the heart of this case against Wong.

(3) Wong’s belief in the argument

170.   Much has been made of the judge’s conclusion that there was no solicitor-client relationship between Mak and EC Textiles and that the intended testimony by Mak was not covered by legal professional privilege and that Wong had little or no belief in the existence of the privilege[26]; that he knew full well it would fail[27]. Insofar as the judge was influenced by Ms Mak’s claim that she did not act for EC Textiles he appears not to have appreciated that the test is objective.  So in this regard, it is said the judge made a material error.  It is further argued that the judge failed to take into account that Wong had taken instructions from his client on the privilege point and had testified that he pursued the argument in accordance with those instructions, duty-bound in his professional capacity to do so.

171.   I have nursed some unease about the judge’s finding that Wong had little or no belief in the privilege argument.  In expressing that finding, the judge made no reference to the “Note of possible defences” dated 22 October 2005 and of the evidence that following the further Note dated 3 November 2005 (see para 18 (ii) above), instructions were obtained as to the circumstances of the signing of the deed of charge.  That Wong was, in my judgment, patently wrong in asserting that the limited intended evidence by Mak was covered by legal professional privilege, is not to the present point which is as to his state of mind.

172.   One has in a case such as this to take the greatest care to distinguish between misguided professional enthusiasm or even incompetence, on the one hand and, on the other, dishonesty.  Wong’s omission to draw the Lau court’s attention to the relevant passage in Blackstone is supportive of the judge’s conclusion that Wong was well aware that the privilege argument was a non-starter.  One might well argue that the oblique and sometimes misleading correspondence, especially that with the Law Society, prior to 24 January 2006, lends further support to the judge’s conclusion.  And one might contend still further that if Wong truly nursed the thought that his point was arguable, there would have been no need to keep the point up his sleeve until the very moment that Ms Mak was called to testify.  And, if Wong’s evidence was true, namely, that he expected Ms Mak to notify the prosecutor of the ongoing correspondence and that he at the same time fully anticipated that the point of law would have to be argued and determined by the trial judge, it might further be said to be strange indeed that in the months that he was sitting next to the prosecutor and before the judge, he made no mention to either of the matter.  Putting all this together, I can see considerable support for the judge’s conclusion.

173.   But, although it is clear enough that Wong wished, if possible, to avoid a contested argument in court on the issue of privilege, and although I have not had the advantage, as did the trial judge of hearing the evidence, I still retain some doubt if the suggestion be that Wong had no belief at all in the point.  That doubt arises from the evidence of Wong’s aggressive tenacity on behalf of his clients and of the evidence which suggests that he is a facts advocate, not much at ease with arguments of law.  Further, it must always be remembered that counsel has a duty to advance arguments which he perceives to be arguable and to the possible advantage of his client, even where he judges the likelihood of success to be questionable.  And it is open to him zealously to pursue that duty, so long as in doing so he acts honestly and in accordance with his duties to the court, which include the duty not to mislead the court and, in that context, to draw the court’s attention to authority of which he is aware which stands contrary to his argument.

174.   The question though is how this residual doubt or unease (if it has substance) impacts, if at all, upon the validity and safety of the judge’s conclusions.  I do not think it does because, as it seems to me, the judge made it clear that these factors did not ultimately dictate his decision.

175.   The judge hinted at the relative irrelevance of Wong’s belief in the privilege point to the ultimate issue when, in relation to the question whether there existed a solicitor-client relationship, he said: “Whatever conclusion I reach, it is in my opinion not conclusive of guilt or innocence; merely a cogent milestone on the journey.”[28]  

176.   At the outset of the concluding paragraphs of the Reasons for Verdict which go to the core of the reasons for conviction, the judge returned to the question of belief and its relevance.  He said that even if Wong held a belief in the existence of legal professional privilege, that belief was “a self-induced delusion contrary to the facts, the law and procedure.”  So he was prepared to proceed on the assumption that the belief was held even though wholly misconceived. Then these key sentences to some of which I have earlier referred:

“104.   Whether you believe[d] in its existence or not seems to me to be of limited relevance subservient to what you did and intended to do. … .

105.   … subject to the rules of law and procedure, the course of public justice requires that a witness should without fear or pressure be able to carry out his or her duty to enter the witness box and testify truthfully.  In my view, the only possible inference one can draw from your conduct is that in pursuance of the defence of your client you wilfully and consciously set aside legitimate lines of defence in order to try to force by threats and intimidation Miss Mak, prosecution witness, to adopt and embrace a position she did not accept or believe in and take a course of action she did not wish to take.

106.      ... she made this abundantly clear in her two replies that she did not want to take that course.  The wording of the two letters to Fanny Mak and the sending of the copy of the letter of complaint to the Law Society can in no definition be described as persuasion.  They are threats simpliciter, threats intended to deflect her from her legal duty and to force her to make an application contrary to her beliefs and wishes.

…

109.      The wording and timing [of the correspondence, especially the letter of 20th January] is eloquent as to intent and purpose.  “Do not give evidence or we will use all means available to us to stop and punish you.”  You intended to undermine her free will and choice by a course of conduct which clearly had a tendency and was intended to pervert the course of justice. ”

177.   There lies the core of the judge’s reason for convicting Wong of the offence with which he was charged.  Whatever Wong’s belief in the validity of the legal professional privilege point, he was not entitled to harass or bully the witness, intending by that harassment to force the witness into taking a course which she was not willing to take.

178.   I see no error in that approach either as to law or on the facts.  As to law, it reflects the principle which emerges from the authorities, that even the person who honestly believes that a witness is about to offer false evidence, he may seek to advise and persuade the witness not to, but may not use improper means whereby to achieve that objective.  The point is simply made in R v Kellett at 388 that:

“… however proper the end the means must not be improper. Even if the intention of the meddler with a witness is to prevent perjury and injustice, he commits the offence if he meddles by unlawful means.

… if [the witness] alters his evidence or will not give it “through affection, fear, gain, reward, or the hope or promise thereof” … the course of justice is perverted, whether his evidence is true or false and whether or not it is believed to be so by him who puts him in fear or hope.”

179.   In that judgment Stephenson LJ cited Rex v Silverman (1908) 17 OLR 248 where, at 250, Osler J.A. said that where improper means had been employed the fact of honest belief by the accused in the justice of his objective was immaterial and where, at 251, MacLaren J.A. had said:

“Even the most desirable end cannot justify the employment of corrupt means.  The fountain of justice should be kept pure and not be corrupted at its source.  It was quite open to the accused, believing, as he did, in the innocence of his brother, to show to [the witness], if he could, such evidence or facts as might convince him that he had been mistaken in his previous testimony.  He did not, however, rely upon such means … .”

180.   There was no attempt in this case at reasoning with Ms Mak; to the contrary, contact with Ms Mak was from the very outset steeped in threats of proceedings and disciplinary reports, laced with doses of misleading, incomplete and oblique information.

181.   The letter of 20 January 2006 merits revisiting in this context.  The judge’s conclusion is that it was intended to do no more than intimidate Ms Mak. Ms Montgomery, on the other hand, asserts that it was no more than might be expected in such a situation and that a seasoned solicitor, as is Ms Mak, would recognise it not as improper harassment but as part of the rough-and-tumble of litigious correspondence and steps taken by contending solicitors.  Ms Mak did not see it as such; she was troubled by it.  But in any event, and leaving entirely aside the fact that it contained untrue assertions, the conclusion that this was not a genuine report intended to be acted upon by the Law Society is, in my opinion, irresistible.  The evidence clearly establishes (see the letter of 16 January to the prosecutor and Wong’s own evidence) that, if all else failed, Wong intended to raise the privilege point before the judge.  He could not conceivably have expected the Law Society to take effective preventive action over the weekend which intervened between the sending of the letter and the date upon which he knew Ms Mak was to testify or even, if he expected the letter to go earlier, in the week after 16 January; still less so on the vague information provided.  In these circumstances, what was the point of the letter, I ask rhetorically, copied to Ms Mak, if it was not a final attempt at forcing her to do what she did not wish to do, namely, to assert privilege?  And if that was the letter’s objective, it followed that he saw an advantage in her doing so rather than in him raising the point.  This, so it seemed to the judge, was the last act in a course of conduct that constituted impermissible harassment of a witness.  This finding of fact was that Wong’s conduct in relation to this prospective witness had crossed the line from permissible to improper pressure and to wrongful interference with the witness.  I cannot see the route by which one may properly fault that analysis.

182.   I recognise the fact that the institution of collateral proceedings or the threat thereof moves beyond persuasion or advice into the realm of pressure and that there is an apparent divergence of view as to whether a threat to exercise a legal right is to be regarded as an impermissible threat for the purpose of establishing the offence.  That divergence of view is evident from the approach of the Court of Appeal of England and Wales in R v Toney [1993] 1 WLR 364 at 370, on the one hand, and of the High Court of Australia in Meissner at 142, on the other.  In the Court of Appeal of this jurisdiction in Kanjanapas, Tang VP referred to the divergence of views and said, at para 105, that he was of the opinion that Toney was correctly decided on its facts.  The judge proceeded on the basis, relying on Kanjanapas, that Toney applied in Hong Kong[29].

183.   Nonetheless, I am prepared to proceed for the purpose of this appeal on the basis postulated in Meissner, namely, that conduct which constitutes no more than a threat to do what might lawfully be done in order to secure a legitimate end is not conduct to be regarded as tending to pervert the course of justice; or, put in the context of this case, that to institute (or to hold out the prospect of instituting) proceedings to enforce a right in law available for the precise purpose of preventing the disclosure of information by a witness is not, without more, an impermissible course.  But that proposition or principle presupposes that the threat of proceedings to that end is genuine and that the circumstances in which the threat is deployed are legitimate.  If, for example, it is demonstrated to be nothing more than a contrivance by which to bully a witness in the hope of circumventing determination or proper determination of the issue of permissible or impermissible disclosure, then the means used are improper.  So too is it impermissible if the threat is a bullying contrivance by which – if the issue has to be determined – to have the issue determined not at the behest of the supposedly aggrieved party but at the behest of the witness, so as to distort the weight which the court might otherwise attribute to the claim.  This is to say no more than the message conveyed by their Lordships in Egan that whether conduct constitutes improper pressure is a question of fact and degree: see Chan PJ at para 26 and Ribeiro PJ at para 139.

184.   It is evident from the Reasons for Verdict that what the judge held in this case was that Wong was not in truth concerned with genuine avenues of securing the withholding of Ms Mak’s testimony but rather with a badgering course of conduct designed to scare her into submission.  In this regard, the judge commented, for example, that Wong’s evidence that he intended the trial judge to determine the issue did not ring true; that Wong was astute in keeping any hint of the issue from the prosecutor and from the court of trial; that the letter to the Law Society of 30 November was not a genuine request for information; and that the timing of the letter of 20 January 2006 spoke not of a genuine complaint to that body but was instead a purely intimidatory vehicle.  In other words, the theme of the judge’s findings was that there was never an intention to pursue legitimate avenues of redress and that the course of conduct upon which Wong persisted went beyond legitimate professional measures to safeguard a client’s interests.

185.   In this regard, this judgment has periodically highlighted certain features of Wong’s conduct which, from a professional standpoint, were entirely unattractive.  Whilst I am conscious, as was the trial judge, of the fact that conduct that may be said to have been unprofessional does not necessarily lead to a conclusion that the practitioner has engaged upon an attempt to pervert the course of justice, the cumulative impact of those features in this case serves to undermine Wong’s assertions that he considered that he was embarked in the course of his professional duties upon a legitimate course of persuasion or upon exerting pressure that was legitimate.

(4) The status of the witness

186.   It was argued that the judge’s findings that the correspondence constituted intimidation was non-contextual, in that it failed to recognise the status and experience of the putative witness to whom the correspondence was addressed or copied.  I accept that that status and experience is relevant, for what might be taken as intimidatory of a lay person may well not be intimidatory of an experienced practitioner.  The judge was aware of the point: he referred to it at para 69 of the Reasons for Verdict where he reminded himself of Wong’s assertions that he, Wong, was aware that he was corresponding with a lawyer and that the means he employed did not go beyond normal means in the context of correspondence between lawyers; and the judge referred again, at para 102, to this point but concluded that the correspondence, particularly the reports to the Law Society, was nonetheless impermissibly intimidatory and intended to be so.

(5) The duty of a lawyer

187.   I am conscious of the warning of the Court of Final Appeal in Vivien Fan and others v HKSAR FACC 6 of 2010, as yet unreported, at para [102] that:

“The duty of lawyers and other professional persons is to serve their clients’ legitimate interests and do so within the bounds of the law and professional ethics.  Sometimes the court is invited to find it proved beyond reasonable doubt that a lawyer or other professional person has strayed from that duty and into criminal conduct in league with his or her client.  If such a finding is to be made, the evidence in proof of it must be very plain indeed.”

188.   This is not a case in which it is suggested that a lawyer has joined in league with his client in criminal conduct.  It is a case in which it is suggested that a lawyer in pursuit of his client’s supposedly legitimate interests has acted improperly, so much so as to stray into criminal culpability.  The standard of proof remains the same for all criminal cases, that a conviction cannot follow unless that criminal culpability is proved beyond reasonable doubt.  And in addressing that question, one has of course to draw the distinction between on the one hand, legitimate and fervent pursuit of a client’s interests, based on instructions and, on the other, patently illegitimate pursuit of those interests.  I am satisfied that the judge has not confused the two.

(6) A suggested change in the prosecution case

189.   The final ground of appeal in Wong’s case contends that the prosecution “departed from its original basis and allegation for holding the applicant guilty of the offence” and that the judge failed to recognise this fact.

190.   The suggested change of case is put succinctly in the written submissions on the applicant’s behalf:

“… the prosecution case and their basis for holding the applicant guilty changed from one of (a) the applicant knowingly asserted a false claim of [legal professional privilege] with an intention to dissuade the Solicitor Witness from coming to court to testify to (b) that the applicant attempted to pressurise the Solicitor Witness to do what she would not otherwise have done, namely, to make an inter partes application to set aside her witness summons on the grounds of [legal professional privilege], which was a new allegation seen for the first time [in the] Prosecution closing submissions”[30]

191.   It is said that this represented an impermissible change of position which caused prejudice to the applicant.

192.   First though, a short statement of the legal principle upon which this submission for Wong is advanced.  The submission rests upon the established principle that a defendant is entitled to know precisely and on the face of the indictment the nature of the prosecution’s case: see Landy (1981) 72 Cr App R 237; and that the prosecutor, having elected to proceed upon a certain basis of alleged culpability, ought not to be allowed at the close of his case to go back upon that election: R v Falconer - Atlee (1973) 58 Cr App R 348.

193.   As in the Hong Kong examples to which our attention was drawn (R v Chan Kang To [1997] HKLRD 412; and HKSAR v Cheung Hing Man [2010] 1 HKLRD 656), the point in Landy arose in the context of a charge of conspiracy to defraud.  In that case, the court said that the particulars of a charge should always be such as to “enable the defendants and the trial judge to know precisely and on the face of the indictment itself the nature of the prosecution case” and, secondly, to stop the prosecution shifting ground during the course of the case without the leave of the trial judge and the making of an amendment.  The words “and by divers other false and fraudulent devices” were so broad as to fall foul of these requirements.  In Falconer-Atlee, the prosecution sought to change the factual basis upon which dishonesty was said to be proved: the case concerned a charge of theft of a dog.  The prosecution case was that the accused had originally acquired the dog honestly but having become aware of a mistake, dishonestly decided to appropriate the dog; whereas when leaving the case to the jury, the judge did so on that factual basis but also on the alternative basis that the original acquisition of the dog had been dishonest.  The appellate court held this to be impermissible.

194.   There was in this case no broad Landy-type assertion in the charge, such as an assertion that the attempt to divert the course of justice was constituted by one specified and other ‘divers’ unspecified means, thereby leaving the objective and the means to attain the objective susceptible to the shifting of goalposts.  The question that arises is of a different kind and is whether the defence were misled by the charge and the manner in which the prosecution pursued its case and, if so, whether that occasioned any potential prejudice to the accused.  Insofar as Falconer-Atlee does not specifically address the question of prejudice, it seems generally accepted that the issue of disadvantage or prejudice by a suggested change in course is relevant: see, for example, Blackstone Criminal Practice 2012, para. D18.40.

195.   The complaint is an echo of a complaint made by Mr Harris SC, for Wong, to Judge Tallentire towards the end of the case, after counsel had received the written closing submissions of Ms Draycott SC for the prosecution.

196.   Insofar as it may be suggested that the original case was directed at a knowingly false assertion of legal professional privilege thereby to dissuade Ms Mak from testifying as a prosecution witness, rather than at threats and a course of conduct designed to harass her into not testifying on the basis that her evidence was precluded by legal professional privilege, the suggestion is, in my judgment, not made out.

197.   First, I do not see that the prosecution ever resiled from its stance that Wong had no or little faith in the legal professional privilege argument.  Much cross-examination was directed at the contention that he deliberately misled the court at the Lau trial by not revealing the passage in Blackstone which stood against his argument; and at other suggested indicia against his belief in the point.  And in the closing submissions too, counsel for the prosecution asserted in terms that Wong “must have realised that if the claim was brought before a judge, it was likely to fail”[31].

198.   Second, no one could have been under any illusion but that the gravamen of the prosecution case was the threatening and harassing nature of the letters:

(1) It is not contended that the charge itself misled Wong or his advisers into believing that the case was centred on an assertion other than the nature of the letters;

(2) Whilst the brief opening by counsel for the prosecution included the assertion that Wong knew that no bona fide claim of legal professional privilege could be made, its central contention was that the letters amounted to “an attempt to prevent or dissuade Ms Mak from testifying in court as a prosecution witness [at Lau’s trial].  The intention was both by threats and more subtle pressure to unlawfully dissuade Ms Mak from giving evidence and secure the acquittal of the defendant [Lau].”(Emphasis added).

(3) It was clear from the cross-examination by the prosecutor that she was alleging that the correspondence was intended to subject Ms Mak to pressure and upset.[32]

(4) Counsel for Wong quite evidently and regularly directed his mind in the course of examination-in-chief of his client to the allegation of threats and improper pressure.  So, for example, in relation to the letter of 24 November 2005, he asked whether his client, when he had drafted or caused that letter to be sent out, had any intention of “getting at the witness?”[33]; or nursed an “intention to frighten her or to put any improper pressure on her” or intended to stop her from going to court[34].

199.   I note too that at the end of the discourse between Judge Tallentire, Mr Harris and Ms Draycott about the suggested change of case, and after Ms Draycott had explained the prosecution position, Mr Harris said that he did not feel “necessarily better informed” but that he had merely sought an answer to a “simple question, which wasn’t supposed to provoke a detailed submission” and that the question raised “was whether or not the prosecution still stands by the sentence in the opening that the accused at all times knew that no bona fides claim of legal professional privilege could be made.  That’s all I want to clarify, and I’m not sure that I’ve got a yes or a no.  I’ve got something – no offence – of the nature of politician’s answer.  I’m going to assume that [Ms Draycott] stands by that allegation.”[35] And that was the end of it.  There was then no suggestion that the client was or remained prejudiced, or was left in a situation with which Mr Harris was unable to deal.

200.   Insofar as there is a complaint that the closing submission was the first time that the prosecution had asserted that the letters were designed to pressurise Ms Mak “to make an inter partes application to set aside her witness summons on the grounds of [legal professional privilege]”, the assertion in the written closing submissions made no reference to an inter partes application.  But, be that as it may, this assertion or way of putting it is said to be different from the contention in the charge and the contention repeated in the course of cross-examination, that Wong’s objective was to pressurise Ms Mak not to come to court or not to give evidence.

201.   It is true that the prosecutor’s closing submission was the first time that the objective was put in that particular way (to make an application, contrary to her wishes, to set aside) and, in that sense, it evidenced a change.  But I am satisfied that the change was not material and, in any event, occasioned no prejudice.

202.   The objective attributed to Wong by the charge and by the opening was the objective that Ms Mak not give evidence in the trial of Lau.  If it was not self-evident from the charge, then prosecuting counsel made clear in her opening that the objective was to prevent or dissuade Ms Mak from testifying at that trial “as a prosecution witness”.  Ms Mak is (and was then) a solicitor and no one could have assumed a suggestion by the prosecutor that Wong’s intention was to frighten Ms Mak into running away or by some other means into ignoring the witness summons.  On the facts of this case, Ms Mak was going to avoid testifying as a prosecution witness on one basis only, namely, a successful assertion of legal professional privilege; a success that would more readily be secured by the solicitor’s assertion than by a contention advanced by counsel for the accused, Lau.  But the solicitor did not wish to make such an assertion.  That too was always the prosecution case.  Thus the only way (so the prosecution case had to run) in which Wong was going to achieve his objective of preventing her from testifying was to pressurise her – against her wishes, in other words – into asserting privilege.  And, however expressed, it would have been odd for anyone engaged in the trial to have assumed other than that was the prosecution case.

203.   It was not the “new” prosecution case in closing, that Wong’s objective in causing the letters to be sent was an inter partes application by Ms Mak to set aside the summons.  Ms Draycott, in response to Mr Harris’ invitation for her to clarify the prosecution case, made that clear.[36] The first letter, that is to say, the letter of 24 November 2005, made no reference to any application to set aside; Wong’s only mention, through the letters, of an application was in response to Ms Mak’s assertion that it was for EC Textiles to apply, not for her to do so; and Wong’s evidence was that he hoped the matter could be resolved between the parties and it was only if the issue could not be resolved “by further persuasion, reasonable argument, then ultimately the court would have to resolve the issue.”[37]  One pauses to acknowledge, in this regard, that there might have been a number of ways in which the summons could come to be set aside.  Had Ms Mak succumbed to pressure and decided positively to assert privilege, she might have communicated that assertion to the prosecuting authority, aided by the invoice to Lau (a copy of which Wong had ensured was sent to Ms Mak with the letter of 24 November 2005) and it may just be that, faced with a firm assertion and with that invoice, the prosecutor would himself have applied for the summons to be set aside.  Or the solicitor might have written to the court herself.  In any event, Ms Draycott clarified the prosecution’s position in response to Mr Harris’ complaint about this leg of the prosecution submissions.  She said that the prosecution did not accept that Wong intended Ms Mak to come to court to set aside the summons, but even if he intended her to make an application, the method he employed to cause her to do so was improper.  At the end of the day, she said, the method (improper means) and the objective (to prevent Ms Mak giving evidence as a prosecution witness) remained the same.

204.   It is instructive to note Mr Harris’ reaction to this explanation:

“Your honour, we’re grateful for that, but with great respect, it does not address the principal concern that you’ll see in our reply.”[38]

He then explained that the principal concern was the concern to which I have earlier alluded, namely, the suggested abandonment of the allegation of a bogus and dishonest assertion by Wong of legal and professional privilege.  Mr Harris had earlier referred to the first limb of his complaint (the “new” allegation limb) as one which he did not wish to “overplay” and in respect of which he had been “letting off steam a little”.[39]

205.   That reaction supports my conclusion that the suggested “new” assertion occasioned the applicant Wong no embarrassment.

206.   Finally, it is suggested that in the Reasons for Verdict, the judge failed to recognize the nature of the complaint.  The judge said:

“80. Mr Harris ... has made great play on what he perceives as the prosecution changing its position in regard to the basis upon which they allege you to be guilty of this charge.  Mr Harris also refers at times to submissions made and positions taken by Mr McCoy on previous occasions.  With respect, this in my opinion, is misplaced.  As far as I am concerned the only matters relevant to the trial are the evidence and submissions following the entering of the formal plea.

81. Miss Draycott is the prosecutor, not Mr McCoy, and as far as I am concerned she has from the first day made the prosecution position abundantly clear.  Had Mr Harris been in any way embarrassed or wrongfooted by anything said or done, it was open to him to apply for an adjournment to regroup and reconsider his presentation of the defence.  He has not done that and therefore my approach is to deal with this matter as it has been placed before me and on the basis of evidence adduced and submissions made.”

207.   The reference to a suggested difference between the case advanced by Ms Draycott, on the one hand and, on the other, Mr McCoy (who appeared for the prosecution as a pre-trial stage) is to a difference of approach as to a point of law with which, under the rubric of the present complaint, we are not concerned.  Given the manner in which the complaints with which we are now concerned resolved themselves in the debate between counsel which took place before the judge, it is not surprising, in my view, that he did not address them in the Reasons for Verdict.

Conclusion

208.   I would in Wong’s case grant leave to appeal and treat the hearing of his application for leave as the appeal, but it follows from this somewhat lengthy examination of Wong’s application and my conclusion in relation to each ground of appeal that, in my judgment, the appeal must fail and, accordingly, I would dismiss it.

YEUNG’S CASE

The difference between ‘should’ and ‘did’

209.   The application in Yeung’s case is somewhat easier to resolve than in Wong’s case and that, primarily, is because of the emphasis placed both in the prosecutor’s opening and closing speeches and in the Reasons for Verdict upon Yeung’s suggestedly manifest disbelief in the existence of any possible claim of legal professional privilege as relevant to his intent to pervert the course of justice.  There was no disavowal either by the prosecutor or by the court – as there was in Wong’s case – of the suggested central relevance of that belief or disbelief.  And it is, accordingly, difficult to know to what extent the finding of disbelief – itself an unsafe finding on the facts of Yeung’s case, given his distance from the case in practical terms – contributed to the finding that this applicant nursed the relevant mens rea.

210.   On the established facts, Yeung’s position was significantly different from that of Wong.  Emphasis is laid in the Reasons for Verdict as well as in the respondent’s submissions in opposition to this application, upon the responsibilities of a solicitor who has supervisory functions in relation to a case, even where counsel is engaged.  So, for example, the Reasons for Verdict contain the finding that “by signing these letters, he [Yeung] was responsible for his own actions”[40]; and in the respondent’s submissions we find the assertions, each correct in itself, that a solicitor may not abrogate his responsibility by instructing a barrister; that he has an obligation to ensure that counsel’s advice contains no obvious errors; and that it is his duty to reject advice which is obviously or glaringly wrong.  A solicitor, it is said by the respondent, is not a mere cipher, which principle more correctly stated is that a solicitor should not be a mere cipher.  That emphasis is important because there is a cardinal distinction between, on the one hand, a breach of professional duty and, on the other, criminal liability: whilst criminality in the purported exercise of one’s professional duty will, invariably I think, also constitute professional misconduct, the converse does not follow; in other words, a breach of one’s professional duty does not necessarily constitute criminal conduct – it may do, but often it does not.

211.   Whatever Yeung ought to have done in the circumstances of the Lau case, it seems perfectly obvious from the evidence that he did very little.  That, of itself does not end the analysis, because it is clear that he signed the three letters in question; but it is relevant to any assessment of his criminal culpability.

212.   The broad fact of the matter is that Yeung did act largely, although not entirely, as a cipher.  If that be correct, the fact that he ought not is irrelevant.  At no stage did he meet the client, let alone hold a conference with her.  He put in two brief appearances at the court proceedings.  He conducted no research.  He left the running of the case to Cheung.  He relied on Wong for what to do.  He drafted none of the letters which lay at the heart of the prosecution case.  He merely checked with Wong whether there were instructions to issue the letters and his evidence was that although he read the letters, he did not read the last one in any detail.  It was put to him that he had continuous supervisory involvement with the case, but he denied that.

213.   Furthermore, he did little criminal work and between October 2005 and January 2006 he had active management of something in the order of 30 to 40 files, a fact of some importance.  It is a fact of some importance because it is too easy in a trial, whether civil or criminal, to permit the microscope to examine specific conduct on this day or that, occurring years previously, as if that was all that was happening in the accused’s or witness’ life at the material time.  The reality of life is that professional persons, and others, overburdened with work, quite often do not pay the attention to a particular document that the perfect world might expect and it is reality rather than perfection which the fact finder must address.

The Reasons for Verdict

214.   Having summarised the evidence, the judge moved to the assessment of it. In doing so she :

(1)   noted that the defendant asserted that he did not know the issue at trial[41];

(2)   found that Ms Mak represented the Bank and not EC Textiles[42] and that there had in fact been no legal relation between EC Textiles and Ms Mak[43].  It is apparent that that finding was based on Ms Mak’s assertion to that effect.  In this regard, the judge noted that the first reply from Ms Mak denied any client-solicitor relationship and that Yeung had read that denial[44] ; 

(3)   noted that Yeung said that he confirmed through a telephone conversation with Wong that Wong had instructions from the client for the sending of the first letter[45]; but found that Yeung must from a reading of that letter have had no doubt that that letter contained a false statement, namely, that Ms Mak had acted for EC Textiles[46];

(4)   held that Yeung knew that “trying to persuade a prosecution witness not to give evidence was a serious matter” and that “making a threat to a prosecution witness was also a serious matter.”[47];

(5)   disbelieved Yeung’s testimony that at the date of the January letter, he did not know that the trial was still going on[48];

(6)   commented that “by signing these [three] letters [Yeung] was responsible for his own actions”[49]; and

(7)   concluded that Yeung sent the three letters one after the other because his intention was to attempt to ensure that Mak did not testify and that he “must have realised his series of actions or conducts had the clear tendency to pervert the course of public justice.  That was what he intended to do by sending three letters.”

Analysis

215.   What the judge did not do was to determine whether the applicant in fact knew the issue at trial – he said he did not – and knew the relevance of the proposed testimony of Ms Mak in the criminal proceedings.  In the context of an assertion by Yeung that he had been told by counsel that instructions had been given to issue a letter before action, and in signing the letter merely trusted counsel, this may or may not have been of some import.  We do not know what the judge made of it.

216.   In concluding that Fanny Mak did not represent EC Textiles and that no legal professional privilege “could possibly [have existed]”, the judge presumably thought this relevant, an assumption which is not unsafe given the fact that the prosecution had placed such heavy emphasis on Yeung’s alleged knowledge of the “deliberate and calculated sham” which was constituted by the privilege claim.  What the judge has not done in this regard is to explain what use, if any, in determining Yeung’s culpability she has made of her finding that legal professional privilege did not exist.  If she used that finding of itself against him, that was not permissible.  In any event, her finding was based upon Ms Mak’s assessment which could not be conclusive of the matter.

217.   The judge failed to state whether she accepted Yeung’s testimony that Wong had told him that he, Wong, had instructions from the client to send the first letter.  If this evidence was accepted, then it was a non-sequitur for the judge to find that Yeung must have known that the assertion of a solicitor-client relationship was false.

218.   In stating that “by signing these three letters [Yeung] was responsible for his own actions,” the judge did not make clear what she meant by that.  It may be a statement of no consequence but given the emphasis by the prosecution on the duties of a solicitor and given Yeung’s defence that he was in effect a mere cipher, it was important for the judge expressly to recognise, in the context of this case, that derogation from duty was not the determinative issue in the case; a recognition which, by contrast, we see in the Reasons for Verdict in the Wong case.

219.   It was part of Yeung’s case that the letter of 20 January 2006 was not read in detail by him; an assertion that sat comfortably with the thrust of his evidence that – given the large number of wholly unrelated matters to which he was attending, the entrustment of the case to three counsel experienced in criminal law and procedure, and the delegation of day-to-day responsibility to Cheung – he paid scant regard to detail or, indeed, to the case at all.  It was, I think, important in these circumstances for the judge to say whether she accepted this contention or the generality of his evidence in this regard.  Merely to state that he had read the letters is not really to address the gravamen of his testimony which was that – whatever may have been his duty – he did what he was told by counsel, with little regard to detail.

Conclusion

220.   Yeung’s involvement in the case and in the correspondence was of an altogether different kind than that of Wong and given the matters to which I have referred as wanting in the Reasons, I consider the verdict in Yeung’s case to be unsafe and I would quash the conviction in his case.

Hon Kwan JA:

221.   I agree with the judgment of Stock V-P and with the orders which he proposes.

Hon Lunn JA:

222.   I also agree.

Hon Stock VP:

223.   Accordingly:

(1) We grant Wong leave to appeal against conviction, treat the hearing of the application as the appeal but we dismiss the appeal.

(2) We grant Yeung leave to appeal against conviction, treat the hearing of the application as the appeal, allow the appeal and set aside the conviction in his case.

224.   There now arises for determination the application by the Secretary for Justice for review of the sentence imposed upon Wong.  The hearing of that application will now be fixed.  We extend Wong’s bail on the same terms as hitherto, until the hearing of that application.