HKSAR v. HARJANI, KISHORE MOHANLAL

HCMA 685/2013 and HCMA 425/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 685 OF 2013

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D E C I S I O N

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1.  This is a directions hearing in relation to two magistracy appeals in order to consider an application to consolidate the two appeals and transfer them to the Court of Appeal for determination.

2.  HCMA 685/2013 is an appeal by the defendant against his conviction of indecent assault where he alleges that he was incompetently and improperly represented by counsel and HCMA 425/2014 is an appeal by the counsel of a wasted costs order of $180,000 imposed upon him by the magistrate who conducted the trial of the defendant.  There are also two additional applications by counsel.  One is for an anonymity order of the name of counsel involved in both of the appeals and the other is for my recusal from the directions hearing and any subsequent hearings of both appeals.

3.  It is necessary that I provide a brief description of the two appeals so as to put the matters under consideration in their proper context. 

4.  The appellant in HCMA 685/2013 was convicted of indecent assault after trial on 30 September 2013 and was sentenced to 14 days’ imprisonment.  It was alleged against the appellant that while watching a film in a picture theatre he indecently assaulted a woman who was sitting in the adjoining seat to him by touching her thigh with his hand.  The trial lasted 17 days with 4 earlier appearances which included 2 pre-trial reviews.  The major complaint in the appeal concerns the conduct of counsel who had the carriage of the case on behalf of the defendant. It is submitted that this was a straightforward and simple case that should have taken no more than a day to be heard.  It is alleged that the length of the proceedings was created by counsel’s conduct, including his cross examination (by its prolixity and repetitiveness) and by the introduction of numerous irrelevancies.

5.  This brief description of the case gives the basis of the grounds of appeal against conviction where it is claimed that the appellant was denied a fair trial by the serious improper conduct of his counsel; by counsel acting, or appearing to act, in his own self-interest rather than in the best interests of the appellant; by counsel’s attitude towards and/or the counsel’s statements and/or responses to the magistrate; and by counsel’s prolix, irresponsible, absurd and/or frivolous cross-examination of the complainant.  I will refer to the appellant in this appeal as to the appellant/defendant. 

6.  The appellant in HCMA 425/2014 is the counsel who represented the appellant/defendant who appeals a wasted costs order imposed upon him by the magistrate on 30 June 2014 under section 18 of the Costs in Criminal Cases Ordinance, Cap 492, following a hearing on 22 and 23 April 2014.  The appeal is brought under section 19 of the Ordinance and the sole ground of appeal is that the magistrate erred in making the wasted costs order because there was no basis in either law and/or fact for such an order.  I will refer to the appellant in this appeal as the appellant/counsel. 

7.  On 14 May 2015, Mr Gerard McCoy, SC, (who appears with Mr Richard Donald and Ms Chrystal Choy) for the appellant/defendant, in a memorandum to the court sought directions for the two appeals to be consolidated and for them to be listed in the Court of First Instance for a transfer application under section 118(1)(d) of the Magistrates Ordinance, Cap 227.  On the following day, Lunn VP directed that the two appeals be heard together before me for directions on 27 July 2015. 

8.  On 8 June 2015, I granted an order for the provision of transcript as requested by the appellant/defendant and at the same time I gave directions to the parties in both appeals in relation to the filing and serving of any written submissions and authorities for the directions hearing.

9.  On 10 July 2015, the solicitors for the appellant/counsel by way of two letters made an ex parte application for an anonymity order in respect of the appellant/counsel in relation to the directions hearing and all and any subsequent hearings, and for my recusal from the directions hearing and any subsequent hearings for both appeals. 

10.  There were two grounds in support of the recusal application.  The first ground was that at the date at which the prosecution indicated that it would apply for a wasted costs order against the appellant/counsel on 9 July 2013, I was the Director of Public Prosecutions and would have therefore approved, either directly or indirectly, the making of the application.  The second ground was that I had submitted a letter of complaint to the Hong Kong Bar Association dated 4 February 2015, concerning the professional conduct of the appellant/counsel in the context of another case. 

11.  It was requested that I should recuse myself from deciding the application for an anonymity order and any other issues and that the court direct that the anonymity order should apply to the directions hearing until the matter was considered by another judge. 

12.  At the time the two letters were submitted to the court, I was away on leave and they were placed before Lunn VP who on 22 July 2015 declined to make an anonymity order for the hearing on 27 July 2015 and directed that the application for my recusal be made to me at the hearing and if I did not recuse myself, then any application for an anonymity order for further hearings could be made to me.

13.  The two letters were not copied to the other parties in the two appeals, nor was the written submission of Mr Graham Harris, SC, who appears with Ms Charmine Cheung, for the appellant/counsel, supplied to the parties, even though they were seeking an anonymity order and my recusal in relation to both appeals. 

14.  The appellant/defendant should have been notified of the applications by the appellant/counsel and it brought a sharp response from the appellant/defendant when he was informed of the matter by way of a written submission dated 25 July 2015.  The respondent in the appellant/counsel’s appeal was also not notified but when the matter was placed before Lunn VP he directed that a copy of the two letters from the solicitors of the appellant/counsel be copied to the respondent and for the respondent to provide an indication of the position that they would take in relation to the applications. 

15.  A response was accordingly submitted to the court from the respondent by way of letter dated 22 July 2015 in which they opposed both applications of the appellant/counsel.  In respect of the recusal application the respondent noted that the hearing on 27 July 2015 was for directions and that the parties would not go into the merits of the appeals.  The respondent further submitted that according to the information available I had not been involved in the decision to apply for wasted costs against the appellant before I left office as the Director of Public Prosecutions on 8 September 2013. It would appear in any event that the matter arose after I had left office. 

16.  The relevant test to be applied when considering a recusal application of a judge was explained and articulated by Ribeiro PJ in Deacons v White & Case Liability Partnership and Others (2003) 6 HKCFAR 322  The test is whether there is a reasonable apprehension of bias and this is decided by the court first ascertaining the facts relevant to the application and then asking itself whether those facts would lead a fair minded and informed observer to conclude that there was a real possibility that the court was biased. 

17.  Given the matters that have been raised, and in particular the letter that I had submitted to the Bar Association in relation to the appellant/counsel, I accept that the appearance of justice would not allow me to determine any contentious matter in these appeals.

18.  Prior to the hearing on 23 July 2015, the solicitors for the appellant/counsel submitted a letter to the Court in which it was indicated that they had no objection to a transfer and consolidation order if the Court was of the view it has jurisdiction to make such an order and that if both matters were to be consolidated that the Court should not reach a decision on either matter until the appellant/counsel had made representations on both. 

19.  At the hearing, Mr Harris, notwithstanding the previous comments and submissions in relation to the recusal application, had no objection to my dealing with directions that had been discussed by the parties and proposed to the Court.  It was indicated that the parties agreed that the two appeals be consolidated and referred to the Court of Appeal for determination, that the application for an anonymity order be reserved for determination by the Court of Appeal.  This in effect meant that the recusal application would not be maintained if the Court gave an order in the terms proposed. 

20.  The power to refer a magistracy appeal to the Court of Appeal for determination is set out under section 118(1)(d) of the Magistrates Ordinance.  A judge seized of a magistracy appeal may reserve the appeal or particular points therein, for the consideration of the Court of Appeal or direct that the appeal be argued before the Court of Appeal.  The Court of Appeal may then exercise all the powers that the relevant part of the Magistrates Ordinance confers on a judge, or remit the case back to the judge with its opinion or decision. 

21.  In the present case we are concerned with whether the two appeals should be argued before the Court of Appeal.  Although the section does not specify the basis for such a direction, it is clear that it would only be done sparingly and in circumstances where the appeal raises an important issue of fact or law that warrants the determination of the Court of Appeal. 

22.  I can see the justification for the two appeals to be heard together because they arise from the same subject matter and raise common and similar issues that undoubtedly will be based on the same matters and material.  It makes abundant sense for the efficient and economic disposal of the two appeals that they should be heard together. 

23.  The question is whether the two appeals should be argued before the Court of Appeal.  Mr McCoy argued that the appeals raise important issues as to the professional practice and conduct (including substantial costs order against counsel) and as to whether a fair trial was had as a result of counsel’s conduct.  He also argued that an authoritative decision of the Court of Appeal was required in a case where the appellant was denied a fair trial by his own counsel’s conduct that went beyond allegations of flagrant incompetency, and in relation to a costs application against a counsel in such circumstances.  See Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126.

24.  As I have already noted the appellant/counsel has no objection to the two appeals being heard together and argued before the Court of Appeal. 

25.  Mr Eddie Sean for the respondent in both appeals, did not raise any objection to the application, although he did refer to the case of HKSAR v Tam Yi-chun [2014] 4 HKLRD 27 where the Court of Appeal addressed in the circumstances of that case a wasted costs order against the applicant’s counsel following the dismissal of an application for leave to appeal against conviction.  Notwithstanding the guidance that has been given by the Court of Appeal in that case on a question of a wasted costs order against counsel, it nevertheless appears to me that the matters and issues in the two appeals are of such a nature and seriousness as to warrant the determination of the Court of Appeal.

26.  I am of the view that the two appeals should be argued before the Court of Appeal given the issues and matters that need to be addressed in relation to the conduct of counsel during the trial process and the impact such conduct may have on a defendant’s right to a fair trial. 

27.  In accordance with section 118(1)(d) of the Magistrates Ordinance, I direct that the two appeals, HCMA 685 of 2013 and HCMA 425 of 2014, be argued before the Court of Appeal and as to whether the two appeals are consolidated or heard together, is a matter I leave for direction by the Court of Appeal. 

28.  At the request of Mr Harris, the application for an anonymity order is reserved for the Court of Appeal.  It concerns the important principle that justice must be open and visible. 

29.  Costs are reserved with a certificate for two counsel. 

Mr Eddie Sean SC, SADPP of Department of Justice, for HKSAR

Mr Gerard McCoy, Mr Richard Donald and Ms Chrystal Choy, instructed by Messrs. Christopher K.Y. Wong, for the appellant (for HCMA 685/2013)

Mr Graham Harris SC and Ms Charmine Cheung, instructed by Messrs. Ho Tse Wai, Philip Li & Partners, for the appellant (for HCMA 425/2014)