HKSAR v. WONG CHI WAI

Press Summary (English)

Press Summary (Chinese)

FACC No. 10 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 10 OF 2012 (CRIMINAL)

(ON APPEAL FROM CACC NO. 203 OF 2010)

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J U D G M E N T

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Mr Justice Chan PJ:

1.  I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

2.  The appellant, a barrister, was charged with attempting to pervert the course of justice on account of his having drafted three letters and caused them to be sent to a prosecution witness in the course of the trial at which he was appearing for the defence.   The witness was a solicitor and the letters asserted that she was bound by legal professional privilege to refuse to provide the evidence which the prosecution sought to adduce from her.  The letters threatened civil proceedings and a complaint to the Law Society if she failed to comply with the asserted duty.

3.  The appellant (“Mr Wong”) was convicted after trial before H H Judge Tallentire in the District Court[1] and sentenced to six months’ imprisonment.  His conviction and sentence were upheld by the Court of Appeal,[2] although on different grounds.  The Appeal Committee granted leave to appeal, this being a case which raises important questions concerning the interaction between the offence of attempting to pervert the course of justice and a claim of legal professional privilege asserted against an intended witness.

A.  The course of events

A.1  The proceedings against Ms Lau

4.  In September 2001, KBC Bank NV, Hong Kong Branch (“the bank”) agreed to lend money to two “Maruyama” companies[3] secured on floating charges provided by them and also secured on a fixed and floating charge over the undertaking and property of E C Textiles Ltd (“ECT”), a company in the same group.  ECT had a corporate director which was Brightway International Group Ltd (“Brightway”) and Ms Lau Wing Sun (“Ms Lau”) was a director of Brightway.  It was Ms Lau who executed the deed of charge (“the deed”) on behalf Brightway and thus of ECT.   It was this act which led to her being prosecuted for theft, it being alleged that she had purported to pledge to the bank property which she had no right to pledge and so had dishonestly appropriated such assets.

5.  Ms Lau signed the deed at the offices of Messrs Christine M Koo & Co (“CMK&Co”) a firm of solicitors at which Ms Fanny Mak Siu-fan (“Ms Mak”) was employed as a consultant.  Ms Mak was instructed by the bank in the transaction and witnessed Ms Lau’s signing of the deed.  The letters subsequently drafted by Mr Wong were addressed to Ms Mak and an important issue in the case is whether she was impliedly acting also as solicitor for ECT when the deed was executed.

6.  Ms Lau was arrested in February 2004 and, in November of that year, Mr Wong was instructed by Messrs Lau, Chan & Ko (“LC&K”) to act on her behalf in connection with the criminal investigation and proceedings. Two other barristers were also instructed on Ms Lau’s behalf, namely, Mr Lawrence Ngai (“Mr Ngai”) and Mr Paul Tse (“Mr Tse”).  The solicitor on the record for LC&K was Mr Birney Yeung Wai (“Mr Yeung”) although it was a solicitor’s clerk, Mr Jacob Cheung, who actually handled the case.

7.  The police sought evidence that it was Ms Lau who had signed the deed and in February 2005, they obtained two witness statements from Ms Mak in which she acknowledged that she had acted for the bank in the transaction.  She stated that she had prepared the documents, arranged for their signature; had them registered in the Companies Registry and then delivered the originals to the bank.  Ms Mak identified her own signature on the deed and stated that, following her usual practice, she would have verified the identity of the person signing on behalf of ECT – confirmed to be Ms Lau  – before signing as having witnessed Ms Lau signing the document in her presence.

8.  On 12 April 2005, Ms Lau was charged with theft. Her trial began in the District Court before Deputy District Judge Yiu on 15 November 2005.[4] It lasted 24 days, running initially until the first week of December and then resuming on 23 January 2006, with Ms Mak due to give evidence on the following day, 24 January.  Ms Lau was eventually acquitted on 1 April 2006 for reasons unconnected with the case against Mr Wong.

A.2   Mr Wong’s conduct

9.  About three weeks before the start of Ms Lau’s trial, Mr Wong saw Ms Mak’s witness statements and in his “Note of possible defences” dated 24 October 2005 (circulated to the defence team), he first made the suggestion that Ms Mak may have been acting as Ms Lau’s solicitor and that she might infringe Ms Lau’s legal professional privilege (“LPP”) if she were to testify in court. The Note stated:

“[Ms Mak] who is expected to testify against [Ms Lau] 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.”

10.  Mr Ngai, who was acting as Mr Wong’s junior, evidently had a stab at such further research and, in a memorandum to Mr Wong dated 28 October 2005, he cited China National Petroleum Corp v Fenwick Elliot,[5] an English decision mentioned in Phipson on Evidence, as authority for the proposition that “where a solicitor sought to interview and take a proof of evidence from a potential witness, privilege attached not merely to the proof and what was said during interview, but also to the identity of the witness”.  However, Mr Ngai commented that that case “may not be of much assistance” since it dealt with a “factual scenario ... so different from our present case.”

11.  Mr Wong was not put off the scent.  In his “Further Note on Preparation of Defence” dated 1 November 2005, he asked for instructions from Ms Lau as to “the exact circumstances she was under (ie the communication between she and [Ms Mak]) leading to her signing [the deed]”.

12.  A fortnight later, on 15 November 2005, the trial of Ms Lau commenced.  Some 10 days into the trial, Mr Wong drafted and caused LC&K to send a letter dated 24 November 2005 to Ms Mak (“the 1st Letter”).[6]  It is set out in full in the Court of Appeal’s judgment.[7]  It enclosed a copy of a bill of costs dated 22 September 2001 issued by Ms Mak on behalf of CMK&Co in connection with the bank transaction (“the bill of costs”).  The 1st Letter stated that LC&K were acting for ECT and asserted that Ms Mak had acted for ECT in that transaction, owing it a continuing duty to protect its privileged communications.  It complained that by giving the witness statements to the police, Ms Mak had breached that duty and urged her “not to aggravate the aforesaid breaches and stop doing anything that would aggravate” them.  It ended with the statement that ECT reserved “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.”

13.  The enclosed bill of costs was addressed to ECT and captioned as being in the matter of the fixed and floating charges provided to the bank by the Maruyama companies and by ECT.  CMK&Co invoiced ECT for $31,430.00 by way of costs and disbursements with the costs particularised as being “To our professional charges for preparing engrossing and attending execution of the [security documents] in favour of [the bank]”; “to our professional charge for preparing the supporting minutes in relation to the above”; and “to our professional charges for attending companies filing of the above documents with the Companies Registry”.

14.  On 30 November 2005, Ms Mak replied.[8]  She was guarded as to whether ECT was her client, stating: “... whether I acted for your client on the above matter is a matter to be determined on the facts of the case”, but in any event she denied the alleged duties and breaches.  She stated that she was subject to a witness summons and “As such I am required by law to serve as a witness” at the trial, adding:

“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.”

Ms Mak informed the police that she had received the 1st Letter and they passed on that information to the prosecution.

15.  Upon receiving her reply, Mr Wong drafted a letter which was sent out by LC&K to the Law Society dated 30 November 2005.[9] It asked in general terms (without giving names or other details) about a client’s rights and a solicitor’s duties regarding privilege, confidentiality and privacy arising out of advice given “in a property transaction” where the solicitor is summonsed to testify against the client. 

16.  Not surprisingly, the Law Society’s response dated 9 December 2005 stated that it was unable to advise given the limited facts provided.  It sent LC&K a copy of the chapter on confidentiality in the Hong Kong Solicitors’ Guide to Professional Conduct.

17.  On 12 December 2005, about a month into the trial, Mr Wong drafted and caused LC&K to send to Ms Mak the 2nd Letter upon which the charge is based.[10]  It enclosed the correspondence with the Law Society (said to be “self-explanatory”) and, in reply to Ms Mak’s letter of 30 November, it drew attention to section 34(2) of the Criminal Procedure Ordinance[11] stating that such provision “dictates that it is for the witness who is served with the said Summons to apply to the issuing court to nullify [it]”.  It cited R v Derby Magistrates’ Court, ex p B[12] for the proposition that evidence covered by LPP is not “material evidence” for the purposes of the section.

18.  Ms Mak replied on 19 December 2005.[13]  She repeated her guarded statement as to whether ECT had been her client; denied the relevance of section 34(2) and reiterated that it was for LC&K to take out proceedings to set aside the witness summons if they so desired, stating once more that unless that was done “I would be obliged by law to be a witness in the court unless otherwise ordered.”

19.  As previously noted, the trial was adjourned part-heard in the first week of December and was due to resume on 23 January 2006.  On 16 January, Mr Wong wrote to prosecuting counsel suggesting that Ms Mak be called on 24 January to accommodate Mr Wong’s other commitments. Neither by that letter nor by any prior communication did Mr Wong inform the prosecution that the defence had been writing to Ms Mak or that they had any concerns about LPP.

20.  On the same day, 16 January, Mr Wong drafted a letter to be sent to the Law Society by LC&K.  However, the fax coversheet contained a request by Mr Wong’s secretary that LC&K should “discuss with Counsel before issuing the letters.”

21.  The letter to the Law Society was only sent out by LC&K and copied to Ms Mak on 20 January 2006 (“the 3rd Letter”). Since Ms Mak was due to give evidence on Tuesday, 24 January, this meant that those letters were only sent out on the preceding Friday, with a weekend intervening.  The prosecution attaches importance to that timing as indicating that the letter was a pure threat and not seriously intended to evoke a response from the Law Society. 

22.  The enclosure to the 3rd Letter[14] provided the Law Society with copies of LC&K’s correspondence with Ms Mak concerning her intended giving of evidence.  It complained 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...” and invited the Law Society “to look into the matter and take whatever preventive and/or remedial measures necessary to uphold the professional ethics applicable to a member...”

23.  As with the 1st and 2nd Letters, Ms Mak informed the police of her receipt of the 3rd Letter.  A conference with prosecuting counsel was held with her on 23 January.

A.3   The hearing

24.  On 24 January 2006, just as the prosecution was about to call Ms Mak as a witness, Mr Wong rose to object to her giving evidence on the grounds of LPP.  He told the Court that “she was the solicitor acting for ECT and its officers” in the transaction, pointing to the bill of costs.  In support of his argument, he handed to the Judge a photocopy of a single page from the then current edition of Blackstone’s Criminal Practice which referred to a legal adviser’s duty, subject to the client’s waiver, to refuse to give evidence relating to communications between the adviser and the client for the purpose of obtaining or giving legal advice.  The prosecution places substantial weight on the fact that the extract produced by Mr Wong was incomplete, misleadingly excluding – say the prosecution – passages identifying as matters not covered by the privilege, the identity of a solicitor’s client and matters falling within the crime and fraud exception.[15]  I return in Sections E.2a to E.2c below to examine more closely what occurred at the hearing. 

25.  After hearing submissions, the trial Judge ruled against the privilege claim and Ms Mak testified that she had been instructed by the bank to prepare the deed; that she had verified the identity of Ms Lau as the person who had signed it in her presence on behalf of Brightway; and that she had then caused the deed to be registered in the Companies Registry. Mr Wong’s cross-examination sought to suggest that Ms Mak was not in fact sure that it was her own signature on the document as she had asked to see the originals before confirming that this was the case. 

A.4   The present charge

26.  As the LC&K letters addressed to Ms Mak were signed by Mr Yeung, he was charged with perverting the course of justice.  On 22 July 2009, after trial before Deputy Judge M Chow in the District Court, he was convicted and sentenced to four months’ imprisonment suspended for 12 months.  However, his conviction was quashed by the Court of Appeal since, on the evidence, Mr Yeung had little real involvement in the conduct of Ms Lau’s case and the findings as to the state of his knowledge were unsafe.[16]

27.  The fact that Mr Wong had drafted the letters and the extent of his involvement emerged in the course of Mr Yeung’s trial and in September 2009, Mr Wong was charged with attempting to pervert the course of justice, initiating the present proceedings.  On 29 January 2010, Messrs Haldanes, his solicitors, wrote to Ms Lau asking whether she would waive privilege in respect of communications made in the course of Mr Wong acting for her.  No waiver was forthcoming.

B.     The applicable principles

28.  Two sets of principles are relevant: first, those which determine how the offence of attempting to pervert the course of justice is constituted, particularly (on the present facts) in relation to allegedly improper approaches made to a witness; and secondly, those which determine when legal professional privilege arises and the scope and effect of the privilege.

B.1    Attempting to pervert the course of justice

29.  In HKSAR v Egan,[17] this Court had occasion to consider the elements of a conspiracy to pervert the course of justice in relation to an alleged attempt to influence a potential witness.  That review and the authorities there cited are closely relevant to the present case.  They provide the basis for the following propositions.

B.1a  The offence generally

30.  An attempt to pervert the course of justice is “the doing of some act which has a tendency and is intended to pervert the administration of public justice.”[18]  The actus reus is thus the doing of the act with the prohibited tendency and the mens rea is the intention to pervert the course of justice.

31.  With regard to the actus reus generally, the following propositions may be stated:

(a)   Although it is called an “attempt”, it is a substantive offence.  But like an inchoate offence, it is committed even where the act with the prohibited tendency does not actually result in interference with the course of justice.[19]

(b)   A person’s conduct has a tendency to pervert the course of justice if it has a tendency towards “impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice”.[20]

(c)    The tendency must involve impairing the administration of justice in curial proceedings.  Conduct with a tendency to result in unlawfulness which does not interfere with curial proceedings does not constitute the offence.[21]

32.  The following propositions may be stated in respect of the mens rea of the offence:

(a)   To prove that a defendant intended to pervert the course of justice, it is necessary to prove that he knew that his conduct would have or that he intended it to have a tendency to pervert the course of justice in relation to the curial proceedings in question.[22]

(b)   Where his conduct has a manifest tendency to pervert the course of justice, the required intention may readily be inferred from proof that the defendant intended to perform the relevant act.   But where the act does not manifestly have the prohibited tendency, it is necessary to prove the abovementioned specific intent on the defendant’s part.[23]

B.1b  The offence in connection with attempts to influence a witness

33.  All kinds of conduct may have the prohibited tendency.  The focus in the present case is on an approach made to a witness with a view to influencing her in relation to the evidence she is expected to give.  In that context, the following propositions may be stated:

(a)   There is no property in a witness and in principle neither party can prevent the other side from seeing a witness. [24]  Of course, the approach made must not involve doing any act with the prohibited tendency and intention vis-à-vis the witness. 

(b)   Whether an approach does or does not have such a tendency depends on the circumstances.  In many cases, the tendency will be clear, but more difficult questions may arise in the penumbra of the offence, such as where the approach is made believing that the intended evidence is false, or where threats are made to exercise a legal right.[25]  In the present case, an approach made to assert LPP must be addressed.

(c)    In determining whether the prohibited tendency is established, the courts have focussed on the purpose of the approach and the means used to try to influence the witness.  The purpose or objective of a defendant’s approach to a witness is thus usually treated as part of the actus reus, the prohibited tendency.  However, it necessarily involves examining the accused’s mental state.  So the concept of “purpose” overlaps with the mens rea requirements of the offence.

(d)   Both the purpose of the approach and the means used must be lawful.  If either is unlawful or improper (in the sense of putting the proper administration of justice at risk), the prohibited tendency is proved. Thus, as stated in Egan:

“...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.”[26]

(e)    An example of a lawful approach involves the case where a person who believes the intended evidence to be false approaches the witness with the object of persuading him or her not to give such false evidence (a lawful purpose) using reasoned argument supported by material facts and documents (lawful means).[27]

(f)     In contrast, if the object of the approach is to get the witness to give false evidence or to refrain from telling the truth, the offence is committed even if the means used involve no more than exercising or threatening to exercise a legal right (such as threatening to give an employee lawful notice terminating the employment).[28]

(g)   Equally, even if the object of the approach is lawful, for example, to persuade the witness not to give evidence believed to be false, the offence would be committed if unlawful or improper means (such as improper pressure or bribes) are used to achieve that aim.[29]

(h)   Whether conduct constitutes improper pressure may raise questions of fact and degree.  It may be important to consider when, by whom and upon whom and for what purpose the pressure is applied.[30]

(i)     In some cases, in deciding whether the pressure acquired the prohibited tendency, it may be useful to ask whether it had the tendency to prevent the witness making a free and voluntary choice as to whether to give evidence and what evidence to give.[31]

B.2    Legal professional privilege

B.2a  LPP generally

34.  The rationale of legal professional privilege was stated by Lord Taylor of Gosforth in R (ex p B) v Derby Magistrates’ Court[32] as follows:

“The principle which runs through all these cases ... 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 facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.”

35.  His Lordship also reiterated the well-established rules that a communication protected by privilege continues to be protected so long as the privilege is not waived by the client; that the privilege exists whether disclosure is sought for the purpose of civil or criminal proceedings, and whether by the prosecution or the defence; and that the refusal of the client to waive his privilege, for whatever reason, or for no reason, cannot be questioned or investigated by the court.[33] Referring to the position of the legal adviser, Lord Taylor stated:

“...the privilege is that of the client, which he alone can waive, and ... the court will not permit, let alone order, the attorney to reveal the confidential communications which have passed between him and his former client. His mouth is shut forever.”[34]

36.  The two categories of LPP are usually referred to as “legal advice privilege” and “litigation privilege”, described by Lord Scott of Foscote in Three Rivers District Council v Governor and Company of the Bank of England (No 6)[35] as follows:

“The modern case law on legal professional privilege has divided the privilege into two categories, legal advice privilege and litigation privilege. Litigation privilege covers all documents brought into being for the purposes of litigation. Legal advice privilege covers communications between lawyers and their clients whereby legal advice is sought or given.”

37.  Once established, legal advice privilege “gives the person entitled to it the right to decline to disclose or to allow to be disclosed the confidential communication or document in question.”[36] Moreover, unlike other classes of confidential communications, LPP cannot be overridden by the court:

“... if a communication or document qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client, entitled to it and it can be overridden by statute (cf R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2003] 1 AC 563), but it is otherwise absolute. There is no balancing exercise that has to be carried out: see B v Auckland District Law Society [2003] 2 AC 736, 756-759, paras 46-54). ... legal professional privilege, if it is attracted by a particular communication between lawyer and client or attaches to a particular document, cannot be set aside on the ground that some other higher public interest requires that to be done.”[37]

B.2b Implied retainers

38.  In the present case, there was no litigation pending or in contemplation at the time when Ms Lau signed the deed.  Any LPP arising could therefore only involve legal advice privilege.  For legal advice privilege to arise, Ms Mak had to be acting as solicitor for ECT (for whom Ms Lau, a director, was acting) in the relevant transaction.  Ms Mak was plainly instructed by the bank but was never expressly retained to act simultaneously as ECT’s solicitor.  So it is necessary to consider the principles for determining when a solicitor is held to have impliedly accepted a retainer to act for the person in question.

39.  It is clear that a solicitor and client relationship may arise by implication.  Thus, as Scott LJ stated in Groom v Crocker:[38]

“The relationship is normally started by a retainer, but the retainer will be presumed if the conduct of the two parties shows that the relationship of solicitor and client has in fact been established between them.”

40.  A case where the court found an implied retainer clearly established is Pegrum v Fatharly[39] where, in order to save costs, both the lender and borrower in a loan transaction went together to consult the same solicitor who prepared all the transaction documents.  Anderson J stated:

“When both parties to a transaction consult the same solicitor and together give him the information needed to prepare the 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: see 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.”[40]

41.  His Honour added:

“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.”[41]

42.  Whether an implied retainer arises therefore depends on whether a solicitor and client relationship can properly be inferred on the facts.  In Watson v Ebsworth & Ebsworth,[42]  the New South Wales Court of Appeal cited a helpful passage from Professor G E Dal Pont’s book Lawyers’ Professional Responsibility,[43] indicating the sorts of circumstances that might be relevant:

“Retainers, like other contracts, need not be created by express words, whether written or oral; their 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 carry significant weight here, as the lawyer may always take steps to dissuade any person from a belief that the lawyer acts for that person.

The lawyer's file (including letters and other correspondence) and diary notes, specifically regarding how he or she has referred to and dealt with the claimant, may prove useful.  Aspects that may impact upon a client's reasonable expectations of a retainer include the capacity in which the lawyer acted (say, giving advice in a non-legal capacity), who instructed the lawyer, who is liable for the lawyer's charges, and whether a contractual relationship existed with the claimant in the past (as the court may be readier to assume that the parties intended to resume that relationship in such a case).”

43.  Anderson J[44] also cited Beach Petroleum NL v Kennedy,[45] where the Court emphasised the limited relevance of the solicitor’s understanding of his own retainer:

“His own understanding of the relationship is not conclusive. The question of a retainer is not determined by the belief of the solicitor as to the company or companies for whom he or she is acting. It is determined by the objective facts. Mr Bateman's evidence of his understanding of the relationship is little more than evidence of inferences he drew from the circumstances. In the absence of plain language from any of the directors of the various companies, the matter remains to be determined by inference.”

44.  In Hong Kong, an implied retainer was found by Tang J (as Tang PJ then was) to have arisen in International Trading Co Ltd v Lai Kam Man,[46] a property sale and purchase case in which the purchaser, in accordance with the memorandum of sale, had to bear all solicitors’ fees in connection with the purchase.   Relevant to the inference being drawn was the fact that the solicitors, who had been nominated by the developers, had written to the plaintiff :

“... saying that if the purchaser had any question or that further assistance was required, the purchaser should contact [the solicitors] at any time. The letter did not say that [the solicitors] were acting as [attesting agent only] only nor that they were the Vendor's solicitors only. It also did not say that such further assistance would be given without any responsibility and as the Vendor's solicitors only, and hence on behalf of a person with a conflicting interest. Nor did it say that the purchaser was under no direct obligation to pay any fees to [the solicitors] and that any fees payable would be payable by the purchaser pursuant to its contract with the Vendor.”[47]

C.     The Issues

45.  Mr Wong’s case at trial was that he genuinely believed that the evidence Ms Mak was intended to give was covered by LPP and that the letters written to her were a legitimate assertion of ECT’s legal right to demand that she protect that privilege by declining to give the evidence sought.

46.  To decide whether Mr Wong’s acts amounted to conduct with a tendency to pervert the course of justice and whether he knew or intended that his acts would have the prohibited tendency, a series of questions arise:

(a)   Was there a solicitor and client relationship between Ms Mak and ECT in connection with Ms Lau’s execution of the deed?  What did Mr Wong believe the position to be?

(b)   If there was or may have been such a solicitor and client relationship, was the evidence which Ms Mak was intended to give within the scope of ECT’s LPP?  What did Mr Wong believe the position to be?

(c)    What was Mr Wong’s purpose in causing the letters to be sent to Ms Mak?  Was it an unlawful purpose?

(d)   Was Mr Wong’s conduct of sending the letters to Ms Mak without informing the prosecution, rather than directly raising the matter with the Court, conduct with the prohibited tendency?  Did such conduct constitute unlawful or improper means of achieving his purpose (even if he may have been pursuing a lawful purpose)?

(e)    Did Mr Wong know that such conduct was or intend such conduct to be conduct with a tendency to pervert the course of justice?

D.     The Judge’s decision and the Court of Appeal’s views thereon

47.  It may be noted that the Judge’s decision was issued after the Court of Appeal’s judgment in Egan,[48]but about six weeks before this Court’s judgment in Egan was published.  The Court of Appeal’s judgment below was issued afterwards.

D.1   Whether a solicitor and client relationship was created

48.  The Judge did not consider it necessary to decide whether a solicitor and client relationship had arisen, saying that it was “not conclusive of guilt or innocence; merely a cogent milestone on the journey”.[49] However, he apparently inclined towards the view that no such relationship existed, placing reliance on the evidence of Ms Mak.

49.  The Court of Appeal concluded[50] that the Judge had decided that no retainer existed and that his decision was erroneously based on Ms Mak’s understanding of who her client was.  She had repeatedly denied that she was acting for anyone other than the bank,[51] saying that she was “certain” that ECT was not her client.[52]  Without itself deciding whether an implied retainer had actually been created, Stock VP (with whom the other members of the Court agreed) stated:

“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.”[53]

D.2   Whether covered by LPP and what Mr Wong believed

50.  The Judge concluded that objectively, there was no LPP “given the scope of the evidence that was required by the prosecution in the trial, and even if it did, it was covered by the exceptions I have referred to”.[54] The exceptions in question were “as to identity and to fraud”.[55]

51.  As to Mr Wong’s  belief, his Honour stated:

“I am also satisfied that as far as you are concerned you had little or no belief in the actual existence of legal professional privilege and being alerted to the problems by your fellow counsel and the exceptions referred to in Blackstone. Your reliance on the bill of costs and instructions from your client constitutes a deficiency of basis which I neither believe nor accept. In short, if you did hold such a belief, it was a self-induced delusion contrary to the facts, the law and procedure.”[56]

52.  The finding is somewhat equivocal (with references to Mr Wong having had “little or no belief” and possibly having that belief as a “self-induced delusion”), but I take it that the finding was that Mr Wong had no genuine belief in the existence of LPP.

53.  It seems that the Judge’s thought that finding did not really matter since the offence was in any event established because improper means had been used:

“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.” [57] [Which he subsequently held had not properly been pursued]

54.  The Court of Appeal agreed that objectively, there was no basis for an LPP claim.  Stock VP gave three reasons for that conclusion: (i) that the evidence sought from Ms Mak did not involve legal advice;[58] (ii) that LPP does not cover the identity of the client except where disclosure may incriminate the client or indirectly reveal privileged communications;[59] and (iii) that in the present case, the signatory’s identity was not intended to be kept confidential, the bank having an interest in ensuring that the person concerned was properly signing on behalf of ECT.[60]  On that basis, Stock VP held that “The argument was a nonsense”[61] and that “...Wong was ... patently wrong in asserting that the limited intended evidence by Mak was covered by legal professional privilege.”[62]

55.  However, his Lordship was uneasy about the Judge’s finding that Mr Wong had no belief that an arguable LPP claim existed.  Stock VP thought that there were grounds for doubting the genuineness of Mr Wong’s stated belief, including his partial citation of Blackstone, his oblique correspondence with the Law Society and his keeping of the LPP claim “up his sleeve” until the last moment.[63] But his Lordship noted that the Judge had not mentioned Mr Wong’s “Note of possible defences” and “Further Note on preparation of the defence”.[64]  He also drew attention to the evidence of Mr Wong’s “aggressive tenacity on behalf of his clients” and “the evidence which suggests that he is a facts advocate, not much at ease with arguments of law”.[65]  Stressing that “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”,[66] Stock VP held that there were sufficient residual doubts about the Judge’s conclusion as to lack of belief.[67]

56.  The Court of Appeal held, however, that those doubts did not affect the safety of the conviction because “the Judge made it clear that these factors did not ultimately dictate his decision...” resting his conclusion on his finding that improper means were used.[68]

D.3   Mr Wong’s purpose

D.3a The prosecution’s case

57.  In opening for the prosecution, Ms Charlotte Draycott SC submitted that Mr Wong’s acts were “an attempt to prevent or dissuade [Ms Mak] from testifying in court as a prosecution witness...”[69]  This was put to him in cross-examination:

“Q: So how can you explain what you did, except in terms of an attempt to dissuade her from coming to court.”[70]

58.  However, the prosecution then introduced an alternative purpose.  Ms Draycott suggested to Mr Wong that he knew full well that his privilege argument did not hold water and added:

“And that was why you had been trying to get [Ms Mak] either not to come to court or to claim privilege or not give evidence because you knew if it was argued in court you were bound to lose.”[71]

59.  Mr Graham Harris SC, then leading for the defence, objected that this was a change of case by the prosecution and, in closing submissions, Ms Draycott stated:

“The third matter which they raise as an apparent change of ground is that in opening, it was said that the intent was both by threats and more subtle pressure to unlawfully persuade [Ms Mak] from giving evidence, and the letters were designed with intent to improperly influence [Ms Mak] not to give evidence. And it’s suggested there’s a change of ground now because in my closing submission I deal with it not only on that basis but also on the basis that it was an attempt to make [Ms Mak] do something which she did not want to do, which she did not feel was justified, in other words, to set aside her witness summons.”[72]

60.  Ms Draycott argued that it was “splitting hairs” to suggest that the two ways Mr Wong’s purpose had been put were different:

“... the immediate aim may have been to persuade [Ms Mak] to make an application to set aside her witness summons on the basis of legal professional privilege and not being able to give material evidence. But the ultimate aim was to stop that evidence going before the court, and as I said in closing, it’s splitting hairs to say they are different because the purpose was to stop the court having the evidence, and that perversion happened because pressure was brought to bear on her to do something which he did not want to do with that end in mind.”[73]

D.3b The Judge’s findings

61.  The Judge appears to have accepted that there was no difference in the two formulations of Mr Wong’s purpose.  His Honour found that Mr Wong “decided to try to derail the witness prior to giving evidence”.[74] However, in the very next paragraph, he stated:

“Your intention was to persuade her to make an application to set aside the witness summons she had received [on the basis of LPP].”[75]

62.  The latter approach seems ultimately to have been favoured:

“... you wilfully and consciously set aside legitimate lines of defence in order to try to force by threats and intimidation [Ms 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.”[76]

“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”.[77]

 

63.  His Honour suggested a motive for such threats:

“It is clear to me, and it was clear to you, defendant, 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.”[78]

D.3c The Court of Appeal’s approach

64.  The Court of Appeal also viewed the case as proceeding on the latter basis.  Stock VP described the essence of the case against Mr Wong[79] as seeking:

“... by improper pressure to force a prosecution witness, herself a solicitor, to claim, on a basis in which Wong ... had no faith, that by reason of legal professional privilege she was precluded from testifying.”[80]

65.  His Lordship also noted that, as a last resort, Mr Wong’s intention was to apply to the Court himself.  His case:

“... as no doubt the judge recognized, was that persuading Ms Mak to seek to set aside the summons – persuading her by the 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’”.[81]

66.  The Court of Appeal did not consider the prosecution’s changed direction material, either substantively or procedurally:

“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.”[82]

67.  Stock VP echoed the Judge’s view of Wong’s possible motive, namely, that a claim made by a solicitor “is likely to carry considerable weight; more weight on its face than if the claim were made by the client”.[83]

D.4   Whether the conduct had the prohibited tendency

D.4a The Judge’s decision

68.  The Judge decided that even if a legitimate claim of LPP existed, the offence was committed because the means adopted to enforce that claim – his causing threatening letters to be sent – were improper and had the tendency to pervert the course of justice. 

69.  The Judge found that prohibited tendency arose out of (i) the fact of Mr Wong’s approach to a prosecution witness; (ii) his failure to inform the prosecution of what he was doing; and (iii) his failure to raise the issue of privilege directly with the Judge at Ms Lau’s trial, Judge Tallentire’s view being that that was the only proper avenue for such a claim.

70.  Thus, his Honour took the view that was it was a breach of professional standards for Mr Wong to instigate:

“...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.”[84]

71.  The fact that Mr Wong had approached a witness on the other side was said to be a major hurdle he had to face.  Such an approach, his Honour held:

“... should happen only in the most exceptional circumstances and be attended by the utmost circumspection and probably transparency.”[85]

72.  He held that such an approach was improper because:

“... 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 the 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.”[86]

73.  The failure to inform the prosecution was also regarded as highly significant:

“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.”[87]

74.  The other major “hurdle” facing Mr Wong was identified as follows:

“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 [Ms Mak’s] raising it, does not ring true....”

75.  The Judge also found that the threatening tone of the letters, coupled with their timing, showed that they were purely intended as threats and could not be regarded as lawful attempts at reasoned persuasion.[88]

D.4b The Court of Appeal’s disagreement with the Judge

76.  The Court of Appeal disagreed with the Judge’s central reasons for holding that the conduct had the prohibited tendency. 

77.  Their Lordships held[89] that it was wrong to regard an approach made by the defence to a prosecution witness, without more, as objectionable and tending to pervert the course of justice.  There was no basis for holding that an approach could only be made in “the most exceptional circumstances”.  The established rule is that there is no property in a witness, as this Court reiterated in Egan[90]:

“... as Lord Denning MR pointed out, neither party can ‘prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence or from issuing him with a subpoena.’ Pointing to the Law Society’s guidance to its members, his Lordship stated:

‘... 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.’”[91]

78.  Given that there is no property in a witness, the Court of Appeal held that there was nothing improper in not telling the prosecution of the approach made.[92]

79.  The Court of Appeal also disagreed with the Judge’s view that the criminal court was the only proper forum for raising an LPP objection.  It rejected the defence submission that section 34(2) of the Criminal Procedure Ordinance[93] precluded ECT (and anyone other than the witness summonsed) from applying to the criminal court to discharge the summons, holding that jurisdiction to entertain a third person’s application existed at common law.[94]  However, it noted that in Rockefeller & Co Inc v Secretary for Justice,[95] Godfrey VP had held that where documents said to be privileged had already come into the hands of a third party and it was sought to restrain their use court, the proper course was to bring civil proceedings to restrain such use on behalf of the person whose privilege it was.  Godfrey VP also said in passing that if a privilege objection was taken to production of documents pursuant to a subpoena duces tecum, the party claiming the privilege “could no doubt have applied to the trial judge to have the subpoena set aside”. 

80.  The Court of Appeal therefore concluded that ECT could have chosen either to apply to the criminal court or to take the civil avenue.[96] It held nevertheless that the point was academic since no civil proceedings were intended and since Mr Wong had intended – he said as his last resort – to raise the point himself before the trial Judge in the criminal proceedings.[97]

D.4c The Court of Appeal’s basis for upholding the conviction

81.  Having rejected the basis upon which the Judge’s finding of a prohibited tendency had rested, the Court of Appeal nevertheless upheld the conviction, substituting its own basis for that finding, as set out in three key paragraphs of the judgment. 

82.  Having cited an important passage from R v Rogerson,[98] which will require closer examination, Stock VP held at paragraph 74 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.”  His Lordship elaborated upon that conclusion at paragraphs 168 and 169 of his judgment which are examined in Section H.2 below.

D.5   Mr Wong’s mens rea

83.  As mentioned above,[99] in cases involving approaches made to witnesses, the courts have examined the purpose of the approach and the means used to try to influence the witness. And, as I have noted, a finding of what the defendant’s “purpose” was inevitably bears upon a finding of whether he had the requisite mens rea.

84.  In the present case, there is no doubt that Mr Wong intended to do the acts complained of: he drafted letters which contained threats of civil action and professional complaint and caused them to be sent to Ms Mak; and he did so without informing the prosecution and rather than taking the initiative of raising the matter directly with the Court.  The Courts below found that this pressure had the purpose of compelling Ms Mak to apply to the Court to set aside the witness summons on the ground of LPP, with his own possible application as a last resort.  The means employed by Mr Wong were held to constitute improper means with the prohibited tendency.  Given those findings, it was implicitly found that mens rea was proved.

E.     Analysis of the issues

E.1   Whether there was an implied retainer

85.  It is not in dispute that Ms Mak acted for the bank.  There was, in my view, a reasonably arguable case that an implied retainer had arisen for Ms Mak also to act for ECT in relation to the deed. More importantly, there is ample ground for accepting that Mr Wong may have believed that there was such an implied retainer.

86.  As the Court of Appeal rightly held, whether or not such a relationship arose did not depend on Ms Mak’s subjective view.  The legal principles are discussed in Section B.2 above.  They establish that an implied retainer may be inferred if the objective facts indicate a tacit agreement to provide legal services.  The relevant facts in the present case are as follows.

87.  No other solicitor was involved.  Ms Mak prepared all the documents, including ECT’s board resolutions.  Those resolutions, together with her firm’s bill of costs, were sent to ECT in advance of their meeting for ECT’s approval.[100] The bill of costs was addressed directly to ECT, debiting it for the firm’s professional charges for preparing, etc, the charges and the board minutes, without suggesting that ECT was merely being asked to bear the bank’s legal costs.  Ms Mak accepted in evidence that she may well have (and if asked would have) explained the parties’ rights and obligations arising under the deed.  While she says that her usual practice included telling the bank’s customers that they might consider separate legal advice,[101] Ms Mak did not tell Ms Lau that Ms Mak was unable to act for ECT, nor did she positively recommend that ECT should be separately represented.  In her written response to the 1st Letter which enclosed the bill of costs and alleged that Ms Mak had acted as solicitor for ECT, Ms Mak did not deny that relationship, merely stating: “... whether I acted for your client on the above matter is a matter to be determined on the facts of the case...”  This was repeated in her response to the 2nd Letter.

88.  It is possible that the precise position of Ms Mak acting solely as the bank’s solicitor might have been spelt out in the deed which was a 50 page document.  It was also a document which Mr Wong had access to.  However, it was not explored in the evidence.  In opening, Ms Draycott handed up only a few extracted pages.[102]

E.2   Whether the intended evidence was protected by LPP

89.  As pointed out in Section D.2, Stock VP gave three reasons for concluding that the proposed evidence was not privileged, namely, that: (i) the intended evidence did not involve legal advice; (ii) the identity of a client is not privileged; and (iii) the identity of the person signing the deed was not confidential.  I respectfully agree with the first and third reasons. However, the second reason requires to be addressed in some detail since it has had important ramifications for assessing Mr Wong’s state of knowledge and the propriety of his conduct.  I will later deal more briefly with the first and the third reasons.

E.2a  Identity of the client – prosecution’s case

90.  The prosecution deployed the “identity of the client” argument not only as a basis for arguing that the intended evidence was not privileged,  but more importantly, for calling into question the genuineness of Mr Wong’s purported reliance on LPP.  The prosecution’s argument ran as follows:

(a)   Mr Wong was seeking to suggest that the intended evidence was privileged because it would reveal the identity of Ms Mak’s client.

(b)   That was a bad point since in law, save for immaterial exceptions, the identity of the client is not privileged.

(c)    Mr Wong must have known this because, when taking the privilege objection at Ms Lau’s trial, he misleadingly handed to the Judge an incomplete citation of Blackstone, deliberately suppressing a passage that refuted the suggestion that the identity of the client is privileged.

(d)   This shows that the purported claim to LPP was a pretext and that the threats made against Ms Mak were wholly improper and conduct with a tendency to pervert the course of justice.

91.  As Stock VP noted:

“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’.”[103]

92.  The prosecution’s argument bore fruit.  The Judge stated:

“... it seems your research extended to extracts from Blackstone, choosing to ignore the exceptions, especially as to identity and to fraud, and that 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.”[104]

93.  His Honour concluded:

“... you had little or no belief in the actual existence of legal professional privilege and [sic] being alerted to the problems by your fellow counsel and the exceptions referred to in Blackstone.”[105]

94.  The argument was also given some weight by Stock VP:

“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.”[106]

E.2b Identity of the client – irrelevant

95.  There is indeed a body of jurisprudence on whether and in what circumstances a legal adviser may refuse to disclose his client’s identity.  Someone may, for a whole variety of reasons,[107] want to know the identity of a certain other person and, knowing that a particular solicitor is acting for that person, seek to find out from that solicitor who that other person is.  Such demands have often been met by the solicitor’s claim that his client’s identity is privileged and cannot be disclosed without the client’s consent.  An extensive review of the authorities across several common law jurisdictions by the Australian Federal Court can be found in Commissioner of Taxation v Coombes.[108]  The Court helpfully summarised its conclusions as follows:

“The following propositions, among others, can be distilled from the cases we have examined:

o Privilege attaches to communications, and not to facts which a lawyer observes while acting in the course of a retainer.

o Privilege does not attach to everything a client says to the lawyer, but only to communications made by the client for the purpose of obtaining the lawyer's professional assistance. It will not attach to ``mere collateral facts''. The address and identity of a client will usually be ``collateral facts''.

o Privilege attaches to communications only if they are confidential. In almost all cases the client's name and address will not have been communicated confidentially.

o Instructions to a lawyer to do a particular thing, for example to prepare a legal document such as a will, are generally not privileged, because instructions to do something do not necessarily amount to a request for advice.

o As a general rule, the identity of a 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.

o Disclosure of the client's identity is necessary before the privilege can arise even if the client's name was given in confidence, and it was a condition of the lawyer's retainer that the client's identity be kept confidential. The client cannot by contract extend the area of privilege.

o Some of the cases support an exception to this general rule when so much of the actual communication has already been disclosed that identification of the client amounts to disclosure of a confidential communication. This will be the case when the client's identity is so intertwined with the confidential communication that to disclose the identity would be to disclose the communication.”[109]

96.  Those principles are plainly irrelevant in the present case.  There was no question of anyone – Mr Wong or Ms Mak – seeking to discover or to withhold the identity of Ms Mak’s client.  The very first sentence of the 1st Letter contained the assertion that ECT was Ms Mak’s client, relying on the bill of costs addressed to ECT, to which Ms Mak had made a guarded response.[110] Rather, the question was whether the identity of the person who had signed the deed was privileged.

E.2c  Identity of the client – the prosecution’s misapprehension of Mr Wong’s case

97.  In fact, the suggestion that Mr Wong was trying to exclude Ms Mak’s intended evidence on the argument that it would offend LPP by disclosing her client’s identity originated from the prosecution.  It was based on a misapprehension of Mr Wong’s case.  The transcript of the application made on 24 and 25 January 2006 shows that it was not Mr Wong’s case that LPP prevented disclosure of the identity of Ms Mak’s client.  His failure to hand up the passage in Blackstone saying that a client’s identity is not privileged, was therefore not an attempt to conceal an authority against an argument he was running.

98.  Stock VP accurately summarises what occurred at the hearing and nowhere records that Mr Wong was seeking to argue that the intended evidence should be excluded as privileged information about the identity of Ms Mak’s client.[111] On the contrary, Mr Wong tendered the bill of costs and asserted that ECT and its officers were Ms Mak’s clients.  As Stock VP notes, the identity of the client point arose when:

“Counsel for the prosecution referred to authority the effect of which was that the identity of the client was not privileged”.[112]

99.  On the first day, 24 January, the initial thrust of Mr Wong’s argument (which was not easy to follow) was that a breach of LPP was likely if Ms Mak were to testify because she would necessarily go beyond merely identifying the person who signed the deed and would stray into privileged territory.  His submission was that:

“At the time of the execution, attending a preparation of the deed, there would be discussion, there would be advice, explanation between [Ms Mak] and the client. And those information ... is privileged.”[113]

100.  Prosecution counsel, Mr H L Wong, was at pains to assure the Court that he had no intention of asking Ms Mak about any communications between herself and Ms Lau.  He submitted that asking Ms Mak whether and how she had verified Ms Lau’s identity; whether she had witnessed Ms Lau’s signing of the document; and whether she had caused the document to be registered in a public registry did not come within the scope of the privilege. 

101.  Mr Wong, then sought to argue that the privilege would be infringed because the document’s execution was somehow intrinsically bound up with supposedly privileged communications:

“... The whole occasion of attending the office of the solicitor is in order to have the advice and then execution of document. One cannot dissect that occasion in different pieces.”[114]

102.  The Judge asked for citation of authority and adjourned his ruling to the following day, 25 January 2006.  When the hearing resumed, Mr Wong cited the China National Petroleum case and the extract from Phipson which Mr Ngai had previously mentioned,[115] for the proposition that privilege attaches “not merely to ... what was said in the interview but also to the identity of the witness”.  That authority was, of course, irrelevant since, as Mr H L Wong submitted, it was a case about litigation privilege concerning the identity of a witness being proofed by a solicitor preparing a litigation brief, where different considerations apply.[116] However, it was not a case about privilege and the identity of a client.  Mr Wong was trying to rely on that decision in support of his argument that a person’s identity could not be severed from privileged communications which had taken place with that person, repeating what he had endeavoured to argue on the previous day:

“Now, my understanding of the reason behind this judgment covering the confidentiality of the identity of the person, is that this arising out of same matter, ie, during the course of taking proof of evidence, it would be artificial to try to sever this into this part is not proof read, this part is proof read. ... Our submission is, if it is arising out of the same matter, ie, the advice, preparation and execution of the deed, then it must be treated part and parcel of the same matter, ie, the previous communication at that time – under the law at that time …”

103.  It was only on the second day, 25 January, that privilege and the client’s identity was first mentioned.  Prosecution counsel, Mr H L Wong, read out a passage in Archbold stating that the identity of a client is not privileged.  Mr Wong did not make any submissions in reply to that point.  It had been on 24 January, before the client identity point was even mentioned, that Mr Wong had handed up the truncated extract from Blackstone. 

104.  The Judge ruled against Mr Wong’s application and permitted the prosecution to proceed with calling Ms Mak for the limited purposes indicated.

105.  When Mr Wong came to be cross-examined by Ms Draycott at the trial in the present case, he tried to explain the submissions he made at Ms Lau’s trial along the lines indicated above:

“... what I believed at that time is the communication that is the subject-matter of privilege and anything arose out of that could be covered by legal professional privilege, not simply the content of the communication.”[117]

106.  There was the following exchange:

“Q: Can you explain why you limited your extract of Blackstone simply to that single page?

A: Looking at the transcript, what I remember what happened was that I relied on the general principle. That’s why I did not put forward the other pages ...”[118]

107.  Mr Wong appears to have been saying (with justification) that he did not think the matters dealt with in the subsequent pages were relevant to his argument.  The prosecution however pressed its view of what had happened:

“Q: I suggest you were putting forward an incomplete and misleading picture.

A: I disagree.

Q: You knew perfectly well when you read out what you call the ‘general principle’ that there were exceptions and real issues in what you were saying, didn’t you?

A: There has always been exceptions, right? Yes.

Q: You chose not to bring those to the court’s attention and to limit the material you put in, even though on the very next page the answer to the question the judge was asking was shown.

A: I disagree.

Q: And that was why you have been trying to get [Ms Mak] either not to come to court or to claim privilege or not to give evidence because you knew if it was argued in court you were bound to lose.

A:   I disagree.”

108.  In closing, , Ms Draycott submitted that the subsequent page in Blackstone had deliberately been withheld:

“... we have copied the chapter of Blackstone on privilege into your bundle … and even the most cursory reading of it shows that the identity of a client is not covered by privilege. I invite you to read that and imagine yourself, as a lawyer, being paid to do your best for somebody and ask yourself, ‘Could I have missed that?’ and the answer is of course you couldn’t.”[119]

109.  The suggestion that Mr Wong had deliberately misled the Court, knowing full well that his privilege argument was untenable was a grave allegation and, having carried significant weight with the Courts below, must have materially coloured their view of Mr Wong’s motives and conduct.  It was, as appears from the foregoing, an unjustified misapprehension on the prosecution’s part.

E.2d Lack of confidentiality

110.  I turn to deal briefly with Stock VP’s third reason which is expressed as follows:

“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.”[120]

111.  As Lord Taylor of Gosforth explained in R (ex p B) v Derby Magistrates’ Court,[121] LPP protects confidentialcommunications between a person and his legal advisers:

“The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent.”

112.  It follows that a communication which is not made in confidence is not protected.  As Lord Scott of Foscote stated in the Three Rivers case:[122]

“... legal advice privilege arises out of a relationship of confidence between lawyer and client. Unless the communication or document for which privilege is sought is a confidential one, there can be no question of legal advice privilege arising. The confidential character of the communication or document is not by itself enough to enable privilege to be claimed but is an essential requirement.”

113.  In the present case, there is nothing to suggest that anyone asked Ms Mak to keep the identity of Ms Lau as signatory of the deed confidential.  The deed created a fixed and floating charge on ECT’s property and undertaking and it was clear, as stated in the bill of costs, that it was going to be registered in the Companies Registry and thus made a public document.  The deed named Ms Lau as the person who signed it and stated that she had signed in the presence of a named solicitor who also signed as a witness.  The evidence was that a member of the bank’s staff had accompanied Ms Lau to Ms Mak’s office to sign the deed.  Ms Lau was asked for her identification document to enable Ms Mak to verify her identity, which Ms Lau evidently provided.  And Ms Mak duly signed as witness to Ms Lau’s act of signing in Ms Mak’s presence, without anything arising to suggest that the identity of Ms Lau should be kept confidential.  On the contrary, it must have been self-evident to everyone that a person asked to sign as a witness may later be asked to confirm the identity of the signatory.

114.  Ms Clare Montgomery QC submitted on Mr Wong’s behalf that Stock VP should be understood as saying that confidentiality could not be maintained because it was a transaction involving the bank which necessarily knew and wished to be assured of the signatory’s identity.  Her submission was that this was erroneous since the effect of such an arrangement was that while the information was not confidential or privileged as between ECT and the bank, it was confidential and privileged against the rest of the world, with the solicitor remaining obliged to protect the privilege unless it was waived by both ECT and the bank.[123] I do not read Stock VP’s judgment as being so limited.  The point is simply that there was nothing to show that Ms Lau’s identity as signatory was confidential.

E.2e Not legal advice

115.  Returning to Stock VP’s first reason, in the Three Rivers case, Lord Scott suggested as a test for determining “whether the seeking of advice from or the giving of advice by lawyers does or does not take place in a relevant legal context so as to attract legal advice privilege” asking:

“... 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 not, then, in my opinion, legal advice privilege would not apply. ...”

116.  As indicated above, I agree with the Court of Appeal that Ms Mak’s intended evidence was not covered by LPP.  Evidence that Ms Lau’s identity was verified and that she had signed the deed in Ms Mak’s presence does not touch on the obtaining or giving of legal advice as to anyone’s rights, liabilities, obligations or remedies.  As Fulford J stated in R (Miller Gardner Solicitors) v Minshull St Crown Court:[124]

“…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. ...”

F.     Whether Mr Wong may genuinely have believed that LPP existed

117.  As noted above, the Judge found that Mr Wong had “little or no belief in the actual existence of legal professional privilege”, pointing to his having been “alerted to the problems by your fellow counsel and the exceptions referred to in Blackstone”.  I have dealt with the Blackstone extract.  It is with respect difficult to see any basis for suggesting that Mr Wong had been “alerted to the problems” by his fellow counsel.   All that Mr Ngai had done was to cite an irrelevant case while expressing doubts as to its applicability.[125]  There is no evidence that either Mr Ngai or Mr Tse had ever pointed out the real difficulties with the LPP argument.

118.  Stock VP was uneasy about the Judge’s finding of lack of belief mainly because of the Note and Further Note written by Mr Wong containing his opinion that there was a privilege point to be taken or at least to be further explored. His Lordship decided that Mr Wong should receive the benefit of the doubt.  I respectfully share that view.

119.  The evidence provides a good picture of how the idea of an LPP claim developed.  It will be recalled that having raised the LPP idea in his original Note, Mr Wong asked, in his Further Note dated 1 November 2006 for instructions from Ms Lau as to “the exact circumstances she was under (ie the communication between she and [Ms Mak]) leading to her signing [the deed]”.  That resulted in him being shown the bill of costs which he evidently considered a breakthrough.  This passage is from his re-examination:

“Q: .... Try and tell us, if you can, when you first were given a copy of the fee note.

A: Yes, that would be to the best of my memory a few days before the sending out or the drafting of the letter on 24 November.

Q: So way after the notes that were passing between counsel.

A: Yes, yes. It’s never mentioned in the notes there was a bill of costs.

Q: What difference, if any, to the strength of your LPP argument did the revelation of the fee note make?

A: That would. Substantially, I believe. It’s not simply an assertion by [Ms Lau] which she might have to substantiate by giving evidence on a voir dire, but that would be documentary evidence which I believe [Ms Mak] will accept as a genuine fee note from her firm.

Q: Can you remember how the news of the discovery of this fee note was greeted by you[r] team of counsel?

A: I remember that everybody was thrilled about the production of a fee note by [Ms Lau].

Q: Did it in your view increase or decrease the chances of you mounting a reasonable argument?

A: Increase. Substantially increase.”[126]

120.  It appears that, buoyed by discovery of the bill of costs, little thought was given as to whether the intended evidence itself was covered by LPP.  As we have seen, in his evidence, Mr Wong adhered to an incoherent theory that there must have been prior privileged communications between Ms Mak and Ms Lau and that the execution of the deed, including the identity of the person signing, was somehow inextricably bound up with those supposedly privileged communications.

121.  There can be no doubt that Mr Wong’s level of competence as a lawyer was low.  In particular, he had a poor grasp of LPP as a legal doctrine.[127] In cross-examination, Mr Wong stated that he could see no difference between confidentiality and LPP and thought that a court could override them both:

“Q: No, this is confidentiality not LPP?

A: Well I see no difference.

...

Q: No, LPP is different, isn’t it, because LPP the court cannot order that the matters be disclosed if they are coved by privilege, confidentiality the court can, that’s the difference, isn’t it?

A: Well I don’t think so, I don’t think so.”

....

Q: .... there are two things there, confidentiality and privilege, they’re different?

A:   Yes, yes different but the effect of a court order is the same.  The court, the order can override the privilege as well as the confidentiality, that’s my understanding.”[128]

122.  Mr Clive Grossman SC, called as a character witness for Mr Wong described him as “a man of integrity who worked hard for his client, but ... not of the highest intellect.”[129] Another character witness, Mr Philip Dykes SC said he was “a man of integrity whose style was enthusiastic and combative” adding that “he had spoken to [Mr Wong] on occasion and advised [him] to moderate [his] approach”.[130] 

123.  Stock VP pointed out that:

“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.”[131]

124.  His Lordship continued:

“...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.”[132]

125.  The opinion of Mr Dykes SC that Mr Wong was “a competent lawyer, well able to look up the law”[133] does not appear to be borne out by the evidence.  Mr Wong does not appear to have done more than look at Blackstone and, when asked by the Judge to produce authority overnight, only managed to re-cycle the case which had been mentioned, with reservations, by Mr Ngai in an earlier note. 

126.  The picture that emerges is therefore of a barrister of low competence with a poor understanding of the relevant concepts; doing no effective research; “thrilled” to have discovered the bill of costs, which was regarded as a justification for pursuing the LPP argument; coupled with an aggressive tenacity reflected in the three letters sent to Ms Mak – an unedifying vision, but distinctly more plausible, in my view, than the prosecution’s theory of a barrister well aware of the law but cynically using LPP as a pretext for what in truth was what the Judge had called “a threat simpliciter” aimed at deflecting Ms Mak from her duty.

127.  I pause here to mention an argument advanced by Ms Montgomery QC concerning LPP as it affected Mr Wong’s defence.  As we have seen,[134] before commencement of the trial in the present case, Mr Wong’s solicitors wrote to Ms Lau asking whether she would waive privilege regarding privileged communications made in the course of Mr Wong acting for her and no waiver was forthcoming.

128.  In such circumstances, Ms Montgomery prayed in aid Medcalf v Mardell,[135]applied in Yau Chiu Wah v Gold Chief Investment Ltd,[136] for the proposition that:

“...in the absence of the full facts due to the lay client's refusal to waive privilege, the Court is not entitled to speculate and infer that there could not have been any material upon which the legal representatives could have been justified in taking their course of action, that the benefit of the doubt has to accrue to the legal advisers and that ‘only rarely will the court be able to make “full allowance” for the inability of the practitioner to tell the whole story or to conclude that there is no room for doubt.’: [Medcalf v Mardell ] at 135D-136B.”[137]

129.  I do not consider that principle applicable in the present case.  True it is that Ms Lau has not waived her privilege.  But it is perfectly clear that Mr Wong did not feel in any way constrained by the absence of his client’s waiver.  He did not hesitate to disclose, directly and indirectly, the instructions sought and received, the discussions with his legal team and the advice which he rendered.  He was not stopped by the Judge. Whether or not his disclosures put him in breach of his duties to his client, he certainly has no basis for complaining that the non-waiver of privilege has somehow constricted his defence.  It is tempting to regard Mr Wong’s apparently cavalier approach to his own LPP obligations as another manifestation of his lack of understanding of what LPP involves.

G.     The purpose of Mr Wong’s threats

130.  The evolution of the prosecution’s case regarding Mr Wong’s purpose in sending the threatening letters has been traced in Section D.3 above.  It is not surprising that the initial allegation that his object was to get Ms Mak not to come to court was effectively abandoned and replaced for all practical purposes by the allegation that his objective was to get her to raise an LPP objection in an application to the Court since this would improve the chances of success.

131.  The original allegation was unsustainable.  As we have seen, the decision to write the letters evidently hinged on discovery of the bill of costs a few days before the 1st Letter was sent.  By that time, the trial had been going for perhaps a week.  Mr Wong’s evidence was that he believed that a witness summons would already have been served on Ms Mak, his experience being that such summonses are usually served a month to six weeks before a trial.[138]

132.  Upon receiving the 1st and 2nd Letters, Ms Mak’s response was to point to the witness summons and to say:

“... 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.”[139]

133.  Mr Wong testified in chief that he did not ask for a copy of the summons:

“... because I had no doubt that the summons would have been served so – and I’ve no doubt about [Ms Mak’s] explanation that she had the summons to obey, I have no doubt that she must be telling the truth for that and also in the penultimate paragraph, my understanding is that [Ms Mak] is inviting us to maybe to voice out our complaint or our allegation in court ....”[140]

134.  The following exchanges are also from Mr Wong’s examination in chief:

“Q: .... when you drafted and caused to be sent out the letter of 24 November, what do you think [Ms Mak] might do?

A: .... knowing that she was a solicitor, she might, I think she most likely will inform the prosecution about receiving the letter and most probably she would invite the view of the prosecution as to whether she would have to testify and of course she as a lawyer may form her own view whether she would be breaching the [LPP].”

...

Q: Was it your intention to try to stop her from going to court?

A: No, well my understanding of the purpose of the witness summons the same as [Ms Lau] that she’s obliged as per the law to attend court.”[141]

....

“Q: When you wrote those letters to [Ms Mak], ... who did you think would be the final judge or arbiter of whether or not [LPP] was the subject of a proper claim?

A: As always is the trial judge.

...

Q: Did you ever intend, as is suggested in the charge, that [Ms Mak] should not go to court to testify?

A: No.”[142]

135.  Mr Wong gave the same evidence in cross-examination:

“Q: So how can you explain what you did, except in terms of an attempt to dissuade her from coming to court. That’s what it was, wasn’t it? It was an attempt to dissuade her from coming to court.

A: I disagree. ... I never attempted to persuade her not to come to court. My understanding of what likely would happen is: if she accepted our view on the LPP, she would still have to attend court to explain why she’s not able to testify. She has already been issued, according to her, well as far as to my understanding, the witness summons. She had no choice. I think she also made it clear in her reply that she had to attend court. I am referring, your Honour, to her letter of 30 November ...”[143]

136.  Unlike the Court of Appeal, I consider the prosecution’s change of case and the evidence underlying that change to be crucial to the finding of a prohibited tendency and thus to the outcome of this appeal. 

H.    Whether it was conduct with the prohibited tendency

H.1   The Judge’s decision

137.  As discussed in Section D.4 above, the Court of Appeal rejected the three grounds upon which the Judge founded his conclusion that Mr Wong’s conduct had the tendency to pervert the course of justice. Those grounds were (i) Mr Wong’s approach to a prosecution witness per se; (ii) his failure to inform the prosecution; and (iii) his failure himself to raise the issue with the Judge at the criminal trial.   I respectfully agree that for the reasons given by Stock VP,[144] the Judge’s conclusions could not stand.

138.  As to point (iii), I would add that I do not agree with the Judge’s view that in relation to the privilege claim “the parties must perforce be the prosecution and the defence; not defence and a prosecution witness” and that it was therefore improper to have communicated with Ms Mak.  The “parties” to a legal advice privilege claim are the client and the solicitor.  On the basis of what Mr Wong may genuinely have believed, the parties were ECT and Ms Mak, hence the debate in the impugned letters about who should make the application.  Of course, given that Ms Mak was (as she had pointed out) bound to obey the witness summons, a challenge to her giving evidence on LPP grounds would inevitably have had to be brought at some point before the Court which had issued the summons.  But that is not a reason for finding that communication between Mr Wong acting for ECT and Ms Mak was improper because “the parties must perforce be the prosecution and the defence”.

H.2   The Court of Appeal’s decision

139.  The critical question for the outcome of this appeal is whether the Court of Appeal’s substituted basis (set out in paragraphs 74, 168 and 169 of its judgment) for deciding that Mr Wong’s conduct had the prohibited tendency is correct.  The basis contended for by the respondent overlaps with and is comprehended within the Court of Appeal’s substituted basis and can be dealt with simultaneously.  It is appropriate to begin with paragraph 74, read together with paragraph 73.

H.2a The substituted basis as put in paragraph 74

140.  In paragraph 73, Stock VP cites the following passage from the joint judgment of Brennan and Toohey JJ in R v Rogerson:[145]

“The course of justice consists in the due exercise by a court ... 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 ... to do justice. The ways in which a court ... 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..., 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.”

141.  His Lordship states at paragraph 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. ”

The analysis was further developed in paragraphs 168 and 169, but it is instructive to begin by taking paragraph 74 on its face.

142.  The first two sentences in the abovementioned citation from Rogerson are important.  For conduct to have a tendency to pervert the course of justice, it must be conduct which tends to cause a miscarriage of justice, in other words, a tendency towards “impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice”.[146] And it must involve a tendency to cause a miscarriage of justice in curial proceedings.  In their Honours’ words, it must tend to interfere with “the due exercise by a court ... 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”.  Conduct with a tendency to cause unlawfulness outside of curial proceedings does not constitute the offence.[147]

143.  In the second part of the Rogerson citation, Brennan and Toohey JJ gave as examples of interference with the due administration of justice:

“...erosion of the integrity of the court ..., 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.”

144.  With respect, I do not accept Stock VP’s suggestion that “It must also follow” from the passage cited 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”.  Where an application is made to the Court, it is determined by the Court “in the due exercise ... 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.” 

145.  Conduct “deflecting applications that would be made to [the court]” aims to prevent the Court from exercising such jurisdiction and so may deny the would-be applicant justice.  That is why it may rank as a perversion of the course of justice.  But causing an application to be made to and duly determined by the Court plainly does not have the same effect.  The Court’s capacity to do justice is not in any way impaired.  Pressure on the intended applicant to bring the application may be a troubling nuisance to the person subjected to that pressure.  It may even, in some circumstances, involve a form of unlawful intimidation.  But such pressure does not interfere with the capacity of the Court to administer justice in the curial proceedings.

146.  Stock VP refers in paragraph 74 to R v Taffs,[148] for the proposition that legal proceedings, once in motion should be permitted “to flow unobstructed and undiverted… justice should be administered in the way which is ordinarily pursued”.  Taffs was however a case of a wholly different character.  A barrister and solicitor instructed to defend a person charged with robbing a boy at knifepoint threatened the boy’s mother, saying that if the boy persisted in giving his evidence, he would, amongst other things, “mince the boy up in Court tomorrow”, “crucify him”; and cause him to be “publicly humiliated as a liar and a homosexual”.  It was thus a case where the defendant was seeking to obstruct justice by dissuading a witness from coming to testify before the Court.

147.  The defendant in Taffs claimed that he made those threats because he genuinely believed that the boy’s intended evidence was false.  That was held to be no excuse, Cooke P pointing out 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.”[149]

148.  In the present case, as the prosecution belatedly accepted, there was no intention to dissuade Ms Mak from coming to court or to disobey the witness summons.  Neither did anyone suggest that if she were to testify, she should not tell the truth or should mislead the Court. Nor did anyone suggest that she should conceal the fact that a demand had been made that she take an LPP objection.  Mr Wong testified that he expected Ms Mak to inform the prosecution which would obviously be able to resist the application if it saw fit.  Mr Wong’s purpose was to get Ms Mak to raise the LPP objection with the Court and he acknowledged that it was the Court which would be the final arbiter of whether the objection was valid.  This case therefore did not pose a risk of allowing a lawyer to arrogate to himself instead of the Court responsibility of judging whether the privilege objection was good.  If, on hearing the application, the Court had upheld the privilege, it would have been deprived of Ms Mak’s evidence by virtue of the law of privilege and not because the course of justice had been perverted.

H.2b How the respondent puts its case for the prohibited tendency

149.  Before going on to consider paragraphs 168 and 169 in the Court of Appeal’s judgment, it is convenient to consider the way that the respondent puts its case on the prohibited tendency.

150.  Mr Jonathan Caplan QC encapsulated the respondent’s case concisely, submitting that the letters possessed the prohibited tendency because of the pressure engendered by their “timing, tone, purpose and content”.  He argued that:

“Even if the Appellant sought to pursue a legitimate aim by an appropriate avenue it did not entitle him to write a series of letters which by their tone, timing, enclosures and threatening content brought improper pressure to bear upon the witness.”[150]

151.  Such pressure, he submitted, was exerted to compel Ms Mak to make a setting aside application which she did not believe in:

“... the prosecution case was based on the content of the letters, their timing, and the fact that the Appellant intended thereby to pressure the witness to claim privilege and set aside her witness summons when she had no belief in such a course of action...”[151]

152.  It will be apparent that this line of argument suffers from the deficiency identified above in the discussion of paragraph 74 of the Court of Appeal’s judgment.  The timing, tone, purpose and content of the impugned letters and the pressure they exerted do not constitute the offence unless they had a tendency to impair the capacity of the Court to administer justice in the case.  Pressure directed at compelling Ms Mak to place the privilege point before the Court for its ruling does not have that tendency.

H.2c The substituted basis developed in paragraphs168 and 169

153.  Stock VP acknowledged the aforesaid argument which he encapsulated as follows:

“...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.”[152]

154.  His Lordship, however, thought it was “off the mark”, stating:

“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.”[153]

155.  The point was elaborated in paragraphs168 and 169 as follows:

“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.”

156.  It was by means of this argument that the Court of Appeal sought to enhance and transform the impact of the letters.  From the letters having a tendency limited to placing unwelcome but non-curial pressure on Ms Mak to make an application, the argument seeks to translate the pressure into conduct having a tendency to impair the Court’s capacity to do justice within the curial proceedings.  It seeks to achieve this by postulating what, with respect, seem to be some highly artificial reactions on Ms Mak’s part to the demands made in the letters. 

157.  The argument postulates first, that the letters had the tendency “… to force the presentation of an application as if it were voluntarily made”.  The suggestion is therefore that the pressure was likely to result in the Court being given a misleading impression.  However, I am with respect unable to see why the pressure should be thought by Mr Wong or anyone else to be likely to have that result.  Ms Mak had made her unwillingness to make the application clear in her responses to the 1st and 2nd Letters.  She had insisted that it was up to Ms Lau’s lawyers to make the application if they thought fit.  There was no reason to think that her attitude would change so that she would present herself to the Court as voluntarily making the application.  We know that she had in fact complained about the letters to the police and to prosecuting counsel and that as soon as she entered the witness-box, she complained to the trial Judge about having received the letters, saying that she was troubled by their contents and by the complaints made to the Law Society against her integrity. Prosecution counsel made submissions condemning the conduct complained of and, as is obvious, it led to proceedings being instituted against Mr Wong.

158.  The Court of Appeal’s substituted argument next postulates that Ms Mak would have been forced “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”.  This is, with respect, a somewhat loaded way of saying she would have been “forced to assert LPP which she does not believe in”.  The expression “no material evidence” comes from section 34(2) of the Criminal Procedure Ordinance which enables a person served with a witness summons to apply for its discharge by satisfying the court “that he cannot give any material evidence or, as the case may be, produce any document or thing likely to be of material evidence”. In the 2nd Letter, Mr Wong had suggested to Ms Mak that section 34(2) made her the appropriate person to make the application and that in so doing, she would be claiming that since her proposed evidence was privileged, she would have no material evidence to give, satisfying the requirements of the section.

159.  So formulated, this second postulation takes the case no further than the proposition contained in paragraph 74 discussed above.  Difficulty with the realism of the second scenario depicted also arises. It seeks once again to suggest that the course of justice would be perverted because the letters would have the effect of giving the Court a false impression because it envisages Ms Mak acting as an advocate of the privilege objection, contrary to her own beliefs.  For the reasons stated above, there is no reason to assume that Ms Mak would fall into line with Mr Wong’s views on privilege rather than make it clear that she had been pressured to make the application against her own better judgment.

160.  Thirdly, the Court of Appeal postulates that the course of justice was likely to be perverted since a claim of privilege advanced by a solicitor “is likely to carry considerable weight; more weight on its face than if the claim were made by the client”.  That again presupposes that Ms Mak would supinely present the appearance of believing in the application rather than complain about having been pressured to make an application that she does not believe in.  The latter course was far more likely and upon such a complaint being made, the application’s chances of success would, if anything, be likely to have been diminished.

161.  Quite apart from the factual implausibility of the Court of Appeal’s substituted basis, it contains, in my view, an assumption that is in principle inappropriate in a case like the present.  An essential aspect of the prohibited tendency as found by the Court of Appeal involves deprivation of the witness’s freedom to choose to give the intended evidence.

162.  It is true that in Egan, after citing R v Meissner[154] which saw the prohibited tendency in that case as a tendency to “prevent the accused from making a free and voluntary choice concerning his or her plea to the charge”, I stated:

“That was a case involving pressure on an accused person to plead guilty, but 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.”[155]

163.  That approach necessarily can only apply where the witness enjoys a free choice of whether or not to give evidence.  I agree with Ms Montgomery that the “free choice” or “free will” test cannot appropriately be used as an indicator of the prohibited tendency where there is, or the defendant believes that there is, a bona fide arguable claim that the witness is under a legal duty by virtue of LPP not to give the proposed evidence.  Ms Montgomery puts the point as follows:

“A witness (particularly a legal professional) who is bound by LPP is both legally and professionally required to assert that privilege and should not proceed according to his preference, this is an intrinsic legal consequence of LPP enforcement. The expert witness in Protec Pacific[156] was clearly unhappy with the letters before action and the proceedings against him, they were clearly ‘intended to undermine [his] free will and choice’ as to how to proceed, but the proceedings were a legitimate means of enforcing a right to confidence and could not give rise to a criminal perversion of the course of justice. In this regard, the Court of Appeal erred in concluding that conduct pertaining to the enforcement of LPP which seeks to compel a witness to comply with her duty, is unlawful and improper unless the conduct consists only of advice, persuasion or a court order [CA§168].”[157]

164.  For the foregoing reasons, I respectfully disagree with the Court of Appeal’s view that, on their substituted basis, the threats made in the letters constitute improper means with the prohibited tendency.  In my judgment, the threats (both of civil proceedings and a complaint to the Law Society) made with the intention of compelling Ms Mak to raise LPP as a ground for not giving the intended evidence did not have the prohibited tendency and were incapable of constituting the actus reus of the offence. 

165.  In the light of my conclusions and the general acceptance that Mr Wong’s purpose was to press Ms Mak to make a court application, the question of mens rea requires no further discussion. 

Conclusions

166.  I have accordingly reached the following conclusions:

(a)   There was ample basis for Mr Wong to believe that an implied retainer had arisen between Ms Mak and ECT.

(b)   While there was no objective basis for holding that the intended evidence was covered by LPP, the evidence justified the Court of Appeal in reversing the Judge and giving Mr Wong the benefit of the doubt as to his belief in the existence of LPP.

(c)    Acting with such belief, he caused the threatening letters to be sent for the purpose of pressuring Ms Mak to raise the LPP claim by making an application to the Court.

(d)   Applying pressure for that purpose did not constitute conduct with a tendency to interfere with the trial Court’s capacity to administer justice and therefore did not have the prohibited tendency.

(e)    I agree with the Court of Appeal’s reasons for reversing the Judge’s finding of a prohibited tendency but do not accept its substituted basis for such finding.

(f)     Likewise, I do not accept the respondent’s case on the prohibited tendency. 

167.  I would therefore allow the appeal and quash Mr Wong’s conviction.  I would also direct that any submissions as to costs be lodged with the Registrar in writing within 14 days from the date of this judgment.

Postscript

168.  Before leaving this judgment, it is worthwhile re-iterating what I said in Egan about approaching witnesses or potential witnesses:

“... 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.”[158]

169.  As the Court of Appeal pointed out:  “The guidance provided by the Law Society of Hong Kong ... 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.’”

170.  That is sound advice.  Even if, as the Court of Appeal and I have held, there is no legal requirement that the other side be informed of an approach made to a witness or potential Wong, an unannounced approach to the other side’s witnesses in an adversarial system is bound to arouse suspicion.  Not having been given notice of the approach and not being aware of what was said to the witness, concern may naturally arise as to whether some form of impropriety could have been involved. 

171.  Mr Wong has had occasion repeatedly to acknowledge that it would have been far better for him to have informed the prosecution of his LPP concerns and to have told them that he had written to Ms Mak on behalf of ECT to get her to assert the privilege which he believed existed in ECT’s favour.  Not having taken such elementary precautions, Mr Wong found himself, over a period of some four years, having to cope with serious criminal charges carrying potentially disastrous professional consequences and having guilty verdicts entered against him in two courts.  This judgment should therefore certainly not be taken as encouragement for practitioners to adopt the kind of course followed by Mr Wong.

Mr Justice Tang PJ:

172.  I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Mortimer NPJ:

173.  For the reasons given by Mr Justice Ribeiro PJ, I also would allow this appeal and quash the appellant’s conviction for attempting to pervert the course of justice.

Sir Thomas Gault NPJ:

174.  I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Chan PJ:

175.  The Court unanimously allows the appeal and quashes Mr Wong’s conviction.  We direct that costs should be dealt with as set out in paragraph 167 of this judgment.