WONG KAM KUEN, CATHERINE v. THE BAR COUNCIL

CACV 174/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 174 OF 2014

(ON APPEAL FROM THE ORDER OF THE BARRISTERS
DISCIPLINARY TRIBUNAL OF THE HONG KONG SPECIAL
ADMINISTRATIVE REGION MADE ON 25 JULY 2014)

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JUDGMENT

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Hon Macrae JA:

1.  On 25 July 2014, consequent upon its earlier finding of professional misconduct by the appellant, the Barrister’s Disciplinary Tribunal (“the Tribunal”) ordered inter alia that the appellant be suspended from practice as a barrister in Hong Kong for a period of one month and that she should pay the costs of the enquiry on an indemnity basis. The Order was at the same time stayed pending determination of any appeal.

2.  On 3 June 2015, after hearing the parties, we allowed the appellant’s appeal against the finding of the Tribunal and set aside the Order made consequent upon that finding.  We indicated that we would hand down the reasons for our decision in due course.  This we now do.

The complaint

3.  The appellant was alleged to have breached paragraph 6(d) of the Code of Conduct of the Bar of the Hong Kong Special Administrative Region, between about 28 April and June 2008, by not acting with competence in her preparation and conduct of the defence of her client, Madam Lau Sau Yu (“D4”), in District Court Case No DCCC 1008 and 1009 of 2007, in connection with a witness statement made by Law Kar Po (“Law”) dated 4 January 2007, in that:

“(i) Upon Shih Wing Ching (PW10) (“Shih”) having given evidence at trial, she failed to properly advise Lau and her representing solicitors again or at all as to the potential impact of the contents of Law’s witness statement and further the potential benefit to the case for Lau had Law been called in the trial of Lau. More particularly, she failed to properly advise that such evidence was relevant to an element of the charge levelled against Lau and potentially exculpatory because such evidence had it been called either tended to disprove and/or rebut the prosecution case that the estate agent the subject of the charge had no permission to accept advantages or tended to prove and/or support the defence case that the estate agent the subject of the charge had permission to accept advantages; and

(ii) Absent clear and unequivocal instructions from Lau not to call and/or seek to adduce evidence from Law in accordance with his statement in light of Shih’s testimony, she failed to take appropriate steps or at all to adduce such evidence.

By reasons thereof, Wong Kam Kuen, Catherine (also known as Catherine KK Wong) was flagrantly negligent in the conduct of the defence of Lau, which negligence resulted in Law not getting a fair trial.”

4.  In examining the question of whether this complaint was made out, it is necessary to understand the somewhat complicated history of the proceedings which led to the complaint being made.

The history of the complaint

The trial in the District Court

5.  There were originally six defendants before the District Court (whom we shall refer to by their designations at that trial) on a consolidated Charge Sheet DCCC 1008 and 1009 of 2007 alleging a total of 11 charges.  D1 pleaded guilty to some of the charges and no evidence was offered against D6.  The remaining four defendants (D2 - D5) were tried by HH Judge Albert Wong (as he then was) in the period cited in the complaint.  D4 was Madam Lau, the appellant’s lay client.  Relevant for present purposes were two charges (Charges 7 and 10), each of which alleged a conspiracy to defraud: Charge 7 against D1, D3 and D5; Charge 10 against D3 and D4.  D1 had pleaded guilty to Charge 7, while D3 and D5 were subsequently found guilty after trial on Charge 7.  Both D3 and D4 were also found guilty after trial on Charge 10.

6.  Both Charge 7 and Charge 10 were particularised in a similar way, although each was concerned with a different property transaction in a different year.  However, the essence of each charge was the same, namely an allegation that the named conspirators had conspired to defraud Centaline Property Agency Limited (“Centaline”), by dishonestly falsely representing to Centaline that a particular named company was entitled to a referral fee in respect of a specified property transaction, thereby causing Centaline to pay a referral fee in a particular amount to the particular named company.  The prosecution case, and this was not in dispute at trial, was that the particular named company had in fact provided no referral services whatsoever in relation to the respective transaction.

7.  The identities of the property transaction and the referral company in Charge 7 are not relevant to this appeal.  All that is relevant to note is that D3 was charged in respect of both Charge 7 and Charge 10; and that D1, who pleaded guilty to Charge 7, although not named as a conspirator on Charge 10, was, together with D3 and Tong Po-wah, one of the signatories to the cheque requisition payment form approving payment of the referral fee to the purported referral company in both charges.

8.  The particulars of Charge 10 were averred in the following terms:

“Poon Chi-ming (D3) and Lau Sau-yu (D4), between 8 March 2006 and 22 March 2006, in Hong Kong, conspired together with Tong Po-wah, Albert and Hui Chi-sing to defraud Centaline Property Agency Limited (“Centaline”), by dishonestly falsely representing to Centaline that Tommy Electric Company (“Tommy Electric”) was entitled to a referral fee in a property transaction, namely the purchase of The Aegean, Tsing Fat Street, Castle Peak Road, Tuen Mun, New Territories, and thereby causing the Centaline to pay a referral fee in the sum of $331,707 Hong Kong currency to Tommy Electric.”

Tong Po-wah (“Tong”) was a senior employee of Centaline, whereas Hui Chi-sing (“Hui”) was the owner of Tommy Electric.  They were the first two prosecution witnesses at the trial.  In simple terms, the prosecution alleged that Tommy Electric was not entitled to a referral fee, since it had had nothing whatever to do with any referral concerning the purchase of The Aegean, yet false documents purporting to show that it was entitled to a referral fee were produced to Centaline, thus causing Centaline to make the payment specified to the company.

9.  The facts giving rise to the allegation in Charge 10 were that Centaline acted as agent for both the vendor and purchaser of The Aegean.  One Elvis Wong was employed by and acted on behalf of the purchaser, General Best Limited (“General Best”).  At the request of Tong, D4’s then boyfriend, D4 arranged for Tommy Electric, a company belonging to her former boyfriend Hui, to be used to route a rebate of part of the purchaser’s commission back to Elvis Wong.  Hui accordingly gave the business registration certificate of Tommy Electric to D4 and she duly passed it on to Tong, whereupon Tong, D1 and D3 on behalf of Centaline duly authorised a payment of $331,707 to Tommy Electric.  Tong deposited a cheque for $331,707 in Tommy Electric’s bank account.  Hui subsequently transferred two sums, $298,550 and $33,000 (totalling $331,550), to D4’s bank account.  She then withdrew $10,785 in cash and gave it to Tong, while at the same time transferring a further $276,980 (totalling altogether $287,765) to Tong’s bank account.  Tong subsequently withdrew $288,000 from his account and, together with D3, passed the money on to Elvis Wong.  D4 was at all times fully aware that Tommy Electric had had nothing to do with referring any business to Centaline.

10.  The prosecution case, therefore, was that by this convoluted method of channelling funds, and by the use of false documentation purporting to show that Tommy Electric was owed a referral fee when in truth it had had nothing to do with the transaction, Centaline was dishonestly caused to make a payment in reliance upon a representation which it believed to be true when in fact it was false, thus placing its economic interests at risk.  In his concluding findings in the District Court trial in respect of D4’s case on Charge 10, the judge found as follows (in translation):

“In my view, there is sufficient evidence in the case that proves D4 conspired with PW1 (Tong) and D3 to make a false representation dishonestly to Centaline, and the purpose of such was to cause Centaline to believe that it was true and hence pay Tommy Electric the referral fee. It was impossible for D4 to have not known their act would put the economic interests of Centaline at risk. She had the sufficient criminal intent to effect the conspiracy to defraud, she must have understood clearly that the intent for her to do this was to make Centaline believe that the false representation on the document was the fact and cause it to grant the money to Tommy Electric under the situation of being ignorant of the truth.”

The subsequent appeals to the Court of Appeal

11.  On 23 June 2009, D1 appealed against his sentence of 40 months’ imprisonment in respect of the four charges to which he had pleaded guilty.  His appeal was dismissed on 3 August 2009.[1]

12.  On 17 March 2010, the same division of the Court of Appeal allowed the appeal against conviction of D3 on the ground that leading counsel acting on behalf of D3 at trial had been flagrantly incompetent in failing to call Law, whose witness statement dated 4 January 2007 had been disclosed in the unused material and was said to be material to the issue of whether Centaline had been defrauded, thus depriving D3 of a fair trial.[2]

13.  On 31 August 2010, D4, having earlier abandoned her appeal against conviction on 17 December 2007, petitioned the Chief Executive to reinstate her appeal and refer it to the Court of Appeal.  That petition was granted on 17 December 2010 and her appeal duly referred to the Court of Appeal.

14.  On 2 December 2011, a differently constituted division of the Court of Appeal likewise allowed D4’s appeal against conviction.[3]  However, it may be noted that the emphasis of the second Court’s reasons was different from the earlier Court, which had dealt with D3’s appeal.  The second Court found that since there were differences in the recollection of D4 and her counsel (the appellant before us in this appeal) as to the advice given by counsel as to whether Law should have been called to give evidence, and if so when such advice might have been given, and since counsel could not remember clearly whether she had so advised her client, D4 should be given the benefit of the doubt.  The Court did go on, however, to say that the thrust of Law’s evidence should have been put to Shih or adduced in some way and, since it was not, D4 had not received a fair trial.

15.  On 25 July 2014, following an earlier hearing at which the complaint against the appellant was found proved, the Tribunal made the Order which is the subject of this appeal.

The Tribunal hearing concerning D1’s counsel

16.  Unfortunately, but perhaps because of the course which the appeals of D3 and D4 took, two separate disciplinary hearings took place in relation to leading counsel for D1 and the appellant.  On 2 September 2014, a differently constituted Tribunal found a similar complaint of professional misconduct against leading counsel who had represented D3 at the District Court trial not proved.  We were invited by Mr Perry QC, on behalf the appellant before us, to have regard to the findings of that Tribunal on the limited basis that a differently constituted Tribunal on very similar facts had come to a different view as to the seriousness of the conduct complained of and for its assessment of the role and duties of counsel conducting a trial in similar circumstances.  He acknowledged that this Court is not in any way bound by the decision of the second Tribunal, any more than it is bound by the decision of two successive Courts of Appeal dealing with appeals from the substantive trial.

17.  Mr Lee SC, for the respondent, opposed the application, pointing out that the decision of the second Tribunal could not affect the way this Court should look at the appeal in this case, particularly when leave to judicially review that decision has been granted and the matter has not been finally determined.  In the event, we admitted the material on a de bene esse basis but, as will become clear, the decision of the second Tribunal does not feature in our decision and has played no part in our reasoning.  Other than its part in the chronology of events described above, we did not consider it to be relevant to the arguments advanced and have ignored it.

The appellant’s grounds of appeal

18.  Mr Perry submitted that two major assumptions have bedevilled the way this matter has been regarded both before the Court of Appeal which dealt with D4’s appeal, and before the Tribunal which dealt with the appellant.  The first is that Law would have given evidence substantially in accordance with his witness statement recorded by ICAC on 4 January 2007, and would have been accepted as a witness of truth by the trial judge.  The second is that, even if Law had given evidence substantially in accordance with his witness statement and had been accepted as a witness of truth, it would, or even might, have resulted in the acquittal of D4.  He argued that the first assumption is highly dubious: the second, wrong in law.

19.  By contrast, Mr Perry submitted that the appellant correctly analysed the position, properly advised her lay client as well as her solicitors and cannot be criticised for the view she formed, and the tactical decision she made as a result, not to call or adduce the evidence of Law.

20.  He further took issue with the notion that the evidence of Shih Wing Ching (“Shih”), in conjunction with Law’s anticipated evidence, would have provided an answer to the prosecution allegation.  Shih was the director of Centaline and holder of 45% of its shares.  Properly understood, Mr Perry submitted his evidence had gone no further than to suggest that Shih himself might have approved a payment provided it was otherwise legal, it was made in the interests of the company and Centaline would not have suffered any loss.  However, Shih also made clear that he was speaking hypothetically and that his retrospective approval did not mean that the rebate had not been wrongly arranged and handled by his employees within Centaline.  Accordingly, Mr Perry submitted that Shih’s evidence could not have made any difference to the charge.  Moreover, it was highly questionable whether, had Shih been fully apprised of what had gone on and how the payment had been disguised, he would still have approved the payment.

The respondent’s submissions

21.  Mr Lee, on the other hand, argued that the central piece of evidence which pointed to D4’s dishonesty was her arrangement of a company through which the rebate was to be channelled, when she well knew that the company had provided no referral services.  Her defence was that there was no dishonesty on her part and that she simply trusted Tong, who had asked her to make such an arrangement.  He submitted that it was, therefore, crucial to her defence that Tong, who had already testified that he knew Elvis Wong was allowed to receive the rebate, was telling the truth and was a trustworthy person.  Law’s evidence that Elvis Wong was in fact permitted to receive the purchaser’s rebate would have strengthened Tong’s assertion and thereby redounded to D4’s benefit on the issue of dishonesty.

22.  A subsidiary argument contended that the appellant ought to have realised that Law’s evidence, in conjunction with Shih’s evidence, could have provided the basis of a defence that the conspiracy alleged in Charge 10 was legally impossible.

A consideration of the respective arguments

The first assumption

23.  It is clear that both Courts of Appeal and the Tribunal did proceed on the assumption that Law would have testified in accordance with his witness statement and that his evidence would have remained intact after cross-examination.  We should observe here that there was a suggestion during cross-examination of the appellant before the Tribunal that Shih might have been shown Law’s statement in cross-examination.  We presume that what was envisaged was the putting of the essential points of what Law was recorded as saying in his witness statement to Shih as propositions without reference or attribution to any statement for his comment, because, of course, the witness could not ordinarily have been confronted in cross-examination with a witness statement of another person who had not been called to give evidence.

24.  However, the assumption that Law would have said what he was recorded as saying, that he would have emerged unscathed from cross-examination and that he would have been accepted by the fact-finding judge as a witness of truth, is a dangerous one and not one on which any trial counsel could unreservedly rely when deciding how best to advance the defence case.  The statement purported to say that several years ago (that is, several years before January 2007), Law had expressed his satisfaction with Elvis Wong’s dedication and work performance, as a result of which he had permitted him to receive any advantages from anyone in dealing with any property transactions on behalf of Law’s company, Lobo Investments Limited, of which Elvis Wong was the Property Manager.  Lobo Investments Limited owned all ten shares in General Best, including the one share held by Elvis Wong on Law’s behalf.  Furthermore, Law had told Elvis Wong that he did not need to inform him about his receipt of advantages from others because he would agree to it.  Therefore, Elvis Wong did not have to seek his approval of the rebate arrangements over The Aegean, which he would have in any event and pursuant to his earlier approval have permitted. Nothing was ever put into writing about this general permission or about this particular arrangement.

25.  This statement had no doubt been taken from Law as owner of General Best, the company purchasing The Aegean, when the ICAC were seeking to establish whether or not there was a conspiracy to accept advantages under the Prevention of Bribery Ordinance, Cap 201.  In the result, Law’s statement would effectively have made such a charge very difficult to sustain. But not so a charge of false accounting or a conspiracy to defraud based upon false documents.

26.  However, the fact that Law’s statement would have made it very difficult for the prosecution to proceed with a charge under the Prevention of Bribery Ordinance did not mean that the prosecution necessarily accepted what Law had to say.  In our view, they would have been extremely naïve and uncharacteristically pliant and accepting if they had.  Instead, a conspiracy to defraud was averred in relation to Charge 10 and Law’s statement properly served upon the defence as unused material.

27.  Clearly, the prosecution had no intention of calling Law, who was not listed as a witness on the schedule of witnesses before the District Court.  We would be surprised, however, if the prosecution were not fully prepared to cross-examine him, had the defence sought to call him as a defence witness; and in considering this option, defence counsel would have had to assume that that would be the position.  For, if the prosecution succeeded in demolishing Law’s evidence that he had given Elvis Wong absolute permission in advance to receive any commission he could obtain in relation to any property transaction in which he was involved on behalf of his principal, then its case of a conspiracy to defraud Centaline was obviously strengthened.  On the other hand, if the prosecution were unable to demolish his evidence, it would have nonetheless argued that it had no bearing on the case it was trying to prove, which was that Centaline’s economic interests were put at risk when it was deceived by false documentation into paying a rebate it might not otherwise have paid had it known that the documentation was not true.

28.  We suspect the prosecution would have been very happy for the defence to have called Law and we cannot accept the assumption that his evidence would necessarily have remained intact after cross-examination.  His claim of an earlier all-embracing verbal permission to Elvis Wong to accept commissions, whatever the circumstances, would have been open to obvious challenge; as would the complete absence of any documentation identifying or authorising the true purpose of the actual payment.  Indeed, it would be difficult to see how Law could have maintained his position where false documents had been used.  Had the judge found as a fact that Law was being less than truthful, it would hardly have assisted the defence.  Nevertheless, we would agree that the appellant did need to consider the implications of Law’s evidence and how it might be managed.  On the face of it, and if it were true, it might have been helpful to the extent of tending to show, as Mr Lee suggests, that Tong was not asking D4 to do something which, although it might have looked strange, was necessarily dishonest.  Further, it tended to show that those involved were not intending to harm Centaline’s economic interests by the paying of bribes or unlawful commissions.  On the other hand, if his evidence were false or disbelieved, it would have had a rather devastating effect on the defence.  We shall return to examine what in fact the appellant did in the context of what we conceive to be her duty in due course.

The second assumption

29.  It also seems to have been assumed that had Law’s evidence remained intact after cross-examination, it would or might have led to the acquittal of D4.  The Court in D3’s appeal considered that Law’s testimony was relevant not only to D3’s dishonesty but also to whether Centaline would suffer economic loss; while the Court in D4’s appeal considered that if Law’s evidence were accepted, the routing of the rebate through Tommy Electric did not necessarily mean that Centaline was defrauded.  Mr Lee, for the respondent, has, consonant with those sentiments, submitted that it would have been difficult in those circumstances for any of the defendants at the trial to have been convicted for using Tommy Electric as a vehicle to channel the rebate.  Indeed, he has gone so far as to say that in the light of Law’s purported evidence, D4 might have been able to argue that the offence of conspiracy was impossible because its objects could never have been achieved.  In support of this proposition, Mr Lee cites HKSAR v Saifudeen Abdul Wahid [1997] 3 HKC 729.

30.  With respect, we cannot accept these propositions as a matter of law.  The prosecution case as presented in the prosecution Opening was that Tong and D3 had agreed with the representative of General Best, the purchaser of The Aegean, that part of the commission paid to Centaline by General Best would be paid back to Elvis Wong, the representative of General Best.  Having received the commission from General Best, D3 asked Tong to arrange a company which would be falsely named as a referral company in the transaction, to whom part of the purchaser’s commission would be payable.  Tong therefore solicited D4’s assistance, as a result of which D4 arranged Tommy Electric to be used as the ostensible referral company in the transaction.  Tommy Electric had never provided any referral services in the transaction involving The Aegean; a fact which D4 admitted under caution that she knew.  False documents were then submitted to Centaline so as to enable the purported referral fee, which was in fact part of Centaline’s commission from the purchaser, to be paid to Tommy Electric.  Believing that Tommy Electric had referred General Best to Centaline, $331,707 was deposited by Centaline into the account of Tommy Electric, after which it was routed through D4’s bank account and then paid (less a deduction) to Elvis Wong.

31.  In his Reasons for Verdict when dealing with the case of D3 on Charge 7, the judge found as follows (in translation):

“142. … In the course of consideration, I bore in mind the argument of the defence that if Centaline was aware of the truth, it might still pay the amount; therefore, there might not be any economic loss. As mentioned earlier, D3 used such means because at least he worried that it would be rejected if it was submitted truthfully. The purpose of using such means must be to conceal the facts from Centaline which could not judge whether it should approve to grant the amount according to the truth. Such judgment was completely related to the economic interests of Centaline and nothing else. Therefore, such practice would have at least created a risk to Centaline in suffering economic loss. The defendant must realise very well this situation but he still conspired with the others to apply for the grant with Centaline dishonestly and finally succeeded in so doing.”

Later, when dealing with the case of D4 on Charge 10, the judge expressed himself in similar terms:

“196. … In my view, there is sufficient evidence in the case that proves D4 conspired with (Tong) and D3 to make a false representation dishonestly to Centaline and the purpose of such was to cause Centaline to believe that it was true, and hence pay (Tommy Electric) the referral fee. It was impossible for D4 to have not known that the act would put the economic interests of Centaline at risk. She had the sufficient criminal intent to affect the conspiracy to defraud. She must have understood clearly that the intent for how to do this was to make Centaline believe that the false representation on the document was the fact and cause it to grant the money to (Tommy Electric) under the situation of being ignorant of the truth.”

32.  In our judgment, this was a perfectly proper way for the prosecution to put its case on Charge 10 (and on Charge 7) and for the judge to assess the nature of the conspiracy to defraud operated upon Centaline.  There was nothing impossible about it.  In the Privy Council decision of Wai Yu-tsang v The Queen [1992] 1 AC 269, Lord Goff of Chieveley, giving the judgment of the Board, held at 279A-C:

“In the context of conspiracy to defraud, it is necessary to bear in mind that such a conspiracy is an agreement to practise a fraud on somebody (cf Welham v Director of Public Prosecutions [1961] AC 103, 133, per Lord Denning). In R v Allsop, 64 Cr App R 29 what the defendant agreed to do was to present the company with false particulars, in reliance upon which, as he knew, the company would decide whether to enter into hire-purchase transactions. It is then necessary to consider whether that could constitute a conspiracy to defraud, notwithstanding that the defendant’s underlying purpose or motive was not to damage any economic interest of the company but to ensure that the transaction went through so that he would earn his commission. Their Lordships can see no reason why such an agreement should not be a conspiracy to defraud the company, substantially for the reasons given by the Court of Appeal. The defendant was, for his own purposes, dishonestly supplying the company with false information which persuaded it to accept risks which it would or might not have accepted if it had known the true facts. Their Lordships cannot see why this was not an agreement to practise a fraud on the company because, as Shaw LJ said, it was a dishonest agreement to employ a deceit which imperilled the economic interests of the company.”

Later, at 279H-280A, he said:

“The question whether particular facts reveal a conspiracy to defraud depends upon what the conspirators have dishonestly agreed to do, and in particular whether they have agreed to practise a fraud on somebody. For this purpose it is enough for example that, as in R v Allsop and in the present case, the conspirators have dishonestly agreed to bring about a state of affairs which they realise will or may deceive the victim into so acting, or failing to act, that he will suffer economic loss or his economic interests will be put at risk.”

33.  To be fair to the Tribunal, it appears to have understood this basis for the case against D4 on Charge 10.  Its reasoning was as follows:

“It may well be that the prosecution would still contend that the true arrangement had been hidden from those in control of Centaline and the offence was committed, because there was an act which prejudiced Centaline’s rights or at least risked prejudicing Centaline’s rights - approval might have been withheld - and the relevant conspirators knew they had no right to do so.”

However, the Tribunal went on to say:

“We consider that it would be much less likely that any court would accept such a contention when Mr Shih’s evidence was effectively he would have given approval, if the payment was necessary to obtain the business and the purchaser had given his consent to his employee, and the evidence presented showed consent had been given.”

34.  Although we are prepared to accept that Law’s evidence, if it remained intact after cross-examination, and if it was accepted by the trial judge, was capable of supporting the general point being made by the defence “that the defendant’s underlying purpose was not to damage any economic interest of the company”[4], we do not accept that it would ultimately have provided an answer to the charge in the way it was alleged by the prosecution.  On the other hand, if Law’s evidence did not remain intact after cross-examination, or if it was not accepted by the trial judge, the inference that the payment to Elvis Wong was a secret and unlawful “kickback” (a pejorative word, which had in fact been used in the prosecution’s written Summary of Facts), and not a genuine albeit somewhat unusual rebate arrangement, would not have assisted the defence.

35.  Accordingly, we are in agreement with Mr Perry that two important assumptions have been allowed to pervade the reasoning of the Tribunal in this case, neither of which can be sustained.

36.  It should be remembered that the Tribunal’s finding against the appellant was not that she did not advise her client at all as to the merits and demerits of adducing Law’s evidence but that she did not advise her client properly in the light of the view she erroneously formed as to its relevance and significance.  The Tribunal said in terms that it accepted the appellant’s evidence “as to the advice she gave to (D4)”.  That advice, according to the appellant’s evidence before the Tribunal, engaged the very issues which have led to the two assumptions we have described.  For her part, the appellant plainly did not accept those assumptions.

37.  She explained in respect of the failure to call Law that she was concerned about Law being cross-examined as to why a document suggesting that Tommy Electric, a company which had nothing to do with the transaction, should have been paid a referral fee, part of which ultimately found its way to Elvis Wong but was never accounted for in any document or account.  She considered:

“If I venture to ask that question, I may possibly end up by Law saying that that may not be legal and he will say no to that arrangement. Then I may destroy the defence case, which I perceive at that time is quite good.”

Similarly, she did not want to confront Shih with Law’s account because she was concerned that, if it involved illegality:

“I may end up with an unfavourable answer.”

38.  In respect of the issue as to whether Law’s evidence could provide an answer to the charge, the appellant considered that it would not.  She told the Tribunal in evidence-in-chief that her advice to D4 had been:

“…that the charge itself was talking about falsely representing to Centaline, with the use of Tommy Electric. In fact, according to her instructions, she knew full well that Tommy Electric was not the actual referrer in the transaction. So, whether Law Kar Po allowed (Elvis Wong), his then employee or agent, to receive that commission would not assist her defence.”

In cross-examination, she reiterated:

“As I said, Tong’s evidence was to the effect that this arrangement was accepted by the company and it was a normal arrangement. There is no dishonesty, there is no deception in this type of arrangement, and that is why he approached (D4) to ask for assistance. As I said, Law’s permission does answer the charge itself, because it was Centaline who is being deceived by that false representation with the use of Tommy Electric.”

39.  If the Tribunal accepted the appellant’s advice that that is what she had indeed told D4, and if that advice is in fact right in law, then we cannot see how it can conceivably be said that the appellant was “flagrantly negligent in the conduct of the defence of (D4), which negligence resulted in (D4) not getting a fair trial”.

40.  It is not alleged that the appellant failed to advise her client at all about the relevance and significance of Law’s evidence.  We have already suggested that Law’s evidence, assuming it would have come out and remained as expected, may have supported the general point being made by the defence that “the defendant’s underlying purpose or motive was not to damage any economic interest of the company”.  In those circumstances, the appellant no doubt considered it necessary to at least discuss with her client the advantages and risks of calling Law as a witness and to explain why she considered his evidence ultimately to be unhelpful to what she conceived to be the real issue in the case.

41.  Interestingly, the appellant must have seen the utility, at least in the limited way to which we have referred, of trying to adduce Law’s evidence because she said (and a member of the Tribunal questioned her about it) that she had a vague recollection of asking prosecuting counsel at trial if he would be willing to consent to Law’s witness statement being produced by way of section 65B of the Criminal Procedure Ordinance, Cap 221.  Not surprisingly, perhaps, prosecuting counsel would not consent.  That the appellant did not pursue the matter rather suggests that in her mind the risks of calling the witness who would be liable to cross-examination obviously outweighed the tactical advantage of simply producing his witness statement which could not then be challenged.

42.  We should here deal with the suggestion that Law’s evidence might have strengthened Shih’s evidence and thus provided an answer to the charge.  We have already addressed the thrust of Shih’s evidence.  The Tribunal thought “it probable that Mr Shih would have said he would have approved the payment had Mr Law’s evidence been put to him”.  There are in fact three assumptions contained in this statement, none of which we can accept. The first is that Law’s evidence would have coincided with his witness statement and been accepted by the trial judge.  The second is that Shih would have approved of the payment, had he been fully apprised of the convoluted arrangements which had necessitated false documents being produced to Centaline in order to secure the release of the payment.  The third is that Shih’s evidence, in conjunction with Law’s evidence, could have provided an answer to the case presented by the prosecution.

43.  In any event, in as much as it is suggested in the complaint against the appellant that she should have discussed the calling of Law to give evidence with her client in the wake of Shih’s evidence, the Tribunal accepted that:

“Whilst the (appellant) could not remember whether or not she advised (D4) about Mr Law’s evidence after Mr Shih gave his evidence, it appears from Ms Betty Cheung’s witness statement that the issue of calling Mr Law was discussed after Mr Shih gave his evidence.”

Ms Betty Cheung Wai Yee was the appellant’s instructing solicitor at trial.  The Bar did not challenge Ms Cheung’s statement at the Tribunal hearing.

44.  In view of the fact that the Tribunal accepted that the appellant had indeed advised her client about Law’s evidence, whether it be after Shih’s evidence and/or later at the close of the prosecution case, and given our view that the advice she gave was correct as a matter of law, it does not become necessary to resolve the wider issue raised by Mr Perry of the extent of counsel’s autonomy and discretion when conducting a criminal trial.  In the course of argument, he contended that counsel’s autonomy and discretion cannot be contained or qualified unless and until his instructions are withdrawn, and appeared to go so far as to say that this would encompass not only decisions made in the conduct of the trial but also advice (or, perhaps, the lack of it) given to the lay client in the course of the proceedings.  He referred in support of the proposition to the judgment of the Lord President in Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, which was referred to with apparent approval in the speech of Lord Morris of Borth-y-Gest in Rondel v Worsley [1969] 1 AC 191, at 241B-F.  However, we would make these observations about the argument.

45.  In Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126, an appeal before the Court of Final Appeal dealing with an allegation of flagrant incompetence by counsel conducting a criminal trial, Sir Thomas Eichelbaum NPJ, with whom the other members of the Court agreed, held, at 142J:

“To follow the concept of error of counsel as a ground of appeal, it is necessary to understand the authority of counsel in regard to the conduct of the trial. This was well described by Gleeson CJ in R v Birks (1990) 48 A Crim R 385, a decision of the Court of Appeal of New South Wales:

In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.

As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning their rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. For example, in Rondel v Worsley [1969] 1 AC 191 at 241, Lord Morris of Borth-y-Gest quoted with approval the following statement of the Lord President in the Scottish case of Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, concerning the role of an advocate:

… His legal right is to conduct the cause without any regard to the wishes of his client, so long as his mandate is unrecalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client’s interests are thereby prejudiced.

In Halsbury’s Laws of England (4^th) Vol 3(1), para 518 at p 420, it is stated that:

… a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.

It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, or to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment.”

46.  While we agree with the statements of principle in the authorities so far as they delineate as a general rule the authority and discretion of counsel in his conduct of a criminal trial, we would add this important caveat.  Times have changed considerably since 1967 when Rondel v Worsley[5]was decided, let alone 1876 when Batchelor v Pattison and Mackersy[6]was decided.  Litigants are far more educated today than they were over a century, or even a generation, ago as to their rights and entitlements generally and in their expectations specifically of the performance and professionalism of those acting on their behalf.  Equally, professionals are far more conscious of their clients’ knowledge of their rights and entitlements and, as a result, far more aware of their clients’ expectations.

47.  This sea change in public awareness and education has been accompanied and encouraged by the enactment of legislation dealing with the rights of accused persons, the minimum guarantees of a fair trial, which include the right to counsel in any case where the interests of justice so require, and the imperative of fair and public hearings before competent, independent and impartial tribunals.  Although Rondel v Worsley confirmed that a barrister was immune from an action in negligence in respect of his conduct and management of a cause in court, such immunity was considered by the House of Lords before the advent of this legislation and barely survived the 20^th century.  In Arthur JS Hall & Co v Simons [2002] 1 AC 615, Lord Hoffmann was to say, at 704 A-C:

“My Lords, I have now considered all the arguments relied upon in Rondel v Worsley [1969] 1 AC 191. In the conditions of today, they may no longer carry the degree of conviction which would in my opinion be necessary to sustain the immunity….. I do not say that Rondel v Worsley [1969] 1 AC 191 was wrongly decided at the time. The world was different then. But, as Lord Reid said then, public policy is not immutable and your Lordships must consider the arguments afresh.”

Lord Millett, who with Lord Hoffmann also formed part of the majority in Arthur JS Hall & Co v Simons, considered inter alia that in view of the coming into force of the Human Rights Act 1998, with the concomitant application of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, it was better “to grasp the nettle now”[7], since a blanket professional immunity would soon have proved difficult to defend.

48.  These developments and changes in legislation and public awareness have at the same time also resulted in a greater expectation by the public and practitioners alike of the need for judges and tribunals to give reasons and to account for their decisions.  It would be strange if counsel were to remain exempt from these same trends and influences so far as advising and, in appropriate circumstances, explaining and discussing their advice with their clients.

49.  Not surprisingly, this greater awareness of rights and expectations by the general public has been accompanied by a greater vigilance by professional bodies in upholding the professional standards of their members.  In England and Wales, for example, all barristers of both the inner and outer Bars have been required to fulfil the requirements of continuing professional development (known as CPD) since 2001.  In New South Wales, in which jurisdiction Birks was decided, barristers have been required by law to undergo continuing legal education since 2005.

50.  Remarkably, in Hong Kong, there is no such mandatory requirement for the Bar, notwithstanding that the Law Society of Hong Kong has had a compulsory system of continuing professional development applicable to all solicitors since 2003; the scheme having been introduced in phases since 1998.  Given the greater education and perception of the public as to their rights and expectations in litigation, it would be unfortunate if the Bar were to continue to ignore the tide of these events.  The Court in Birks was not intending to endorse some form of de facto immunity for the Bar.

51.  However, it is not necessary for us to express a conclusive opinion on the ambit of counsel’s autonomy and discretion in not advising her client in relation to Law’s purported evidence, or in not discussing it with her, because it simply does not arise in the circumstances of this case.  The fact is the appellant did advise her client, as the Tribunal indeed found. Furthermore, contrary to the view of the Tribunal, we consider her advice was correct as a matter of law.  That is enough to dispose of this appeal.

Conclusion

52.  For the above reasons, we allowed the appeal.  We accordingly quashed the finding of the Tribunal and set aside its Order of 25 July 2014.  We further ordered that the respondent pay the appellant’s costs both at the hearing and this appeal, to be taxed if not agreed on the party and party basis.  We were informed that both leading and junior counsel, acting on behalf of the appellant at both the Tribunal hearing and this appeal, were to their credit acting on a pro bono basis.