RE A Barrister

HCAL 159/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 159 OF 2014

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D E C I S O N

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1.  On 2 September 2014, a disciplinary complaint against a barrister was dismissed by a Barristers Disciplinary Tribunal (the Tribunal) that had been constituted under s 35A of the Legal Practitioners Ordinance, Cap 159, to inquire into the matter.

2.  The dismissal decision of the Tribunal, consisting of an Order, including a statement of findings, (the decision), was subsequently considered by the Council of the Hong Kong Bar Association (the Bar Council) in a series of meetings where an application for judicial review of the decision was mooted. Eventually, on 31 October 2014, it was decided by the Bar Council to obtain independent advice from two Senior Counsel on the issue.  This was done and the two advices were received and considered by the members of the Bar Council in the period from 19 to 24 November 2014.

3.  On 27 November 2014, the Bar Council formally resolved in favour of making an application for judicial review of the decision. 

4.  On 28 November 2014, an urgent application was made by the Bar Council for an Anonymity Order in relation to the other parties to the proceedings which was granted.[1]  The protected parties were identified as the respondent and any of the members thereof and/or interested parties.  The Anonymity Order is to apply throughout the proceedings and unless and until the court orders otherwise.  I will at this stage vary the order to name the respondent as I believe on a review of the papers that as a matter of open justice it is proper to do so and I see no prejudice resulting to the individuals involved given the order currently in force.  At an appropriate time, I wish to be addressed as to the continuance of the order, and if it is to be continued, the terms and scope of it. 

5.  On 1 December 2014, the Bar Council filed a Notice of application for leave to apply for judicial review.  The time taken to consider and make the decision by the Bar Council to judicially review the Tribunal’s decision was understandable, and I consider that in the circumstances of this case given the nature and subject matter of the application, it was made as soon as practicable. 

6.  The court in this ex parte application is being asked to grant leave to review the decision of the Tribunal dismissing a disciplinary complaint against a barrister for breach of certain provisions in the Code of Conduct of the Bar of the Hong Kong Special Administrative Region (the Bar Code).  It therefore falls on the court to decide on the papers whether the application should be granted on the basis that there is a reasonably arguable claim which enjoys realistic prospects of success.[2] 

7.  The Tribunal is a statutory body performing functions under Part III of the Legal Practitioners Ordinance and is therefore amendable to judicial review.[3] The Bar Council as the applicant clearly has a sufficient interest in the matter to which this application relates and therefore has standing to bring these proceedings. 

8.  In this decision, the description of “barrister” and “counsel” shall be used interchangeably.  I will also be appropriately circumspect in my discussion about the case in light of the Anonymity Order. 

9.  The underlying criminal trial from which the complaint against the counsel arose concerned a number of defendants facing a variety of charges in the District Court in relation to the payment of commissions with respect to property transactions.  One of the defendants was represented by the counsel together with a junior counsel.  This defendant faced two charges of conspiracy to defraud a property agency with regard to the payment of a referral fee on two property transactions.  It was alleged that the defendant conspired with others to defraud the property agency by falsely representing that in relation to each property transaction a specified corporate entity was entitled to a referral fee.  He was convicted of the two charges after trial having elected not to give evidence.  There was a witness statement in the unused material from the owner of the purchasing company involved in one of the property transactions in which he said that it was permissible for his agent to receive any additional commission such as a referral fee.  It appears that the counsel made the decision not to call the witness or the defendant without advising or consulting him about it.  The trial judge on the evidence before him inferred that the defendant knew that it was unlawful for the agent to receive the benefits he did and accordingly convicted him of the charges.  The defendant lodged a complaint against the counsel after he successfully appealed against his conviction on the ground of flagrant incompetence of counsel.  In general terms, the appellate court’s judgment found that the conduct of counsel amounted to flagrant incompetence as the statement of the witness was highly relevant both to the defendant’s dishonest intention and to the element of economic loss to the property agency in one of the charges.  The appellate court concluded that counsel had been grossly negligent in not calling the witness which therefore deprived the defendant of a fair trial. 

10.  The grounds of review essentially focus on the Tribunal’s reasoning of its decision in relation to the conduct and professional standards of a counsel in a criminal trial.  There are four grounds of review. 

11.  The first ground of review complains that the Tribunal misdirected itself as to the scope of counsel’s autonomy in the conduct of a criminal trial.  The Tribunal concluded that the standards of professional conduct and the duty placed on counsel did not require counsel to describe to the client the reasons for every course of conduct embarked upon during a trial, and therefore to expect counsel to explain the implication of not calling a witness was to impose too high a duty upon counsel representing a criminal defendant.  The Tribunal relied on Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126 for the principle that certain “tactical decisions” can reasonably be left to counsel without any requirement to seek the client’s approval.[4] It is argued under this ground that the Tribunal misunderstood and misapplied the principle as stated by the Court of Final Appeal in Chong Ching Yuen where it was emphasised that in some exceptional cases, an error of sufficient proportion and consequence will enable a court to intervene and avert a miscarriage of justice. 

12.  It is worthwhile noting the principles that were stated in Chong Ching Yuen.  The two leading judgments of the court were delivered by Bokhary PJ and Sir Thomas Eichelbaum NPJ with whom the other judges agreed. 

13.  Bokhary PJ in his judgment stated that the ground of appeal of flagrant incompetence of counsel focused firmly on the standard of trial that our criminal system of justice insists upon.  He explained:

“… I have no doubt that the sort of trial that our system insists upon is a fair trial. This being an imperfect world, one cannot expect perfect trials. But to be effective, a trial must be fair. If defence incompetence has, all things considered, resulted in the trial being something less than a fair trial, such incompetence constitutes a ground for quashing a conviction. There is a direct correlation between the fairness of a trial and the viability of a conviction”.[5]

14.  He further explained that the use of the word “flagrant” indicated the sort of defence incompetence that would necessitate the quashing of a conviction and that it was “unlikely that anything short of a very high degree of defence incompetence would ever reduce or contribute to reducing a trial to something less than a fair trial”.  He went on to emphasise however that:

“Nevertheless it has to be borne in mind that the appellate court is concerned with what impact defence incompetence had on the trial, and not with whether or how severely defence counsel deserves to be criticised”.[6]

15.  Sir Thomas Eichelbaum NPJ in his judgment cited with approval an extensive passage of the judgment of Gleeson CJ (as he then was) in the New South Wales Court of Appeal decision of R v Birks (1990) 48 A Crim R 385 which included the following comments:

“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 the 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.”[7]

16.  Sir Thomas Eichelbaum explained that assertions of “incompetence” will generally relate to the manner in which counsel dealt with a specific issue during trial, involving a matter of judgment or decision, or advice given to the defendant.  He said:

“The expression ‘flagrant incompetence’ rightly underlines an appellant’s need to show much more than a mistake, an error of judgment, or a decision to follow on course when in hindsight another would have been preferable. But it should not deflect attention from the most critical point, namely given that there was a significant error of some kind, what will be decisive is the effect of the error on the trial.”[8]

17.  As can be seen from this cursory examination of the leading judgments in Chong Ching Yuen, the “flagrant incompetence” cases focus on whether counsel’s incompetence has resulted in the defendant not receiving a fair trial which may or may not have constituted misconduct by counsel.  On the other hand, there may be cases where counsel has misconducted himself and the defendant has nevertheless received a fair trial.  Whilst guidance may be provided by the principles and comments in “flagrant incompetence” cases, they must be appropriately applied in the context of disciplinary proceedings against a counsel for professional misconduct and the circumstances of the case under scrutiny. 

18.  It is argued by the Bar Council that where a decision of counsel may impact on the opportunity for a defendant to avoid a conviction, as is submitted was the situation in the present case because it concerned a decision to adduce exculpatory evidence, then the implied authority of counsel in the conduct of the trial must necessarily be constrained by the need to seek full instructions and properly advise the defendant about such evidence.

19.  It is further argued that the provisions of the Bar Code dictate such an approach by counsel.[9] It is submitted that in the present case the decision not to call a witness that could have given exculpatory evidence was outside the scope of a “tactical decision” envisaged by the Court of Final Appeal in Chong Ching Yuen and was one that required the client’s informed consent or instruction upon proper advice. 

20.  It is submitted that the Tribunal erred in law in that it erroneously considered that the decision of counsel not to consult and/or advise the defendant of the witness statement was within counsel’s autonomy in the conduct of the case for the defendant and that this therefore led the Tribunal to wrongly conclude that there had been no breach of the Bar Code and that the complaint should be dismissed. 

21.  The second and third grounds of review can be dealt with together.  The second ground complains that the Tribunal failed to take into account the relevant consideration of the defendant in a criminal trial not being able to make an informed choice as to whether to call a witness or to give evidence himself.  The third ground complains that the Tribunal failed to address the true nature of the complaint against the counsel. 

22.  It is argued under these two grounds that the Tribunal failed to consider a fundamental aspect of the duty of a barrister in defending a client in a criminal case, that is, that a client must be properly advised so that he could make an informed decision as to whether to call the witness in question to give evidence on his behalf or to give evidence himself.  It is argued that this led the Tribunal into error by treating the decision as to whether or not to call the witness as a “tactical decision” within counsel’s purview to decide such matters without reference to the defendant. The two grounds seek to show that the Tribunal did not properly and thoroughly analyse the matter, and took into account irrelevant considerations and failed to take into account relevant considerations.  It is further argued that the failure by counsel to advise the defendant as to whether or not he should give evidence and the decision he made that the defendant not give evidence, which was not his decision to make, meant the defendant lost the opportunity to make an informed choice as to whether or not to testify in light of the content of the witness statement which was both relevant and exculpatory. 

23.  The fourth ground of review complains that the Tribunal was unreasonable and irrational in its decision.  Under this ground of review, it is argued that as this application relates to a determination of a question of professional competence to a defendant in a criminal trial, a more exacting standard of review is required.  Reference is made to the judgment of the Divisional Court in R (Lumsdon) v Legal Services Board [2014] EWHC 28 (Admin) and in particular to the following statement in relation to the standard of review concerning the legal profession and its professional standard:[10]

“Although the subject of submission, in our judgment it is beyond argument that the standard of review in this case is to be found in the normal application of the Wednesbury principles. Thus, we are confined to such matters as legality, rationality and whether the LSB (Legal Services Board) and BSB (Bar Standards Board) took all relevant considerations into account. In applying that standard in this case, however, the reality is that the intensity of review is higher than in other cases. Not only does the subject matter fall within an area in which we as judges have an expertise but the claim also raises issues important to the administration of justice. But that heightened scrutiny derives not from the law but from the nature of the claim. It is a burden these regulators must bear.”

24.  Under this ground the overall thrust is that the arguments advanced in the application either individually or cumulatively support the contention that the decision of the Tribunal was irrational according to public law principles, in that the effect of it was that even where counsel has not apprised himself of the content of an exculpatory statement given prior to trial by a potentially key exonerating witness without discussing its evidential value in the defence’s case, and fails to advise on the potential benefit of the evidence and makes a decision not to call the exonerating witness without consultation with the client, the conduct can still be accorded immunity on the sole ground that it is nonetheless a “tactical decision”.[11]

25.  The intricacies and dynamics of a criminal trial can be very complex bearing in mind the various interests involved and the roles played by the participants in the adversarial setting of a courtroom.  Nevertheless, our criminal justice system is founded on a body of core principles and procedures which are required to be followed and applied by counsel according to high professional standards and when there is a departure from these standards by counsel, a finding of professional incompetence or misconduct may result against him or her.

26.  The arguments advanced in support of the grounds of review in the circumstances of this case are in my view reasonably arguable and I therefore grant the Bar Council leave to review the decision of the Tribunal.  The Tribunal is the respondent and the counsel who was the subject of the complaint is an interested party and both are therefore entitled to have standing in these proceedings.  It is a matter for the counsel as to whether he wishes to participate in the proceedings.  If any members of the respondent or other interested parties wish to participate in these proceedings, then an appropriate application should be made to the court. 

27.  I direct that the hearing of the substantive application be fixed for 2 days and that the parties shall apply for an early hearing date.  I further direct that the parties are to agree on directions, failing which they shall apply to this court. 

[1] The Anonymity Order was granted by Au J on 28 November 2014 where it was ordered that the proceedings be referred to as Re A Barrister and that the parties, being the respondent and any of the members thereof and/or interested parties, not be identified.  

[2] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

[3] See Tse Wai Chun v Solicitors Disciplinary Tribunal, HCAL 636/2001, 27 August 2001, unreported; Au Wing Lun v Solicitors Disciplinary Tribunal, CACV 4154/2002, 9 September 2002, unreported, paragraphs 33-34.

[4] At paragraphs 47 and 48.

[5] At paragraph 10.

[6] At paragraph 15.

[7] At paragraph 47.

[8] At paragraph 49. 

[9] Reference is made to paragraphs 135 and 146 of the Bar Code.

[10] At paragraph 90.

[11] See paragraph 75 of the application.