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[2015] 4 HKLRD 367

Wong Kam Kuen Catherine


and
Bar Council
————
(Court of Appeal)
(Civil Appeal No 174 of 2014)
————

Barma, Macrae and McWalters JJA


3, 30 June 2015

Legal profession — barristers — disciplinary proceedings — whether


Barrister’s Disciplinary Tribunal erred in finding complaints of incompetence
against counsel made out — observations on need for compulsory system of
continuing professional development
Criminal law and procedure — trial — counsel — competence — conduct
of defence — whether flagrantly incompetent by not calling or adducing
evidence from witness — observations on extent of counsel’s autonomy and
discretion in advising clients in criminal trial
法律專業 — 大律師 — 紀律處分程序 — 大律師紀律審裁組是否錯誤地
裁定針對大律師不稱職之投訴被確立 — 就需要持續專業發展的強制性
系統的相關觀察
刑法與刑事訴訟程序 — 審訊 — 大律師 — 稱職 — 辯護的處理方式 —
是否就不傳召或援引證人的證據而公然地不稱職 — 就大律師的自主的
程度和在刑事審訊中給予客戶建議的酌情決定權的相關觀察
B, a barrister, was alleged to have breached para.6(d) of the Code
of Conduct of the Hong Kong Bar by not acting with competence
in the preparation and conduct of the defence of her client (D4) in
a District Court trial. The complaint was that B was flagrantly
negligent in failing to call or adduce evidence from a witness, W,
resulting in D4 not having a fair trial. The trial originally involved
six defendants and 11 charges in connection with a conspiracy to
defraud. D4 was found guilty of being part of a conspiracy to defraud
C, a property agency, by dishonestly falsely representing to C that
a particular company was entitled to a referral fee in respect of a
specified property transaction thereby causing C to pay that fee.
The Court of Appeal had allowed D4’s appeal against conviction,
holding that she did not receive a fair trial as the thrust of W’s
evidence should have been adduced in some way. Subsequently,
the Barrister’s Disciplinary Tribunal (the Tribunal) found the

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complaint proved and ordered, inter alia, that B be suspended from


practice for one month (the Order). B appealed against the Order.

Held, allowing the appeal and setting aside the Order, that:
(1) Two important assumptions pervaded the reasoning of the
Tribunal, which could not be sustained. First, both the Court
of Appeal and the Tribunal proceeded on the assumption that
W would have testified in accordance with his witness
statement and that his evidence would have remained intact
after cross-examination. However, the assumption that W
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, was a dangerous one and not one on
which any trial counsel could unreservedly rely when deciding
how best to advance the defence case. (See paras.18, 23–24,
35.)
(2) The second assumption was that even if W’s evidence had
remained intact after cross-examination and been accepted by
the Judge, it would or might have led to D4’s acquittal. While
in those circumstances, W’s evidence might have supported
the defence’s general point “that [D4’s] underlying purpose
or motive was not to damage any economic interest of [C]”,
it would not ultimately have provided an answer to the charge
in the way it was alleged by the prosecution. On the other
hand, if W’s evidence did not remain intact or was not
accepted by the Judge, the inference that the payment in
question was unlawful and not a genuine arrangement would
not have assisted the defence. (See paras.18, 29, 34.)
(3) The Tribunal’s finding against B was not that she did not
advise her client at all as to the merits and demerits of
adducing W’s evidence but that she did not advise her client
properly in the light of the view that she erroneously formed
as to its relevance and significance. The Tribunal accepted B’s
evidence as to what advice she gave to D4. That advice
engaged the very issues which had led to the two assumptions
described above, which assumptions B plainly did not accept.
Contrary to the Tribunal’s view, B’s advice was correct in
law and thus it could not conceivably be said that B was
“flagrantly negligent” in the conduct of D4’s defence which
resulted in D4 not getting a fair trial. (See paras.36–40, 51.)
(4) (Obiter) While it was not necessary to resolve the wider issue
of the extent of counsel’s autonomy and discretion when
conducting a criminal trial, the following observations were
made. Times had changed considerably since 1876 and 1967
when Batchelor v Pattison and Mackersy and Rondel v

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[2015] 4 HKLRD 367 Wong Kam Kuen Catherine v Bar Council 369

Worsley were decided. Litigants were far more educated today


as to their rights and entitlements generally and in their
expectations specifically of the performance and professionalism
of those acting on their behalf; and professionals were far
more conscious of such knowledge of their clients and, as a
result, of their clients’ expectations. These developments had
been accompanied by changes in legislation dealing with the
rights of accused persons. It would be strange if counsel were
to remain exempt from such trends and influences so far as
advising and, where appropriate, explaining and discussing
their advice with their clients (Batchelor v Pattison and
Mackersy (1876) 3 R (Ct of Sess) 914, Rondel v Worsley
[1969] 1 AC 191 considered). (See paras.44–48.)
(5) (Obiter) In Hong Kong, there was no mandatory requirement
for the Bar of a compulsory system of continuing professional
development, notwithstanding that the Law Society of Hong
Kong had had such system in place since 2003. Given the
public’s greater education and perception as to their rights
and expectation in litigation, it would be unfortunate if the
Bar were to continue to ignore the tide of these events. (See
para.50.)

Appeal
This was an appeal by a barrister against the finding of professional
misconduct made against her by the Barrister’s Disciplinary Tribunal.
The facts are set out in the judgment.
Mr David Perry QC, Mr Peter Duncan SC and Ms Maggie Wong,
instructed by Ho Tse Wai, Philip Li & Partners, for the appellant.
Mr Robert SK Lee SC, Mr YL Cheung and Mr Brian Chau,
instructed by Cheung, Tong & Rosa, for the respondent.

Legislation mentioned in the judgment


Criminal Procedure Ordinance (Cap.221) s.65B

Cases cited in the judgment


Arthur JS Hall & Co v Simons [2002] 1 AC 615, [2000] 3 WLR
543, [2000] 3 All ER 673, [2001] PNLR 6
Batchelor v Pattison (1876) 3 R (Ct of Sess) 914
Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126, [2004] 2
HKLRD 681
HKSAR v Chan Ngan Lau [2010] 1 HKLRD 472
HKSAR v Saifudeen Abdul Wahid [1997] 3 HKC 729
R v Birks (1990) 48 A Crim R 385
Rondel v Worsley [1969] 1 AC 191, [1967] 1 WLR 142, [1967] 3
All ER 993

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Wai Yu-tsang v The Queen [1992] 1 AC 269, [1991] 3 WLR 1006,


[1991] 4 All ER 664, (1992) 94 Cr App R 264, [1992] 1 HKCLR
26
香港特別行政區 v 劉秀瑜 (unrep., CACC 213/2008, [2011]
CHKEC 905)
香港特別行政區 v 潘志明 (unrep., CACC 213/2008, [2010]
CHKEC 294)

Other materials mentioned in the judgment


Convention for the Protection of Human Rights and Fundamental
Freedoms, Rome, 4 November 1950, art.6
Hong Kong Bar Association, Code of Conduct para.6(d)

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 para.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

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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 Ltd (Centaline),
by dishonestly falsely representing to Centaline that a particular
named company was entitled to a referral fee in respect of a specified

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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 Ltd (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 Ltd (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

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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
1
HKSAR v Chan Ngan Lau [2010] 1 HKLRD 472.
2
HKSAR v Poon Chi Ming (unrep., CACC 213/2008, [2010] CHKEC 294) (16 April 2010).

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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
3
HKSAR v Lau Sau Yu (unrep., CACC 213/2008, [2011] CHKEC 905) (2 December
2011).

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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.

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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 Ltd, of which Elvis Wong was the Property Manager.
Lobo Investments Ltd 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

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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

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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

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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

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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.

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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 or
motive 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.
4
Wai Yu-tsang v The Queen [1992] 1 AC 269, 279B.

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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 not 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

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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 s.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.

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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, 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:

[47] 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

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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 (4th) 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.
[48] It follows, almost inevitably, that ordinarily, a tactical
decision by counsel which, in hindsight, ought 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.

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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 Worsley5 was decided, let alone 1876 when
Batchelor v Pattison and Mackersy6 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 20th century. In Arthur JS Hall & Co v Simons [2002]
1 AC 615, Lord Hoffmann was to say, at 704A–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 art.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
5
[1969] 1 AC 191.
6
(1876) 3 R (Ct of Sess) 914.
7
Arthur JS Hall & Co v Simons [2002] 1 AC 615, 753D.

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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 R v Birks (1990) 48 A Crim R 385 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 R v
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.

Reported by Sasha Allison

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