­­hksar v. Wong Chi Wai ­­

CACC203/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 203 OF 2010

(ON APPEAL FROM DCCC NO. 960 OF 2009)

Before : Hon Stock VP, Kwan JA and Lunn JA in Court

Date of Hearing : 26 March 2012

Date of Judgment : 26 March 2012

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J U D G M E N T

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Hon Stock VP (giving judgment of the Court):

1.On 2 March 2012, we dismissed Mr Wong’s appeal against conviction upon a charge of attempting to pervert the course of public justice.

2.By Notice of Motion dated 9 March 2012 the appellant seeks a certificate pursuant to the provisions of section 32(2) of the Court of Final Appeal Ordinance, Cap 484 that points of law of great and general importance are involved in the appeal.  The suggested questions for certification are these:

“1. Whether a specific intent to pervert the course of public justice can be imputed to a legal professional who, acting on instructions, pursued what he believed to be an arguable lawful objective in the interest of his client albeit in a manner which may demonstrate an error of judgment or even incompetence on his part?

2. In circumstances where a lawyer who is acting under his/her legal professional duties and pursuant to the instructions of his/her client (i) to assert and enforce a claim of legal professional privilege against a solicitor witness who is served with a witness summons to testify in a criminal case, but who the lawyer believes (rightly or wrongly) owes a duty to the lawyer’s client to raise a claim of privilege in those proceedings but refuses to comply with that duty; and (ii) to prepare correspondence which threatens legal action against the solicitor witness for his/her breach of or refusal to comply with that duty:-

(a) Whether the preparation of the said correspondence is, without more, sufficient to constitute an intention to pervert the course of public justice on the part of the lawyer?

(b) Whether it is sufficient to constitute an unlawful objective, under the offence of perverting the course of public justice, on the part of the lawyer if he/she intends that the solicitor witness should be compelled or forced to (i) raise a claim of privilege and (ii) make an application to set aside his/her witness summons on grounds of that privilege?

(c) Whether the said correspondence is, without more, sufficient to constitute an act having a clear and manifest tendency to pervert the course of justice?

3.    Whether it is sufficient to constitute an act having the tendency to pervert the course of public justice (as an improper or unlawful objective) that a solicitor witness is compelled to do the opposite of what he/she intended, where the acts of compulsion are or may be acts in the performance of legal professional duties?”                                                      

3.We have the advantage as well of supporting submissions. 

4.The gravamen of the questions and the supporting submissions presuppose legitimate steps to enforce a perceived right.  They assume a lawful objective pursued by a legal profession in a strident or vigorous professional manner (possibly accompanied by some error of judgment or even incompetence) genuinely designed to secure a proper curial determination of an issue without offence to the integrity of the process.

5.The judgment of this Court did not suggest that correspondence (whether vigorous or not) addressed to a solicitor witness, which correspondence was designed to safeguard or enforce a perceived right in respect of a witness’ proposed evidence, was of itself sufficient to constitute an attempt to pervert the course of justice; or that it is not open to a legal representative to take legitimate collateral measures to enforce a right on behalf of a client.  The emphasis of the judgment both in the court below and in this Court was whether the threats or pressure were improper which, in turn, was a case-specific question of fact.  The appellant’s course of conduct, traced by the judgment of this Court, was said to be manifestly improper, that the appellant crossed the line from permissible to impermissible pressure and that his conduct a whole, including such threats and pressure as he exerted, constituted disingenuous contrivances, evidenced and bolstered by acts and omissions which included misleading information (to the witness, the Law Society and the court of trial) and unprofessional devices, by which to distort the process by which an issue was to be resolved.

6.In other words, the case turns on its particular facts and is related to conduct outwith the parameters of proper professional pressure to enforce a right.  Accordingly, we do not think it appropriate to grant the certificate requested.  The application is therefore refused.

Ms Charlotte Draycott, SC, instructed by Department of Justice, for the Respondent

Mr Graham Harris, SC, and Mr Benson Tsoi, instructed by Haldanes, for the Applicant