HKSAR v. Tam Yi Chun

CACC 524/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 524 OF 2011

(ON APPEAL FROM HCCC NO. 126 OF 2010)

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Hon Stock VP (giving the Decision of the Court):

1.By a judgment dated 24 September 2013, we dismissed the application for leave to appeal conviction in this case. Reasons were handed down on 4 October 2013. It was a case in which the grounds of appeal advanced were patently hopeless, a fact made the more unfortunate because allegations of professional incompetence were made which had no arguable foundation whatsoever. We ordered the respondent’s costs of the application to be paid by the appellant. We said:

“40. We can fully understand that an applicant facing a long term of imprisonment, and that her family members, would wish to pursue whatever appellate avenue might be open; yet that is not a fact which justifies counsel in advancing entirely hopeless grounds. We were presented with something in the order of 500 pages to read and the fact that our initial instinct was that the grounds were unmeritorious did not relieve the court from its duty to read the material conscientiously in order to ascertain whether its initial reaction was merited or not. Each judge spent something in the region of four hours reading such material as is relevant to conviction, and sat for several hours entertaining oral submissions; only to discover at the end of it all that the grounds and the complaints were bone dry of merit. Thereafter, judicial time was taken up in preparing a draft judgment, the time of counsel for the respondent has been entirely wasted in reading the papers and preparing a fulsome reply. And, further, substantial time of trial counsel and trial solicitor has been utilised in digging for their records and in preparing affirmations and in attendance at this hearing. Beyond that and, perhaps most importantly, judicial time taken in preparing for and attending to an entirely unmeritorious application impacts adversely upon those persons in custody who are awaiting a hearing of arguable applications. This is the ramification of unmeritorious appeals, a ramification which is inimical to the efficient and fair administration of justice.

41. Accordingly, we will receive submissions from counsel as to whether the narrowly drawn legislation concerning wasted costs empowers us to make a wasted costs order and, if so, why such an order should not be made.”

2.We have since received submissions from counsel as to the scope of section 18 of the Costs in Criminal Cases Ordinance, Cap 492.

3.Section 18 is to be read in conjunction with the definition of wasted costs in section 2:

“"wasted costs" (虛耗訟費) means any costs incurred by a party to the proceedings-

(a) as a result of-

(i) any seriously improper act or omission; or

(ii) any undue delay or any other serious misconduct,

on the part of any representative or any employee of a representative; or

(b) which, in the light of any such act, omission, delay or misconduct occurring after they were incurred, the court considers it is unreasonable to expect that party to the proceedings to pay.”

4.The provision is significantly narrower than the provision in the legislation for the United Kingdom which enables a wasted costs order to be made in criminal cases where costs have been incurred by a party “as a result of any improper, unreasonable, or negligent act or omission on the part of any representative or any employee of a representative.”

5.Appellate authority in England and Wales makes clear that “improper” in this context “covers any significant breach of a substantial duty imposed by a relevant code of professional conduct” as well as “conduct which [otherwise] would be regarded as improper according to the consensus of professional (including judicial) opinion” (see Sir Thomas Bingham MR, as he then was, in Ridehalgh v Horsefield [1994] 3 All E R 848 at 861).

6.The legislature in Hong Kong has made a deliberate choice to circumscribe the circumstances in which the power may be exercised, in a way which is much narrower than the circumstances permitted by the legislation of England and Wales.  There is, for example, no reference in Hong Kong to a negligent act.  It must be something much more than that, as emphasised as well by the repeated use of the word “serious”.  Even in the context of the English legislation, the point has been made that: “… it is not enough that the court considers that the advocate has been arguing a hopeless case.  The litigant is entitled to be heard; to penalize the advocate for presenting his client’s case to the court would be contrary to the constitutional principles to which I have referred.  The position is different if the court concludes that there has been improper time wasting by the advocate or the advocate has knowingly lent himself to an abuse of process”: per Lord Hobhouse, Medcalf v Mardell [2002] 3 All E R 721 at 741 f-g.  That statement does not, we suggest, purport to be exhaustive of the circumstances in which the power might properly be invoked: there are a host of circumstances one might imagine of seriously improper conduct by counsel whereby costs have been wasted and in respect of which he or she might properly be made liable; but we are satisfied that the mere advancement of grounds which experienced counsel ought to have known were unarguable – as opposed, for example, to a deliberate misleading of the court – is not the type of conduct contemplated by the statutory provision in question.  So, putting aside the issue whether it would have been open to this court to make an order against counsel given that we have already made an order that one of the parties pay the costs of the appeal, we do not think it open to us in this case to make a wasted costs order.

7.We do however wish to say something about the submissions which have been made by counsel in opposition to the making of an order and we do so lest the thinking behind the submissions has currency elsewhere.

8.Counsel for the applicants have put forward the following submission:

“There is one other matter that we regret, and that is that this case has obviously been the catalyst for the Vice President’s Practice Note of 9 October 2013 [“the Note”]. Whilst we fully understand and respect the reason for the Note, and despite the care that has obviously been used in choosing the words used in the Note concerning meritorious appeals, we remain concerned, as counsel who regularly appear in the criminal courts, that there will be some counsel who will be deterred from advising defendants to appeal, even when those appeals are fully justified, because of the reference in the Note to loss of time.”

9.There are two points we wish to make.

10.The Practice Note handed down on 9 October 2013 commenced with the introductory paragraph of that: “This Note is issued after consultation with the Chief Judge of the High Court and all other members of the Court of Appeal.” The notion that the Chief Judge and all members of the Court of Appeal issued a Practice Note because of one case heard a few days previously is, with respect, quite extraordinary and we are disappointed that leading counsel lends himself to such an assumption.  The Note was issued after extensive discussion prompted by long experience.  Common sense as well as the tenor and content of the Note itself (see, for example, the reference in para 10 of the Note to the frequency with which unmeritorious allegations of incompetence made against counsel solicitors have been made) make this amply clear.  That is the first point we wish to make.

11.The second point arises from the concern expressed that the Practice Note may dissuade counsel from advising defendants to appeal “even when those appeals are fully justified.”  This is an argument against the existence of the power to order loss of time, not an argument against the reminder constituted by the Note.  The argument ignores the rationale for the power as well as counsel’s professional duty not to advance obviously meritless grounds.  It is an argument which seeks a blank cheque for appeals regardless of merit, regardless of public expense, regardless of the gross inconvenience and unnecessary worry caused to practitioners who face unwarranted allegations of incompetence, and regardless of the delay caused to those in custody who have meritorious appeals.

12.For reasons which we have explained at length in our Reasons for Judgment, the arguments in this case were not merely weak; they were without a scintilla of merit.  As a result, our time was wasted, the time of the respondent was wasted, meritorious appeals were pushed back in the queue and hour upon hour of the time of counsel and solicitor against whom fruitless allegations were made were wasted; and yet counsel would have us say that that is all fair enough, since otherwise some counsel will not be fearless in advancing their client’s case.  Nobody is asking counsel to do other than fearlessly defend and represent clients fearlessly.  But as the Court of Final Appeal has made clear in Chau Ching Kay v HKSAR [2003] 1 HKLRD 99, it is not appropriate for counsel, under the guise of duty to the client, to expect the court to relinquish its duty to the proper administration of justice and to surrender to counsel’s dictates its discretion to make appropriate orders to that end.

13.In this particular case, we asked for an indication from those who were the subject of (meritless) assertions of incompetence, as to the time spent in going through their papers and preparing affirmations and attending court as a result of those assertions.  Counsel spent, over a period of months, approximately 44 hours and the solicitor, a partner in a small firm, in the order of 25 hours.  This says nothing of the worry that was occasioned to these practitioners.  It should without saying that this is not fair, not acceptable, in a case where there is quite clearly no merit in the criticism made of them.  Yet the gravamen of counsel’s submission is that, whatever the lack of merit in the criticism advanced against these professional people, the waste and the oppression - real oppression - occasioned must be tolerated by the courts lest counsel in future are put off doing their job.  

14.This is a most disappointing stance for counsel to adopt.  It is an attitude, surely, that should be discouraged.  No one asks counsel not to do their job.  We merely ask counsel to do the job responsibly and reasonably, whilst still fearlessly fighting their client’s corner.

Mr William Tam, DDPP and Mr David Leung DDPP (Ag.) of Department of Justice, for the Respondent

Mr John Reading, SC and Mr David Boyton, instructed by Littlewoods, for the Applicant