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Hksar v Wong Chi Wai

Judgment Cited authorities 30 Cited in Precedent Map Related
Vincent
Judgment Date23 September 2013
Year2013
Citation(2013) 16 HKCFAR 539
Judgement NumberFACC10/2012
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC10/2012 HKSAR v. WONG CHI WAI

FACC No. 10 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 10 OF 2012 (CRIMINAL)

(ON APPEAL FROM CACC NO. 203 OF 2010)

_____________________

Between :

HKSAR Respondent
- and -
WONG CHI WAI Appellant

_____________________

Before : Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Mortimer NPJ and Sir Thomas Gault NPJ
Dates of Hearing: 28 and 29 August 2013
Date of Judgment : 23 September 2013

_____________________

J U D G M E N T

_____________________

Mr Justice Chan PJ:

1. I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

2. The appellant, a barrister, was charged with attempting to pervert the course of justice on account of his having drafted three letters and caused them to be sent to a prosecution witness in the course of the trial at which he was appearing for the defence. The witness was a solicitor and the letters asserted that she was bound by legal professional privilege to refuse to provide the evidence which the prosecution sought to adduce from her. The letters threatened civil proceedings and a complaint to the Law Society if she failed to comply with the asserted duty.

3. The appellant (“Mr Wong”) was convicted after trial before H H Judge Tallentire in the District Court[1] and sentenced to six months’ imprisonment. His conviction and sentence were upheld by the Court of Appeal,[2] although on different grounds. The Appeal Committee granted leave to appeal, this being a case which raises important questions concerning the interaction between the offence of attempting to pervert the course of justice and a claim of legal professional privilege asserted against an intended witness.

A. The course of events

A.1 The proceedings against Ms Lau

4. In September 2001, KBC Bank NV, Hong Kong Branch (“the bank”) agreed to lend money to two “Maruyama” companies[3] secured on floating charges provided by them and also secured on a fixed and floating charge over the undertaking and property of E C Textiles Ltd (“ECT”), a company in the same group. ECT had a corporate director which was Brightway International Group Ltd (“Brightway”) and Ms Lau Wing Sun (“Ms Lau”) was a director of Brightway. It was Ms Lau who executed the deed of charge (“the deed”) on behalf Brightway and thus of ECT. It was this act which led to her being prosecuted for theft, it being alleged that she had purported to pledge to the bank property which she had no right to pledge and so had dishonestly appropriated such assets.

5. Ms Lau signed the deed at the offices of Messrs Christine M Koo & Co (“CMK&Co”) a firm of solicitors at which Ms Fanny Mak Siu-fan (“Ms Mak”) was employed as a consultant. Ms Mak was instructed by the bank in the transaction and witnessed Ms Lau’s signing of the deed. The letters subsequently drafted by Mr Wong were addressed to Ms Mak and an important issue in the case is whether she was impliedly acting also as solicitor for ECT when the deed was executed.

6. Ms Lau was arrested in February 2004 and, in November of that year, Mr Wong was instructed by Messrs Lau, Chan & Ko (“LC&K”) to act on her behalf in connection with the criminal investigation and proceedings. Two other barristers were also instructed on Ms Lau’s behalf, namely, Mr Lawrence Ngai (“Mr Ngai”) and Mr Paul Tse (“Mr Tse”). The solicitor on the record for LC&K was Mr Birney Yeung Wai (“Mr Yeung”) although it was a solicitor’s clerk, Mr Jacob Cheung, who actually handled the case.

7. The police sought evidence that it was Ms Lau who had signed the deed and in February 2005, they obtained two witness statements from Ms Mak in which she acknowledged that she had acted for the bank in the transaction. She stated that she had prepared the documents, arranged for their signature; had them registered in the Companies Registry and then delivered the originals to the bank. Ms Mak identified her own signature on the deed and stated that, following her usual practice, she would have verified the identity of the person signing on behalf of ECT – confirmed to be Ms Lau – before signing as having witnessed Ms Lau signing the document in her presence.

8. On 12 April 2005, Ms Lau was charged with theft. Her trial began in the District Court before Deputy District Judge Yiu on 15 November 2005.[4] It lasted 24 days, running initially until the first week of December and then resuming on 23 January 2006, with Ms Mak due to give evidence on the following day, 24 January. Ms Lau was eventually acquitted on 1 April 2006 for reasons unconnected with the case against Mr Wong.

A.2 Mr Wong’s conduct

9. About three weeks before the start of Ms Lau’s trial, Mr Wong saw Ms Mak’s witness statements and in his “Note of possible defences” dated 24 October 2005 (circulated to the defence team), he first made the suggestion that Ms Mak may have been acting as Ms Lau’s solicitor and that she might infringe Ms Lau’s legal professional privilege (“LPP”) if she were to testify in court. The Note stated:

“[Ms Mak] who is expected to testify against [Ms Lau] was her solicitor at the material time, so as her intended act of testifying in court is likely a breach of the privilege between solicitor/client which belongs to the client and not the solicitor. Further research needs to be done to find out the relevant authorities … and whether Defendant is entitled to enjoin the said solicitor not to do so.”

10. Mr Ngai, who was acting as Mr Wong’s junior, evidently had a stab at such further research and, in a memorandum to Mr Wong dated 28 October 2005, he cited China National Petroleum Corp v Fenwick Elliot,[5] an English decision mentioned in Phipson on Evidence, as authority for the proposition that “where a solicitor sought to interview and take a proof of evidence from a potential witness, privilege attached not merely to the proof and what was said during interview, but also to the identity of the witness”. However, Mr Ngai commented that that case “may not be of much assistance” since it dealt with a “factual scenario ... so different from our present case.”

11. Mr Wong was not put off the scent. In his “Further Note on Preparation of Defence” dated 1 November 2005, he asked for instructions from Ms Lau as to “the exact circumstances she was under (ie the communication between she and [Ms Mak]) leading to her signing [the deed]”.

12. A fortnight later, on 15 November 2005, the trial of Ms Lau commenced. Some 10 days into the trial, Mr Wong drafted and caused LC&K to send a letter dated 24 November 2005 to Ms Mak (“the 1st Letter”).[6] It is set out in full in the Court of Appeal’s judgment.[7] It enclosed a copy of a bill of costs dated 22 September 2001 issued by Ms Mak on behalf of CMK&Co in connection with the bank transaction (“the bill of costs”). The 1st Letter stated that LC&K were acting for ECT and asserted that Ms Mak had acted for ECT in that transaction, owing it a continuing duty to protect its privileged communications. It complained that by giving the witness statements to the police, Ms Mak had breached that duty and urged her “not to aggravate the aforesaid breaches and stop doing anything that would aggravate” them. It ended with the statement that ECT reserved “the right to take out civil action against you as well as refer the matter to the Law Society of Hong Kong for taking disciplinary action against you if the need exists.”

13. The enclosed bill of costs was addressed to ECT and captioned as being in the matter of the fixed and floating charges provided to the bank by the Maruyama companies and by ECT. CMK&Co invoiced ECT for $31,430.00 by way of costs and disbursements with the costs particularised as being “To our professional charges for preparing engrossing and attending execution of the [security documents] in favour of [the bank]”; “to our professional charge for preparing the supporting minutes in relation to the above”; and “to our professional charges for attending companies filing of the above documents with the Companies Registry”.

14. On 30 November 2005, Ms Mak replied.[8] She was guarded as to whether ECT was her client, stating: “... whether I acted for your client on the above matter is a matter to be determined on the facts of the case”, but in any event she denied the alleged duties and breaches. She stated that she was subject to a witness summons and “As such I am required by law to serve as a witness” at the trial, adding:

“It would be for you to take out proceedings to set aside such witness summons if you so wish. You should appreciate that unless and until you have successfully obtained such order to set aside the said witness summons served on me, I would be obliged by law to be a witness in the court unless otherwise ordered.”

Ms Mak informed the police that she had received the 1st Letter and they passed on that information to the prosecution.

15. Upon receiving her reply, Mr Wong drafted a letter which was sent out by LC&K to the Law Society dated 30 November 2005.[9] It asked in general terms (without giving names or other details) about a client’s rights and a solicitor’s duties regarding privilege, confidentiality and privacy arising out of advice given “in a property transaction” where the solicitor is summonsed to testify against the client.

16. Not surprisingly, the Law Society’s response dated 9 December 2005 stated that it was unable to advise given the limited facts provided. It sent LC&K a copy of the chapter on confidentiality in the Hong Kong Solicitors’ Guide to Professional Conduct.

17. On 12 December 2005, about a month into the trial, Mr Wong drafted and caused LC&K to send to Ms Mak the 2nd Letter upon which the charge is based.[10] It enclosed the correspondence with...

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