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Hksar v Yeung Wai Birney

Judgment Cited authorities 30 Cited in Precedent Map Related
Vincent
Judgment Date02 March 2012
Subject MatterCriminal Appeal
Judgement NumberCACC176/2010
CourtCourt of Appeal (Hong Kong)
CACC203/2010 HKSAR v. WONG CHI WAI

CACC176/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 176 OF 2010

(ON APPEAL FROM DCCC NO. 1090 OF 2007)

________________________

BETWEEN

HKSAR Respondent
And
YEUNG WAI BIRNEY Applicant

________________________

And

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)

BETWEEN

HKSAR Respondent
And
WONG CHI WAI Applicant

________________________

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

Dates of Hearing: 11-13 October 2011

Date of Handing Down Judgment: 2 March 2012

________________________

J U D G M E N T

________________________

Hon Stock VP:

Introduction

1. This case concerns a solicitor, Mr Yeung and a barrister, Mr Wong, each charged with attempting to pervert the course of public justice.

2. Mr Yeung was charged in November 2007. After a trial before Deputy Judge M Chow in the District Court, he was convicted on 22 July 2009 and sentenced to 4 months’ imprisonment suspended for 12 months. He now seeks leave to appeal that conviction; whereas the Secretary for Justice asks this Court to review that sentence.

3. Mr Wong was charged in September 2009 and was tried in the District Court before Judge Tallentire. He was convicted on 19 May 2010 and sentenced to 6 months’ imprisonment. He seeks leave to appeal the conviction and the Secretary for Justice seeks a review of that sentence.

4. The hearings of Yeung’s and Wong’s applications were consolidated and this judgment addresses both.

5. Mr Yeung was admitted as a solicitor in England and Wales in September 1996 and in Hong Kong in February 1997 and at all material times was a consultant of Messrs Lau Chan & Ko (LCK), solicitors.

6. Mr Wong is a barrister. He was called to the Hong Kong Bar in 1984 and has practised in criminal law. He was regularly instructed by LCK.

7. The essence of the case against both applicants was that in connection with a trial in late 2005 and early 2006 in which they represented a defendant charged with theft, they sought by improper pressure to force a prosecution witness, herself a solicitor, to claim, on a basis in which Wong and Yeung had no faith, that by reason of legal professional privilege she was precluded from testifying.

8. The charge against Yeung was that between 24 November 2005 and 20 January 2006 with intent to pervert the course of public justice, he did a series of acts which had a tendency to pervert the course of public justice in that he sent three letters to the solicitor, Ms Mak, attempting to have her not testify at the trial.

9. The charge against Wong was in the same terms save that the acts constituting the attempt were alleged to be the drafting of the three letters for Yeung, to be sent to Ms Mak.

The facts and evidence

10. The case against the applicants and the basis of the convictions are highly fact-sensitive, for which reason it is necessary to state in some detail the evidence and the assertions arising from that evidence.

11. The charges against these applicants have their genesis in the trial of a lady called Lau Wing Sun (Lau). In April 2005, she was charged with theft. She was eventually acquitted, though the fact of that acquittal is not relevant to this case.

12. Lau was a director of a company called Brightway International which in turn was a corporate director of a company called EC Textiles. The allegation against her was that she created a deed of charge securing facilities at KBC Bank over property which did not belong to her; that that constituted a dishonest appropriation of the goods and therefore theft. The parties to the deed of charge were EC Textiles as chargor and the bank as lender.

13. It was important to the prosecution case in the theft trial to prove that Lau had signed the deed of charge on behalf of the corporate director of the chargor. To that end, the prosecution intended to call Ms Fanny Mak, a solicitor with the firm Lily Fenn & Partners, who acted for the bank in relation to the charge. Lau had been asked to attend Ms Mak’s offices to execute the deed. She did so and there identified herself to Ms Mak. Ms Mak saw Lau sign the deed and she witnessed the signature.

14. Wong was instructed by LCK to represent Lau before and at her trial. He was one of three counsel at trial acting for Lau, although he came into the picture on her behalf as early as April 2004 when he was instructed to act on her behalf in connection with the police investigations then under way. It is clear from the evidence that he took a proactive role throughout in advising Lau and in drafting letters to be sent to the police and to prosecuting counsel.

15. At LCK, Yeung was the solicitor nominally in charge of the case. I say “nominally” because it appears that he did not have a great deal to do with the case. As seems to be relatively common in certain firms in this jurisdiction the running of the case, on the solicitorial side, was left to a solicitor’s clerk, a person with no formal qualifications in the law or as a legal executive. The clerk in this instance was Jacob Cheung (Cheung). Yeung attended court briefly on a couple of occasions or so and signed such letters in connection with the case as had to be dispatched. But he attended no conferences or meetings with the client. It is clear from the evidence that it was Cheung who effectively attended, throughout the course of the police investigations as well as during the trial, to the solicitorial side of things on behalf of Lau. For example, we see correspondence between the Commercial Crime Bureau and LCK in July 2004 which referred to conversations between the relevant police officer and Cheung concerning the details of the case. We also see that advices as to the course to take were written by Wong to Cheung, rather than to Yeung; and that correspondence from prosecuting counsel was addressed for Cheung’s attention.

16. For the purpose of the police investigation, Fanny Mak made two witness statements: one on 2 February 2005, the other on 7 February 2005.

17. The first witness statement was about copies of documents shown to Ms Mak, including the deed of charge and resolutions of EC Textiles. She was unable to say whose signatures appeared on those documents. The second witness statement, however, dealt with the originals from which she was able to say that the signature of Lau had been appended to the relevant documents in her presence.

18. These witness statements, together with others, were served well before the trial on those acting for Lau. Wong studied them and the notion came to his mind that the making of these witness statements or the giving of evidence in accordance with the second statement might be in breach of legal professional privilege, assuming that a solicitor-client relationship existed between Mak and Lau or EC Textiles. So much is clear from two pieces of evidence:

(i) A “Note of possible defences” dated 22 October 2005 in which he said:

“Finally, PW10 Fanny Mak who is expected to testify against the Defendant 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.”

One of the counsel engaged on behalf of Lau, Lawrence Ngai, commented in writing on this potential objection by pointing to authority which would seem to suggest that privilege might attach not only to proof of what he said during a solicitor-client interview but also to the identity of the client; although counsel added that it was “arguable that EC Textiles … was the client of Fanny Mak” so that the duty was owed to the company rather than to Lau.

(ii) A “Further Note on Preparation of Defence” dated 3 November 2005 in which Wong told his instructing solicitors:

“I would like to know as well from Ms Lau the exact circumstances she was under (ie the communication between she and the Solicitor Fanny Mak) leading to her signing the Deed of Charge on 28/9/2001. On this aspect, I need to know why the said Deed of Charge was necessary… .”

19. At no stage prior to 24 January 2006, the day Ms Mak was due to testify, did Wong, or the solicitors on his instructions, draw the attention of the court or of those prosecuting the case, despite correspondence with the prosecution on other issues, to his intention to pursue or raise this issue. None of the correspondence between LCK and Ms Mak, to which I shortly turn, was copied to the prosecutor.

20. Lau’s trial commenced in the District Court on 15 November 2005 before Deputy District Judge Yiu. It lasted 24 days, the evidence and submissions spreading from mid-November to the end of the first week of December 2005 and resuming on 23 January 2006. Ms Mak was due to testify on 24 January. She attended court that day but, given argument about her proposed testimony, she did not testify that day but the next, that is, on 25 January 2006.

The letters

21. On 24 November 2005, Wong drafted a letter which he caused to be delivered to LCK. He advised the firm that it be typed and sent to Fanny Mak. Yeung read the draft, spoke to Wong over the telephone about it, and he signed a letter in terms identical to that drafted by Wong. On the same day, the letter was sent by fax to the general office number of Lily Fenn & Partners, and on the following day was also sent by post to Ms Mak at her office. The letter was written openly, by which I mean on LCK’s letterhead with a reference identifying Yeung...

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