法庭:涉妨司法 大律師黃志偉終審甩罪
【本報訊】執業廿多年的大律師黃志偉,八年前處理一宗盜竊案時,被指先後發出三封信給當律師的控方女證人施壓,要她引用法律專業保密權拒絕作證,結果被區院裁定企圖妨礙司法公正罪成並判監,到昨日才終審上訴得直,獲撤銷定罪和刑罰。
終院指出,雖然法律無規定律師在接觸對方的證人或準證人時要通知對方,但在未通知對方的情況下而接觸對方的證人,必然會令人懷疑是否涉及不正當的行為,希望所有律師要以此案為鑑,不要重蹈黃的覆轍。
案發於○五年十一月至○六年一月,黃當時代表一宗盜竊案的被告,控方證人女律師麥少芬曾受銀行指示見證該盜竊案被告簽署涉案文件,黃先後草擬三封信給麥向她施壓,要她向法庭以宣稱法律專業保密權而拒絕在案中作證。區院於一○年裁定黃企圖妨礙司法罪成,判監六個月。黃向上訴庭上訴失敗,早前再向終院上訴。
指無意圖干擾審案
終院判決書指出,控方指黃熟悉法律及以法律專業保密權恐嚇麥,但案情卻顯示黃是一名能力低的大律師,黃向麥施壓可能屬滋擾或威脅,但黃要求的是要麥向法庭宣稱法律專業保密權,黃並無意圖干擾法庭公正審案,因此判黃終審上訴得直。
案件編號:FACC 10/2012
香港特別行政區訴黄志偉
終院刑事上訴2012年第10號
(原高等法院上訴法庭刑事上訴2010年第203號)
上訴人:黄志偉
答辯人:香港特別行政區
主審法官:終審法院常任法官陳兆愷、終審法院常任法官李義、終審法院常任法官鄧國楨、終審法院非常任法官馬天敏及終審法院非常任法官高禮哲爵士
判決:本院一致裁定上訴得直
判案書:由常任法官李義頒發判詞
聆訊日期:2013年8月28及29日
判案書日期:2013年9月23日
法律代表:
御用大律師Clare Montgomery女士、資深大律師夏偉志先生及大律師蔡一鳴先生(由何敦,麥至理,鮑富律師行延聘)代表上訴人;
御用大律師Jonathan Caplan先生及資深大律師郭莎樂女士(由律政司延聘)代表答辯人。
摘要:
1. 上訴人是一名大律師。他被延聘在另一宗刑事法律程序中代表一名被控盜竊罪的劉女士。劉女士是某間公司的董事,而該公司則爲另一間名爲EC Textiles公司的法團董事。劉女士被指利用不屬於她的財產作爲信貸保證,與一間銀行設定押記契據。麥女士是負責該項交易及契據簽立的律師,她被傳召在劉女士的刑事法律程序中以控方證人的身分出庭作證。上訴人透過延聘他的律師行向麥女士發出數封由他草擬的信件,在信中代表EC Textiles宣稱法律專業保密權,並威脅假如法律專業保密權不獲保護便向她採取法律或紀律行動。
2. 上訴人被控企圖妨礙司法公正的控罪,經審訊後被裁定罪名成立,被判監禁六個月。上訴法庭駁回他的上訴,認爲不論上訴人對於該法律專業保密權論點的有效性的信念爲何,他都無權騷擾或威嚇該名證人麥女士,意圖透過該種騷擾強迫她採取非自願的行動,即向法庭申請以宣稱法律專業保密權為依據而不出庭作證。
3. 終審法院一致裁定上訴得直。首先,本院裁斷上訴人有充分依據相信麥女士與EC Textiles之間存在隱含聘用的關係。就上訴人相信存在法律專業保密權而言,本院贊同上訴法庭將疑點利益歸於上訴人。上訴人在預備劉女士的案件期間所寫的筆記中,載有他的意見認爲可以法律專業保密權作爲一項論據,或至少可加以進一步探討。此外,上訴人對法律專業保密權的範圍及效力的理解顯然貧乏。終審法院拒絕接納控方的理論指上訴人身為大律師,對法律有良好的知識,卻無所顧忌地以法律專業保密權作爲恐嚇麥女士的藉口。
4. 至於有關的爭議點,即上訴人的行爲是否帶有妨礙司法公正的非法傾向,終審法院同意上訴法庭推翻原審法官的裁斷(原審法官裁斷有非法傾向)的理由。然而,終審法院拒絕接納上訴法庭為該裁斷所提出的另一依據。上訴人安排寄出該等威脅信件,目的是逼迫麥女士透過向法庭提出申請而提出法律專業保密權的聲稱。向麥女士施加壓力以迫使她作出該項申請並不構成上訴人被控的控罪,因爲它並不構成帶有傾向干擾法庭秉行公正的能力的行爲,而因此並沒有該種非法的傾向。
5. 終審法院提醒法律專業人士在接觸對方的證人或準證人時須小心行事。在未有通知對方的情況下而接觸該等證人,必然會引起不正當行爲的懷疑。
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 the Law Society (said to be
“self-explanatory”) and, in reply to Ms Mak’s letter of 30 November, it drew
attention to section 34(2) of the Criminal Procedure Ordinance[11]
stating that such provision “dictates that it is for the witness who is served
with the said Summons to apply to the issuing court to nullify [it]”. It
cited R v Derby Magistrates’ Court, ex p B[12]
for the proposition that evidence covered by LPP is not “material evidence” for
the purposes of the section.
18. Ms Mak replied on 19 December 2005.[13]
She repeated her guarded statement as to whether ECT had been her client;
denied the relevance of section 34(2) and reiterated that it was for LC&K
to take out proceedings to set aside the witness summons if they so desired,
stating once more that unless that was done “I would be obliged by law to be a
witness in the court unless otherwise ordered.”
19. As previously noted, the trial was adjourned
part-heard in the first week of December and was due to resume on 23 January
2006. On 16 January, Mr Wong wrote to prosecuting counsel suggesting that
Ms Mak be called on 24 January to accommodate Mr Wong’s other commitments.
Neither by that letter nor by any prior communication did Mr Wong inform the
prosecution that the defence had been writing to Ms Mak or that they had any
concerns about LPP.
20. On the same day, 16 January, Mr Wong drafted
a letter to be sent to the Law Society by LC&K. However, the fax
coversheet contained a request by Mr Wong’s secretary that LC&K should
“discuss with Counsel before issuing the letters.”
21. The letter to the Law Society was only sent out
by LC&K and copied to Ms Mak on 20 January 2006 (“the 3rd Letter”).
Since Ms Mak was due to give evidence on Tuesday, 24 January, this meant that
those letters were only sent out on the preceding Friday, with a weekend
intervening. The prosecution attaches importance to that timing as
indicating that the letter was a pure threat and not seriously intended to
evoke a response from the Law Society.
22. The enclosure to the 3rd Letter[14]
provided the Law Society with copies of LC&K’s correspondence with Ms Mak
concerning her intended giving of evidence. It complained that “despite
repeated reminders, Ms Mak has adopted an attitude of defiance towards
complying with her duty of upholding client’s privilege/confidentiality as well
as privacy...” and invited the Law Society “to look into the matter and take
whatever preventive and/or remedial measures necessary to uphold the professional
ethics applicable to a member...”
23. As with the 1st and 2nd Letters, Ms Mak
informed the police of her receipt of the 3rd Letter. A conference with
prosecuting counsel was held with her on 23 January.
A.3 The hearing
24. On 24 January 2006, just as the prosecution
was about to call Ms Mak as a witness, Mr Wong rose to object to her giving
evidence on the grounds of LPP. He told the Court that “she was the
solicitor acting for ECT and its officers” in the transaction, pointing to the
bill of costs. In support of his argument, he handed to the Judge a
photocopy of a single page from the then current edition of Blackstone’s
Criminal Practice which referred to a legal adviser’s duty, subject to the
client’s waiver, to refuse to give evidence relating to communications between
the adviser and the client for the purpose of obtaining or giving legal
advice. The prosecution places substantial weight on the fact that the
extract produced by Mr Wong was incomplete, misleadingly excluding – say the
prosecution – passages identifying as matters not covered by the privilege, the
identity of a solicitor’s client and matters falling within the crime and fraud
exception.[15]
I return in Sections E.2a to E.2c below to examine more closely what occurred
at the hearing.
25. After hearing submissions, the trial Judge
ruled against the privilege claim and Ms Mak testified that she had been instructed
by the bank to prepare the deed; that she had verified the identity of Ms Lau
as the person who had signed it in her presence on behalf of Brightway; and
that she had then caused the deed to be registered in the Companies Registry.
Mr Wong’s cross-examination sought to suggest that Ms Mak was not in fact sure
that it was her own signature on the document as she had asked to see the
originals before confirming that this was the case.
A.4 The present charge
26. As the LC&K letters addressed to Ms Mak
were signed by Mr Yeung, he was charged with perverting the course of
justice. On 22 July 2009, after trial before Deputy Judge M Chow in the
District Court, he was convicted and sentenced to four months’ imprisonment
suspended for 12 months. However, his conviction was quashed by the Court
of Appeal since, on the evidence, Mr Yeung had little real involvement in the
conduct of Ms Lau’s case and the findings as to the state of his knowledge were
unsafe.[16]
27. The fact that Mr Wong had drafted the letters
and the extent of his involvement emerged in the course of Mr Yeung’s trial and
in September 2009, Mr Wong was charged with attempting to pervert the course of
justice, initiating the present proceedings. On 29 January 2010, Messrs
Haldanes, his solicitors, wrote to Ms Lau asking whether she would waive
privilege in respect of communications made in the course of Mr Wong acting for
her. No waiver was forthcoming.
B. The applicable principles
28. Two sets of principles are relevant: first,
those which determine how the offence of attempting to pervert the course of
justice is constituted, particularly (on the present facts) in relation to
allegedly improper approaches made to a witness; and secondly, those which
determine when legal professional privilege arises and the scope and effect of
the privilege.
B.1 Attempting to pervert the course of
justice
29. In HKSAR v Egan,[17]
this Court had occasion to consider the elements of a conspiracy to pervert the
course of justice in relation to an alleged attempt to influence a potential
witness. That review and the authorities there cited are closely relevant
to the present case. They provide the basis for the following
propositions.
B.1a The offence generally
30. An attempt to pervert the course of justice
is “the doing of some act which has a tendency and is intended to pervert the
administration of public justice.”[18]
The actus reus is thus the doing of the act with the prohibited tendency
and the mens rea is the intention to pervert the course of justice.
31. With regard to the actus reus
generally, the following propositions may be stated:
(a) Although it is called an “attempt”, it is
a substantive offence. But like an inchoate offence, it is committed even
where the act with the prohibited tendency does not actually result in
interference with the course of justice.[19]
(b) A person’s conduct has a tendency to
pervert the course of justice if it has a tendency towards “impairing (or
preventing the exercise of) the capacity of a court or competent judicial
authority to do justice”.[20]
(c) The tendency must involve impairing
the administration of justice in curial proceedings. Conduct with a
tendency to result in unlawfulness which does not interfere with curial
proceedings does not constitute the offence.[21]
32. The following propositions may be stated in
respect of the mens rea of the offence:
(a) To prove that a defendant intended to
pervert the course of justice, it is necessary to prove that he knew that his
conduct would have or that he intended it to have a tendency to pervert the
course of justice in relation to the curial proceedings in question.[22]
(b) Where his conduct has a manifest tendency
to pervert the course of justice, the required intention may readily be
inferred from proof that the defendant intended to perform the relevant
act. But where the act does not manifestly have the prohibited
tendency, it is necessary to prove the abovementioned specific intent on the
defendant’s part.[23]
B.1b The offence in connection with attempts to
influence a witness
33. All kinds of conduct may have the prohibited
tendency. The focus in the present case is on an approach made to a
witness with a view to influencing her in relation to the evidence she is
expected to give. In that context, the following propositions may be
stated:
(a) There is no property in a witness and in
principle neither party can prevent the other side from seeing a witness. [24]
Of course, the approach made must not involve doing any act with the
prohibited tendency and intention vis-à-vis the witness.
(b) Whether an approach does or does not have
such a tendency depends on the circumstances. In many cases, the tendency
will be clear, but more difficult questions may arise in the penumbra of the
offence, such as where the approach is made believing that the intended
evidence is false, or where threats are made to exercise a legal right.[25]
In the present case, an approach made to assert LPP must be addressed.
(c) In determining whether the
prohibited tendency is established, the courts have focussed on the purpose of
the approach and the means used to try to influence the witness. The
purpose or objective of a defendant’s approach to a witness is thus usually
treated as part of the actus reus, the prohibited tendency.
However, it necessarily involves examining the accused’s mental state. So
the concept of “purpose” overlaps with the mens rea requirements of the
offence.
(d) Both the purpose of the approach and the
means used must be lawful. If either is unlawful or improper (in the
sense of putting the proper administration of justice at risk), the prohibited
tendency is proved. Thus, as stated in Egan:
“...great care must be taken if an approach is to be made
with a view to influencing a witness in relation to his or her anticipated
evidence. Such an approach can only properly be made if its purpose is lawful
and if no unlawful or improper means are used to secure that purpose.”[26]
(e) An example of a lawful approach
involves the case where a person who believes the intended evidence to be false
approaches the witness with the object of persuading him or her not to give
such false evidence (a lawful purpose) using reasoned argument supported by
material facts and documents (lawful means).[27]
(f) In contrast, if the object of
the approach is to get the witness to give false evidence or to refrain from
telling the truth, the offence is committed even if the means used involve no
more than exercising or threatening to exercise a legal right (such as threatening
to give an employee lawful notice terminating the employment).[28]
(g) Equally, even if the object of the
approach is lawful, for example, to persuade the witness not to give evidence
believed to be false, the offence would be committed if unlawful or improper
means (such as improper pressure or bribes) are used to achieve that aim.[29]
(h) Whether conduct constitutes improper
pressure may raise questions of fact and degree. It may be important to
consider when, by whom and upon whom and for what purpose the pressure is
applied.[30]
(i) In some cases, in deciding
whether the pressure acquired the prohibited tendency, it may be useful to ask
whether it had the tendency to prevent the witness making a free and voluntary
choice as to whether to give evidence and what evidence to give.[31]
B.2 Legal professional privilege
B.2a LPP generally
34. The rationale of legal professional privilege
was stated by Lord Taylor of Gosforth in R (ex p B) v Derby Magistrates’
Court[32]
as follows:
“The principle which runs through all these cases ... is
that a man must be able to consult his lawyer in confidence, since otherwise he
might hold back half the truth. The client must be sure that what he tells his
lawyer in confidence will never be revealed without his consent. Legal
professional privilege is thus much more than an ordinary rule of evidence,
limited in its application to the facts of a particular case. It is a
fundamental condition on which the administration of justice as a whole rests.”
35. His Lordship also reiterated the
well-established rules that a communication protected by privilege continues to
be protected so long as the privilege is not waived by the client; that the
privilege exists whether disclosure is sought for the purpose of civil or
criminal proceedings, and whether by the prosecution or the defence; and that
the refusal of the client to waive his privilege, for whatever reason, or for
no reason, cannot be questioned or investigated by the court.[33]
Referring to the position of the legal adviser, Lord Taylor stated:
“...the privilege is that of the client, which he alone
can waive, and ... the court will not permit, let alone order, the attorney to
reveal the confidential communications which have passed between him and his
former client. His mouth is shut forever.”[34]
36. The two categories of LPP are usually
referred to as “legal advice privilege” and “litigation privilege”, described
by Lord Scott of Foscote in Three Rivers District Council v Governor and
Company of the Bank of England (No 6)[35]
as follows:
“The modern case law on legal professional privilege has
divided the privilege into two categories, legal advice privilege and
litigation privilege. Litigation privilege covers all documents brought into
being for the purposes of litigation. Legal advice privilege covers
communications between lawyers and their clients whereby legal advice is sought
or given.”
37. Once established, legal advice privilege
“gives the person entitled to it the right to decline to disclose or to allow
to be disclosed the confidential communication or document in question.”[36]
Moreover, unlike other classes of confidential communications, LPP cannot be
overridden by the court:
“... if a communication or document qualifies for legal
professional privilege, the privilege is absolute. It cannot be overridden by
some supposedly greater public interest. It can be waived by the person, the
client, entitled to it and it can be overridden by statute (cf R (Morgan
Grenfell & Co Ltd) v Special Comr of Income Tax [2003] 1 AC 563), but
it is otherwise absolute. There is no balancing exercise that has to be carried
out: see B v Auckland District Law Society [2003] 2 AC 736, 756-759,
paras 46-54). ... legal professional privilege, if it is attracted by a
particular communication between lawyer and client or attaches to a particular
document, cannot be set aside on the ground that some other higher public
interest requires that to be done.”[37]
B.2b Implied retainers
38. In the present case, there was no litigation
pending or in contemplation at the time when Ms Lau signed the deed. Any
LPP arising could therefore only involve legal advice privilege. For
legal advice privilege to arise, Ms Mak had to be acting as solicitor for ECT
(for whom Ms Lau, a director, was acting) in the relevant transaction. Ms
Mak was plainly instructed by the bank but was never expressly retained to act
simultaneously as ECT’s solicitor. So it is necessary to consider the
principles for determining when a solicitor is held to have impliedly accepted
a retainer to act for the person in question.
39. It is clear that a solicitor and client
relationship may arise by implication. Thus, as Scott LJ stated in Groom
v Crocker:[38]
“The relationship is normally started by a retainer, but
the retainer will be presumed if the conduct of the two parties shows that the
relationship of solicitor and client has in fact been established between
them.”
40. A case where the court found an implied
retainer clearly established is Pegrum v Fatharly[39]
where, in order to save costs, both the lender and borrower in a loan
transaction went together to consult the same solicitor who prepared all the
transaction documents. Anderson J stated:
“When both parties to a transaction consult the same
solicitor and together give him the information needed to prepare the documents
in which their respective rights and obligations are to be set out and the
solicitor accepts responsibility to prepare the documents without any
indication that he cannot fully discharge his professional duties to them both
there is a strong bias towards finding that the solicitor tacitly agrees to act
for both parties and to undertake the usual professional responsibilities to
them both: see Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp
[1979] Ch 384 esp at 396. In the absence of a clear indication by the solicitor
that the solicitor does not accept one of the parties as his client it is
natural in such a case to assume both are relying on him for professional
advice and assistance. This follows from the mere fact that both have consulted
him. There may be other circumstances which show that there is no reliance by
one or other of the parties on the solicitor, but, if not, reliance should be
inferred as a fact.”[40]
41. His Honour added:
“This does not mean a solicitor whose services are sought
by both parties is bound to accept that he is to serve both parties. He can
refuse to do so and elect to act for one party only. This requires a very clear
statement by the solicitor that this is to be his position. It has even been
held that he is duty bound in such a case to positively recommend that the
other party get another solicitor and take independent advice before entering
into the transaction, and, in the event that recommendation is not followed, to
give him proper advice as to the risks in signing the documents: see Irvine
v Shaw [1992] ANZ Conv R 83.”[41]
42. Whether an implied retainer arises therefore
depends on whether a solicitor and client relationship can properly be inferred
on the facts. In Watson v Ebsworth & Ebsworth,[42]
the New South Wales Court of Appeal cited a helpful passage from
Professor G E Dal Pont’s book Lawyers’ Professional Responsibility,[43]
indicating the sorts of circumstances that might be relevant:
“Retainers, like other contracts, need not be created by
express words, whether written or oral; their existence can be inferred or
implied from the circumstances. In this context it is the existence of the
retainer that is implied, not its terms ...
Proof of an implied retainer rests on proof of facts and
circumstances sufficient to establish a tacit agreement to provide legal
services. Its existence is determined by inference from objective facts, not
merely by the lawyer's belief as to which clients he or she was acting for. The
reasonable expectations of the alleged client carry significant weight here, as
the lawyer may always take steps to dissuade any person from a belief that the
lawyer acts for that person.
The lawyer's file (including letters and other
correspondence) and diary notes, specifically regarding how he or she has
referred to and dealt with the claimant, may prove useful. Aspects that
may impact upon a client's reasonable expectations of a retainer include the
capacity in which the lawyer acted (say, giving advice in a non-legal
capacity), who instructed the lawyer, who is liable for the lawyer's charges,
and whether a contractual relationship existed with the claimant in the past
(as the court may be readier to assume that the parties intended to resume that
relationship in such a case).”
43. Anderson J[44]
also cited Beach Petroleum NL v Kennedy,[45]
where the Court emphasised the limited relevance of the solicitor’s
understanding of his own retainer:
“His own understanding of the relationship is not
conclusive. The question of a retainer is not determined by the belief of the
solicitor as to the company or companies for whom he or she is acting. It is
determined by the objective facts. Mr Bateman's evidence of his understanding
of the relationship is little more than evidence of inferences he drew from the
circumstances. In the absence of plain language from any of the directors of
the various companies, the matter remains to be determined by inference.”
44. In Hong Kong, an implied retainer was found
by Tang J (as Tang PJ then was) to have arisen in International Trading Co
Ltd v Lai Kam Man,[46]
a property sale and purchase case in which the purchaser, in accordance with
the memorandum of sale, had to bear all solicitors’ fees in connection with the
purchase. Relevant to the inference being drawn was the fact that
the solicitors, who had been nominated by the developers, had written to the plaintiff
:
“... saying that if the purchaser had any question or
that further assistance was required, the purchaser should contact [the
solicitors] at any time. The letter did not say that [the solicitors] were
acting as [attesting agent only] only nor that they were the Vendor's
solicitors only. It also did not say that such further assistance would be
given without any responsibility and as the Vendor's solicitors only, and hence
on behalf of a person with a conflicting interest. Nor did it say that the
purchaser was under no direct obligation to pay any fees to [the solicitors]
and that any fees payable would be payable by the purchaser pursuant to its
contract with the Vendor.”[47]
C. The Issues
45. Mr Wong’s case at trial was that he genuinely
believed that the evidence Ms Mak was intended to give was covered by LPP and
that the letters written to her were a legitimate assertion of ECT’s legal
right to demand that she protect that privilege by declining to give the
evidence sought.
46. To decide whether Mr Wong’s acts amounted to
conduct with a tendency to pervert the course of justice and whether he knew or
intended that his acts would have the prohibited tendency, a series of
questions arise:
(a) Was there a solicitor and client
relationship between Ms Mak and ECT in connection with Ms Lau’s execution of
the deed? What did Mr Wong believe the position to be?
(b) If there was or may have been such a
solicitor and client relationship, was the evidence which Ms Mak was intended
to give within the scope of ECT’s LPP? What did Mr Wong believe the
position to be?
(c) What was Mr Wong’s purpose in
causing the letters to be sent to Ms Mak? Was it an unlawful purpose?
(d) Was Mr Wong’s conduct of sending the
letters to Ms Mak without informing the prosecution, rather than directly
raising the matter with the Court, conduct with the prohibited tendency?
Did such conduct constitute unlawful or improper means of achieving his purpose
(even if he may have been pursuing a lawful purpose)?
(e) Did Mr Wong know that such conduct
was or intend such conduct to be conduct with a tendency to pervert the course
of justice?
D. The Judge’s decision and the
Court of Appeal’s views thereon
47. It may be noted that the Judge’s decision was
issued after the Court of Appeal’s judgment in Egan,[48]but
about six weeks before this Court’s judgment in Egan was published.
The Court of Appeal’s judgment below was issued afterwards.
D.1 Whether a solicitor and client
relationship was created
48. The Judge did not consider it necessary to
decide whether a solicitor and client relationship had arisen, saying that it
was “not conclusive of guilt or innocence; merely a cogent milestone on the
journey”.[49]
However, he apparently inclined towards the view that no such relationship
existed, placing reliance on the evidence of Ms Mak.
49. The Court of Appeal concluded[50]
that the Judge had decided that no retainer existed and that his decision was
erroneously based on Ms Mak’s understanding of who her client was. She
had repeatedly denied that she was acting for anyone other than the bank,[51]
saying that she was “certain” that ECT was not her client.[52]
Without itself deciding whether an implied retainer had actually been created,
Stock VP (with whom the other members of the Court agreed) stated:
“It is merely necessary to say that Ms Mak’s ipse
dixit was not conclusive of the matter and that the foundation existed of
an arguable point, albeit not a strong foundation. It is not even necessary to
go that far; for what suffices for part of the applicants’ purposes is some
footing from which to accept that Wong genuinely thought he had the makings of
an argument, an argument which he thought possible once he had sight of the
solicitor’s invoice.”[53]
D.2 Whether covered by LPP and what Mr Wong
believed
50. The Judge concluded that objectively, there
was no LPP “given the scope of the evidence that was required by the
prosecution in the trial, and even if it did, it was covered by the exceptions
I have referred to”.[54]
The exceptions in question were “as to identity and to fraud”.[55]
51. As to Mr Wong’s belief, his Honour
stated:
“I am also satisfied that as far as you are concerned you
had little or no belief in the actual existence of legal professional privilege
and being alerted to the problems by your fellow counsel and the exceptions
referred to in Blackstone. Your reliance on the bill of costs and instructions from
your client constitutes a deficiency of basis which I neither believe nor
accept. In short, if you did hold such a belief, it was a self-induced delusion
contrary to the facts, the law and procedure.”[56]
52. The finding is somewhat equivocal (with
references to Mr Wong having had “little or no belief” and possibly having that
belief as a “self-induced delusion”), but I take it that the finding was that
Mr Wong had no genuine belief in the existence of LPP.
53. It seems that the Judge’s thought that
finding did not really matter since the offence was in any event established
because improper means had been used:
“Whether you believed in its existence or not seems to me
to be of limited relevance subservient to what you did and intended to do. If
you had a genuine belief in the true existence of legal professional privilege,
there were at least two proper lines of enforcement, probably three.” [57]
[Which he subsequently held had not properly been pursued]
54. The Court of Appeal agreed that objectively,
there was no basis for an LPP claim. Stock VP gave three reasons for that
conclusion: (i) that the evidence sought from Ms Mak did not involve legal
advice;[58]
(ii) that LPP does not cover the identity of the client except where disclosure
may incriminate the client or indirectly reveal privileged communications;[59]
and (iii) that in the present case, the signatory’s identity was not intended
to be kept confidential, the bank having an interest in ensuring that the
person concerned was properly signing on behalf of ECT.[60]
On that basis, Stock VP held that “The argument was a nonsense”[61]
and that “...Wong was ... patently wrong in asserting that the limited intended
evidence by Mak was covered by legal professional privilege.”[62]
55. However, his Lordship was uneasy about the
Judge’s finding that Mr Wong had no belief that an arguable LPP claim
existed. Stock VP thought that there were grounds for doubting the
genuineness of Mr Wong’s stated belief, including his partial citation of Blackstone,
his oblique correspondence with the Law Society and his keeping of the LPP
claim “up his sleeve” until the last moment.[63]
But his Lordship noted that the Judge had not mentioned Mr Wong’s “Note of
possible defences” and “Further Note on preparation of the defence”.[64]
He also drew attention to the evidence of Mr Wong’s “aggressive tenacity on
behalf of his clients” and “the evidence which suggests that he is a facts
advocate, not much at ease with arguments of law”.[65]
Stressing that “One has in a case such as this to take the greatest care to
distinguish between misguided professional enthusiasm or even incompetence, on
the one hand and, on the other, dishonesty”,[66]
Stock VP held that there were sufficient residual doubts about the Judge’s
conclusion as to lack of belief.[67]
56. The Court of Appeal held, however, that those
doubts did not affect the safety of the conviction because “the Judge made it
clear that these factors did not ultimately dictate his decision...” resting
his conclusion on his finding that improper means were used.[68]
D.3 Mr Wong’s purpose
D.3a The prosecution’s case
57. In opening for the prosecution, Ms Charlotte
Draycott SC submitted that Mr Wong’s acts were “an attempt to prevent or
dissuade [Ms Mak] from testifying in court as a prosecution witness...”[69]
This was put to him in cross-examination:
“Q: So how can you explain what you did, except in terms
of an attempt to dissuade her from coming to court.”[70]
58. However, the prosecution then introduced an
alternative purpose. Ms Draycott suggested to Mr Wong that he knew full
well that his privilege argument did not hold water and added:
“And that was why you had been trying to get [Ms Mak] either
not to come to court or to claim privilege or not give evidence because you
knew if it was argued in court you were bound to lose.”[71]
59. Mr Graham Harris SC, then leading for the
defence, objected that this was a change of case by the prosecution and, in
closing submissions, Ms Draycott stated:
“The third matter which they raise as an apparent change
of ground is that in opening, it was said that the intent was both by threats
and more subtle pressure to unlawfully persuade [Ms Mak] from giving evidence,
and the letters were designed with intent to improperly influence [Ms Mak] not
to give evidence. And it’s suggested there’s a change of ground now because in
my closing submission I deal with it not only on that basis but also on the
basis that it was an attempt to make [Ms Mak] do something which she did not
want to do, which she did not feel was justified, in other words, to set aside
her witness summons.”[72]
60. Ms Draycott argued that it was “splitting
hairs” to suggest that the two ways Mr Wong’s purpose had been put were
different:
“... the immediate aim may have been to persuade [Ms Mak]
to make an application to set aside her witness summons on the basis of legal
professional privilege and not being able to give material evidence. But the
ultimate aim was to stop that evidence going before the court, and as I said in
closing, it’s splitting hairs to say they are different because the purpose was
to stop the court having the evidence, and that perversion happened because
pressure was brought to bear on her to do something which he did not want to do
with that end in mind.”[73]
D.3b The Judge’s findings
61. The Judge appears to have accepted that there
was no difference in the two formulations of Mr Wong’s purpose. His
Honour found that Mr Wong “decided to try to derail the witness prior to giving
evidence”.[74]
However, in the very next paragraph, he stated:
“Your intention was to persuade her to make an
application to set aside the witness summons she had received [on the basis of LPP].”[75]
62. The latter approach seems ultimately to have
been favoured:
“... you wilfully and consciously set aside legitimate
lines of defence in order to try to force by threats and intimidation [Ms Mak],
prosecution witness, to adopt and embrace a position she did not accept or
believe in and take a course of action she did not wish to take.”[76]
“They are threats simpliciter, threats intended to
deflect her from her legal duty and to force her to make an application
contrary to her beliefs and wishes”.[77]
63. His Honour suggested a motive for such
threats:
“It is clear to me, and it was clear to you, defendant,
that if [Ms Mak] herself was to assert she was bound by legal professional
privilege, as a solicitor, the court would be more likely to accept that
position.”[78]
D.3c The Court of Appeal’s approach
64. The Court of Appeal also viewed the case as
proceeding on the latter basis. Stock VP described the essence of the
case against Mr Wong[79]
as seeking:
“... by improper pressure to force a prosecution witness,
herself a solicitor, to claim, on a basis in which Wong ... had no faith, that
by reason of legal professional privilege she was precluded from testifying.”[80]
65. His Lordship also noted that, as a last
resort, Mr Wong’s intention was to apply to the Court himself. His case:
“... as no doubt the judge recognized, was that
persuading Ms Mak to seek to set aside the summons – persuading her by the
letters to her and to the Law Society – was the principal course, failing the
success of which an application would be made ‘when the witness came to
testify’”.[81]
66. The Court of Appeal did not consider the
prosecution’s changed direction material, either substantively or procedurally:
“It is true that the prosecutor’s closing submission was
the first time that the objective was put in that particular way (to make an
application, contrary to her wishes, to set aside) and, in that sense, it
evidenced a change. But I am satisfied that the change was not material and, in
any event, occasioned no prejudice.”[82]
67. Stock VP echoed the Judge’s view of Wong’s
possible motive, namely, that a claim made by a solicitor “is likely to carry
considerable weight; more weight on its face than if the claim were made by the
client”.[83]
D.4 Whether the conduct had the prohibited
tendency
D.4a The Judge’s decision
68. The Judge decided that even if a legitimate
claim of LPP existed, the offence was committed because the means adopted to
enforce that claim – his causing threatening letters to be sent – were improper
and had the tendency to pervert the course of justice.
69. The Judge found that prohibited tendency
arose out of (i) the fact of Mr Wong’s approach to a prosecution witness; (ii)
his failure to inform the prosecution of what he was doing; and (iii) his
failure to raise the issue of privilege directly with the Judge at Ms Lau’s
trial, Judge Tallentire’s view being that that was the only proper avenue for
such a claim.
70. Thus, his Honour took the view that was it
was a breach of professional standards for Mr Wong to instigate:
“...communications with a prosecution witness which
contained clear and unambiguous threats, without informing the prosecution and
in circumstances where you had, and you knew you would have, the opportunity to
properly pursue this application when you appeared on behalf of your client in
the District Court.”[84]
71. The fact that Mr Wong had approached a
witness on the other side was said to be a major hurdle he had to face.
Such an approach, his Honour held:
“... should happen only in the most exceptional
circumstances and be attended by the utmost circumspection and probably
transparency.”[85]
72. He held that such an approach was improper
because:
“... the parties must perforce be the prosecution and the
defence; not defence and a prosecution witness. Therefore, if the matter was to
be resolved between the parties, it was the prosecution who should have been approached.
You, however, did not do this; nor did you even inform the prosecution of your
direct approach to the prosecution witness.”[86]
73. The failure to inform the prosecution was
also regarded as highly significant:
“What weighs heavily with me is why you did not seek to
clarify the situation via the prosecution. This is unexplained and in my
opinion is not capable of explanation.”[87]
74. The other major “hurdle” facing Mr Wong was
identified as follows:
“The second hurdle, one of great difficulty, is that the
judge in the trial was the person to settle the matter. Your evidence that you
intended this to be done, albeit by [Ms Mak’s] raising it, does not ring
true....”
75. The Judge also found that the threatening
tone of the letters, coupled with their timing, showed that they were purely
intended as threats and could not be regarded as lawful attempts at reasoned
persuasion.[88]
D.4b The Court of Appeal’s disagreement with the Judge
76. The Court of Appeal disagreed with the
Judge’s central reasons for holding that the conduct had the prohibited
tendency.
77. Their Lordships held[89]
that it was wrong to regard an approach made by the defence to a prosecution
witness, without more, as objectionable and tending to pervert the course of
justice. There was no basis for holding that an approach could only be
made in “the most exceptional circumstances”. The established rule is
that there is no property in a witness, as this Court reiterated in Egan[90]:
“... as Lord Denning MR pointed out, neither party can
‘prohibit the other side from seeing a witness of fact, from getting the facts
from him and from calling him to give evidence or from issuing him with a
subpoena.’ Pointing to the Law Society’s guidance to its members, his Lordship
stated:
‘... the Council have always held the view that there is
no property in a witness and that so long as there is no question of tampering
with the evidence of witnesses it is open to the solicitor for either party to
civil or criminal proceedings to interview and take a statement from any
witness or prospective witness at any stage in the proceedings, whether or not
that witness has been interviewed or called as a witness by the other party.’”[91]
78. Given that there is no property in a witness,
the Court of Appeal held that there was nothing improper in not telling the
prosecution of the approach made.[92]
79. The Court of Appeal also disagreed with the
Judge’s view that the criminal court was the only proper forum for raising an
LPP objection. It rejected the defence submission that section 34(2) of
the Criminal Procedure Ordinance[93]
precluded ECT (and anyone other than the witness summonsed) from applying to
the criminal court to discharge the summons, holding that jurisdiction to
entertain a third person’s application existed at common law.[94]
However, it noted that in Rockefeller & Co Inc v Secretary for Justice,[95]
Godfrey VP had held that where documents said to be privileged had already come
into the hands of a third party and it was sought to restrain their use court,
the proper course was to bring civil proceedings to restrain such use on behalf
of the person whose privilege it was. Godfrey VP also said in passing
that if a privilege objection was taken to production of documents pursuant to
a subpoena duces tecum, the party claiming the privilege “could no doubt
have applied to the trial judge to have the subpoena set aside”.
80. The Court of Appeal therefore concluded that
ECT could have chosen either to apply to the criminal court or to take the
civil avenue.[96]
It held nevertheless that the point was academic since no civil proceedings
were intended and since Mr Wong had intended – he said as his last resort – to
raise the point himself before the trial Judge in the criminal proceedings.[97]
D.4c The Court of Appeal’s basis for upholding the
conviction
81. Having rejected the basis upon which the
Judge’s finding of a prohibited tendency had rested, the Court of Appeal
nevertheless upheld the conviction, substituting its own basis for that
finding, as set out in three key paragraphs of the judgment.
82. Having cited an important passage from R v
Rogerson,[98]
which will require closer examination, Stock VP held at paragraph 74 that “the
course of justice is deflected by causing applications to be made to a court
which, but for improper pressure, would not be made.” His Lordship
elaborated upon that conclusion at paragraphs 168 and 169 of his judgment which
are examined in Section H.2 below.
D.5 Mr Wong’s mens rea
83. As mentioned above,[99]
in cases involving approaches made to witnesses, the courts have examined the
purpose of the approach and the means used to try to influence the witness.
And, as I have noted, a finding of what the defendant’s “purpose” was
inevitably bears upon a finding of whether he had the requisite mens rea.
84. In the present case, there is no doubt that
Mr Wong intended to do the acts complained of: he drafted letters which
contained threats of civil action and professional complaint and caused them to
be sent to Ms Mak; and he did so without informing the prosecution and rather
than taking the initiative of raising the matter directly with the Court.
The Courts below found that this pressure had the purpose of compelling Ms Mak
to apply to the Court to set aside the witness summons on the ground of LPP,
with his own possible application as a last resort. The means employed by
Mr Wong were held to constitute improper means with the prohibited
tendency. Given those findings, it was implicitly found that mens rea
was proved.
E. Analysis of the issues
E.1 Whether there was an implied retainer
85. It is not in dispute that Ms Mak acted for
the bank. There was, in my view, a reasonably arguable case that an
implied retainer had arisen for Ms Mak also to act for ECT in relation to the
deed. More importantly, there is ample ground for accepting that Mr Wong may
have believed that there was such an implied retainer.
86. As the Court of Appeal rightly held, whether
or not such a relationship arose did not depend on Ms Mak’s subjective
view. The legal principles are discussed in Section B.2 above. They
establish that an implied retainer may be inferred if the objective facts
indicate a tacit agreement to provide legal services. The relevant facts
in the present case are as follows.
87. No other solicitor was involved. Ms Mak
prepared all the documents, including ECT’s board resolutions. Those
resolutions, together with her firm’s bill of costs, were sent to ECT in
advance of their meeting for ECT’s approval.[100]
The bill of costs was addressed directly to ECT, debiting it for the firm’s
professional charges for preparing, etc, the charges and the board minutes,
without suggesting that ECT was merely being asked to bear the bank’s legal
costs. Ms Mak accepted in evidence that she may well have (and if asked
would have) explained the parties’ rights and obligations arising under the
deed. While she says that her usual practice included telling the bank’s
customers that they might consider separate legal advice,[101]
Ms Mak did not tell Ms Lau that Ms Mak was unable to act for ECT, nor did she
positively recommend that ECT should be separately represented. In her
written response to the 1st Letter which enclosed the bill of costs and alleged
that Ms Mak had acted as solicitor for ECT, Ms Mak did not deny that
relationship, merely stating: “... whether I acted for your client on the above
matter is a matter to be determined on the facts of the case...” This was
repeated in her response to the 2nd Letter.
88. It is possible that the precise position of
Ms Mak acting solely as the bank’s solicitor might have been spelt out in the
deed which was a 50 page document. It was also a document which Mr Wong
had access to. However, it was not explored in the evidence. In
opening, Ms Draycott handed up only a few extracted pages.[102]
E.2 Whether the intended evidence was
protected by LPP
89. As pointed out in Section D.2, Stock VP gave
three reasons for concluding that the proposed evidence was not privileged,
namely, that: (i) the intended evidence did not involve legal advice; (ii) the
identity of a client is not privileged; and (iii) the identity of the person
signing the deed was not confidential. I respectfully agree with the
first and third reasons. However, the second reason requires to be addressed in
some detail since it has had important ramifications for assessing Mr Wong’s
state of knowledge and the propriety of his conduct. I will later deal
more briefly with the first and the third reasons.
E.2a Identity of the client – prosecution’s case
90. The prosecution deployed the “identity of the
client” argument not only as a basis for arguing that the intended evidence was
not privileged, but more importantly, for calling into question the
genuineness of Mr Wong’s purported reliance on LPP. The prosecution’s
argument ran as follows:
(a) Mr Wong was seeking to suggest that the
intended evidence was privileged because it would reveal the identity of Ms
Mak’s client.
(b) That was a bad point since in law, save
for immaterial exceptions, the identity of the client is not privileged.
(c) Mr Wong must have known this
because, when taking the privilege objection at Ms Lau’s trial, he misleadingly
handed to the Judge an incomplete citation of Blackstone, deliberately
suppressing a passage that refuted the suggestion that the identity of the
client is privileged.
(d) This shows that the purported claim to
LPP was a pretext and that the threats made against Ms Mak were wholly improper
and conduct with a tendency to pervert the course of justice.
91. As Stock VP noted:
“Much cross-examination was directed at the contention
that he deliberately misled the court at the Lau trial by not revealing the
passage in Blackstone which stood against his argument; and at other suggested
indicia against his belief in the point. And in the closing submissions too,
counsel for the prosecution asserted in terms that Wong ‘must have realised
that if the claim was brought before a judge, it was likely to fail’.”[103]
92. The prosecution’s argument bore fruit.
The Judge stated:
“... it seems your research extended to extracts from
Blackstone, choosing to ignore the exceptions, especially as to identity and to
fraud, and that scenario involving a barrister of over 20 years experience and
one whose own witnesses say is well capable of looking up the law is bizarre.”[104]
93. His Honour concluded:
“... you had little or no belief in the actual existence
of legal professional privilege and [sic] being alerted to the problems by your
fellow counsel and the exceptions referred to in Blackstone.”[105]
94. The argument was also given some weight by
Stock VP:
“Wong’s omission to draw the Lau court’s attention to the
relevant passage in Blackstone is supportive of the judge’s conclusion that
Wong was well aware that the privilege argument was a non-starter.”[106]
E.2b Identity of the client – irrelevant
95. There is indeed a body of jurisprudence on
whether and in what circumstances a legal adviser may refuse to disclose his
client’s identity. Someone may, for a whole variety of reasons,[107]
want to know the identity of a certain other person and, knowing that a
particular solicitor is acting for that person, seek to find out from that
solicitor who that other person is. Such demands have often been met by
the solicitor’s claim that his client’s identity is privileged and cannot be
disclosed without the client’s consent. An extensive review of the
authorities across several common law jurisdictions by the Australian Federal
Court can be found in Commissioner of Taxation v Coombes.[108]
The Court helpfully summarised its conclusions as follows:
“The following propositions, among others, can be
distilled from the cases we have examined:
o Privilege attaches to communications, and not to facts
which a lawyer observes while acting in the course of a retainer.
o Privilege does not attach to everything a client says
to the lawyer, but only to communications made by the client for the purpose of
obtaining the lawyer's professional assistance. It will not attach to ``mere
collateral facts''. The address and identity of a client will usually be
``collateral facts''.
o Privilege attaches to communications only if they are
confidential. In almost all cases the client's name and address will not have
been communicated confidentially.
o Instructions to a lawyer to do a particular thing, for
example to prepare a legal document such as a will, are generally not
privileged, because instructions to do something do not necessarily amount to a
request for advice.
o As a general rule, the identity of a client will not be
privileged, as the privilege belongs to the client, and the retainer between
the lawyer and the client must be demonstrated in order to establish the
privilege. This requires disclosure of the client's identity.
o Disclosure of the client's identity is necessary before
the privilege can arise even if the client's name was given in confidence, and
it was a condition of the lawyer's retainer that the client's identity be kept
confidential. The client cannot by contract extend the area of privilege.
o Some of the cases support an exception to this general
rule when so much of the actual communication has already been disclosed that
identification of the client amounts to disclosure of a confidential
communication. This will be the case when the client's identity is so
intertwined with the confidential communication that to disclose the identity
would be to disclose the communication.”[109]
96. Those principles are plainly irrelevant in
the present case. There was no question of anyone – Mr Wong or Ms Mak –
seeking to discover or to withhold the identity of Ms Mak’s client. The
very first sentence of the 1st Letter contained the assertion that ECT was Ms
Mak’s client, relying on the bill of costs addressed to ECT, to which Ms Mak
had made a guarded response.[110]
Rather, the question was whether the identity of the person who had signed the
deed was privileged.
E.2c Identity of the client – the prosecution’s
misapprehension of Mr Wong’s case
97. In fact, the suggestion that Mr Wong was
trying to exclude Ms Mak’s intended evidence on the argument that it would
offend LPP by disclosing her client’s identity originated from the
prosecution. It was based on a misapprehension of Mr Wong’s case.
The transcript of the application made on 24 and 25 January 2006 shows that it
was not Mr Wong’s case that LPP prevented disclosure of the identity of
Ms Mak’s client. His failure to hand up the passage in Blackstone
saying that a client’s identity is not privileged, was therefore not an
attempt to conceal an authority against an argument he was running.
98. Stock VP accurately summarises what occurred
at the hearing and nowhere records that Mr Wong was seeking to argue that the
intended evidence should be excluded as privileged information about the
identity of Ms Mak’s client.[111]
On the contrary, Mr Wong tendered the bill of costs and asserted that ECT and
its officers were Ms Mak’s clients. As Stock VP notes, the identity of
the client point arose when:
“Counsel for the prosecution referred to authority
the effect of which was that the identity of the client was not privileged”.[112]
99. On the first day, 24 January, the initial
thrust of Mr Wong’s argument (which was not easy to follow) was that a breach
of LPP was likely if Ms Mak were to testify because she would necessarily go
beyond merely identifying the person who signed the deed and would stray into
privileged territory. His submission was that:
“At the time of the execution, attending a preparation of
the deed, there would be discussion, there would be advice, explanation between
[Ms Mak] and the client. And those information ... is privileged.”[113]
100. Prosecution counsel, Mr H L Wong, was at
pains to assure the Court that he had no intention of asking Ms Mak about any
communications between herself and Ms Lau. He submitted that asking Ms
Mak whether and how she had verified Ms Lau’s identity; whether she had
witnessed Ms Lau’s signing of the document; and whether she had caused the
document to be registered in a public registry did not come within the scope of
the privilege.
101. Mr Wong, then sought to argue that the
privilege would be infringed because the document’s execution was somehow
intrinsically bound up with supposedly privileged communications:
“... The whole occasion of attending the office of the
solicitor is in order to have the advice and then execution of document. One
cannot dissect that occasion in different pieces.”[114]
102. The Judge asked for citation of authority and
adjourned his ruling to the following day, 25 January 2006. When the
hearing resumed, Mr Wong cited the China National Petroleum case and the
extract from Phipson which Mr Ngai had previously mentioned,[115]
for the proposition that privilege attaches “not merely to ... what was said in
the interview but also to the identity of the witness”. That authority
was, of course, irrelevant since, as Mr H L Wong submitted, it was a case about
litigation privilege concerning the identity of a witness being proofed by a
solicitor preparing a litigation brief, where different considerations apply.[116]
However, it was not a case about privilege and the identity of a client.
Mr Wong was trying to rely on that decision in support of his argument that a
person’s identity could not be severed from privileged communications which had
taken place with that person, repeating what he had endeavoured to argue on the
previous day:
“Now, my understanding of the reason behind this judgment
covering the confidentiality of the identity of the person, is that this
arising out of same matter, ie, during the course of taking proof of evidence,
it would be artificial to try to sever this into this part is not proof read,
this part is proof read. ... Our submission is, if it is arising out of the
same matter, ie, the advice, preparation and execution of the deed, then it
must be treated part and parcel of the same matter, ie, the previous
communication at that time – under the law at that time …”
103. It was only on the second day, 25 January,
that privilege and the client’s identity was first mentioned. Prosecution
counsel, Mr H L Wong, read out a passage in Archbold stating that the
identity of a client is not privileged. Mr Wong did not make any
submissions in reply to that point. It had been on 24 January,
before the client identity point was even mentioned, that Mr Wong had handed up
the truncated extract from Blackstone.
104. The Judge ruled against Mr Wong’s application
and permitted the prosecution to proceed with calling Ms Mak for the limited
purposes indicated.
105. When Mr Wong came to be cross-examined by Ms
Draycott at the trial in the present case, he tried to explain the submissions
he made at Ms Lau’s trial along the lines indicated above:
“... what I believed at that time is the communication
that is the subject-matter of privilege and anything arose out of that could be
covered by legal professional privilege, not simply the content of the communication.”[117]
106. There was the following exchange:
“Q: Can you explain why you limited your extract of
Blackstone simply to that single page?
A: Looking at the transcript, what I remember what
happened was that I relied on the general principle. That’s why I did not put
forward the other pages ...”[118]
107. Mr Wong appears to have been saying (with
justification) that he did not think the matters dealt with in the subsequent
pages were relevant to his argument. The prosecution however pressed its
view of what had happened:
“Q: I suggest you were putting forward an incomplete and
misleading picture.
A: I disagree.
Q: You knew perfectly well when you read out what you
call the ‘general principle’ that there were exceptions and real issues in what
you were saying, didn’t you?
A: There has always been exceptions, right? Yes.
Q: You chose not to bring those to the court’s attention
and to limit the material you put in, even though on the very next page the
answer to the question the judge was asking was shown.
A: I disagree.
Q: And that was why you have been trying to get [Ms Mak]
either not to come to court or to claim privilege or not to give evidence
because you knew if it was argued in court you were bound to lose.
A: I disagree.”
108. In closing, , Ms Draycott submitted that the
subsequent page in Blackstone had deliberately been withheld:
“... we have copied the chapter of Blackstone on
privilege into your bundle … and even the most cursory reading of it shows that
the identity of a client is not covered by privilege. I invite you to read that
and imagine yourself, as a lawyer, being paid to do your best for somebody and
ask yourself, ‘Could I have missed that?’ and the answer is of course you
couldn’t.”[119]
109. The suggestion that Mr Wong had deliberately
misled the Court, knowing full well that his privilege argument was untenable
was a grave allegation and, having carried significant weight with the Courts
below, must have materially coloured their view of Mr Wong’s motives and
conduct. It was, as appears from the foregoing, an unjustified
misapprehension on the prosecution’s part.
E.2d Lack of confidentiality
110. I turn to deal briefly with Stock VP’s third
reason which is expressed as follows:
“There could in the present case be no viable suggestion
that any circumstance of confidence attached to the identity of the person who
signed the deed of charge. The argument that privilege attached to the identity
of Lau was a palpably unmeritorious one even if Lau rather than EC Textiles was
the client. If EC Textiles was the client, it is even more difficult to see
what possible interest the company could have in confidentiality of the
identity of Lau. Further, EC Textiles and Lau must be taken to have known that
the bank had a direct interest in being assured that the person signing the
deed of charge was a bona fide signatory on behalf of EC Textiles; in other
words, they must be taken to have known that that identity could not be
kept confidential. The argument was a nonsense.”[120]
111. As Lord Taylor of Gosforth explained in R
(ex p B) v Derby Magistrates’ Court,[121]
LPP protects confidentialcommunications between a person and his legal
advisers:
“The client must be sure that what he tells his lawyer in
confidence will never be revealed without his consent.”
112. It follows that a communication which is not
made in confidence is not protected. As Lord Scott of Foscote stated in
the Three Rivers case:[122]
“... legal advice privilege arises out of a relationship
of confidence between lawyer and client. Unless the communication or document
for which privilege is sought is a confidential one, there can be no question
of legal advice privilege arising. The confidential character of the
communication or document is not by itself enough to enable privilege to be
claimed but is an essential requirement.”
113. In the present case, there is nothing to
suggest that anyone asked Ms Mak to keep the identity of Ms Lau as signatory of
the deed confidential. The deed created a fixed and floating charge on
ECT’s property and undertaking and it was clear, as stated in the bill of
costs, that it was going to be registered in the Companies Registry and thus
made a public document. The deed named Ms Lau as the person who signed it
and stated that she had signed in the presence of a named solicitor who also
signed as a witness. The evidence was that a member of the bank’s staff
had accompanied Ms Lau to Ms Mak’s office to sign the deed. Ms Lau was
asked for her identification document to enable Ms Mak to verify her identity,
which Ms Lau evidently provided. And Ms Mak duly signed as witness to Ms
Lau’s act of signing in Ms Mak’s presence, without anything arising to suggest
that the identity of Ms Lau should be kept confidential. On the contrary,
it must have been self-evident to everyone that a person asked to sign as a
witness may later be asked to confirm the identity of the signatory.
114. Ms Clare Montgomery QC submitted on Mr Wong’s
behalf that Stock VP should be understood as saying that confidentiality could not
be maintained because it was a transaction involving the bank which necessarily
knew and wished to be assured of the signatory’s identity. Her submission
was that this was erroneous since the effect of such an arrangement was that
while the information was not confidential or privileged as between ECT and the
bank, it was confidential and privileged against the rest of the world, with
the solicitor remaining obliged to protect the privilege unless it was waived
by both ECT and the bank.[123]
I do not read Stock VP’s judgment as being so limited. The point is
simply that there was nothing to show that Ms Lau’s identity as signatory was
confidential.
E.2e Not legal advice
115. Returning to Stock VP’s first reason, in the Three
Rivers case, Lord Scott suggested as a test for determining “whether the
seeking of advice from or the giving of advice by lawyers does or does not take
place in a relevant legal context so as to attract legal advice privilege”
asking:
“... whether the advice relates to the rights,
liabilities, obligations or remedies of the client either under private law or
under public law. If it does not, then, in my opinion, legal advice privilege
would not apply. ...”
116. As indicated above, I agree with the Court of
Appeal that Ms Mak’s intended evidence was not covered by LPP. Evidence
that Ms Lau’s identity was verified and that she had signed the deed in Ms
Mak’s presence does not touch on the obtaining or giving of legal advice as to
anyone’s rights, liabilities, obligations or remedies. As Fulford J
stated in R (Miller Gardner Solicitors) v Minshull St Crown
Court:[124]
“…the provision of an individual's name, address and
contact number cannot, without more, be regarded as being made in connection
with legal advice. It records nothing which passes between the solicitor and
client in relation to the obtaining of or giving legal advice. ...”
F. Whether Mr Wong may genuinely
have believed that LPP existed
117. As noted above, the Judge found that Mr Wong
had “little or no belief in the actual existence of legal professional
privilege”, pointing to his having been “alerted to the problems by your fellow
counsel and the exceptions referred to in Blackstone”. I have dealt with
the Blackstone extract. It is with respect difficult to see any
basis for suggesting that Mr Wong had been “alerted to the problems” by his
fellow counsel. All that Mr Ngai had done was to cite an irrelevant
case while expressing doubts as to its applicability.[125]
There is no evidence that either Mr Ngai or Mr Tse had ever pointed out the
real difficulties with the LPP argument.
118. Stock VP was uneasy about the Judge’s finding
of lack of belief mainly because of the Note and Further Note written by Mr
Wong containing his opinion that there was a privilege point to be taken or at
least to be further explored. His Lordship decided that Mr Wong should receive
the benefit of the doubt. I respectfully share that view.
119. The evidence provides a good picture of how
the idea of an LPP claim developed. It will be recalled that having
raised the LPP idea in his original Note, Mr Wong asked, in his Further Note
dated 1 November 2006 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]”. That resulted in him being shown the
bill of costs which he evidently considered a breakthrough. This passage
is from his re-examination:
“Q: .... Try and tell us, if you can, when you first were
given a copy of the fee note.
A: Yes, that would be to the best of my memory a few days
before the sending out or the drafting of the letter on 24 November.
Q: So way after the notes that were passing between
counsel.
A: Yes, yes. It’s never mentioned in the notes there was
a bill of costs.
Q: What difference, if any, to the strength of your LPP
argument did the revelation of the fee note make?
A: That would. Substantially, I believe. It’s not simply
an assertion by [Ms Lau] which she might have to substantiate by giving
evidence on a voir dire, but that would be documentary evidence which I believe
[Ms Mak] will accept as a genuine fee note from her firm.
Q: Can you remember how the news of the discovery of this
fee note was greeted by you[r] team of counsel?
A: I remember that everybody was thrilled about the
production of a fee note by [Ms Lau].
Q: Did it in your view increase or decrease the chances
of you mounting a reasonable argument?
A: Increase. Substantially increase.”[126]
120. It appears that, buoyed by discovery of the
bill of costs, little thought was given as to whether the intended evidence
itself was covered by LPP. As we have seen, in his evidence, Mr Wong
adhered to an incoherent theory that there must have been prior privileged
communications between Ms Mak and Ms Lau and that the execution of the deed,
including the identity of the person signing, was somehow inextricably bound up
with those supposedly privileged communications.
121. There can be no doubt that Mr Wong’s level of
competence as a lawyer was low. In particular, he had a poor grasp of LPP
as a legal doctrine.[127]
In cross-examination, Mr Wong stated that he could see no difference between
confidentiality and LPP and thought that a court could override them both:
“Q: No, this is confidentiality not LPP?
A: Well I see no difference.
...
Q: No, LPP is different, isn’t it, because LPP the court
cannot order that the matters be disclosed if they are coved by privilege,
confidentiality the court can, that’s the difference, isn’t it?
A: Well I don’t think so, I don’t think so.”
....
Q: .... there are two things there, confidentiality and
privilege, they’re different?
A: Yes, yes different but the effect of a
court order is the same. The court, the order can override the privilege
as well as the confidentiality, that’s my understanding.”[128]
122. Mr Clive Grossman SC, called as a character
witness for Mr Wong described him as “a man of integrity who worked hard for
his client, but ... not of the highest intellect.”[129]
Another character witness, Mr Philip Dykes SC said he was “a man of integrity
whose style was enthusiastic and combative” adding that “he had spoken to [Mr
Wong] on occasion and advised [him] to moderate [his] approach”.[130]
123. Stock VP pointed out that:
“One has in a case such as this to take the greatest care
to distinguish between misguided professional enthusiasm or even incompetence,
on the one hand and, on the other, dishonesty.”[131]
124. His Lordship continued:
“...although it is clear enough that Wong wished, if
possible, to avoid a contested argument in court on the issue of privilege, and
although I have not had the advantage, as did the trial judge of hearing the evidence,
I still retain some doubt if the suggestion be that Wong had no belief at all
in the point. That doubt arises from the evidence of Wong’s aggressive tenacity
on behalf of his clients and of the evidence which suggests that he is a facts
advocate, not much at ease with arguments of law.”[132]
125. The opinion of Mr Dykes SC that Mr Wong was
“a competent lawyer, well able to look up the law”[133]
does not appear to be borne out by the evidence. Mr Wong does not appear
to have done more than look at Blackstone and, when asked by the Judge
to produce authority overnight, only managed to re-cycle the case which had
been mentioned, with reservations, by Mr Ngai in an earlier note.
126. The picture that emerges is therefore of a
barrister of low competence with a poor understanding of the relevant concepts;
doing no effective research; “thrilled” to have discovered the bill of costs,
which was regarded as a justification for pursuing the LPP argument; coupled
with an aggressive tenacity reflected in the three letters sent to Ms Mak – an
unedifying vision, but distinctly more plausible, in my view, than the
prosecution’s theory of a barrister well aware of the law but cynically using
LPP as a pretext for what in truth was what the Judge had called “a threat
simpliciter” aimed at deflecting Ms Mak from her duty.
127. I pause here to mention an argument advanced
by Ms Montgomery QC concerning LPP as it affected Mr Wong’s defence. As
we have seen,[134]
before commencement of the trial in the present case, Mr Wong’s solicitors
wrote to Ms Lau asking whether she would waive privilege regarding privileged
communications made in the course of Mr Wong acting for her and no waiver was
forthcoming.
128. In such circumstances, Ms Montgomery prayed
in aid Medcalf v Mardell,[135]applied
in Yau Chiu Wah v Gold Chief Investment Ltd,[136]
for the proposition that:
“...in the absence of the full facts due to the lay
client's refusal to waive privilege, the Court is not entitled to speculate and
infer that there could not have been any material upon which the legal
representatives could have been justified in taking their course of action,
that the benefit of the doubt has to accrue to the legal advisers and that
‘only rarely will the court be able to make “full allowance” for the inability
of the practitioner to tell the whole story or to conclude that there is no
room for doubt.’: [Medcalf v Mardell ] at 135D-136B.”[137]
129. I do not consider that principle applicable
in the present case. True it is that Ms Lau has not waived her
privilege. But it is perfectly clear that Mr Wong did not feel in any way
constrained by the absence of his client’s waiver. He did not hesitate to
disclose, directly and indirectly, the instructions sought and received, the
discussions with his legal team and the advice which he rendered. He was
not stopped by the Judge. Whether or not his disclosures put him in breach of
his duties to his client, he certainly has no basis for complaining that the
non-waiver of privilege has somehow constricted his defence. It is
tempting to regard Mr Wong’s apparently cavalier approach to his own LPP
obligations as another manifestation of his lack of understanding of what LPP
involves.
G. The purpose of Mr Wong’s
threats
130. The evolution of the prosecution’s case
regarding Mr Wong’s purpose in sending the threatening letters has been traced
in Section D.3 above. It is not surprising that the initial allegation
that his object was to get Ms Mak not to come to court was effectively
abandoned and replaced for all practical purposes by the allegation that his
objective was to get her to raise an LPP objection in an application to the
Court since this would improve the chances of success.
131. The original allegation was
unsustainable. As we have seen, the decision to write the letters
evidently hinged on discovery of the bill of costs a few days before the 1st
Letter was sent. By that time, the trial had been going for perhaps a
week. Mr Wong’s evidence was that he believed that a witness summons
would already have been served on Ms Mak, his experience being that such
summonses are usually served a month to six weeks before a trial.[138]
132. Upon receiving the 1st and 2nd Letters, Ms
Mak’s response was to point to the witness summons and to say:
“... 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.”[139]
133. Mr Wong testified in chief that he did not
ask for a copy of the summons:
“... because I had no doubt that the summons would have
been served so – and I’ve no doubt about [Ms Mak’s] explanation that she had
the summons to obey, I have no doubt that she must be telling the truth for
that and also in the penultimate paragraph, my understanding is that [Ms Mak]
is inviting us to maybe to voice out our complaint or our allegation in court
....”[140]
134. The following exchanges are also from Mr
Wong’s examination in chief:
“Q: .... when you drafted and caused to be sent out the
letter of 24 November, what do you think [Ms Mak] might do?
A: .... knowing that she was a solicitor, she might, I think
she most likely will inform the prosecution about receiving the letter and most
probably she would invite the view of the prosecution as to whether she would
have to testify and of course she as a lawyer may form her own view whether she
would be breaching the [LPP].”
...
Q: Was it your intention to try to stop her from going to
court?
A: No, well my understanding of the purpose of the
witness summons the same as [Ms Lau] that she’s obliged as per the law to
attend court.”[141]
....
“Q: When you wrote those letters to [Ms Mak], ... who did
you think would be the final judge or arbiter of whether or not [LPP] was the
subject of a proper claim?
A: As always is the trial judge.
...
Q: Did you ever intend, as is suggested in the charge,
that [Ms Mak] should not go to court to testify?
A: No.”[142]
135. Mr Wong gave the same evidence in
cross-examination:
“Q: So how can you explain what you did, except in terms
of an attempt to dissuade her from coming to court. That’s what it was, wasn’t
it? It was an attempt to dissuade her from coming to court.
A: I disagree. ... I never attempted to persuade her not
to come to court. My understanding of what likely would happen is: if she
accepted our view on the LPP, she would still have to attend court to explain
why she’s not able to testify. She has already been issued, according to her,
well as far as to my understanding, the witness summons. She had no choice. I
think she also made it clear in her reply that she had to attend court. I am
referring, your Honour, to her letter of 30 November ...”[143]
136. Unlike the Court of Appeal, I consider the
prosecution’s change of case and the evidence underlying that change to be
crucial to the finding of a prohibited tendency and thus to the outcome of this
appeal.
H. Whether it was conduct with the
prohibited tendency
H.1 The Judge’s decision
137. As discussed in Section D.4 above, the Court
of Appeal rejected the three grounds upon which the Judge founded his
conclusion that Mr Wong’s conduct had the tendency to pervert the course of
justice. Those grounds were (i) Mr Wong’s approach to a prosecution witness per
se; (ii) his failure to inform the prosecution; and (iii) his failure
himself to raise the issue with the Judge at the criminal trial. I
respectfully agree that for the reasons given by Stock VP,[144]
the Judge’s conclusions could not stand.
138. As to point (iii), I would add that I do not
agree with the Judge’s view that in relation to the privilege claim “the
parties must perforce be the prosecution and the defence; not defence and a
prosecution witness” and that it was therefore improper to have communicated
with Ms Mak. The “parties” to a legal advice privilege claim are the
client and the solicitor. On the basis of what Mr Wong may genuinely have
believed, the parties were ECT and Ms Mak, hence the debate in the impugned
letters about who should make the application. Of course, given that Ms
Mak was (as she had pointed out) bound to obey the witness summons, a challenge
to her giving evidence on LPP grounds would inevitably have had to be brought
at some point before the Court which had issued the summons. But that is
not a reason for finding that communication between Mr Wong acting for ECT and
Ms Mak was improper because “the parties must perforce be the prosecution and
the defence”.
H.2 The Court of Appeal’s decision
139. The critical question for the outcome of this
appeal is whether the Court of Appeal’s substituted basis (set out in
paragraphs 74, 168 and 169 of its judgment) for deciding that Mr Wong’s conduct
had the prohibited tendency is correct. The basis contended for by the
respondent overlaps with and is comprehended within the Court of Appeal’s
substituted basis and can be dealt with simultaneously. It is appropriate
to begin with paragraph 74, read together with paragraph 73.
H.2a The substituted basis as put in paragraph 74
140. In paragraph 73, Stock VP cites the following
passage from the joint judgment of Brennan and Toohey JJ in R v Rogerson:[145]
“The course of justice consists in the due exercise by a
court ... of its jurisdiction to enforce, adjust or declare the rights and
liabilities of persons subject to the law in accordance with the law and the
actual circumstances of the case. The course of justice is perverted (or
obstructed) by impairing (or preventing the exercise of) the capacity of a
court ... to do justice. The ways in which a court ... may be impaired in (or
prevented from exercising) its capacity to do justice are various. Those ways
comprehend, in our opinion, erosion of the integrity of the court..., hindering
of access to it, deflecting applications that would be made to it, denying it
knowledge of the relevant law or of the true circumstances of the case, and
impeding the free exercise of its jurisdiction and powers including the powers
of executing its decisions. An act which has a tendency to effect any such
impairment is the actus reus of an attempt to pervert the course of
justice.”
141. His Lordship states at paragraph 74:
“It must also follow that the course of justice is
deflected by causing applications to be made to a court which, but for improper
pressure, would not be made. Once legal proceedings are in motion they should
be permitted ‘to flow unobstructed and undiverted… justice should be
administered in the way which is ordinarily pursued’: R v Taffs [1991] 1
NZLR 69. ”
The analysis was further developed in paragraphs 168 and
169, but it is instructive to begin by taking paragraph 74 on its face.
142. The first two sentences in the abovementioned
citation from Rogerson are important. For conduct to have a
tendency to pervert the course of justice, it must be conduct which tends to
cause a miscarriage of justice, in other words, a tendency towards “impairing
(or preventing the exercise of) the capacity of a court or competent judicial
authority to do justice”.[146]
And it must involve a tendency to cause a miscarriage of justice in curial
proceedings. In their Honours’ words, it must tend to interfere with “the
due exercise by a court ... of its jurisdiction to enforce, adjust or declare
the rights and liabilities of persons subject to the law in accordance with the
law and the actual circumstances of the case”. Conduct with a tendency to
cause unlawfulness outside of curial proceedings does not constitute the
offence.[147]
143. In the second part of the Rogerson
citation, Brennan and Toohey JJ gave as examples of interference with the due
administration of justice:
“...erosion of the integrity of the court ..., hindering
of access to it, deflecting applications that would be made to it, denying it
knowledge of the relevant law or of the true circumstances of the case, and
impeding the free exercise of its jurisdiction and powers including the powers
of executing its decisions.”
144. With respect, I do not accept Stock VP’s
suggestion that “It must also follow” from the passage cited that “the course
of justice is deflected by causing applications to be made to a court which,
but for improper pressure, would not be made”. Where an application is
made to the Court, it is determined by the Court “in the due exercise ... of
its jurisdiction to enforce, adjust or declare the rights and liabilities of
persons subject to the law in accordance with the law and the actual
circumstances of the case.”
145. Conduct “deflecting applications that would
be made to [the court]” aims to prevent the Court from exercising such
jurisdiction and so may deny the would-be applicant justice. That is why
it may rank as a perversion of the course of justice. But causing an
application to be made to and duly determined by the Court plainly does not
have the same effect. The Court’s capacity to do justice is not in any
way impaired. Pressure on the intended applicant to bring the application
may be a troubling nuisance to the person subjected to that pressure. It
may even, in some circumstances, involve a form of unlawful intimidation.
But such pressure does not interfere with the capacity of the Court to
administer justice in the curial proceedings.
146. Stock VP refers in paragraph 74 to R v Taffs,[148]
for the proposition that legal proceedings, once in motion should be permitted
“to flow unobstructed and undiverted… justice should be administered in the way
which is ordinarily pursued”. Taffs was however a case of a wholly
different character. A barrister and solicitor instructed to defend a
person charged with robbing a boy at knifepoint threatened the boy’s mother,
saying that if the boy persisted in giving his evidence, he would, amongst
other things, “mince the boy up in Court tomorrow”, “crucify him”; and cause
him to be “publicly humiliated as a liar and a homosexual”. It was thus a
case where the defendant was seeking to obstruct justice by dissuading a
witness from coming to testify before the Court.
147. The defendant in Taffs claimed that he
made those threats because he genuinely believed that the boy’s intended
evidence was false. That was held to be no excuse, Cooke P pointing out
that:
“It would be dangerous to allow a lawyer, perhaps
uncritically espousing his client's case, to threaten to use legal proceedings
to publicly humiliate the adversary. To leave the lawyer free to utter such
threats, provided only that he genuinely believes his client to be in the
right, would savour of transferring the responsibility of judging the case from
the Court to the legal representatives of the parties.”[149]
148. In the present case, as the prosecution
belatedly accepted, there was no intention to dissuade Ms Mak from coming to
court or to disobey the witness summons. Neither did anyone suggest that
if she were to testify, she should not tell the truth or should mislead the
Court. Nor did anyone suggest that she should conceal the fact that a demand
had been made that she take an LPP objection. Mr Wong testified that he
expected Ms Mak to inform the prosecution which would obviously be able to
resist the application if it saw fit. Mr Wong’s purpose was to get Ms Mak
to raise the LPP objection with the Court and he acknowledged that it was the
Court which would be the final arbiter of whether the objection was
valid. This case therefore did not pose a risk of allowing a lawyer to
arrogate to himself instead of the Court responsibility of judging whether the
privilege objection was good. If, on hearing the application, the Court
had upheld the privilege, it would have been deprived of Ms Mak’s evidence by
virtue of the law of privilege and not because the course of justice had been
perverted.
H.2b How the respondent puts its case for the prohibited
tendency
149. Before going on to consider paragraphs 168
and 169 in the Court of Appeal’s judgment, it is convenient to consider the way
that the respondent puts its case on the prohibited tendency.
150. Mr Jonathan Caplan QC encapsulated the
respondent’s case concisely, submitting that the letters possessed the
prohibited tendency because of the pressure engendered by their “timing, tone,
purpose and content”. He argued that:
“Even if the Appellant sought to pursue a legitimate aim
by an appropriate avenue it did not entitle him to write a series of letters
which by their tone, timing, enclosures and threatening content brought
improper pressure to bear upon the witness.”[150]
151. Such pressure, he submitted, was exerted to
compel Ms Mak to make a setting aside application which she did not believe in:
“... the prosecution case was based on the content of the
letters, their timing, and the fact that the Appellant intended thereby to
pressure the witness to claim privilege and set aside her witness summons when
she had no belief in such a course of action...”[151]
152. It will be apparent that this line of
argument suffers from the deficiency identified above in the discussion of
paragraph 74 of the Court of Appeal’s judgment. The timing, tone, purpose
and content of the impugned letters and the pressure they exerted do not
constitute the offence unless they had a tendency to impair the capacity of the
Court to administer justice in the case. Pressure directed at compelling
Ms Mak to place the privilege point before the Court for its ruling does not
have that tendency.
H.2c The substituted basis developed in paragraphs168 and
169
153. Stock VP acknowledged the aforesaid argument
which he encapsulated as follows:
“...to seek to preclude the giving of evidence, when its
provision as evidence would breach legal professional privilege, can hardly
constitute impermissible conduct; it could hardly have a tendency to pervert
the course of justice since the preclusion of that evidence would be a product
of the proper application of the doctrine of legal professional privilege and
an attempt to preclude it on that ground is therefore incapable of constituting
an attempt to divert the course of justice.”[152]
154. His Lordship, however, thought it was “off
the mark”, stating:
“A claim for privilege is indeed consistent with the
course of justice and that is so even where the court’s search for the facts
relevant to determination of the issue at hand may be impeded by the
withholding of evidence on that basis. But – and this is the point – the machinery,
the route, by which that claim comes before a court is itself also part of the
course of justice.”[153]
155. The point was elaborated in paragraphs168 and
169 as follows:
“168. To seek to force a third-party witness by threats,
intimidation, oppression or harassment (as opposed to advice or persuasion or
court order) to apply to set aside a summons on the grounds of legal
professional privilege when such an application is against that person’s wishes
or that person’s belief in the existence of the privilege is – if the attempt
were to succeed – to divert the course of justice, because it is to force the
presentation of an application as if it were voluntarily made, to force the
putative witness to assert that she has no material evidence which she may
legitimately provide, when patently the witness believes she has material
evidence the provision of which is not precluded by law and when, furthermore,
the claim of privilege is advanced by a solicitor, for such a claim from such a
quarter is likely to carry considerable weight; more weight on its face than if
the claim were made by the client.
169. It matters not for present
purposes whether the application is one to set aside a witness summons or is an
application for an injunction. Both are part of the course of
justice. But the course of justice requires that neither application
should be made as a result of unlawful or improper pressure or harassment.
Therein lies the heart of this case against Wong.”
156. It was by means of this argument that the
Court of Appeal sought to enhance and transform the impact of the letters.
From the letters having a tendency limited to placing unwelcome but
non-curial pressure on Ms Mak to make an application, the argument seeks to
translate the pressure into conduct having a tendency to impair the Court’s
capacity to do justice within the curial proceedings. It seeks to achieve
this by postulating what, with respect, seem to be some highly artificial
reactions on Ms Mak’s part to the demands made in the letters.
157. The argument postulates first, that the
letters had the tendency “… to force the presentation of an application as
if it were voluntarily made”. The suggestion is therefore that the
pressure was likely to result in the Court being given a misleading
impression. However, I am with respect unable to see why the pressure
should be thought by Mr Wong or anyone else to be likely to have that
result. Ms Mak had made her unwillingness to make the application clear
in her responses to the 1st and 2nd Letters. She had insisted that it was
up to Ms Lau’s lawyers to make the application if they thought fit. There
was no reason to think that her attitude would change so that she would present
herself to the Court as voluntarily making the application. We know that
she had in fact complained about the letters to the police and to prosecuting
counsel and that as soon as she entered the witness-box, she complained to the
trial Judge about having received the letters, saying that she was troubled by
their contents and by the complaints made to the Law Society against her
integrity. Prosecution counsel made submissions condemning the conduct
complained of and, as is obvious, it led to proceedings being instituted
against Mr Wong.
158. The Court of Appeal’s substituted argument
next postulates that Ms Mak would have been forced “to assert that she has no
material evidence which she may legitimately provide, when patently the witness
believes she has material evidence the provision of which is not precluded by
law”. This is, with respect, a somewhat loaded way of saying she would
have been “forced to assert LPP which she does not believe in”. The
expression “no material evidence” comes from section 34(2) of the Criminal
Procedure Ordinance which enables a person served with a witness summons to
apply for its discharge by satisfying the court “that he cannot give any
material evidence or, as the case may be, produce any document or thing likely
to be of material evidence”. In the 2nd Letter, Mr Wong had suggested to Ms Mak
that section 34(2) made her the appropriate person to make the application and
that in so doing, she would be claiming that since her proposed evidence was
privileged, she would have no material evidence to give, satisfying the
requirements of the section.
159. So formulated, this second postulation takes
the case no further than the proposition contained in paragraph 74 discussed
above. Difficulty with the realism of the second scenario depicted also
arises. It seeks once again to suggest that the course of justice would be
perverted because the letters would have the effect of giving the Court a false
impression because it envisages Ms Mak acting as an advocate of the privilege
objection, contrary to her own beliefs. For the reasons stated above,
there is no reason to assume that Ms Mak would fall into line with Mr Wong’s
views on privilege rather than make it clear that she had been pressured to
make the application against her own better judgment.
160. Thirdly, the Court of Appeal postulates that
the course of justice was likely to be perverted since a claim of privilege
advanced by a solicitor “is likely to carry considerable weight; more weight on
its face than if the claim were made by the client”. That again
presupposes that Ms Mak would supinely present the appearance of believing in
the application rather than complain about having been pressured to make an application
that she does not believe in. The latter course was far more likely and
upon such a complaint being made, the application’s chances of success would,
if anything, be likely to have been diminished.
161. Quite apart from the factual implausibility
of the Court of Appeal’s substituted basis, it contains, in my view, an
assumption that is in principle inappropriate in a case like the present.
An essential aspect of the prohibited tendency as found by the Court of
Appeal involves deprivation of the witness’s freedom to choose to give the
intended evidence.
162. It is true that in Egan, after citing R
v Meissner[154]
which saw the prohibited tendency in that case as a tendency to “prevent the
accused from making a free and voluntary choice concerning his or her plea to
the charge”, I stated:
“That was a case involving pressure on an accused person
to plead guilty, but the propriety of the means used to influence a witness may
also usefully be tested by asking whether the methods used leave the witness
genuinely ‘free to make the choice’ as to whether to give evidence and what
evidence to give.”[155]
163. That approach necessarily can only apply
where the witness enjoys a free choice of whether or not to give
evidence. I agree with Ms Montgomery that the “free choice” or “free
will” test cannot appropriately be used as an indicator of the prohibited
tendency where there is, or the defendant believes that there is, a bona fide
arguable claim that the witness is under a legal duty by virtue of LPP not to give
the proposed evidence. Ms Montgomery puts the point as follows:
“A witness (particularly a legal professional) who is
bound by LPP is both legally and professionally required to assert that
privilege and should not proceed according to his preference, this is an
intrinsic legal consequence of LPP enforcement. The expert witness in Protec
Pacific[156]
was clearly unhappy with the letters before action and the proceedings against
him, they were clearly ‘intended to undermine [his] free will and choice’ as to
how to proceed, but the proceedings were a legitimate means of enforcing a
right to confidence and could not give rise to a criminal perversion of the
course of justice. In this regard, the Court of Appeal erred in concluding that
conduct pertaining to the enforcement of LPP which seeks to compel a witness to
comply with her duty, is unlawful and improper unless the conduct consists only
of advice, persuasion or a court order [CA§168].”[157]
164. For the foregoing reasons, I respectfully
disagree with the Court of Appeal’s view that, on their substituted basis, the
threats made in the letters constitute improper means with the prohibited
tendency. In my judgment, the threats (both of civil proceedings and a
complaint to the Law Society) made with the intention of compelling Ms Mak to
raise LPP as a ground for not giving the intended evidence did not have the
prohibited tendency and were incapable of constituting the actus reus of
the offence.
165. In the light of my conclusions and the
general acceptance that Mr Wong’s purpose was to press Ms Mak to make a court
application, the question of mens rea requires no further
discussion.
Conclusions
166. I have accordingly reached the following
conclusions:
(a) There was ample basis for Mr Wong to
believe that an implied retainer had arisen between Ms Mak and ECT.
(b) While there was no objective basis for
holding that the intended evidence was covered by LPP, the evidence justified
the Court of Appeal in reversing the Judge and giving Mr Wong the benefit of
the doubt as to his belief in the existence of LPP.
(c) Acting with such belief, he caused
the threatening letters to be sent for the purpose of pressuring Ms Mak to
raise the LPP claim by making an application to the Court.
(d) Applying pressure for that purpose did
not constitute conduct with a tendency to interfere with the trial Court’s
capacity to administer justice and therefore did not have the prohibited
tendency.
(e) I agree with the Court of Appeal’s
reasons for reversing the Judge’s finding of a prohibited tendency but do not
accept its substituted basis for such finding.
(f) Likewise, I do not accept the
respondent’s case on the prohibited tendency.
167. I would therefore allow the appeal and quash
Mr Wong’s conviction. I would also direct that any submissions as to
costs be lodged with the Registrar in writing within 14 days from the date of
this judgment.
Postscript
168. Before leaving this judgment, it is
worthwhile re-iterating what I said in Egan about approaching witnesses
or potential witnesses:
“... great care must be taken if an approach is to be
made with a view to influencing a witness in relation to his or her anticipated
evidence. Such an approach can only properly be made if its purpose is lawful
and if no unlawful or improper means are used to secure that purpose.”[158]
169. As the Court of Appeal pointed out:
“The guidance provided by the Law Society of Hong Kong ... warns, at
Chapter 10.12, that:
‘A solicitor should be aware that in seeking to exercise
his right to interview a witness who has already been called by the other side
or who to his knowledge is likely to be called by them, he may be exposed to
the suggestion that he has tampered with the evidence. This may be so
particularly where the witness subsequently changes his evidence. It may be
wise in the circumstances for the solicitor to offer to interview the witness
in the presence of a representative of the other side.’”
170. That is sound advice. Even if, as the
Court of Appeal and I have held, there is no legal requirement that the other
side be informed of an approach made to a witness or potential Wong, an
unannounced approach to the other side’s witnesses in an adversarial system is
bound to arouse suspicion. Not having been given notice of the approach
and not being aware of what was said to the witness, concern may naturally
arise as to whether some form of impropriety could have been involved.
171. Mr Wong has had occasion repeatedly to
acknowledge that it would have been far better for him to have informed the
prosecution of his LPP concerns and to have told them that he had written to Ms
Mak on behalf of ECT to get her to assert the privilege which he believed
existed in ECT’s favour. Not having taken such elementary precautions, Mr
Wong found himself, over a period of some four years, having to cope with
serious criminal charges carrying potentially disastrous professional
consequences and having guilty verdicts entered against him in two
courts. This judgment should therefore certainly not be taken as
encouragement for practitioners to adopt the kind of course followed by Mr
Wong.
Mr Justice Tang PJ:
172. I agree with the judgment of Mr Justice
Ribeiro PJ.
Mr Justice Mortimer NPJ:
173. For the reasons given by Mr Justice Ribeiro
PJ, I also would allow this appeal and quash the appellant’s conviction for
attempting to pervert the course of justice.
Sir Thomas Gault NPJ:
174. I agree with the judgment of Mr Justice
Ribeiro PJ.
Mr Justice Chan PJ:
175. The Court unanimously allows the appeal and
quashes Mr Wong’s conviction. We direct that costs should be dealt with
as set out in paragraph 167 of this judgment.
(Patrick
Chan)
Permanent Judge |
(R.A.V.
Ribeiro)
Permanent Judge |
(Robert Tang)
Permanent Judge |
(Barry
Mortimer)
Non-Permanent Judge |
(Sir Thomas
Gault)
Non-Permanent Judge |
Ms Clare Montgomery QC, Mr Graham Harris SC and Mr Benson
Tsoi, instructed by Haldanes for the Appellant
Mr Jonathan Caplan QC and Ms Charlotte Draycott SC
instructed by the Department of Justice for the Respondent
[6] Addressed to her c/o Messrs Lily Fenn & Partners (“LF&P”),
where she then worked as a consultant. Her former firm of CMK&Co had
split up and Ms Mak stayed on with the firm which became known as LF&P.
[11] Cap 221. Section 34(2): “If any person in respect
of whom a witness summons has been issued applies to the court out of which the
summons was issued and satisfies it that he cannot give any material evidence
or, as the case may be, produce any document or thing likely to be of material
evidence the court may direct that the summons shall be of no effect.”
[12] A witness summons under section 97 of the Magistrates' Courts Act 1980
compelling production by a prosecution witness of documents which might
contain previous inconsistent statements by the witness should not be
granted where the purpose was to obtain discovery of documents for
possible use in cross-examination by the defence. If documents in a
witness summons are confidential communications between solicitor and
client and protected by legal professional privilege, they cannot be
produced if the client does not waive his privilege since the privilege
is absolute.[1996] AC 487.LordTaylor : "
I may end with two more recent affirmations of the general principle. In Hobbs v Hobbs and Cousens [1960] P.112, 116-117 Stevenson J. said: "privilege has a sound basis in common sense. It exists for the purpose of ensuring that there shall be complete and unqualified confidence in the mind of a client when he goes to his solicitor, or when he goes to his counsel, that that which he there divulges will never be disclosed to anybody else. It is only if the client feels safe in making a clean breast of his troubles to his advisers that litigation and the business of the law can be carried on satisfactorily . . . There is ... an abundance of authority in support of the proposition that once legal professional privilege attaches to a document . . . that privilege attaches for all time and in all circumstances."
In Balabel v. Air India [1988] Ch. 317 the basic principle justifying legal professional privilege was again said to be that a client should be able to obtain legal advice in confidence.
The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests."
[15] No submissions were made as to the crime and fraud
exception, so further mention of it is unnecessary.
[19] Egan §123, citing R v Machin [1980] 1 WLR
763 at 767; R v Toney [1993] 1 WLR 364 at 367; R v Rogerson
(1992) 174 CLR 268 at 279, 297; R v Meissner (1995) 184 CLR 132 at 141.
[20] Egan §124, citing R v Machin [1980] 1 WLR
763; HKSAR v Wong Shing Yim Peter [2003] 3 HKLRD 1046 at §19; and R v
Rogerson (1992) 174 CLR 268 at 280.
[21] Egan §126, citing R v Vreones [1891] QB
360 at 369; and R v Rogerson (1992) 174 CLR 268 at 275-276.
[23] Egan §125, citing R v Rogerson (1992) 174
CLR 268 at 280-283; HKSAR v Wong Shing Yim Peter [2003] 3 HKLRD 1046 at
§29.
[24] Egan §132, citing Harmony Shipping Co SA v
Saudi Europe Line Ltd [1979] 1 WLR 1380 at 1384-1385; Kwan Fung Kam v AG
[1990] 2 HKC 577; and Connolly v Dale [1996] QB 120.
[28] Egan §137, citing R v
Kellett [1976] 1 QB 372 at 391-392; Librizzi v State of Western
Australia [2006] WAR 104 at §80.
[29] Egan §138, citing R v Silverman (1908) 14
CCC 79 (Ontario Court of Appeal) and R v Taffs [1991] 1 NZLR 69 at 73.
[32] [1996] AC 487 at 507. See also Three Rivers
District Council v Governor and Company of the Bank of England (No 6)
[2005] 1 AC 610 at §§30-33, citing leading authorities.
[37] Ibid, at §25. In Hong Kong, the extent to
which it can be overridden by statute may raise constitutional issues in the
light of Article 35 of the Basic Law.
[38] [1939] 1 KB 194 at 222. This decision was
overtaken and effectively overruled by later authority on the question of
whether a client has a cause of action in tort against his solicitor.
However, Scott LJ’s recognition of implied retainers is unaffected.
[48] Cited as HKSAR v Kanjanapas, Chong Kwong Derek and
others,Ma CJHC, Tang VP and Wright J, CACC 248/2006 (12 February 2009).
[49] Reasons for Verdict RV86. I have to confess that I
do not understand what is intended by the phrase “a cogent milestone on the
journey”. If the existence or otherwise of an implied retainer is a “cogent
milestone”, does that not suggest that it has some unspecified legal
significance?
[58] Court of Appeal §116, citing R (Miller Gardner
Solicitors) v Minshull St Crown Court [2002] EWCH 3077 at §20; and Pascall
v Galinksi [1970] 1 QB 38 at 44.
[59] Court of Appeal §§117-120, citing Miley v Flood
[2001] IEHC 9; Federal Commissioner of Taxation v Coombs (1999) 164 ALR
131 at §31; Re Ontario Securities Commission (1983) 146
DLR (3d) 73; Rosenberg v Jaine [1983] NZLR 1 at
6; Police v Mills [1993] 2 NZLR 592 at 597-8; and United
States of America v Hodge and Zweig 548 F 2d 1347 (1977) at
1353.
[80] Court of Appeal §7. See also §87 where the
prosecution case was stated to be that Mr Wong “exerted improper pressure upon
her to take a course which, but for that pressure, she had no intention of
taking; namely, to claim privilege on behalf of [Ms Lau] or [ECT].”
[93] Cap 221. Section 34(2): “If any person in respect
of whom a witness summons has been issued applies to the court out of which the
summons was issued and satisfies it that he cannot give any material evidence
or, as the case may be, produce any document or thing likely to be of material
evidence the court may direct that the summons shall be of no effect.”
[101] “I would also remind him or her that he or she can seek
independent legal advice ... if he or she so wishes.” T181
[107] See for instance, Bursill v Tanner (1885) 16 QBD
1, where a judgment creditor wanted to know the identity of the trustees of a
marriage settlement in the hope of levying execution against a married woman
who had been successfully sued. Or, for instance, a desire to know who is
really on the other side in litigation: Levy v Pope (1829) M & M 410
; 173 ER 1206. Such information would obviously be important to be able to
enforce costs orders.
[116] Often linked to the adversarial nature of litigation, as
explained in Waugh v British Railways Board [1980] AC 521 at 536.
See also In re L (A Minor) (Police Investigation: Privilege) [1997] AC
16 at 26; and Three Rivers District Council v Governor and Company of the
Bank of England (No 6) [2005] 1 AC 610 at §52.
[122] Three Rivers District Council v Governor and Company
of the Bank of England (No 6 [2005] 1 AC 610 at §24.
[123] Citing Hellenic Mutual War Risks Association
(Bermuda) Ltd v Harrison (The Sagheera) [1997] 1 Lloyd’s Rep 160; and The
TAG Group Litigation Winterthur Swiss Insurance Company v AG (Manchester) Ltd
(in liquidation) [2006] EWHC 839.
[146] Egan §124, citing R v Machin [1980] 1 WLR
763; HKSAR v Wong Shing Yim Peter [2003] 3 HKLRD 1046 at §19; and R v
Rogerson (1992) 174 CLR 268 at 280.
[147] Egan §126, citing R v Vreones [1891] QB
360 at 369; and R v Rogerson (1992) 174 CLR 268 at 275-276.
[156] A reference to Protec Pacific Pty v Brian Cherry
[2008] VSC 76, where the court restrained a party’s former expert witness from
discussing the case with the other side.
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