大律師梅國強涉包攬訴訟
2012年9月29日
【明報專訊】大律師梅國強繼去年因自行致電客戶拉攏生意,而遭大律師公會停牌半年後,再涉於1999至2008年間,四度包攬訴訟,與客人私訂協議,非法與對方攤分訴訟得益,涉款75萬元,最終疑因客戶向大律師公會投訴而揭發。案件將轉介區域法院審理。
打勝分三成輸分文不收
現已恢復執業的大律師被告梅國強(52歲),昨毋須答辯,他沒有聘用律師代表,自行處理。他被控於1999年10月1日至2008年1月27日,處理4宗民事訴訟時非法與客戶訂立協議,收取客人訴訟部分得益,梅獲分當中兩成半至三成不等,多年來涉款約75萬元。據了解,案件被揭發是由於過去梅接觸的4名客戶中,有人向大律師公會投訴梅的失當行為,後來在警方調查下,部分涉案客戶表示,不知道與梅對分訴訟得益屬違法。
根據報道及大律師公會去年3月所發出的通告,梅於1999年10月曾致電一名彭姓客戶,並與對方在自己的辦公室內討論案件;當時梅在沒有事務律師在場及轉介之下,提出若為彭追討索償成功,梅可獲分當中三成,若索償失敗則不收分毫。案件押後至10月19日,轉介往區域法院答辯。梅獲准以2萬元保釋外出,其間不得騷擾證人。
【案件編號:ESCC3604/12】
2013年3月27日
【明報專訊】大律師梅國強於9年間,先後五度與客人私訂協議,揚言「不成功不收費」,若官司勝訴,他可從賠償金額中瓜分25%至30%作報酬,多年獲得162.9萬元。梅早前否認5項「分享訴訟成果」罪,經審訊後昨被裁定所有控罪成立,判囚3年半,成為首名因包攬訴訟被定罪的大律師。
事發於1999年10月至2008年11月期間,自1993年起成為執業大律師的被告梅國強(52歲),以往曾在懲教署任督察,剛踏入其任大狀的第20個年頭便留下案底。辯方形容被告「跌得很痛」(painful fall),又指若在美國,包攬訴訟並不犯法。案情透露,梅與其中一名客戶的前妻發展成親密關係,兩人多次同遊澳門及內地,警方其後於清晨時分在女方的家中拘捕被告。
辯方:美國包攬訴訟不犯法
據大律師公會網頁指出,大律師一旦犯下刑事罪行或涉及不誠實行為,或會令行業聲譽受損,便必須向執委會報告;其後或會展開大律師紀律審裁組的程序,屆時涉事大律師有責任出席。
涉案5名客戶早前以特赦證人身分作供。法官胡雅文認為,5證人皆為簡單、沒甚法律知識的門外漢,不認為他們會揑造證供誣陷被告;而他們所描述的開會、洽談訴訟過程亦可信。法官又相信,被告在沒有事務律師在場下接觸客人,並從客人訴訟所得抽取部分作為酬金,故裁定全部罪名成立。
官斥案件嚴重 賠客戶150萬
被告的5名客戶均為法律上的外行人,法官指出,他們不知道「不成功,不收費」的協議背後屬違法,固然會認為被告開出的條件吸引,而被告則濫用了客人對他的信任。法官斥案件非常嚴重。
法官又指出,被告違反其專業,更借錢予客戶給對方「甜頭」,博取對方信任;其後利用客人獲益,其中一名客戶黃會勝更被抽取賠償金的逾六成,作為梅的報酬。法官認為,被告着客人匯款到其親密女性友人陳玉芳(譯音)的銀行戶口,可見被告企圖隱瞞得益,梅被判監3年半,另要於今年8月1日前,向案中其中4名客戶賠償9萬至75.9萬元不等,總金額約為150.9萬元。
【案件編號:DCCC890/12】
[2013-03-27]
曾遭大律師公會停牌半年的大律師梅國強,在五宗民事索償案攤分案件勝訴的賠償,昨被裁定五項包攬訴訟罪成,即時入獄三年半,更須四個月內賠償超過一百五十萬予四位當事人,成為香港首位因攤分訴訟成果而被定罪的大律師。
記者:蘇曉欣
區域法院法官胡雅文判刑時直斥包攬訴訟罪成的大律師梅國強(五十三歲)專業失格,「沒有比此案更差劣的案件」,指梅利用申索人頭腦簡單,借錢予他們周轉,「給予甜頭」,讓他們繼續訴訟並藉此分賠償,大罵他「不知羞恥」。
梅國強九四年起執業大律師,早年曾分別在港大及城大修畢英國文學及法律學位。辯方在裁決後指出現今不少地方如美國已沒有包攬訴訟法,只有英國等繼續沿用,胡官立即反駁因本港與美國法制不同,不能比較。
官斥專業失格不知羞恥
控方要求被告賠償第二至第五控方證人被攤分的賠償金,合共超過一百五十萬,又指控方證人已對律師失去信心。胡官接納,下令被告今年八月一日前賠償予四名事主;而梅的大律師資格則交由大律師公會決定。
另胡官在裁決中讚揚所有控方證人均誠實可靠,第一及第五控方證人彭武峰和黃會勝頭腦簡單,沒有接受高等教育,相信他們雖接受分賠償的協議,卻不清楚是犯罪行為。反之,辯方第一證人陳智祥,即第一控方證人彭武峰之子作供有嫌疑,認為他與被告熟稔,形容他「選擇性地給口供」;她又不相信控方第三至第五證人曾因經濟困難而向梅借錢,反口誣告被告,她認為該批借據並非真實,像是有人事後為了今次官司而急急偽造,再冒充當事人簽名。
案情指,梅於九九至○八年期間,五度在民事索償案中主動向五申索人承諾「不成功不收費」,協議勝訴於賠償金中獲兩成五至三成酬勞。梅又在沒有事務律師在場下給予法律意見,更「吃兩家茶禮」,同時接受申索人及事務律師行支付的律師費,除彭武峰因未能成功索償外,梅共分得其餘四位申索人合共超過一百七十萬賠償金。另梅亦於一一年三月被指私自致電客戶招攬生意,更提出「分帳」詳情,嚴重違反大律師專業操守而被判停牌半年。案件編號:區院刑事八九○——二○一三。
CACC 133/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL
APPEAL NO 133 OF 2013
(ON
APPEAL FROM DCCC 890 of 2012)
____________
BETWEEN
HKSAR Respondent
and
MUI KWOK KEUNG(梅國強) Applicant
_____________
Before: Hon Stock VP, Macrae JA and Line J in Court
Date of
Hearing: 8 October 2013
Date of
Judgment: 8 October 2013
Date of
Handing Down Reasons for Judgment: 18
November 2013
____________________________
REASONS FOR
JUDGMENT
____________________________
Hon Macrae
JA (giving the reasons for judgment of the Court):
The applicant, a practising barrister of 19 years’ call, was convicted
on 26 March 2012 by HH Judge Woodcock of five charges of Champerty, contrary to
common law and section 101I of the Criminal Procedure Ordinance, Cap 221. He was sentenced on the same day to a total
of 3½ years’ imprisonment. He appealed
against both his conviction and sentence.
On 8 October 2013, we dismissed the appeals against both conviction and
sentence and said we would give our reasons later. This we now do.
Given the rarity of this somewhat ancient common law offence, it is necessary
to look at the particulars of the charges preferred against the applicant, as
well as the facts which were found in support of them, before examining whether
or not they come within the offence of champerty, as it is understood and
applied in this jurisdiction. There can
no longer be any issue as to whether champerty is a criminal offence per se under the law of Hong Kong,
notwithstanding the abolition of the common law offences of maintenance and champerty
in England and Wales under section 13(1) of the Criminal Law Act 1967. This matter has been settled by the Court of
Final Appeal in Unruh v Seeberger
(2007) 10 HKCFAR 31, and re-affirmed in Winnie
Lo v HKSAR (2012) 15 HKCFAR 16.
What is in issue is the scope of that offence and, in particular,
whether an agreement between a legal representative and his lay client to give
the legal representative a share of the proceeds of litigation, if successful, can
amount to the criminal offence of champerty under the common law of Hong Kong. That particular question is at the heart of
this appeal.
The Charges
Four of the offences charged (Charges 2, 3, 4 and 5) concerned personal
injury actions in which the applicant, who acted for each plaintiff, had
originally either been instructed by a solicitor (Charge 2), or had been
personally introduced to the respective plaintiff through a relative, colleague
or acquaintance of the plaintiff (Charges 3, 4 and 5), and had then obtained
the services of a solicitor to act for the plaintiff. In relation to all four charges, the same
solicitors’ firm and solicitor were ultimately brought in to act for the
plaintiffs, although the lay clients had either limited or no contact with the
solicitor concerned.
It is perhaps only necessary to set out in full the particulars of one
of these four charges, since its pattern and terms were the same in each charge. By way of example, Charge 2 was particularised
as follows:
Particulars
of Offence
MUI Kwok-keung, between the 15th
day of February, 2002 and the 25th day of October, 2004, both
dates inclusive, in Hong Kong, unlawfully:
(a)
promoted and supported a civil
action (HCPI No. 121 of 2002) in the Court of First Instance of the Hong Kong Special
Administrative Region between FUNG Kwok-ming as the Plaintiff and FOK Wing-hang
as the Defendant, in consideration of the said FUNG Kwok-ming agreeing to reward
him with a share in the proceeds of the civil action if it succeeded;
(b)
agreed with the said FUNG
Kwok-ming that he would take 25 per cent of the damages to be recovered from
the Defendant as his share of the said proceeds; and
(c)
took a sum of $425,000 Hong Kong
currency from the said FUNG Kwok-ming upon settlement of the said civil action
by the parties.
In each of the allegations in Charges 2 - 5, the arrangement was that
the applicant would take a 25% share of any damages recovered; and in each case
he did so, save for the last charge where, for reasons we shall come to, he
took for himself a share amounting to 62% of the proceeds.
Charge 1 was slightly different. The
underlying action involved a claim for damages against the Secretary for
Justice and the Hospital Authority arising out of alleged police misconduct
which had led to the plaintiff’s arrest for assault and his transfer to the
psychiatric ward of a hospital. Although
the share of proceeds of any successful action was agreed at 30%, nothing was
in fact ever paid because the action was time-barred and subsequently
discontinued; with the plaintiff being ordered to pay the costs of the
Secretary for Justice, as 1st defendant. Furthermore, unlike the position in Charges 2
– 5, the plaintiff concerned had been personally contacted by telephone ‘out of
the blue’ by the applicant, upon his legal aid application being refused; and
the action subsequently commenced. Again,
the applicant arranged for a solicitor to be engaged, who happened to be the
same as in all of the other actions.
The facts of each charge
Charge 1
In December 1997, Mr Pang Mo-fung (PW1) had been arrested for assaulting
a police officer following a domestic dispute with his then wife, to which
incident the police had been called. Following
his arrest, PW1 was taken to the United Christian Hospital from which he was
transferred under section 35A of the Mental Health Ordinance, Cap 136 to the
psychiatric unit of the Nethersole Hospital for a period of nine days. He was subsequently tried and convicted by a
magistrate of assaulting a police officer during the earlier incident.
In October 1998, PW1 appealed against his conviction and his appeal was
allowed by the High Court. He
subsequently applied for legal aid in order to launch a civil action against
the police and the United Christian Hospital.
His application was refused (it would seem on the merits), whereupon he
sought to appeal the Director of the Legal Aid’s decision; which appeal was
also refused.
About a month after his legal aid appeal was refused, in mid-October
1999, the witness received a telephone call from the applicant. At first the witness was concerned as to how
the applicant had learned of the matter and come by his telephone number, but
when the applicant said he could help him, he agreed to see the applicant in
his chambers in Central. At that
meeting, the applicant asked the witness about the proposed legal action and
said that he had experience in these kinds of matters, having previously been a
police officer. When the witness told
him that he had no money and was living on social security, the applicant
proposed that he would do the case on the basis of a 30% share of any proceeds
if the action succeeded: if it failed, the witness would not have to pay
anything. The witness accepted the
proposal.
PW1 subsequently saw the applicant on about ten further occasions at his
chambers, one of which involved a consultation with a doctor whom the applicant
had arranged to examine the witness in his chambers. On none of these occasions was a solicitor
ever present, although PW1 subsequently met a solicitor at the offices of a
solicitors’ firm in Admiralty at the applicant’s request in 2002; and once more
in 2003, and again in 2004.
On 12 October 2001, a writ was issued by the solicitors’ firm on behalf
of PW1 against the Secretary for Justice, for and on behalf of the Hong Kong
Police, and against the Hospital Authority, for and on behalf of the United
Christian Hospital. By then, of course,
the action was already time-barred. Nevertheless,
on 23 May 2002, a statement of claim drafted by the applicant was filed in the
District Court. On 27 January 2003, the
applicant appeared in the District Court on behalf of PW1 as plaintiff. In May and September 2003, the actions
against the Hospital Authority and the Secretary for Justice were respectively
discontinued, with the plaintiff being ordered to pay the costs of the
Secretary of Justice.
In due course, PW1 made a complaint to the Bar Association; not, it
would seem, because of the arrangement he had been persuaded to enter into by
the applicant, but because of the applicant’s alleged negligence in allowing
the action to become time-barred. As
part of its ensuing investigation into this complaint, a representative of the
Bar Association visited the solicitors’ firm in question and obtained copies of
two briefs in the applicant’s name, both of them in respect of the hearing of
27 January 2003, and both apparently signed by the same solicitor on the same
day. Rather curiously, one brief was
marked at HK$50,000, with a daily refresher of HK$30,000: the other was marked pro bono.
The civil action having been discontinued, no money was ever paid to the
applicant under his arrangement with PW1.
As for the costs order made against PW1, we are told that nothing has
ever been paid.
Charge 2
In March 1999, Mr Fung Kwok-ming (PW2) was injured in a car accident. A firm of solicitors was instructed, who in
turn gave instructions to the applicant to represent PW2. An action was duly commenced in the High
Court on 15 February 2002. However, as a
result of a disagreement between PW2 and his then solicitor during a conference
at the applicant’s chambers, the original firm of solicitors withdrew. The applicant nevertheless told PW2 that he
would continue to handle the litigation and that he would take 25% of any
damages subsequently ordered by the court.
Upon the applicant’s recommendation, a new firm of solicitors was then
brought in to act for PW2. A notice of ‘change
of solicitors’ was filed on 9 October 2003 by the new firm of solicitors, who
happened to be the same as the solicitors of record in relation to PW1’s civil
claim.
In October 2004, the action was settled at HK$1.7 million plus costs,
with a cheque being given personally by the applicant to PW2 in his chambers. At the same time, the applicant gave PW2 a
bank account name and number for him to transfer HK$445,000, representing 25%
of the award of HK$1.7 million, as well as HK$20,000 in respect of a
psychological report which the applicant had paid for in advance. This consultation had also taken place in the
applicant’s chambers.
The defendant in the civil suit further paid HK$488,000 to the plaintiff’s
firm of solicitors as costs. They in
turn paid the applicant HK$175,000 as his brief. Notwithstanding that the applicant had received
25% of the proceeds of the settlement under his agreement with PW2, he thereby received
a further sizeable amount as his professional fees. Interestingly, when PW2 was shown the
fee-note tendered by the applicant to the new firm of solicitors, he was
surprised to note that at least one conference was said to have been in the
presence of an instructing solicitor: he maintained that he had never at any
stage met or seen any solicitor from the second firm arranged by the applicant.
Charge 3
In March 2003, the wife of Mr Kong Ka-shing (PW3) died in an accident
during the course of her employment. There
were two daughters of the marriage, aged six and eight. A colleague of PW3 introduced him to the
applicant about a month after his wife’s death, as a result of which a consultation
took place at the applicant’s chambers. At
this first meeting, at which no solicitor was present, the applicant proposed
that he should receive 25% of any damages obtained in a civil action as his legal
fees, while PW3 would not be required to pay anything. A solicitors’ firm was brought in to act for
the Plaintiff, which was the same firm and the same solicitor engaged by the
applicant in the previous two actions. PW3
never paid any fees to this firm and only met the solicitor once, whereas he
met the applicant on about ten occasions, always in his chambers, and always
alone.
The witness had experienced financial difficulties since the death of
his wife and, when he told the applicant about this, the applicant lent him
money on three occasions amounting to some HK$25,000 to HK$30,000.
Two actions were launched on behalf of PW3: an employee’s compensation
action and a claim for damages in the District Court. The employee’s compensation action was
settled by consent on 16 July 2004, with PW3 and his two daughters receiving
HK$841,560 plus costs; half of the award being apportioned to PW3, and a
quarter each to his two daughters. About
a month later, PW3 received a cheque signed by the solicitors in the sum of HK$420,781
from the applicant in his chambers. At
the same time, the applicant gave PW3 a bank account name and number into which
he was to deposit HK$120,000, comprising 25% of this part of the award together
with a repayment of HK$15,000 of the loans advanced by the applicant.
In October, PW3 received again from the applicant personally a further
solicitor’s cheque in the sum of HK$205,108.
Again on the instructions of the applicant, PW3 drew a cheque for
HK$105,000 and deposited it in the same bank account as before. Ultimately, PW3 paid a total of HK$225,000
into this account, comprising the applicant’s 25% share of the award and the repayment
of the personal loans.
In relation to the action in the District Court, in August 2006, the
solicitors on the record were changed to another firm without the knowledge of
the witness. Indeed, he said he had
never met anyone from this new firm of solicitors. This action was settled in January 2007 for
HK$100,000 plus costs. In late 2008, PW3
was given a further cheque in the sum of HK$100,000 drawn on the account of the
new solicitors’ firm. He was then required
by the applicant to pay into the same bank account the sum of HK$35,000,
representing 25% of the award plus repayment of a further loan of HK$10,000.
Two bills of costs of the first set of solicitors relating to these two
actions were produced at trial. Both
bills recorded 15 conferences with the lay client at which a particular
solicitor had been present. Since PW3
was adamant that he had only ever met this solicitor on one occasion, the
prosecution contended that these bills of costs must have been false.
Charge 4
In March 2005, Mr Chan Chak-ki (PW4) was 16 years of age when he was
knocked down by a bus in Kowloon and injured.
Roughly two months after the accident, a relative of PW4 introduced him
to the applicant, as a result of which a meeting was convened between PW4, his
mother, his uncle and the applicant in the applicant’s chambers. No solicitor was present. At this meeting, the applicant told PW4 and
his family members that he could pursue an action against the bus company on PW4’s
behalf and that if he was successful, PW4 should pay him 25% of the award as
his legal costs. A firm of solicitors
was arranged to act on behalf of PW4, which again was the same firm and the
same solicitor organised to act on behalf of PW1, PW2 and PW3. The witness said he had spoken to the
solicitor concerned on the telephone on about ten occasions but had never met
him. Since PW4 was temporarily unable to
work, the applicant lent him a total of HK$8,000 over a few months between
August and October 2006.
Ultimately, the bus company agreed to pay HK$360,000 plus costs to PW4. A cheque for the agreed amount and drawn on
the bus company’s account was presented to PW4 by the applicant in his chambers. As directed by the applicant, HK$108,000 was
transferred by PW4 into the same bank account as the payments in the previous
cases, representing 25% of the settlement, HK$10,000 for a medical report
previously paid for by the applicant and repayment of the HK$8,000 personal
loan.
As with the cases of PW2 and PW3, the bill of costs submitted to the
defendant by the solicitors included four conferences with the lay client
which, if PW4’s evidence was true, had never taken place. Nevertheless, the bus company paid a further HK$77,000
in costs to the solicitors, HK$9,000 of which was used to settle the applicant’s
professional fees. Accordingly, the
applicant obtained 25% of the settlement of PW4’s action and a further HK$9,000
in counsel’s fees.
Charge 5
In June 1999, Mr Wong Wui-sing (PW5) injured his back during the course
of his employment. In April 2000, he was
granted legal aid to pursue a claim against his employer, solicitors being duly
appointed by the Director of Legal Aid to commence an employee’s compensation
claim in the District Court.
In June 2000, PW5 was introduced to the applicant through a District
Councillor at a legal seminar arranged in the neighbourhood where he lived. PW5 told the applicant about his accident and
the applicant invited him to come and discuss the matter at his chambers. When the two met again, the applicant offered
to conduct his case for a share of 25% of any damages which might ultimately
received. PW5 agreed to this arrangement. In July 2000, the legal aid certificate was
discharged at PW5’s instigation.
In August 2000, a new firm of solicitors filed a notice to act on behalf
of PW5 in his employee’s compensation claim in the District Court. PW5 said he had neither heard of nor seen anyone
from this particular solicitors’ firm. The applicant also assisted PW5 in his
claim against his insurance company.
In October 2001, the employee’s compensation claim was settled at
HK$279,718 plus costs. Since the employer
had already paid HK$120,000 in advance, PW5 received only the balance of
HK$160,000. He also agreed to accept
HK$130,000 from his insurance company. PW5 then paid 25% of both sums of money
to the applicant. He had never paid any
fees to the solicitors’ firm.
Following the accident, PW5 had gone through a number of personal tragedies
and financial crises, which resulted in him at one stage receiving treatment in
a mental hospital for seven to eight months.
Having gambled away the compensation he received, he had applied for
public assistance. He had also borrowed
some HK$20,000 from the applicant.
In 2002, a personal injuries claim was commenced in the District Court
against PW5’s employer by the same firm of solicitors who had been brought in
at various stages to act for the other prosecution witnesses. PW5 said he had never met anyone from this
firm of solicitors nor had he paid them any fees. In February 2004, the action was transferred
to the High Court and, in January 2005, it was ordered by consent that the
defendant pay to the plaintiff the sum of HK$1,764,718. After deducting
employee’s compensation and an advance payment made by the employer to PW5,
HK$1,430,000 was paid to the plaintiff’s solicitors. Costs were also ordered to be paid by the
defendant.
In October 2003, PW5 had opened a joint bank account with the applicant
at the Bank of China. This was done at the applicant’s suggestion in order to
facilitate the flow of funds received.
The bank account was controlled by the applicant, with his chambers’
address being used as the address for the account.
On 21 January 2005, a cheque for HK$1,430,000 drawn on the solicitors’
account was deposited into PW5’s and the applicant’s joint Bank of China
account. Six days later, the applicant
transferred HK$550,250 from the joint bank account into PW5’s own personal account
with Bank of China. At the same time, the applicant withdrew HK$879,750 in cash
from the joint bank account. On 30 March
2005, the applicant closed the joint bank account and withdrew the remaining balance
of about HK$5,000.
PW5 knew that he had only received 38% of his award but, when he asked
the applicant about it, he was told that, apart from the HK$20,000 which he had
earlier borrowed, he owed other legal fees which were incurred when the
applicant represented him in his divorce proceedings, at his arrest for assault
and during an investigation into child neglect.
However, he was never given a breakdown of what these fees actually entailed.
The judge’s reasons
Having found the above facts proved, the judge went into some detail as
to her understanding of the common law offence of champerty. In particular, she cited and relied upon the
following passage from the judgment of Lord Denning MR in In re Trepca Mines Ltd (No 2)
[1963] Ch 199, at 219:
“Champerty is derived from campi partitio (division of the field). It occurs when the person maintaining another
stipulates for a share of the proceeds… The
reason why the common law condemns champerty is because of the abuses to which
it may give rise. The common law fears
that the champertous maintainer might be tempted, for his own personal gain, to
inflame the damages, to suppress evidence, or even to suborn witnesses.”
The judge went on to hold that:
“What Lord Denning describes succinctly is the mischief targeted by
champerty. The arrangement may lead to a
perversion of justice; there is a real danger.
Where the champertor is an officer of the court, there is a real danger
a champertous agreement may give rise to conflicts between his interest in
financial gain and his duties to the court as well as his lay client. Justice may be undermined by such real
conflicts.”
She found as facts, and as a matter of law, that the applicant had
officiously intermeddled with the five prosecution witnesses’ litigation and
agreed to obtain a share in the proceeds of that litigation in ways that could
not be justified under any of the public policy exceptions to the offence. As a barrister and member of the legal
profession, she considered that the applicant’s conduct posed a genuine risk to
the integrity of the court process. It
was, she said, champerty in its purest and most obnoxious form.
The applicant’s grounds of appeal
A number of grounds of appeal have been advanced by Mr Yuen, on behalf of
the applicant. There is, however, a
measure of overlap between them and they may be reduced to the following
propositions. First, it is submitted
that the judge was wrong to find that public policy dictated that the type of
agreement entered into between the applicant and the prosecution witnesses
should be regarded as criminal. Secondly,
it is said that the judge failed to consider the exceptions which operated to
remove the applicant’s conduct from criminal sanction: in particular, the
applicant’s and the litigants’ common interest in the outcome of the
proceedings, and the litigants’ right of access to justice and lawyers of their
choice. Thirdly, it is argued that the
judge was wrong to find that the applicant’s conduct posed a genuine risk to
the integrity of the judicial process.
A consideration of the applicant’s arguments
The first proposition
It must be acknowledged that just as public policy brought the common
law offences of maintenance and champerty into being, they are necessarily
susceptible to changes in that policy. As
Lord Phillips of Worth Matravers MR put it in R (Factortame Ltd) v Transport Secretary (No 8) [2003] QB 381, at
399:
“Because the question of whether maintenance and champerty can be
justified is one of public policy, the law must be kept under review as public
policy changes.”
Ribeiro PJ, giving the principal judgment of the Court in Winnie Lo, considered the effects of the
changes in public policy on the essential rationales of the offences. He observed, at 45:
“In Unruh v Seeberger, this
Court noted that these offences are traceable in English law back to at least
the 13th century. It was pointed out
that their core definitions, applicable equally to maintenance and champerty as
crimes, as torts and as the basis for rendering contracts unenforceable as
against public policy, have remained essentially unchanged throughout this time.
The kernel of the offence of maintenance has always involved a defendant’s
“officious intermeddling” in litigation in which he has no legitimate interest. And the crux of champerty has always involved
a defendant who takes a share of the proceeds of the litigation maintained.
…..
As the Court noted in Unruh v
Seeberger, the scope of these two offences has progressively been narrowed
over the years by the courts carving out common interest and similar exceptions
to liability to reflect changed public policy considerations.”
It is argued by Mr Yuen that, following the abolition in England of the
common law crimes and torts of maintenance and champerty by the Criminal Law Act,
1967 and the subsequent permitting of those conducting litigation to enter into
contingency agreements in limited circumstances under section 58 of the Courts
and Legal Services Act, 1990, public policy has changed and, indeed, moved so
far away from the policies which brought the common law crimes of maintenance
and champerty into existence, and thereafter sustained them in a steadily
attenuated form, that they have become a virtual dead letter in Hong Kong. Mr Yuen went so far as to say of contingency
fee arrangements that, given the competing public interest of ensuring access
to justice and the right to have a lawyer of one’s choice, conditional or
contingency fees by those conducting litigation “should not be so wicked and
objectionable” as the judge found them to be.
There are a number of difficulties which confront the applicant in
mounting his arguments. First, it is not
simply public policy which proscribes contingency fee arrangements. Section 64(1)(a) and (b) of the Legal
Practitioners Ordinance, Cap 159 provides as follows:
(1) “Nothing in section 58, 59, 60, 61 or 62 shall give validity to –
(a) any purchase by a solicitor
of the interest, or any part of the interest, of his client in any action, suit
or other contentious proceeding; or
(b) any agreement by which a
solicitor retained or employed to prosecute any action, suit or other
contentious proceeding stipulates for payment only in the event of success in
that action, suit or proceeding;
(c) … ”
These provisions mirror in identical language the provisions in England
of section 65 of the Solicitors Act, 1957.
Of the English section, it was noted by Steyn LJ (as he then was) in the
Court of Appeal decision in Giles v
Thompson [1993] 3 All ER 321, at 329, that the Law Reform Commission in
England, in its Proposals for Reform of
the Law relating to Maintenance and Champerty of October 1966, had said:
“16. There is, however, one field
in which that particular species of maintenance -- champerty-- plays an
effective role. There is a substantial
body of case law to the effect that champertous agreements (including in this
context “contingency fee” agreements) are unlawful as contrary to public policy;
see e.g. Laurent v Sale & Co
([1963] 2 All ER 63, [1963] 1 QB 232). This
rule has an important bearing upon the practice of solicitors. For instance, section 65 of the Solicitors Act
1957 reflects the rule when it declares that nothing in the Act is to be
treated as giving validity to “(a) any purchase by a solicitor of the interest,
or any part of the interest, of his client in any action, suit or other
contentious proceeding; or (b) an agreement by which a solicitor retained or
employed to prosecute any action, suit or other contentious proceeding
stipulates for payment only in the event of success in that action, suit or
proceeding.” And it is clear that a client can apply pursuant to section 61 of
the Act to set aside a champertous agreement made with a solicitor for the
conduct of litigation.”
Furthermore, the passage referred to from Lord Denning MR’s judgment in In re Trepca Mines Ltd (No 2), and cited
by the judge (at para 37 supra), which sets out the potential
abuses of champertous arrangements, immediately continues, at 220:
“These fears may be exaggerated; but, be that so or not, the law for
centuries has declared champerty to be unlawful, and we cannot do otherwise
than enforce the law; and I may observe that it has received statutory support,
in the case of solicitors, in s 65(1)(a) and (b) of the Solicitors Act 1957.”
Accordingly, it is not merely public policy which prohibits contingency
fee arrangements. The Legal
Practitioners Ordinance gives statutory force to the prohibition. Whatever the position in England, Hong Kong
has not seen fit to modify the rule in the limited way which section 58 of the
Courts and Legal Services Act has done.
Secondly, the principles which made champertous agreements contrary to
public policy in England still apply, and have particular application to legal
practitioners conducting litigation. While
the emphasis of the offence may have shifted and its scope narrowed, the
underlying rationale remains the same. In
Winnie Lo, Ribeiro PJ summarised (at
46) the effect of its earlier decision in Unruh
v Seeberger:
“In Unruh v Seeberger, this
Court held that the traditional legal policies underlying maintenance and
champerty continue to apply, with the mischief aimed at continuing to be “officious
intermeddling” in litigation in the case of maintenance. It acknowledged the continued relevance of
the traditional concerns underlying champerty, namely, the tendency of an
agreement to share the spoils of litigation to encourage the perversion of
justice; to endanger the integrity of the judicial process or to involve
trafficking in the outcome of litigation.
It emphasised the need to consider the totality of the facts in
ascertaining liability and the importance of considering countervailing
policies and recognising that other approaches may be more suitable in a
particular case.”
In the House of Lords decision in Giles
v Thompson, at 351, Lord Mustill considered how the amelioration, if not
removal, of the conditions which had led, as a matter of public policy, to the
creation of the common law offences of maintenance and champerty - historically
the exploitation by men of power of litigants and litigation - had resulted by
the twentieth century in a very limited sphere of application for either
offence:
“In the most recent decades of the present century maintenance and
champerty have become almost invisible in both their criminal and tortious
manifestations. In practice, they have
maintained a living presence in only two respects. First, as the source of the rule, now in the
course of attenuation, which forbids a solicitor from accepting payment for
professional services on behalf of a plaintiff calculated as a proportion of
the sum recovered from the defendant. Secondly,
as the ground for denying recognition to the assignment of a ‘bare right of
action’. The former survives nowadays,
so far as it survives at all, largely as a rule of professional conduct, and the
latter is in my opinion best treated as having achieved an independent life of
its own.”
Although the last sentence of this passage might seem to be at odds
which what we have earlier said (at para’s 44 - 47 supra), it was pointed out by Lord Phillips MR in R (Factortame Ltd), at 402:
“With respect, this statement is not correct. The basis of the rule is statutory.”
Thirdly, there are cogent reasons why maintenance and champerty have
retained a particular application and significance in relation to legal
practitioners. The statement of Lord
Denning MR in In re Trepca Mines Ltd (No 2) (at para 37 supra) has been recast by Lord Phillips MR in R (Factortame Ltd), at 400, so that one must look to the facts of a
particular case:
“…and consider whether those facts suggest that the agreement in
question might tempt the allegedly champertous maintainer for his personal gain
to inflame the damages, to suppress evidence, to suborn witnesses or otherwise to undermine the ends of
justice.” (emphasis supplied)
Later in his judgment, at 407, Lord Phillips MR explained how the ends
of justice may be undermined in the case of lawyers entering into champertous
agreements with their clients:
“There is good reason why principles of maintenance and champerty should
apply with particular rigour to those conducting litigation or appearing as
advocates. To demonstrate this we can do
no better than cite a passage in the judgment of Buckley LJ in Wallersteiner v Moir (No 2) [1975] QB 373, 401-402:
“A contingency fee, that is, an arrangement under which the legal
advisers of the litigant shall be remunerated only in the event of the litigant
succeeding in recovering money or other property in the action, has hitherto
always been regarded as illegal under English law on the ground that it
involves maintenance of the action by the legal adviser. Moreover where, as is usual in such a case,
the remuneration which the adviser is to receive is to be, or to be measured
by, a proportion of the fund or of the value of the property recovered, the
arrangement may fall within that particular class of maintenance called
champerty… It may, however, be worthwhile to indicate briefly the nature of the
public policy question. It can, I think,
be summarised in two statements. First,
in litigation a professional lawyer’s role is to advise his client with a clear
eye and an unbiased judgment. Secondly,
a solicitor retained to conduct litigation is not merely the agent and adviser
to his client, but also an officer of the court with a duty to the court to
ensure that his client’s case, which he must, of course, present and conduct
with the utmost care of his client’s interests, is also presented and conducted
with scrupulous fairness and integrity. A
barrister owes similar obligations. A
legal adviser who acquires a personal financial interest in the outcome of the
litigation may obviously find himself in a situation in which that interest
conflicts with those obligations…” ”
Or, as Steyn LJ succinctly put the matter in Giles v Thompson, at 331:
“The rationale of the common law rule is that such agreements allowed
the duty and interest of solicitors to conflict with a resultant risk of abuse
of legal procedure.”
The same, in our view, may be said in relation to barristers.
Accordingly, for these reasons, we would reject Mr Yuen’s first
proposition that public policy, however else it may have eroded the common law
rule, has changed so as to reflect a different attitude to champertous
arrangements by lawyers with their clients and thereby removed them from the
ambit of the criminal law.
The second proposition
However, our conclusion is not complete without an examination of Mr
Yuen’s second proposition. It is argued
that certain public policies have achieved greater prominence and force in
recent years which in turn have led to the narrowing of the ambit of the common
law offences; the “shrinking scope of maintenance and champerty”, as Ribeiro PJ
termed it in Unruh v Seeberger, at 65. Of the common law tort of maintenance,
Fletcher-Moulton LJ had said over a century ago in British Cash and Parcel Conveyors Ltd v Lamson Store Service Co Ltd
[1908] 1 KB 1006, at 1013:
“The present legal doctrine of maintenance is due to an attempt on the
part of the Courts to carve out of the old law such remnant as is in consonance
with our modern notions of public policy…”
Since then, of course, human rights and other legislation have
entrenched certain fundamental imperatives, such as the right of equal access
to justice and the right to legal assistance of one’s own choosing. Furthermore, the law now recognises that
certain relationships can have a sufficient, legitimate common interest in the
outcome of litigation to justify one of them supporting the litigation of
another: for example, the fishing companies and their accountants in the R (Factortame
Ltd) case. Moreover, as Ribeiro PJ
held in Unruh v Seeberger, at 66,
this ‘common interest’ category of exception is not closed.
The judge was aware of the categories of exception which might exclude
conduct from being regarded as the criminal offences of maintenance or
champerty at common law. Notwithstanding
that no argument was mounted before her that any such exception applied (save,
somewhat faintly, the access to justice exception), she found that they did not
arise on the facts of the case. In our
judgment she was right to so find.
It was always open to the litigants in these cases to have the lawyer of
their choice (within reasonable limits) without entering into a champertous arrangement. Nor did they have access to justice only by
virtue of the champertous agreement. PW5
had in fact been granted legal aid, which he discharged upon entering into an
arrangement with the applicant. The
judge said of the five plaintiff prosecution witnesses:
“None had any experience in the legal profession or previous litigation
indicating they would necessarily know or be familiar with the procedure of
instructing a solicitor who may brief counsel as well as how fees are normally
charged and collected.”
She expressly found, in relation to all five prosecution witnesses, that
they:
“... did not pay any legal fees upfront or in advance or on account to
any solicitors’ firm… which is the norm, because there was a champertous
agreement in place for their litigation.
They met the (applicant) directly and dealt only with the (applicant)
and not a solicitor who instructed the (applicant) on their behalf because
there was a champertous agreement between the prosecution witnesses and the (applicant). They paid what they thought was their legal
fee directly to the (applicant’s) designated account because they had a
champertous agreement in place with the (applicant). All five prosecution witnesses knew very
little about their litigation, the progress or the negotiations that led to
settlements, and I am sure that was deliberate on the part of the (applicant). I am sure all were told they did not have to
pay any fees if there was no win or award, which is the rationale behind champerty.”
In other words, the applicant exhibited a complete disregard of his
professional responsibilities towards his lay clients. As Ribeiro PJ warned in Winnie Lo, at 52:
“A solicitor who has conduct of a piece of litigation therefore may
attract liability only when he transgresses his proper professional role. ...
…by far the most common instance of a solicitor incurring liability in
respect of litigation which he is conducting involves his committing
champerty. In such cases, the solicitor
plainly departs from his proper professional role and is held liable for that “particularly
obnoxious form” of maintenance “when the maintainer seeks to make a profit out
of another man’s action -- by taking the proceeds of it, or part of them, for
himself.” ”
Ribeiro PJ concluded, at 55, that:
“… under the law as it stands, it does further illustrate the importance
of solicitors keeping within their usual professional role as litigation attorneys,
charging no more than their ordinary fees, if they are to avoid being tainted
with maintenance or champerty.”
The same may be said, with equal if not greater force, in relation to
barristers, particularly where the solicitor is a man of straw who plays no
useful or effective role in the litigation beyond that of allowing his name to
appear on the record.
As for the suggestion that, by taking up the case in question, the
barrister arrogates to himself a common interest in the outcome, the argument involves
a circularity which was described and disposed of by Sir Thomas Bingham MR (as
he then was) in the Court of Appeal decision in Giles v Thompson, at 347:
“Ordinarily, an alleged maintainer or champertor cannot rely on the
agreement alleged to be unlawful as giving him his legitimate business
interest. An outsider will very probably
become involved in the litigation by virtue of some agreement, and if such an
agreement were held to confer a sufficient interest the exception would consume
the rule. Hence the repeated reference
in the cases to a pre-existing interest, and hence the House of Lords’ decision
in Trendtex that assignment of a bare
right to litigate remains unlawful. It
is plain that where an outsider has no legitimate business interest beyond such
as he derives from the agreement whose validity is in question, he is merely
trafficking in litigation, an activity which English law continues to regard as
contrary to public policy.”
Accordingly, we find no basis either in law or on the facts of this case
for saying that any of the exceptions can apply to the applicant’s champertous
arrangements with each of the prosecution witnesses.
The third proposition
We turn to Mr Yuen’s third proposition, which is that the judge was
wrong to find that the applicant’s conduct posed a genuine risk to the
integrity of the judicial process.
To a large extent we have already dealt with the risks associated with
lawyers entering into champertous agreements with their clients, when examining
the policy behind the common law rule. That
policy is summarised in the passage from Lord Denning MR in In re Trepca Mines Ltd (No 2) (at para 37 supra), as extended by Lord Phillips MR in R (Factortame Ltd) (at
para 51 supra), and as explained by
Buckley LJ in Wallersteiner v Moir (No 2)
(at para 52 supra). A solicitor or barrister who acquires a
personal financial interest in the outcome of litigation may obviously find
himself in a situation in which his interest conflicts with his obligations to
his client and to the court.
Mr Yuen submits that there is no evidence or suggestion that any of the
abuses envisaged in the authorities, when a solicitor or barrister acquires a
personal financial interest in the outcome of his client's litigation, had ever
occurred in any of the five cases concerned.
With respect, in many cases of champerty, that might be difficult to
show. But that is not the point. What is exposed by such arrangements is the obvious
risk that such abuses might occur.
A brief excursion into the facts of the five cases reveals that by
virtue of the applicant pursuing a claim on behalf of PW1 which was
time-barred, the plaintiff was ordered to pay the costs of the 1st
defendant. Not surprisingly, those costs
have never been paid. In relation to PW2’s
claim, the applicant received HK$425,000 as his share of the champertous
agreement, while the fee notes he rendered to his solicitors in respect of the
case amounted to HK$180,000. Notwithstanding
his champertous agreement with PW2, he received in addition legal costs from
the defendant of HK$175,000. In respect
of PW4’s settlement, the applicant also received his professional fees in
addition to his share of the award, albeit on a smaller scale. In relation to PW3, about HK$105,000 of the
award of employee’s compensation, which should have gone to two minors as
daughters of PW3, went to the applicant.
And in relation to PW5, legal aid was discharged in favour of a
champertous agreement, from which the applicant ultimately availed himself of
62% of the award.
Even if one leaves out of consideration these unsavoury facts, and the
irregular dealings and unprofessional relationships he established as a
barrister with all of the witnesses, the applicant evidently profited far more
than he would have done had he charged in the ordinary way, on proper
instructions from a solicitor or the Director of Legal Aid, for work properly
or fairly done on behalf of the plaintiffs.
Not only did the plaintiffs pay far more under these champertous
arrangements than they would otherwise have paid under a properly regulated
system of representation, but the defendants were clearly at risk of paying
more than they might otherwise have agreed to pay but for the champertous agreements
they knew nothing about. One can safely
assume that, in those cases where they were required to pay the plaintiff’s
legal costs, the defendants were not informed that the plaintiff’s counsel was
in fact receiving 25% of the settlement.
To that material extent, they were deceived.
The matter has been rationalised in this way by Buckley LJ in Wallersteiner v Moir (No 2), at 402:
“Under a contingency fee agreement the remuneration payable by the
client to his lawyer in the event of his success must be higher than it would
be if the lawyer were entitled to be remunerated, win or lose: the contingency
fee must contain an element of compensation for the risk of having done the
work for nothing. It would, it seems to
me, be unfair to the opponent of a contingency fee litigant if he were at risk
of being ordered to pay higher costs to his opponent in the event of the latter’s
success in the action than would be the case if there were no contingency fee
agreement. On the other hand, if the
contingency fee litigant were to lose the action, his opponent’s right to
recover costs against him should not in fairness be affected by the fact that
the former party has a contingency fee agreement. Consequently under our system of what are
sometimes called indemnity costs a contingency fee litigant would in the event
of success have to bear a heavier burden of fees, irrecoverable from his
opponent, than he would otherwise do, while remaining exposed to the risk of
being ordered to pay his opponent’s taxed costs in the event of his failure. The arguments in favour of the contingency
fee system are accordingly a good deal less cogent here than they are in the
United States of America.”
Thus we cannot accept Mr Yuen’s allied argument that, since the
historical rationale behind the public policy was to protect defendants from
the unscrupulous trafficking in litigation by wealthy and powerful interests,
and since the defendants’ interests (as distinct from those of the plaintiffs)
were not the interests affected by the applicant’s actions, public policy did
not operate to make these agreements criminal.
In reality, as Buckley LJ pointed out, champertous agreements operate to
the disadvantage of both sides in litigation.
It is well to remember the cautionary words of the Privy Council in Ram Coomar Coondoo v Chunder Canto Mookerjee
(1876) LR 2 App Cas 186, at 210:
“Their Lordships think it may properly be inferred from the decisions
above referred to, and especially those of this tribunal, that a fair agreement
to supply funds to carry on a suit in consideration of having a share of the
property, if recovered, ought not to be regarded as being, per se, opposed to public policy.
Indeed, cases may be easily supposed in which it would be in furtherance
of right and justice, and necessary to resist oppression, that a suitor who had
a just title to property, and no means except the property itself, should be
assisted in this manner.
But agreements of this kind ought to be carefully watched, and when
found to be extortionate and unconscionable, so as to be inequitable against
the party; or to be made, not with the bona
fide object of assisting a claim believed to be just, and of obtaining a
reasonable recompense therefor, but for improper objects, as for the purpose of
gambling in litigation, or of injuring or oppressing others by abetting and
encouraging unrighteous suits, so as to be contrary to public policy, -- effect
ought not to be given to them.”
In our judgment, the agreements entered into between the applicant and
the five prosecution witnesses undoubtedly presented an obvious and genuine
risk to the integrity of the court’s process.
Conclusion
For these reasons, the application for leave to appeal against
conviction was refused. We turn now to consider
the appeal against sentence.
Appeal against sentence
The judge sentenced the applicant to a total sentence of 3 and a half years’
imprisonment, which she achieved by passing two years’ imprisonment on Charges
1, 2, 3 and 4 and two years and 10 months’ imprisonment on Charge 5; and then
making all sentences concurrent save for two months from each of the sentences
on Charges 1 to 4, which were ordered to run consecutively to the sentence on
Charge 5. She also ordered the applicant
to pay compensation in a total amount of HK$1,509,750 to the four prosecution
witnesses (PW2, PW3, PW4 and PW5).
In sentencing the applicant, the judge described his actions as
champerty “in its most obnoxious form”. She
continued:
“A member of the legal profession has abused his position and the trust
of his lay clients. There are no
guidelines for this offence. It is a rare
offence and each sentence will depend on the facts of each case. The fact that it is rare and no longer an
offence in some jurisdictions is not a factor that will attract leniency. In fact, I can say from the outset, this is a
very serious case. I cannot imagine it
getting much worse.
The defendant acted wholly inappropriately and in total disregard of his
honourable profession. As a member of
the Bar, he should have no direct contact with any lay client. Yet with all five prosecution witnesses, he
dealt with them directly and independently of any solicitors. He cold-called PW1 and solicited him,
tempting him with success with untruths.”
She found, as an aggravating feature of the applicant’s conduct, an
element of exploitation, particularly in relation to PW5. However, implicit in her reasoning was the
finding that all five prosecution witnesses had been manipulated by the
applicant, who preyed on their trust, their ignorance of the legal system and, to
varying degrees, their vulnerabilities, whether in terms of youth, financial
difficulties or mental instability.
We respectfully agree that it is difficult to imagine a worse case of
champerty by a member of the Bar. Quite
apart from the blatant disregard of his professional responsibilities under the
Code of Conduct of the Hong Kong Bar Association, these were five different,
unconnected cases involving considerable sums of money which the plaintiff witnesses
in question could ill afford to forego.
As for the complaint that the judge should not have ordered compensation
in the terms she did, we note that she specifically asked defence counsel at
trial (not Mr Yuen) whether he had taken instructions on the prosecution’s
application for compensation. Counsel
indicated that he had instructions from his client not to make any submission
on the matter. In relation to the further
complaint that the judge did not make an enquiry into the means of the
applicant to pay such compensation, the judge specifically asked counsel if he
would like her to conduct an examination of the applicant’s ability to pay
compensation, but he reiterated that, upon instructions, he did not wish to
make any submission on the issue. Notwithstanding
the applicant’s clear position, and out of an abundance of caution, the judge nevertheless
stood the matter down until after the luncheon adjournment so that counsel
could take full instructions on the question of compensation. When the court resumed in the afternoon, and
the judge asked again if he had taken instructions over the adjournment in
relation to the issue of compensation, counsel repeated his instructions:
“... the position of the accused
person is just the same in the morning session that we will not make any reply
submission in respect of (the application for compensation by the prosecution).”
In the light of the applicant’s position at trial, and the careful and
prudent course adopted by the judge in relation to the prosecution’s
application for a compensation order, we are distinctly unimpressed by these complaints;
as we are with the submission that the relevant prosecution witnesses were
themselves parties to an illegal contract and thereby not entitled to any compensation.
Conclusion
We would not have interfered in the circumstances of this case with an
overall sentence of five years’ imprisonment.
The application for leave to appeal against sentence is refused. We have given considerable thought as to
whether we should use our powers under sections 83I(3) or 83W(2) of the
Criminal Procedure Ordinance, Cap 221. However,
given that there were matters of law in relation to conviction which might be
said to be at least arguable, if only because of the highly unusual nature of
the offence, and given the absence of sentencing precedent, as well as the
inevitable extra-curial consequences for the applicant of his misconduct, we
have decided with some reluctance not to use those powers.
However, any member of either profession who enters into the kind of
arrangements with which we have been concerned in this case must realise that he
or she will, if convicted of a similar offence, inevitably go to prison for a
substantial period of time, with the inevitable consequences on their
professional careers. (blogger's emphasis)
Postscript
The question of law reform in this area of the law was raised at the
conclusion of the judgment of Ribeiro PJ in Winnie
Lo, at 71:
“As a postscript, I wish to raise for consideration the question whether
and to what extent criminal liability for maintenance should be retained in
Hong Kong.
In England and Wales, criminal and tortious liability for both
maintenance and champerty were abolished by the Criminal Law Act 1967. As pointed out in 1997 in Magic Menu Systems Pty Ltd v AFA
Facilitation Pty Ltd ((1997) 72 FCR 261), such liability was abolished in
Victoria in 1969, in South Australia in 1992 and in New South Wales in 1995 by
the Maintenance and Champerty Abolition Act 1993 (NSW).
The issues are, however, of some complexity and may involve taking a
different view in respect of maintenance as opposed to champerty; and of
criminal as opposed to tortious liability.
It is in my view a fit topic to be referred to the Law Reform Commission.”
The Court was, of course, dealing with a solicitor who had been charged
with maintenance, and not champerty, in circumstances where it found the
evidence fell well short of establishing either offence. In the light of the facts which have emerged
in this case, it might be argued that there are very good reasons for
preserving the common law offence of champerty where legal practitioners are
involved in these sort of champertous arrangements with their clients. This was an egregious example of the offence
and we wonder if, without the benefit of the common law offence, there would be
other sufficient criminal sanctions and safeguards to deal with such conduct.
(Frank Stock)
Vice-President
|
(Andrew
Macrae)
Justice
of Appeal
|
(Peter
Line)
Judge
of the Court
of
First Instance
|
Mr Bernard
Yuen, instructed by Messrs CMK Lawyers, for the applicant
Mr Wesley
WC Wong, SC and Ms Jasmine Ching, SPP of the Department
of Justice, for the respondent
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