A barrister and a firm of solicitors were initially retained on a private basis for an Applicant in his appeal against his indecent assault conviction in the High Court. One of the grounds of appeal drafted and filed by them for the Applicant averred “incompetence of counsel”. The Registrar of Criminal Appeals gave directions that the solicitors were to file a waiver of legal professional privilege and an affirmation in support of the complaint of counsel’s incompetence within a prescribed time. As the directions had not been complied with, various reminders were sent by the Registrar and various extensions of time were granted. Legal Aid was subsequently granted to the Applicant and some 14 months after the first directions from the Registrar, the Court directed that since there had been a persistent failure to comply with the Registrar’s directions, the Applicant was prohibited from pursuing the “incompetence of counsel” ground.
The Court ordered that the solicitor and barrister and the handling solicitor from the Legal Aid Department appear before it to explain the failure by counsel and solicitors to abide by the Court’s directions and to give them the opportunity to show cause why orders under s. 18 of the Costs in Criminal Cases Ordinance, Cap. 492 should not be made.
In considering whether the conduct was seriously improper, the Court of Appeal considered Hong Kong and English authorities. The Court of Appeal also looked at “undue delay” considered in the civil context in China Metal Recycling (Holdings) Limited (In Compulsory Liquidation) & Anor –v- Chun Chi Wai & 12 Ors(Unrep. CACV 109/2016 & CACV 155/2016, 27 January 2017). In giving the judgement of the Court, Macrae VP cited Lam VP in the aforementioned case where wasted costs were ordered on the basis that the solicitors were “guilty of undue delay in the preparation of the appeals, and in the context of these appeals the delay amounted to a serious dereliction of duty on the part of the [solicitors]”. In HKSAR –v- Harjani: Re Sutherland (Appeal: Wasted Costs Order)  2 HKLRD 1 the Court had approved a three-stage test in respect of the conduct of a barrister (which was equally applicable to solicitors) as follows:
1) Has the barrister of whom complaint is made acted seriously improperly, or been guilty of undue delay or other serious misconduct;
2) If so, has such conduct caused the applicant to incur unnecessary costs;
3) If so, is it in all the circumstance just to order the barrister to compensate the applicant for the whole or any part of the relevant costs?
Macrae VP referred to the “astonishing and repeated failure to comply with the orders of the Court” and a “catalogue of defiance and delay” in this case such that the appeal was left “languishing in the listing office” and could not take place. A wasted costs order was made under s. 18 against both the solicitor and the barrister.
New Practice where the conduct of the trial lawyer is under attack at appeal
In this appeal, the Court of Appeal also looked at the appropriate conduct of appeal counsel in relation to an allegation of flagrant incompetence against the former legal team at trial. At no stage had any enquiries been made of the former legal team who had represented the Applicant at trial. No attempt had been made to ask the parties against whom the allegations were directed what they had to say to the complaints. Citing English authority, which characterised it as a duty on the legal representatives to ensure that any facts relied upon at the appeal were correct, the Court of Appeal formulated a new practice in Hong Kong where flagrant incompetence is advanced as a ground of appeal. Those advancing such a ground have a duty to satisfy themselves that the ground is properly arguable ie that there is a palpably sound basis for the allegation which should be assessed after looking for independent and objective evidence to support the complaint. In every case, unless there are exceptional reasons, full and proper enquiries of the previous legal representatives at trial are to be made before articulating flagrant incompetence as a ground of appeal. A Certificate to this effect is to be incorporated in the grounds themselves together with a signed waiver of legal professional privilege and an affirmation in support of the complaint. This practice is also to be adopted where the conduct of the legal representatives at trial is under attack but the allegation falls short of flagrant incompetence eg where there is criticism that there was evidence which was not called or produced at trial or where previous convictions were revealed in evidence.
Note: the Court did not make a wasted costs order against the solicitor from the Legal Aid Department as the Legal Aid Department was not a “party to the proceedings” within the meaning of s. 18 of the Costs in Criminal Cases Ordinance. The Court did recommend however that in future, all Court directions and orders to assigned counsel and solicitors in appeal proceedings should be copied to the Legal Aid Department so that it can play a more effective role in monitoring the performance of those assigned to the appeal.