Hong Kong Bar Association Circular No. 245/19 To : All Members & Mess Members of the Bar Association From : Jonathan Chang – Honorary Secretary Date : 3 December 2019 PRACTICE NOTE : NEW PRACTICE WHERE FLAGRANT INCOMPETENCE IS ADVANCED AS A GROUND OF APPEAL Members’ attention is drawn to the Court of Appeal judgment in HKSAR v Apelete [2019] HKCA 1189 whereby a new practice is imposed by the Court where flagrant incompetence of legal representative(s) at trial is advanced as a ground of appeal: 1. An appellate counsel has a duty to satisfy himself that the ground is properly arguable, i.e. there is a palpably sound basis for such allegations to be made, failing which such allegations must never be advanced: see also HKSAR v Li Xiaoxiang (2018) 21 HKCFAR 272 at [31]. 2. In making that assessment, the appellate counsel must look for independent and objective evidence to support the complaint and, save where there are good and compelling reasons not to do so, make full and proper enquiries of the previous legal representatives at trial in relation to the complaint before articulating it as a ground of appeal. The appellate counsel must then add an appropriate certificate in the grounds of appeal that he has complied with this duty when relying on such a ground. 3. Further, a signed waiver of LPP from the applicant in respect of the trial legal representatives and an affirmation in support of the complaint must be filed at the same time as the ground of appeal. 4. If subsequent material comes to light casting doubt on the applicant’s claims, there is a continuing duty on the appellate counsel to evaluate the propriety of the grounds of the complaint. 5. The above duties also apply to any ground of appeal which seeks to assert that something happened or did not happen at trial, which should or should not have occurred, even though in respect of which no allegation of flagrant incompetence is made. The appellate counsel must make enquiries of the previous legal representatives as to what was done or not done, and why, and must certify in the grounds of appeal that they have complied with this duty. The appellate counsel should advise the applicant of the consequences of the Court ordering “loss of time” if it is found that there is no merit in the allegation, bearing in mind in particular the significant time, effort and inconvenience, and anxiety, that will have been caused to the trial legal representatives in having to deal with very serious imputations against their professionalism, honesty and competence: Practice Note (Crime: Loss of Time) [2013] 6 HKC 300; HKSAR v Apelete (No 2) [2019] HKCA 1320 at [124] and [127]. A copy of the Court of Appeal judgment in HKSAR v Apelete [2019] HKCA 1189 and HKSAR v Apelete (No 2) [2019] HKCA 1320 is attached to this Circular. A A B CACC 176/2017 B [2019] HKCA 1189 C C IN THE HIGH COURT OF THE D HONG KONG SPECIAL ADMINISTRATIVE REGION D COURT OF APPEAL E E CRIMINAL APPEAL NO 176 OF 2017 F (ON APPEAL FROM HCCC NO 74 OF 2016) F G G BETWEEN H H HKSAR Respondent and I I 古晉希 Applicant APELETE Kokou Afla ( ) J J K K Before: Hon Macrae VP, McWalters JA and Zervos JA in Court Dates of Hearing: 18 September 2019 & 23 October 2019 L L Dates of Written Submissions (on quantum): 9 October 2019 M (Mr McGowan); 10 October 2019 (Mr Mohnani); 26 September & M 18 October 2019 (Mr Lai) N Date of Judgment on Wasted Costs: 23 October 2019 N O O JUDGMENT ON WASTED COSTS P P Q Hon Macrae VP (giving the Judgment of the Court): Q R R A. Introduction and chronology of events S S 1. On 16 May 2017, the applicant was convicted before Toh J T and a jury of one count of indecent assault, contrary to section 122(1) of T the Crimes Ordinance, Cap 200 and another count of rape, contrary to U U V V A - 2 - A B section 118(1) of the same Ordinance. He was sentenced on the B following day to an overall term of 9 years‟ imprisonment. C C 2. On 14 June 2017, the applicant filed a Notice of D D Application for leave to appeal (Form XI) in respect of conviction only. E E On 4 September 2017, his application for Legal Aid was refused by the Director of Legal Aid. F F G 3. On 24 November 2017, Messrs Mohnani & Associates G (“the solicitors”), who had been retained by the applicant on a private H H basis, filed a Notice to Act on behalf of the applicant. On 29 January I 2018, Mr McGowan of counsel, having been briefed by the solicitors on a I private basis to advise, filed perfected grounds of appeal on behalf of the J J applicant. There were five substantive grounds of appeal, Ground 5 of K which was drafted in the following terms: K L “5. The conduct of the Applicant‟s Defence was such as to L amount to “Incompetence of Counsel”. This included, but was not limited to:- M M a) A lack of direct communication between his lawyers and the Applicant; N N b) A failure to take written instructions before trial; O c) The general inexperience of his privately instructed O Counsel; P d) Advising him that he should not and need not give P evidence despite the nature of the case.” Q Q 4. In view of the terms and nature of Ground 5, and in R accordance with the current practice where such grounds of appeal are R averred, Master Cheung, the Registrar of Criminal Appeals S S (“the Master”), gave written directions on 7 February 2018, which were T T incorporated in a formal letter dated 9 February 2018 from the Registrar of the High Court, that the solicitors were to file a waiver of legal U U V V A - 3 - A B professional privilege (“LPP”) by the applicant within 14 days, and an B affirmation in support of his complaint of counsel‟s incompetence within C C 28 days of the letter. D D 5. Nothing thereafter was received from the solicitors and, on E E 23 March 2018, the Master issued a reminder to the solicitors to comply with her directions. F F G 6. There was still no response and, on 4 May 2018, the Master G wrote again to the solicitors, with a copy being sent to Mr McGowan, H H noting that neither the waiver of LPP nor the affirmation in support had I yet been received, and giving the solicitors 7 days to confirm in writing I whether they were still pursuing Ground 5. The solicitors were further J J warned that if they failed to file the documents concerned, they would not K be able to pursue Ground 5 at the application for leave to appeal. K L L 7. On 10 May 2018, Mr McGowan wrote to the Registrar of the M High Court acknowledging the reminder of 4 May 2018 and apologising M for the delay. He said that, although drafting of the affirmation had N N begun, he and the solicitors had made arrangements to see the applicant O in order to continue with the affirmation and obtain his formal waiver of O LPP on 21 April 2018, but were unable to do so before prison visits P P ended for the day. No separate letter was sent by the solicitors to the Q Registrar. Q R R 8. On 14 May 2018, in response to Mr McGowan‟s letter, the Master granted an extension of 21 days from the date of her letter for the S S applicant to file the required documents in respect of Ground 5. T T U U V V A - 4 - A B 9. However, the documents were still not forthcoming and, on B 11 June 2018, the solicitors wrote to the Registrar, for the attention of the C C Master, requesting a further extension of 21 days in order to file them. D In that letter, it was asserted that “there have, unfortunately, been funding D issues which has hindered us taking [the applicant‟s] matter forward”. E E This letter was copied to Mr McGowan. F F 10. On 26 June 2018, the Master granted the extension sought G G and directed that the documents were to be filed “on or before 9 July 2018”. H H I 11. Meanwhile, on 17 August 2018, Legal Aid was granted to I the applicant; Mr McGowan being on the same day assigned to be the J J applicant‟s counsel at the appeal, and Mr Mohnani his instructing K solicitor. K L L 12. Since there had been no compliance with the directions of M 26 June 2018, the Master wrote again to the solicitors on 5 September in M the following trenchant terms: N N “The Applicant‟s solicitors are to file within 7 days from today a written explanation of their blatant disregard of the Court‟s O O directions regarding the filing of the Applicant‟s waiver of LPP and affirmation in support of the flagrant incompetence of P counsel ground.” P Q 13. This letter prompted a response from the solicitors, by letter Q of 10 September 2018, to the effect that there had, again, been “funding R R issues which has hindered us taking [the applicant‟s] matter forward”, S and requesting yet another extension of 21 days to complete and file the S documents concerned.