Introduction
It is recently reported in media that a senior employee of a property agency company has commenced civil action against his former legal representatives, including a rather famous senior counsel, who represented him in a criminal case. In the said criminal case the senior employee was charged and convicted of conspiracy to defraud, and was sentenced to 22 months’ imprisonment.

However, it was later found that in defending his criminal charge, the senior employee’s legal representatives have failed to identify an important piece of evidence which was at all material times readily available to them.

The senior employee appealed to the Court of Appeal, on the ground that his legal representatives were incompetent in defending his case. The Court of Appeal accepted that if his legal representatives were aware of this piece of evidence and have made good use of it, the employee would not have been convicted. The Court of Appeal hence quashed his conviction.

While the result of the senior employee’s civil claim against his former legal representatives is still pending, what remains true is that a criminal conviction may be quashed on the ground of defence incompetence.

Defence Incompetence – a high threshold
The principles of this ground of appeal are already clearly stated in the Court of Final Appeal case of Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126. The Court of Final Appeal quoted from R v Birks (1990) 48 A Crim R 385, a decision of the New South Wales Court of Criminal Appeal, and acknowledged that:-

“As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.”

But the judge continued and remarked that:-

“However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.”

From the above quotes it could be seen that there is a high threshold for the defendant to meet before the court would be prepared to quash a conviction. This high threshold is necessary, because with the benefit of hindsight it may be easy for one to say that some tactical decisions or judgements made during trial should not have been made, but this does not automatically give rise to a ground of appeal. The key question to ask is whether the so-called defence incompetence was so material to cause or contribute to the creation of a state of affairs in which a conviction has to be regarded as unsafe or unsatisfactory. Putting it in another way, to succeed on this ground of appeal, one has to show that the defence was so incompetent that he was deprived of a fair trial.

This ground of appeal is sometimes referred to as “flagrant incompetence of counsel”, which signifies the magnitude of incompetence required.

Think Twice before Blaming your Defence Counsel
Despite the high threshold required by this ground of appeal, it is still very common for defendants to put the blame for their conviction on their defence counsels’ incompetence in seeking to appeal.

To stop wholly unwarranted allegations against defence solicitors and counsels, which would undoubtedly impugn their professional reputation, the Court have handed down Practice Direction SL4 in which it was stipulated that such unwarranted assertion of incompetence will normally attract an order for loss of time.

The Court of Appeal was empowered by s.83W of the Criminal Procedure Ordinance (Cap.221) a discretion to give direction to depart from the general rule that, the time during which an appellant is in custody pending determination of his appeal shall be reckoned as part of the term of any sentence to which he is for the time being subject. In other words, Practice Direction SL4 has made clear that if an appellant is in custody when he made an application to appeal on the ground of defence incompetence, and this assertion was later found to be wholly unwarranted, the Court of Appeal may give an order for loss of time which would in effect prolonged the duration of the appellant’s custodian sentence.

In this regard, those who are convicted and sentenced to custodian sentence are always reminded to think twice before they decide to point their fingers towards their former legal representatives.

For enquiries, please contact our Litigation & Dispute Resolution Department:

E: criminal@onc.hk

W: www.onc.hk

T: (852) 2810 1212

F: (852) 2804 6311

IMPORTANT: The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.