Letter of Complaint from Judge Zervos to the Hong Kong Bar Association Concerning Lawyer Counsel Barrister Mark Sutherland

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HCMA 685/2013 and HCMA 425/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 685 OF 2013

(ON APPEAL FROM KCCC NO 4933 OF 2012)

________________________

BETWEEN
	HKSAR	Respondent
and
	HARJANI, KISHORE MOHANLAL	Appellant

_______________________

 

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 425 OF 2014

(ON APPEAL FROM KCCC NO 4933 OF 2012)

________________________

BETWEEN
	HKSAR	Respondent
and
	MARK RICHARD CHARLTON SUTHERLAND	Appellant

 

________________________

 

Before: Hon Zervos J in Chambers

 

Date of Hearing: 27 July 2015

Date of Decision: 27 July 2015

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D E C I S I O N

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1.  This is a directions hearing in relation to two magistracy appeals in order to consider an application to consolidate the two appeals and transfer them to the Court of Appeal for determination.

2.  HCMA 685/2013 is an appeal by the defendant against his conviction of indecent assault where he alleges that he was incompetently and improperly represented by counsel and HCMA 425/2014 is an appeal by the counsel of a wasted costs order of $180,000 imposed upon him by the magistrate who conducted the trial of the defendant.  There are also two additional applications by counsel.  One is for an anonymity order of the name of counsel involved in both of the appeals and the other is for my recusal from the directions hearing and any subsequent hearings of both appeals.

3.  It is necessary that I provide a brief description of the two appeals so as to put the matters under consideration in their proper context.

4.  The appellant in HCMA 685/2013 was convicted of indecent assault after trial on 30 September 2013 and was sentenced to 14 days’ imprisonment.  It was alleged against the appellant that while watching a film in a picture theatre he indecently assaulted a woman who was sitting in the adjoining seat to him by touching her thigh with his hand.  The trial lasted 17 days with 4 earlier appearances which included 2 pre-trial reviews.  The major complaint in the appeal concerns the conduct of counsel who had the carriage of the case on behalf of the defendant. It is submitted that this was a straightforward and simple case that should have taken no more than a day to be heard.  It is alleged that the length of the proceedings was created by counsel’s conduct, including his cross examination (by its prolixity and repetitiveness) and by the introduction of numerous irrelevancies.

5.  This brief description of the case gives the basis of the grounds of appeal against conviction where it is claimed that the appellant was denied a fair trial by the serious improper conduct of his counsel; by counsel acting, or appearing to act, in his own self-interest rather than in the best interests of the appellant; by counsel’s attitude towards and/or the counsel’s statements and/or responses to the magistrate; and by counsel’s prolix, irresponsible, absurd and/or frivolous cross-examination of the complainant.  I will refer to the appellant in this appeal as to the appellant/defendant.

6.  The appellant in HCMA 425/2014 is the counsel who represented the appellant/defendant who appeals a wasted costs order imposed upon him by the magistrate on 30 June 2014 under section 18 of the Costs in Criminal Cases Ordinance, Cap 492, following a hearing on 22 and 23 April 2014.  The appeal is brought under section 19 of the Ordinance and the sole ground of appeal is that the magistrate erred in making the wasted costs order because there was no basis in either law and/or fact for such an order.  I will refer to the appellant in this appeal as the appellant/counsel.

7.  On 14 May 2015, Mr Gerard McCoy, SC, (who appears with Mr Richard Donald and Ms Chrystal Choy) for the appellant/defendant, in a memorandum to the court sought directions for the two appeals to be consolidated and for them to be listed in the Court of First Instance for a transfer application under section 118(1)(d) of the Magistrates Ordinance, Cap 227.  On the following day, Lunn VP directed that the two appeals be heard together before me for directions on 27 July 2015.

8.  On 8 June 2015, I granted an order for the provision of transcript as requested by the appellant/defendant and at the same time I gave directions to the parties in both appeals in relation to the filing and serving of any written submissions and authorities for the directions hearing.

9.  On 10 July 2015, the solicitors for the appellant/counsel by way of two letters made an ex parte application for an anonymity order in respect of the appellant/counsel in relation to the directions hearing and all and any subsequent hearings, and for my recusal from the directions hearing and any subsequent hearings for both appeals.

10.  There were two grounds in support of the recusal application.  The first ground was that at the date at which the prosecution indicated that it would apply for a wasted costs order against the appellant/counsel on 9 July 2013, I was the Director of Public Prosecutions and would have therefore approved, either directly or indirectly, the making of the application.  The second ground was that I had submitted a letter of complaint to the Hong Kong Bar Association dated 4 February 2015, concerning the professional conduct of the appellant/counsel in the context of another case.
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What was the letter of complaint from Judge Zervos to the Hong Kong Bar Association concerning Lawyer Counsel Barrister Mark Sutherland about?  What did Lawyer Counsel Barrister Mark Sutherland allegedly do?