Court fines Hong Kong lawyer HK$180,000 for ‘most disgraceful’ defence and frees his client

Counsel said to have stretched case to ‘leviathan of a trial’ spanning 19 days

PUBLISHED : Monday, 15 May, 2017, 9:12pm
UPDATED : Wednesday, 17 May, 2017, 12:37am

A man walked free from an indecent assault charge on Monday after three judges expressed profound regret towards his defence at trial and upheld a draconian court order requiring his barrister to compensate prosecutors HK$180,000 for serious misconduct.

The Court of Appeal found it would be “unconscionable” for the court to allow Kishore Mohanlal Harjani’s conviction to stand, given the “wholly unacceptable way” his case was handled by counsel Mark Richard Charlton Sutherland before the trial magistrate.

The same court also dismissed Sutherland’s appeal against his wasted costs order, with the judges further ordering a copy of the judgment be served on the Bar Council for its consideration.

“The magistrate displayed considerable patience, accommodation, fairness and courtesy in the face of the most disgraceful and egregious display of conduct by defence counsel, over a protracted and sustained period, which any of us have ever encountered in any capacity in any jurisdiction before,” Mr Justice Andrew Macrae wrote on behalf of Mr Justice Michael Lunn and Mr Justice Derek Pang Wai-cheong in a 157-page judgment.

“We say, with profound regret, that counsel’s performance in this case was an egregious example of how cross-examination should not be conducted.”

The case centred on a single allegation of indecent assault. Harjani was accused of molesting a secretary inside a cinema on August 29, 2012.

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But what was meant to be a simple two-day trial escalated into what the higher court described as “a leviathan of a trial” encompassing 19 days and 1,865 pages of transcript.

“The defence was actually very simple,” Macrae said. “Yet like the Lernaean Hydra, it became a monster with many heads, and each time one was cut off, two would immediately grow in its place.”

The court heard Sutherland quizzed the secretary in cross-examination on her brother’s marital status, the Wikipedia description of the film she watched at the time, her experience of economy class seats on Cathay Pacific Airways aircraft as well as her moviegoing and sleeping habits.

Counsel’s performance in this case was an egregious example of how cross-examination should not be conducted
Mr Justice Andrew Macrae

She was also asked to watch parts of the movie in court and to measure the size of her buttocks on the witness chair.

Despite repeated interruptions from both the prosecutor and the magistrate, it was not until the fifth day of her testimony that the defence presented its case, taking her through events of that evening based on her answers to the prosecutor.

The court said the proper conduct of litigation by the legal profession was essential to the administration of justice and that barristers were bound by standards of professional conduct.

Whilst noting that a wasted costs order imposed personally against a barrister is “draconian”, Macrae found it was justified by overwhelming evidence of “obtuse, pointless and irrelevant cross-examination”.

“If there is to be any criticism of the magistrate’s decision, it is that he erred on the side of generosity towards Mark Sutherland in the order that he made,” he said. “It could, and in our judgment should, have been greater.”

Sutherland did not explain his conduct to the judges, but he apologised in a written letter admitting that some of the things he said in trial were “inexcusable”.

“These were said ‘in the heat of the moment’ at a time when I had not had a single break for circa two years,” he wrote. “I wish to express my profound regret for what I said and I apologise unreservedly.”