130. A barrister must not knowingly deceive or mislead the Court.
131. In all cases it is the duty of a barrister to guard against being made the channel for questions or statements which are only intended to insult or annoy either the witness or any other person or otherwise are an abuse of Counsel's function, and to exercise his own judgment both as to the substance and the form of the questions put or statements made.
132. A barrister must not, when conducting his case, assert his personal opinion of the facts or the law to the Court.
133. A barrister must at all times act with due courtesy to the Court before which he is appearing. He must in every case use his best endeavours to avoid unnecessary expense and waste of the Court's time. He should, when asked, inform the Court of the probable length of his case; and he should also inform the Court of any developments which affect the information already provided.
134. A barrister should at once inform the Court of a settlement or of an intention to apply for an adjournment or (provided he can do so without prejudice to his client's interests) of any other matter which may affect the estimated length of hearing.
135. Subject to the provisions of this Code, a barrister should conduct cases in such manner as in his discretion he thinks will be most to the advantage of his client.
136. In civil and, subject to the provisions of paragraph 154,
in criminal cases, a barrister must ensure that the Court is
informed of any relevant decision on a point of law or any legislative
provision, of which he is aware and which he believes to be immediately
in point, whether it be for or against his contention.
137. If at any time before judgment is delivered in a civil
case, a barrister is informed by his lay client that he has
committed perjury or has otherwise been guilty of fraud upon
the Court, the barrister may not so inform the Court without
his client's consent. He may not, however, take any further
part in the case unless his client authorises him to inform
the Court of the perjured statement or other fraudulent conduct
and he has so informed the Court.
138. In cross-examination which goes to a matter in issue, a barrister may put questions suggesting fraud, misconduct or the commission of a crime if he is satisfied that the matters suggested are part of his client's case and he has no reason to believe that they are only put forward for the purpose of impugning the witness's character.
139. (a) Questions which affect the credibility of a witness by attacking his character, but which are otherwise not relevant to the actual inquiry, may not be put in cross-examination unless there are reasonable grounds to support the imputation conveyed by the questions.
(b) A barrister may regard instructions from the person instructing him that the imputation is well-founded as reasonable grounds to support an imputation conveyed by such questions; but he may not rely on a statement from any other person unless he has ascertained so far as is practicable that the person can give satisfactory reasons for his statement.
139A. If before or during a case, a document belonging to the other side should come into the possession of Counsel, he should if he intends to make any use of it inform his opponent that it has come into his possession. This information should be communicated in sufficient time for the opponent to raise an objection to the use of the document.
Dress in Court
140. Notes for guidance on dress in Court, which have been issued by the Bar Council with the concurrence of the Chief Justice, are set out in Annex 11.
Conferences and Consultations
141. It is part of the duty of a barrister briefed for a hearing to be available if it is both necessary and practicable for a conference on a day prior to the hearing and for so long as may be required properly to discuss matters with the lay client. If the person instructing him in the matter does not arrange such a conference then it is the duty of a barrister to make himself available for such a conference on the hearing date at the place of hearing.
Attendance of Solicitors or their Representatives in Court
142. (a) Subject to paragraphs 50, 142A, 143 and 144, a barrister
may not appear in Court, or discuss a case or take instructions
from or give advice to, his lay client unless the person instructing
him or his representative is present.
(Circular No. 85/95)
(b) Subject to paragraphs 50, 142A, 143 and 144, a barrister
may, if necessary, interview his lay client's potential witnesses,
and discuss the case or clarify matters with them, provided that
the person instructing him or his representative is present.
(Circular No. 85/95)
(c) Different considerations apply to prosecution Counsel and
general guidance is set out in Annex 12.
142A. Provided that he is satisfied that the interests of the lay client and the interests of justice will not be prejudiced (as where the barrister reasonably takes the view that it will not be necessary in the course of a Court hearing to take instructions from or otherwise seek the assistance of the solicitor or person instructing the barrister), a barrister may agree with the solicitor or the person instructing him that the attendance in Court of the solicitor or the instructing person or of their representatives may be dispensed with for all or part of any hearing. It is solely the responsibility of the barrister to decide whether and to what extent the attendance in Court of his professional client or his professional client's representative may be dispensed with. (Circular No. 85/95)
143. Notwithstanding that neither the solicitor nor the person
instructing the barrister nor their representatives are present:-
(1) if the attendance of the solicitor or the person instructing
the barrister or of their representatives has been dispensed
with pursuant to paragraph 142A; or, (Circular No. 85/95)
(2) if Counsel arrives at Court for a case in which he has been
instructed by a person authorised to instruct him in the matter
but neither such person nor his representative is present, and
if there are no other grounds on which to request an adjournment
and no practicable alternative, (Circular No. 85/95)
a barrister may:-
(a) conduct the case on behalf of the lay client, and
(b) exceptionally, interview supporting witnesses and take proofs of evidence
if these are not already available in which case he should inform his opponent.
144. In a criminal case or in matters where the lay client is
detained pursuant to the provisions of the Immigration Ordinance,
a barrister may interview the lay client although the person
instructing him in the matter or his representative is unable
to be present, if such person has given his approval to the interview
taking place or the circumstances make it necessary.
(Circular No. 61/90)
145. Save with the consent of Counsel for the opposing side or of the Court, a barrister may not communicate directly or indirectly with a witness, whether or not the witness is his client, once that witness has begun to give evidence until his evidence has been concluded.
Duties When Defending a Person Accused of a Crime
146. When defending a client on a charge of crime, a barrister must endeavour to protect his client from being convicted except by a competent tribunal and upon legal evidence sufficient to support a conviction for the offence with which his client is charged. A barrister must not provide or devise facts which will assist in advancing his client's case.
147. A barrister may not in cross-examination attribute to another person the crime with which his client is charged unless he can properly do so in accordance with paragraph 138; or in any other part of the trial, unless there are facts or circumstances which reasonably suggest the possibility that the crime may have been committed by the person to whom the guilt is imputed.
148. Subject to paragraphs 21 and 56-63 of this Code, a barrister is under a duty to defend any person on whose behalf he is instructed on a criminal charge irrespective of any belief or opinion which he may have formed as to the guilt or innocence of that person.
149. A barrister to whom a confession of guilt has been made
by his client must observe the following rules:
(a) If the confession is made before the proceedings have started
he may continue to act only if the plea is to be one of guilty,
or if the plea is to be one of not guilty he acts in accordance
with the rules set out in Annex 13 which impose very strict limitations
on the conduct of the defence. In the latter case he must explain
his position to the client and his instructing solicitor.
If the barrister is instructed to act otherwise than in conformity
with this rule he should return his brief.
(b) If the confession is made during the proceedings or in such
circumstances that he cannot withdraw without compromising the
position of his client, he should continue to act and to do all
he honourably can for him; but this situation similarly imposes
very strict limitations on the conduct of the defence; and the
barrister may not set up an affirmative case inconsistent with
the confession by, for example, asserting or suggesting that
some other person committed the offence charged or calling evidence
in support of an alibi.
150. (a) It is the duty of defending Counsel to advise his client
generally about his plea to the charge. It should be made clear
that whether he pleads "not guilty" or "guilty",
the client has the responsibility for and complete freedom of
choice in his plea. For the purposes of giving proper advice,
Counsel is entitled to refer to all aspects of the case and where
appropriate he may advise his client in strong terms that he
is unlikely to escape conviction and that a plea of guilty is
generally regarded by the Court as a mitigating factor.
(b) Where a defendant tells his Counsel that he did not commit
the offence with which he is charged but nonetheless insists
on pleading guilty to it for reasons of his own, Counsel must
continue to represent him, but only after he has advised what
the consequences will be and that what can be submitted by Counsel
in mitigation will have to be on the basis that the client is
guilty.
151. (a) Subject to paragraph 56A, it is the duty of defending Counsel to ensure that an accused person is never left unrepresented at any stage of his trial. (Circular No. 85/95)
(b) Where an accused is represented by two Counsel neither may absent himself other than for a purely temporary period except for good reason and then only when the consent of the solicitor or his representative and the client is obtained.
(c) Where an accused is represented by only one Counsel, that Counsel must normally be present throughout the trial and may only absent himself in exceptional circumstances which he could not reasonably have been expected to foresee and provided (1) he obtains the consent of the solicitor or his representative and his client and (2) a competent deputy takes his place. A deputy is not to be regarded as competent unless he is well informed about the case and able to deal with any question which might reasonably be expected to arise.
(d) Sub-paragraphs (a), (b) and (c) above are subject to the following modification in respect of lengthy trials involving numerous defendants. Where, after the conclusion of the opening speech by the prosecution, defending Counsel is satisfied that during a specific part of the trial there is no serious possibility that events will occur which relate to his client, he may, with the consent of (1) the person instructing him in the matter or his representative and (2) his client, absent himself for that part of the trial. He should also inform the judge. In this event it is his duty (1) to arrange for other defending Counsel to guard the interests of his client; (2) to keep himself informed throughout of the progress of the trial and in of any development which could affect his client; and (3) not to accept other commitments which would render it impracticable for him to make himself available at reasonable notice if the interests of his client so require.
152. (a) If during the course of a criminal trial and prior to final sentence the defendant voluntarily absconds and the person instructing defending Counsel withdraws from the case, then Counsel too must withdraw.
(b) If the trial judge requests Counsel to remain to assist the Court Counsel has an absolute discretion whether he does so. If he does, he must act on the basis that his instructions are withdrawn and he will not be entitled to use any material contained in his brief save that part already established in evidence before the Court. He should request the trial judge to instruct the jury that this is the basis on which he is prepared to assist the Court.
(c) If, for any reason, the person instructing him in the matter does not withdraw from the case, Counsel retains an absolute discretion whether to continue to act. If he does continue, he should conduct the case as if his client were still present in Court, but had decided not to give evidence (on which see paragraph 156(b) below) and on the basis of the instructions he has received. He will be free to use any material contained in his brief and may cross-examine witnesses called for the prosecution and call witnesses for the defence.
153. A barrister may appear for more than one defendant in a criminal trial provided he satisfies himself there is no conflict of interest.
154. If some procedural irregularity comes to the knowledge of Defence Counsel before the verdict is returned, he should inform the Court as soon as practicable and should not wait with a view to raising the matter later on appeal. Defence Counsel is not under any duty to draw matters of fact or law to the attention of the Court at the conclusion of the summing-up, but he may do so if he believes it would be to the advantage of his client.
155. Defence Counsel has no duty to advise his client to disclose a previous conviction. If the Court has been led by the prosecution to believe that an accused has no previous convictions, Defence Counsel is under no duty to disclose facts to the contrary which are known to him, nor correct any information given by the prosecution if such disclosure or correction would be to his client's detriment; but Defence Counsel must take care not to lend himself to any assertion that his client has no convictions, or to ask a prosecution witness whether there are previous convictions against his client, in the hope that he will receive a negative answer.
156. (a) Every accused person has the right to decide whether to give evidence in his own defence. A barrister may properly advise his client upon this but it is the accused himself who must make the decision.
(b) If an accused person instructs his Counsel that he is not guilty of the offences with which he is charged but decides not to give evidence himself, it is the duty of his Counsel to put his defence before the Court and, if necessary, to make positive suggestions to witnesses.
157. Defence Counsel should not, in a plea in mitigation, make any allegation which is merely scandalous or calculated to vilify or insult any person. In any case, the naming in open court of third parties, whose character would thereby be impugned, should if possible be avoided. Where necessary, names, addresses or other such details should be written down and handed in to the Court.
158. In normal circumstances, it is the duty of Defence Counsel to see his lay client after conviction and sentence, or if he is unable to do this, ensure that the person instructing him in the matter or his representative does so.
Duties When Prosecuting a Person Accused of a Crime
159. It is not the duty of Prosecuting Counsel to obtain a conviction by all means at his command but rather to lay before the jury fairly and impartially the whole of the facts which comprise the case for the prosecution and to see that the jury are properly instructed in the law applicable to those facts.
160.
(a) Where Prosecuting Counsel has in his possession statements from persons whom he does not propose to call as witnesses, he should regard it as normal practice to show such statements to the Defence. Where, however, the Defence already know of the existence, identity and whereabouts of any such person and are in a position to call him (as, for example, when a notice of alibi has been served, or when such person is married to a Defendant) and in other exceptional circumstances, then Prosecuting Counsel may, in his discretion, refrain from showing the statement to the Defence.
(b) Where Prosecuting Counsel has in his possession a statement from a prosecution witness which differs in a material respect from the evidence being given by the witness or his committal statements, such a statement should be disclosed to the defence.
(c) Where Prosecuting Counsel appears in the Magistrates Court and knows that a copy of the statement of any witness he proposes to call to give evidence has not been served on the Defence, he should regard it as normal practice to show the statement to the Defending advocate.
161. A barrister prosecuting an accused person should be present throughout the trial, including the summing-up and the return of the jury. He may not absent himself without leave of the Court, but if two or more barristers appear for the prosecution, the attendance of one is sufficient.
162. It is the duty of Prosecuting Counsel to assist the Court at the conclusion of the summing-up by drawing attention to any apparent errors or omissions of fact or law which, in his opinion, ought to be corrected.
163. Prosecuting Counsel should not attempt by advocacy to influence the Court in regard to sentence. If, however, an accused person is unrepresented, it is proper for Prosecuting Counsel to inform the Court of any mitigating circumstances as to which he is instructed.
163A. When a barrister instructed and acting for the prosecution or the defence of an accused has in his possession a copy of a video recording of a child witness which may be admitted as evidence in a criminal trial in accordance with s.79C Criminal Procedure Ordinance, Cap 221 he must have regard to the following duties and obligations:
(a) Upon receipt of the recording, a written record of the date and time and from whom the recording was received must be made and a receipt must be given.
(b) The recording and its contents must be used only for the proper preparation of the prosecution or defence case or of an appeal against conviction and/or sentence and/or review, as the case may be, and the barrister must not make or permit any disclosure of the recording or its contents to any person except when, in his opinion, it is in the interests of his proper preparation of that case.
(c) The barrister must not make or permit any other person to make a copy of the recording, nor release the recording to the accused, and must ensure that:
(i) when not in transit or in use, the recording is always kept
in a secure place, and;
(ii) when in transit, the recording is kept safe and secure at
all times and is not left unattended, especially in vehicles
or otherwise.
(d) Proper preparation of the case may involve viewing the recording in the presence of the accused. If this is the case, viewing should be done:
(i) if the accused is in custody, only in the prison or other
custodial institution where he is being held, in the presence
of the barrister and/or his instructing solicitor;
(ii) if the accused is on bail, at the solicitor's office or
in Counsel's chambers or elsewhere in the presence of the barrister
and/or his instructing solicitor.
[The next paragraph number is 170.]
