A message from the Court of Appeal: Stop with the ‘grandiloquent’ advocacy
The Court of Appeal has some words of wisdom for aspiring barristers out there: grandiose, pretentious advocacy isn’t cool.
No matter how impressed you may be by over the top, theatre-like courtroom manner, the top court thinks there is no place for “grandiloquent, rhetorical and at times almost facetious” advocacy in modern criminal trials (though we did find it ironic the court decided to illustrate this point using such pretentious language).
The man who prompted Lord Justice Davis to make these damning comments is Counsel’s Chambers barrister David Leathley, who was accused of conducting a short criminal trial in 2014 in a “wholly incompetent and misguided” way.
Though the appeal court stopped short of ruling that his eccentric behaviour jeopardised the safety of the original jury verdict, it did agree the cross-examination conducted by Leathley was “unduly prolix” and in many ways “ill-presented”.
The Lord Justice also didn’t have much nice to say about the Bedfordshire based barrister’s closing speech. He said:
It is complained that [the speech] was put in a grossly hyperbolical as well as in an unfocused and unstructured way.
He continued:
[I]n the course of certain illustration which Mr Leathley had sought to make in his speech, he had made reference to the ‘Spastics Society’. That is a name which has not officially been used for over 20 years and is capable, in some quarters at least, of giving rise to offence… [I]n addition, the jury note also complained that Mr Leathley’s ‘ramblings have been a dreadful waste of court time’.
This isn’t the first time Leathley has made waves since he was called to the bar in 1980.
Described on his chambers profile as “tenacious”, the criminal defence specialist was reprimanded by the Bar Standards Board a few years back for impersonating a QC colleague of his. Not long before, he lost a long-winded appeal against a £30 parking ticket, which ultimately ended up costing him £815.
這種刑事律師, 在香港一點也不陌生, 像做戲一樣, 很戲劇化的盤問, 隨便就可以叫出幾個名。至於浪費法庭時間, 就多不勝數了。但是, 香港的法官忍耐力強, 任問唔嬲, 可能被上訴庭「治」到好溫純, 所以很少會干預, 「窒 」幾句又被指bias, 自己問幾句又被指enter into the arena, 所以只好傻傻地坐在那裏不發一聲。上訴判辭中, 很少會見到批評辯方律師問不必要的問題浪費法庭時間的。
這種情況的表表者, 可謂無出其右的, 就是上訴庭還未判決的這一單, 只看一段已看出眉目:
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.(HCMA 685/2013 and HCMA 425/2014)
一單簡單到可以一日審完的非禮案審出17日來, 另加4堂審前預審, 被告被定罪坐監, 辯方大狀MARK RICHARD CHARLTON SUTHERLAND也被罰虛耗訟費(wasted costs)$180,000。間中都有上訴以辯獲律師失職作上訴理由, 一般涉及抗辯時犯錯, 水平太低等作為理由, 以律師拖長審案時間而至對被告不公作為上訴理由, 恕我孤陋, 甚少見到。SUTHERLAND的做法不是grandiloquent(誇張), 而是太空漫遊式的問法, 單是盤問非禮受害人已問了4天半, 那只是一宗在戲院內摸鄰座女觀眾大髀的案件。很多人都在熱切期待這件案的上訴結果。非禮案被告大條道理可以上訴得直而無需重審, 至於大狀嘛, 應該駁回上訴再加訟費, 上訴庭要發強烈訊息譴責這種使大律師專業蒙羞的可恥行為。若如此, 我就破戒為他乾一杯。咁黑心? 當然喇, 敗類歪種, 不能姑息, 以儆效尤。搵食還搵食, 也要先顧及被告的利益, 不能殘人以自肥。
The Court of Appeal has some words of wisdom for aspiring barristers out there: grandiose, pretentious advocacy isn’t cool.
No matter how impressed you may be by over the top, theatre-like courtroom manner, the top court thinks there is no place for “grandiloquent, rhetorical and at times almost facetious” advocacy in modern criminal trials (though we did find it ironic the court decided to illustrate this point using such pretentious language).
The man who prompted Lord Justice Davis to make these damning comments is Counsel’s Chambers barrister David Leathley, who was accused of conducting a short criminal trial in 2014 in a “wholly incompetent and misguided” way.
Though the appeal court stopped short of ruling that his eccentric behaviour jeopardised the safety of the original jury verdict, it did agree the cross-examination conducted by Leathley was “unduly prolix” and in many ways “ill-presented”.
The Lord Justice also didn’t have much nice to say about the Bedfordshire based barrister’s closing speech. He said:
It is complained that [the speech] was put in a grossly hyperbolical as well as in an unfocused and unstructured way.
He continued:
[I]n the course of certain illustration which Mr Leathley had sought to make in his speech, he had made reference to the ‘Spastics Society’. That is a name which has not officially been used for over 20 years and is capable, in some quarters at least, of giving rise to offence… [I]n addition, the jury note also complained that Mr Leathley’s ‘ramblings have been a dreadful waste of court time’.
This isn’t the first time Leathley has made waves since he was called to the bar in 1980.
Described on his chambers profile as “tenacious”, the criminal defence specialist was reprimanded by the Bar Standards Board a few years back for impersonating a QC colleague of his. Not long before, he lost a long-winded appeal against a £30 parking ticket, which ultimately ended up costing him £815.
(Legal Cheek July 8, 2016)
這種刑事律師, 在香港一點也不陌生, 像做戲一樣, 很戲劇化的盤問, 隨便就可以叫出幾個名。至於浪費法庭時間, 就多不勝數了。但是, 香港的法官忍耐力強, 任問唔嬲, 可能被上訴庭「治」到好溫純, 所以很少會干預, 「窒 」幾句又被指bias, 自己問幾句又被指enter into the arena, 所以只好傻傻地坐在那裏不發一聲。上訴判辭中, 很少會見到批評辯方律師問不必要的問題浪費法庭時間的。
這種情況的表表者, 可謂無出其右的, 就是上訴庭還未判決的這一單, 只看一段已看出眉目:
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.(HCMA 685/2013 and HCMA 425/2014)
一單簡單到可以一日審完的非禮案審出17日來, 另加4堂審前預審, 被告被定罪坐監, 辯方大狀MARK RICHARD CHARLTON SUTHERLAND也被罰虛耗訟費(wasted costs)$180,000。間中都有上訴以辯獲律師失職作上訴理由, 一般涉及抗辯時犯錯, 水平太低等作為理由, 以律師拖長審案時間而至對被告不公作為上訴理由, 恕我孤陋, 甚少見到。SUTHERLAND的做法不是grandiloquent(誇張), 而是太空漫遊式的問法, 單是盤問非禮受害人已問了4天半, 那只是一宗在戲院內摸鄰座女觀眾大髀的案件。很多人都在熱切期待這件案的上訴結果。非禮案被告大條道理可以上訴得直而無需重審, 至於大狀嘛, 應該駁回上訴再加訟費, 上訴庭要發強烈訊息譴責這種使大律師專業蒙羞的可恥行為。若如此, 我就破戒為他乾一杯。咁黑心? 當然喇, 敗類歪種, 不能姑息, 以儆效尤。搵食還搵食, 也要先顧及被告的利益, 不能殘人以自肥。
Counsel Lawyer Barrister Mark Sutherland is a disgrace. This is not the first time he wasted everyone's time. Take a look at paragraph 12 of the public judgment of HCMA 357/2012: -
回覆刪除http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=86263&QS=%2B&TP=JU
[Talking about Counsel Lawyer Barrister Mark Sutherland here] Presenting entirely unmeritorious appeals or applications in this fashion is unacceptable. It does nothing to further the interests of an accused person; the interests of justice; the interests of the courts; the interests of the community as a whole. That these proceedings have been funded by the general public via either the Duty Lawyer Scheme at trial or the Department of Legal Aid in respect of the appeal and of this application is a matter for real concern. I direct that a copy of this decision be referred to the Director of Legal Aid.
(A R Wright)
Deputy High Court Judge
Thanks. He must be begging for work now. I have no recollection I ever met him in court before. He must be pretty junior. Skin unscrupulously thick. He will repeat what he did.
刪除When I left for Australia in 2002, it just happened Wright and his wife were on the same plane. I vaguely remember Mrs Wright was with the Lands Department.
I hope the Duty Lawyer Service, the Director of Legal Aid, and all public bodies have stopped using Counsel Lawyer Barrister Mark Sutherland in any and all cases. This guy is a fxxking disgrace. He wasted my (taxpayer's) money. He really should be disciplined by the Hong Kong Bar Association and the Barristers' Disciplinary Tribunal.
刪除Alan Wright 是釘官. 喔 但如果LEGAL AID was granted then its not Sutherland fault to attempt to advance the abovementioned appeal 喔.
回覆刪除but yeah Sutherland is a disgrace to the profession. some folks just were not meant to be in the profession.
馬鹿
There is a limit for talking nonsense, mate. Being prolixious in order to earn more is unethical. He was doing Legal Aid. He was wasting our money. Of course, it was his fault.
刪除醫生揼症都唔系o甘大庭廣眾...
回覆刪除而且醫生揼症不是立稅人的錢。
刪除Judge Zervos had personally lodged a complaint against Lawyer Counsel Barrister Mark Sutherland. He mentioned that in a public judgment. I wonder what Sutherland did to piss off Judge Zervos. Must be something grossly improper (again).
回覆刪除I very much hope this horrible lawyer and counsel, Barrister Mark Sutherland, would be convicted of misconduct by a Barristers' Disciplinary Tribunal and be suspended from practice, if not struck off the roll of barristers altogether.
回覆刪除To strike off all together is too severe a sentence.
刪除He got a 3 years suspension.
刪除http://www.thestandard.com.hk/section-news.php?id=210959&story_id=50042399&con_type=1&d_str=20190823&sid=4
Incompetent Hong Kong Barrister Mark Sutherland Convicted of Misconduct and Suspended for 3 Years!
https://barristermarksutherland.blogspot.com/2019/08/incompetent-hong-kong-barrister-mark-sutherland-convicted-of-misconduct-and-suspended-for-3-years.html
http://www.hklii.org/eng/hk/cases/hkca/2019/939.html
THE BAR COUNCIL v. MARK RICHARD CHARLTON SUTHERLAND [2019] HKCA 939; CACV 365/2019 (15 August 2019)
4. On 9 July 2018, the Bar Council laid complaints of misconduct against the respondent. The substantive hearing of the disciplinary proceedings was held on various days between September and November 2018. The respondent applied to the Tribunal repeatedly to adjourn the proceedings. All his applications were turned down. We will return to this topic.
5. On 2 April 2019, the Tribunal handed down its statement of findings, finding the respondent guilty of the five complaints laid by the Bar Council. In summary, these complaints were:
Complaint 1
This alleged that the respondent asked questions and made statements during the Trial, which were intended to insult and/or annoy the witness or any other person or otherwise were an abuse of counsel’s function, contrary to para 131 of the Code of Conduct of the Bar (“the Bar Code”).
Complaint 2
This alleged that the respondent failed to use his best endeavours during the Trial to avoid unnecessary expense and wasting the court’s time by his questioning of witnesses, contrary to para 133 of the Bar Code.
Complaint 3
This alleged that the respondent knowingly misled the court in relation to various procedural matters which arose during the Trial and engaged in conduct in the pursuit of his profession, which is dishonest or which may otherwise bring the profession of barrister into disrepute, contrary to paras 130 and 6(b) of the Bar Code.
Complaint 4
This alleged that the respondent engaged in conduct during the Trial which was discourteous to the court, and/or which may bring the profession of barrister into disrepute and/or failing to observe the ethics and etiquette of his profession, contrary to paras 133, 6(b) and (c) of the Bar Code.
Complaint 5
This alleged that the respondent had engaged in conduct in court during the Trial which may bring the profession of barrister into disrepute and which was prejudicial to the administration of justice by failing to defend his client competently in accordance with his instructions, contrary to paras 6(b) and (d) of the Bar Code.
6. On 18 July 2019, the Tribunal gave its reasons for sentence and ordered the respondent be suspended from practising as a barrister for a total of 36 months and to pay the Bar Council costs of the proceedings and of any prior inquiry on a full indemnity basis. The Tribunal also made orders for the publication of the statement of findings and reasons for sentence.
To be fair to Mr Sutherland and for the record, HKSAR v Hon Ming Kong 韓明光 (CACC272/2011, 2014 2 HKLRD 710, at paragraphs 4-34) is another case which managed to escape attention in the discussion.
回覆刪除http://orientaldaily.on.cc/cnt/finance/20140329/00202_025.html
PHLI
Such cases can drain a person until he loses the drop of fluid in the body. Trial can kill, at least kill the judge.
刪除http://www.thestandard.com.hk/section-news.php?id=210959&story_id=50042399&con_type=1&d_str=20190823&sid=4
回覆刪除Incompetent Hong Kong Barrister Mark Sutherland Convicted of Misconduct and Suspended for 3 Years!
https://barristermarksutherland.blogspot.com/2019/08/incompetent-hong-kong-barrister-mark-sutherland-convicted-of-misconduct-and-suspended-for-3-years.html
http://www.hklii.org/eng/hk/cases/hkca/2019/939.html
THE BAR COUNCIL v. MARK RICHARD CHARLTON SUTHERLAND [2019] HKCA 939; CACV 365/2019 (15 August 2019)
4. On 9 July 2018, the Bar Council laid complaints of misconduct against the respondent. The substantive hearing of the disciplinary proceedings was held on various days between September and November 2018. The respondent applied to the Tribunal repeatedly to adjourn the proceedings. All his applications were turned down. We will return to this topic.
5. On 2 April 2019, the Tribunal handed down its statement of findings, finding the respondent guilty of the five complaints laid by the Bar Council. In summary, these complaints were:
Complaint 1
This alleged that the respondent asked questions and made statements during the Trial, which were intended to insult and/or annoy the witness or any other person or otherwise were an abuse of counsel’s function, contrary to para 131 of the Code of Conduct of the Bar (“the Bar Code”).
Complaint 2
This alleged that the respondent failed to use his best endeavours during the Trial to avoid unnecessary expense and wasting the court’s time by his questioning of witnesses, contrary to para 133 of the Bar Code.
Complaint 3
This alleged that the respondent knowingly misled the court in relation to various procedural matters which arose during the Trial and engaged in conduct in the pursuit of his profession, which is dishonest or which may otherwise bring the profession of barrister into disrepute, contrary to paras 130 and 6(b) of the Bar Code.
Complaint 4
This alleged that the respondent engaged in conduct during the Trial which was discourteous to the court, and/or which may bring the profession of barrister into disrepute and/or failing to observe the ethics and etiquette of his profession, contrary to paras 133, 6(b) and (c) of the Bar Code.
Complaint 5
This alleged that the respondent had engaged in conduct in court during the Trial which may bring the profession of barrister into disrepute and which was prejudicial to the administration of justice by failing to defend his client competently in accordance with his instructions, contrary to paras 6(b) and (d) of the Bar Code.
6. On 18 July 2019, the Tribunal gave its reasons for sentence and ordered the respondent be suspended from practising as a barrister for a total of 36 months and to pay the Bar Council costs of the proceedings and of any prior inquiry on a full indemnity basis. The Tribunal also made orders for the publication of the statement of findings and reasons for sentence.