The Clinical Legal Education (“CLE”) team is delighted to share news of another successful appeal case: HKSAR v Leung Wai Kit  HKCA 322; CACC 292/2019.
Mr. Leung had been sentenced to 8 years’ imprisonment for trafficking in dangerous drugs. However, his earlier legal aid certificate for his appeal was discharged because the counsel assigned by the Director of Legal Aid (“DLA”) had advised that there was no realistic prospect of his appeal succeeding. Mr. Leung’s family sought assistance from the Free Legal Advice Scheme run by our CLE Office under the Duty Lawyer Service.
We are privileged to secure the assistance of Mr. Francis Lo, a very experienced barrister in private practice (former Senior Assistant Director of Public Prosecution) to be our volunteer lawyer to advise the family. With the assistance of research by our CLE students, Mr. Lo identified some reasonably arguable grounds of appeal which had not been canvassed by the DLA. With further assistance from our CLE students, Mr. Lo kindly provided a Memorandum of Advice which set out in detail the analysis and opinion. With the help of Mr. Lo’s Memorandum of Advice, our CLE Office wrote to the DLA to help Mr. Leung seek a reconsideration of his legal aid application. Legal aid was eventually granted to Mr. Leung, allowing him to pursue his appeal with legal representation.
Mr. Leung’s hearing before the full bench of the Court of Appeal, originally fixed for 30 March 2022, was adjourned at short notice due to the COVID General Adjournment Period. Given the sudden adjournment and the risk that Mr. Leung would have served a custodial term longer than the proper sentence to be imposed on him had his appeal been allowed, urgent advice was given to Mr. Leung for seeking bail pending appeal. Ultimately, bail pending appeal was granted to Mr. Leung on 20 April 2022 (see judgment of Zervos JA at  HKCA 552).
The appeal was eventually allowed on 7 March 2023, with the conviction for trafficking in dangerous drugs being substituted by a conviction of simple possession. The sentence imposed by the Court of Appeal was such that Mr. Leung was not required to serve any more time in prison.
In allowing the appeal, the Court of Appeal applied the principles laid down in its earlier decision in HKSAR v Chan Hing Kai  1 HKLRD 1082 and held that the trial judge’s direction, which allowed the jury to draw an adverse inference against the accused on his credibility as a result of defence counsel’s lack of puttage in cross-examining the prosecution witness, exceeded proper bounds.
As Zervos JA explained at §24 of the judgment, “It is open to a judge to direct the jury that they can take into account the lack of puttage in assessing the weight to be attached to an accused’s evidence on the matter in question. But when the lack of puttage is relied upon to attack the accused’s veracity and credibility, the issue needs to be approached with care and circumspection because it could result in serious unfairness to the accused when the case against him is assessed on a failing by his counsel rather than on the evidence presented by the prosecution. This is why when such an issue arises, all available remedial measures should be reasonably explored and exhausted. In any event, the direction to the jury should be in line with what is laid out in Chan Hing Kai.”
This case highlights the synergy between town (volunteer lawyers in private practice) and gown (our CLE teachers and students) in advancing the due administration of justice and rectifying miscarriages of justice. Our CLE Office is privileged to have over 200 experienced barristers and solicitors in private practice agreeing to act as our volunteer lawyers, providing pro bono legal advice to the needy and mentoring our CLE students. Our philosophy is to equip law students not only with competent lawyering skills and legal knowledge, but also with a heart to serve the needy with professionalism and dedication.
About Clinical Legal Education at HKU
The CLE Programme was launched in January 2010 as the first and only live-client clinical legal education programme in Hong Kong. We run a Free Legal Advice Scheme (“FLAS”) on HKU Campus under the Duty Lawyer Service, offering free preliminary legal advice to members of the public facing legal problems involving the laws of Hong Kong. Our CLE team also assists clients in their applications for legal aid to pursue their civil and criminal appeals and, in exceptional cases, assists in arranging pro bono legal representation.
As of May 2023, we have handled over 2,650 cases, involving over 950 students.
Despite the high operating costs of the CLE Programme, the Faculty remains committed to providing quality experiential learning for its law students across all years. We offer law students opportunities to gain exposure through court attendance at civil and criminal appeal hearings, as well as develop practical lawyering skills through interviewing real clients and conducting legal research, all under the guidance and supervision of CLE teachers and qualified lawyers.
For more information about our efforts in serving the public and providing quality education to our students, please visit our website (https://www.law.hku.hk/cle/) and follow us on Facebook (https://www.facebook.com/HKU.CLE).