STEPHEN DARYL BARNES v. HKSAR

FAMC No. 15 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 15 OF 2000 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 124 OF 2000)

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DETERMINATION

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Mr Justice Ribeiro PJ:

1. Three summonses were issued against the applicant under section 46 of the Legal Practitioner's Ordinance, Cap 159, charging him with :-

(i) being an unqualified person on or about 19 September 1997, in Hong Kong, wilfully pretending to be recognised by law as qualified to act as a solicitor by means of an advertisement inserted in the Hong Kong Post;

(ii) repeating that offence on 3 July 1998; and,

(iii) being an unqualified person in February 1998, wilfully using descriptions, namely, "lawyer" and a certain Japanese phrase, implying that he was qualified or recognised by law as qualified to act as a solicitor.

2. On 1 February 2000, he was convicted after trial and fined $3,000 on each summons by the magistrate, Mr Stephen Smout, who made the following findings, namely, that :-

(a) the applicant had a UK law degree and had passed the UK Law Society Finals in 1993 but was not a qualified solicitor or barrister;

(b) he was a director of and the main shareholder in a company called LLB Consultancy Ltd which had placed the advertisements in question;

(c) in the advertisements (which were in Japanese), the company was described as a "law firm" and the applicant as a "lawyer";

(d) on the applicant's name card, he was described as "lawyer" both in English and Japanese;

(e) the applicant had come to Hong Kong and, having studied the Legal Practitioner's Ordinance, developed a business in areas of legal work identified by him as not within the exclusive preserve of solicitors;

(f) the company did not do work which was within the exclusive province of solicitors but would refer such work to solicitors;

(g) his company's brochure and website stated that the company was not a solicitor's firm;

(h) although he at first referred to himself as "legal consultant" in the course of his business, the applicant later called himself a "lawyer", having concluded that this did not imply that he was a solicitor;

(i) the advertisements were placed and the name cards prepared with the help of a native Japanese speaker, a Ms Yamada, who had been told by the applicant that he should not be held out as a solicitor, with the explanation that a solicitor was a lawyer who was able to go to court whereas he was a lawyer who could not; and,

(j) he had approved the wording used in the advertisements and name card describing himself as a "lawyer".

The magistrate held that a "lawyer" in the context in which the applicant had used the term was to be taken to mean someone qualified to practise law and that it was unnecessary for the prosecution to show that the applicant had misled anyone by so describing himself. The magistrate found that the applicant had not deliberately pretended to be recognised by law as qualified to act as a solicitor. However, he held that in section 46, "wilfully" included "recklessly" and that the facts established the requisite recklessness on the applicant's part. In particular, in order to promote his business, the applicant had consciously taken the potentially harmful risk that people might think he was a solicitor when he was not. Precautions to counteract that risk were inadequate to negate recklessness.

3. On appeal to the Court of First Instance (reported at [2000] 2 HKLRD 495), Gall J upheld the magistrate's decision. He held that in the context, "wilful" meant "deliberate and intentional" but that it also encompassed recklessness, relying principally on R v Sheppard [1981] AC 394.

4. Gall J refused to certify the case for appeal under section 32 of Cap 484 on the ground that it was not reasonably arguable, citing Lee Kin Pong v HKSAR [1998] 1 HKLRD 182. He also held that in any event, it did not raise any point of law of great and general importance.

5. There are three applications before the Appeal Committee: (i) for a certificate under section 32(3), the court below having declined one; (ii) for leave to appeal on the ground that the case raises points of law of great and general importance, or alternatively, involves substantial and grave injustice; and (iii) for an extension of time to make the abovementioned leave application.

6. The questions which the applicant seeks to have certified as raising points of law of great and general importance were initially formulated as follows :-

1. Whether a person can be convicted of an offence under the provisions of section 46(1) of the Legal Practitioners Ordinance Cap. 159 on the basis of recklessness.

2. If the answer to Question 1 is in the affirmative, whether the mens rea necessary to constitute recklessness is abnegated or rendered otherwise insufficient to constitute recklessness in law if the appellant puts in place steps or procedures which he believes will avoid constituting the offence but which in fact fails to eliminate the risk of commission of an offence under the provisions of section 46(1) of the Legal Practitioners Ordinance.

3. If the answer to Question 1 is in the affirmative, whether in relation to SPS2286 & SPS2287 the appellant's conduct could in law have amounted to recklessness having regard to the fact that the actus reus of the offences under section 46(1) of the Legal Practitioners Ordinance were committed by a person other than the appellant.

7. At the hearing, Mr Clive Grossman SC, acting for the applicant, amended Question 3 so that it reads as follows :-

"If the answer to Question 1 is in the affirmative, whether in relation to SPS2286 & SPS2287 the appellant's conduct could in law have amounted to recklessness."

We have come to the conclusion that none of the questions so formulated merits certification.

Question 1

8. Section 46, so far as material, provides as follows :-

"Any unqualified person who wilfully pretends to be, or takes or uses any name, title, addition or description implying that he is qualified or recognised by law as qualified to act as, a solicitor shall be guilty of an offence ......"

The decision of the House of Lords in R v Sheppard [1981] AC 394 was relied on both by the magistrate and the judge as authority for construing the words "wilfully pretends" in section 46 as not being confined to acts of pretence performed deliberately but as also encompassing such acts performed recklessly.

9. R v Sheppard is certainly authority for the proposition that where a statutory offence prohibits conduct performed "wilfully", it is generally sufficient for the prosecution to prove that the accused acted recklessly: see Archbold 2000, §17-47 to §17-48. It is an authority that has been followed in Hong Kong, for example, by the Court of Appeal in R v Li Wang Fat [1982] HKLR 133 and in R v Chau Ming Cheong [1983] 1 HKC 68.

10. Mr Grossman did not dispute the effect of R v Sheppard as summarised above. His argument was based on the specific wording of section 46. Whereas, he argued, the word "wilfully", taken alone, meant either "intentionally" or "recklessly", that was not its meaning in section 46 because there, "wilfully" is followed by "pretends". Mr Grossman submitted that words like "pretends" or "pretence" have embedded within their meaning, the notion of an intention to deceive. Accordingly, the coupling of "wilfully" with "pretends" excludes "recklessness" and makes the R v Sheppard approach inapplicable. It is, as he put it, "conceptually impossible 'to recklessly pretend' to do something". What must be proved is an intention to deceive or mislead.

11. We do not consider that contention reasonably arguable. Section 46 penalises someone who "wilfully pretends to be, or takes or uses any name, title, addition or description implying that he is qualified or recognised by law as qualified to act as, a solicitor." The word "pretends" comprehends acts of pretence or conduct which expressly or impliedly conveys a false representation. The word is plainly intended by the legislature to represent one form of the actus reus of the offence created by section 46. The other possible forms comprise acts of taking or using the misleading name or description in question. The word "wilful" specifies the mental element required to accompany one or more of the forms of conduct constituting the actus reus.

12. Support for the foregoing approach to the elements of the offence can be found in Carter v Butcher [1966] 1 QB 526 (QBD), a case involving section 19 of the United Kingdom Solicitors Act, 1957 which is in very similar terms. The defendant in that case was charged with being an unqualified person, wilfully pretending to be recognised by law as qualified to act as a solicitor by means of an advertisement inserted in a local newspaper. The advertisement offered conveyancing services in connection with the buying and selling of houses. Its insertion was the act of pretence relied on by the prosecution on the footing that it contained the false representation that the conveyancing work would be done by someone recognised by law as able properly to carry out the work of a solicitor.

13. Widgery J, giving the Divisional Court's decision, agreed that this was the effect of the advertisement and continued as follows:-

"Once it is established that the advertisement contains such a representation by someone, that representation, if wilfully and falsely made, is a wilful pretence of the kind contemplated by the section, ......" (at p 535)

The Divisional Court therefore found the pretence established because, as a matter of language considered in the factual context, the advertisement conveyed the false representation that some relevant person was qualified to act as solicitor. That conclusion did not involve examining the defendant's state of mind, much less a finding that he had intended to deceive. The required mens rea was contained in the word "wilfully" whose meaning was unaffected by its linkage with the act of pretence involving insertion of the advertisement.

14. The abovementioned approach commends itself without need of support from previous authority. Section 46 is not merely aimed at persons who "wilfully pretend". It also penalises someone who "wilfully ...... uses" or "wilfully ...... takes" a name, title or description carrying the misleading implication. It cannot be suggested that as a matter of language, the verb "uses" (or "takes") implies an intention to deceive on the part of the "user" (or "taker"). There is no reason to think (as Mr Grossman's construction would require) that section 46 was designed to require intentional conduct in relation to an offence of wilfully pretending to be a solicitor while accepting recklessness as sufficient in respect of offences of "wilful use" or "wilful taking".

15. Moreover, if, as Mr Grossman submitted, the word "pretend" carries in itself the meaning of deliberate deceit, the word "wilful" in section 46 is, as he acknowledged, redundant.

16. In support of his argument Mr Grossman submitted that in any event, it was hard to see how a pretence could be "reckless" in the ordinary sense in which that term is understood, as explained by Lord Diplock in R v Lawrence [1982] AC 510 at 525, as follows :-

"My Lords, this House has very recently had occasion in Reg. v. Caldwell [1982] A.C. 341 to give close consideration to the concept of recklessness as constituting mens rea in criminal law. The conclusion reached by the majority was that the adjective 'reckless' when used in a criminal statute, ie the Criminal Damage Act 1971, had not acquired a special meaning as a term of legal art, but bore its popular or dictionary meaning of careless, regardless, or heedless of the possible harmful consequences of one's acts. The same must be true of the adverbial derivative 'recklessly.'"

17. We cannot see any difficulty with applying the concept of recklessness to acts of pretence within section 46. If, as in the present case, the accused inserted advertisements and used business cards which, taken in the factual context, constituted a relevant false representation, recklessness would be established by showing that he had done those acts while careless, regardless, or heedless of whether they conveyed the false representation to others.

18. We therefore agree with Gall J and conclude that in section 46, "wilful", construed in the R v Sheppard sense and including "recklessness", is the requisite mental state applicable to all forms of the actus reus, including "pretending". We do not consider the question formulated as Question 1 reasonably arguable.

19. In so holding, we have not lost sight of two reported decisions which might be thought to support the contrary conclusion. The first is Hall v Jordan [1947] 1 All ER 826, which was a case concerning a solicitor who had been suspended from practice for professional misconduct and who, while so suspended, corresponded with an insurance company on behalf of a client on notepaper and in terms which clearly suggested that he was qualified to practise as a solicitor. The magistrates permitted the case to be dealt with by a nominal punishment under the Probation of Offenders Act, 1907, a course challenged by the Crown before the English Divisional Court. The Court held that such was not the proper course since the offence was serious and not one to be dealt with under an Act designed to permit informations to be dismissed where the offence was trivial or where there were special extenuating circumstances. It was in this context that Lord Goddard CJ stated (at p 827) as follows :-

"Wilfully pretending to be a solicitor is treated by the law as a serious offence. Where a man has been on the roll of solicitors and has either been struck off the roll or has had his practising certificate suspended, and he deliberately - because that is what 'wilfully' means - acts as a solicitor, he has committed a very serious offence."

20. It is not surprising that on the facts of that case, the Lord Chief Justice's attention was focussed on a deliberate pretence. He was stressing the potential (and in that case, actual) seriousness of the offence since "wilfully" was quite capable of encompassing, and in that case did encompass, "deliberate" conduct which was seriously objectionable. Recklessness was not a relevant issue and, in our view, that decision should not be read as suggesting that the mental state of recklessness cannot constitute the required "wilfulness".

21. The second case is the decision of the Court of Appeal in HKSAR v Lam Chun Sum Samuel [1998] 4 HKC 622. There, the court was dealing with the defendant's conviction under section 82(1)(d) of the Inland Revenue Ordinance which provided as follows :-

"Any person who wilfully with intent to evade or to assist any other person to evade tax ....... signs any statement or return furnished under this Ordinance without reasonable grounds for believing the same to be true; ....... shall be guilty of an offence."

We would observe that this provision requires the defendant to act "wilfully with intent to evade (etc) tax", making it materially different from the provision with which we are concerned. Secondly, the Court of Appeal was satisfied in that case that the only possible inference on the facts was that the defendant had signed tax returns "with a deliberate intent to evade tax". It was in that context that Power VP, giving the judgment of the court stated (at p 630) as follows :-

" ....... we are satisfied that the word 'wilfully' simply means 'deliberately' (we rely upon the judgment of Lord Keith in R v Sheppard [1981] AC 394, when so holding) and further that wilful intent can be established, as the judge was satisfied it was, by inference."

22. We have already indicated our understanding of the effect of R v Sheppard. Given the context described above, we do not consider that the passage cited from the judgment of Power VP can properly be read to mean that "recklessness" is insufficient to constitute the requisite mens rea, at any rate in relation to a provision with the wording of section 46. The court in Lam Chun Sum Samuel was concerned with a defendant found to have been acting deliberately and once again, recklessness was not in issue.

Question 2

23. Turning to Question 2, we are of the view that it does not in fact arise in the present case. The magistrate did indeed find that in preparing brochures about his business and in setting up his website, the applicant included express disclaimers of any right to practise as a solicitor. It may accordingly be argued that in respect of such conduct, the applicant cannot be said to have wilfully pretended to be qualified to practise as a solicitor. That, however, is beside the point since he was not charged with any offence in respect of such conduct.

24. The three summonses relate to the placing of advertisements and the use of business cards which contained no such disclaimers and involved no other steps taken to prevent the public from potentially being misled as to his professional qualifications. It is in respect of those activities that the applicant was found to have been reckless. That was a conclusion involving questions of fact for the magistrate, raising no point of law of great and general importance.

25. We might add that it was a conclusion that appears amply justified on the facts. The magistrate's findings indicated a clear appreciation by the applicant of the risk that his promotional activities might mislead. He was entitled to find that it was because of such awareness that the applicant had thought it wise to include express disclaimers in the brochures and on his website and also initially to describe himself as "legal consultant" rather than "lawyer".

26. We would furthermore add that an accused who recognises the risks posed by his conduct and takes some precautions to avoid those risks, does not necessarily avoid a finding of recklessness, particularly where those precautions may prove insufficient: see Chief Constable of Avon and Somerset Constabulary v Shimmen (1987) 84 Cr App R 7.

Question 3

27. We are also of the view that Question 3 as re-formulated does not raise any point of law of great and general importance. As noted above, the magistrate found that given the contents of the advertisements and business cards and the circumstances of their publication and use, by describing himself as a "lawyer", his company as a "law firm" and so forth, the applicant had made a false representation that he was someone qualified to practise law as a solicitor.

28. Mr Grossman sought to argue that this raises an appealable point, put in his skeleton argument as follows :-

"The appeal raises a point of general public importance in that there has been no previous judicial determination or definition of the word 'lawyer', in particular, whether it must necessarily mean a solicitor admitted to practise law in Hong Kong, or, simply, 'a person versed in the law' per the Oxford English Dictionary."

29. With respect, the point is misconceived. The issues in this case do not involve any question requiring judicial definition or construction of the word "lawyer". Plainly, it is a word which, used in different contexts, may bear different connotations. The question properly before the magistrate was whether, given their contents and the context in which they were published and used, the advertisements and business cards amounted to a pretence caught by section 46. That was a question specific to the circumstances of the case, involving no point of law of great and general importance.

Substantial and grave injustice

30. The only other ground relied on in the Notice of Application for Leave to Appeal relates to alleged substantial and grave injustice, the contention being that given the magistrate's favourable findings as to the absence of misleading on the applicant's part, and so forth, no room ought to have remained for a finding of recklessness. That argument has largely been dealt with in the foregoing discussion of Question 2. We can in any event see no basis for it. The courts below were fully entitled to find liability established notwithstanding the findings made which were favourable to the applicant. Those features of the case were duly reflected in the sentence imposed.

31. Accordingly, all three applications must be dismissed.