WONG KWAI SANG also known as RAYMOND WONG K.S. & RAYMOND WONG v. THE BAR COUNCIL

CACV 585/2019

[2020] HKCA 1036

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 585 OF 2019

(ON APPEAL FROM THE ORDER OF THE BARRISTERS DISCIPLINARY TRIBUNAL OF
THE HONG KONG SPECIAL ADMINISTRATIVE REGION MADE ON 5 AUGUST 2019)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is the Appellant’s application, made by way of summons filed on 21 January 2020, for extension of time to appeal against a decision of the Barristers Disciplinary Tribunal (“the Tribunal”) in the disciplinary proceedings against him.

2.  The Appellant was a barrister who was called to the Hong Kong Bar on 28 December 1996.  As a result of the disciplinary proceedings, his name was struck off the roll of barristers pursuant to Section 37 of the Legal Practitioners Ordinance (“the Ordinance”), Cap 159 on 13 December 2019.[1]

3.  On 28 November 2013, the Appellant was convicted after trial of using a false instrument, making a false statement on oath, and using a copy of a false instrument in DCCC 158/2013.  In a nutshell, the Appellant sought to propound a forged will in his application for probate in respect of the estate of a deceased person.  He made a false statement in an affirmation in relation to forged will.  Further, he presented a grant annexed with a copy of the forged will to the police to obtain the deceased’s property.  The Appellant was also convicted of 6 counts of theft in the total amount of HK$15,400 which were withdrawn by the Appellant from the deceased’s bank account on 6 occasions.

4.  These convictions were upheld by the Court of Appeal in CACC 429/2013, 21 April 2015.  The Appellant’s subsequent application for leave to appeal to the Court of Final Appeal was dismissed by the Appeal Committee on 27 May 2016 in FAMC 65/2015, 27 May 2016 .[2]

5.  Disciplinary proceedings were brought by the Bar Council in July 2018 against the Appellant in light of such convictions.

6.  In its decision dated 5 August 2019, the Tribunal found that the Appellant had engaged in a course of conduct which might bring the barristers’ profession into dispute and/or is prejudicial to the administration of justice, and a complaint that the Appellant had engaged in dishonest conduct.

7.  The Tribunal’s decision dated 5 August 2019 was attached to an email sent to the solicitors for the Bar Council and the Appellant on that date.  The copy of the decision in that attachment did not bear the manuscript signatures of the Tribunal members.  On 13 December 2019 the Appellant received a copy of that decision signed with the Tribunal members’ manuscript signatures.

8.  On 20 November 2019, the Tribunal rendered its written decision on sentence.  This decision was signed with the manuscript signatures of the Tribunal members.  In the decision on sentence, the Tribunal ordered, inter alia, that the Appellant’s name be struck off the roll of barristers.

9.  The Appellant brought proceedings in this Court by filing a Notice of Appeal on 17 December 2019, seeking to appeal against a decision purportedly given on 13 December 2019. However, in that Notice of Appeal, the Appellant appended a signed copy of the Tribunal’s decision dated 5 August 2019

10.  After information was provided on the exact position, the Registrar of Civil Appeals directed, inter alia, that the Appellant shall file and serve a summons for extension of time to appeal by 21 January 2020. 

11.  The Appellant filed his summons of 21 January 2020 for extension of time to appeal.

12.  The application was opposed by the Bar Council.

Statutory right of appeal

13.  Section 37B of the Ordinance provides for the time limit in the exercise of a right to appeal in respect the Tribunal’s decisions to this Court:

“ 37B. Appeal to the Court of Appeal

(1)   A person who is the subject of an order under section 37 or 38 may appeal to the Court of Appeal and Order 59 of the Rules of the High Court (Cap. 4 sub. leg. A) applies to the appeal except that the time for serving the notice of appeal is 21 days from the date of the decision and not 28 days as provided in Order 59.

(2)   In an appeal under this section the Bar Council shall be the respondent. …”

14.  Section 37 of the Ordinance provides:

“ 37. Disciplinary powers of Barristers Disciplinary Tribunal

On completion of its inquiry, the Barristers Disciplinary Tribunal may do one or more of the following –

…

(c) order that the barrister’s name be struck off the roll of barristers; …”

15.  Further, Section 37A of the Ordinance provides:

“ 37A. Findings of a Barristers Disciplinary Tribunal

(1)   An order made by a Barristers Disciplinary Tribunal shall include a statement of its findings in relation to the facts of the case and shall be signed by the chairman or by a member authorized by the Tribunal.

(2)   A signed copy of an order of the Tribunal shall be filed with the Registrar who shall enter a note of the order on the roll of barristers against the name of the barrister and, where the order so directs, the Registrar shall strike off the name and shall publish an order for suspension or striking off in the Gazette within 14 days after receiving a copy of the order. …”

The decision under appeal and the applicable deadline

16.  The decision that the Appellant actually seeks to appeal is the Tribunal’s decision on liability, viz the decision of 5 August 2019.  In his original Notice of Appeal as well as his affidavits filed in support of his application to extend time, the Appellant has taken the position that that decision was made on 13 December 2019 as he did not receive a signed copy until then. 

17.  The Respondent submitted that it was not necessary for the Tribunal’s decision dated 5 August 2019 to contain any manuscript signatures in order for it to be effective.  The printing of the Tribunal members’ names on the decision was sufficient. 

18.  The Respondent further submitted that because the Appellant is appealing against the Tribunal’s exercise of disciplinary powers under Section 37 of the Ordinance, the 21-day time limit for appealing should run from the date of the Tribunal’s decision of 20 November 2019 on the appropriate sentence.

19.  Our analysis on the appealable decision and the time limit for bringing such appeal is as follows.

20.  The right of appeal against a decision in disciplinary proceedings before the Tribunal is entirely statutory.  The scope is defined under Section 37B of the Ordinance.  Under that section, there is no right of appeal unless and until a barrister becomes subject to an order made under Section 37[3], i.e. when the Tribunal imposes disciplinary sanctions against a barrister by an order.  The Tribunal’s decision dated 5 August 2019 is not per se an order under Section 37 and no sanction had yet been imposed at that stage.

21.  Though the decision of 5 August 2019 determined the issue of liability in the proceedings, it did not conclude the disciplinary process.  Due to the scheme of the Ordinance, that decision should only be regarded as a step in the entire process.  The process was only concluded on 20 November 2019 when the order of striking off was made under Section 37.  It was only then an appeal can be brought and that date was the reference point for calculation of the appeal period.

22.  Such appeal can include an appeal against the determination of liability on 5 August 2019.  But time did not start to run until 20 November 2019.  

23.  The Tribunal was correct in informing the Appellant that he could appeal within 21 days from that date. 

24.  Regarding the requirement that the Tribunal’s order has to be signed under Section 37A of the Ordinance, it is not a precondition for the running of the appeal period under Section 37B(1).  In line with the practice in the reckoning of appeal period for court proceedings, the period starts to run from the date of the decision even though the order has yet to be produced or signed.  In the present case, the requirement under Section 37A was fulfilled on 20 November 2019 as that decision contained the manuscript signatures of the members of the Tribunal. 

25.  In light of this analysis, the Appellant’s calculation based on the receipt of a signed copy of the decision of 5 August 2019 is misconceived.

26.  The statutory appeal period expired on 11 December 2019.  As the Appellant only served the Notice of Appeal on 19 December 2019 at 6:17 pm, he did so only after the expiry of such period.

27.  The Registrar for Civil Appeals was correct in directing that an application for extension of time to appeal should be made.

28.  Without such extension, the appeal is incompetent and liable to be struck out: see Fok Hing (HK) Trading Ltd v Gunawan-Indra CACV 74/2014, 4 July 2014; Kwok Cheuk Kin v Leung Chun Ying [2018] 4 HKC 440.

The application for extension of time to bring an appeal

29.  The Court’s approach in considering an application for leave to appeal out of time is well settled.  In Tang Chai On v Tang Sing Ki, [2016] 5 HKLRD 104, this Court held at [9] (quoting Lee Chick Choi v Best Spirits Co Ltd, HCMP 371/2015, [2015] HKEC 899 (CA) at [19]):

“ The legal principles regarding an application to extend time for an appeal are well established. In the exercise of its discretion, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party if the application is granted. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success.”

30.  The delay in this case is not substantial.  The Appellant filed his Notice of Appeal (improperly) on 17 December 2019, i.e. 6 days after the deadline on 11 December 2019 although the Appellant did not file his summons for extension of time until 21 January 2020.  In the present instance, bearing in mind that this is an intended appeal from a very serious disciplinary sanction, we shall consider the application on the basis that the Appellant would have filed the application for extension of time on 11 December 2019 but for his misguided calculation of the relevant appeal period.  

31.  In his summons of 21 January 2020 as well as his affidavit of 29 May 2020, the Appellant stated that his reason for the delay was that the Tribunal decision of 5 August 2019 was signed and emailed to him on 13 December 2019.  He thus reckoned that it took effect on 13 December 2019. 

32.  The Appellant’s reason for his delay in appealing is neither valid nor reasonable. 

33.  The Appellant had been informed by the Tribunal that if he wished to appeal he should do so within 21 days from 20 November 20219.  Even if he was in doubt, as a barrister he should have no difficulty in checking the position by examining the provisions in the Ordinance.  The time limit is clearly set out in Section 37B.

34.  In any event, we are not satisfied that there is a reasonable prospect, let alone a real prospect, of success on the merits of the appeal.

35.  In his Notice of Appeal filed 17 December 2019, the Appellant raised the following grounds of appeal:

(1)  the Tribunal failed to take into account relevant considerations;

(2)  the Tribunal failed to be objective and fair;

(3)  the Tribunal failed to discard irrelevant considerations;

(4)  the Tribunal failed to permit a right to be heard, or a sufficient right to be heard;

(5)  the Tribunal failed to conduct a fair trial; and

(6)  there was a reasonable likelihood of bias.

36.  However, the Appellant failed provide any particulars in support of his grounds of appeal that identify any specific errors of the Tribunal or indicate that the Tribunal’s conclusion that the complaints against the Appellant were proven is incorrect or unreasonable.

37.  Moreover, there is no objective evidence or materials that can arguably support the Appellant’s grounds of appeal or indicate that the Tribunal’s findings are incorrect or unreasonable. 

38.  The crux of the Tribunal’s decision of 5 August 2019 is the complaints against the Appellant were proven by the convictions.

39.  In the earlier ruling of 9 January 2019, the Tribunal held that the Appellant would not be allowed to lead evidence to challenge his convictions or to contradict the trial judge’s findings of fact in DCCC 158/2013.  The Tribunal relied on Hunter v Chief Constable of the West Midlands Police, [1982] AC 529.

40.  In Hunter, the House of Lords held at p.541B that it was an abuse of process to mount a collateral attack upon a final decision against a party which has been made by a court of competent jurisdiction in previous proceedings in which that party had a full opportunity to contest the decision in that court.

41.  Further, it was also held at p.545A-D that as an exception to the rule against collateral attacks, fresh evidence could be adduced to challenge findings or a decision in previous proceedings in a different court if such evidence could not have been reasonably obtained earlier and if such evidence “entirely changes the aspect of the case”.

42.  Based on the English authority of In re a Solicitor,The Times, 18 March 1996 and Shepherd v The Law Society CA Transcript 15 November 1996 discussed at paragraphs 45 to 48, the Tribunal held at paragraph 49 that the rule in Hunter applied equally to professional disciplinary proceedings.

43.  The Tribunal summarized at paragraphs 63 to 65 the manner in which the Appellant intended to the challenge his convictions and the proposed additional evidence which he wanted to call.  In short, the evidence related to his knowledge and familiarity with Cantonese opera.  The Tribunal held at paragraph 67 that such evidence could not take his case further and did not satisfy the criterion for the exception discussed in Hunter.

44.  The Appellant also sought to impugn the testimony of another trial witness and the conduct of the prosecutor as well as the trial judge.  Those attempts were discussed and rejected by the Tribunal at paragraphs 68 to 72.

45.  The Tribunal therefore came to the conclusion at paragraphs 73 and 74 that there was no basis to justify permission being given to the Appellant to lead evidence to contradict the convictions and the findings of the court in the criminal trial.

46.  The Tribunal also refused the application of the Appellant to subpoena the trial judge and his own trial counsel to give evidence in the disciplinary hearing.

47.  In his submissions before us, the Appellant again laid much emphasis on his criticism on the conducts of the prosecuting counsel.  He said he was not properly represented by his own counsel in the criminal trial.  He also attempted to re-open the merit on the authenticity of the forged will by contending the judge in the criminal trial had no jurisdiction to deal with probate matters and alleging that there were many outstanding issues, including the priority and entitlement to the estate of the deceased as between his sister (whom he said was the de facto wife of the deceased) and Mr Cheung (whom he referred to as the step son of the deceased).  He also said there were some expenses incurred for the estate which could be deductible.  He also raised some issues related to the administration of the estate which, as far as we can see, have absolutely no bearing on his criminal convictions.

48.  He seems to have difficulties in accepting that he was bound by the criminal convictions which formed the underlying basis for the disciplinary charges against him.  He therefore alleged that the Tribunal did not hear him out on these so-called outstanding issues.

49.  Hence, the crux of the matter is whether the Tribunal was correct in ruling that the Appellant was barred from mounting collateral challenge to his criminal convictions.

50.  The rule in Hunter against collateral attack in subsequent civil proceedings against a final decision in previous proceedings has been adopted generally in Hong Kong.  Hunter was mentioned by this Court in Ho Kin Man v Commissioner of Police, [2014] 3 HKLRD 478 (CA) at [26], in commenting that:

“ … A well-established situation where it is an abuse of process to bring subsequent proceedings which had the effect of collateral challenge to earlier proceedings is the pursuit of a civil claim for damages by a person previously convicted in criminal proceedings, see Hunter v Chief Constable of the West Midlands Police [1982] AC 529. …”

51.  In Ho Kin Man the court also confirmed at [25] – [26] that the court has the power to strike out an abusive second attempt to litigate even though it may not be between the same parties.  The court adopts an overall broad merits-based approach in deciding whether there is abuse of process.

52.  Ho Kin Man was subsequently applied by this Court (differently constituted) in Lee Siu Hong v Law Society of Hong Kong, [2016] HKEC 796, CACV 155/2014 at [40] and [42].  In Lee Siu Hong, the plaintiff was a solicitor who had previously appealed unsuccessfully to the Court of Appeal against a disciplinary order of the Solicitors Disciplinary Tribunal.  Shortly before the previous appeal was dismissed, the plaintiff commenced an action in negligence against the Law Society and other defendants.  Deputy High Court Judge Seagroatt found that he was bound by the Court of Appeal’s findings in dismissing the plaintiff’s appeal against the Solicitors Disciplinary Tribunal, and held that it was an abuse of process to re-litigate matters which have already been decided by courts of competent jurisdiction.

53.  On appeal, this Court (differently constituted) in Lee Siu Hong affirmed DHCJ Seagroatt’s decision.  In Lee Siu Hong at [40], this Court, citing Ho Kin Man, held:

“ … It would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same again (§§17, 31, 35, 37 and 38). The court must have power to strike out an abusive second attempt to litigate regardless of the nature of earlier proceedings and even though it may not be strictly between the same parties. …”

54.  The main allegations in support of the plaintiff’s claim in negligence in Lee Siu Hong had all been previously rejected by the disciplinary tribunal and/or by the Court of Appeal.  As such, this Court (differently constituted) held in Lee Siu Hong at [42]:

“ …It is immaterial that the form of the present action is different, or that the issues framed in support of the plaintiff’s case are not identical to the issues in the disciplinary proceedings, or that the present action is not between the same parties. … It would put the administration of justice into disrepute if the plaintiff were to be allowed to mount a collateral attack on the findings in the disciplinary proceedings under the guise of a claim for damages in negligence. The public interest in the finality of litigation is a weighty consideration. The judge is clearly right in holding that there was an abuse of the process of the court…”

55.  Though the Appellant was a respondent in the disciplinary proceedings as opposed to being a party initiating a second set of proceedings, his attempt to re-open the merits of his convictions was nonetheless a collateral challenge by him to the findings reached in the criminal trial which he had unsuccessfully appealed against exhaustively in our criminal justice system.  The holdings in Ho Kin Man and Lee Siu Hong are apposite to the present case.  As illustrated by English authorities cited by the Tribunal in the ruling of 9 January 2019, the rule against collateral attack in subsequent civil proceedings against a final decision in previous proceedings is equally applicable in subsequent disciplinary proceedings.  It does not matter that the parties in these proceedings are not identical to those in the criminal proceedings in which the Appellant was convicted.

56.  Further, we agree with the Tribunal that the Appellant has not provided any fresh evidence that entirely changes the aspect of the case.  The letter dated 6 May 2020 from the Conduct Section of the Law Society only acknowledged that it was deliberating upon the Appellant’s complaint against the prosecutor.  That letter is not evidence that the prosecutor “committed litigation cheating” as alleged by the Appellant or that his convictions were the result of any alleged wrongdoing by the prosecutor.

57.  In our judgment, the Appellant’s evidence does not fall within the exception for permitting collateral attack to be made according to the exception laid down in Hunter.

58.  In the circumstances, we agree with the Tribunal that it was an abuse of process for the Appellant to mount challenges in the disciplinary proceedings in respect of the findings of fact in his previous criminal convictions in DCCC 158/2013.

59.  Once it is concluded that the Appellant had no viable basis to challenge his convictions, his other grounds of appeal (relying substantially on his intended challenge to the convictions based on his so-called outstanding issues) are obviously without merit.

60.  We are not satisfied that the Appellant has a reasonably arguable case for his challenge to the conclusions of the Tribunal. 

61.  For all of the above reasons, we do not see any prospect of success on the merits of the appeal. Accordingly, we dismiss the Appellant’s application for extension of time to appeal. 

Costs

62.  As the Respondent successfully opposed the Appellant’s application to extend time to appeal, it is entitled to its costs of and incidental to the application.  The Respondent’s statement of costs for summary assessment (Order 62, rule 9A of the Rules of the High Court, Cap 4A), estimated its costs to be $140,415, including solicitors’ fees of $62,100 and counsel fee of $75,000 plus disbursements of $3,315.

63.  The Respondent’s estimate of its costs is reasonable.  We order that the Appellant shall pay the Respondent’s costs, summarily assessed in the amount of $140,415.

Order

64.  In consequence, we dismiss the Appellant’s summons of 21 January 2020 applying for an extension of time to appeal and order the Appellant to pay the Respondent’s costs of and incidental to this application in the sum of $140,415.

65.  Since the appeal is incompetent without leave, we also make an order striking out and dismissing the appeal as well.