THE ATTORNEY GENERAL v. TAI CHIN WAH

IN THE COURT OF APPEAL

1992, No. 5

Application for Review

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J U D G M E N T

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Headnote : Observations on the filing and hearing of applications for Review of sentence.

Silke, V.-P.:

1. This is the judgment of the court.

2. Tai Chin Wah appeared for trial before His Honour Judge Britton on a charge sheet which contained five charges. The first charge was that of uttering a forged document, contrary to section 74(1) of the Crimes Ordinance, Cap.200 - "the Ordinance". Its particulars alleged that Tai Chin Wah, on or about 6th May 1983, at the office of the Law Society of Hong Kong, uttered a forged document: namely a document purporting to be a Law Society of England and Wales Certificate of passing the Solicitors' Final Examination. The Certificate was dated 26th November 1982. It was alleged that Tai Chin Wah - whom we shall from hereon called the respondent - knew it to be forged and had the intent to deceive.

3. The second charge was a similar offence and its particulars were that on 6th June 1983, also at the office of the Law Society of Hong Kong, the respondent uttered a forged document: namely a document purporting to be a letter from the Law Society of England and Wales dated 30th May 1983 knowing that it was forged and with intent to deceive.

4. The third charge was that of making a false statutory declaration, contrary to section 36(a) of the Ordinance. Its particulars alleged that the respondent, on 16th May 1983, in Hong Kong, in a declaration which was entitled "a Declaration as to Service under Articles" made under the Oaths and Declarations Ordinance, knowingly and willfully made a statement which was false in a material particular, that is that he had complied with the requirements of rule 14(b) of the Articled Clerks Rules as to the passing of examinations. The fourth charge was possession of a forged document, contrary to section 76(3) of the Ordinance, and its particulars alleged that the respondent, on 7th October 1991, at his home had in his custody without lawful authority or excuse a forged document, which he knew to be forged; namely a Law Society of England and Wales Certificate of passing the Solicitors' Final Examination which certificate was dated 26th November 1982.

5. The fifth and final charge was also that of possession of a forged document and its particulars alleged that he, on 7th October 1991, at his home had in his custody or possession without lawful authority or excuse forged documents, that is writing paper of the Law Society of England and Wales which he knew to be forged.

6. To all these charges he pleaded guilty, and upon his plea being accepted, the trial judge sentenced him to 6 months imprisonment on each of the charges, those sentences to be concurrent. The judge then went on to suspend those sentences for a period of 12 months.

7. The sentences having been imposed on 27th February 1992 the Attorney General, on 18th March 1992, filed an application under the provisions of section 81A of the Criminal Procedure Ordinance, Cap.221 for leave to apply to the Court of Appeal to review those sentences on the basis that they were "manifestly inadequate and/or wrong in principle". On the same day the solicitors acting for the respondent wrote a letter to the court seeking to have the application for leave heard on an inter parses basis. The single judge, in the person of the Chief Justice, having considered that which was said in "Applications for Review Nos. 10, 11 and 13 of 1990" [A.G .v. Tse Ka Wah and Others [1992] 1 HKCLR 103] refused that request. He granted the Attorney General's application for leave and directed that the papers be filed within 14 days. That order was made on 19th March.

8. On 20th March the Application for Review, consequent upon leave having been granted, was filed by the Attorney General. Attached to that application were the Reasons for Sentence, the charge sheet, the summary of facts - all of which came from the District Court - and a letter dated 4th March from the trial judge to the Attorney General enclosing the various matters which the Attorney General had requested under the provisions of section 81A(2).

9. The Attorney General's Application for Review, though not the application for leave itself, was one day out of time. This has given rise to various preliminary issues raised by the respondent.

10. In this court the respondent was represented by Mr. Alan Hoo, Q.C. with him Mr. Macrae and Mr. Dykes - who severally addressed us - and the Crown was represented by Mr. I.G. Cross, Q.C. with him Mr. Saw and Mr. W.S. Cheung.

11. Before dealing with the preliminary matters we think it would be of assistance if we set out the general background to the charges. The respondent is aged 39 and, in July 1977, obtained the degree of Bachelor of Science from the Victoria University of Manchester. He passed Part I of the Qualifying Examination of the Law Society of England and Wales and held a certificate to that effect dated 22nd September 1979. This certificate is not in question.

12. In the late 1970's the procedure by which a person could qualify for admission as a solicitor was different from that which now exists. Then, persons who wished to be admitted could undertake and complete the period of articleship before they completed the Solicitors' Final Examination. Once the prescribed period of articles were completed, and the Solicitors' Final Examination of England and Wales had been taken and passed, the student solicitor was entitled to apply to the Law Society of Hong Kong to be admitted as a solicitor in Hong Kong.

13. The respondent was under great pressure from his father, a New Territories patriarch, to take up a career in the law and, for that purpose, to qualify as a solicitor. The respondent had married and this created further pressure, for his wife was not fully accepted by his parents, he having married her in 1977 without parental consent.

14. After his marriage the respondent had commenced the Part I of his law degree at Manchester Polytechnic. He passed, as we have indicated, Part I in the summer of 1979. It was then necessary for him to complete the Part II syllabus. This course was not available at Manchester Polytechnic but it was at the Liverpool Polytechnic. The respondent enrolled in the Liverpool Polytechnic and commuted there daily. Shortly after he began the Part II syllabus course at Liverpool the Law Society of England and Wales altered the method of education for prospective solicitors deleting the Part II syllabus and replacing it with what is now known as the Solicitors' Final Examination. This was a longer course with a new syllabus and candidates could sit the examination on a maximum of three occasions. This contrasted with the old system whereby candidates could sit and pass Part II virtually subject by subject.

15. The respondent had the choice of either taking the old Part II syllabus examination in February 1980 and, if he failed, then to re-enroll and start the new 12 months Solicitors' Final Course from the beginning, sitting his examination in the summer of 1981. Or he could immediately switch to the Solicitors' Final Course, sitting that examination in the summer of 1980. He chose the latter, went back to Manchester Polytechnic and applied to sit the final examination in the summer of 1980. Shortly after this commitment the respondent discovered that his wife was expecting their first child. There were medical complications in the course of pregnancy. The respondent was unable to complete his full studies and withdrew from the summer 1980 examination.

16. This angered the family patriarch, his father. The respondent and his family were summoned back to Hong Kong and began living with the paternal family. Life proved difficult, in particular as the father closely supervised all aspects of the respondent's life. The difficulties came close to breaking up the marriage.

17. The father arranged for the respondent to enter into articles with a firm of solicitors in Hong Kong. On 3rd September 1980 the respondent applied to the Hong Kong Law Society to enroll as a student, which application was accepted. On 14th November 1980 he was articled to a Hong Kong firm of solicitors, the period being for 30 months set to expire on 10th May 1983.

18. The respondent's wife again became pregnant. It was at this point that the respondent first sat the Solicitors' Final Examination in the United Kingdom and failed. The second child arrived in September 1981. This merely served to increase the parental intrusion into the life of the respondent and his family. Eventually the respondent moved out from his parental home. This caused a crisis between the respondent and his father. His father had a heart attack and the respondent's mother blamed him. Money was scarce as parental funds ceased to flow. All these difficulties adversely affected the respondent's studies.

19. In 1982 the respondent again sat the Solicitors' Final Examination in England. Again he failed. His family had assumed he would succeed because of the respondent's expressed confidence. The respondent found himself unable to face informing his family of this second failure. He lied to them saying that he had passed. He did this in the hopes that he could persuade the Law Society of England and Wales to allow him to re-sit the Final Examination in February 1983 which would have permitted him to qualify before his articles expired in May 1983. At Christmas 1982 the respondent was informed by the Law Society of England and Wales that his application to do so was rejected. As a result of his initial lie his family had announced with pride the news of his qualification as a solicitor.

20. Earlier, while at Manchester Polytechnic, he had become friendly with a Singaporean named Leung. He had helped Leung to kick soft drug abuse. Leung, upon hearing of his distress and the dilemma in which the respondent found himself, came to Hong Kong - he had earlier returned from Europe to Singapore. In the course of his visit Leung informed the respondent that he was aware of a person in England who supplied bogus qualification certificates. This could be arranged. The respondent accepted the idea. Eventually all the appropriate forged documents were made out, sent to Hong Kong and were used for the purpose of the respondent's being admitted as an apparently fully qualified solicitor. From 23rd June 1983, when he was formally admitted in Hong Kong, until 1991, when questions were raised as to his qualifications, the respondent practiced as a solicitor.

21. Both while in England and in Hong Kong he had interested himself in community work. In furtherance of that interest he became a member of the District Board in the New Territories. He was elected through the Electoral College System to the Legislative Council to represent the New Territories West Constituency. In September 1985 he was directly elected to the Legislative Council as a member of the New Territories West Constituency.

22. On 7th October 1991 he was arrested. The facade which he erected came crashing down.

23. At the time of trial, the penalty applicable in respect of offences under section 74(1) of the Ordinance was 3 years imprisonment; that under section 36A, 2 years imprisonment and a fine and that, under section 76(3), 3 years imprisonment.

24. Before going on to deal with the amended Notice of Motion which seeks to set aside the leave granted by the single judge, we shall deal with two other preliminary matters raised by the respondent. The first: which can be termed "the contempt point"; the second: the submissions made in relation to the contents of the Summary of Argument produced by the Attorney General - and framed by Mr. Cross - in support of the application.

25. On the first point: it was suggested to us that comments in the press subsequent to the sentences being passed and before - and indeed after - it was known that the Attorney General would seek to review those sentences, were such as to amount to contempt of this court. That there was a great deal of press comment is undoubted. That some of it verged upon the hysterical is equally true but we did not consider that the hearing of this application was a forum in which to bring disguised contempt proceedings against newspapers and periodicals who were neither present nor represented before us. Further, this court is not going to be deterred in the performance of its duties by comment of that nature. It is our function to consider whether this application has been properly made and, if so made, to go on to consider whether the sentences imposed by the trial judge were, as the Attorney General suggests they were, manifestly inadequate and/or wrong in principle. We perform that duty upon the papers which have been placed before us, the submissions made and bearing in mind the nature of the offences and the offender and the general interests of the community in which we all live. We shall therefore deal no further with the issue of contempt.

26. On the second point: in our judgment, the Crown is entitled to place before this court the reasons why it contends that sentences are wrong. This court does not alter a sentence merely because, in its opinion, the sentence imposed was somewhat less than itself would have given. That is not the test. As Lord Lane put it in Attorney General's Reference No.4 of 1989 (1989) 11 Criminal Appeal Report (Sentencing) 517, the court will only increase sentences which it concludes are unduly lenient and

"A sentence is unduly lenient, we were told, were it falls outside the range of sentences which the judge, applying his mind to all relevant factors could reasonably consider appropriate."

27. While the empowering English legislation, unlike that in Hong Kong, uses the expression "unduly lenient", the principle is the same.

28. That which Huggins J. (as he then was) said In re Applications for Review of Sentences [1972] HKLR 370 at 412 - where there were separate judgments from the members of the Full Court - as to the duty of counsel upon the hearing of a review, has been brought to our attention. Huggins J., having stated that, on a review of sentence, he apprehended it to be the duty of the court to consider the decision without pressure from the applicant, cited in support a passage from Boulton, Conduct and Etiquette at the Bar. That passage reads:

"Counsel for the prosecution should state all the relevant facts of the case dispassionately whether they tell in favour of a severe sentence or otherwise; but he should not attempt by advocacy to influence the Court towards a more severe sentence."

29. It must be borne in mind that that passage from Boulton related to a time when there was no right by the English Attorney General to apply to a court to review a sentence and therefore relates solely to the conduct of counsel at trial. Huggins J. went on:

"That being the duty of counsel for the Crown at first instance it cannot be any less undesirable that he should attempt by advocacy to influence the court towards a more severe sentence in subsequent proceedings in a higher court. The duty of counsel for the Crown on an appeal against sentence was considered by this Court in Reg. v. Yuk Chi-fung [[1966] HKLR 518 at 521] and is similar to that at first instance. It is inevitable that by the very fact of applying for leave to apply for a review of a sentence on the ground of manifest inadequacy the Attorney General should 'advocate' a more severe sentence, but, allowing that he may go thus far, in my view he should not in any other way go outside the rule stated by Boulton. Strictly it is not even necessary that he should indicate in his application the basis of the application, except where the application is on the basis that the sentence is 'not authorised by law' or 'wrong in principle'. In such a case he should go on to indicate the extent of the authority given by law which it is said has been exceeded or the principle which it is said has been broken. If the reason for the application is that the sentence is manifestly excessive or manifestly inadequate then unless the court can see, without being told, which view the Attorney General is likely to hold, it is an application which ought never to have been made. When leave to apply is granted, then upon the application for review (which in truth would more conveniently have been described simply as 'the review') the Attorney General should normally do no more than read the relevant parts of the record. He certainly has no right of reply."

30. In 1972 the review procedure was very new.

31. In Attorney General v. Lau Chiu Tak & Another [1984] HKLR 23, the "five man court" over which Huggins V.P., as he had then become, presided, it was held that:

"Where an application for review of a sentence is on the ground that the sentence is wrong in principle it is incumbent upon the Attorney General to identify the nature of the error alleged and he is entitled to cite authorities to establish the error. Where the sentence is alleged to be manifestly inadequate he may properly draw attention to any matter appearing on the record but may not adduce new evidence with a view to increasing the sentence. ..."

32. When considering the test to be applied on what is "manifest inadequacy". Huggins V.P., at page 25, said this:

"Nevertheless, we emphasize that this court will be much more easily persuaded that a sentence is manifestly excessive than that it is manifestly inadequate - not because the test is different but because there is a presumption in favorem libertatis which the Crown has to overcome: see Reg. v. Bitter [1981] 27 SASR 183, 185. The power of review was conferred to correct errors in exceptional cases and the court will be jealous to prevent encroachment on the discretion of judges and magistrates to impose a lenient sentence as they may think appropriate, provided that the sentence is one which in all the circumstances could reasonably be passed."

33. Making reference to In Re Applications for Review of Sentences, Huggins V.P. went on at page 26 to say, first, that when it was said that there was no right of reply this was not meant to suggest that the Attorney General did not have the right to correct mix-statements of fact or to answer any mis-statement of legal principle made on behalf of the respondent and went on:

"all that any of us has sought to do is to prevent an undignified wrangle, with counsel for the Crown pressing the court to impose harsh sentences."

And again:

"Provided that one remembers that in this type of proceeding (as at first instance) counsel for the Crown is a minister of justice, in the final analysis there may well be no real distinction between a review and an appeal. It must be left to the court in each individual case to ensure that counsel does not go beyond the bounds of propriety and we shall not attempt to lay down any guidelines."

34. The power in the Attorney General to seek to review sentence has now been introduced into the legislation of the United Kingdom by the Criminal Justice Act 1988. The procedure is somewhat different from that which pertains in Hong Kong. In the same way as an appeal against sentence, which is by leave, the application for leave and the Reference, as it is termed, are dealt with at one hearing. If that procedure were capable of being adopted in Hong Kong a great deal of the technical argument which we have had advanced to us here - and in other cases - could be avoided.

35. Further, the Crown is required to place written argument before the English Court of Appeal - "summarise the arguments intended to be put to the court" r.6(1)(b) Criminal Appeal (Reviews of Sentencing) Rules 1989 [see generally Archbold 1993 Vol.1 7-292 et seq.]. As we have earlier noted, in referring to Attorney General's Reference No.4 of 1989, the wide phrase "unduly lenient" is used in the Act as opposed to our "manifestly inadequate or wrong in principle."

36. The application is required to state "the reason why it appears to the Attorney General that the sentences of the offender was unduly lenient" (R.3(i)(b) Rules).

37. Of recent years the strict Boulton practice as set out in 1972 in In Re Applications for Review of Sentence has been gradually altered to permit the Crown to have a greater say in the sentencing process. It stands to reason that if counsel does draw to the attention of the sentencing judge factors and authorities relevant to sentence - without pressing for any particular form of sentence - some Applications for Review could be avoided.

38. Similarly, when the Attorney General considers that a Review is required, he has been permitted to draw to the attention of this court matters which could influence the determination of the application. Indeed, to request assistance from the Crown in the course of sentencing appeals has also become the practice.

39. It was the contention of Mr. Macrae, who addressed us on this aspect, that the written arguments of the Crown presented to us, and to be elaborated upon by Mr. Cross orally, transcended the bounds of propriety; put the case too high; went too far. He accepted that when a review is on the basis of manifest inadequacy of sentence, or that the sentence is wrong in principle, counsel for the applicant must be in a position to justify those contentions. However, the issue here is how that is done - and this having in mind the approach of 1997. Relying on Re Applications for Review of Sentences and Lau Chiu Tak Mr. Macrae seeks to propound as matters of principle that the applicant (1) may say what the inadequacy he thinks to exist is; (2) may identify the nature of any error of sentencing principle; (3) may cite authorities to establish the existence of that error; (4) may draw the attention of the court to any matters which are on the record; and (5) may refer to decided cases relating to the offence. He should not go beyond this and may not, as Mr. Macrae put it, "improve" the case against a respondent.

40. In particular Mr. Macrae objects to the line of argument, contained in paragraph 4 at page 3 of the Summary of Argument, that the facts of Charge 2 revealed one of the "worst possible type of case" and that, further, it is for the sentencing court to consider, at the time of imposing a sentence, the maximum sentences provided for by the legislation in respect of the offence. The contention of the applicant is that, for an officer of the court to mislead the court and to mislead the general public, both quite deliberately, which deception was continued over period of many years and initiated by the production of forged qualifications, was, to use the words of Lawton L.J. in R. v. Byrne and Others (1975) 62 Cr.App.R. 159, 163, "the most serious type of case". For the Attorney General to suggest that the case here was one of the worst possible type of case is, in our view, a legitimate contention - whether the court accepts this is another matter - and not something which goes beyond the bounds of propriety.

41. The courts in Hong Kong have approved the use of the maximum prison term as the starting point for determining sentence (see R. v. Li Fook Shiu [1991] 2 HKLR 288, 309).

42. We accept that the contention at page 5 of the Summary of Argument - for there was no direct evidence of any financial rewards being obtained by the respondent - "to disregard the high financial and prestigious awards available to the professional people of Hong Kong, and that the Respondent, by his dishonesty, placed himself in the forefront of that class of society" could be construed as advocacy. It was accepted that no person lost financially, and no person lost by bad advice given to them by the respondent. It is however common sense to ask this court to consider whether the respondent could have achieved all that he has done in public life - and his achievements were many - if it had been known that he had no right to call himself a solicitor in the first place. Professional financial rewards are high in Hong Kong. We read the argument by Mr. Cross in that light.

43. When the argument says, and we refer to paragraph 7 at page 8 of the Summary of Argument:

"The sentences passed were not such as to mark adequately, or at all the disapproval of the community for the crimes which the Respondent committed. The judge attached a weight to the mitigation which was unwarranted and wholly disproportionate."

this again was in our view a legitimate comment - again whether we accept it or not is another matter. It is a reason why the applicant considers the sentencing of the respondent was wrong. There had been - reference will be made to this later - very powerful mitigating evidence relating to all the good which the respondent has undoubtedly done over the years in the New Territories. One has only to read the affirmation which was before the judge from the Chairman of the Heung Yee Kuk to be aware of that. To advance to this court that too great a weight had been given to that mitigation does not, in our view, transcend the bounds of propriety.

44. Mr. Macrae took strong exception to a reference to "breach of trust". I was myself moved, in the course of his submissions, to comment that manifest breach of trust "roared out" of the facts here. I do not resile from that comment in the least. I was not - nor do we take Mr. Cross to have been - referring to breach of trust in the Barrick sense (see c.f. R. v. Barrick (1985) 81 Crim.App.R. 78) but to a "breach of trust" in that there was a breach of the confidence which' the public is entitle to place in a man in a professional position by virtue of that position.

45. It is for this court to decide what the bounds of propriety are. In our judgment Mr. Cross' submission, though strongly advanced, did not here breach those bounds.

Notice of Motion

46. To turn now to the amended Notice of Motion.

47. This Notice of Motion seeks to set aside the leave granted by the single judge to the applicant to apply for a review by this court. The terms of the Notice are - and it will be of assistance we think if we set them out in full:

"That the applicant failed to make proper disclosure to the Court of the following material matters in the application for leave for review of sentence -

(1) The Learned Sentencing Judge was informed that both the Applicant and the Respondent were agreed that there were no applicable tariffs, guidelines or governing principles affecting the sentence that could be imposed. Upon that premise the Learned Sentencing Judge accepted that the situation regarding sentence to be imposed on the Respondent was an open one.

(2) Notes of proceedings relating to plea, mitigation and sentence.

(3) All evidence in mitigation (which was unchallenged by the Crown).

(4) When the Single Judge granted leave to the Applicant to apply to this Court for a Review of the Respondent's sentence, he directed that 'Papers to be filed within 14 days.' Inasmuch as the said order amounted to an extension of time under section 81A(2)(c), it should not have been made because [a] the Applicant had not made any application for an extension of time under section 81A(2)(c) [b] no full and fair disclosure was made by the Applicant in respect of either the fact that the Application for Review may be out of time or explaining the reasons for the lateness of the request for leave and/or [c] no notice had been given to the Respondent which would have given him an opportunity to be heard on the issue of whether an extension of time should be granted."

48. As to paragraph (1) the failure to disclose. There was no suggestion to the sentencing judge - nor consequently to the single judge - that there were tariffs or guidelines in relation to sentences to be imposed for this type of offence by this type of offender. The grounds for the application for leave were, briefly, that the sentences imposed were not such as adequately to punish the defendant for his criminality and wholly failed to mark the disapproval of the community therefor; that the sentencing approach of the trial judge had insufficient regard to the degree to which the offences were such as to undermine public confidence in the integrity both of the legal profession and of those engaged in public life; that, given the circumstances of the offence and of the offender, including the extent to which the offences were carefully planned and skilfully executed, a period of immediate imprisonment was required; that although normally a deterrent sentence is not imposed on a first offender, that does not mean that the deterrent element in sentence is to be totally ignored.

49. It cannot be right to accuse the applicant of failing to make disclosure of something which did not exist. It is clear from a perusal of the Reasons for Sentence, which were attached to the application, that the trial judge placed no reliance on applicable "tariffs, guidelines or governing principles" affecting sentence in respect of the offences charged. We find nothing in this point.

50. As to paragraph (2): Notes of proceedings. There is no requirement in law that the notes of proceedings relating to plea, mitigation and sentence should be before the single judge. The statutory requirements are set out in section 81A(2A) as being, in this case: a statement of the Reasons for Verdict and a statement of the Reasons for Sentence together with any report concerning the respondent which was before the court which passed the sentence.

51. In A.G. v. Yim Yee Kwong AR 6/81 (unreported) Sir Denys Roberts C.J. in delivering the judgment of this court concluded by saying at p.5:

"Procedure

I think it might be helpful to the Attorney General, if we were to say that we hope that in future applications for review, the single judge, to whom the application for leave originally goes, and this court could be furnished with a general statement as to why the sentence is wrong in principle, if the application is based on that ground."

which foreshadows some of the requirements now set out in the English Criminal Appeal (Reviews of Sentencing) Rules 1989 referred to earlier in this Judgment.

He went on:

" It would also be useful if, as a matter of standard practice, the documents submitted by the Crown included the respondent's record, a list of any offences which were taken into account by the trial judge, and a copy of the charge sheet itself."

52. To those items we would add: any summary of facts and would suggest as a matter of practice that in future, the Attorney General ask for them at the same time as he asks for the statutory documents. They should all be supplied at the same time.

53. But, given the time limits laid down for the making of an application for leave - and, necessarily, the application for review - it is most improbable that notes of proceedings relating to plea, mitigation and sentence would be available before the expiration of that time limit. Further, the Reasons for Sentence, if they are, as here, properly set out, will contain references to the mitigation which the sentencing judge had in mind. We find nothing in this point.

54. As to paragraph (3): Evidence in mitigation. It would have been clear from the reference in the Reasons for Sentence where the judge said at page 3:

"However, it is from those people that there has been an outpouring of sympathy and pleas for compassion. This Court is full of people who are concerned for you. I have before me many affidavits. They come from people in powerful and respected public positions. They come from ordinary people. No-one who has read the tributes laid at your door by people from all walks of life can fail to be deeply moved."

that there was massive mitigation. It would have been a counsel of perfection to have the many affirmations which were before the judge attached to the application. We do not consider that the papers failed to make full and frank disclosure. As we have indicated it was manifest from them that mitigation existed.

55. In considering items (1), (2) & (3) of the Notice of Motion we are fully appreciative of the general principle that when applications are made ex parte the applicant is under a duty to make full and frank disclosure. We think it unnecessary to cite authority in that respect. The applicant is also under a duty not to in any way mislead the court. The Attorney General here complied with the statutory requirements. It was manifest from the papers that there were no sentencing guidelines and further that there had been very powerful mitigation. We do not consider that the applicant here failed in his duty to make full and frank disclosure. The application for leave should not be turned into the application for review itself which, with respect to Mr. Dykes who argued on this aspect of the matter, seems to be the thrust of his submission. But be that as it may, we do not consider that paragraphs (1), (2) and (3) have been made out.

56. As to paragraph (4). There are two subsidiary aspects to be considered here: (1) the "plea bargaining" which took place before the charges were preferred against the respondent and (2) the request by the respondent's legal representatives for a meeting with the Director of Public Prosecutions in order to make representations as to why no review should be sought. That latter request was acceded to may well be one of the reasons why - for it took place on 16th March - the application for leave was brought very close to the deadline.

57. Mr. Dykes lays great emphasis on that which was said in Tse Ka Wah and Others. But it must be remembered that in that series of Applications for Review the original applications for leave were themselves out of time. Here, the application was in time. It had been delayed to permit the meeting of 16th March with the Director of Public Prosecutions and the legal representatives of the respondent to take place. At that meeting representations were made and considered as to why there should be no Application for Review. For our part we do not think that the concession, for that it was, to the ? to permit those representations to be made should now be held against the Attorney General. It is true that there was no request made for an extension of time within which to file the review papers. But, given the representations made by the legal representatives of the respondent to the single judge, which in turn delayed the consideration by the single judge of the Attorney General's application, and given that the single judge had made himself fully aware of that which was said as to extension of time and timeous applications in Tse Ka Wah and Others, we have no doubt at all that, when the endorsement "Papers within 14 days" was made, it was made in the full knowledge that those 14 days would go beyond the time limit set out in the Ordinance. It might have been preferable, though it was not essential, had the inevitable delay in the filing of the Review papers and which would exceed the time limits, been brought specifically to the attention of the single judge. But here that, with respect to Mr. Dykes' submissions, would again have been a counsel of perfection. That the meeting of the 16th and the reason for it was not brought to the attention of the single judge as an "explanation" of the delay which would ensue does not in our judgment advance the respondent's case any further. Ex parte orders made by a single judge are always open to review by a full bench of the Court of Appeal (see Tse Ka Wah and Others) but we would emphasise that requests for leave were there held to be properly brought ex parte. We see nothing in Tse Ka Wah and Others which suggests that, if an extension of time be asked for, then a respondent is entitled to be heard on the issue of whether such an extension should be granted. If the respondent is aggrieved by any such decision then his remedy lies in a Notice of Motion such as this or indeed Notices of Motion such as were brought in Tse Ka Wah and Others. With respect to Mr. Dykes we do not find his arguments on this aspect to have validity.

58. The subsidiary issue as to the "plea bargaining" we shall deal with it at a point where it more directly impinges upon this application - that is on the issue of whether, in the light of that which occurred at that plea bargaining session, this court should make "no order" on the present application.

Merits

59. Now finally to the merits.

60. We have read with care the Reasons for Sentence of the trial judge. We have, as we have been enjoined to do by Mr. Hoo who dealt with this aspect, considered the passage at page 4 of those reasons which states:

"That lie, told by a young and desperate man many years ago has now come home to roost with devastating consequences. It has caused public humiliation to you and grief to your family. It has caused those who admire and respect you anguish and bewilderment."

and the passage which appears at page 5 which reads:

"I do not believe that the good you have done over the years should be wiped out by one isolated act of folly committed a long time ago in completely different circumstances."

as coming before and after the references to the very strong mitigation which was placed before the court. But having done that we are of the firm view that, with great respect to the trial judge, to refer to the conduct of the respondent as being one isolated act of folly committed a long time ago, is to ignore everything that has happened between the deceiving of the court and of the public in 1983 and the bringing to an end the deception in 1991. In so doing, we consider the sentencing discretion of the trial judge to have been wrongly exercised. In those circumstances, this court is at large as to what should be the proper sentence.

61. We entirely accept that the respondent has done, and is continuing to do, a great deal of good in the community - particularly, in relation to matters of moment in the New Territories. We accept that this goes a long way to lessen the effect of his criminality. But we venture to wonder whether he would have been in a position to act as he has done over the years, and to achieve the high positions he did achieve, had it been known earlier that he was not entitled to hold himself out to be a solicitor. Members of any profession have a duty cast upon them by entering a profession to uphold public standards and uphold the standards of the profession itself. Those who hold themselves out to be professional men, but who are not, falsely suggest to the public that they are bound by that duty.

62. We would accept that which the judge said as to sentencing in this case not being easy. We do not find the position of this court easy. But the respondent's professional life - he did become senior partner of his firm though we are not apprised of the direct financial benefits which came to him through that position - was based on a living lie throughout the years and not simply a lie told in isolation many years ago.

63. His actions in misleading the Law Society, misleading the court - and he is, on admission as a solicitor, an officer of the court - and misleading the public into their thinking that he was some thing which he was not, constituted offences of considerable gravity. What the respondent did is at the higher end of the sentencing bracket, and by that we mean at the higher end of the sentences which could be imposed upon a person convicted of the offences which he faced. We view all the charges laid against him as being intermingled one with the other and the sentencing judge was entitled to approach sentence on the basis of totality. A proper overall starting point for sentence here would have been, after trial, eighteen months to two years immediate custodial imprisonment. In arriving at the eventual sentence the plea is something which the judge must bear in mind. The plea here was not a straight-forward plea, in the sense that there was a strong attempt to plea bargain on the basis that the respondent would plea guilty if certain matters were worked out to his satisfaction. This relates to the plea bargaining session where there was an attempt by his legal advisers to have the matter brought in the Magistrates court, as opposed to the District Court, and there was a suggestion, not pursued, that there be an assurance given by the Director of Public Prosecutions that no review would be sought whatever sentence was imposed.

64. The Director was aware the respondent was striving for a suspended sentence. That he then gave it as a view that a suspended sentence by a District Court judge would have a greater effect than one imposed by a magistrate was perhaps an unwise expression of opinion. However that may be, and we are conscious of the fact that the notes of interview were notes presented to the Director of Public Prosecutions by the respondent's legal advisers some months after the meeting took place he apparently, having kept no note himself. No doubt the Director will, if he ever agrees to have a meeting of this nature again, ensure that a full record is kept of everything that transpires. But nothing that was said at that meeting persuades us that this court should, because of it, reject any Application for Review or make a "no order". We do not consider that the respondent suffered anything which could amount to a justifiable sense of grievance.

65. We have considered all of the very powerful pleas made by a great many people in public life who have had contact with the respondent. We have, particularly, considered that which was said by those whose duties or office entailed their dealing with matters in the New Territories. We have borne in mind the devastation which the uncovering of the falsity of the respondent's position has visited not only upon himself but upon his family. Through merit, and with the help of the profession of which he held himself out to be a member, the respondent attained a high position in this community. But it cannot be avoided that that attainment was based, in large measure, upon deceit. It may be that, had he remained in the discipline to which his original qualifications entitled him, he would have reached similar heights. Unfortunately he did not. Whether blame for that can be laid upon his parents, upon the difficulties of his personal circumstances in years gone by, or on the refusal to permit him to sit the finals for a third time, in our judgment, makes no difference. We note, and we think this to be a matter of moment, that at no time throughout these proceedings, from their inception until today, has there been any genuine expression of remorse. We say that in the full light of his plea of guilty, for even there was an attempt to diminish the gravity of his offences.

66. A discount would have been, as we have indicated, proper for the plea, which clearly saved a great deal of time and expense. Further substantial discount is proper in the light of the mitigation put forward. Full recognition should be given for the public good works that he has performed. Making all due allowance for every factor of mitigation, a sentence of 1 years imprisonment would have been appropriate. While this sentence was capable of being suspended, this is not a case where such an order should have been made. The gravity of these offences by a man holding himself out over a period of years as a professional man is not properly reflected by a sentence which is suspended.

67. This being a review and the respondent not having been placed in custody, this court is entitled to give a further deduction following the principles enunciated in A.G. v. Wong Kwok Wai [1991] 2 HKLR 384. This we would do.

68. We have no doubt at all that an immediate custodial sentence should have been imposed by the sentencing judge, and of greater length than the 6 months imprisonment he thought appropriate. That was manifestly inadequate. It was wrong in principle to suspend. We would assess the proper sentence now to be 9 months imprisonment concurrent on each charge. We would allow the Attorney General's review and make that order.