THE BAR COUNCIL v. MARK RICHARD CHARLTON SUTHERLAND

CACV 365/2019

[2023] HKCA 104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 365 OF 2019

(ON APPEAL FROM AN ORDER OF THE BARRISTERS

DISCIPLINARY TRIBUNAL OF THE HONG KONG SPECIAL

ADMINSTRATIVE REGION

MADE ON 18 JULY 2019)

________________________

________________________

________________________

________________________

D E C I S I O N

________________________

Hon Cheung JA (giving the Decision of the Court) :

I.  Introduction

1.  On 3 December 2021, this Court granted leave to the respondent Mr. Sutherland to adduce the new evidence as listed in the annex of our Decision in support of his appeal against the decision of the Barristers Disciplinary Tribunal (‘BDT’) of the applicant Bar Council, which had found him in breach of various provisions of the Code of Conduct of the Bar (‘Order’) ([2022] 1 HKLRD 58).

2.  Paragraph 2 of our Order also provided that there be leave to the Bar Council to file evidence in response within 35 days. Pursuant to paragraph 2 and by way of affirmation of Mr. Ma Ka Chun Johnny (‘Mr. Ma’), the Honorary Secretary and Treasurer of the Bar Council (‘1^st JM’), the Bar Council explained, inter alia, the Chairman of the BDT, Mr. Selwyn Yu SC’s alleged involvement in Mr. Sutherland’s complaint in March 2014. Mr. Sutherland by his second affidavit dated 30 March 2022 and filed on 12 April 2022 responded to 1^st JM (‘2^nd MS’). The Bar Council then filed the second affirmation of Mr. Ma dated 17 May 2022 in response to 2^nd MS (‘2^nd JM’). Mr. Sutherland filed his third affidavit dated 6 June 2022 (‘3^rd MS’).

3.  Mr. Sutherland filed three summonses in support of his application for various relief :

1)  Summons filed on 12 April 2022 seeking :

(1)  leave to file and serve 2^nd MS; and

(2)  leave to file and serve an amended supplementary notice of appeal dated 30 March 2022.

2)  Summons filed on 7 June 2022 seeking :

(1)  the Bar Council’s disclosure of documents referred to in Exhibit ‘MRCS 3-4’ of the 3^rd MS (letter dated 27 May 2022 from Mr. Sutherland’s solicitors to the Bar Council); and

(2)  leave to adduce three exhibits to 2^nd MS, namely, MRCS2‑1 being a letter from the Administrator of the Bar Free Legal Service Scheme, MRCS2‑2 being reports of the Special Committee on Overseas Admissions (‘SCOAdm’) from 2008‑2019 and MRCS2‑3 being reports of the Special Committee on Discipline.

3)  Summons filed on 22 June 2022 seeking :

(1)  stay of execution of the orders of the BDT dated 18 July 2019; and

(2)  liberty to apply in relation to his access and disclosure requests.

4.  Mr. Sutherland lodged his composite written submissions in support of his three summons applications on 8 August 2022.　The Bar Council lodged written submissions in opposition on 30 August 2022. Mr. Sutherland　lodged a composite written submission in reply on 13 September 2022, which was then superseded by an updated version on 14 September 2022.

II.  Involvement of Mr. Yu

1)  1^st JM

5.  Mr. Ma explained in 1^st JM about the complaint procedure of the Bar Council and the involvement of Mr. Yu :

(1)  In Mr. Sutherland’s case, a letter of complaint was lodged against Mr. Sutherland by Messrs. Christopher K.Y. Wong on 7 March 2014. The matter was handled by Mr. Robert Pang SC who was the Chairman of the Standing Committee on Discipline for the Bar Association (formerly known as the Special Committee on Discipline prior to March 2016) (‘the Standing Committee’). The records of the Bar Council do not show any completed complaint form or any follow up from Messrs. Christopher K.Y. Wong. If a matter is sub judice, i.e. continuing or under appeal, generally the Bar Council will not commence investigation. Mr. Sutherland’s case was treated as sub judice as appeal proceedings were still on‑going. This was the case between 2014, 2015 and 2016 as the records do not show any follow up on Mr. Sutherland’s matter other than there was a complaint lodged;

(2)  It was only on 15 May 2017, the Court of Appeal handed down the judgment in HCMA 685/2013 and HCMA 425/2014, which ordered the matter be considered by the Bar Council. The matter was handled by Mr. Anson Wong SC, the Vice‑chairman of the Standing Committee and directed the commencement of the investigation. From 25 May 2017 onwards, Mr. Sutherland’s case was placed on the Complaints Updates List. Mr. Yu was not involved in the investigation against Mr. Sutherland. In December 2017, the Bar Council resolved to refer the matter to a BDT for inquiry. Complaints against Mr. Sutherland were laid in July 2018 by the Bar Council. Mr. Yu was not involved in the disciplinary process against Mr. Sutherland until his appointment as Chairman to the BDT concerned. Before that, Mr. Yu would not have seen the complainant nor taken part in laying the complaint. Mr. Sutherland did not at the BDT hearing raise the issue of bias of Mr. Yu or unsuitability. It is noted Mr. Yu’s appointment as a member to the BDT was 4 May 2015.

(3)  Mr. Yu was a member of the SCOAdm. Although Mr. Yu was a member at the relevant time, Mr. Sutherland’s application for an overseas counsel to represent him in wasted costs proceedings was purely related to whether overseas counsel was appropriate in the particular case. It had nothing to do with the merits of the wasted costs order against Mr. Sutherland.

2)  2^nd MS

6.  Mr. Sutherland in 2^nd MS stated that :

(1)  The Bar Council failed to disclose in 1^st JM Mr. Yu’s involvement with a complaint made by Zervos J (as he then was) against him in another case (not being HCMA 425/2014 on wasted costs or HCMA 685/2013 on appeal against conviction, but HCMA 270/2014 involving one Mohomed Rahoof Mohomed Sajahan). Mr. Sutherland exhibited a letter from Ms Sze Kin the Co‑ordinator of the Bar Free Legal Service Scheme (‘the Scheme’) dated 20 January 2015 addressed to the clerk of Zervos J with copies to Mr. Sutherland, Mr. Yu and Ms Dora Chan, the Bar Association Administrator. This letter enclosed two chronology of events. The chronology bearing reference to ‘File opened on 2^nd September 2014’, contained, inter alia, the following :

‘ 11. The Co‑ordinator reported to Ms. Dora Chan, the Bar’s Administrator, of the possible misconduct by Mr. Sutherland by virtue of the contents in paragraph 2 of his letter to court dated 3^rd September, 2014 (referred to in paragraph 7 above);

12. The Co‑ordinator contacted Mr. Selwyn Yu, S.C. and reported to him the same matter. Mr. Yu said he would report to the Bar Chairman and the Bar’s Honorary Secretary.’

(2)  Mr. Sutherland stated that Mr Yu was an active member of the SCOAdm, who received the whole set of papers regarding Mr. Sutherland’s application for an overseas counsel to represent him in his wasted costs appeal. Within these application papers there are references to Zervos J’s complaint against him. Between about January 2019 and April 2019, Mr. Yu seemed to be dealing with overseas counsel admission applications as Chairman of the SCOAdm and at the same time also formulating the disciplinary decision in the BDT against him.

3)  2^nd JM

7.  Mr. Ma responded to the matters raised by Mr. Sutherland in the 2^nd JM. He stated that in respect of the complaint of Zervos J in HCMA 270/2014, the background is that Mr. Sutherland had referred HCMA 270/2014 to the Scheme, which in turn assigned the matter to him to represent the client. By a letter dated 22 December 2014 from the clerk to Zervos J to the Bar Council, the Court raised certain concerns as to the respondent’s conduct in HCMA 270/2014. The letter was copied to 1) Paul Shieh SC, the then Chairman of the Bar, 2) Ms Sze of the Scheme and 3) the Department of Justice.

8.  In response to the letter dated 22 December 2014, Ms Sze wrote the letter of 20 January 2015. According to the Chronology in that letter :

(1)  The clerk to Zervos J wrote to the Scheme on 3 September 2014, asking for the grounds of the application to adjourn at such short notice the appeal hearing of HCMA 270/2014 fixed to be heard on 4 September 2014 (paragraph 4).

(2)  On the same day, Mr. Sutherland replied to the letter, providing the reasons for the request for adjournment (paragraph 7).

(3)  Ms Sze considered Mr. Sutherland’s reply letter to be misleading (paragraph 9), and she reported to Ms. Dora Chan, the Bar’s Administrator, of the possible misconduct of Mr. Sutherland in relation to his reply letter to the Court (paragraph 11).

(4)  Ms Sze also contacted Mr. Yu and reported to him the same matter. Mr. Yu said he would report to the Bar Chairman and the Bar’s Honorary Secretary (paragraph 12).

9.  At the material time, Mr. Paul Shieh SC was the Chairman of the Bar Council, and the two Vice‑chairmen were Mr. Yu and Mr. Paul T.K. Lam SC. Of these three officers of the Bar Council, Mr. Yu was the only one whose practice mainly involved criminal matters. Mr. Yu has never been a member of the Management Committee or the Advisory Committee of the Scheme.

10.  Mr. Ma further stated that according to the records kept by the Bar Secretariat :

(1)  On 5 February 2015, the Bar Secretariat received a letter addressed to Ms Winnie Tam SC (the then Chairman of the Bar) from Zervos J dated 4 February 2015, containing the Complaint of Zervos J in relation to the respondent’s conduct in HCMA 270/2014.

(2)  The Complaint Letter was passed to Mr. Robert Pang SC, who was the Chairman of the Standing Committee at the material time, for investigation. As the matter was considered sub judice, no investigation was conducted in accordance with the general policy of the Committee at the time.

(3)  There was no record of any further investigation conducted in relation to the Complaint of Zervos J.

(4)  No disciplinary proceedings were commenced against the respondent arising from the Complaint of Zervos J.

(5)  There was no record that any member of the Bar Council, the Management Committee of the Scheme or the Advisory Board of the Scheme was consulted before Ms Sze wrote and sent out the Letter of 20 January 2015.

11.  Other than the above, there was no record of any other involvement of Mr. Yu in relation to HCMA 270/2014 and/or the Complaint of Zervos J.

12.  Mr. Ma also responded to Mr. Sutherland’s complaint that the views expressed by Mr. Yu, as a member of the SCOAdm which recommended that the Bar Council to object to the ad hoc admission of Mr. Joel Bennathan QC to act for the respondent in HCMA 425/2014 and/or HCMA 685/2013, were not disclosed :

‘ 27. The Bar Council’s position has been stated in paragraph 29 of A’s 1^st Aff, namely that ‘the issue for consideration by the SCOAdm was not the merits or otherwise of the wasted costs order. The issue was whether the admission of overseas counsel was in the public interest in the particular circumstances.’ As such, the views expressed by Mr. Yu SC regarding the ad hoc admission of Mr. Joel Bennathan QC are simply not probative to the issues raised in this appeal.

28. The work and comments of members of SCOAdm are generally confidential in nature, so that members could be free to express views which may sometimes involve comments on suitability/reputation of overseas counsel without fear that such views may subsequently be published.’

13.  Mr. Ma also stated that :

‘ 30. In paragraph 26 of A’s 1^st Aff, I have listed out the documents that Mr. Yu SC had received as a member of the SCOAdm in relation to the ad hoc admission of Mr. Joel Bennathan QC. In paragraph 24 of R’s 2^nd Aff, the respondent singled out the Perfected Grounds of Appeal in HCMA 425/2014 and HCMA 685/2013 as documents that he said are highly prejudicial and ‘ought not to have been seen by the time [Mr. Yu SC] assumed his subsequent position as Chair of the Barristers’ Disciplinary Tribunal in 2018’.

31. However, this allegation is completely devoid of merits :

1) The Judgment of the Court of Appeal in HCMA 425/2014 and HCMA 685/2013 was placed before the BDT (Item 9 of the Bundle of Documents), which contained a summary of the defendant’s Perfected Grounds of Appeal at paragraph 28.

2) The two Perfected Grounds of Appeal were in fact placed before the BDT (as Items 2 and 5 of the Bundle of Documents).’

4)  3^rd MS

14.  Mr. Sutherland’s response to 2^nd JM consisted mainly of arguments and submissions.

III.  Our view

1)  Summons dated 12 April 2022

(1)  New evidence

15.  Our decision of 9 December 2021 stated no further affidavit is to be filed without leave of the Court. The summons of 12 April 2022 sought leave to file 2^nd MS. In essence, this is an application to adduce new evidence and the Ladd v Marshall conditions must be met.

16.  Plainly, the matters raised in 2^nd MS concerning the Scheme’s response to Zervos J’s inquiry cannot meet the first condition of Ladd v Marshall that the material could not have been obtained with reasonable diligence before the BDT hearing. The relevant documents were in the possession of Mr. Sutherland himself well before that time. We have in our Decision of 9 December 2022 rejected Mr. Sutherland’s argument that no one had previously advised him of the issue of bias. We also do not accept that the matters raised in 2^nd MS only arose of what Mr. Ma said in 1^st JM. The duty to raise the issue of bias with supporting documents lies wholly with Mr. Sutherland.

17.  In any event, the second condition of Ladd v Marshall that the new evidence has important influence on the outcome of the case is also not met. The initial complaint that the impartiality of Mr. Yu as the Chairman of the BDT concerned may somehow be affected by his possible earlier involvement as a member of the Standing Committee is now metamorphosed into a more serious allegation that Mr. Yu ‘appeared to have been involved as a protagonist and/or became privy to the involvement of others in the crafting of a complaint against me by the [Scheme] to Zervos J (now JA)’ without the slightest supporting evidence. It is plain that Zervos J’s Complaint was not related to the BDT proceedings now under challenge. Mr. Yu was also not involved with the complaint procedure relating to that complaint. We further do not see how Mr. Sutherland could rely upon Mr. Yu’s role in the overseas counsel admission in support of his allegation of bias against Mr. Yu.

18.  Neither do we see any exceptional circumstances which would cause us to allow the new evidence to be admitted based on our residual discretion.

(2)  Notice of appeal

19.  The summons also asked for leave to file and serve the amended supplementary notice of appeal. No further order is required from us since the document was already served and leave to file it was granted by the Registrar of Civil Appeal. As the hearing date of the appeal has not been fixed, leave of the Court of Appeal is not required for amendment of a notice of appeal, pursuant to Order 59, rule 7(1).

20.  We will dismiss the summons.

2)  Summons dated 7 June 2022

(1)  New evidence

21.  In respect of the application to adduce the three exhibits, we have already addressed the issue above.

(2)  Discovery

22.  In respect of the application under Order 24, rule 10 of the Rules of the High Court, for disclosure of documents listed in the letter by Mr. Sutherland to the Bar Council dated 27 May 2022, Mr. Sutherland must first of all identify with particulars that the documents he sought are actually referred to in Exhibits JM 14 and JM 15. This he has not done. In any event, Order 24, rule 13 provides that :

‘ 13.—(1) No order for the production of any documents for inspection or to the Court or for the supply of a copy of any document shall be made under any of the foregoing rules unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.’

23.  As we have already rejected the new application to adduce new evidence, any further discovery by reference to the two additional matters relied upon by Mr. Sutherland is irrelevant and will not be necessary either for disposing fairly of the cause or matter or for saving costs. In any event, we agree that the application bears all the hallmarks of a fishing exhibition and should be refused on that ground alone.

24.  Accordingly, this summons is also dismissed.

3)  Summons of 22 June 2022

(1)  Stay of execution

25.  Mr. Sutherland asked for a stay of execution of the orders of BDT. This is the second application for stay. This Court (Kwan VP and Chu JA (as she then was)) has already rejected the first application on 15 August 2019 ([2019] 4 HKLRD 294). We do not see any justification for this further application.

(2)  Liberty to apply

26.  The summons stated that :

‘ 2. The Respondent do have liberty to apply in relation to (i) the Respondent’s outstanding Data Access Requests dated 9^th December 2021 and 29^th December 2021 made of the Applicant, the Hong Kong Bar Association, Mr. Selwyn Yu SC, Ms. Queenie W.S. Ng and Mr. Chan Chun Ho William and the Data Access Request dated 29^th December 2021 made of the Barristers Disciplinary Tribunal (ii) the Respondent’s outstanding application for disclosure dated 7^th June 2022.’

27.  We have already addressed the issue of discovery above. Mr. Sutherland has not articulated the relevance of his data access request to the present appeal. Accordingly, the summons is dismissed.

4)  Delay in application

28.  We would express our disapproval to the piecemeal manner in which these three summonses were lodged and the long delay in lodging these interlocutory applications after the notice of appeal was first filed with no explanation being offered for such delay.

IV.  Costs

29.  We order the costs of the applications to be paid by Mr. Sutherland to the Bar Council. We will assess the costs summarily upon Mr. Sutherland filing a statement of objection within 14 days to the statement of costs of the Bar Association dated 30 August 2022.