RE A BARRISTER

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DECISION

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1. On the application of the bar Committee, the Chief Justice appointed a Committee of Inquiry, under section 34 of the Legal Practitioners Ordinance, to inquire into a complaint brought by the bar Committee against the respondent, a practising barrister at the Hong Kong Bar.

2. The Committee of Inquiry submitted its findings in the form of a report to the Chief Justice, expressing its opinion that a prima facie case of misconduct had been made out against the respondent. Accordingly, the Chief Justice ordered that the matter be set down for hearing before this court in accordance with section 37(l) of Cap. 159.

3. Counsel for the Bar Committee, acting under section 37(2)(a) moved this court to take disciplinary action against the respondent, on the findings of fact and law of the Committee of Inquiry, as contained in its report, to which we would like to pay tribute for its good sense and clarity.

4. The respondent did not appear before the Committee of Inquiry, nor before this Court though given the opportunity to do so in each case.

5. We need deal only with the first of the two complaints which were brought against the respondent, since the Committee of Inquiry concluded that the second complaint was really no more than an extension of the first, which reads as follows -

"(The respondent) is charged with professional misconduct in that, on 26th, 27th and 28th August 1984, he associated with Deputy District Judge 'X' by travelling to and spending the weekend in Macau together during the course of a criminal trial before Deputy District Judge 'X' in which he was Counsel for two of the defendants, which association in all the circumstances aforesaid went beyond the limits of social intercourse between Bench and bar allowed by the ethics and etiquette of the profession and which might bring the profession into disrepute and be prejudicial to the administration of justice. "

6. The latter part of this charge follows closely paragraph 6 of the Code of Conduct for the Bar of Hong Kong, which states-

 

"6. It is the duty of every barrister –

 

(a) .........

 

7. It was not necessary to call any witnesses before the Committee of inquiry, since a statement of facts had been agreed between the parties and formed the basis of the Committee's report.

8. The salient facts as found by the Committee, and derived from the agreed statement of facts, are set out in the Committee's report as follows -

(a)        The Barrister was one of the counsel in a trial in the District Court (involving charges of possession of dangerous drugs), representing two of the Defendants.

 

(b)         During the first week of the trial, probably during a recess, the Judge mentioned to the counsel involved, that as he had not been to Macau, he intended to go there for the impending holiday weekend. Here, we must assume that the Judge said this in the presence of all the counsel involved in the trial.

 

(c)        The Barrister volunteered to accompany the Judge on the trip to Macau and said that he would instruct his secretary to obtain ferry tickets. Although the Statement of Facts is not clear as to this, we are prepared to assume for present purposes that the offer made by the Barrister to accompany the Judge to Macau, was made in the presence of the other counsel, in response to what the Judge had said to them during the recess.

 

(d)         The Barrister and the Judge travelled to Macau together On the Sunday of that weekend, returning to Hong Kong on Tuesday. While in Macau, the barrister and the Judge together gambled at the Macau Trotting Club, gambled at the greyhound races and at casinos, visited a show and had a massage in the sauna establishment of a hotel. On the evening of the first night in Macau, they shared a twin-room at their hotel.

 

(e)         Upon their return to Hong Kong, the trial resumed. Two further points must also be emphasised in fairness to the Barrister. First, he had made a prior agreement with the Judge that they would not discuss the ongoing trial during the trip to Macau and that the trip should not affect the outcome of the trial. For the purposes of these proceedings, we assume that this agreement was carried out and Mr. Fung does not suggest otherwise. Secondly, it was also agreed between the barrister and the Judge that all expenses incurred by them on the trip would be shared equally. "

9. Upon the basis of these findings the Committee was of the Opinion that the first complaint had been made out. It based its findings on the principle that the public viewpoint was of paramount importance. The report says -

"It is crucial to the administration of justice and to the reputation of the Bar (where it is affected) that in the due process of law, justice is seen by the public to be done by all those who participate in it. This necessarily includes barristers. By reason of the facts as outlined above, we are satisfied that justice was not seen to be done at the trial. We emphasize, in particular, the fact that this excursion to Macau was undertaken during the course of a trial, in which the barrister represented two of the Defendants and in which the Judge was the sole arbiter of fact and law. "

10. The Committee was prepared to accept, in favour of the respondent, that the arrangements between the respondent and the Deputy Judge were not made secretly and that the other counsel involved in the trial knew of the proposed trip to Macau. They were also prepared to accept that there was no evidence to suggest that any financial advantage accrued to either of them as a result of the trip to Macau.

11. Nevertheless, the Committee tools the view, with which we wholly agree, that there must have been a grave danger that a member of the public, had he come to know of the excursion and of the circumstances in which it took place, might have imagined that an undue influence was being brought to bear on the Deputy Judge by one of the counsel appearing before him in the course of a trial.

12. It is, as the Committee of inquiry expressed itself, and as was submitted to us by counsel who appeared on behalf of the Bar Committee, of the utmost importance, especially in our present circumstances, that public confidence should be upheld and strengthened in the proper and impartial administration of justice in the courts.

13. There must, we think, have been a significant risk that the conduct of counsel and of the Deputy judge, would injure that confidence. It was an act of folly for counsel and a Deputy Judge to have done what they did in the course of a trial, aggravated by the fact that money passed between counsel and the Judge in the court-house on their return from Macau. Although innocent in fact, this was something which would inevitably, had it been seen, have given rise to the gravest suspicions.

14. We do not, of course, wish it to be thought that social contact between Judges and members of the Bar is undesirable. Very much the reverse. The administration of justice works better if there is mutual confidence between the Bench and Bar, which can be greatly encouraged by personal relationships.

15. However, as in so many other situations, a line must be drawn and counsel and the Bench must always be aware of the danger that members of the public will misintepret social and personal contacts, if these are not undertaken in conditions of great discretion.

16. In particular, it is well recognized that Judges and counsel, while involved in a case, must be extremely careful, while it in progress, not to behave in such a way that it might be thought that counsel is in a position to influence the Judge outside court.

17. By any test, what happened on this weekend went far beyond the borderline drawn by good sense and need to avoid public misconception.

18. In determining the right course to be taken in relation to the respondent, we have been influenced by the view of the Bar Committee, which is that a censure of the respondent would be an adequate expression of displeasure at the respondent's conduct, a view with which the Attorney General, through his counsel, does not disagree.

19. We also take into account the fact that a Deputy Judge was involved in these transactions. Although we have not of course heard his version of events, he was, on the basis of the findings of the Committee, at least as culpable as the respondent though it is for the Chief Justice to consider what action, if any, should be taken in relation to the conduct of the Deputy Judge. Nevertheless, his presence and his active involvement must lessen the degree of culpability of the respondent.

20. In the result, we agree with submissions as to the appropriate penalty and order that the barrister concerned should be censured.

21. We will not order, under section 37(7) that there should be no Gazette Notice. We think that this is a matter of some public importance and that it should be known that the barrister has been censured. We, therefore, order that a Notice shall be published in the Gazette under that subsection in such terms as may be approved by the court, which will include the respondent's name.

22. We also order that the respondent shall pay the costs of proceedings, both before the Committee of Inquiry and before this Court, the costs to be taxed if not agreed.

23. In due course, this judgment will be circulated to the Bar, to the Law Society and to the respondent, with an indication that there is no objection to the Bar and Law Society circulating it to their members, though the judgment itself does not name the barrister.

24. We hope that, for the guidance of the Bench and Bar, the judgment will be included in the Hong Kong Law Reports.