BAR COUNCIL OF THE HONG KONG BAR ASSOCIATION v. A BARRISTERS DISCIPLINARY TRIBUNAL APPOINTED UNDER SECTION 35A OF THE LEGAL PRACTITIONERS ORDINANCE (CAP 159)

HCAL 159/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 159 OF 2014

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D E C I S I O N

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1.  The parties to the proceedings by joint application seek an order by consent that the application for judicial review be withdrawn and there be no order as to costs of the application for judicial review and of the consent summons.

2.  On 3 March 2015, I granted the Bar Council, the applicant, leave to judicially review the decision of a Barristers Disciplinary Tribunal.  I found that the grounds advanced by leading counsel on behalf of the Bar Council were reasonably arguable.  See Re A Barrister [2015] 2 HKLRD 150.  Upon leave being granted, the respondent indicated it would take a neutral stance, whilst the interested party indicated he would participate in the proceedings.

3.  On 26 August 2015, a consent summons was issued by the respective solicitors for the applicant and the interested party for an order by consent that the judicial review be withdrawn and no order as to costs.  Nothing further was filed with the Court. 

4.  By my direction dated 28 August 2015, the parties were requested to comply with the requirements in paragraph 23(1) of the Practice Direction SL-3 which reads:

“Where parties are agreed as to the terms on which applications for judicial review can be disposed of, and require an order of the Court to put those terms into effect, they should file a draft consent order, together with a short statement signed by the parties’ solicitors setting out the matters relied upon as justifying the making of the order, and citing the relevant authorities and statutory provisions. The order and the statement will then be submitted to a Judge. If he is satisfied that such an order can be made, the proceedings will be listed for hearing and the order will be announced in open Court without the parties or their representatives having to attend. If the Judge is not satisfied that such an order can be made, the proceedings will be listed for hearing in the normal way.”

5.  In response to my direction, on 17 September 2015, a joint statement was submitted in the following terms:

“1. Having received representations from Counsel for the Interested Party, and having considered the exceptional and unprecedented nature of these proceedings, and also having been properly advised, the Applicant had convened a meeting on 23 July 2015 and in the same meeting formally resolved not to continue with these proceedings;

2. Hence, the Applicant and the Interested Party (with the Respondent having indicated no intention to participate in these proceedings by letter dated 15 April 2015), by consent, discontinue these proceedings under the Rules of the High Court (Cap. 4A), Order 21 Rule 2(4) in terms of the Consent Summons filed with the Court on 26 August 2015.”

6.  On 25 September 2015, I made a further direction that a hearing be held for the parties to address me on the requirements of the Practice Direction and the form of the short statement in the present case. 

7.  As required by the Practice Direction the parties in seeking a consent order from the Court to dispose of the judicial review need to provide a short statement setting out the matters relied upon as justifying the making of the order and citing if necessary any relevant authorities and statutory provisions.  This is required so that the Judge from whom the order is sought can be satisfied that such an order can be made, and if he is not so satisfied then the proceedings are to be listed for hearing in the normal way. 

8.  In the commentary of Hong Kong Civil Procedure 2016 in relation to the relevant order of the Rules of Court, Order 53, at paragraph 53/14/55, it is stated that an application for judicial review is something more than a legal suit between parties and there is a public interest in the disposal of applications for judicial review without a hearing when an order may be made concerning an inferior court, tribunal or public body.  Parties by consenting to a particular course, should not by doing so, dictate to the Court how it should exercise its discretionary jurisdiction once it has been commenced, for the Court still had to satisfy itself that the relief sought was justified on the case established before it.

9.  As I observed in my direction to the parties, these comments seem to be directed to situations where an order is made in relation to a matter where a Court needs to be satisfied that the order is just and appropriate bearing in mind the interests of the parties and any wider public interest that may be also relevant to the case.  It will always remain for the Court to satisfy itself that the relief sought is justified on the case established before it even though it is in effect unopposed.  I pointed out that in the present case the consent order is to withdraw the proceedings however this review had reached the stage where leave had been granted after a considered decision had been made by the applicant to make the application for leave by listing a number of grounds which had been supported by comprehensive and detailed written argument which was elaborated upon in oral argument at the leave hearing.  I also pointed out that the subject matter of the review raised issues in relation to the professional conduct of a barrister in the context of a criminal trial and therefore sought to have addressed matters that were obviously of importance to the public interest. 

10.  In Law Yiu Wai, Ray v The Medical Council of Hong Kong & Ors, HCAL 46/2015, 12 October 2015, unreported, I discussed generally the underlying principles of the Practice Direction.  I noted that the purpose of the short statement was to ensure that the order sought could be properly and justly made.  I explained that a Court is not a rubber stamp and whenever it makes an order by consent of the parties or after a contest between them it does so because it is just and appropriate. That means not only necessarily taking into account the interest of the parties but also any wider public interest that may be relevant to the case.  Hence, a short statement should provide sufficient reasons and circumstances that would justify and legitimise the order of the Court.

11.  On 6 October 2015, a supplemental joint statement was submitted by the parties in accordance with the Practice Direction. So far as material it read:

“1. In light of the Court’s directions dated 25^th September 2015 (“Directions”), the parties have come to agreement that that the “Representation” referred to in the “Joint Statement Pursuant to Paragraph 23(1) of Practice Direction SL3 and Order Dated 28 August 2015” dated 17^th September 2015 be provided to the Court for his Lordship’s further consideration.

2. The Representation is now annexed to this statement.

3. The parties both invite the Court to re-consider the Directions and decide whether a hearing to address the issues highlighted by the Court therein is still necessary.

…”

12.  It would appear from the original and supplemental short statements that the Representation by counsel on behalf of the interested party to the Bar Council was the basis for its decision agreeing with the interested party to withdraw the application.

13.  The Representation is dated 21 July 2015 and was tabled at Bar Council meeting on 23 July 2015.  It makes various representations as to why the application should be withdrawn and it is appropriate that I provide a brief summary of them. 

14.  It was requested that the Bar Council should not continue with the judicial review in light of the decision of the Court of Appeal (Barma, Macrae and McWalters JJA) in Wong Kam Kuen, Catherine v The Bar Council, CACV 174/2014, 30 June 2015, unreported, which concerned another counsel who was involved in the same case as the interested party where she took the same course of action as he did not to call a particular witness.  The Court held that her advice to do so was correct as a matter of law.  It was submitted that the Court’s decision was directly relevant to the interested party’s case as it held in that case that counsel’s own professional advice and decision not to call the witness was correct as a matter of law, and therefore did not involve any negligence or breach of professional duty on her part.  It was contended on behalf of the interested party that it would follow that his decision not to call this particular witness was equally correct as a matter of law so that there was no question of his conduct resulting in any substantive injustice to his client. 

15.  Counsel for the interested party pointed out that the Bar Council’s application for judicial review was an exceptional remedy as there is no right of appeal against an acquittal by the Bar Disciplinary Tribunal.  It was submitted that in these circumstances the jurisdiction should only be invoked by the Bar Council in the clearest and most compelling cases and that in light of the Court of Appeal’s decision in Wong Kam Kuen, Catherine this case did not fall into that category.  

16.  It was argued that there were two principal reasons for this.  First, the decision by the interested party not to call a witness for the defence was not unreasonable or negligent in light of the Court of Appeal’s decision in Wong Kam Kuen, Catherine.  It was noted that the original Court of Appeal decision that quashed the conviction of the interested party’s client was based on a finding that the interested party was guilty of flagrant incompetence in failing to call the witness and that it had reached its finding without offering the interested party an opportunity to be heard on the reasons for his decision.  It was submitted that the finding of flagrant incompetence had been effectively reversed by the Court of Appeal in Wong Kam Kuen, Catherine where it was decided that it was right not to call the witness after hearing argument as to the strong tactical risks of calling the witness, and as to the very limited benefit to the defence of calling him, if any. 

17.  Secondly, the alternative complaint that the interested party should have consulted and advised his client or at least advised him more fully before deciding not to call the witness, was not made out in the circumstances of the present case.  It was submitted that no duty arises where counsel reasonably forms the view that a particular witness was not in fact exculpatory, or would not, in the end, assist the defence case, and might in fact damage it.  It was pointed out that this was the position that was found by the Tribunal in the intended party’s case that he in fact had no duty to consult the client on this particular decision.  Cited as authority was the passage from the Court of Final Appeal case of Chong Ching Yuen v HKSAR (2014) 7 HKCFAR 126 referred to by the Court of Appeal in Wong Kam Kuen, Catherine at paragraph 45. 

18.  It was stated that the Court of Appeal decision made the point that the law might be developing and changing so as to require a greater degree of consultation from counsel, but it was argued that it was not appropriate to invoke the possibility of a change in the law to justify the judicial review application which in effect was an appeal against an acquittal for disciplinary misconduct.  It was further argued that this case on a sensible appraisal was not one where the decision of the Tribunal was Wednesbury unreasonable or an obvious error of law. 

19.  My reading of the Court of Appeal’s judgment in Wong Kam Kuen, Catherine does not accord with the suggestion that it was saying that the law was developing and changing so as to require a greater degree of consultation from counsel. 

20.  The judgment of the Court of Appeal was given by Macrae JA who at paragraph 40 explained it was not an issue in that case that the appellant failed to advise her client at all about the relevance and significance of the witness’s evidence and that she considered it necessary to at least discuss with her client the advantages and risks of calling the witness and to explain why she considered his evidence ultimately to be unhelpful to what she conceived to be the real issue in the case. 

21.  Macrae JA, in paragraph 44, addressed the contention that counsel’s autonomy and discretion when conducting a criminal trial cannot be contained or qualified unless and until his instructions were withdrawn, and that this would encompass not only decisions made in the conduct of the trial but also advice (or, perhaps, the lack of it) given to the lay client in the course of the proceedings.  In the subsequent paragraphs, he made certain observations about the argument.  He quoted a passage from Chong Ching Yuen where Sir Thomas Eichelbaum NPJ at 142J discussed the conduct of counsel in relation to an allegation of flagrant incompetence by counsel conducting a criminal trial and during the course of his discussion he referred to the cases of Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914 and Rondel v Worsley [1969] 1 AC 191. 

22.  Macrae JA explained that whilst they agreed with the statements of principle in the authorities so far as they delineate as a general rule the authority and discretion of counsel in his conduct of a criminal trial, they would add an important caveat which was that times have changed considerably since 1967 when Rondel was decided, let alone 1876 when Batchelor was decided. 

23.  Macrae JA added at paragraph 46:

“Litigants are far more educated today than they were over a century, or even a generation, ago as to their rights and entitlements generally and in their expectations specifically of the performance and professionalism of those acting on their behalf. Equally, professionals are far more conscious of their clients’ knowledge of their rights and entitlements and, as a result, far more aware of their clients’ expectations.”

24.  He explained that the sea change in public awareness and education had been accompanied and encouraged by the enactment of legislation addressing individual rights and matters of fairness.  He noted by way of obiter at paragraph 48:

“These developments and changes in legislation and public awareness have at the same time also resulted in a greater expectation by the public and practitioners alike of the need for judges and tribunals to give reasons and to account for their decisions. It would be strange if counsel were to remain exempt from these same trends and influences so far as advising and, in appropriate circumstances, explaining and discussing their advice with their clients.”

25.  Macrae JA pointedly stated at paragraph 49 that this greater awareness of rights and expectations by the general public had been accompanied by a greater vigilance by professional bodies in upholding the professional standards of their members.  He was not, in my view, suggesting a possibility of change in the law, but in fact recognising that it had changed and that counsel should appropriately note the Court of Appeal’s observations in relation to counsel’s autonomy and discretion and the increased obligations on them in dealing with clients.  The obiter comments of Macrae JA should not go unheeded. 

26.  It was also submitted by counsel on behalf of the interested party that he had been subjected to a prolonged ordeal since the complaint was made against him back in 2010 and given the recent Court of Appeal decision it would be harsh and oppressive to continue with the judicial review application.  This was particularly the case now that the decision of the intended party not to call the witness had been vindicated by the Court of Appeal and that his former client would now be seen to have been very fortunate to have had his original conviction quashed.  In consequence, it was submitted that the intended party’s former client had no legitimate complaint that he suffered any injustice as a result of the intended party’s decision not to call the witness which was entirely justifiable.

27.  From the original and supplemental short statements it would appear that the Bar Council has accepted the representations from counsel for the interested party and as a result decided not to continue with the judicial review. 

28.  In light of the foregoing, I make an order by consent of the parties that the application for judicial review be withdrawn with no order as to costs.