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FAMV No. 43 of 2018
[2018] HKCFA 52
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 43 OF 2018 (CIVIL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 161 OF 2017)
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IN THE MATTER of the Application of “A” for admission as a Barrister of the High Court of the Hong Kong Special Administrative Region |
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IN THE MATTER of section 27 of the Legal Practitioners Ordinance (Cap 159) |
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Appeal Committee: Mr Justice Cheung Acting CJ, Mr Justice Ribeiro PJ and Mr Justice Stock NPJ
Date of Hearing and Determination: 6 November 2018
Date of Reasons for Determination: 28 November 2018
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REASONS FOR DETERMINATION
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Mr Justice Stock NPJ:
1. This case concerns an application for admission and enrolment as a barrister of the High Court of the HKSAR. It was a contentious application because in September 2010, the applicant[1] had been convicted by a magistrate after trial of indecent assault[2] and was thereafter sentenced to 14 days’ imprisonment. His appeal against conviction was dismissed as was his application to this Court for leave to appeal.
2. Upon the hearing of the application in the Court of First Instance the issue was whether, in the light of the conviction and sentence and subsequent events, the applicant could satisfy the Court that he was a fit and proper person to be a barrister.[3] The Bar Council did not oppose the application. The application was, however, opposed by the Secretary for Justice. By a judgment dated 16 June 2017, the Motion seeking admission to the Bar was dismissed.[4]
3. The applicant appealed to the Court of Appeal where the stances of the Secretary for Justice and of the Bar Council remained the same as before. On 10 May 2018, the Court of Appeal allowed the appeal, set aside the decision of the Judge and granted an order admitting and enrolling the applicant as a barrister of the High Court.[5] The Court of Appeal subsequently dismissed the motion by the Secretary for Justice seeking that Court’s leave to appeal to this Court on the basis of suggested questions of great general or public importance.[6]
4. Application was then made by the Secretary for Justice to this Court for leave to appeal from the judgment of the Court of Appeal of 10 May 2018 on the ground that the appeal involves questions of great general or public importance and on the “or otherwise” limb.[7] The questions suggested for determination by this Court were:
(1) In determining whether a person is a fit and proper person to be admitted as a barrister of the High Court in Hong Kong under section 27(1) of the Legal Practitioners Ordinance (Cap 159), what is the proper approach of the Court where the applicant has been convicted after trial of a criminal offence resulting in an immediate custodial sentence and has never thereafter displayed any remorse over his criminal conduct.
(2) Whether admission, in such circumstances, must be exceptional and dependent upon the applicant establishing a genuine and complete reformation of character supported by cogent and compelling evidence to demonstrate that the person has remediated.
(3) What are the expectations of the community of Hong Kong on the standards and integrity of the Hong Kong Bar, and whether public confidence in the profession and administration of justice should be accorded substantial weight in such an admission application.
5. On 6 November 2018, having heard submissions on behalf of the Secretary for Justice, the applicant and the Hong Kong Bar Association,[8] we refused leave and said that we would provide reasons later. These are our reasons.
6. The first and second questions posed identify an issue about which the Judge was particularly exercised, namely, the applicant’s insistence on his innocence even after the conviction. Reports prepared for the purpose of sentencing spoke well of the applicant, who was a person of hitherto good character, but noted that he maintained his innocence, a stance which also emerged from other material. It seems apparent from the judgment at first instance that the Judge concluded that the applicant’s failure to acknowledge guilt was necessarily inconsistent with any assertion of rehabilitation and was a failure the significance of which could not be outweighed by whatever might favourably be said for the applicant.[9]
7. Whilst recognising that an appellate court should be slow to interfere with value judgments made by an individual judge, the Court of Appeal disagreed in principle with the Judge’s approach to the question of rehabilitation. The Court accepted that whether an applicant had reformed himself was indeed a relevant consideration but said that it was “not immutable that the process of rehabilitation must be accompanied by a public admission of guilt. Depending on the circumstances, a long period of honest and responsible living since the conviction may also serve as evidence of rehabilitation” in which connection cogent evidence from a pupil master would normally carry substantial weight, and evidence touching upon the character and integrity of an applicant could also be gleaned from other sources.[10] In this regard, the Court noted various favourable references which had been produced and positive assessments by pupil masters, one of whom, a senior member of the Bar with whom the applicant had served six months pupillage, spoke highly of him and expressed the view that he had managed to rehabilitate himself.[11]
8. There were other considerations which, in the Judge’s opinion,weighed against the applicant, in respect of which the Court of Appeal said the Judge had erred in principle, but it is not necessary for present purposes to rehearse these points of difference.[12] Having examined various testimonials as well as reports prepared for sentencing purposes, and taking all the circumstances into account, the Court allowed the appeal.
9. In advancing this application for leave to appeal, the Secretary for Justice was very properly motivated by a concern that high standards of integrity by members of the legal profession be maintained. Mr Pao SC, for the Secretary for Justice, rightly emphasised that the maintenance of those standards is a matter of public interest and he pointed out that this Court has not previously had an opportunity to provide authoritative guidance on certain aspects of the meaning of “fit and proper” in the context of a person with a criminal conviction who seeks to be admitted to the legal profession.
10. Common to the arguments in the Court of First Instance and the Court of Appeal were principles extracted from a number of authorities most particularly Re M;[13] Ziems v The Prothonotary of the Supreme Court of New South Wales[14] and Re Youh Alan Chuen Po.[15] It seems apparent that the principles established by those cases were approved by the Judge and the Court of Appeal.[16]
11. The Court of Appeal emphasised that each case must depend on its own facts and suggested a number of considerations as relevant to such applications.[17] Whilst we agree with Mr Pao that the maintenance of high standards of integrity at the Bar is a matter of great significance and that any application for admission to the legal profession by a person who has been convicted of a criminal offence which has attracted a sentence of imprisonment demands the most anxious consideration, we found it difficult to envisage what guidance this Court might usefully provide beyond, and different from, the guidance provided by the Court of Appeal, which does not appear to us to be open to valid objection. In particular, we do not read the judgment of that Court as minimising the relevance of reformation or as suggesting that the fact of an applicant having served a term of imprisonment is anything other than highly relevant and a serious fact to which to have regard.
12. Under the “or otherwise” limb of the application for leave to appeal, it was suggested that whether the applicant was rightly or wrongly admitted to the Bar was itself a matter of sufficient importance to warrant the granting of leave and in this regard it was contended that the Court of Appeal exceeded the boundaries of permissible appellate intervention in the exercise of a judicial discretion. However, the Court’s decision, if correct, that the Judge erred in principle, entitled it to substitute its own discretion and we did not think it reasonably arguable that the Court of Appeal was wrong.
13. For these reasons, leave to appeal was refused.
14. An agreement has been reached as to costs and in light of that agreement, an order is made by consent that the Secretary for Justice will bear the applicant’s solicitors’ costs of this application for leave to appeal, to be taxed if not agreed.
| (Andrew Cheung) |
(R A V Ribeiro) |
(Frank Stock) |
| Acting Chief Justice |
Permanent Judge |
Non-Permanent Judge |
Mr Jin Pao SC, instructed by the Department of Justice, for the Secretary for Justice (Applicant)
Mr Clive Grossman SC and Ms Alice Lau, instructed by Kenneth Lam Solicitors, for the Applicant (Respondent)
Mr Robert Pang SC and Mr Richard Yip, instructed by Anthony Chiang & Partners, for the Hong Kong Bar Association
[1] In these Reasons, ‘the applicant’ to whom reference is made is, for the sake of convenience, the applicant who applied for admission to the Bar and not the Secretary for Justice whose application for leave to appeal is the subject of these Reasons.
[2] s 122(1) Crimes Ordinance, Cap 200.
[3] s 27(1) Legal Practitioners Ordinance, Cap 159.
[4] Anthony Chan J, [2017] 3 HKLRD 763.
[5] Lam VP, McWalters and Poon JJA, [2018] 2 HKLRD 1245.
[6] 30 July 2018.
[7] s 22(1)(b) Hong Kong Court of Final Appeal Ordinance, Cap 484.
[8] The application for leave was opposed by the applicant and by the Bar Association.
[9] CFI Judgment at [76].
[10] CA Judgment at [22 (c), (d), (e) and (f)].
[11] Ibid at [32] to [36].
[12] Ibid at [26] to [30].
[13] [2005] 2 NZLR 544.
[14] (1957) 97 CLR 279.
[15] [2013] 2 HKLRD 485.
[16] We note, however, that in so far as the Judge at first instance, at paragraph 41(2), extracted from Re M the proposition that “the personal and professional sides of a person’s conduct cannot be disassociated” (see also paragraph 20 of the Court of Appeal’s judgment), that is an error: see Re M at [20] and Ziems at p 290.
[17] CA Judgment at [22].
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