HONG KONG BAR ASSOCIATLON v. NORMAN PERSAUD

IN THE COURT OF APPEAL

1987 No. MP389

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. The respondent's application by way of notice of motion for an order that the decision and order of a differently constituted division of this Court dated 17 March 1987 that he be struck from the Roll of Barristers be set aside was dismissed on 1 December. We now give our reasons.

2. On 17 April 1986 the Chief Justice appointed a Committee of Inquiry to enquire into certain complaints that had been laid against the respondent by the Bar Committee of the Bar Association in respect of his professional conduct. The hearing of the inquiry took place over 34 days between 23 September and 13 December 1986. In the course of the hearing the Bar Committee called four witnesses and submitted three bundles of documents. The respondent cross-examined the witnesses at length and gave evidence on his own behalf. The final submissions of the parties concluded on 13 December.

3. The Committee of Inquiry prepared a full and carefully reasoried report dated 7 January 1987 and consisting of 60 pages. On receipt of the report the Chief Justice, pursuant to section 37 of the Legal Practitioners Ordinance Cap. 159 ("the Ordinance") in the form in which it stood at the relevant time, caused the matter to be set down for hearing before this Court on 17 March 1987.

4. Section 37, as it then stood, read as follows:

"37. Powers of the Court of Appeal

(1) Where a report is forwarded to the Chief Justice under section 35(1)(b) the Chief Justice shall cause the matter to be set down for hearing before the Court of Appeal and the Registrar shall give not less than 14 days' notice of the date of such hearing to the barrister concerned, to the Attorney General and to the Bar Committee and at the same time shall forward to each a copy of the report of the Committee of Inquiry.

(2) At a hearing set down under subsection (1)-

(a) the Bar Committee shall be the Applicant and shall move the Court of Appeal to take disciplinary action against the barrister concerned upon the findings of fact and law of the Committee of Inquiry;

(b) counsel may appear on behalf of the barrister concerned and the Bar Committee may be represented by counsel or by the Attorney General.

(3) The Court of Appeal shall at such hearing consider the report of the Committee of Inquiry and such submissions upon the findings of fact and law of the Committee of Inquiry as may be made on behalf of the Bar Committee and the barrister concerned and may call for the original record of the evidence taken and any document put in evidence before the Committee of Inquiry.

(4)The Court of Appeal may, upon special grounds being shown, consider any additional evidence not adduced before the Committee of Inquiry.

(5) Every hearing under this section shall be in camera unless, and to the extent to which, the Court of Appeal may otherwise direct.

(6) On completion of the hearing the Court of Appeal may-

(a) censure the barrister; or

(b) suspend him from practising for such period as it may specify; or

(c) order that his name be struck off the roll of barrister; or

(d) make such other order as the Court of Appeal may think fit.

(7) Any order made under subsection (6) shall be published in the Gazette unless the Court of Appeal shall otherwise direct, and may be published in such manner as the Court of Appeal may direct."

5. When the Supreme Court bailiff attempted to serve the notice of hearing and a copy of the report of the Committee of Inquiry on the respondent at his Chambers he was unable to find him. He therefore left a copy of those documents with a Miss Tong, who had been the respondent's secretary, at her address, and a further copy at the address of the respondent's Chambers. At neither address did anyone admit knowing where the respondent was.

6. An order was also made for substituted service on the respondent by means of an advertisement in a newspaper and such notice appeared in the South China Morning Post on 2 March 1987.

7. When the matter came on for hearing before this court on 17 March 1987 the respondent's name was called in the precincts of the Court but the respondent failed to respond. The hearing then proceeded in his absence. At its conclusion this Court found that the charges which the Committee of Inquiry had found to be established were of so serious a nature that the only appropriate order was that the "respondent's name should be struck from the Roll of Barristers. It further ordered that the costs, both of the Committee of Inquiry and of the hearing before the Court, be paid by the respondent.

8. The applicant now asserts that he "abandoned" the Committee of Inquiry hearing on 13 December 1986, gave notice to the Hong Kong Bar Association on 17 December that he had closed his Chambers and no longer wished to practise in Hong Kong, and left Hong Kong by air for South Africa on the evening of 17 December. He contended that he did not receive notice of the hearing fixed for 17 March or a copy of the report of the Committee of Inquiry, and that the failure to effect service of these documents on him personally was a breach of section 37 of the Ordinance. Moreover, since he was not present in the jurisdiction at the relevant time, and personal service therefore not possible, there was no power to order substituted service. The order of the Court on 17 March was therefore "irregular" and should be set aside.

9. During the course of the present hearing the respondent stated that, having 'abandoned' the enquiry, he gave notice over the telephone on 17 December 1986 to a person whose identity he is unable to recall "but was probably one of the secretaries", that he had closed his Chambers and no longer wished to practise in Hong Kong. The gist of his explanation is that it was his belief that his "abandonment" of the inquiry on 13 December 1986 and his "notice" to the Bar Secetariat that he no longer wished to practise in Hong Kong effectively terminated the inquiry and rendered it impossible for there to be any hearing under section 37. His own words were, "Section 37 could no longer be triggered because I no longer continued to practise in Hong Kong. I had no intention of evading proceedings under section 37." The absurdity of this explanation is self evident.

10. On 18 July 1993, more than five years after the order of this Court, the respondent sent a letter to the Chief Justice enclosing what purported to be an ex parte application for leave to appeal to the Privy Council to have the decision and order of this Court dated 17 March 1987 set aside. By a letter dated 29 July 1992 the Registrar notified the respondent, who was then living in Birmingham, that there was no provision in the Order in Council regulating appeals from the Supreme Court or Court of Appeal for Hong Kong to the Privy Council which permitted the proposed procedure, and that any application must be made before the Court of Appeal.

11. On 21 August 1992 the respondent gave notice that he intended to apply to Her Majesty in Council for special leave to appeal against the order of 17 March 1987. On 8 October 1992 the respondent's application seeking special leave to appeal out of time against the decision of this Court disbarring him from the Hong Kong Bar was dismissed with costs. No reasons were given for the dismissal. We therefore do not know which of the following three arguments advanced by counsel for the Hong Kong Bar Association formed the basis of their Lordship's decision:

(a) That the respondent had failed to lodge his petition "with the least possible delay after the date of the judgment from which special leave to appeal is sought" in accordance with section 5 of the Judicial Committee (General Appellate Jurisdiction) Rules Order 1982,

(b) That the respondent had failed to comply with the requirement of section 8 of that Order to lodge with his Petition a Certificate of Counsel confirming that the Petitioner has "reasonable ground of appeal", and

(c) That in accordance with the decision of the Privy Council in Walker v. Walker [1903] AC 170, a petition for leave to prosecute an appeal in forma faupecis will not be entertained where the Court below has power to grant leave on the usual conditions, unless in the first instance an application for leave to appeal has been made within due time to the court from which it is proposed that the appeal should be brought.

12. It seems clear, however, that the application was dismissed on the ground that it was incompetent. We mention this because it initially occurred to us, and formed one of the arguments advanced by Mr. Griffiths for the Hong Kong Bar Association, that in the light of the dismissal by their Lordships of the respondent's application, the present application is an abuse of the process of this Court.

13. We think that it is likely that their Lordships dismissed the application before them on the purely technical basis that, owing to the respondent's failure to apply first to this Court for leave to appeal, it was incompetent and should therefore have not come before them.

14. We are therefore not disposed to treat the present application as one that concerns a matter which their Lordships can properly be said to have finally disposed of. It follows that the application now before us falls for determination on other grounds.

15. We think it only fair to say, however, that the primary basis on which Mr. Griffiths sought to attack the application was that this Court is functus officio and has no jurisdiction to set aside or vary its order of 17 March 1987.

16. Mr. Griffiths referred to Order 35 rule 2 of the Rules of the Supreme Court which states:

"2. Judgment, etc., given in absence of party may be set aside (0.35 r.2)

(1) Any judgment, order or verdict obtained where one party does not appear at the trial may be set aside by the Court, on the application of that party, on such terms as it thinks just.

(2) An application under this rule must be made within 7 days after the trial."

17. He submitted that this rule had no application to the proceedings before this Court in 1987 for the simple reason that they were not "a trial" within the meaning of the rule. The word "trial" is not defined in the Supreme Court Ordinance (Cap. 4) or in the Rules of the Supreme Court, but its meaning in rule 2 must be determined in the context of the words "trial of the action" in rule 1. Even if, contrary to that submission, the proceedings came within the meaning of "a trial", the respondent had failed to make application within the period of 7 days prescribed in paragraph 2 of rule 2 to have it set aside.

18. Mr. Griffiths readily conceded that, as was decided as long ago as 1903 in Schafer v. Blvth [1903] AC 140, this Court has a discretion to enlarge the time appointed by that rule, but contended that, assuming that the proceedings were "a trial", the discretion should not be exercised where the delay is inordinate and inexcusable, such as that of six years in the present case. Even on the respondent's account of the history of events he must have known of the 1987 decision of this Court some time prior to 21 May 1990 on which date a hearing before a Disciplinary Tribunal of the Council of the Inns of Court, and attended by the respondent, commenced. That hearing concerned the same conduct which formed the subject of the inquiry by the Committee of Inquiry and resulted in the order of this Court in 1987.

19. We have no doubt that the respondent's application is incompetent. By no stretch of the imagination can it be said that the hearing, before this Court in 1987 was "a trial". There is no basis in law, statutory or otherwise, on which the respondent can properly apply to this Court to set aside its earlier order.

20. That is sufficient to justify the rejection of this application. However, we think it proper to add that, that reason aside, the application is totally unmeritorious. Section 37 of the Ordinance did not require that notice of the hearing before this Court and a copy of the report of the Committee of Inquiry be served personally on the respondent. All that was required was that these documents be forwarded to him. By leaving Hong Kong at the conclusion of the inquiry without notifying the Bar Secretariat of his intended address, the respondent rendered it impossible for personal service, even if it had been required, to be effected. It is clear that the Bar Association was completely unaware of the respondent's whereabouts. On 9 January 1987 it sent to him at the address of his former secretary a letter informing him that it understood that he was no longer the tenant of 1132 Prince's Building, that he had not notified the Bar Secretariat of his new Chambers address, and drawing his attention to rule 25 of the Bar Code of Conduct.

21. We reject the respondent's contention that it was obligatory for the Registrar to telephone the office of every airline and shipping company to discover whether he had left Hong Kong. Assuming, first, that the Registrar had been aware of the respondent's absence from Hong Kong and had made those enquiries, and, secondly, that those to whom the inquiries were made had been willing to provide information, the most that he would have learned was that the respondent had departed for South Africa.

22. Moreover, the respondent concedes that he received in South Africa the letter of 9 January 1987 from the Bar Association and that he replied by letter dated 15 February 1987 stating that, as he no longer wished to continue to practise in Hong Kong, he had closed his Chambers at 1132 Prince's Building on 17 December 1987, and requesting that his name be removed from the roll of practising barristers as soon as possible. Not only did the respondent fail to disclose in that letter the address at which he was residing, but he gave no indication that he was living in South Africa or, indeed, that he had left Hong Kong. Significantly, however, he gave as his address that of his former secretary - the address to which one copy of the necessary documents for the hearing before this Court was subsequently delivered. By providing that address it is clear that he intended that any further correspondence from the Bar Association should be directed to him there.

23. Although, for the purpose of fulfilment of the requirement of section 37 it was unnecessary to do so, copies of the requisite documents were left at the applicant's Chambers, and substituted service by way of an advertisement in the South China Morning Post was effected. In the light of our conclusion that service of the documents at the address given by the respondent in his letter of 15 February 1987, was sufficient compliance with the requirements of section 37 of the Ordinance, his submission that there was "no jurisdiction" to order substituted service becomes an irrelevant issue. We have no doubt, however, that, notwithstanding that there is no reference in the Ordinance to substituted service, this Court has an inherent jurisdiction to make an order for it in a case such as this.

24. The application is dismissed with costs.