LEUNG SZE HO ALBERT v. THE BAR COUNCIL OF THE HONG KONG BAR ASSOCIATION

HCAL 63/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 63 OF 2014

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D E C I S I O N

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I. INTRODUCTION

1.  This is an application for judicial review of the refusal by the Bar Council of the Hong Kong Bar Association to give permission to the applicant, then a practising barrister, to engage in neuro-beautology as a supplementary occupation.  The applicant relies upon two grounds for judicial review: first, that paragraph 23 of the Code of Conduct of the Bar of the Hong Kong Special Administrative Region (“Code of Conduct” or simply “Code”), pursuant to which the Bar Council’s decision was made, is itself unlawful as being in infringement of Article 33 of the Basic Law and, secondly, that the Bar Council has failed to give adequate reasons for its refusal.  Where the meaning is clear from the context, I shall refer below to paragraph 23 of the Code of Conduct simply as “paragraph 23”, and to Article 33 of the Basic Law as “Art. 33”.

II. THE FACTUAL BACKGROUND

2.  The applicant was called to the Hong Kong Bar in 2005.  He had worked as an employed barrister since September 2005.  On 1 January 2014, he resumed private practice at the Bar and became a full tenant in a set of chambers, having entered into a fixed-term contract with the set expiring on 30 June 2015 pursuant to which he had to pay a monthly contribution of $9,000 for rent and secretarial services.

3.  In March 2014, the applicant completed a course for “Professional Certificate in Neuro-Beautology” with an institution called “International Naturopathic College”, operated by International Naturopathic College, Limited, which is a company incorporated in Hong Kong in 2002.

4.  By a letter dated 5 March 2014, the applicant applied to the Bar Council under paragraph 23(3)(a) of the Code of Conduct for permission to engage in Neuro-Beautology as his supplementary occupation.  The letter set out a link to a website for information about Neuro-Beautology. Certain print-outs of the website have been put in evidence in these proceedings, containing the following explanations of the International Naturopathic College:

“Brief Introduction

International Naturopathic College, Limited

International Naturopathic College, Limited was founded in 2002. It takes promoting Naturopathic education in Chinese as its responsibility. Through several years’ negotiation and research, this college made agreement with different institutes and colleges in the world and set up a series of naturopathic medicine courses taught in Chinese and with International certificate in Hong Kong. It is a great breakthrough in the education of naturopathic medicine.

Principle

To promote preventive medicine with professional and universal education, to encourage students understand [sic] preventive medicine, and moreover to apply preventive medicine for treating others”

and of the Professional Certificate in Neuro-Beautology:

“ ‘Professional Certificate in Neuro-Beautology’ was formally introduced to Hong Kong by International Naturopathic College in 2006. In 2008, the relevant course was presented, demonstrated and promoted in various districts in Hong Kong. “Neuro-Beautology” is one type of Naturopathy which adjusts body gestures in a painless, effective and non-invasive way. It is a professional technique and technology that brings immediate improvement effects. The relevant technique is to efficiently correct distorted body structure through simple spine and pelvis adjustment techniques with the aim of removing or improving humpback, discomfort due to spine, thick waist, lopsided shoulders, legs of different lengths, uneven breasts sizes, neck wrinkles etc. based on skeletal nerve reflexivity. The most incredible thing about this course is that anyone can apply for this course no matter what age you are, whether you have a professional or related background or not. Regardless of the education level, one can apply for this course to acquire a skill.

Qualified professional graduates in ‘Neuro-Beautology’ will utilize this technique to integrate or apply in medical, health care and beauty business or treatment, forming a new programme for overall health, beauty and health care with immediate effects so as to increase the competitiveness within the industry.  This is also beneficial to the developments of new markets and new sources of customers.  In addition, many graduates become Neuro-Beautologist either by establishing their own business or partnership to provide professional Neuro-Beautology services to the public.”

5.  On the same day, the Bar Secretariat replied to the applicant, asking for details of (a) the nature of work in the proposed supplementary occupation; (b) the time to be spent in terms of number of hours per week or month; and (c) the remuneration expected.  The email stated that these details had to be supplied before the matter could be considered by the Bar Council.

6.  The applicant replied on the same day.

(1) In relation to the nature of work, he stated that the nature of work is in the field of natural medicine.  He attached a print-out from the website previously mentioned, adding that a person who practises neuro-beautology is ordinarily called a “body figuring practitioner”.

(2) As to the time to be spent, the applicant stated he intended to practise neuro-beautology as his supplementary occupation on a freelance basis.  The time normally spent for each client per session was about an hour, with the first session possibly taking longer because of the need to explain “the procedure and aftercare”.

(3) As for remuneration, the applicant stated that the price charged to each client is normally fixed for each session and that he believed that the price for neuro-beautology service in Hong Kong was currently in the range from $3,800 to $5,000 per session.

7.  On 6 March 2014, in reply to a question, the applicant further stated to the Bar that he undertook not to spend more than 17 hours a week in the supplementary occupation.

8.  Meanwhile, the Honorary Secretary of the Bar Council, having visited the website referred to by the applicant, was not impressed by the International Naturopathic College, which he found was registered only as a private company in Hong Kong, or by the fact that the course attended by the applicant only required secondary education as an entrance requirement which could be waived by the college.  The Honorary Secretary found that the college offered various short courses leading to certain qualifications of various descriptions, which seemed to him to be akin to cosmetic therapy or treatment.  He observed that those who completed the course attended by the applicant were said to be able to give treatment to correct spinal or pelvic deformity or asymmetry so as to eliminate or improve kyphosis and wrinkles around the neck or to achieve effects such as breast augmentation, slimming of the waist and correction of spinal problems.  Overall he was left with considerable reservations on the professional standing of the college, of the “International Naturopathic Medicine Association” (of which holders of the certificate held by the applicant are apparently eligible for membership), of the professional certificate held by the applicant and, ultimately, of body-figuring practitioners generally.  In the Honorary Secretary’s view, the issue also arose as to whether the claims of the ability to correct spinal or pelvic deformity or achieve breast augmentation might have engaged relevant laws regulating the medical and related professions.

9.  At its meeting on 6 March 2014, the Bar Council, to whom the Honorary Secretary had reported his findings, took the view that the applicant’s intended supplementary occupation was “not compatible with his practice as a barrister, primarily by reason of its nature and lacking in professional standing”.[1] The minutes of the meeting recorded as follows:

“The Hon Secretary said that there were two issues for consideration: (1) the proposed time spent was 17 hours per week which was way above what the Bar Council could accept, and (2) the compatibility of this supplementary occupation to practice as a barrister. He said that when … asked to give more details of the intended supplementary occupation, Albert Leung gave a link to the website of this discipline of neuro-beautology. He had serious reservation about the application by the look of the website.

The Chairman shared the same view and the application must be refused.

Members agreed.

It was resolved that the application by Albert S H Leung be refused.”

10.  By a letter from the Chairman of the Bar dated 7 March 2014, the applicant was informed that the matter was considered by the Bar Council at its meeting on 6 March 2014.  The letter continued as follows:

“I regret to inform you that the Bar Council is not satisfied that your engagement as a Neuro-Beautology [sic] would be compatible with your practice as a barrister and had come to the view that permission should not be granted to your proposed work as stated in your above letter and email.”

11.  On 12 March 2014, the applicant notified the Bar that he had decided to cease to be a practising barrister with effect from 15 March 2014.

12.  On 10 May 2014, the applicant wrote to the Bar stating that the reason given for refusing his application was inadequate and asking the Bar to elaborate on the reason.

13.  On 12 May 2014, the Deputy Honorary Secretary of the Bar replied to the applicant as follows:

“I trust you realise that approval for engagement in a supplementary occupation is not to be granted as a matter of course. In arriving at its decision, the Bar Council has carefully considered the information provided in your previous letter and email respectively dated 5^th and 6^th March 2014.

Without admitting any obligation to give reason, I respectfully disagree that no adequate reason for the refusal has been given in the Chairman’s letter to you dated 7^th March 2014.”

14.  On 9 June 2014, the applicant filed an application for leave to apply for judicial review of the Bar Council’s decision.  Leave was given by Au J in November 2014 having considered the papers including an initial submission by the respondent lodged in August 2014 (“Initial Response”).

III. THE RELEVANT PROVISIONS OF THE CODE OF CONDUCT

15.   The Code is primarily based on theCode of Conduct for the Bar of England and Wales (1981 Edition)with variations warranted by local conditions and practice and with certain specified paragraphs and annexes not adopted.  The Code was published in January 1983 and amendments have since been made to it from time to time.

16.  The Code is a set of norms or rules that the Bar Association has resolved to issue.  It may be amended by the Bar Association in general meeting or by resolution of the Bar Council (paragraph 2).  It applies to all barristers (including pupils after their admission as barristers). Paragraph 4 of the Code states:

“Every barrister whenever called to the Bar, whether in practice or not, should uphold at all times the standards set out in this Code, the dignity and high standing of the profession of barrister and his own standing as a member of it.”

Paragraph 6 states:

“It is the duty of every barrister

(a) to comply with the provisions of this Code and with the undertakings (if any) which he made on his call to the Bar;

…

(c) to observe the ethics and etiquette of his profession;

…”

Paragraph 7 states:

“Serious failure to comply with the duties set out in paragraph 6 shall be professional misconduct and, if so found by a Barristers Disciplinary Tribunal, shall render the barrister liable to be punished in accordance with the provisions of the Legal Practitioners Ordinance, Cap. 159.”

17.  Paragraph 23 is found in a part of the Code of Conduct with the heading “Practising Barristers – General Principles”.

18.  According to paragraph 20 of the Code of Conduct, a practising barrister is

“a barrister who has been admitted to practise in Hong Kong and who is entitled and holds himself out as willing to appear in a court on behalf of a client or to give legal advice or services to a client; but is not an employed barrister.”

19.  The current version of paragraph 23 and the related Annexes (4 and 4A) is the version obtaining after revisions in 2009. Those revisions were made after a special committee was set up by the Bar and reviewed the provisions of the Code regarding additional occupations of barristers, though not all the recommendations of the committee were adopted. 

20.  Since it is the very subject matter of the challenge, I shall set out the first three sub-paragraphs of paragraph 23 in full, omitting sub-paragraphs (4) and (5) which concern barristers acting as company directors and barristers in pupillage:

“23. (1) A barrister may not, without the permission of the Bar Council, or save as provided for in Annex 4A to this Code, become or remain a practising barrister unless he is willing for his practice to be his primary occupation; and he may not engage directly or indirectly in any other occupation if his association with that occupation may adversely affect the reputation of the Bar.

(2) A practising barrister must not engage directly or indirectly in any other occupation if his association with that occupation may prejudice his ability to attend properly to the interests of his clients.

(3) (a) A practising barrister who wishes to engage in a supplementary occupation should do so only in accordance with the general or special permission of the Bar Council.

(b) Supplementary occupations for which the Bar Council has granted general permission are set out in a List of Approved Supplementary Occupations in Annex 4 and in the List of Approved Occupations in Annex 4A to this Code.  A practising barrister who wishes to engage in an occupation not listed in Annex 4 or Annex 4A or is in doubt whether a proposed occupation is within the approved list should seek the special permission of the Bar Council before taking up the occupation.”

21.  So far as material, the effect of these sub-paragraphs is to place the following four restrictions on practising barristers in relation to their engagement in any additional occupation:

(1) A practising barrister may not engage in any occupation if association with it may adversely affect the reputation of the Bar.  For ease of reference I shall call this the “Reputation Rule”.

(2) A practising barrister may not engage in any occupation if his association with that occupation may prejudice his ability to attend properly to the interests of his clients.  I shall call this the “Prejudice Rule”.

(3) Practice at the Bar must be a barrister’s primary occupation unless

(a) the general permission set out in Annex 4A applies; or

(b) special permission of Bar Council is obtained in advance under paragraph 23(1).

I shall call this the “Primary Occupation Rule”.

(4) A barrister may not engage in any supplementary occupation unless

(a) the general permission set out in Annex 4 applies; or

(b) special permission of Bar Council is obtained in advance under paragraph 23(3).

I shall call this the “Supplementary Occupation Rule”.

The Primary Occupation Rule seeks to ensure that practice at the Bar is and remains the primary occupation of a practising barrister.  “Primary” means main, chief or principal.  It does not in itself exclude the existence of what is merely secondary or supplementary. This rule does not prevent a practising barrister from engaging in a supplementary occupation provided practice at the Bar remains his primary occupation.  The Supplementary Occupation Rule goes further and prevents a practising barrister from engaging even in a supplementary occupation except with the consent of the Bar Council. 

22.  In the present case it is the Supplementary Occupation Rule pursuant to which the applicant applied for, and the Bar Council refused, permission for him to work as a neuro-beautologist as a supplementary occupation.  I shall deal with the implications of this on the scope of the dispute in the next section of this judgment.

23.  Annex 4A, which was added as part of the amendments made to the Code in 2009, sets out the “occupations which a barrister may engage in, irrespective of whether, by engaging in any of those occupations, practising as a barrister is or remains the primary occupation of the barrister”.  It contains therefore the general permission given under the Primary Occupation Rule.  A barrister can properly engage in these occupations (set out as follows) even if, by doing so, practice at the Bar ceases to be his primary occupation.

“(1) Member of Executive Council;

(2) Member of Legislative Council;

(3) Member of any District Council;

(4) Member of the Heung Yee Kuk or any rural committee;

(5) Acting as a ‘Village Representative’ as defined under the Village Representative Election Ordinance (Cap 576);

(6) Lecturing or teaching in law, or administering any Law Faculty or Law School or any departments thereof of any university, whether in Hong Kong or elsewhere;

(7) Practising as a legal practitioner (of whatever description) in another jurisdiction;

(8) Law reporting;

(9) Caring for immediate family members.”

24.  Annex 4 sets out a list of supplementary occupations (quoted below) that have been approved by the Bar Council as compatible with practice at the Bar.  It represents the general permission given under the Supplementary Occupation Rule.  Such permission is nevertheless subject to the Primary Occupation Rule, so that in engaging in these occupations a barrister is required to maintain practice at the Bar as his primary occupation.

“(1) Legal

(a) Offices

(i) Coroner

(ii) Third Party Neutral in alternative dispute resolution procedures, including Mediator, Adjudicator, Arbitrator or Umpire (Circular No. 48/98)

(iii) Member of a board of review, board of inquiry, tribunal, panel or committee established under any statutory or administrative powers

(b) Occupations

(i) Examining newspapers, periodicals, books, scripts and other publications for libel, breach of copyright, contempt of court and the like

(ii) Advising producers of plays and films on such matters

(iii) Running a private law tutorial school

(iv) Acting as a trustee for remuneration provided for in the settlement

(v) Acting as unpaid or honorary legal adviser to any charitable, benevolent or philanthropic institution, including a company that has been established for such purpose

(2) Legal or Non-Legal

(a) Writing, editing, and reviewing books and periodicals

(b) Journalism

(c) Broadcasting

(d) Member of a non-trading body established under any statutory or administrative powers

(3) Non-Legal

(a) Lecturing

(b) Business

(i) Non-executive director of a company (whether public or private) or chairman, director, secretary of a company not actively engaged in trade or business

(ii) Chairman, secretary, officer or member of the board of a co-operative society, a management committee of the incorporated owners of a building

(iii) Landlord of rented accommodation

(c) Charities

Officer, trustee or governor of any charitable, benevolent or philanthropic institution, and where a company has been established for such purpose, chairman, director or secretary of such company”

25.  It appears from the evidence that the Primary Occupation Rule no longer exists (if it ever did) in the professional rules of the English Bar, the Law Society of Singapore, the Australian Bar Association, the New Zealand Law Society, the Canadian Bar Association, the Law Society of Upper Canada, the Law Society of Alberta, the Law Society of New Brunswick, the Nova Scotia Barristers’ Association and the Law Society of British Columbia. Nor does it exist in the professional rules of the Law Society of Hong Kong.  As Mr. McCoy SC who appeared for the respondent acknowledged, the Hong Kong Bar appears to be unique among common law jurisdictions in retaining this restriction on its members.

IV. SCOPE OF THE APPLICATION AND THE ISSUES

26.  As stated at the beginning of this judgment, the applicant relies on two main grounds of attack: unconstitutionality and lack of reasons.  The respondent disputes the applicant’s case and further takes the position that the decision in question is a private law matter not amenable to judicial review. 

27.  There is no dispute on the way in which a constitutional challenge is, in general, to be analysed.  It is necessary first to ascertain whether a constitutional right is engaged and whether the measure in question imposes a restriction or limitation on the right.  Once this is established, the burden falls on the respondent to show that the restriction on the right is both prescribed by law and proportionate.  In assessing whether the measure meets the proportionality test, it is relevant to see if it pursues a legitimate aim, whether the measure is rationally connected to the legitimate aim, and whether it is no more than is necessary to accomplish the legitimate aim.  See, generally, Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at §§17, 33-39; Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 at §20; Dr Kwok-Hay Kwong v Medical Council of Hong Kong [2008] 3 HKLRD 524 at §68; Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD 166 at §§64-78.  As I understand his submissions, Mr McCoy SC, who appeared for the respondent, did not dissent from this approach.

28.  On this basis, in his excellent argument on behalf of the applicant, Mr Timothy Parker has identified six main issues that arise for determination.

1. Whether the decision is public law decision or is merely a private law decision not amenable to judicial review.

2. Whether paragraph 23 of the Code of Conduct unlawfully restricts the freedom of choice of occupation and is unconstitutional.  This question can in turn be divided into four issues:

(A) Whether Art. 33 is engaged by the decision.

(B) Assuming Art. 33 is engaged, whether the restriction is prescribed by law;

(C) Whether there is a rational connection to the legitimate aim pursued;

(D) Whether the restriction satisfies the requirement of proportionality.

3. Whether the decision should be set aside for the failure to give adequate reasons.

I shall deal with these issues in turn below.

29.  For the purposes of the constitutional issues, however, it is necessary to examine a little more closely what precisely is in dispute and under challenge.  As I have outlined above, the applicant sought permission to engage in a supplementary occupation.  He did not propose to practise neuro-beautology as a primary occupation.  Nor did the Bar refuse his application on the ground that practice at the Bar would cease to be the applicant’s primary occupation, even though the amount of time he proposed to spend in the practice of neuro-beautology was mentioned at the meeting of the Bar Council.[2] Had the Bar Council’s only concern been the extent of the applicant’s proposed supplementary occupation, it might have proposed conditions for giving permission and the parties might have been able to resolve the matter amicably, but that was not the case.  As such it seems to me the actual dispute prima facie does not involve the Primary Occupation Rule.

30.  This is in my view fortified by the way in which the applicant’s notice of application for leave to apply for judicial review (Form 86) was formulated.  In that document the applicant avers that paragraph 23 of the Code restricts his “freedom … to engage in a supplementary occupation that can generate more stable income to support his primary occupation at the Hong Kong Bar” and that paragraph 23 “unreasonably restricts the freedom of junior barristers to engage in supplementary occupation”.  In conclusion, the applicant avers that paragraph 23 contravenes Art.  33 because it infringes:

“[the] freedom of choosing a supplementary occupation to financially support a primary occupation at the Hong Kong Bar and freedom of choosing a supplementary occupation [in] its own right for personal interest or otherwise …”[3]

31.  It follows that what is principally in issue so far as the constitutional question is concerned is the Supplementary Occupation Rule.  The Primary Occupation Rule, which has neither been relied upon by the Bar in refusing permission nor specifically attacked by the applicant in his Form 86 as constituting an unlawful restriction on his freedom, is not directly in issue.  While counsel on both sides have spent much time on the Primary Occupation Rule in their submissions, the ambit of this application has to be defined by reference to the actual facts and the case put forward in the notice of application.

V. ISSUE 1 – AMENABILITY TO JUDICIAL REVIEW

32.  On behalf of the respondent Mr Gerard McCoy SC, leading Miss Emma Tsang, took as their first point that neither the Bar Council nor the Bar Association is a governmental or statutory body.  The Code is not rules made under s. 72AA of the Legal Practitioners Ordinance.  The decision in question is a matter of internal management of the Bar as a professional body.

33.  They further submitted that matters of internal management are governed by the majority rule: Barrett v. Te Runanga O Ngati Pu Inc [2002] NZAR 296, and that the applicant could have raised the matter at a general meeting of the Bar Association, referring to the previous amendment of paragraph 23 in 2009 as an example.

34.  It is regrettable that this issue was never raised in the Initial Response of the respondent at all at the stage when the court considered whether or not to grant the applicant leave, which implicitly accepted that the Bar Council’s decision was amenable to judicial review.  As the question concerns the jurisdiction of this court, however, I permitted the respondent to take the point and Mr Parker, no doubt having spent many uncovenanted hours after receiving Mr McCoy’s skeleton argument, was able to respond to it.

35.  In my view, on a correct analysis of the principles concerning susceptibility to judicial review, neither the status of the body in question, nor the source of power, nor the scope of persons subject to the rules concerned, is determinative.  It is necessary instead to focus upon the nature of the power and function in question.  In the seminal authority on the subject, R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815, Lloyd LJ, stating the principles, said at p 847:

“I do not agree that the source of power is the sole test whether a body is subject to judicial review … Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review: see R v. National Foint Council for the Craft of Dental Technicians (Disputes Committee) ex parte Neate [1953] 1 QB 704.

But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power.  If the body in question in exercising public law functions, or if the exercise of its functions have public law consequences, then that may, as Mr Lever submitted, be sufficient to bring the body within the reach of judicial review.  It may be said that to refer to ‘public law’ in this context is to beg the question.  But I do not think it does.  The essential distinction, which runs through all the cases to which we referred, is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other.”

In the same case, Sir John Donaldson MR said, at p 838:

“In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction.”

36.  As Sir Thomas Bingham MR said in R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR 909 at 921C, the effect of Datafin was:

“to extend judicial review to a body whose birth and constitution owed nothing to any exercise of governmental power but which had been woven into the fabric of public regulation in the field of take-overs and mergers.”

37.  In Regina (Beer (trading as Hammer Trout Farm)) v Hampshire Farmers’ Markets Ltd [2004] 1 WLR 233 at §16, Dyson LJ said:

“It seems to me that the law has now been developed to the point where, unless the source of power clearly provides the answer, the question whether the decision of a body is amenable to judicial review requires a careful consideration of the nature of the power and function that has been exercised to see whether the decision has a sufficient public element, flavour or character to bring it within the purview of public law. It may be said with some justification that this criterion for amenability is very broad, not to say question-begging. But it provides the framework for the investigation that has to be conducted. …”

38.  The approach heralded by Datafin has been applied in numerous cases in Hong Kong, both in cases concerning whether particular acts of the Government or a public body were nevertheless private in character and conversely whether particular acts of private bodies were nevertheless public in nature.  In Hong Kong and China Gas Co. Ltd v Director of Lands [1997] 3 HKC 520, at 526, Keith J referred to the true question as whether the making of the particular decision in question amounts to “the performance of a function within the public domain”.

39.  In Pacific Century Insurance Co Ltd v Insurance Claims Complaints Bureau [1999] 3 HKLRD 720, Hartmann J (as he then was) had to deal with the question whether a decision of the Insurance Claims Complaints Bureau was amenable to judicial review.  The bureau had received a complaint from an insured person against the applicant for rejecting a claim under a policy issued by the applicant.  The complaint was referred to the complaints board of the bureau which made an award against the applicant, concluding that the insured was entitled to compensation under the policy.  The applicant sought judicial review of the award and the first question that arose was whether that decision was susceptible to judicial review. 

40.  As Hartmann J said (p 725), the bureau had essentially been a creation of the Hong Kong insurance industry as a limited liability company, formed in order to provide a self-regulatory mechanism for arbitrating complaints related to personal insurance.  Membership of the bureau was restricted to entities carrying on insurance business in Hong Kong. Membership, under the Articles of Association, was voluntary and could be terminated upon three months’ notice.  The articles bound the members to honour awards made against them by the complaints board.  However, since 1996, the Insurance Authority – a public body set up by the Insurance Companies Ordinance (Cap. 41) – had pursued a policy of ensuring that all insurers submit themselves to the jurisdiction of the bureau.  On that basis, Hartmann J held (at p 730C):

“I believe it is clear that in 1996 the Insurance Authority, in fulfilling its statutory mandate to supervise the insurance industry and protect actual or potential policy holders, took steps to weave the Bureau into a regulatory fabric that achieved this end for the greater good of the industry and the public at large. In so doing, the Authority made it mandatory for all new insurers to become members of the Bureau and submit to its judicial or quasi-judicial jurisdiction. As a result, it could not be said that the authority of the Bureau to make awards against its members was derived solely from contract. For those members who have joined since the institution of the scheme it was a condition of their authority to do business that they become members. …”

That alone, however, according to Hartmann J, would not be sufficient to subject the decision in question to the court’s supervisory power by way of judicial review.  He said (at 731E):

“But, of course, the mere fact that a body lacking statutory, prerogative or common law powers, has been incorporated into a scheme of public regulation does not, of itself, mean that it is amenable to judicial review. No single factor is determinative.”

After referring to the passage in Donaldson MR’s judgment in Datafin quoted in paragraph 35 above, Hartmann J continued:

“Is there then a public element in the present matter; in short, by its incorporation into a regulatory scheme underpinned by the [Insurance Companies] Ordinance, has the Bureau at all material times been carrying out a public function? I believe it has. I believe it can properly be said that the Insurance Authority from the commencement of the scheme in 1996 determined to ensure that all providers of personal insurance in Hong Kong would fall under the jurisdiction of the Bureau and would therefore - for the assurance of industry standards and the general protection of the public - all be obliged to honour awards made against them by the Bureau’s Complaints Board. It was intended and has become a scheme which binds all of Hong Kong’s personal insurance businesses and which thereby gives to a broad section of the general public a fast, efficient avenue for redress of complaints. As such, the Bureau has at all material times carried out a public function of conciliation and arbitration, if not as a surrogate of government, at least as an extension of government policy.”

41.  In R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan, supra, a case heavily relied upon by the respondent, there was an application for leave to move for judicial review of a decision of the disciplinary committee of the Jockey Club, a body incorporated by Royal Charter with the responsibility for the organisation and control of horse racing and training activities in Great Britain.  Despite the fact that, as Sir Thomas Bingham MR accepted at p 923G, the club regulated a significant national activity, exercising powers which affected the public and were exercised in the interest of the public, the Court of Appeal held that the decision was not amenable to judicial review.  All three judges referred to the fact that the powers exercised by the club were consensual in nature, derived from the agreement of the parties and gave rise to private rights (pp 924C, 928G, 929G, 932H).

42.  At 923H, Sir Thomas Bingham MR said the Jockey Club “ha[d] not been woven into any system of governmental control of horseracing”, with the result that while the club’s powers could be described as, in many ways, “public”, they were in no sense “governmental”.  Farquharson LJ accepted that many of the decisions of the club would affect members of the public but pointed out at p 930A that there was a difference between what might affect the public and what amounted to a public duty.  Hoffmann LJ at pp 931H-932A contrasted the Jockey Club with “private bodies established by the industry but integrated into a system of statutory regulation”, whose decisions previous authorities had held to be amenable to judicial review.  His Lordship also took the view that the English legislator’s attitude to racing was akin to his attitude to religion: “it is something to be encouraged but not the business of government” (p 932G).

43.  Aga Khan was applied by the Court of Appeal in Hong Kong Rifle Association v. Hong Kong Shooting Association (No 2) [2013] 3 HKLRD 362.  There the Hong Kong Rifle Association sought leave to apply for judicial review of the decision of the Hong Kong Shooting Association not to reinstate the former as a member of the latter.  The Hong Kong Shooting Association was a company limited by guarantee and recognised by international sports associations as the sole governing body of all shooting sport in Hong Kong, with the sole authority to select sportsmen to represent Hong Kong in relevant games.  It depended on Government subvention for funds to operate.  The Court of Appeal, affirming the decision of Poon J below, held that the decision was not amenable to judicial review.  Kwan JA, giving the reasons of the court, stated that the association was “not in its origin, history, constitution or membership a public body”, there was “no public source for any of its powers” (§24), that “it cannot be said that in deciding whether to admit or reinstate a Member, the HKSA is exercising a public law function or that its decision would have public law consequences” (§28) and that “[g]overnmental power, whether de facto or de jure, is simply not exercised by the HKSA as the sole governing body of the sport of shooting in Hong Kong” (§30).

44.  It is clear from these authorities that a proper assessment of the argument on amenability requires a closer examination of the status and functions of the Bar Association and the Bar Council as well as the scope and effect of the Code of Conduct.

45.  The Hong Kong Bar Association is the professional organisation of barristers in Hong Kong established by barristers in 1949.  It is an unincorporated association registered under the Societies Ordinance (Cap. 151).  Its objects and matters of internal management are set out in its Regulations.  The objects for which it is established are, as stated, “to consider all matters affecting the profession and the administration of justice and to take such action thereon as it deems proper”, including prescribing of rules of professional conduct, discipline and etiquette for barristers.  The Association also has a set of By-Laws relating to classes of memberships and certain procedural matters concerning the Bar Council.

46.  Art. 94 of the Basic Law provides that on the basis of the system previously operating in Hong Kong, the Government may make provisions for local lawyers and lawyers from outside Hong Kong to work and practise in the Region.  The legal profession in Hong Kong, including barristers, are regulated by the Legal Practitioners Ordinance (Cap. 159) (“the Ordinance”). 

47.  Under s. 44(1) of the Ordinance, it is an offence for any person not being a qualified barrister to practise or act as a barrister.  A barrister is a person who is enrolled as a barrister on the roll of barristers: see s. 2.  The roll of barristers is kept by the Registrar of the High Court: s. 29(1).  A person becomes a barrister by being admitted to the Bar or, as it is commonly known, “called” to the Bar.  The power to admit barristers is vested in the Court of First Instance: s. 27.  Once admitted, a barrister’s name remained on the roll until it is removed or struck off. 

48.  Just being a barrister does not, however, qualify a person to practise as a barrister.  To be so qualified he must, inter alia, hold a valid practising certificate: s. 31(1)(b).  Practising certificates are issued by the Bar Council: s. 30(1).[4]  By virtue of s. 30(3)(a), a practising certificate may only be issued to a person who has paid to the Bar Association the membership subscription except where the Bar Council has exempted him from the requirement.[5] A fee must also be paid for the issue of the practising certificate itself; the fee is fixed by subsidiary legislation, namely, the Legal Practitioners (Fees) Rules (Cap. 159D), which  requires it to be paid to the Bar Association for the payment of its expenses.

49.  This means that, by this indirect statutory route, any person who wishes to practise as a barrister in Hong Kong is required to be a member of the Bar Association.  In fact, a “member” of the Bar Association is defined in the Regulations to mean a practising barrister or an employed barrister who is a member of the Bar Association, signifying that all practising barristers are members.  The Bar Association is therefore not a voluntary professional club that practising barristers may choose whether or not to join.[6] It is a body, albeit not established by statute, whose membership is made mandatory by statute for all practising barristers.

50.  The respondent in these proceedings – the Bar Council – is the executive committee of the Bar Association, consisting of elected office-bearers and members as well as co-opted members.  Although it is also not established by statute it is recognised in legislation and exercises a number of statutory functions: see the Ordinance, Barristers (Admission) Rules (Cap. 159AA), Barristers (Advanced Legal Education Requirement) Rules (Cap. 159AB), Barristers (Qualification for Admission and Pupillage) Rules (Cap. 159AC), Higher Rights of Audience Rules (Cap. 159AK), Barristers (Qualification) Rules (Cap. 159E), Practising Certificate (Barristers) Rules (Cap. 159K) and Barristers Disciplinary Tribunal Proceedings Rules (Cap. 159P), to name a few examples.  The key function in question in the present case is the promulgation of rules governing barristers’ professional practice, conduct and discipline. This function is recognised by law in s. 72AA of the Ordinance as a proper function of the Bar Council.  That section confers a number of the powers on the Bar Council, the first of which is the making of rules on the professional practice, conduct and discipline of barristers.  So far as relevant, it reads:

“Subject to the prior approval of the Chief Justice, the Bar Council may make rules-

(a) in respect of the professional practice, conduct and discipline of barristers and pupils;

…”

51.  Further, by s. 33 of the Ordinance, the Bar Council has a general right of audience before the court on the hearing of:

“any proceedings in the Court relating to, affecting or touching any matter affecting the qualification or examination of a person seeking to be a barrister or affecting the privileges, restrictions or offences in connection with the professional practice, conduct and discipline of a barrister”.

52.  Mr McCoy pointed out, correctly as a matter of fact, that the existing Code of Conduct was not made by the Bar Council pursuant to s. 72AA and that the Chief Justice had not approved it.  The Code of Conduct was first adopted by the Bar itself in 1983 and the current version in 1997 (with subsequent amendments), well before s. 72AA was added to the Ordinance in 2000.[7] But this does not affect the point.  The point is that the Legislature has seen fit to provide for this matter and has by legislation entrusted this rule-making function to the Bar Council, subject to the approval of the Chief Justice.  The section in my view underscores the public and governmental nature of the function. 

53.  The reason that no rules of conduct have been made under s. 72AA(a) is, one may reasonably infer, that the existing Code has been found adequate.  Had there not been an existing code of conduct, it seems to me highly arguable that the Bar Council would have been under a public law duty to consider exercising its statutory power under s. 72AA(a) to make rules.  And if the same rules of practice and conduct in question as those contained in the Code had been promulgated under s. 72AA, it is clear, as indeed Mr McCoy accepted,[8] they would be susceptible to judicial review.  The notion of the Code as a set of norms of a voluntary professional club by which certain individuals freely and mutually agree to abide, if valid in an age bygone, is in my view no longer an entirely accurate picture of the reality.

54.  The function of the Bar Council in question concerns the regulation of the practice and conduct of barristers – a matter essential to the due administration of justice.  Barristers have rights of audience in our courts and tribunals and especially, to the exclusion of solicitors (except solicitor advocates), in the higher courts.  The courts have to be able to rely on the competence and diligence of barristers.  The right of Hong Kong residents to choice of lawyers guaranteed by Art.  35 of the Basic Law is affected by the rules governing who may practise at the Bar.  The roll of barristers is a document kept by the Registrar of the High Court that can be inspected by any person without payment: s. 29(1) of the Ordinance.  The administration of justice does not only affect the public but is inherently a public concern of society.  In this sense the Bar Association is in my view not comparable to the jockey club in Aga Khan or the shooting association in Hong Kong Rifle Association v Hong Kong Shooting Association (No 2), referred to above, or the greyhound racing club in Law v National Greyhound Racing Club Ltd [1983] 1 WLR 1302, a case on which Mr McCoy also relied.

55.  The standard, conduct and discipline of barristers are in particular a matter in which the courts have traditionally taken a keen interest.  In England the disciplinary power over the Bar was said to have been delegated by the judges to the Inns of Court and historically retained by the judges as visitors exercising appellate jurisdiction: R v Gray’s Inn Barristers (1780) 1 Doug 353; R v General Council of the Bar, ex parte Percival [1991] 1 QB 212, 227; R v Visitors to the Inns of Court, ex parte Calder [1994] QB 1, 31, 44.  In the colonies, of which Hong Kong was one, the judges had retained both the power to determine who should be admitted to practise as barristers and the right to suspend or prohibit a barrister from practice for misconduct: Attorney General of The Gambia v Pierre Sarr N’Jie [1961] AC 617, 630-631; Re a Committee of Inquiry, ex parte a Barrister [1990] 1 HKLR 216, 218.  In Hong Kong, the power to suspend a barrister or strike him off the roll is now vested in the Barristers Disciplinary Tribunal although, to this date, admission to the Bar remains in the hands of the courts.  S. 72AA of the Ordinance, by requiring the prior approval of the Chief Justice before the Bar Council can make rules pursuant to that section, seems to me to reflect the continued interest and responsibility that the courts have over the regulation of barristers.

56.  Although the Code of Conduct has not been made under s. 72AA and is therefore not subsidiary legislation, it enjoys statutory recognition and underpinning.  Thus s. 10(3) of the Barristers (Qualification for Admission and Pupillage) Rules (Cap. 159AC) provides that a person undertaking pupillage is subject to the Code of Conduct.  The Code is also referred to in various forms under the Practising Certificates (Barristers) Rules (Cap. 159K).  The Code is justiciable in the Barristers Disciplinary Tribunal – the statutory disciplinary tribunal set up by the Ordinance for barristers.  Breach of the Code can amount to professional misconduct and be referred by the Bar Council to the Barristers Disciplinary Tribunal – a tribunal in which a member of the public must be present as member: s. 35A(1)(c).  Serious, and public, consequences can result from those proceedings, which are expressly provided for by statute (see s. 37 of the Ordinance), including suspension from practice and having one’s name struck off the roll of barristers.  A person subject to a disciplinary order of the tribunal may appeal to the Court of Appeal.  It is also notable that the expenses not only of the Barristers Disciplinary Tribunal but also of the Bar Council in connection with proceedings in the tribunal (and any appeal therefrom) may be paid to the Bar Council out of general revenue upon a certificate issued by the Secretary for Justice: see s. 39(1).[9]

57.  While the Code of Conduct can be said to be a set of domestic rules in the sense that it was adopted by the Bar Council and applies only to barristers, the Code – at any rate the provision in question – has in my view an unmistakably public element having regard to its functional equivalence to rules that are envisaged to be made by the Bar Council under s. 72AA(a), its nature as rules governing the practice and conduct of barristers as such, its integration into the statutory disciplinary regime over barristers and the statutory, public consequences of non-compliance with it: c.f. R v Visitors to the Inns of Court, ex parte Calder, supra, at p 48D-F.  In my judgment the respondent’s argument on amenability to judicial review therefore fails.

58.  I reject the associated point made by the respondent based on the power of the Bar Association in general meeting to amend the Code of Conduct.  For the reasons above the existence of this power does not take this case out of the public domain.  Nor does it render judicial review an inappropriate remedy.  Plainly judicial review proceedings are the more suitable avenue for determining the constitutionality of paragraph 23 of the Code.

VI. ISSUE 2(A) – WHETHER ART. 33 IS ENGAGED

59.  Art. 33 of the Basic Law is a short article that provides:

“Hong Kong residents shall have freedom of choice of occupation.”

60.  In its Initial Response called for by the court and dated 9 August 2014, the respondent raised no argument that Art. 33 was not engaged.  On the contrary, it accepted that paragraph 23 of the Code of Conduct “prima facie infringes Article 33 of the Basic law”, and went on to argue that “the freedom of choice of occupation is not an absolute right” but “can be subjected to limitation based on the usual test ie existence of legitimate aim, a rational connection between the legitimate aim and the restriction in question, and whether the restriction is no more than necessary to achieve the legitimate aim”.[10]

61.  The Initial Response was expressly adopted in full by the respondent in the affirmation of the Honorary Secretary filed on 2 February 2015.  It was not until when the respondent’s skeleton argument for the hearing was served that it sought to raise the issue that Art. 33 was not engaged.  This was most unsatisfactory, not least because the applicant was left with very little time to deal with it.  In my view the Initial Response contained a concession on this issue.  No explanation had been given why it was made in the first place and why it should be allowed to be withdrawn at the last moment.  Indeed no application was made for leave to withdraw the concession.

62.  Be that as it may, given the question concerns a constitutional challenge, I shall discuss the issue on its merits.  As a provision within Chapter III of the Basic Law, Art. 33 is to be given “a generous interpretation … in order to give to Hong Kong residents the full measure of fundamental rights and freedoms … constitutionally guaranteed”: Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4, 29A, 34F-35A; Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480 at §§24, 29; Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, §16; HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837, §32.

63.  Art. 33 has not frequently arisen for interpretation by the courts but there are two cases which shed some light on the boundaries of the provision.  In Cheng Chun-Ngai Daniel v Hospital Authority (HCAL 202/2002; 12 November 2004), an audiologist who had been dismissed from his employment by the Hospital Authority sought leave to apply for judicial review.  He argued, inter alia, that because audiology was a profession which opened itself to limited employment prospects with the overwhelming majority of audiologists having to rely on employment in the public sector, his wrongful dismissal effectively denied him the right guaranteed by Art. 33 to continue to work in his chosen occupation of an audiologist.  Hartmann J (as he then was) rejected this argument, saying:

“54. Art.33 does not yet appear to have been the subject of judicial scrutiny. The article appears in Chapter III of the Basic Law and is therefore a fundamental right guaranteed to all residents. As such, the right is to be interpreted generously and purposively.

55. However, as I read the article, even when it is interpreted generously and purposively, it is not to be interpreted in an active sense, by which I mean that it does not guarantee the right of employment in any particular field of occupation.  Whether employment can in fact be obtained will depend on the laws of supply and demand as they apply in the market place.  The article, in my view, is to be interpreted rather in the light of what it seeks to prevent; namely, outside of issues of national service, should they ever arise, any form of conscription to particular fields of occupation.”

64.  In GA v Director of Immigration (2014) 17 HKCFAR 60, the applicants, three of whom were mandated refugees and one a screened-in torture claimant, sought judicial review of the Director of Immigration’s decision not to grant them permission to work while they remained in Hong Kong.  They argued they had a constitutional right to work contained in various provisions including, so far as relevant for present purposes, Art. 33 of the Basic Law.  On the scope of Art. 33, Ma CJ, with whom the other judges of the Court of Final Appeal agreed, held:

“Article 33 does not refer to the right to work in general. It is much narrower than that, dealing only with the freedom of choice of occupation. If it was intended that a wider right was to exist, the article would simply have said so or it would have been made much clearer, rather than to adopt a somewhat elliptical technique.”

The Chief Justice also expressly agreed with the following passages in the judgment of Fok JA (as he then was) in the Court of Appeal in the same case (CACV 44 – 48/2011; 27 November 2012):

“139. BL33 has its origins in article 3(5) (§17) of the Joint Declaration and Annex I Section XIII to the Joint Declaration (§151) both of which refer to various rights and freedoms including that “of choice of occupation”.  No wider right to work is expressly referred to.  At the time of the Joint Declaration, the significance of a freedom of choice of occupation was the practice in the PRC’s planned economy of assigning students joining universities to specific fields of studies and occupations after graduation: see Chan and Lim (General Editors): Law of the Hong Kong Constitution (Sweet & Maxwell, 2011) at §24.004.

140. In my opinion, a right to choose one’s occupation is narrower than a right to work in general.  As the CESCR General Comment No. 18 states, at §6, the right to work is not to be understood as an absolute and unconditional right to obtain employment but includes the right to decide freely to accept or choose work.  This demonstrates that the freedom of choice of occupation is therefore only part of the wider right to work in ICESCR6.  If BL33 was intended to confer more than a freedom of choice, one would have expected its wording to be different.

141. Furthermore, the relevant context of BL33 would include the fact that by reason of BL39, the ICCPR and ICESCR as applied to Hong Kong include both the immigration reservation, reflected in HKBORO s. 11, and the UK’s reservation to ICESCR6.[11]  I have addressed the construction of those reservations above and, in the light of my conclusions as to their proper interpretation, it would not be right to conclude that BL33, properly construed in its context, is co-extensive with ICESCR6 since this would be to ignore the UK reservation to that article.

142. I would add that this conclusion as to the proper construction of BL33 is consistent with previous cases dealing with BL33 which have held that its effect is not to guarantee a right to be employed either generally or in any particular field, but instead, is to protect against conscription to particular fields of occupation: see Cheng Chun-ngai Daniel v Hospital Authority, unrep., HCAL 202/2002 (12 November 2004) at §55; Financial Services and Systems Limited v Secretary for Justice, unrep., HCAL 101/2006 (6 July 2007) at §§49-53; Ng King Tat Philip v Post-Release Supervision Board, unrep., HCAL 47/2010 (23 August 2010) at §§116-117.  See also, Hong Kong’s New Constitutional Order (2^nd Ed.) by Professor Yash Ghai at pp. 435-436.

143. In my view, therefore, the right conferred by BL33 is a passive or negative right of freedom to choose an occupation, but does not imply a right to take up available employment in the first place.  Nor does it confer an unqualified right to obtain employment, which is necessarily subject to market forces and also subject to legal constraints, such as visa and qualification requirements.”

65.  The applicant is not seeking to enforce a general right to work or a right to employment, nor is he asserting a right, in Mr McCoy’s words, “to practise a chosen profession in whatever manner he wants without any restriction or regulation by the governing body”.  On behalf of the applicant Mr Parker accepted that the right conferred by Art. 33 is a qualified right and may in principle be made the subject of limitations or restrictions, such as qualification requirements for entry into a profession as contemplated by Art. 142 of the Basic Law.

66.  The respondent has raised no dispute that the applicant has had the requisite education and training and is in possession of the necessary knowledge and skill to qualify him to practise as a barrister. The salient question is whether he can both practise as a barrister and work as a neuro-beautologist.  Paragraph 23 of the Code – in particular the Supplementary Occupation Rule – forbids it, subject to the Bar Council’s permission, which has been refused in this case.

67.  It was argued by the respondent that the restraint on concurrent occupation is an internal ethical standard attuned to the specific conditions of practice at the Hong Kong Bar.  It does not follow however that the restriction is an essential, integral part of being a barrister, in the same way as, for example, dealing with children is an integral part of being a school teacher, so that a person cannot choose one without taking the other.

68.  It is not clear whether the respondent would go so far as to contend that Art. 33 is concerned solely with the right against conscription or compulsory allocation to assigned fields of occupation.  In my opinion the passages in the judgments in GA v Director of Immigration do not support such a narrow interpretation.  Art. 33 refers to freedom of choice of occupation.  That freedom is in my view curtailed both where a person is compelled to take up an occupation against his wishes, and where he is prevented from pursuing an occupation of his choice.  Without paragraph 23 of the Code, the applicant could prima facie both practise at the Bar and take up supplementary occupation (including the practice of neuro-beautology). With paragraph 23 in place and absent permission from the Bar Council, he cannot do so without risking disciplinary sanctions as a barrister.  Giving the words in Art. 33 their ordinary meaning, it seems to me that in a real and substantial way, the applicant’s freedom of choice of occupation has prima facie been restricted by paragraph 23.  It probably does not matter whether one characterises it as a restriction on the applicant’s freedom to practise as a barrister, or his freedom to practise as a neuro-beautologist, or both.  If, for example, a man is qualified to practise both law and medicine, but because of rules imposed by one of the professions he cannot freely practise in both occupations, it seems to me Art. 33 is engaged.  In fact it appears that Mr McCoy accepted that this conclusion would follow on a natural reading of Art. 33.  He submitted however that “[t]he Article cannot literally mean what it might appear to say” – a submission that seems to seek to place a restrictive, rather than generous, interpretation on the article.  The reason given was that otherwise, for example, an unqualified person could practise as a medical practitioner. But that is a non sequitur.  No one disputes that even if Art. 33 applies, qualification requirements for professionals may with justification be imposed: see Art. 142.  The question under consideration is simply whether Art. 33 is engaged.  For the reasons I have endeavoured to give I conclude that it is, and that paragraph 23 of the Code “prima facie infringes Article 33 of the Basic law” as is conceded (in my view correctly) by the respondent.

VII. ISSUE 2(B) – WHETHER THE RESTRICTION IS PRESCRIBED BY LAW

69.  Art. 39 of the Basic Law provides that any restriction on fundamental rights must be “prescribed by law”.  This includes the requirement of accessibility and certainty.  Mr Parker mounted a root and branch challenge against paragraph 23 in this respect, contending that all the restrictions contained in paragraph 23 of the Code are vague and insufficiently clear or precise to meet the requirement that the restrictions are “prescribed by law”.

70.  In an oft-quoted passage in Sunday Times v United Kingdom (No. 1) (A/30) (1979-80) 2 EHRR 245, the European Court of Human Rights stated the requirement in these terms:

“First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.”

The passage has been adopted by the Court of Final Appeal in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 at §§63 & 89.

71.  In Sabapathee v The State [1999] 1 WLR 1836 at 1843, Lord Hope, giving the opinion of the Privy Council, stated that the precision which a law needs to exhibit to avoid being struck down as unconstitutional will necessarily vary according to the subject matter.

72.  While the requirement of “prescribed by law” has often been invoked in challenges against criminal offences as being vague and uncertain, the requirement may also be applied to assess whether a discretionary restriction on fundamental rights is constitutional.  In Leung Kwok Hung v HKSAR, supra, the Court of Final Appeal was concerned with the discretion conferred by the Public Order Ordinance (Cap. 245) on the Commissioner of Police to object to a public procession being held on the ground of “public order (ordre public)”.  In their joint judgment, the majority of the Court stated at §29:

“A law which confers discretionary powers on public officials, the exercise of which may interfere with fundamental rights, must give an adequate indication of the scope of the discretion. The degree of precision required of the law in this connection will depend upon the particular subject matter of the discretion.”

In the result they held (at §77) that the expression “public order (ordre public)” as a concept of constitutional norm taken from the ICCPR did not give an adequate indication of the scope of the discretion and the discretion fell foul of the constitutional requirement of “prescribed by law”.

73.  In Malone v United Kingdom (1984) 7 EHRR 14, the question arose as to the lawfulness of interception of communications effected by the police with reference to the right to respect for private life and correspondence.  The European Court of Human Rights held (at §68) that a law which confers a discretion

“must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference”.

74.  In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, the measure in question was a provision in the Civil Service Act of Antigua and Barbuda that prohibited a civil servant from publishing “any information or expressions of opinion on matters of national or international political controversy”.  The Eastern Caribbean Court of Appeal accepted that the prohibition would, on its own, infringe the applicant’s freedom of expression, but held that the prohibition was qualified by another provision in the Constitution so that it only applied where the civil servant’s forbearance from such publication was “reasonably required for the proper performance of his official functions”.  In the opinion of the Privy Council, however, that guidance was not sufficiently precise to secure the validity of the provision and that even under the formulation suggested by the Court of Appeal, the civil servant would be “left with no clear guidance as to the exercise of his constitutional rights” (see pp 78F-79A).

75.  As submitted by Mr McCoy, however, the approach adopted by the courts in examining the precision and certainty of criminal law is not necessarily fully applicable to a professional code of conduct.  In Chan Hei Ling Helen v Medical Council of Hong Kong, on appeal from a disciplinary inquiry held by the Medical Council over the conduct of a doctor, the courts had to deal with an argument that the rule against the public endorsement or promotion by doctors of commercial brands of medical or health-related products was not prescribed by law.  The doctor was charged with “misconduct in a professional respect”.  The factual basis of the charge was that she sanctioned, acquiesced in or failed to take steps to prevent the appearance of her name, title, photographs and statements in a newspaper advertisement in which she endorsed a particular line of health products with which she had a financial relationship.  The Court of Appeal held ([2009] 4 HKLRD 174 at §§35-42) that the disciplinary offence in question, namely, “misconduct in any professional respect” was not too uncertain.  The applicable professional code was expressly stated to be “only a guide and … by no means exhaustive”.  The code described professional misconduct by reference to the doing of “something which will be reasonably regarded as disgraceful, unethical or dishonourable by his professional colleagues of good repute and competency”.  Citing Gardiner v General Medical Council (1961) 105 Sol Jo 525, Le Pichon JA stated that the norms for professional conduct may be unwritten (§38) and further (at §39):

“Professional misconduct, by its nature, can take many different forms and include a wide spectrum of circumstances. The profession, being conditioned by written and unwritten rules, is given fair warning that the fact that there has been no breach of the code does not preclude a finding of professional misconduct. Where, as in the present case, the unwritten rule is prescribed through content, its parameters may be imprecise and may vary over time because of the need to keep pace with, and to adapt to, changing circumstances. But the fact that the parameters are imprecise does not render the unwritten norm unconstitutional. …”

76.  Her Ladyship also noted that in Roylance v General Medical Council (No. 2) [2000] 1 AC 311, the Privy Council had acknowledged “the impossibility in changing circumstances and new eventualities of prescribing a complete catalogue of the forms of professional misconduct which may lead to disciplinary action”.  The Court of Appeal held that the restriction satisfied the requirement of certainty and accessibility and was thus “prescribed by law” for the purposes of Art. 39 of the Basic Law.

77.  The Court of Final Appeal agreed with the Court of Appeal’s conclusions on this part of the case ((2010) 13 HKCFAR 248 at §81).  In his judgment in which all the other members of the Court concurred, Bokhary PJ stated (at §82) it was not unconstitutional that under the safeguards of a fair system of adjudication and appeal, persons are held to the customary ethics of their profession unless the particular rule of ethics involved is irrational.

The Supplementary Occupation Rule

78.  In the light of these principles, does the Supplementary Occupation Rule pass muster?  This restriction requires a barrister to obtain the Bar Council’s permission before engaging in any supplementary occupation.  The conditions for the exercise of this power are nowhere specified in the Code.  Nor does the circular which announced to members the amendments to the Code in 2009 explain the considerations involved.  All it stated was:

“Every such application [for permission to engage in a supplementary occupation] will be considered by the Bar Council on an individual basis by reference to all the relevant facts and circumstances existing at the time of the application …”

79.  There is nothing to suggest that this is merely a procedural requirement for the enforcement of the other three rules in paragraph 23.  On the contrary the evidence suggests that the Supplementary Occupation Rule is a separate substantive rule by virtue of which the Bar Council may refuse permission for various reasons. 

80.  As an ex post facto explanation, the affirmation filed by the respondent in these proceedings explaining the process of dealing with applications for permission to engage in supplementary occupations is not a document generally accessible to members of the Bar.  In any event, that evidence is far from clear.  In various places the evidence refers to the question as whether the supplementary occupation is “compatible” with practice at the Bar, suggesting that compatibility is one of the criteria for the Bar Council to give special permission under paragraph 23(3).  The notion of compatibility is, however, not found in the Code (except in the heading of Annex 4 which does not shed light on its meaning) (see further paragraphs 109-110 below).  It does not seem that the term is employed by the Bar Council as a shorthand for the Reputation Rule.  Various passages in the Initial Response and the respondent’s affirmation referring to compatibility and the Reputation Rule as separate requirements would suggest that the two are not coterminous.  Further, compatibility is sometimes expressed as compatibility with practice as a barrister, and sometimes as compatibility with the Code.

81.  Thus the Initial Response stated (at p 2):

“There must be no incompatibility, nor may the occupation bring the profession into disrepute, …”

and (at p 4):

“[the applicant] must satisfy … the following requirements: … (2) that he may not engage directly or indirectly in any other occupation if his association with that occupation may adversely affect the reputation of the Bar; … (4) the supplementary occupation is compatible with Article 23 generally; and (5) the supplementary occupation is compatible with the Code as a whole”.

The affirmation of the Honorary Secretary stated (at §11):

“… the supplementary occupation must not: (a) Be incompatible with the practice as a barrister; (b) Bring the profession into disrepute …”

82.  On that basis the Bar Council is clearly not simply applying the other three rules contained in paragraph 23 of the Code when it considers whether to give permission under the Supplementary Occupation Rule.  It also considers, inter alia, whether the supplementary occupation is one that is compatible with practice at the Bar.  How then does one determine compatibility?  According to the Initial Response of the respondent, one has to view the supplementary occupation “with reference to the ethos, status, and traditions of the profession”.  What that means was not elaborated upon further.

83.  The evidence also shows that the Bar Council has, pursuant to paragraph 23(3) of the Code, refused permission for supplementary occupation on the ground that there was a risk that the applicant might use directly or indirectly his status as a barrister to further another occupation or business, contrary to paragraph 24 of the Code, which provides:

“A practising barrister may not use or permit the use of his professional qualification for the advancement of any other occupation in which he is directly or indirectly engaged or for private advantage, save in relation to any occupations which involve the skills of a barrister.”

Thus the possibility offuture breach has been seen as a sufficient reason for rejection.  Permission will be refused by the Bar Council where there is a concern that the nature of the proposed supplementary occupation in question was a “vehicle for other business ventures”.  Permission will also be refused where the workload in the intended supplementary occupation is such that it would “affect [the barrister’s] ability to attend to his/her practice”.  None of these reasons is stated in paragraph 23 or in any other provision of the Code or in any document published to the members.

84.  The respondent prayed in aid Annex 4 to the Code, containing as it does supplementary occupations for which general permission has been given.  Annex 4 does not, however, purport to be a list of occupations for which special permission may be given on a case by case basis.  Indeed, by definition, occupations that require special permission will not be on that list.  Nor is it possible to find any basis to apply some kind of ejusdem generis principle to infer what would be permitted.  It is, in my opinion, simply impossible to deduce with any confidence from Annex 4 what kind of supplementary occupation will be approved by the Bar Council on an ad hoc basis.

85.  In these circumstances I am unable to subscribe to the view expressed by the Honorary Secretary that “[t]he wording of paragraph 23 of the Code (read with Annexes 4 and 4A) makes it clear … exactly what would be permitted (and thus approved by the Bar Council) and what would not”.  With respect, the considerations that, on the respondent’s evidence in these proceedings, would be taken into account by the Bar Council in considering whether to give permission under paragraph 23(3) are neither accessible to a barrister generally nor clear and certain.  Paragraph 23(3) of the Code confers on the Bar Council a power of prior restraint with no principle, guidance or even indication provided as to the scope of this discretion and the manner of its exercise.

86.  I say at once I have no doubt at all that in exercising its power under paragraph 23(3) of the Code, the Bar Council has always acted in good faith, in the belief that its decision was in the interests of the Bar and ultimately in the interests of the administration of justice in Hong Kong.  Nor did the applicant make any allegation that the Bar Council had acted capriciously.  The “prescribed by law” requirement is however not met by an executive body exercising its discretion with the best of intentions, but by “an adequate indication of the scope of the discretion” in the law itself (see Leung Kwok Hung v HKSAR, supra, at §29). With regard to the power of the Bar Council to approve or disapprove supplementary occupation, it requires accessibility and clarity in the criteria to be applied, which appears to me to be lacking in the existing provision of the Code.  Even giving due allowance for the latitude to be afforded to the Code as a set of professional rules of ethics as opposed to criminal legislation, in my opinion the attendant obscurity and uncertainty is such that the Supplementary Occupation Rule does not qualify as a restriction prescribed by law.

The other rules in paragraph 23

87.  Mr Parker also attacked the Reputation Rule and the Prejudice Rule as being too vague and uncertain and not amounting to a restriction prescribed by law.  These issues do not directly arise in these proceedings.  As at present advised, I am inclined to think that such an attack should fail.  The additional occupations in which barristers may seek to engage are myriad, cannot be exhaustively enumerated or described, and may well change over time.  The standards in question, namely, where a barrister’s “association with that occupation may adversely affect the reputation of the Bar” and a barrister’s “association with that occupation may prejudice his ability to attend properly to the interests of his clients”, are in my view reasonably comprehensible to a competent professional person, not least barristers who, as Mr Parker rightly admitted, can be assumed to be proficient in navigating complex, rule-based systems.  As to what kind of occupation would bring about the specified effect on the Bar’s reputation or on a client’s interests, it seems to me to be a matter that depends on the ethics of the profession which, as Hughes CJ said in Semler v Oregon State Board of Dental Examiners 294 US 608 (1935), at p 612, “is but the consensus of expert opinion as to the necessity of such standards”.  As Ma CJHC pointed out in relation to the medical profession in Dr Kwok Hay Kwong v Medical Council of Hong Kong [2008] 3 HKLRD 524 at §22:

“…the courts have consistently recognized that medical regulatory bodies (such as the [Medical Council]) are the best placed to determine the boundaries of medical professional conduct”.

88.  Likewise I do not think the Primary Occupation Rule is itself so vague and uncertain as to fall foul of the “prescribed by law” requirement.  “Primary occupation” is an ordinary phrase readily understood, unlikely to present difficulties of determination for any reasonable practitioner; nor did Mr Parker submit to the contrary.  What he argued, instead, is that coupled with the discretionary power for the Bar Council to give permission under paragraph 23(1) of the Code exempting a barrister from the rule (which appears to be at large) and given in addition the existence of Annex 4A, the restriction imposed by the Primary Occupation Rule is of uncertain breadth.  This is an interesting argument but as the question does not directly arise for determination in this case I prefer not to express a view on it.

VIII. ISSUE 2(C) – WHETHER THERE EXISTS A RATIONAL CONNECTION TO THE LEGITIMATE AIM

89.  As Ribeiro PJ stated in Kong Yunming v Director of Social Welfare (2013) 16 HKCFAR 950 at §139:

“Restrictions on rights protected by Article 36 must pursue a legitimate societal aim and must be rationally connected with the achievement of that end, employing measures that do not make excessive inroads into the protected right. If the restriction is not rationally connected to the avowed legitimate purpose or if the inroads it makes into the protected right are manifestly without reasonable foundation, the Court may declare the measure unconstitutional.”

Supplementary Occupation Rule

90.  Mr Parker’s main attack under this issue is directed towards the Primary Occupation Rule and the Supplementary Occupation Rule.  So far as the Supplementary Occupation Rule is concerned, the aim that it pursues may be divided into two levels: first, the aims sought to be served by imposing the considerations and criteria that the Bar Council actually takes into account in deciding whether to give permission; secondly, the aims sought to be achieved in having a system requiring the prior consent of the Bar Council before a barrister can engage in any supplementary occupation.

91.  On the first level, since the scope of the discretion of the Bar Council under the Supplementary Occupation Rule and the criteria by reference to which it is exercised are, as they seem to me, unclear, it is difficult to see with precision what the legitimate aims are that are pursued by those criteria.  In any event those aims can be served by simply requiring the criteria to be satisfied, without having a system that necessitates prior permission.   

92.  On the second level, the evidence is not clear as to what the legitimate aim is.  Two benefits of the present regime have been mentioned in the materials.  First, in the words of the Honorary Secretary:

“Where an application to engage in a supplementary occupation is approved, the applicant can rest assured that his/her engagement is indeed compatible with and in accordance with the Code, and with the practice as a barrister generally.”

93.  I doubt that this can be regarded as a legitimate aim, significant enough in the context of the imposition of a restriction on a fundamental freedom.  As Mr Parker observed, professionals and, a fortiori, barristers can generally be expected to be able to construe their own professional rules and regulate their own behaviour accordingly.  Where a barrister was in doubt, there would be nothing to prevent him from asking the Bar Council of his own volition for guidance and nothing  to prevent the Bar Council from giving such advice as it saw fit.  To require every barrister to seek the Bar Council’s blessing before being allowed to engage in a supplementary occupation seems to me a paternalistic measure going far beyond what is needed in order to provide the stated benefit.  It is in my opinion not a legitimate objective to force the comfort of that assurance upon all barristers who are considering a supplementary occupation irrespective of whether they wish to have it.

94.  In fact the special committee of the Bar (referred to in paragraph 19 above) recommended in 2008 that supplementary occupation be permitted generally except where it is inconsistent with any provision of the Code and that paragraph 23(3) of the Code be replaced with a provision that asks members to seek the ruling of the Bar Council in case they are in doubt whether the supplementary occupation is permissible.  The respondent has not explained why that proposal was eventually not adopted and paragraph 23(3)(a) has been retained unchanged.

95.  Furthermore, in the context of the statutory disciplinary system of the Bar found in the Ordinance, the role of the Bar Council is generally the applicant, ie the prosecutor.[12]  Whether a barrister has breached the Code in any particular case is a matter ultimately for the Barristers Disciplinary Tribunal, a statutory tribunal independent from the Bar Council, subject to an appeal to the Court of Appeal.  The Bar Council has no power to give a binding decision on whether or not the Code has been breached.  Nor is it, strictly speaking, within the power of the Bar Council to give any assurance that a barrister will not be prosecuted before the Barristers Disciplinary Tribunal, for where the Bar Council does not make a reference, it is ultimately a decision for the Chief Judge of the High Court whether or not to submit a matter to the Tribunal (see s. 35(2) of the Ordinance).

96.  The second perceived advantage of having a system of prior notice and permission is stated in the Initial Response of the respondent, which suggested that the Supplementary Occupation Rule:

“also protects the Bar as it provides the Bar Council with important information about profession related matters that it could not otherwise police or know”.

97.  Again I am unable to accept this as a legitimate aim sufficient to call for restrictions to be placed on the exercise of a fundamental right.  This seems to me to be an instance of the Bar Council as legislator making a rule to facilitate the work of the Bar Council as police and prosecutor.  To impose a blanket requirement for prior permission on the ground that policing problems exist is to subjugate the right to enforcement convenience.  Further, the Bar’s own special committee had recommended abolishing the requirement without noting any concern about difficulty of enforcement.  In my view the claim of this advantage as a legitimate aim, if there is such a claim, is not made out.

Primary Occupation Rule

98.  As explained above I do not think the Primary Occupation Rule is directly in issue in this case.  In deference however to the arguments raised by both sides I shall refer to their submissions below.  Mr Parker accepted that the Primary Occupation Rule pursues a sufficiently important legitimate aim.  The aim has been put in the following way by Mr Anthony Thornton QC in Cranston, R (Ed), Legal Ethics and Professional Responsibility (1995) at p 70:

“The reason for the requirement concerned with full-time practice is to seek to ensure that a barrister is able to concentrate exclusively on a case once the preparation for trial, or the trial itself, has started and to retain the necessary cutting edge required of a professional advocate. It is necessary, to maintain high standards, for an advocate to practice advocacy regularly and frequently. The complaint about many American advocates is that they appear in court too infrequently to have obtained the necessary experience of the courtroom.”

99.  In the submission of Mr Parker, the exceptions to the Primary Occupation Rule break its rational connection to the legitimate aim.  Look at Annex 4A, submitted Mr Parker, and questions immediately spring to mind: if keeping practice at the Bar a barrister’s primary occupation is necessary for the barrister to attain or maintain the requisite level of skill and competence – to retain his “cutting edge”, why are practising barristers given general permission to be a member of the Executive Council, the Legislative Council, any District Council, the Heung Yee Kuk or any rural committee or to act as a “Village Representative”, even if these positions occupy more than 50% – even 100% – of their time and energies?  Why should there be standing permission for practising barristers to teach law (not necessarily Hong Kong law or even common law) in any jurisdiction, or to administer any law faculty or law school, even if these activities become their primary occupations or even engage them full-time?  Why should barristers not be restrained from spending the majority of their time on “hobbies” that are not occupations?

100.  Mr Parker submitted that these questions show that the Primary Occupation Rule under-regulates when viewed against its stated aim.  Putting it in another way, he submitted that the rule over-regulates – it goes further than necessary – because the exceptions to it show that the restriction is not considered necessary in order to maintain sufficient competence and diligence in practice or, in other words, it is not considered necessary for achieving the aim pursued.

101.  In support of his submission Mr Parker referred to A v Secretary of State for the Home Department [2005] 2 AC 68, which concerned a provision in the United Kingdom’s Anti-terrorism, Crime and Security Act 2001 for the detention of non-nationals if the Home Secretary believed that their presence in the country was a risk to national security and he suspected that they were terrorists who could not be deported because of fears for their safety or other practical considerations.  The House of Lords held that the statutory provision in question did not rationally address the threat to national security presented by Al-Qaeda terrorists and their supporters since it did not apply to United Kingdom nationals, since it permitted non-national suspects to leave the United Kingdom if they could safely do so, and since it permitted the detention of persons not suspected of presenting any threat to national security as Al-Qaeda terrorists or supporters.  In the words of Lord Hope at §133:

“As Mr Pannick QC put it for Liberty, section 23 of the 2001 Act is not rationally connected to the legislative objective. If the threat is as potent as the Secretary of State suggests, it is absurd to confine the measures intended to deal with it so that they do not apply to British nationals, however strong the suspicion and however grave the damage it is feared they may cause. There is also the point that foreign nationals who present the same threat are permitted, if they can safely do so, to leave this country at any time. Here too there is a clear indication that the indefinite detention of those who remain here as a means of countering the same threat is disproportionate.”

102.  The principle was similarly applied in Bank Mellat v HM Treasury (No 2) [2014] 1 AC 700.  In that case the United Kingdom Treasury had given a direction by statutory instrument pursuant to the Counter-Terrorism Act 2008 prohibiting all persons in the financial sector from entering into any business relationship with the claimant, a major Iranian commercial bank, on the ground that it was believed that the development of nuclear weapons in Iran posed a significant risk to the national interests of the United Kingdom.  In the result the Supreme Court quashed the order as being unlawful.  Lord Sumption said at §25 :

“A measure may respond to a real problem but nevertheless be irrational or disproportionate by reason of its being discriminatory in some respect that is incapable of objective justification. …”

His Lordship however rested his decision not on the ground that the direction had no rational connection with the objective of frustrating Iran’s weapons programmes, but on the ground that the distinction between the claimant and other Iranian banks was an arbitrary and irrational distinction and that the measure as a whole was disproportionate.  In his words at §27:

“The direction was irrational in its incidence and disproportionate to any contribution which it could rationally be expected to make to its objective.”

103.  Further, as a means of maintaining standards, the Primary Occupation Rule will only be meaningful if as a result barristers actually spend their time primarily on legal work.  But not all barristers necessarily receive sufficient instructions for their practice to occupy the majority of their working hours.  The rule forbids them from engaging in other gainful occupation during the surplus majority of their working time, but does not compel them to do anything to maintain or improve their professional competence.  McCoy argued that the fair inference is that such barristers will use their surplus time to keep up with legal developments, case law and legislation, because it is in their self-interest to do so.  He argued that, if one cannot practise as a barrister except as a primary occupation, then one has the incentive to take up every opportunity for mastering this primary occupation.  In other words, deprivation of the opportunity of alternative employment creates the imperative for self-enhancement of legal learning and skill.

104.  Mr Parker also not surprisingly relied on the fact that legal professions in other jurisdictions either have never had or have abolished any restriction similar to the Primary Occupation Rule.  Why is the limitation on free choice of occupation not necessary for the proper functioning of the legal profession in those jurisdictions and yet somehow is necessary in the Hong Kong Bar?  Mr McCoy argued that overseas jurisdictions are not directly comparable having regard to their different continuing professional education regimes.  But the question remains as to whether it is a proportionate measure to retain the rule instead of replacing it with a suitable programme for continuing professional development.

105.  As I have explained above, the Primary Occupation Rule is not directly engaged in this case and it is unnecessary for me to express an opinion on it.  Nor am I satisfied that all the evidence relevant to that question has been filed such as the reasons for the Hong Kong Bar not to have introduced mandatory continuing professional education for its members.[13] All I say at this stage is that Mr Parker’s arguments merit serious consideration but the question will have to left to another occasion.

IX. ISSUE 2(D) – WHETHER THE RESTRICTION SATISFIES THE REQUIREMENT OF PROPORTIONALITY

106.  So far as the Supplementary Occupation Rule is concerned, in light of the views I have reached on the “prescribed by law” requirement and the rational connection requirement, the question of proportionality does not arise.

107.  Although Mr Parker waxed eloquent about the austere effects of the Primary Occupation Rule on members of the Bar, especially junior barristers, and argued that they are disproportionate to what is sought to be achieved and what is actually achieved, the question does not arise and I decline to enter into a discussion of the proportionality of the Primary Occupation Rule.

X. ISSUE 3 – ADEQUACY OF REASONS

108.  Mr McCoy submitted that the Bar Council was not obliged to give reasons for refusing permission to a barrister to engage in a supplementary occupation, but it is not in dispute as a general principle that where reasons are given, even voluntarily, they must be adequate: R v Criminal Injuries Compensation Board, ex p Moore [1999] 2 All ER 90, 95j; Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155, §§97 and 98; Anderson Asphalt Ltd v Secretary for Justice [2009] 3 HKLRD 215, §102. Adequate reasons do not necessarily mean elaborate explanation.  But in the present context they should at least enable the applicant to know the ground on which permission was refused and broadly why the Bar Council had come to its decision.  In my view the reply that the Bar Council was “not satisfied that [the applicant’s] engagement as a Neuro-Beautology [sic] would be compatible with [his] practice as a barrister”, even when read in the context of the preceding correspondence, falls short of the requirement of the law and fairness.  The letter did not even mention that the supplementary occupation was considered by the Bar Council, based on the information provided by the applicant, to be incompatible by reason of its “nature” and “lack of professional standing”, as has since been explained in the respondent’s affirmation.[14]  The affirmation stated in the same paragraph that the applicant had failed to provide sufficient cogent evidence of the nature and standing of the proposed supplementary occupation.  This is something the applicant ought in fairness to have been told.  Had the applicant been informed he might well have taken steps in an attempt to address the concern.  The reasons for refusal, even if obvious to the persons who had attended the Bar Council meeting, were not so self-evident as to make the reply clear and adequate.

109.  Further, as stated in paragraph 80 above, incompatibility with practice at the Bar is not a concept found in the text of paragraph 23 of the Code or in any other paragraph.  Annex 4 does set out certain occupations said to be supplementary occupations “approved as compatible with practice at the Bar”, but does not explain what that means in the context of the Code.  The language appears to be a remnant of former English practice.  A student on call to the Bar in England used to have to give an undertaking that so long as he continued to practise as a barrister in England or Wales, he would not, unless authorised by the Benchers of his Inn or the Senate of the Four Inns, engage in any other occupation which was incompatible with practice at the Bar: see W W Boulton, A Guide to the Conduct and Etiquette at the Bar (5^th ed 1971), p 17; Consolidated Regulations of the Inns of Court (June 1970), 4^th Schedule at (d).  The Council of the Bar of England and Wales had in the past also made rules stipulating that a practising barrister should not “engage or be concerned directly or indirectly in any profession, vocation, trade or business which is, under a current ruling of the Bar Council, incompatible with practice at the Bar”: W W Boulton, op cit, at p 18. 

110.  No such undertaking or rule however remains in the Code of Conduct the Hong Kong Bar.  There is a provision in rule 14(1)(c) of the Barristers (Qualification for Admission and Pupillage) Rules (Cap. 159AC) and rule 5(c) of the Barristers (Qualification) Rules (Cap. 159E) that a person is not eligible to become a pupil if he “is engaged in any occupation which, in the opinion of the Bar Council, is incompatible with pupillage”.  No similar subsidiary legislation applies to practising barristers generally.  “Incompatible with one’s practice as a barrister” is not a term the meaning of which the applicant can readily ascertain from legislation or the Code.

111.  Mr McCoy spent much time criticising the applicant for not providing sufficient information to the Bar Council about neuro-beautology for his application to be considered.  That seems to me to be irrelevant since the Bar Council did not reject the application for lack of information about the proposed occupation.  Nor does it justify giving reasons that are so terse as to be inadequate.  

112.  To my mind the Bar Council’s reply gave the applicant no adequate indication of why it had refused his application. 

XI. CONCLUSION AND ORDERS

113.  It follows from the above discussion that, in my view, paragraph 23 of the Code and the Bar Council’s decision pursuant to it are amenable to judicial review, the Supplemental Occupation Rule in paragraph 23(3) of the Code infringes Art. 33 of the Basic Law and is not justified as a restriction prescribed by law that is rationally connected to a legitimate aim that it seeks to achieve.  Accordingly it is in my judgment unconstitutional and invalid.  Further, the decision of the Bar Council gave reasons which were inadequate.

114.  For the foregoing reasons, the application for judicial review succeeds on both grounds.  There will be a declaration that paragraph 23 of the Code of Conduct infringes Art. 33 of the Basic Law insofar as it prevents a barrister from engaging in any supplementary occupation without the prior permission of the Bar Council.  I give liberty to apply in respect of the precise wording of the declaration.

115.  There will be an order of certiorari bringing up the decision of the Bar Council to this court and quashing it. 

116.  There will also be a costs order nisi in favour of the applicant.