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HCMP001676/1991
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H E A D N O T E
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Motion by the Bar Committee of the Hong Kong Bar Association under section 32, Legal Practitioners Ordinance to strike off the name of a barrister from the roll of barristers on the grounds that he has been guilty of such misconduct as to make him unfit to practise.
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS NO. 1676 OF 1991
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IN THE MATTER of EDWARD CHRISTOPHER HARRIS
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IN THE MATTER of Section 32 of THE LEGAL PRACTITIONERS ORDINANCE CHAPTER 159
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Coram: Hon Jones J. in Court
Dates of hearing: 30 September, 1 and 2 October 1991
Date of delivery of decision: 2 October 1991
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D E C I S I O N
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1. This is a motion by the Bar Committee of the Hong Kong Bar Association under s.32 of the Legal Practitioners Ordinance (the ordinance), Cap. 159, for an order to strike off from the roll of barristers Edward Christopher Harris, (the respondent) on the grounds that he has been guilty of such misconduct as to make him unfit to practise. Section 32 where relevant reads :-
"32 Power of Court to strike off or suspend barrister
(1) The Court shall have power on reasonable cause being shown to remove from or strike off the roll of barristers or to suspend from practice any barrister who has been guilty of such misconduct as to make him unfit to practise, .... "
2. The misconduct complained of relates to the respondent's conviction in the District Court on the 19th February 1990 of a charge of incitement to procure a girl under the age of 21 years to have unlawful sexual intercourse with a third party, namely himself, contrary to s.82 of the Interpretation and General Clauses Ordinance, Cap. 1 and s.132 of the Crimes Ordinance, Cap. 200.
3. The offence took place on the 21st April 1989 and the person incited was an undercover police officer. The respondent was sentenced to 18 months' imprisonment. His appeals against conviction and sentence were dismissed by the Court of Appeal while a petition for leave to appeal to the Privy Council, limited to the issue of abuse of process arising from the Attorney General's change of mind in deciding to prosecute was refused. The respondent was acquitted on two similar charges of incitement in which the person incited was a different person. An appeal by the Crown against the acquittals by way of case stated was dismissed by the Court of Appeal.
4. The respondent is aged 36. He was called to the Bar in England on the 27th July 1978. He commenced employment in Hong Kong on the 22nd November 1982 as a Crown Counsel in the Prosecutions Division of the Attorney General's Chambers. The respondent was admitted to the Hong Kong Bar on the 26th April 1986.
5. The respondent who appeared in person accepts the admissibility of his conviction and sentence but challenged the admissibility of the judgments pronounced by the District Court and the Court of Appeal. However, I did not hear full argument on the objection for Mr Ching, counsel on behalf of the Bar Committee, said that the court is entitled to rely upon the evidence of the conviction and sentence. I have in fact not found it necessary to refer to the judgments for at the end of the day, the issue to be decided is whether the conviction of the respondent amounts to misconduct within the section to warrant the removal of his name from the roll of barristers.
6. The respondent has not sought to challenge that the conviction and the sentence imposed were wrong. The respondent has filed an affidavit in which he states that he believes he is a well-respected lawyer and advocate and to his knowledge, there have never been any complaints, formal or informal about his conduct as a barrister and believes that as a barrister, he has at all times conducted himself with integrity and dignity in compliance with the high standards of the Bar and that it is his intention to continue to do so. He believes he is fit to practise at the Bar. Although the evidence is uncontradicted, the respondent adduced no evidence in support by way of character references or otherwise.
7. The respondent goes on to deal with his sexual fantasy which he contends would not render him unfit to practise as a barrister. The respondent refers to his contact with Miss McKenzie, having ended in November 1988 and that the subsequent events would not have happened if the police had not taken steps to entrap him. He also places reliance upon the Attorney General's decision not to prosecute following advice that he had received from a Queen's Counsel in private practice that his conduct did not amount to a criminal offence. Nevertheless, at the invitation of the Attorney General, the respondent resigned from his employment in the Attorney General's Chambers and said he would commence practice at the private Bar. The reasons for his resignation were later communicated to the Bar Committee without the respondent's objection.
8. In August 1989, the respondent attempted to start practice at the Bar, but as a result of a number of articles published in the press that criticised the Attorney General for his failure to prosecute, he left Hong Kong. The respondent was considerably aggrieved by this publicity which he described as gleeful gloating that was intended to appeal to the smug and sanctimonious sections of Hong Kong.
9. Thereafter, the Attorney General obtained another opinion from the same Queen's Counsel who had advised previously, but he again advised against a prosecution. However, the Attorney General sought a further opinion from a member of his own chambers, Mr Warwick Reid, who advised in favour of a prosecution. It is not in dispute that the respondent returned to Hong Kong from Indonesia on the 23rd October 1989 when he was arrested.
10. Mr Ching drew my attention to certain rules set out in the Code of Conduct for the Bar of Hong Kong, including rules 4 and 6 (b) which read as follows :-
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"4. Every barrister, 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.
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6. |
It is the duty of every barrister
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(a) |
…. ;
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(b) |
not to engage in conduct (whether in pursuit of his profession or otherwise) which is dishonest or which may otherwise bring the profession of barrister into disrepute, or which is prejudicial to the administration of justice;"
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Mr Ching also referred to rule 3 (b) of the Barristers Qualification Rules that require a person desiring to become a pupil in Hong Kong, to furnish certificates of character from two responsible persons and made the comment that if the respondent was seeking to become a pupil with the conviction that he has against him, it would not be possible for him to be accepted. I accept the force of this submission.
11. The respondent referred me to s. 18 (1) (a) of the Dentists Registration Ordinance, Cap. 156 and to s.21(1) (a) of the Medical Registration Ordinance, Cap. 161 that provides a discretionary power for the respective councils to remove the name of a registered dentist or a registered medical practitioner in the event of a conviction in Hong Kong or elsewhere of any offence punishable with imprisonment. He contrasted those sections with the Legal Practitioners Ordinance which does not have an equivalent provision.
12. The respondent cited in support of his argument Re H (a barrister) [1981] 3 A11 ER 205 where a barrister of eight years' standing was found guilty by a jury of a charge of persistently importuning for immoral purposes in a public lavatory on one occasion for which he was fined ?50. Subsequently, as a result of the conviction, the barrister admitted one charge of conduct unbecoming a barrister before the disciplinary tribunal of the Senate of the Inns of Court and the Bar and was sentenced to a period of three months suspension from practice as a barrister. The barrister then appealed against the sentence to the Judges of the High Court sitting as visitors of his Inn of Court. Dealing with the matter of sentence, Latey, J. delivering the decision of the visitors had this to say at 207 and 208 :-
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" At the heart of the matter are three general questions regarding the approach to sentencing. First, is there a distinction to be drawn between misconduct by a barrister in his professional practice and misconduct in his private life? Second, where the misconduct is in the commission of a criminal offence, to what extent should the fact that he has unsuccessfully pleaded not guilty affect the sentence of the disciplinary tribunal? Third, to what extent should the disciplinary tribunal have regard to sentences imposed in comparable cases?
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As to the first question, we are in no doubt that a distinction should be drawn between professional misconduct and misconduct outside the profession. In Re a solicitor [1956] 3 All ER 516, [1956] 1 WLR 1312 a solicitor had been convicted of two indecent assaults and sentenced to three months' imprisonment. The Disciplinary committee under the Solicitors Act 1932 ordered name to be struck off the roll of solicitors. He appealed to the Divisional Court. Giving the judgment of the court Lord Goddard C. J. said ([1956] 3 All ER 516 at 517, [1956] 1 WLR 1312 at 1314) :-
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'This court is always, and always has been, very loth to interfere with the findings of the Disciplinary Committee either on a matter of fact, because they understand these matters so well, or with regard to penalty. If a matter were one of professional misconduct, it would take a very strong case to induce this court to interfere with the sentence passed by the Disciplinary Committee, because obviously the Disciplinary Committee are the best possible people for weighing the seriousness of professional misconduct. There is no suggestion of professional misconduct in this case. That being so, this court is bound to consider, as the Court of Criminal Appeal would have to do, whether or not in its opinion the sentence is in proportion or out of proportion to the misconduct which has been, proved.'
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That, in our opinion, lays down the approach today as correctly as it did in 1956, and is equally appropriate to the disciplinary tribunal of the Senate and the visitors, though the sentence whichthe Divisional Court imposed in that case (suspension from practice for two years) in what counsel have aptly described as the pre-Wolfenden era would in the ordinary run of cases be inappropriate in the changed climate of the post-Wolfenden era."
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13. The Court then went on to consider whether the factor of an unsuccessful plea of not guilty should be taken into account and on this matter Latey J. said at 208 : -
"We agree that in this context a barrister cannot expect to be put in a special position. But that does not destroy the generality of counsel's submission for the appellant. We agree with it. An unsuccessful plea of not guilty is a factor which it is proper for the disciplinary tribunal to weigh with all others, but it should not be the predominant factor leading to the very heavy sentence of suspension from practice where otherwise there would have been the lighter one of reprimand, unless there are aggravating circumstances."
It is pertinent to observe the matters referred to in mitigation in that case which appear at p. 209 : -
"Finally, the mitigation in the. instant case was described by the tribunal as impressive. Indeed it is. The appellant is spoken of in the highest terms by judges before whom he practices, by the head and all members of his chambers, by leading counsel who was his pupil-master and by solicitors regularly instructing him. The appellant's offence, isolated though it is, is not trivial. But neither is a reprimand a trivial penalty, and we consider it the appropriate one to meet and mark the offence."
14. The facts in Re a solicitor referred to in that case reveal that the solicitor was found guilty of two charges of indecent assault and was sentenced to three months' imprisonment. The Disciplinary Committee of the Law Society subsequently ordered the name of the solicitor to be struck off the roll of solicitors. On an appeal to the Divisional Court, the penalty was reduced to a period of two years suspension. The court in coming to its decision, took into account a large number of affidavits from the solicitor's professional colleagues who testified as to his excellent character.
15. The respondent has resisted the present application based upon factors that go to mitigation and to his assertion which I quote from his submission that "all people have all sorts of foibles in their private lives which do not make them unfit to practise although it may be open to moral censure". The meaning of foible in the Shorter Oxford English Dictionary is "a weak point; a failing or moral weakness". The act of inciting a person to procure a girl under the age of 21 to have unlawful sexual intercourse can in no way be described as a foible or a harmless peccadillo. It is a serious criminal offence that carries a maximum term of imprisonment of five years.
16. In order to command proper respect for the law, members of the legal profession must maintain high standards and behave in such a way that the profession is not brought into disrepute. It is vital that members of the public should have confidence in members of the profession. A sentence of imprisonment in the normal course of events must necessarily amount to misconduct that renders a member of the Bar unfit to practise.
17. I accept that a distinction must be drawn between professional misconduct which does not apply in the present case and misconduct outside the profession as appears from Re H (a barrister). But the court in the instant case is not dealing with the respondent's personal and private sexual idiosyncrasies, nor with a harmless sexual fantancy that amounts to a mere foible, but as I say, with a serious criminal offence for which the respondent was sentenced to prison for 18 months. In my judgment, the offence for which the respondent was convicted, amounted to misconduct as to make him unfit to practise.
18. The respondent submitted that I should either impose no penalty or there should be only a period of suspension. However, I am unable to agree. It would be absurd to impose no penalty while a period of suspension would not reflect the gravity of the offence committed. The present case is far more serious than the cases that were cited to me in argument, and there is also an absence of the strong mitigating circumstances present in those cases. I am, therefore, quite satisfied that an order should be made for the name of the respondent to be struck off from the roll of barristers.
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(B. L. Jones) |
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Judge of the High Court |
Representation:
Mr Charles Ching, Q. C. and Miss Anita Yip (C. Y. Kwan & Co.) for Applicant.
Mr Edward Christopher Harris, Respondent in person.
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS NO. 1676 OF 1991
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IN THE MATTER of EDWARD CHRISTOPHER HARRIS |
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and
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IN THE MATTER of Section 32 of THE LEGAL PRACTITIONERS ORDINANCE CHAPTER 159 |
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Coram: Hon Jones J. in Court
Date of hearing: 30 September 1991
Date of delivery of Ruling: 30 September 1991
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R U L I N G
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The respondent has made a preliminary objection to the use of s.32 of the Legal Practitioners Ordinance (the ordinance) by the Bar Committee in its application to strike off his name from the roll. Section 32 of the ordinance where relevant reads :-
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"32. Power of Court to strike off or suspend barrister
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(1) The Court shall have power on reasonable cause being shown to remove from or strike off the roll of barristers or to suspend from practice any barrister who has been guilty of such misconduct as to make him unfit to practise,...."
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The respondent argued that the section stands on its own for it makes no reference to findings of fact and he contrasted the section to s.34 - s.37 of the ordinance which deals with the establishment of a Committee of Inquiry, its functions and powers and the powers of the Court of Appeal including the power to strike off the name of a barrister.
He submitted that s.32 is intended to cover a summary disciplinary procedure to such cases where there has been misconduct by counsel in the face of the court where the facts are known to the count. The respondent in particular referred to s 36 that governs the procedure for the conduct of an inquiry and for an investigation into the facts by enforcing the attendance of witnesses and for the conduct of their examination.
Mr Ching, counsel for the Bar Committee, in reply submitted that s.32 is appropriate and invited me to take judicial notice of the respondent's conviction and to the evidence filed in support in respect of the present motion and to the fact that the respondent has not contended that he was wrongly convicted.
I am quite satisfied that the facts in this case were established at the hearing in the District Court and that all avenues of appeal open to the respondent have been exhausted. Accordingly, I agree with the submission of Mr Ching that no useful purpose would be served by invoking the procedure set out in ss. 34 - 37 to set up a Committee of Inquiry which would be a complete waste of time.
I therefore hold that the proceedings are properly constituted under s.32.
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(B. L. Jones) |
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Judge of the High Court |
Representation:
Mr Charles Ching, Q. C. and Miss Anita Yip (C. Y. Kwan & Co.) for Applicant.
Mr Edward Christopher Harris, Respondent in person.
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