RE AUGUSTINE CHUNG SHAI KIT

Solicitor - application to restore name to Roll of Solicitors, s.5(3) Legal Practitioners Ordinance - principles to be applied.

Decision of Cons; V. -P. in In the Matter of John Richard Duffy (Misc. Proceedings No. 2579 of 1987: 21 December 1987, unreported) followed.

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JUDGMENT

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Fuad, V. -P.:

1. This is an application by Mr. Augustine Chung Shai Kit ("the Applicant"), a former solicitor, for an order directing the Registrar of the Supreme Court to replace his name on the Roll of Solicitors. The application is made under s. 5(3) of the Legal Practitioners Ordinance which empowers the Chief Justice to make such an order "at any time" and "if he thinks fit". This jurisdiction may be exercised by any judge of the Supreme Court by virtue of s.36 of the Supreme Court Ordinance.

2. The Applicant appears in Person. The Law Society opposes the application and is represented by Mr. Denis Chang, Q.C..

3. The Applicant was admitted as a solicitor of the Supreme Court of Hong Kong in February 1970. He practised in the same firm for the next six years, first as an Assistant Solicitor and later as the second partner.

4. Complaints regarding the conduct of the Applicant were made by the Law Society itself and heard by a Disciplinary Committee appointed by the Council of the Law Society. On 23 February 1976 the Committee ordered the name of the Applicant to be struck off the Roll.

5. The allegations against the Applicant can be divided into three groups - (i) advertising his practice as a solicitor in breach of rule 2(b) of the Solicitors Practice Rules; (ii) improperly accepting gifts and advantages and (iii) threats to and attempted extortion from a fellow solicitor, Mr. Donald Cheung. Two of the allegations under (iii) and one allegation put in the alternative were not proceeded with before the Disciplinary Committee. The Applicant admitted all the other allegations.

6. Although the Disciplinary Committee described the breach of the rules relating to advertising as "blatant", "deliberate" and "wilful" and concluded that the Applicant "had no regard for the ethics or proprieties of the profession or the standards expected of him", I will say no more about this finding because had that been his only transgression it is doubtful whether, after the passage of 12 years, and in the light of the Applicant's conduct since the striking off, his restoration to the Roll could fairly have been resisted. Such a severe penalty is unlikely to have been imposed in the first place.

7. The complaints under groups(ii) and (iii) were framed as follows:

8. In their written Decision, the Disciplinary Committee noted that the Applicant had been acquitted by the District Court of offences under ss.17 and 23 of the Theft Ordinance where Mr. Donald Cheung was the alleged victim "having been given the benefit of the doubt on the element of intent. "

9. In respect of allegations (c) and (d), they said :

"We accept the approach which we have been asked to adopt by Counsel for the Respondent that we give the Respondent the same benefit of the doubt which was given to him by the District Court, namely, that what he did was the result of his experiment in human psychology and that he used Donald Cheung for such experiment."

10. Later they said :

"We have paid close attention to all that counsel for the Respondent has said to mitigate the gravity of the offences relating to charges (c) and (d). We have taken into account the medical evidence which shows that the Respondent was suffering from hypomania; but as the mental condition induced thereby did not involve his loss of understanding of what his acts amount to nor tend to make him act out of character, we are unable to regard it as a feature of sufficient mitigating value. It is hardly necessary for us to say that his acts were scandalous amounting as they do to a criminal offence punishable with imprisonment with which the Respondent was, fortunately for him, not charged, but which, had he been so charged, he would, on his counsel's own admission, have been convicted. "

They went on to say :

"Charges (c) and (d) are particularly reprehensible. The deceit which the Respondent practised on a professional colleague; the anxiety and apprehension he must have caused is not only to be deplored if committed (being criminal in nature) by a layman but shows, in addition, the scant regard he had for the law and his total lack of considerations for human decency."

11. This is how the Disciplinary Committee viewed allegations(e), (f) and (g) :

"We think it is deplorable for a partner in that manner to fail to account for monies belonging to the partnership and to put the partnership in the invidious position of not being able to make true returns to the Inland Revenue Department. Such conduct is unbefitting of a solicitor."

12. The Committee, having earlier categorised the Applicant's behaviour in general as "disgraceful", concluded their Decision in these words :

13. I have before me an affidavit sworn by the Applicant in support of his application to be restored to the Roll. He is a permanent resident of Hong Kong. He says that in July 1976, about 5 months after he was struck off, he set up a business acting mainly as a business adviser and management consultant to different business enterprises mainly in the field of transportation. A large proportion of his services were given to the public on a complimentary basis and he lists some of the services be rendered the public between the years 1976 -1988:

14. The Applicant also deposes that he was an elected member of the Urban Council during the years 1979-1986, having been re-elected unopposed for his second term. During his membership of the Urban Council, he served as a Chairman of one of its Select Committees, a Vice-Chairman of two of its other Select Committees and a member of six other Select Committees (he names them all). From 1981-1986 he served as an appointed member of the Wong Tai Sin District Board. During the years 1976-1988 he was the Honorary President and/or Adviser to over one hundred unions, associations and "other establishments".

15. He says that he is financially sound and has kept his knowledge of the law up-to-date. He speaks of a scholarship worth more than $100,000 which he gave to a student to help him study law in the United Kingdom. His beneficiary is now a solicitor practising in Hong Kong.

16. The Applicant concludes his affidavit by giving an account of his present business interests and states that his wife can help him to run them so that they do not require his full-time involvement. "I therefore feel" he adds "that with my knowledge, skill and experience in law, industries, international trade, transport, urban services, real estate development, economic analysis, and so on, I would be more capable of expanding my value to the society if I should resume my practice as a Solicitor in Hong Kong again. "

17. The Applicant put before me another affidavit sworn by him earlier today. To it he exhibited a number of newspaper cuttings which give accounts of his activities since the striking off (some only of which were referred to in his first affidavit). Also exhibited are copies of letters he has written, speeches he has made and trophies he has been given. He explained that the purpose of putting all this before me was to demonstrate that the public trusts and respects him. He also suggests that some of the writings he has exhibited show that he has kept in touch with the law despite his absence from the Roll.

18. In his submissions to me, the Applicant pointed out that if members of the public did not have confidence in him, they would not so often have turned to him for help. His election as Urban Councillor was a plain indication of the trust and respect he had earned. His canditacy for his second term could hardly have been unopposed had members of the public entertained doubts about his integrity or mental stability. Nor would he have been asked to speak (as he often was) at functions organised by Lions Clubs, Rotary Clubs and similar organisations. His fellow councillors would not have elected him as Chairman of so important a Select Committee (responsible for administrating huge funds) as the Capital Works Select Committee, and Vice-Chairman and member of other Select Committees unless they trusted and respected him. He told me that he would need a room of 300 square feet if he were adequately to display all his trophies and souvenirs.

19. The Applicant explained that he had not considered applying to have his name restored to the Poll while he was an Urban Councillor. He decided not to stand for a third term and now wanted to be re-instated so that he could better serve the public. As a solicitor he would not be so accessible to the many who came to him for help. He would be able to turn down cases for good reasons.

20. He fully accepted that he had behaved "exceedingly stupidly" in July 1975. He had made a bad mistake but his conduct was never criminal. He had allowed himself to he carried away by attempting to serve too many members of the public; with his work as a solicitor he was overburdened and overworked. He said that his conduct towards Mr. Donald Cheung had been misunderstood by everyone. He listed 16 what he called "pieces of a jigsaw puzzle" which had not been put in the right places. Had this been done the purity of his motives would have become apparent. In this connection he specifically referred me to a letter he had written to His Excellency the Governor (dated 20 December 1977).

21. I am bound to say that having had the benefit of the Applicant's submissions, however the pieces of the jig-saw puzzle are ordered, I am unable to understand how anyone could view his conduct towards a fellow solicitor in a favourable light, whether or not that conduct was criminal.

22. The Applicant said that "an unfortunate situation had been created, and "a regrettable incident" had occurred but he had served the public devotedly ever since he had ceased to practice. He had rightly been struck off but he had earned the right to have his name restored to the Roll by his irreproachable and public-spirited conduct ever since.

23. We have seen that the Disciplinary Committee took into account the medical evidence that the Applicant was suffering from hypomania. In his judgment the District Judge had noted that the doctor who had given evidence for the Applicant at the trial had described hypomania as a disturbance of moods which affected a person's behaviour. A hypomaniac was invulnerable to logic and reason. Such a person would know what he was doing but would not appreciate the consequences. The doctor gave it as his opinion that the Applicant was in need of treatment.

24. Since the hypomania played so important a part in explaining the Applicant's conduct, it would have been better had there been expert evidence before me about the likelihood or otherwise of hypomania recurring in someone who has once been subject to it. The Applicant told me that he had not agreed with his doctor's diagnosis that he needed treatment but had, nevertheless, accepted medication over a period of some 6 months after the trial in the District Court. However all this may be, I am prepared to accept the Applicant's submission that his activites, writings and speeches in the  past 12 years do not suggest that he is "invulnerable to logic and reason", one of the symptoms, according to his witness at the trial, of the hypomaniac.

25. I propose to follow the approach of Cons, V-P. in In the Matter of John Richard Duffy, Miscellaneous Proceedings No. 2579 of 1987 (21 December 1987, unreported) by applying the principles to which the Solicitors Disciplinary Tribunal of England and Wales adhere when exercising the discretionary jurisdiction to restore a former solicitor to the Roll. I respectfully agree with Cons, V-P. that these principles are appropriate for this jurisdiction. They are to be found set out in Chapter 20 of THE PROFESSIONAL CONDUCT OF SOLICITORS published by the Law Society and at p.325 of CORDERY ON SOLICITORS (8th Edition). The principles are :

26. It is clearly my duty to take into account all the circumstances relating to the conduct which led to the Disciplinary Committees order. The onus is on the Applicant positively to establish that he is now a fit and proper person to be restored to the Roll. Due weight must be given to the attitude of the Law Society. The Applicant must prsuade me that the serious misconduct which prompted the Committee's decision did not make him permanently unfit to practise as a solicitor.

27. The Disciplinary Committee was right to regard the misconduct admitted by the Applicant as being of the most grave and serious character. The Committee had before them the judgment of the District Judge (dated 18 October 1975) who acquitted the Applicant of blackmail and attempting to obtain property by deception. This is the summary by the judge of the Applicant's explanation for his bizarre conduct towards Mr. Donald Cheung :

"He himself claims to believe that a person of integrity, who is subjected to stress and strain, will break-down at a certain point. He also says that he was worried by the slow procedure in Government departments, and that he considered this to be the underlying cause of corruption and other crimes. Accordingly, when he got his information about Donald Cheung, it suddenly occurred to him that this was a golden opportunity to test his theory. If Donald Cheung who was already the subject of protracted investigation was put under severe pressure, would he break-down and resort to corruption in order to relieve the pressure on him? If so, the accused could demonstrate to the Government, and to the public at large, the in justice of current existing procedures, and thus get rid of a serious barrier between the Government and the public. Accordingly he says he jumped at the opportunity and instantly put it into effect without further consideration. "

28. It is necessary to note that Counsel appearing for the Applicant at the trial had submitted, inter alia, that on the face of it, the Applicant had tried to squeeze money out of Mr. Cheung and "the offences proved were there and complete". He posed the question whether the Applicant's explanation of a psychiatric experiment negatived the offences. He submitted that no one would expect a solicitor to behave in the way the Applicant did - his conduct could only be explained on the basis of hypomania. At the end of his submission, Counsel said: "Could he be in his proper mind at all? [It must be] because he cannot help himself. "

29. There can be no doubt at all about the extent and importance of the Applicant's public service during the years which have elapsed since his name was removed from the Roll. I do not wish anything I say to be understood as a failure to appreciate and acknowledge the value of his service. It is sad, perhaps, that all that happened so long ago has had to be publicly exposed and debated once again, but an application of the kind before me compels this course.

30. I have a solemn duty to perform. The question I have to ask myself is whether such a person as the Applicant admitted himself to be (whatever his motives might have been), notwithstanding the passage of 12 years and his subsequent conduct, should be readmitted to the ranks of an honourable profession - a profession, rightly jealous of its reputation, to which men and women resort to help them in the management of their affairs; a profession in whose members, as officers of the Court, the public and the Courts are entitled to repose the utmost confidence.

31. I have listened carefully to all that the Applicant has so eloquently urged upon me. Hard though it may seem to him, I have no doubt that I would be failing in my duty to the public and to the profession to which he once belonged, were I now to order that a person tainted by such irresponsible, callous and outrageous conduct (I am now referring particularly to what he did to Mr. Donald Cheung) be restored to the Roll. I find it impossible to accede to thisapplication.

[Application dismissed with costs]