HKSAR v. STEPHEN DARYL BARNES

HCMA124/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.124 OF 2000

(ON APPEAL FROM SPS NOS.2285-7 OF 1999)

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J U D G M E N T

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1. The appellant was, on 15 November 1999, convicted of three charges pursuant to section 46(1) of the Legal Practitioner's Ordinance, Cap.159. The charges were that he being an unqualified person did wilfully pretend to be recognised by law as qualified to act as a solicitor by means of an advertisement inserted in the Hong Kong Post; further, that he did wilfully pretend to be recognised by law as qualified to act as a solicitor by means of a second advertisement in the Hong Kong Post; and thirdly, that he did wilfully use a description on a name card, namely, 'lawyer' implying that he was qualified or recognised by law as qualified to act as a solicitor. He was convicted after trial and fined the sum of $3,000 in respect of each charge and appealed both conviction and sentence.

2. On 14 February 2000, the appeal against sentence was abandoned and was dismissed upon receipt of notice.

3. The appellant was a director and the principal shareholder in a corporation listed in Hong Kong known as LLB Consultancy Limited. The appellant obtained in London a degree in law and passed the Laws Society Solicitors' Final Examination for England and Wales in 1993. At the suggestion of a Japanese friend, he did some work on companies' documentation and in 1993, he started the business in Hong Kong aimed at the Japanese segment of the community. No one in his business is qualified to practise as a solicitor or barrister in Hong Kong.

4. On 19 September 1997, the appellant caused to be published in a Japanese language newspaper called the Hong Kong Post an advertisement in the Japanese language advertising the services of his company and calling it a law firm. Further, on 3 July 1998, he caused to be published in the same Japanese language publication a further advertisement in the Japanese language of the services of his company. In or about February 1998, in the course of dealing with one Mr Kazuto Hayashi, he handed to that person a name card which was double-sided, one side in English the other in Japanese. On the English side, the appellant was described as a 'lawyer'. It is these two advertisements and the description on the name card upon which the proceedings are brought. There was no disagreement between the parties that the company was incorporated, that the advertisements were prepared and placed in the newspaper on the respective dates, nor that the name card was handed to Mr Kazuto Hayashi and contained the description 'lawyer'.

5. The evidence of the appellant was that on coming to Hong Kong, he studied the Legal Practitioner's Ordinance to see which legal services he could lawfully provide in Hong Kong. He discovered that there were areas of law which were not exclusively reserved for solicitors and aimed his company at that market. He testified that he had never been involved in legal work that was reserved for solicitors. When any clients required legal assistance in those areas, he would refer them to solicitors. He said that in the preparation of the advertisement, he gave repeated and strict instructions that the advertisement was to hold him out neither as a solicitor nor the company as a solicitors' firm. He was of the view that the advertisement, as read to him, did not directly or indirectly refer to him as a solicitor or his company as a solicitors' firm.

6. It was his evidence that initially when he started up the company, he used on his name cards the term "legal consultant", but since he was actually verse in the law, he later considered it not inappropriate to use the term 'lawyer' on his card.

7. The magistrate found the appellant to be an honest and truthful witness. He found that the appellant did not seek to mislead anyone as to his status nor was anyone misled, but considered that that was not an essential element of an offence pursuant to section 46(1) of the Legal Practitioner's Ordinance.

8. The first ground of appeal is that the appellant was convicted of three counts of contravening section 46 of the Legal Practitioner's Ordinance whereas the charges were intended to be under section 46(1) of the Ordinance, there was nothing in this ground of appeal.

9. The second ground of appeal is that having found that the appellant had done no legal work exclusively reserved for solicitors and never intended to do so, that he had not deliberately pretended to be recognised by law to be qualified to act as a solicitor. The magistrate erred in concluding, in the light of those findings, that the appellant had wilfully pretended to be qualified to act as a solicitor. In each of the 1st and 2nd charges, one of the elements of the offence must be a wilful pretence and, in the 3rd charge, there must be a wilful use. In each of the three charges, therefore, the action of the appellant must have been wilful.

10. I accept that the word "wilful" in these circumstances has the meaning of "deliberate and intentional". I have been referred to R. v. Sheppard and Another [1991] AC 394 (HL) which confirmed essentially the decision in R. v. Senior [1899] 1 QB 283, and also Hall v. Jordan [1947] 1 All ER 826, each of which supported the definition which I set out above.

11. The magistrate also adopted that definition. In respect of each of the three charges, he said this :

" In considering whether he had so acted wilfully, I accepted that he had not deliberately pretended to be recognised by law as qualified to act as a solicitor. The appellant included in his company brochure a disclaimer that it was a solicitors' firm and his web-site had a similar disclaimer. My view of 'wilful' however is that it covered not only deliberate and purposeful intention but also recklessness. It was clear from his testimony that the appellant was aware of the risk in the use of the description 'lawyer'. He did not use it initially because of that risk, preferring the description 'legal consultant'. Subsequently he became bolder and took the risk. I was satisfied that his state of mind was reckless and that this amounted in law to 'wilful'."

The magistrate therefore relied upon an issue of recklessness in convicting the appellant.

12. Mr Grossman argues that recklessness is not part of wilfulness and, given the specific requirements for deliberation in the word "wilful", recklessness could not form part of the inquiry in this case.

13. In construing wilful neglect in R. v. Sheppard, Lord Diplock said at p.404 that :

".... The actus reus in a case of wilful neglect is simply a failure, for whatever reason, to provide the child whenever it in fact needs medical aid with the medical aid it needs. Such a failure as it seems to me could not be properly described as 'wilful' unless the parent either (1) had directed his mind to the question whether there was some risk (though it might fall far short of a probability) that the child's health might suffer unless he were examined by a doctor and provided with such curative treatment as the examination might reveal as necessary, and had made a conscious decision, for whatever reason, to refrain from arranging for such medical examination; or (2) had so refrained because he did not care whether the child might be in need of medical treatment or not.

As regards the second state of mind, this imports the concept of recklessness which is a common concept in mens rea in criminal law. ...."

Recklessness, in the context of the case before me, must mean either a total disregard or non-caring as to whether the offence was committed, or an appreciation of the dangers and nonetheless proceeding to take the risk.

14. I do not agree with Mr Grossman that recklessness forms no part of the definition of the three offences before the magistrate. The magistrate was entitled, as a matter of fact, once he has established that as a matter of law recklessness may be an element of the mens rea of the offence, to make a finding on the facts that the appellant had been reckless.

15. Findings of fact is in the province of the magistrate unless he can clearly be shown to have been in error in determining those facts. I am satisfied that he is not in those facts which go to the elements of recklessness. I am satisfied that the magistrate has approached this matter properly as a matter of fact and law, the appeal against conviction is dismissed.