THE BAR COUNCIL v. A BARRISTER

CACV 365/2022, [2024] HKCA 487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 365 OF 2022

(ON APPEAL FROM BARRISTERS DISCIPLINARY TRIBUNAL CASE

THE BAR COUNCIL v A BARRISTER)

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JUDGMENT

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Hon Cheung JA (giving the Judgment of the Court) :

I.  The appeal

1.  The respondent is a barrister and was found guilty by the Barristers Disciplinary Tribunal (‘the Tribunal’) of a complaint of discussing a case or taking instructions from or giving advice to the lay client without the presence of instructing solicitors or their representative, or otherwise acting in　a　professional　capacity　without　the　instructions　of　a　solicitor,　contrary　to [142(a)]　and/or [50(a)]　of the Code of Conduct of the Bar of the Hong Kong Special Administrative Region then in force’ (‘the Bar Code’) and was sentenced to be suspended from practising as a barrister for two months. He now appeals.

II.  Ambit of the appeal

2.  The Amended Notice of Appeal stated that the appeal is against the Tribunal’s decision of 20 July 2022 :

‘ which incorporates the [Tribunal’s] Decisions made on 9 July 2021 and 24 February 2022 whereby it was decided that :

1.  The Respondent’s application for dismissal of complaints, stay of proceedings and adjournment be dismissed by the [Tribunal] on 9 July 2021 and costs be awarded to the applicant (the Bar Council);

2.  The Respondent be found guilty of Complaint 2 but not Complaint 1 on 24 February 2022; and

3.  The Respondent be ordered to have the respondent’s practice suspended for two months, to pay costs to the applicant (the Bar Council), and to be imposed upon the respondent other adverse orders against the respondent listed in the decision dated 20 July 2022, and in any other decision made by the Tribunal in the Tribunal proceedings.

For AN ORDER that the aforesaid adverse Decisions or orders against the respondent be set aside.

AND FOR AN ORDER that the applicant (the Bar Council) do pay the respondent its costs of this appeal and the Tribunal proceedings to be taxed.’

3.  The decision of 9 July 2021 (‘the Stay Decision’) is the Tribunal’s decision dismissing the respondent’s application for dismissal of the complaints, stay of proceeding and adjournment of the proceedings (‘the Preliminary Application’). The decision of 24 February 2022 is the decision of the Tribunal on the liability of the respondent and the decision of 20 July 2022 is the Tribunal’s Reasons for Sentence and Costs.

4.  Appeal from the Tribunal to this Court is governed by the Legal Practitioners Ordinance (Cap. 159) (‘LPO’). Section 37B provides that :

‘ (1) A person who is the subject of an order under section 37 or 38 may appeal to the Court of Appeal and Order 59 of the Rules of the High Court (Cap. 4 sub. leg. A) applies to the appeal except that the time for serving the notice of appeal is 21 days from the date of the decision and not 28 days as provided in Order 59.’

5.  Section 37 provides that :

‘ On completion of its inquiry, the [Tribunal] may do one or more of the following‑

[(a)‑(g) which include

censure, suspension from practice etc]’

6.  Section 38 deals with the variation of the orders of the Tribunal which is not relevant in this appeal.

7.  It is clear that as the appeal from the Tribunal to the Court is created by statute, the decisions by the Tribunal which can be appealed against are only those under section 37 and section 38 as specified by section 37B. Further the Tribunal’s decision is only appealable upon the completion of its inquiry as provided by section 37. There is no doubt that the decisions of 24 February 2022 and 20 July 2022 should be read together because it is upon these decisions that the Tribunal completed the inquiry and imposed the sentence on the respondent. They are therefore appealable under section 37. However, the Stay Decision is not a decision within the scope of section 37 because the inquiry had not been completed when the Stay Decision was rendered. This is accepted by the respondent but he argued that nonetheless the Court has jurisdiction to deal with the Stay Decision. He submitted that he is entitled to the right of a fair trial and the Court has inherent jurisdiction to hear the appeal from the Stay Decision. We disagree. As the present appeal is governed by statute, the ambit of the appeal must be governed by the terms of the LPO and there is no room to invoke the inherent jurisdiction of the Court. We tend to agree (but it is not necessary to decide this conclusively) with Ms Lee and Mr. Ko for the applicant, that the remedy for the respondent in respect of the Stay Decision is by way of judicial review. What the respondent is not entitled to do is to challenge the Stay Decision under the guise that the decision of 24 February 2022 incorporated this decision. We rule that this Court has no jurisdiction to hear the appeal from the Stay Decision.

III.  Background

1)  The two complaints

8.  The respondent originally faced two complaints (‘Complaint 1’ and ‘Complaint 2’) :

(1)  Complaint 1

‘Engaging in a course of conduct which may bring the profession of barrister into disrepute, contrary to paragraph 6(b) of the [Bar Code].’

(2)  Complaint 2

‘Discussing a case or taking instructions from or giving advice to the lay client without the presence of instructing solicitors or their representative, or otherwise acting in a professional capacity without the instructions of a solicitor, contrary to [142(a)] and/or [50(a)] of the [Bar Code].’

9.  Paragraphs 50(a) and 142(a) of the Bar Code provide :

‘ 50(a) Subject to such exceptions as may be authorised by custom or the Bar Council as set out in Annex 20, a barrister may not act in a professional capacity except upon the instructions of a solicitor or the Director of Legal Aid or the Government. Notwithstanding that he does so for no fee, a barrister who appears in or drafts a formal document for the purpose of a contentious matter is acting in a professional capacity. There is, however, no objection to a barrister giving advice free on legal matters to a friend or relative or on a charitable basis.’

‘ 142(a) Subject to paragraphs 50, 142A, 143 and 144, a barrister may not appear in Court, or discuss a case or take instructions from or give advice to, his lay client unless the person instructing him or his representative is present.’

10.  Paragraph 142(a) of the Bar Code further restricts a barrister from appearing in Court or discussing a case or taking instructions from or giving advice to the lay client in the absence of the person instructing the barrister or his representative.  

11.  The Tribunal found the respondent not guilty of Complaint 1 but guilty of Complaint 2. As Complaint 1 is featured in this appeal notwithstanding its dismissal we will go into the background of the case including that relating to Complaint 1. The respondent is the son‑in‑law of the plaintiff in a High Court personal injury action which was commenced in 2009 (‘the PI Action’). The conduct of the defendant’s defence was taken over by its insurer, Liberty Insurance (‘Liberty’). The case was eventually settled on 24 January 2011. By a letter dated 21 November 2014 Liberty complained to the Hong Kong Bar Association about the respondent as counsel for the plaintiff in respect of the fees claimed by him.  The Tribunal summarised the events leading to the two complaints :

‘ [Complaint 1]

52. On 19 January 2009, the plaintiff commenced the PI Action. On 5 October 2009, SC Chan & Co. filed a Statement of Claim and Statement of Damages on the plaintiff’s behalf. According to the Statement of Damages, the claimed amount in the PI Action was $l,054,945.

53. On 20 May 2010, upon instructions from SC Chan & Co., counsel Mr. Cheung Yiu Leung (‘YL Cheung’) provided an Advice on Liability, Quantum and Evidence for the plaintiff.

54. On 11 August 2020, SC Chan & Co. issued the ‘Brief to Counsel’ to the respondent to :

1) Prepare the statement of claim dated 19 January 2009, statement of damages dated 16 September 2009 and witness statement of the plaintiff dated 8 February 2010 for $60,000;

2) Prepare the amended statement of claim dated 27 July 2010, re-re revised statement of damages dated 27 July 2010 and supplemental witness statement of the plaintiff dated 27 July 2010 for $60,000; and

3) Represent the plaintiff to attend before High Court for a brief of $180,000 and refresher of $60,000 (‘the Brief’).

55. When the Brief was issued, no leave was granted for the PI Action to set down for trial.

56. On 10 September 2010, Messrs. LCP Lawyers (‘LCP’) took over the PI Action for the plaintiff.

57. On 4 October 2010, Master Ng (as she then was) ordered that the PI Action be put on the Running list, not to be warned before 15 January 2011.

58. On 24 January 2011, the PI Action was settled between the plaintiff and the defendant at $575,000 inclusive of interest, plus cost on the District Court scale.

59. On 12 February 2011, the respondent issued a fee note in respect of the Brief in the amount of $180,000 to LCP with duplicate to SC Chan & Co.

60. In the taxation proceedings for the PI Action on 19 June 2013 (‘the Taxation Proceedings’), both SC Chan & Co. and LCP, in their respective taxation bills, did not make any claim in respect of the respondent’s brief of $180,000. The plaintiff’s solicitors responsible for the Taxation Proceedings (Dundons Solicitor (‘Dundons’)), however, claimed the Brief in the Taxation Proceedings.

61. SC Chan & Co., in a letter dated 21 May 2021, states that ‘[the Respondent] had done nothing related to the brief’.

62. In the taxation proceedings for the PI Action, the respondent filed two affirmations in support of the plaintiff’s taxation application on 22 January 2013 (‘Respondents’ First Taxation Affirmation’) and 19 March 2013 (‘Respondent’s Second Taxation Affirmation’) respectively.

63. After hearing submissions in the Taxation Proceedings, Master Leong disallowed the Brief entirely but allowed $15,000 for the respondent’s work in advising settlement and other various matters.

[Complaint 2]

75. During the PI Action, on 29 April 2020, a mediation took place between the Plaintiff and the representatives of the Defendant (“the Mediation”).

76. In §9 of the Respondent’s Second Taxation Affirmation, the Respondent deposed to the following:

“A mediation session was held between the Plaintiff and the Defendant on 29^th April 2010 without reaching an agreement and the session lasted for over four hours. My instructing solicitors were not present at the mediation and I told the Defendant’s solicitors I acted as counsel for the Plaintiff drafting the Statement of Claim, Statement of Damages and Witness Statement of Lau Kwan.”

77. In the Respondent’s First Taxation Affirmation, the Respondent exhibited at LSK‑1 a chronology that he had prepared for the PI Action. In the chronology, the Respondent stated the following regarding 29 April 2020:

“A mediation was conducted between P and D with the presence of both P’s counsel and D’s solicitor, Steve Wu”

78. In the oral submissions during the Taxation Proceedings, the Respondent said:

“Paragraph 9: “A mediation session was held between the plaintiff and the defendant, without reaching the agreement”. Just because the solicitors were not present, the plaintiff’s solicitor were not present at the mediation and they told me to join the meeting. In fact, the defendants owe me a brief fee for attending the mediation session too.

And during the meeting I saw Mr Steve Wu(?) who is now sitting at the back, I told Mr Wu I was counsel for drafting all the documents, statement of claim, statement of damages, witness statement of Lau Kwan.”

79. The Applicant relies on the Respondent’s own affirmation and submissions in Court during the Taxation Proceedings to prove that the Respondent acted in a professional capacity in the absence of instructing solicitors.’

12.  The particulars of Complaint 1 includes the following :

‘ (5) The arrangement and acceptance of the brief of $180,000 on or around 11 August 2010 prematurely and the claiming of the same during taxation on 19 June 2013 together constitute misconduct which may bring the profession of barrister into disrepute.’

13.  The particulars of Complaint 2 are as follows :

‘ You attended a mediation session between the plaintiff and the representatives of the defendant in the PI Action as the plaintiff’s counsel without instructions from or in the absence of instructing solicitors.’

2)  Evidence for the complaints

14.  Two hearings were conducted on the two complaints on 18 August 2021 and 18 October 2021. They were online hearings. The respondent did not attend the two hearings despite the fact that the Tribunal had adjourned the first hearing in order to give the respondent the chance of appearing before it. As recorded by the Tribunal, the applicant did not produce any live evidence and relied solely on evidence included in the hearing bundle. The documents in the hearing bundle consisted of pleadings filed in the PI Action which include two affirmations dated 18 January 2013 and 15 March 2013 filed by the respondent in the taxation proceedings, transcripts of court proceedings and various contemporaneous correspondence between parties. The respondent did not adduce any evidence and the Tribunal considered the submissions and evidence as raised in the respondent’s first and second affirmations dated 4 March 2021 and 8 April 2021 filed in his application which resulted in the Stay Decision.

15.  We have already in [III] above referred to the applicant’s case on Complaint 2, we now referred to the respondent’s case on this complaint as summarised by the Tribunal :

‘ The Respondent’s Case on Complaint 2

80. In a letter dated 15 February 2019, the Respondent replied to the Hong Kong Bar Association that on the day of the Mediation, he “intended just to take the lay client and/or her authorized representative to the venue as they did not know where it was, and Dr. Helena Yuen, my mediation teacher cum mediator, signalled me to join them at the entrance.”

81. In the Respondent’s First and Second Affirmations in Preliminary Application, the Respondent stated that:

81.1. Dr. Helena Yuen (“Dr. Yuen”) was the Respondent’s mediation teacher. Dr. Yuen sometimes took people to mediation sessions she conducted as observers for training purposes.

81.2. On the day of the Mediation, the Respondent took the Plaintiff and her authorized representative to the venue where the Mediation took place as they did not know where it was.

81.3. Dr. Yuen saw the Respondent at the entrance of the venue and signalled the Respondent to join as observer but not as counsel.

81.4. The Respondent did not discuss the case or take instructions from or give advice to the Plaintiff or her authorized representative. The Respondent played no role for the Plaintiff in the Mediation.

82. In gist, the Respondent states that he did not act as counsel or act in a professional capacity during the Mediation.’

IV.  The Tribunal’s Decision

1)  Complaint 1

16.  The Tribunal found the respondent not guilty on Complaint 1. The Tribunal emphasized that the respondent’s conduct was highly suspicious but it held that more cogent evidence is required to satisfy the required standard of proof.

2)  Complaint 2

17.  The Tribunal held :

‘ 83. There is no dispute that the Respondent attended the Mediation and there was no instructing solicitor present. There is also no evidence that the Respondent was instructed by instructing solicitors to attend the Mediation. The issue is whether the Respondent attended the Mediation as counsel (in a professional capacity) or merely as an observer (or giving free legal advice on a charitable basis which is permissible under the Bar Code).

84.  In relation to the contents of the Respondent’s First and Second Taxation Affirmations, the Respondent explained at [18] of the First Affirmation of Preliminary Application as follows:

“As nobody had ever bothered to know in detail what role I actually played in the Mediation until more than eight years later in 2018, I only disclosed I played the role of an observer when the HKBA first asked me so. Before that, I might just mention I was there and so on”

85.  In response to the allegations of the Applicant, the Respondent claimed that he only attended the Mediation because he was invited by the mediator who was also his teacher.

86.  The Respondent’s explanation is not supported by any evidence. The Respondent’s alleged reason for attending the Mediation has not been documented in any earlier affirmations and/or chronology and/or during the Taxation Proceedings. In particular, the Applicant stated during the Taxation Proceedings that he was owed a brief for attending the Mediation. If the Respondent’s allegation that he only attended the Mediation as an observer is true, there would be no reason that he would be entitled to a brief. Based on the Respondent’s own evidence, the only reasonable inference is that he attended the Mediation as counsel in a professional capacity, hence his entitlement to a brief.

87.  The Respondent’s subsequent explanation in the First and Second Affirmations of Preliminary Application that he attended the Mediation based on the invitation of his teacher was only first raised when this disciplinary action was initiated against the Respondent. The Respondent’s subsequent explanation in the First and Second Affirmations of Preliminary Application is completely contradictory to what he had stated in the Taxation Proceedings, and is clearly an afterthought.

88.  The Respondent further relies on §7 of the Complaint Letter dated 21 November 2014 to argue that the Respondent did not act as counsel during the Mediation. However, the said letter did not state that the Respondent did not act as counsel for the Plaintiff. Further, the Tribunal takes the view that the Respondent must be the best person to know in what capacity he attended the Mediation. Given his own admission that that the Mediation was conducted in the presence of “P’s counsel” and that he was owed a brief for attending the Mediation, there can be no doubt that the Respondent had attended the Mediation as counsel in a professional capacity. As counsel of the Plaintiff, he must have discussed the case and/or took instructions from or given advice to the Plaintiff during the Mediation.

89.  The Tribunal is satisfied that the Respondent attended the Mediation as counsel in a professional capacity without instructions and without the presence of those instructing him. It is not the defence of the Respondent that the Plaintiff’s solicitors could not attend the Mediation due to illness, accident or other unexpected contingency nor that instructing solicitors were prevented from sending a representative in his stead. The Tribunal is also satisfied that the Respondent’s conduct does not qualify under the exemptions as provided in paragraphs 50 and 142(a) of the Bar Code.

90.  Although the Respondent says parts of the transcript in the Taxation Proceedings is “problematic” or were not taken “accurately”, no supporting evidence was ever adduced. It remains the bare allegation of the Respondent.

91.  Accordingly, the Tribunal concludes that the Respondent’s conduct of attending the Mediation in the capacity of counsel in the absence of instructing solicitor or his representative is in breach of paragraphs 50(a) and 142(a) of the Bar Code. The Tribunal is satisfied that this is a serious failure amounting to professional misconduct and not mere incompetence.

92.  The Tribunal thus concludes that the Respondent is guilty of Complaint 2.’  

(emphasis added)

V.  The role of the Court

18.  The principle in respect of the role of the Court in reviewing the decision of professional disciplinary committee is set out in Ghosh v General Medical Council [2001] 1 WLR 1915 at 1923 G‑H :

‘ The Court “will accord an appropriate measure of respect to the judgment of the committee whether the practitioner’s failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public”, but “will not defer to the committee’s judgment more than is warranted by the circumstances”.’

19.  This has been applied by the Court of Final Appeal in A Solicitor v. The Law Society of Hong Kong (2008) 11 HKCFAR 117 at 119.

VI.  Grounds of appeal

20.  The respondent relied on ten grounds of appeal in his Amended Notice of Appeal which we will now consider in turn.

1)  Ground 1

21.  The respondent argued that the ‘Tribunal erred in failing to consider the unreasonableness of Complaint 1 and dismiss it at an early stage. There is no such thing as premature acceptance of a brief. And, there is no rule governing how much counsel can charge for her/his service. The taxation was also scrutinized by a law costs draftsman to ensure it was done properly.’

22.  In so far as Ground 1 sought to challenge the Tribunal’s earlier decision of not dismissing Complaint 1, we have already ruled that the decision is not the subject matter of this appeal. Further, this ground is academic since the Tribunal had found the respondent not guilty of Complaint 1. The respondent, however, stated he wished to challenge the ‘no order as to costs’ order made by the Tribunal in Complaint 1. We will address this when we deal with Ground 10 on his challenge on the costs orders made by the Tribunal.

2)  Ground 2

23.  The respondent argued that the ‘Tribunal erred in failing to dismiss the unreasonable Complaint 2 about the respondent attending the Mediation on or around 29 April 2010 (‘Mediation’) as the respondent actually acted as just an observer and the student of the mediator, and even the complainant and at least four to five other persons from the complainant/defendants’ side in the HCPI case concerned said or saw that the respondent did not act as counsel or in the professional capacity of counsel in the Mediation. The applicant also wrongly used the respondent’s counsel advocacy in court, even if the document concerned were (sic) not disputed, to support Complaint 2, thus violating counsel’s fundamental right to free advocacy which provides immunity to counsel from suit, or advocate’s immunity.’

24.  This ground raised two matters. The first is about the Tribunal’s finding on Complaint 2 and the second is about the Tribunal violating the principle of advocate’s immunity. In respect of the first matter, the respondent is challenging the finding of fact by the Tribunal. The Tribunal had correctly identified the issue as whether the respondent appeared at the Mediation as counsel or merely as an observer. We are of the view that this challenge has no merits as there was clearly sufficient evidence before the Tribunal for it to make the findings that the respondent appeared as counsel. In the Chronology of Events filed by the respondent in his First Taxation Affirmation, he expressly stated that on 29 April 2010 a mediation was conducted between the plaintiff and the defendants ‘with the presence of both the plaintiff’s counsel and the defendants counsel...’  The Tribunal had addressed the arguments that he had attended the Mediation as an observer at the invitation of his tutor, his reliance on the letter dated 21 November 2014 from Liberty which stated that the respondent attended the Mediation ‘in the capacity of being the plaintiff’s close relative or agent’ and that the transcript of the taxation hearing was not adequate. We agree with the Tribunal’s view in [86] of the Decision as quoted above.

25.  The respondent attended the taxation hearing as the plaintiff’s counsel before the Master. He referred to [9] of his Second Taxation Affirmation :

‘ 9. A mediation session was held between the Plaintiff and the Defendants on 29^th April 2010 without reaching an agreement and the session lasted for over four hours. My instructing solicitors were not present at the mediation and I told the Defendant’s solicitors I acted as counsel for the Plaintiff drafting the Statement of Claim, Statement of Damages and Witness Statement of Lau Kwan.’

26.  He then addressed the Master in which he admitted that he attended the Mediation as counsel for the plaintiff and he went so far as to claim that he was entitled to have the brief for his attendance from the defendant :

‘ Just because the solicitors were not present, the plaintiff’s [solicitors] were not present at the mediation and they told me to join the meeting. In fact, the defendants owe me a brief fee for attending the mediation session too.’

27.  In this appeal the respondent referred to the evidence of a Priscilla and Amy Pang. Their evidence was already rejected by this Court in his application to adduce new evidence for the appeal.

28.  The respondent referred to a letter dated 9 October 2012 from W. K. To & Co, solicitors for the defendant in the PI Action which was enclosed as part of the documents sent by Liberty to the Bar Council as part of Liberty’s complaint about the respondent’s conduct. In that letter, W. K. To & Co sought information from the respondent about the fees he had claimed in the taxation bill of the plaintiff’s former solicitors SC Chan & Co. The respondent sought to rely on the following paragraph in the letter to show that he was not acting as counsel for the plaintiff in the Mediation :

‘ We have seen you attending many Checklist Review hearings of the action, not as an advocate, but as an audience. We also have seen you participating in the mediation session between the parties held on 29^th April 2010, during which you accompanied your mother‑in‑law in the capacity of her relative or agent, rather than in the capacity as her Counsel. No solicitors represented the Plaintiff at the mediation session.’

29.  In our view, this passage does not assist the respondent. Reading the letter as a whole, all that W. K. To & Co did was to question the fees claimed by the respondent as counsel for the plaintiff. This passage did not even begin to prove that the respondent’s attendance at the Mediation was in his capacity as a relative or agent of the plaintiff. In our view, the Tribunal had properly considered all the evidence including the respondent’s own admission that he had acted as counsel for the plaintiff without the instruction of solicitors. We cannot find any fault with the finding.

30.  In respect of the second matter, the respondent argued that the Tribunal wrongly relied on the transcript of the taxation hearing and his own affirmation of 4 March 2021 to convict him as this offends the principle of advocate’s immunity set out in Rondel v Worsley [1969] 1 AC 191. It is not necessary for the purpose of this appeal to discuss how far this decision has been affected by subsequent decisions like Arthur J S Hall & Co (A Firm) v Simons [2002] AC 615 and Wong Kam Kuen Catherine v Bar Council [2015] 4 HKLRD 367 which discussed the application of Rondel v Worsley. It is sufficient to note that House of Lords in Rondel v Worsley has expressly stated at 270 E‑G that ‘counsel is answerable to professional discipline for misconduct’ notwithstanding the immunity rule. This principle applies here and this ground also has no merits.

3)  Ground 3

31.  The respondent argued that the ‘Tribunal erred in failing to correctly consider the legal and factual arguments raised in his two Affirmation[s] dated 4 March 2021 and 8 April 2021 respectively on which the Decisions were made.’

32.  This is a general complaint without identifying how the Tribunal had erred. This ground does not advance the respondent’s case at all.

4)  Ground 4

33.  The respondent argued that the ‘Tribunal erred in failing to observe physical and mental health of the respondent and the respondent’s notification of change of address of service from email to his address in Hong Kong dated 5 October 2021, thus rendering service of mail and other documents on the respondent irregular and ineffective, and the respondent had already said he would deal with the Tribunal matters upon his return to Hong Kong.’

(1)  Health conditions

34.  As submitted by the applicant, the Tribunal had already taken into account the respondent’s health conditions in the Stay Decision. It held that the medical evidence adduced by the respondent was ‘far from being satisfactory [32]’ for the purpose of staying, dismissing or adjourning the proceedings. The Tribunal held at [33] that the respondent was ‘able to make written submissions, submit affirmation evidence and make references to various authorities in support of his application’, which was ‘concrete evidence that [the respondent] was in fact capable of handling these proceedings’. The respondent made a belated attempt to adduce the psychiatric report of Dr. Smith for this appeal which was rejected by this Court.

(2)  Irregular service of documents

35.  This ground has no merits as it was the respondent himself who requested the Tribunal to use email as the means of service on him. He only requested the Tribunal to change the mode of service from email to post in his letter of 5 October 2021. The Tribunal had properly served the notices of hearing both by email and post. His complaint that the two online hearings were held without his knowledge and consent is likewise without merits. He claimed that because of his mental issue he was afraid to open emails sent to him but this could not be a satisfactory explanation for his absence from the proceedings when the Tribunal had properly served the notices of hearing on him. The Tribunal was entitled to proceed with the hearings in his absence according to Rule 10 of the Barristers Disciplinary Tribunal Proceedings Rules (Cap. 159 P).

5)   Ground 5

36.  The respondent argued that the Tribunal erred in failing to properly consider the delay and unfairness (both procedural and non‑procedural) of the tribunal proceedings : (1) The PI Action occurred more than 13 years ago resulting in problems in recollection of details of events by the respondent, loss of documents, loss of witnesses and all other reasons due to the lapse of time; (2) The Tribunal abused the right to use multiple hearsay the accuracy and authenticity of which had been challenged by the respondent, and the applicant (the Bar Council) did not have any witness to testify to support its case in the tribunal proceedings; (3) The Tribunal erred in failing to properly consider the respondent was not in Hong Kong, the respondent lacking in financial and legal resources/support, and Covid travel restrictions; (4) The Tribunal erred in failing to properly consider the respondent’s mental and physical illnesses, namely the mental illness caused by the tribunal proceedings and his coronary artery disease, and had continued the tribunal proceedings without the respondent’s knowledge and consent and without taking the wellbeing of the respondent into account despite being informed of the opinion of the respondent’s doctors that the proceedings should be stopped; (5) The Tribunal erred in failing to properly consider the oppressive conduct of the applicant (Bar Council) in the tribunal proceedings; and (6) The Tribunal erred in failing to make the right rulings on the applications for adjournment and stay of proceedings, standard of proof and hearsay evidence.

37.  The complaints now advanced by the respondent were already considered by the Tribunal in the Stay Decision which we have ruled that the respondent is not entitled to challenge by way of appeal in this appeal. In so far as the respondent sought to argue that the Stay Decision has somehow affected the findings and sentence imposed by the Tribunal, we will address the arguments :

(1)  On the issue of delay, the Tribunal in the Stay Decision held that although there was delay, ‘no details of prejudice have been provided by the respondent’. In fact, as both parties agreed that ‘there was no need to call any witness for the hearing and the Bundle of Documents could be relied upon’, and the respondent ‘did not allege that any document which is vital to his defence had gone missing’, this point has no merits.

(2)  On the issue of hearsay evidence, the Tribunal held that ‘the question of exclusion of hearsay evidence does not arise’ and that the question of weight may be determined later if it should arise at the full hearing. The respondent accepted in his Second Affirmation that hearsay evidence was acceptable.

(3)  In respect of the financial resources and the travel restrictions during COVID, the Tribunal had ordered the hearing to be conducted online. Yet, the respondent refused to take part.

(4)  We have already addressed the health issue.

(5)  In respect of the complaint about the oppressive conduct of the applicant, the Tribunal had addressed this point :

‘ 40. The BDT is not impressed by the Respondent’s arguments. Unlike some court cases which may involve complex legal issues and/or technical or forensic or scientific evidence which require the engagement of experts or very experienced counsel, the current proceedings do not involve complicated issues of fact or evidence that calls for the deployment of any large amount of resources from either side. Given that the Respondent may engage his own legal representatives (which the Respondent chose not to do so) and considering the Respondent’s experience at the bar in Hong Kong, the BDT is not satisfied that he is unable to effectively defend himself.’

38.  In our view none of these complaints casts any doubt on the soundness of the Tribunal’s findings.

6)  Ground 6    

39.  The respondent argued that the ‘Tribunal erred in failing to properly consider the problem of extra‑territorial jurisdiction by continuing the tribunal proceedings online without the respondent’s knowledge and consent as the respondent was not in Hong Kong and was not legally represented in Hong Kong.’

40.  In our view the respondent has totally missed the point. There is no room for argument about the lack of extra‑territorial jurisdiction of the Tribunal over the respondent. Any analogy with the lack of extra‑territorial jurisdiction of the Hong Kong courts is totally inappropriate. The Tribunal has jurisdiction over the respondent as a barrister by the provisions of LPO and the Bar Code and this is not affected by the fact that the respondent was not in Hong Kong at the time of the inquiry. There are no restrictions on holding an inquiry on a barrister who is not in Hong Kong. Recognizing that the respondent was not in Hong Kong, the Tribunal, in order to facilitate the holding of the hearings, had properly decided to hold the hearings online but the respondent chose not to take part. Under section 2 of the LPO, ‘Barrister’ is defined as ‘a person who is enrolled as a barrister on the roll of barristers and who, at the material time, is not suspended from practice’. Under section 35(1) where the Bar Council considers that ‘the conduct of a barrister should be inquired into as a result of a complaint being made to it or otherwise’, it shall submit the matter to the Tribunal Convenor of the Tribunal Panel. Under section 35A(2), once the Tribunal is constituted, it ‘may inquire into the conduct of the barrister concerned’. The Bar Code has the following provisions :

‘ 3.1. the provisions of the Bar Code apply to and bind “every barrister whenever called to the Bar in Hong Kong (whether or not he is in practice and whether or not he is admitted to practise generally or on an ad hoc basis for the purposes of a specific case or cases)” .’

‘ 4.8. it is [the respondent]’s duty “to attend proceedings before a Barristers Disciplinary Tribunal when so required”, and any failure to do so “may by itself amount to or be regarded as professional misconduct”.’

41.  In any event as Ms Lee submitted, the respondent had submitted to the jurisdiction of the Tribunal by informing the Tribunal by his email dated 3 November 2020 that he would dispute the complaints and issued the interlocutory application to dismiss the complaints.

7)  Ground 7

42.  The respondent argued that the ‘Tribunal erred in failing to stay or terminate the tribunal proceedings. The impartiality of the Tribunal had come into serious doubt as the Chairman of the Tribunal failed to recuse himself, stay or discontinue the tribunal proceedings and set aside the decisions/orders made by the Tribunal earlier when the respondent discovered the Tribunal Chairman’s suspected relationship with the solicitor for the Bar Council as evidenced by his correspondence to the respondent and the solicitor for the Bar Council in 2020.’  He relied on the well‑known case of R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577.

43.  In our view the complaint of prejudice is speculative, being built on the flimsiest evidence. The respondent stated in his submission that :

‘ 61. While [the respondent] was sleeping in bed in mid‑August 2021, [the respondent] suddenly remembered 1^st email from Mr. Luk to Mr. Iu, [the respondent] and others on 16 Sept 2020. In the email, he addressed Mr. Iu publicly as ‘TK’ rather than ‘Mr. Iu’ but all along Mr. Luk addressed [the respondent] as ‘Mr. Li”.’

44.  The Chairman of the Tribunal had expressly stated that he did not know Mr. Iu prior to these proceedings. Ms Lee drew our attention to the fact that Mr. Iu had signed his letter as TK. The fact that the Chairman addressed him as TK does not carry the matter further on the issue of prejudice or lack of impartiality.

8)  Ground 8

45.  The respondent argued that the ‘Tribunal erred in failing to make impartial Decisions : for example, on separate occasions, the Chairman of the Tribunal reminded the applicant (Bar Council) to amend its two complaints and the Tribunal later allowed the applicant (Bar Council) to amend its two complaints another time without the respondent’s consent but blamed the respondent for not raising this issue, thus totally ignoring the Tribunal’s role as the ‘referee’ of procedural fairness.’

46.  This ground is again without merits.  The applicant sought leave to change the typing error in the Complaints from ‘2012’ to ‘2011’. The respondent raised no objection. The Tribunal allowed the amendment but reprimanded the applicant for its repeated applications to correct clerical errors in the Complaints. We detect no issue of unfairness as alleged by the respondent.

9)  Ground 9

47.  The respondent argued that the ‘Tribunal erred in failing to apply the proper standard of proof to assess the two complaints which affect greatly the future career of a legal professional in disciplinary proceedings.’

48.  This is without merits. The Tribunal had reminded itself that the applicant carried the burden of proving the complaints and the standard was on ‘preponderance of probability’. It had also applied the tests correctly in its findings.

10)  Ground 10

49.  The respondent argued that the ‘Tribunal erred in failing to make the appropriate costs orders.’

50.  The Tribunal ordered :

‘ 39.2. The respondent do pay the applicant 1) the costs of and incidental to Complaint 2 and the costs of any prior inquiry or investigation in relation to the matters thereto and 2) the costs thrown away by the adjournment of the hearing on 18 August 2021, to be taxed if not agreed on a party to party basis.

39.3.  There be no order as to costs in relation to Complaint 1.’

51.  The Tribunal’s decision on costs is an exercise of its discretion. The respondent has to show that the decision is plainly wrong before this Court will intervene by overturning the decision and exercising the discretion afresh. As the Tribunal had found against the respondent on Complaint 2, it is clearly entitled to award costs against him. Likewise the wasted costs incurred as a result of the respondent’s absence from the 18 August 2021 hearing despite proper notice of the hearing being given to him by the Tribunal justified the order for costs against him.

52.  As to the costs of Complaint 1, despite dismissing Complaint 1, the Tribunal ordered no order as to costs for this complaint for the following reasons :

‘ 25.  ...although it was not proven to the required standard, we agree with the applicant that the respondent’s conduct had brought suspicion upon himself.  As stated in §74 of the Decision, the respondent’s conduct can be said to be ‘highly suspicious’. In particular,

1)  The plaintiff in the PI Action is the respondent’s mother‑in‑law;

2)  The fee charged by the respondent was certainly on the very high side considering the complexity of the PI Action, the work done and the seniority of the respondent; and

3)  There is no receipt to show that the fee of the Brief was ever paid to the respondent.

26.  We hence take the view that the respondent’s conduct, in relation to Complaint 1, was highly suspicious.’

27.  As the respondent was not represented and did not appear at any of the hearings, together with the fact that the respondent brought suspicion upon himself in relation to Complaint 1, we take the view that the proper course is to make no order as to costs in relation to Complaint 1.’

53.  The applicant submitted that he should be awarded costs for the dismissal of Complaint 1 since there was no evidence against him on that complaint. We are satisfied that making no order as to costs was also within the remit of the Tribunal’s discretion. The Tribunal recognized that Complaint 1 was not proved to the required standard but it was of the view that the respondent had brought suspicion upon himself which it had explained in its Decision of 24 February 2022. We are not satisfied that the decision on costs is plainly wrong.

VII.  Conclusion

54.  Accordingly, the appeal is dismissed with costs to the applicant to be taxed if not agreed. However, we will not grant certificate for two counsel as requested by the applicant.