A BARRISTER v. THE BAR COUNCIL

CACV 365/2022, [2023] HKCA 1059

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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DECISION

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Hon Anthony Chan J (giving the Decision of the Court) :

1.  This is the Respondent’s Summons dated 19 December 2022 (“Summons”). By the Summons, this Court is asked: (a) “to receive evidence on questions of fact by affirmation”; (b) to hear this appeal on paper; and (c) to order the costs of this application be in the cause.

2.  The supporting affirmation of the Respondent filed on 19 December 2022 (“R 1^st”) referred to 4 categories of evidence: (a) the Respondent’s 3^rd affirmation filed in this appeal on 28 November 2022 (“R 3^rd”); (b) a psychiatric report of Dr Smith dated 22 February 2021 (“Report”); (c) correspondence dated 18 to 26 January 2021 between the Respondent and the Chairmen of the Bar (“Correspondence”); and (d) “affirmations of witnesses if I am lucky enough to find one or more before the hearing”.

3.  The Respondent was directed by the Court to exhibit the documents he sought to adduce as new evidence due to his failure to do so in R 1^st. Consequently, the Respondent filed an affirmation dated 17 February 2023 (“R 2^nd”) which exhibited a copy of R 3^rd in which the Report and Correspondence were exhibited. In addition, a copy of an affirmation of the Respondent’s wife, Ms A, was exhibited to R 2^nd.

4.  An affirmation of Mr Iu Ting Kwok was filed on behalf of the Applicant on 10 March 2023 in opposition to the Summons. Whilst Mr Iu contended that R 3^rd is irrelevant to the Respondent’s application to adduce new evidence, he addressed two issues raised in R 3^rd, namely, the allegations of irregular service and bias arising from the relationship between the Chairman of the Barristers Disciplinary Tribunal (“BDT”) and himself. In reply, the Respondent’s filed another affirmation on 20 March 2023 (“R 4^th”). In that affirmation, a further medical report from Dr Low dated 15 March 2023 was exhibited.

5.  In truth, R 4^th was not a proper reply. It contains much of the allegations and submissions made in R 3^rd and expanded on the grounds of his application. The latter should have been set out in R 1^st.

6.  Having considered the materials before the Court in conjunction with the three sets of written submission from the parties, two from the Respondent and one from the Applicant, we decided that it is appropriate to determine the Summons on paper.

The appeal

7.  The Amended Notice of Appeal of the Respondent is a convoluted document. It concerns the decision of the BDT made on 20 July 2022 “(which incorporated the BDT decisions made on 9 July 2021 and 24 February 2022)”. However, it appears that the 1^st decision of the BDT (9 July 2021) was a rejection of the Respondent’s application to have the disciplinary proceedings against him dismissed, stayed or adjourned. By the 2^nd decision (24 February 2022), the Respondent was found guilty of the second complaint against him (“Complaint (2)”). The last decision (20 July 2022) was one of imposition of sentence for Complaint 2.

R 3^rd

8.  In R 1^st, it was stated that R 3^rd “is used to present my appeal case in the form of an affirmation rather than submissions”. R 3^rd is a long, rambling and repetitive document containing many allegations and submissions. Affirmations are for facts and not submissions. It is not the function of this appeal to have the disciplinary proceedings reargued by the Respondent. We can see no proper justification for the admission of R 3^rd, particularly as the Respondent will have the opportunity to lodge written submissions for his appeal, and to orally address the Court at the hearing of his appeal if he wishes to do so.

9.  We take the opportunity to observe that the Respondent has been misusing the filing of affirmation to serve whatever purpose he saw fit. This must stop. PD4.1, paras 38, 47 and 50 must be adhered to strictly for the preparation of the appeal bundles.

Applicable principles

10.  The applicable principles for the admission of new evidence on appeal are well established. The 3 conditions set out in Ladd v Marshall [1954] 1 WLR 1489 (“Conditions”) must be satisfied. These are that (1) the new evidence could not have been obtained for the hearing below with reasonable diligence, (2) that it must be apparently credible, and (3) that it must be such as to have a material impact on the outcome of the proceedings.

11.  The Respondent argues that his application is an exceptional case where the Conditions do not apply, or should be relaxed based on 22 points of alleged irregularities set out in para 4 of his submissions filed on 19 December 2022. The 22 points are based on the allegations and submissions contained in R 3^rd. We are unable to see that any exceptional case has been made out by the Respondent. His appeal is nothing near the categories of cases identified in HKCP 2023, vol 1, [59/10/12] to which the Respondent had referred in his submissions.

The Report

12.  It is evident from the contents of the Report that it was obtained by the Respondent at least partly for the purpose of his disciplinary proceedings. The Respondent alleged that he was unable to pay for the report (AUS$1,980) and that this was why it was not adduced before the BDT.

13.  However, the allegation of impecuniosity is inconsistent with the Respondent’s evidence that he owns a landed property[1]. There is no evidence from the Respondent of his financial circumstances. It was recorded in the Report that the Respondent had worked in Hong Kong, the Mainland and Australia. He had been employed in Australia since January 2020, although he was not working at the time of the Report. Thus, the allegation of impecuniosity is not only a bare assertion but is inconsistent with the Respondent’s own evidence.

14.  Second, the Report was referred to in para 4 of the Respondent’s affirmation filed on 4 March 2021 before the BDT, as well as para 6 of his affirmation dated 8 April 2021 (also made for the purpose of the disciplinary proceedings). In the latter, the Respondent had set out in detail the substance of the Report.

15.  Third, it appears from the decision of the BDT dated 20 July 2022[2], para 14, that the BDT had learned from the medical evidence disclosed in the “Preliminary Application” that the Respondent was suffering from “stress, depression and anxiety disorder”.

16.  In the circumstances, the application to admit the Report as new evidence fails to meet the first Ladd v Marshall criterion and is of no merits.

The Correspondence

17.  Para 8 of R 1^st acknowledged that the Correspondence is not in fact new evidence. The admission of the Correspondence as new evidence is equally groundless, as it similarly fails to meet the first criterion.

Ms A’s affirmation

18.  The Court would not grant a blanket order for the Respondent to adduce as new evidence “if he is lucky enough to find one or more” before the hearing of the appeal. It is nonsensical to suggest that it should.

19.  Ms A’s affirmation made one point, namely, that she attended the mediation involving her mother’s legal action on 29 April 2010 and the Respondent did not act as counsel for her mother but was there as an observer. The mediation was the subject matter of Complaint (2).

20.  There was no proper explanation why the evidence of Ms A was not adduced before the BDT. The unparticularized and unsupported allegation that the Respondent had “finally found [his] wife separated from [him] years ago” cannot be accepted.

21.  As pointed out in the Applicant’s submissions, the Report referred to Ms A as a most supportive wife, who had been married to the Respondent for 20 years. Dr Smith had the opportunity to speak to Ms A, who provided helpful background and comparative information to the doctor (the Report was dated 22 February 2021). Such evidence contradicts the allegation of loss of contact “years ago”.

22.  The application to adduce Ms A’s affirmation as new evidence does not begin to satisfy the first criterion: that the evidence could not have been obtained with reasonable diligence for use at the trial.

Hearing of the appeal on paper

23.  Pursuant to s.37B(2) of the Legal Practitioners Ordinance, Cap 159, the hearing of this appeal “shall be in open court unless, and to the extent to which, the Court of Appeal otherwise directs”.

24.  The Applicant disagrees with the disposal of this appeal on paper, and maintains that the Respondent should abide by the general rule of oral hearing.

25.  The Respondent put forward 2 grounds for this application: impecuniosity and his mental condition. The former has already been dealt with above. Further, as pointed out by the Applicant, the Respondent came back to Hong Kong on 26 September 2022[3]. It appears from R 4^th that the Respondent had returned to Australia by 16 March 2023.

26.  As regards the Respondent’s mental condition, first, we place no weight on the report of Dr Low. Evidence in support of the Summons should have been adduced in R 1^st and not in a reply affirmation which is to deal with matters raised in the Applicant’s evidence in opposition. Further, Dr Low’s qualification was not stated in the report. It is unclear whether he is a psychiatrist (like Dr Smith) and whether he is appropriately qualified to evaluate the Respondent’s mental condition. Furthermore, we agree with the Applicant that despite having read the code of conduct for expert witness[4], Dr Low had overstepped the permissible boundary[5] by “Appealing to the Board, Kindly and Humanely to Drop it’s (sic) action [against the Respondent]”.

27.  The Court accepts that the disciplinary proceedings had been stressful and caused anxiety to the Respondent. Many litigants would similarly suffer as a consequence of litigation. Possibly, having been found guilty of Complaint (2) had made matters worse for the Respondent. He is now appealing against the decisions of the BDT, and he may be able to show that the findings of the BDT are wrong. However, we do not believe the mental stress suffered by the Respondent is a sufficient reason to depart from the normal rule that appeals are to be heard in open Court.

Disposition

28.  For these reasons, the Summons is dismissed with costs to the Applicant. Based on the Statement of Costs lodged by the Applicant, costs are assessed at HK$125,000 with counsel fees (HK$70,000) allowed in full.