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Re "A"

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date28 November 2018
Neutral Citation[2018] HKCFA 52
Judgement NumberFAMV43/2018
Subject MatterMiscellaneous Proceedings (Civil)
CourtCourt of Final Appeal (Hong Kong)
FAMV43/2018 RE "A"

FAMV No. 43 of 2018

[2018] HKCFA 52

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 43 OF 2018 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 161 OF 2017)

________________________

IN THE MATTER of the Application of “A” for admission as a Barrister of the High Court of the Hong Kong Special Administrative Region
and
IN THE MATTER of section 27 of the Legal Practitioners Ordinance (Cap 159)

____________________

Appeal Committee: Mr Justice Cheung Acting CJ, Mr Justice Ribeiro PJ and Mr Justice Stock NPJ

Date of Hearing and Determination: 6 November 2018

Date of Reasons for Determination: 28 November 2018

_____________________________

REASONS FOR DETERMINATION

_____________________________

Mr Justice Stock NPJ:

1. This case concerns an application for admission and enrolment as a barrister of the High Court of the HKSAR. It was a contentious application because in September 2010, the applicant[1] had been convicted by a magistrate after trial of indecent assault[2] and was thereafter sentenced to 14 days’ imprisonment. His appeal against conviction was dismissed as was his application to this Court for leave to appeal.

2. Upon the hearing of the application in the Court of First Instance the issue was whether, in the light of the conviction and sentence and subsequent events, the applicant could satisfy the Court that he was a fit and proper person to be a barrister.[3] The Bar Council did not oppose the application. The application was, however, opposed by the Secretary for Justice. By a judgment dated 16 June 2017, the Motion seeking admission to the Bar was dismissed.[4]

3. The applicant appealed to the Court of Appeal where the stances of the Secretary for Justice and of the Bar Council remained the same as before. On 10 May 2018, the Court of Appeal allowed the appeal, set aside the decision of the Judge and granted an order admitting and enrolling the applicant as a barrister of the High Court.[5] The Court of Appeal subsequently dismissed the motion by the Secretary for Justice seeking that Court’s leave to appeal to this Court on the basis of suggested questions of great general or public importance.[6]

4. Application was then made by the Secretary for Justice to this Court for leave to appeal from the judgment of the Court of Appeal of 10 May 2018 on the ground that the appeal involves questions of great general or public importance and on the “or otherwise” limb.[7] The questions suggested for determination by this Court were:

(1) In determining whether a person is a fit and proper person to be admitted as a barrister of the High Court in Hong Kong under section 27(1) of the Legal Practitioners Ordinance (Cap 159), what is the proper approach of the Court where the applicant has been convicted after trial of a criminal offence resulting in an immediate custodial sentence and has never thereafter displayed any remorse over his criminal conduct.

(2) Whether admission, in such circumstances, must be exceptional and dependent upon the applicant establishing a genuine and complete reformation of character supported by cogent and compelling evidence to demonstrate that the person has remediated.

(3) What are the expectations of the community of Hong Kong on the standards and integrity of the Hong Kong Bar, and whether public confidence in the profession and administration of justice should be accorded substantial weight in such an admission application.

5. On 6 November 2018, having heard submissions on behalf of the Secretary for Justice, the applicant and the Hong Kong Bar Association,[8] we refused leave and said that we would provide reasons later. These are our reasons.

6. The first and second questions posed identify an issue about which the Judge was particularly exercised, namely, the applicant’s insistence on his innocence even after the conviction. Reports prepared for the purpose of sentencing spoke well of the applicant, who was a person of hitherto good character, but noted that he maintained his innocence, a stance which also emerged from other material. It seems apparent from the judgment at first instance that the Judge concluded that the applicant’s failure to acknowledge guilt was necessarily inconsistent with any assertion of rehabilitation and was a failure the significance of which could not be outweighed by whatever might favourably be said for the applicant.[9]

7. Whilst recognising that an appellate court should be slow to interfere with value judgments made by an individual judge, the Court of Appeal disagreed in principle with the Judge’s approach to the question of rehabilitation. The Court accepted that whether an applicant had reformed himself was indeed a relevant consideration but said that it was “not immutable that the process of rehabilitation must be accompanied by a public admission of guilt. Depending on the circumstances, a long period of honest and responsible living since the conviction may also serve as evidence of rehabilitation” in which connection cogent evidence from a pupil master would normally carry substantial weight, and evidence...

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