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HCAL 63/2014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 63 OF 2014
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BETWEEN
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LEUNG SZE HO ALBERT |
Applicant |
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and
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THE BAR COUNCIL OF THE HONG KONG BAR ASSOCIATION |
Respondent |
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Before: Hon G Lam J in Court
Date of Hearing: 14 April 2015
Date of Decision: 24 September 2015
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D E C I S I O N
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I. INTRODUCTION
1. This is an application for judicial review of the refusal by the Bar Council of the Hong Kong Bar Association to give permission to the applicant, then a practising barrister, to engage in neuro-beautology as a supplementary occupation. The applicant relies upon two grounds for judicial review: first, that paragraph 23 of the Code of Conduct of the Bar of the Hong Kong Special Administrative Region (“Code of Conduct” or simply “Code”), pursuant to which the Bar Council’s decision was made, is itself unlawful as being in infringement of Article 33 of the Basic Law and, secondly, that the Bar Council has failed to give adequate reasons for its refusal. Where the meaning is clear from the context, I shall refer below to paragraph 23 of the Code of Conduct simply as “paragraph 23”, and to Article 33 of the Basic Law as “Art. 33”.
II. THE FACTUAL BACKGROUND
2. The applicant was called to the Hong Kong Bar in 2005. He had worked as an employed barrister since September 2005. On 1 January 2014, he resumed private practice at the Bar and became a full tenant in a set of chambers, having entered into a fixed-term contract with the set expiring on 30 June 2015 pursuant to which he had to pay a monthly contribution of $9,000 for rent and secretarial services.
3. In March 2014, the applicant completed a course for “Professional Certificate in Neuro-Beautology” with an institution called “International Naturopathic College”, operated by International Naturopathic College, Limited, which is a company incorporated in Hong Kong in 2002.
4. By a letter dated 5 March 2014, the applicant applied to the Bar Council under paragraph 23(3)(a) of the Code of Conduct for permission to engage in Neuro-Beautology as his supplementary occupation. The letter set out a link to a website for information about Neuro-Beautology. Certain print-outs of the website have been put in evidence in these proceedings, containing the following explanations of the International Naturopathic College:
“Brief Introduction
International Naturopathic College, Limited
International Naturopathic College, Limited was founded in 2002. It takes promoting Naturopathic education in Chinese as its responsibility. Through several years’ negotiation and research, this college made agreement with different institutes and colleges in the world and set up a series of naturopathic medicine courses taught in Chinese and with International certificate in Hong Kong. It is a great breakthrough in the education of naturopathic medicine.
Principle
To promote preventive medicine with professional and universal education, to encourage students understand [sic] preventive medicine, and moreover to apply preventive medicine for treating others”
and of the Professional Certificate in Neuro-Beautology:
“ ‘Professional Certificate in Neuro-Beautology’ was formally introduced to Hong Kong by International Naturopathic College in 2006. In 2008, the relevant course was presented, demonstrated and promoted in various districts in Hong Kong. “Neuro-Beautology” is one type of Naturopathy which adjusts body gestures in a painless, effective and non-invasive way. It is a professional technique and technology that brings immediate improvement effects. The relevant technique is to efficiently correct distorted body structure through simple spine and pelvis adjustment techniques with the aim of removing or improving humpback, discomfort due to spine, thick waist, lopsided shoulders, legs of different lengths, uneven breasts sizes, neck wrinkles etc. based on skeletal nerve reflexivity. The most incredible thing about this course is that anyone can apply for this course no matter what age you are, whether you have a professional or related background or not. Regardless of the education level, one can apply for this course to acquire a skill.
Qualified professional graduates in ‘Neuro-Beautology’ will utilize this technique to integrate or apply in medical, health care and beauty business or treatment, forming a new programme for overall health, beauty and health care with immediate effects so as to increase the competitiveness within the industry. This is also beneficial to the developments of new markets and new sources of customers. In addition, many graduates become Neuro-Beautologist either by establishing their own business or partnership to provide professional Neuro-Beautology services to the public.”
5. On the same day, the Bar Secretariat replied to the applicant, asking for details of (a) the nature of work in the proposed supplementary occupation; (b) the time to be spent in terms of number of hours per week or month; and (c) the remuneration expected. The email stated that these details had to be supplied before the matter could be considered by the Bar Council.
6. The applicant replied on the same day.
(1) In relation to the nature of work, he stated that the nature of work is in the field of natural medicine. He attached a print-out from the website previously mentioned, adding that a person who practises neuro-beautology is ordinarily called a “body figuring practitioner”.
(2) As to the time to be spent, the applicant stated he intended to practise neuro-beautology as his supplementary occupation on a freelance basis. The time normally spent for each client per session was about an hour, with the first session possibly taking longer because of the need to explain “the procedure and aftercare”.
(3) As for remuneration, the applicant stated that the price charged to each client is normally fixed for each session and that he believed that the price for neuro-beautology service in Hong Kong was currently in the range from $3,800 to $5,000 per session.
7. On 6 March 2014, in reply to a question, the applicant further stated to the Bar that he undertook not to spend more than 17 hours a week in the supplementary occupation.
8. Meanwhile, the Honorary Secretary of the Bar Council, having visited the website referred to by the applicant, was not impressed by the International Naturopathic College, which he found was registered only as a private company in Hong Kong, or by the fact that the course attended by the applicant only required secondary education as an entrance requirement which could be waived by the college. The Honorary Secretary found that the college offered various short courses leading to certain qualifications of various descriptions, which seemed to him to be akin to cosmetic therapy or treatment. He observed that those who completed the course attended by the applicant were said to be able to give treatment to correct spinal or pelvic deformity or asymmetry so as to eliminate or improve kyphosis and wrinkles around the neck or to achieve effects such as breast augmentation, slimming of the waist and correction of spinal problems. Overall he was left with considerable reservations on the professional standing of the college, of the “International Naturopathic Medicine Association” (of which holders of the certificate held by the applicant are apparently eligible for membership), of the professional certificate held by the applicant and, ultimately, of body-figuring practitioners generally. In the Honorary Secretary’s view, the issue also arose as to whether the claims of the ability to correct spinal or pelvic deformity or achieve breast augmentation might have engaged relevant laws regulating the medical and related professions.
9. At its meeting on 6 March 2014, the Bar Council, to whom the Honorary Secretary had reported his findings, took the view that the applicant’s intended supplementary occupation was “not compatible with his practice as a barrister, primarily by reason of its nature and lacking in professional standing”.[1] The minutes of the meeting recorded as follows:
“The Hon Secretary said that there were two issues for consideration: (1) the proposed time spent was 17 hours per week which was way above what the Bar Council could accept, and (2) the compatibility of this supplementary occupation to practice as a barrister. He said that when … asked to give more details of the intended supplementary occupation, Albert Leung gave a link to the website of this discipline of neuro-beautology. He had serious reservation about the application by the look of the website.
The Chairman shared the same view and the application must be refused.
Members agreed.
It was resolved that the application by Albert S H Leung be refused.”
10. By a letter from the Chairman of the Bar dated 7 March 2014, the applicant was informed that the matter was considered by the Bar Council at its meeting on 6 March 2014. The letter continued as follows:
“I regret to inform you that the Bar Council is not satisfied that your engagement as a Neuro-Beautology [sic] would be compatible with your practice as a barrister and had come to the view that permission should not be granted to your proposed work as stated in your above letter and email.”
11. On 12 March 2014, the applicant notified the Bar that he had decided to cease to be a practising barrister with effect from 15 March 2014.
12. On 10 May 2014, the applicant wrote to the Bar stating that the reason given for refusing his application was inadequate and asking the Bar to elaborate on the reason.
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