Re “A

CourtCourt of Appeal (Hong Kong)
Judgment Date10 May 2018
Neutral Citation[2018] HKCA 272
Citation[2018] 2 HKLRD 1245
Judgement NumberCACV161/2017
SubjectCivil Appeal
CACV161/2017 RE “A”

CACV 161/2017

[2018] HKCA 272

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 161 OF 2017

(ON APPEAL FROM HCMP NO 2079 OF 2016)

______________________

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)

________________________

Before: Hon Lam VP, McWalters and Poon JJA in Court
Date of Hearing: 23 March 2018
Date of Judgment: 10 May 2018

___________________

JUDGMENT

___________________

Hon Lam VP (giving the Judgment of the Court):

1. In Hong Kong, a barrister has to be enrolled on the roll of barristers kept by the Registrar of the High Court[1]. Such barrister has to apply for a practising certificate from the Bar Council each year[2]. A barrister who does not hold such certificate is not qualified to practise as such[3].

2. To enrol as a barrister, a person has to be admitted by the Court of First Instance[4]. A person who has undergone the requisite training, passed the relevant examinations and complied with the statutory requirements in the Legal Practitioners Ordinance (Cap 159) can apply to the Court of First Instance to be admitted as a barrister of the High Court in Hong Kong[5]. The Court of First Instance may only admit such person as a barrister of the High Court if it considers the person as a fit and proper person to be a barrister. The fit and proper criterion is therefore a benchmark for admission in addition to the fulfilment of the academic and professional training requirements.

3. In Re Youh Alan [2013] 2 HKLRD 485, the significance of the fit and proper criterion was explained at [9] to [10]. In particular, the following was said:

“9. ... There is a considerable degree of public trust and confidence placed in a barrister. A person admitted as a barrister has the privilege of practising as a member of one of the most respected professions in our society. Members of the public, the Judiciary and other members of the legal profession expect members of the Bar to have integrity, honour, high professional standard, reasonably sound judgment and competence in their practice. ...

10. ... Given that we have an adversarial system, unless the court and members of the public can have confidence that those practising at the Bar are fit and proper persons, the administration of justice under our system will be severely hampered and the rule of law, a core value in our society, will be tarnished. ...”

4. The present appeal concerns the application of such criterion to an applicant for admission who had a criminal conviction for an offence in the past. His application was not opposed by the Bar. But it was opposed by the Secretary for Justice. After hearing submissions from the parties, A Chan J determined against the application. From that determination, the applicant appealed to this Court. The respective stance of the Bar Council and the Secretary for Justice remained the same.

5. We heard the appeal on 23 March 2018. We now give our judgment in this appeal.

Background of the applicant

6. The applicant grew up in a middle class family. He is the only child in the family and his father was a police officer and his mother a housewife. He received education in Hong Kong until Form 2, thereafter hecontinued with his secondary education in England. In 2007, he returned to Hong Kong to study at the Polytechnic University for radiation therapy. Up to the time of the offence, according to the probation report of 24 September 2010, he had all along demonstrated good behaviour and led a decent life. He had a stable relationship with his then girlfriend (who subsequently became his wife). The offence took place when he was in his last year of study. He graduated with a bachelor degree in 2010. After graduation, he became a registered therapeutic radiographer.

7. The salient facts regarding the conviction of the applicant were set out by the judge at [7] to [11] of the judgment:

“7. The material facts are uncontroversial and as follows. On 24 September 2010, the Applicant was convicted in the Fanling Magistracy for indecent assault. He was 22 years old at the time, and attending the final year of a bachelor’s degree course on radiotherapy.

8. The charge was that the Applicant indecently assaulted a female in a pedestrian subway near an MTRC station on 2 February 2010. The victim was 14 years old, dressed in student uniform and on her way to school at the time of the offence.

9. The Applicant pleaded not guilty to the charge and elected to give evidence at his trial, which took place on 27 August, 1, 7 and 24 September 2010. His evidence was not accepted by the Magistrate who described his testimony as ‘making up excuses’ and rejected his evidence as untruthful. The Magistrate found that the Applicant ‘intentionally and purposely’ touched the breast of the victim with his left elbow and clutched the buttocks of the victim.

10. On 8 October 2010, the Applicant was sentenced to 14 days imprisonment. He was released on the day of sentencing since he had been remanded in custody for the same period of time pending the production of sentencing reports.

11. The probation officer’s reports indicated that the Applicant still maintained his innocence even after conviction. Although hewas considered to be a ‘cooperative, decent and upright young man’, he still displayed a ‘persistent denial attitude’. A community service order was therefore not recommended as a penalty. The psychological report of the Applicant also noted his denial of the offence. It was concluded that in view of his criminal history (he had a clear criminal record) and other information collected in the assessment, the risk of re-offending by the Applicant was estimated to be low.”

8. The applicant appealed against his conviction. That appeal was dismissed by a High Court judge on 8 March 2011. He further sought to appeal to the Court of Final Appeal. On 20 December 2011, the Appeal Committee dismissed the application for leave to appeal under Rule 7(2) of the Hong Kong Court of Final Appeal Rules.

9. The applicant started to work as a radiation therapist at a hospital. Notwithstanding his conviction and imprisonment, he continued to work there until August 2011. At the time when he left that employment, the department manager wrote a testimonial reference for him on 8 October 2012 certifying that he had demonstrated great adaptability and performed well on his duties. He was found to be sincere, industrious, cheerful and had gained great affection from his colleagues. He ceased his career as a radio therapist when he pursued his study in law at the Chinese University of Hong Kong.

10. In the meantime, by reason of his conviction, he was subject to disciplinary proceedings by the Radiographers Board. On 18 March 2013, the Board ordered that he be reprimanded.

11. He completed his PCLL in 2014 and worked as a legal clerk in a solicitor firm for about one year. In 2015, he decided he would wish to pursue a career as a barrister. In August 2015, he applied for a certificate of eligibility for pupillage from the Bar Council. In that application, he gave disclosure as to his conviction. The applicant provided two favourable character references in support of his application, one from the solicitor in whose firm he had worked since June 2014, the other from an instructor of a church at which the applicant has attended since 2012. He was active in the church.

12. There were divided views in the Special Committee on Pupillage...

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