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Re “A

Judgment Cited authorities 3 Cited in 1 Precedent Map Related
Vincent
Judgment Date16 June 2017
Year2017
Citation[2017] 3 HKLRD 763
Judgement NumberHCMP2079/2016
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP2079/2016 RE “A”

HCMP 2079/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS 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 Anthony Chan J in Court
Date of Hearing: 6 June 2017
Date of Judgment: 16 June 2017

_______________

J U D G M E N T

_______________

1. By a Notice of Motion dated 15 August 2016 (Notice of Motion), the Applicant applies under s.27 of the Legal Practitioners Ordinance, Cap 159 (Ordinance) for an order that he be admitted and enrolled as a barrister of the High Court of the HKSAR.

2. There is an unusual feature of this application in that the Applicant has a criminal conviction, the details of which will be set out below. The Secretary for Justice (SJ) has a number of concerns arising from the Applicant’s criminal conviction, and is unable to consent to this application. Whereas the Hong Kong Bar Association (HKBA) has no objection to the admission of the Applicant as one of its members. This court has been informed that the parties are not aware of any previous application of this nature where the SJ and the HKBA are in disagreement.

Issue

3. The issue in this application is whether the Applicant is considered by this court as a “fit and proper person” to be admitted as a barrister – a requirement under s.27(1) of the Ordinance.

4. Admission proceedings are not adversarial in nature. They are concerned with the protection of public interest and do not involve a resolution of conflicting private rights of disputing parties: see Re Mably [2014] 1 HKLRD 627 at §14, per Lam VP, citing with approval Wentworth v NSW Bar Association (1992) 176 CLR 239, 250-251.

5. Given that public interest is at stake, both the SJ and the HKBA have a responsibility to assist the court in assessing whether an applicant for admission as a barrister meets the fit and proper person criterion: see Re Youh Alan Chuen Po [2013] 2 HKLRD 485 at §11 & §59, per Lam JA (as he then was).

6. Hence, both the SJ and the HKBA had appeared at the hearing to assist the court. They were represented by, respectively, Mr Pao and Mr Pang SC. The Applicant was represented by Mr Grossman SC and Ms Lau.

Material facts

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 he was 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.

12. In July 2010 (before trial), the Applicant started to work as a radiation therapist at a hospital until August 2011 where he turned to study law.

13. According to a letter from the Applicant to the Secretary of Radiographers Board (Board) dated 22 October 2010, he only “reported this incident” to his supervisor at the hospital on 24 September 2010. That was the day when the Applicant was convicted and he was remanded in custody to 8 October 2010 pending the sentencing reports. Therefore, I assume that the report to his supervisor was done by someone on his behalf. The Applicant’s letter went on to say that special arrangement had been made for him to work in the planning section to avoid contact between him and patients, pending his appeal against conviction. I mention this in particular because this contemporaneous record is at odds with the information provided to the court by the Applicant via his senior counsel that he only carried out administrative duties whilst he was a radiation therapist.

14. It should also be noted from the contents of that letter that the Applicant did not report his involvement with a criminal offence to the Board earlier. See also para 33 below.

15. After graduating from the PCLL in 2014, the Applicant worked as a legal clerk at a firm of solicitors before deciding to apply for the commencement of pupillage in 2015.

16. The Applicant had disclosed his conviction to his 3 pupil masters, and each of his pupil masters had signed a pupillage certificate which certified that the Applicant is a fit and proper person to be admitted as a barrister.

17. When the Applicant applied for a Certificate of Eligibility for Pupillage in August 2015, he disclosed the conviction and certain relevant documents to the Bar Council. On 13 April 2016, the Applicant applied for a Certificate of Qualification for Admission. On 4 May 2016, the Applicant was issued the said Certificate by the Bar Council which certified that he is a fit and proper person to be called to the Hong Kong Bar.

18. On 15 August 2016, the Applicant filed the Notice of Motion. The application was supported by an Affirmation from him.

19. After the Notice of Motion was filed, the SJ made inquiries and requested for documents and information in relation to the application. In particular, on 26 August 2016, the Department of Justice (DOJ) requested the Applicant to provide all information and documents relating to the indecent assault conviction to enable the SJ to form a view on his admission.

20. On 30 August 2016, the Applicant’s solicitors provided certain documents relating to the conviction, including the charge sheet, brief facts, verdict, certificate of trial and sentencing reports.

21. On 2 September 2016, the DOJ replied and suggested that the Applicant should file and serve a supplemental affirmation exhibiting the documents provided on 30 August 2016 (which was subsequently done). The DOJ also inquired whether these documents were provided to the Bar Council and his pupil masters, and whether there was other information which was relevant to the fit and proper person criterion.

22. On 6 September 2016, the Applicant confirmed that the documents had been provided to the Bar Council when he applied for a Certificate of Eligibility for Pupillage, and to his pupil masters when he applied for pupillage.

23. On 19 September 2016, the HKBA informed the Applicant that it had no objection to the application for admission.

24. On 20 September 2016, the DOJ referred to the following facts which had not been disclosed by the Applicant and requested an explanation for the non-disclosure, namely: (i) the Applicant appealed against his conviction, which was dismissed on 8 March 2011; and (ii) the Applicant was reprimanded by the Board after disciplinary proceedings because of the conviction.

25. On 20 and 21 September 2016, the Applicant offered certain explanations for the non-disclosure of the appeal and the disciplinary action. In short, the Applicant took the view that the disclosure of the conviction was sufficient.

26. On 21 September 2016, the Applicant provided documents in relation to the criminal appeal and the disciplinary action by the Board to the HKBA.

27. On 23 September 2016, the Applicant informed the HKBA that the new documents were provided to his pupil masters and their feedback was positive. Each of the pupil masters had subsequently reiterated his view on the Applicant’s fitness and propriety to be called to the Hong Kong Bar.

28. On 23 September 2016, the HKBA informed the Applicant that it needed time to re-consider the application in view of the various instances of non-disclosure.

29. On 28 September 2016, the Applicant provided further documents in relation to the criminal appeal and the disciplinary action to the DOJ and the HKBA.

30. On 1 November 2016, the HKBA informed the Applicant that it maintained its no objection stance to his application.

Matters not originally disclosed

31. The matters in relation to the appeal which were originally not disclosed may be summarized as follows. On 8 March 2011, Deputy High Court Judge Andrew Chan (as he then was) dismissed the appeal against conviction filed by the Applicant.

32. On 4 April 2011, the Applicant filed a Notice of Motion seeking leave to appeal to the Court of Final Appeal (CFA), and submissions were filed with the CFA on his behalf. The application was dismissed by the Appeal Committee of the CFA on 20 December 2011 on the...

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1 cases
  • Re "A"
    • Hong Kong
    • Court of Final Appeal (Hong Kong)
    • 28 November 2018
    ...of these Reasons. [2] s 122(1) Crimes Ordinance, Cap 200. [3] s 27(1) Legal Practitioners Ordinance, Cap 159. [4] Anthony Chan J, [2017] 3 HKLRD 763. [5] Lam VP, McWalters and Poon JJA, [2018] 2 HKLRD 1245. [6] 30 July 2018. [7] s 22(1)(b) Hong Kong Court of Final Appeal Ordinance, Cap 484. ...

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