Stephen Daryl Barnes v Hksar

Judgment Date14 September 2000
Year2000
Citation[2000] 3 HKLRD 279; (2000) 3 HKCFAR 298
Judgement NumberFAMC15/2000
Subject MatterMiscellaneous Proceedings (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FAMC000015/2000 STEPHEN DARYL BARNES v. HKSAR

FAMC000015/2000

FAMC No. 15 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 15 OF 2000 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 124 OF 2000)

_____________________

Between:
STEPHEN DARYL BARNES
Applicant
AND
HONG KONG SPECIAL ADMINISTRATIVE REGION
Respondent

_____________________

Appeal Committee: Mr Justice Bokhary, Mr Justice Chan and Mr Justice Ribeiro PJJ

Date of Hearing: 7 September 2000

Date of Determination: 14 September 2000

______________________

DETERMINATION

______________________

Mr Justice Ribeiro PJ:

1. Three summonses were issued against the applicant under section 46 of the Legal Practitioner's Ordinance, Cap 159, charging him with :-

(i) being an unqualified person on or about 19 September 1997, in Hong Kong, wilfully pretending to be recognised by law as qualified to act as a solicitor by means of an advertisement inserted in the Hong Kong Post;

(ii) repeating that offence on 3 July 1998; and,

(iii) being an unqualified person in February 1998, wilfully using descriptions, namely, "lawyer" and a certain Japanese phrase, implying that he was qualified or recognised by law as qualified to act as a solicitor.

2. On 1 February 2000, he was convicted after trial and fined $3,000 on each summons by the magistrate, Mr Stephen Smout, who made the following findings, namely, that :-

(a) the applicant had a UK law degree and had passed the UK Law Society Finals in 1993 but was not a qualified solicitor or barrister;

(b) he was a director of and the main shareholder in a company called LLB Consultancy Ltd which had placed the advertisements in question;

(c) in the advertisements (which were in Japanese), the company was described as a "law firm" and the applicant as a "lawyer";

(d) on the applicant's name card, he was described as "lawyer" both in English and Japanese;

(e) the applicant had come to Hong Kong and, having studied the Legal Practitioner's Ordinance, developed a business in areas of legal work identified by him as not within the exclusive preserve of solicitors;

(f) the company did not do work which was within the exclusive province of solicitors but would refer such work to solicitors;

(g) his company's brochure and website stated that the company was not a solicitor's firm;

(h) although he at first referred to himself as "legal consultant" in the course of his business, the applicant later called himself a "lawyer", having concluded that this did not imply that he was a solicitor;

(i) the advertisements were placed and the name cards prepared with the help of a native Japanese speaker, a Ms Yamada, who had been told by the applicant that he should not be held out as a solicitor, with the explanation that a solicitor was a lawyer who was able to go to court whereas he was a lawyer who could not; and,

(j) he had approved the wording used in the advertisements and name card describing himself as a "lawyer".

The magistrate held that a "lawyer" in the context in which the applicant had used the term was to be taken to mean someone qualified to practise law and that it was unnecessary for the prosecution to show that the applicant had misled anyone by so describing himself. The magistrate found that the applicant had not deliberately pretended to be recognised by law as qualified to act as a solicitor. However, he held that in section 46, "wilfully" included "recklessly" and that the facts established the requisite recklessness on the applicant's part. In particular, in order to promote his business, the applicant had consciously taken the potentially harmful risk that people might think he was a solicitor when he was not. Precautions to counteract that risk were inadequate to negate recklessness.

3. On appeal to the Court of First Instance (reported at [2000] 2 HKLRD 495), Gall J upheld the magistrate's decision. He held that in the context, "wilful" meant "deliberate and intentional" but that it also encompassed recklessness, relying principally on R v Sheppard [1981] AC 394.

4. Gall J refused to certify the case for appeal under section 32 of Cap 484 on the ground that it was not reasonably arguable, citing Lee Kin Pong v HKSAR [1998] 1 HKLRD 182. He also held that in any event, it did not raise any point of law of great and general importance.

5. There are three applications before the Appeal Committee: (i) for a certificate under section 32(3), the court below having declined one; (ii) for leave to appeal on the ground that the case raises points of law of great and general importance, or alternatively, involves substantial and grave injustice; and (iii) for an extension of time to make the abovementioned leave application.

6. The questions which the applicant seeks to have certified as raising points of law of great and general importance were initially formulated as follows :-

1. Whether a person can be convicted of an offence under the provisions of section 46(1) of the Legal Practitioners Ordinance Cap. 159 on the basis of recklessness.

2. If the answer to Question 1 is in the affirmative, whether the mens rea necessary to constitute recklessness is abnegated or rendered otherwise insufficient to constitute recklessness in law if the appellant puts in place steps or procedures which he believes will avoid constituting the offence but which in fact fails to eliminate the risk of commission of an offence under the provisions of section 46(1) of the Legal Practitioners Ordinance.

3. If the answer to Question 1 is in the affirmative, whether in relation to SPS2286 & SPS2287 the appellant's conduct could in law have amounted to recklessness having regard to the fact that the actus reus of the offences under section 46(1) of the Legal Practitioners Ordinance were committed by a person other than the appellant.

7. At the hearing, Mr Clive Grossman SC, acting for the applicant, amended Question 3 so that it reads as follows :-

"If the answer to Question 1 is in the affirmative, whether in relation to SPS2286 & SPS2287 the appellant's conduct could in law have amounted to recklessness."

We have come to the conclusion that none of the questions so formulated merits certification.

Question 1

8. Section 46, so far as material, provides as follows :-

"Any unqualified person who wilfully pretends to be, or takes or uses any name, title, addition or description implying that he is qualified or recognised by law as qualified to act as, a solicitor shall be guilty of an offence ......"

The decision of the House of Lords in R v Sheppard [1981] AC 394 was relied on both by the magistrate and the judge as authority for construing the words "wilfully pretends" in section 46 as not being confined to acts of pretence performed deliberately but as also encompassing such acts performed recklessly.

9. R v Sheppard is certainly authority for the proposition that where a statutory offence prohibits conduct performed "wilfully", it is generally sufficient for the prosecution to prove that the accused acted recklessly: see Archbold 2000, §17-47 to §17-48. It is an authority that has been followed in Hong Kong, for example, by the Court of Appeal in R v Li Wang Fat [1982] HKLR 133 and in R v Chau Ming Cheong [1983] 1 HKC 68.

10. Mr Grossman did not dispute the effect of R v Sheppard as summarised above. His argument was based on the specific wording of section 46. Whereas, he argued, the word "wilfully", taken alone, meant either "intentionally" or "recklessly", that was not its meaning in section 46 because there, "wilfully" is followed by "pretends". Mr Grossman submitted that words like "pretends" or "pretence" have embedded within their meaning, the notion of an intention to deceive. Accordingly, the coupling of "wilfully" with "pretends" excludes "recklessness" and makes the R v Sheppard approach inapplicable. It is, as he put it, "conceptually impossible 'to recklessly pretend' to do something". What must be proved is an intention to deceive or mislead.

11. We do not consider that contention reasonably arguable. Section 46 penalises someone who "wilfully pretends to be, or takes or uses any name, title, addition or description implying that he is qualified or recognised by law as qualified to act as, a solicitor." The word "pretends" comprehends acts of pretence or conduct which expressly or impliedly conveys a false representation. The word is plainly intended by the legislature to represent one form of the actus reus of the offence created by...

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