Read the full judgment text of CACV 246/2015 on BabelCite. This Court of Appeal judgment was delivered on 28 October 2016 before Hon Cheung CJHC, Hon Barma JA, and Hon Poon JA.
Constitutional law – freedom of choice of occupation – Article 33 of the Basic Law – whether BL33 confers a general right to work or only a passive or negative right against conscription to particular fields of occupation – barrister refused permission to engage in neuro-beautology as supplementary occupation under Paragraph 23 of the Code of Conduct of the Bar – applicant ceased practice at the Bar and applied for judicial review – G Lam J granted declaration that Paragraph 23 infringes BL33 and quashed the Bar Council's decision – whether BL33 is engaged by the prior-permission requirement – BL33 held to be narrower than a general right to work, conferring only a passive or negative right against conscription, following GA v Director of Immigration (2014) 17 HKCFAR 60, which is binding – applicant unable to show societal change warranting departure – common law right to work not established – Article 6 of the ICESCR not incorporated into Hong Kong municipal law – challenge based on alleged incorporation of ICESCR Article 6 via BL33 also rejected – no engagement of BL33 means proportionality analysis does not arise – reasons challenge – Chairman's letter and minutes gave only that the occupation was not compatible with practice as a barrister – reasons communicated at the time were inadequate – applicant legally trained could not be expected to identify the Bar Council's specific concerns about the standing of the International Naturopathic College and the body-figuring profession – but applicant suffered no material prejudice because the objections related to matters beyond his control – Decision not quashed on this ground – application to amend Form 86 refused as academic – appeal allowed, judicial review dismissed, costs to the Bar Council here and below with certificate for two counsel.
Legal issues: Whether Article 33 of the Basic Law is engaged by Paragraph 23 of the Code of Conduct of the Bar · Adequacy of the Bar Council's reasons for refusing the application
Outcome: Appeal allowed; order of G Lam J set aside; applicant's application for judicial review dismissed.
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