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)

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JUDGMENT

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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 and Limited Practice of the Bar and the application was put to vote at the Bar Council meeting of 10 September 2015.  In the end, the Bar Council granted the certificate.

13.From 2 October 2015, the applicant served his pupillage successively under three pupil masters, one of them being a Senior Counsel and another one is a counsel of some seniority.  After completion of pupillage, each of his pupil masters certified that the applicant is a fit and proper person to be admitted as a barrister.

14.On 2 January 2016, the applicant married his girlfriend who has been with him even before the offence.

The application for admission

15.The applicant lodged his application for admission by a notice of motion of 15 August 2016.  The Bar decided not to oppose his application.  After reading the papers, the Secretary for Justice raised concerns about the lack of disclosure regarding the appeal by the applicant against his conviction and the outcome in the disciplinary proceedings by the Radiographers Board.  Consent was withheld and the application became a contested one.

16.The application was heard by the judge on 6 June 2017 and he gave his judgment on 16 June 2017.  He dismissed the application as he came to the conclusion that the applicant is not a fit and proper person. After citing some authorities and discussing in general the relevant principles guiding him, the judge focused on the circumstances of the applicant.  In essence, his reasons for coming to that conclusion can be summarized as follows:

(a)  The offence is serious as an immediate custodial sentence had been imposed. Conviction of a serious offence reflects poorly on the character of the offender and also the ability to meet the “fit and proper” criterion.  It would be quite exceptional for a person who had served a sentence of imprisonment to be admitted to the Bar ([44] to [50] of the judgment);

(b)  It does not tally with the expectations of the community of Hong Kong on the standard and integrity of the Bar to have a person with the applicant’s record to join the Bar as such a person would in all likelihood be disbarred ([51] to [57] of the judgment);

(c)  The views of the Bar Council should not be accorded with greater weight as compared with the view of the Secretary for Justice ([58] to [63] of the judgment);

(d)  The maintenance of innocence by the applicant showed a lack of remorse and not accepting responsibility over his crime.  There was insufficient evidence of rehabilitation and the views of the pupil masters were not cogent enough and the investigation by the Bar was inadequate ([64] to [80] of the judgment);

(e)  Non-disclosure by the applicant regarding the disciplinary proceedings and his appeal against conviction cast doubt on if the applicant has “reformed from the past” ([81] to [85] of the judgment).

The role of the Court of Appeal

17.The role of the Court of Appeal in an appeal of this nature was explained in Re Mably [2014] 1 HKLRD 627 at [38].  That case concerned the admission of an overseas junior and the principal issue was the application of the previous guidelines in previous judgments on admission of overseas counsel in the circumstances of that particular case.     

18.In the present case, the issue focused on the “fit and proper” criterion and the judge’s assessment in that respect. Ultimately, such determination depends on the applicant satisfying the court the he is a fit and proper person.  In an appeal against the judge’s determination of that question, the Court of Appeal should adopt the approach as stated in Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577 at [16], see also AmTrust Europe Ltd v Trust Risk Group SpA [2016] 1 All ER (Comm) 325 at [31] to [33].

19.In other words, the exercise involves the evaluation and weighing of different factors in the circumstances of the case. It also carries with it an element of value judgment.  It is an exercise in which different judges can legitimately differ.  As such, this Court would be cautious in interfering with such decision.  We should adopt the same approach akin to an appeal against the exercise of discretion or an appeal involving a question of mixed fact and law and refrain from disturbing the first instance decision unless it proceeded from some error of principle, reliance on irrelevant considerations, disregard of relevant considerations or it is clearly unsustainable, see L v Canterbury District Law Society [1999] 1 NZLR 467; Tsit Wing (Hong Kong) Co Ltd v TWG Tea Co Pte Ltd [2015] 1 HKLRD 414 at [22] to [28].     

The fit and proper criterion

20.At [41] of the judgment, the judge extracted several propositions from the judgment of the High Court of New Zealand in Re M [2005] 2 NZLR 544:

“(1) ‘ ... the test of suitability is necessarily an objective one, where sympathy for the person which a subjective approach might engender, has no place” (p.547, [18]);

(2)  The personal and professional sides of a person’s conduct cannot be disassociated (p.547, [20]);

(3)  In cases involving a person with previous conviction(s), ‘the central issue is whether [that person], despite her past, has demonstrated that she is now a fit and proper person to be admitted.  In other words, is there sufficient evidence of her change of character, or reformation, to enable the Court to view favourably her application’ (p.547, [21]);

(4)  In assessing whether the person has reformed:

(a)   the focus is necessarily forward looking.  The function of the Court is not to punish the applicant for past conduct (p.547, [21]);

(b)  the onus upon a person who has erred in a professional sense following admission to the legal profession is a heavier one than that of a candidate for admission (p.548, [22]);

(c)  due recognition must be given to the circumstances of youth where errors of conduct occurred when an applicant was immature (p.548, [22]);

(d)  it is important to look at the facts of the case in the round and not just pay regard to the fact of a previous conviction (p.548, [23]).”

21.As the judge said, these propositions were not disputed.  In the present context, it is also apposite to highlight that though high standard of integrity and probity should be expected we are dealing with human beings rather than paragons.  Thus the judge correctly reminded himself of the judgment of Kitto J in Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 298:

“Yet it cannot be that every proof which he may give of human frailty so disqualifies him. The ends which he has to serve are lofty indeed, but it is with men and not with paragons that he is required to pursue them. It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails.”

22.Whilst each case must depend on its own facts (as it is a multi-factorial fact sensitive assessment), as general guidance, apart from the above propositions and comments, it is appropriate to bear the following considerations in mind:

(a)  The burden is on the applicant to satisfy the court that he is a fit and proper person for admission to the Bar;

(b)  The inquiry is directed towards the present character and integrity of the applicant, not the character of him at the time when the offence was committed;

(c)  Though it is relevant to consider if he has reformed himself, and the admission of a past misdeed is one indication of acceptance of responsibility, it is not immutable that the process of rehabilitation must be accompanied by a public admission of guilt.  Depending on the circumstances, a long period of honest and responsible living since the conviction may also serve as evidence of rehabilitation;

(d)  The character of a person is best assessed by reference to the evidence of those having close and long term association with him.  In this connection, cogent evidence from a pupil master will usually carry substantial weight as the Court expects a pupil master to take his responsibility seriously in assessing the fitness of a pupil to be admitted (see Re Youh Alan, supra, at [59]).  In difficult cases, it would be helpful for the pupil masters to give more information to support their assessments in addition to a general or standard statement in a certificate of fitness;

(e)  Apart from a pupil master, other people closely associated with an applicant can also give evidence about the character and integrity of an applicant.  The above comment as to the degree of details to be contained in such evidence is equally applicable to such other character witnesses;

(f)  In case of doubt, the Bar Council can request further information and conduct interview with an applicant.  Given the role of the Secretary for Justice in an application of this nature, we also see no reason why an applicant should refuse to be interviewed by the Department of Justice if the Secretary deem the circumstances of the case to warrant such course to be taken.  It is also open to the Bar Council or the Secretary for Justice to apply for cross-examination of an applicant before the court though this should only be resorted to in exceptional circumstances with good justification;

(g)  In the authorities cited to us, some judges took the view that there are convictions which are so serious and reflected so badly on the character of the offenders that such persons can never be considered as fit and proper for admission to the Bar.  As we are plainly not concerned with such a case, we need not express any final conclusion in that regard;

(h)  For cases not falling within that category, in cases where a single conviction took place many years in the past, either in circumstances out of juvenile or adolescent folly or being out of character, the court should pay more regard to the subsequent development of the person in assessing whether he satisfies the fit and proper criterion.  This does not mean that the past conviction is not relevant.  It remains part of the history of the applicant which must be disclosed candidly.  However, the significance of that conviction has to be assessed with a proper perspective;

(i)  The authorities also show that non-disclosure of a past conviction by itself may be a ground for holding an applicant to be not fit and proper.  Yet the extent of information to be provided is a matter of judgment.  We shall come back to this issue in our discussion below.

Is the applicant fit and proper?

23.Mr Pao, appearing before us on behalf of the Secretary for Justice, fairly and properly accepted that the offence in respect of which the applicant was convicted does not fall into the category of cases where the mere commission of the offence demonstrates such a defect of character that the community and the profession can never be expected to find him acceptable as a member of the Bar.

24.Counsel however submitted that there are still outstanding issues, as adumbrated by the judge in the judgment.  Nor did Mr Pao advocate before us that the applicant must admit that he had committed the offence before he can satisfy the fit and proper criterion.  We inquired with counsel on the further steps the applicant needs to take to satisfy the criterion.  Mr Pao responded by proposing that the applicant be required to work in association with a barrister for another period of time to demonstrate that he is a fit and proper person.    

25.The judge did not address the question if there were other steps that the applicant should take for the purpose of showing that he is a fit and proper person.  As mentioned, he came to his determination for the reasons as broadly outlined above.  It is not clear from the judgment whether the judge regarded the conviction per se as an insuperable obstacle to admission.  His analysis at [44] to [57] would seem to suggest that the threshold to be overcome by a person who had been convicted for an offence with a prison sentence is very high, irrespective of the length of the prison sentence, the lapse of time and the personal circumstances of the applicant when the offence was committed.

26.With respect, we cannot agree with this approach which in our view is too dogmatic and inflexible.  We also see no basis to support the judge’s understanding on the expectation of the community.  Such understanding is incongruent with the underlying spirit of the Rehabilitation of Offenders Ordinance (Cap 297).  Though section 4(1) of that ordinance provided for an exception to the application of section 2 in proceedings for admission of a barrister, the underlying tenor of the ordinance is that a person who satisfied the requirement of section 2(1) [6] is a rehabilitated individual.

27.Admittedly, there is a gap between a rehabilitated person and a person of such character and integrity that satisfy the fit and proper criterion.  But drawing a line for the latter purpose at conviction with a prison sentence (as the judge did at [46] to [50] of the judgment) without regard to other more relevant considerations highlighted at [22(d)] above is a flawed approach carrying with it the risk of attaching no significance to relevant matters.  In our judgment, the judge unwittingly focused solely on the conviction and the sentence and in so doing failed to apply a forward looking perspective.

28.Further, the rhetorical questions raised by the judge at [54][7] should not be answered solely by reference to the conviction and sentence per se without regard to the other relevant considerations alluded to at [22] above.  The same applies in considering the extent to which the public, the court and fellow members in the legal profession can place their trust on such person.

29.At [57] of the judgment, the judge appeared to have equated the position of a person so convicted facing an application for striking off the roll and the position of the applicant for admission in the present circumstances.  With respect, there is a material difference between the two scenarios.  In the former case, the conviction would likely to be a recent one as disciplinary action would be taken as soon as the Bar is informed of the same.  In contrast, the present application calls for an examination of the extent to which the applicant has reformed himself over a period of 7 (and now 8) years.

30.Hence, we respectfully take the view that the judge has erred in principle in adopting such a dogmatic approach.  We find the position of Mr Pao (shared by other counsel appearing before us) as stated at [23] above to be more in line with the proper approach.

31.In terms of the assessment of the evidence on the current character of the applicant, whilst we agree with the judge in rejecting Mr Grossman’s submission that the view of the Bar Council must invariably be accorded more weight than the Secretary for Justice, we have difficulties with the way in which the judge dismissed the evidence of the pupil masters.  As we said at [22(d)] above, pupil masters are expected to give reliable assessment on the fitness of their pupils. 

32.We also agree with the judge that in the present context a standard form of certificate is insufficient.  However, two of the pupil masters provided more substantial testimonial on the character and fitness of the applicant.  One of them, Mr Clough, is a senior member of the Bar and the applicant served 6 months’ pupillage with him.  Mr Clough obviously felt strongly about the matter as he wrote altogether 3 letters to support the application.  He was able to say that the applicant had a strong and happy relationship with his wife and had managed to rehabilitate himself.  Mr Clough had high regard for the applicant as a man with integrity who is hardworking and able.

33.The other pupil master wrote 2 feedbacks in support of the applicant.  Unfortunately, a plank in one of the feedback was on the innocence of the applicant.  In connection with that, the judge was rightly troubled by such comment at [69] of the judgment.  However, the judge went further at [70] and [71] in drawing adverse inference against the applicant as to his non-acceptance of conviction.  The judge reached the conclusion at [71] that the applicant did not accept the criminal justice system.  With the greatest respect, that conclusion is not supported by any evidence, direct or inferential.  Even assuming that the applicant still privately harbours a stance of innocence regarding the conviction, it does not necessarily follow that he would not abide by the criminal justice system in his professional or private capacity.

34.Further, that pupil master also provided some evidence on the applicant’s character based on his observations during his 3 months’ pupillage with him.  He alluded to the long hours they spent together and the display by the applicant of utmost integrity and deep understanding of the duties owed by the Bar to the rule of law.

35.The ill-considered comment in other parts of the feedbacks should not have steered the judge away from these pertinent observations by a professional man who had spent so much time with the applicant.

36.Apart from testimonials from the pupil masters, the applicant produced reference letters from the department manager in the hospital where he worked as a radiation therapist, an associate professor from the Polytechnic University where he studied radiography, a solicitor who had known him since the applicant worked together with him at a solicitor firm in 2014 and a mentor from his church which he attended since 2012.  All of them depicted a picture of the applicant being a man of good character and a responsible person.

37.As it were, perhaps distracted by the ill-considered comments on innocence by the pupil master, the judge did not appear to pay much heed to such highly relevant evidence other than by saying the following at [76] to [78] of the judgment:

“76.  I regret to say that what may be said favourably for the Applicant cannot outweigh the fact that he has, all along, shown no remorse nor acceptance of responsibility for his conviction.  He has said nothing in his evidence about feeling sorry for the victim.

77.  There is considerable force in Mr Pao’s submission that any indication of reform, eg, the passage of time and the conduct of the Applicant after conviction, is predicated upon his acceptance of responsibility for what is wrong.

78.  In the premises, looking at this case in the round and bearing in mind the principles stated above, I am unable to come the view that the Applicant has reformed himself despite his serious conviction.”

38.In so saying, it would appear that the judge had been so prejudiced by the ill-considered comments in drawing an adverse inference against the applicant.  The applicant did not shirk responsibilities in respect of the conviction.  He disclosed his conviction to the Bar and all three pupil masters before the commencement of his pupillage.

39.The judge agreed with the submission of Mr Pao at the court below that the non-disclosure of the appeal against the conviction and the disciplinary proceedings reflected that the applicant has not reformed from the past, see [85] of the judgment.

40.In contrast, none of the pupil masters found these materials to be of importance in assessing the fitness of the applicant.

41.With respect, whilst it would have been better for the applicant to disclose the disciplinary proceedings at an earlier time, we cannot equate the omission of the applicant in that regard with a failure to reform on his part.  As for the appeal against conviction, this is not a case where the applicant had painted a misleading picture that he had accepted his criminal liability right from the start.  In the circumstances, we would not attach much significance to the fact that he had exercised his right of appeal.

42.Therefore, we cannot support the judge’s evaluation at [85] which is another error of principle that tainted his conclusion.

43.In the circumstances, we must respectfully set aside the decision of the judge and it falls upon us to evaluate the fitness of the applicant afresh.

44.The applicant was 22 years old at the time of the offence and wehave recited his personal background at [6] above as well as the developmentssince the conviction at [8] to [14].  Though the offence is a serious one, from the probation report and the psychological report, it was clearly an offence wholly out of character with the applicant.  The likelihood of re-offending is extremely low.  We cannot find any evidence to even remotely suggest that the applicant would be a risk to vulnerable persons, whether in professional practice or in his private life.  Since his conviction, the applicant has led an honest and decent life and those with whom he had dealings with all found him to be a responsible person.

45.We are satisfied that the applicant is a fit and proper person for admission to the Bar.  We cannot see any reason to warrant the delay of his admission, as suggested by Mr Pao, by requiring him to work in a chambers setting for another extended period to demonstrate his good conduct and character.  He has already done so when he served his pupillage and his pupil masters are able to certify his fitness.

46.We would allow the appeal, set aside the decision of the judge below, and grant an order admitting and enrolling the applicant as a barrister of the High Court of the Hong Kong Special Administrative Region.  We will make a costs order nisi that there be no order as to costs here and below.

Mr Clive Grossman SC and Ms Alice Lau, instructed by Kenneth Lam Solicitors, for the applicant

Mr Robert Pang SC and Mr Richard Yip, instructed by Anthony Chiang & Partners, for the Council of the Hong Kong Bar Association

Mr Jin Pao, instructed by Department of Justice, for the Secretary for Justice