Re “A”

CACV 161/2017

[2018] HKCA 445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 161 OF 2017

(ON APPEAL FROM HCMP 2079/2016)

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J U D G M E N T

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

1.We handed down our judgment on 10 May 2018 allowing the appeal. We ranted an order admitting and enrolling the applicant as a barrister.

2.By a notice of motion of 6 June 2018, the Secretary for Justice applied for leave to appeal to the Court of Final Appeal. The following were framed as questions of great general or public importance in the intended appeal:

“ (1)  In determining whether a person is a “fit and proper” person to be admitted as a barrister of the High Court in Hong Kong under section 27(1) of the Legal Practitioners Ordinance (Cap 159), what is the proper approach of the Court where the applicant has been convicted under trial of a sexual offence against a minor resulting in an immediate custodial sentence and has never displayed any remorse over his criminal conduct.

(2)  In the above context, what constitutes “reformation” and “rehabilitation” for the purposes of determining whether an applicant is a “fit and proper” person to be admitted as a barrister.

(3)  Whether admission, in such circumstances, must be exceptional and dependent upon the applicant establishing a genuine and complete reformation of character supported by cogent and compelling evidence.

(4)  What are the expectations of community of Hong Kong on the standards and integrity of the Hong Kong Bar, and how and to what extent public confidence in the legal profession and administration of justice would, if it should, be gauged and accorded sufficient weight in such an admission application.”

3.The application is opposed by the applicant. The Bar Council takes a neutral stance.

4.Skeleton submissions were lodged in accordance with Practice Direction 2.1.  Having read the same, we are of the view that we can dispose of the application on the papers without any oral hearing.

5.We now give our determination on the application.

6.The central issue in the case is whether the Court can be satisfied that the applicant is a fit and proper person within the meaning of Section 27(1) of the Legal Practitioners Ordinance.  As we have said at [19] of our judgment:

“ … 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…”

7.We also emphasized at [23] that in such an assessment each case must depend on its own facts though we also gave some general guidance.

8.In our judgment, we explained at [26] to [28] that it was too rigid to regard any single factor as determinative in such assessment and how the judge had fallen into that error. 

9.Coming back to the questions raised in the Notice of Motion, question (1) seems to suggest that the Court should have a particular approach in respect of an applicant who has been convicted after trial of a sexual offence against a minor resulting in an immediate custodial sentence and has never displayed any remorse over his criminal conduct. 

10.With respect, we cannot see any justification for generalising and counsel did not cite any authority to suggest our guidance that the assessment has to be a multi-faceted one is wrong in principle.  That being the case, the way in which question (1) is formulated goes directly against that general approach as it tends to suggest that the matters identified in the question would be determinative of the outcome of the application without regard to other relevant factors.

11.The same flaw permeated through the grounds of appeal canvassed in the Notice of Motion. 

12.In respect of question (2), we said at [22(c)] of the judgment:

“ 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.”

13.We do not recall Mr Pao SC, for the Secretary for Justice, had any dissent when this proposition was put to him in the course of the appeal hearing.  In any event, Mr Pao failed to persuade us that it is reasonably arguable that we were wrong in so holding. 

14.Given the general multi-faceted approach set out above, it is unhelpful to suggest that admission should be exceptional by singling out one factor.  In our view, the guidance at [22(c)] sufficiently addressed the question of reformation and rehabilitation.  Even though one may reasonably disagree with the application of the guidance on the facts of this case (as we disagreed with the judge below), it is wrong in principle to elevate such disagreement to the level of a matter of general principle. Question (3) has no merit.

15.Question (4) is a non-issue.  There is no evidence before the Court on the expectation of the community.  At [3] of our judgment, quoting as we did from the judgment in Re Youh Alan [2013] 2 HKLRD 485, we have already taken account of public expectation.  What we disagreed with is the judge’s comment on public expectation at [46] of the judgment below.  Such disagreement cannot form the platform for launching Question (4).

16.All in all, the appeal is in substance a challenge to our assessment in a multi-faceted exercise in the particular circumstances of this case.  Notwithstanding the efforts of Mr Pao, we do not find any questions of great general or public importance involved or any other reasons in the interest of justice for leave to appeal to be granted.  We dismiss the notice of motion accordingly.

17.We make a costs order nisi that the Secretary for Justice shall pay the costs of the applicant in the motion.  Having read the statement of costs prepared by solicitors for the applicant, we assess such costs at $9,782.

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

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