The Bar Council v. Mark Richard Charlton Sutherland

CACV 365/2019

[2019] HKCA 939

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 365 OF 2019

(On appeal from an Order of the Barristers Disciplinary Tribunal of the Hong Kong Special Administrative Region made on 18 July 2019)

________________________

________________________

________________________

Before: Hon Kwan VP and Chu JA in Court

Date of Hearing: 15 August 2019

Date of Judgment: 15 August 2019

________________________

J U D G M E N T

________________________

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

1.We have before us an application for stay of execution pending appeal of an order made by the Barristers Disciplinary Tribunal (“the Tribunal”) on 18 July 2019. It was issued by the respondent on 9 August 2019. The matter arose in this way.

2.The respondent is a practising barrister and a member of the Hong Kong Bar Association.  He was the trial counsel of Harjani, Kishore Mohanlal, who was charged with indecent assault and was convicted by a magistrate on 30 September 2013 after a 19-day trial (“the Trial”).  On the prosecution’s application, the magistrate made a wasted costs order against the respondent on 30 June 2014.  Harjani appealed against his conviction on the grounds that the respondent had been incompetent and had failed in his professional duty by deliberately conducting the defence case otherwise than in accordance with his instructions.  The respondent appealed against the wasted costs order.  Both appeals were reserved by the Court of First Instance to the Court of Appeal.

3.On 15 May 2017, the Court of Appeal allowed Harjani’s appeal against conviction and dismissed the respondent’s appeal.  Its judgment was reported as HKSAR v Harjani; Re Sutherland (Appeal: Wasted Costs Order) [2017] 3 HKLRD 1.  The Court of Appeal ordered a copy of its judgment and the relevant appeal papers be served on the Bar Council for its consideration and action as it deemed necessary.

4.On 9 July 2018, the Bar Council laid complaints of misconduct against the respondent.  The substantive hearing of the disciplinary proceedings was held on various days between September and November 2018.  The respondent applied to the Tribunal repeatedly to adjourn the proceedings.  All his applications were turned down.  We will return to this topic.

5.On 2 April 2019, the Tribunal handed down its statement of findings, finding the respondent guilty of the five complaints laid by the Bar Council.  In summary, these complaints were:

Complaint 1

This alleged that the respondent asked questions and made statements during the Trial, which were intended to insult and/or annoy the witness or any other person or otherwise were an abuse of counsel’s function, contrary to para 131 of the Code of Conduct of the Bar (“the Bar Code”).

Complaint 2

This alleged that the respondent failed to use his best endeavours during the Trial to avoid unnecessary expense and wasting the court’s time by his questioning of witnesses, contrary to para 133 of the Bar Code.

Complaint 3

This alleged that the respondent knowingly misled the court in relation to various procedural matters which arose during the Trial and engaged in conduct in the pursuit of his profession, which is dishonest or which may otherwise bring the profession of barrister into disrepute, contrary to paras 130 and 6(b) of the Bar Code.

Complaint 4

This alleged that the respondent engaged in conduct during the Trial which was discourteous to the court, and/or which may bring the profession of barrister into disrepute and/or failing to observe the ethics and etiquette of his profession, contrary to paras 133, 6(b) and (c) of the Bar Code.

Complaint 5

This alleged that the respondent had engaged in conduct in court during the Trial which may bring the profession of barrister into disrepute and which was prejudicial to the administration of justice by failing to defend his client competently in accordance with his instructions, contrary to paras 6(b) and (d) of the Bar Code.

6.On 18 July 2019, the Tribunal gave its reasons for sentence and ordered the respondent be suspended from practising as a barrister for a total of 36 months and to pay the Bar Council costs of the proceedings and of any prior inquiry on a full indemnity basis.  The Tribunal also made orders for the publication of the statement of findings and reasons for sentence.

7.On 7 August 2019, the respondent’s solicitors Oldham, Li & Nie wrote to the Tribunal chairman attaching a copy of the notice of appeal of the same date to appeal against the order for his suspension and publication of the statement of findings and reasons for sentence.  By the letter, the respondent’s solicitors applied for a stay of execution of the suspension and publication pending the determination of his appeal and requested the Tribunal to treat the matter as one of great urgency as the order for sanctions would take effect on 9 August.

8.Given the urgency, the Tribunal chairman replied by letter dated 9 August dealing with the application without the benefit of submission from the Bar Council.  The chairman took the view that the Tribunal had no jurisdiction to grant a stay pending appeal as there is no provision in the Barristers Disciplinary Tribunal Proceedings Rules, Cap 159P (“the BDTP Rules”) specifically giving such power to it, unlike rule 16 of the Solicitors Disciplinary Tribunal Proceedings Rules, Cap 159C (“the SDTP Rules”).

9.The respondent issued the present summons in these appeal proceedings on 9 August 2019.

10.Regardless of whether the Tribunal has jurisdiction to grant a stay of execution of its order pending appeal, the Court of Appeal has original jurisdiction to do so, pursuant to Order 59 rules 10(9) and 13.  For the guidance of stay applications that may be made in future in respect of orders made by a Barristers Disciplinary Tribunal, it is right we should give our views on the question of the Tribunal’s jurisdiction to grant a stay.

11.Mr Neal Clough submitted on behalf of the respondent that the Tribunal does have jurisdiction.  He drew our attention to Wong Kam Kuen Catherine v The Bar Council [2015] 4 HKLRD 367, in which the Court of Appeal noted at §1 without comment that the Barristers Disciplinary Tribunal in those proceedings had ordered a stay of its order pending determination of an appeal.  Although the BDTP Rules do not specifically provide for a power of stay or suspension of an order pending appeal unlike the SDTP Rules, rule 8 of the BDTP does provide that “A Tribunal may determine its own procedure and rules of evidence”.

12.Mr Tony Ko for the Bar Council did not support the position of the Tribunal chairman on this either.  He pointed to another general provision, being section 37(g) of the Legal Practitioners Ordinance, Cap 159, as conferring the necessary jurisdiction.  This section provides that “On completion of its inquiry, the Barristers Disciplinary Tribunal may do one or more of the following - … (g) make any other order it thinks fit.”

13.We consider the general provisions wide enough to confer on the Tribunal the power to grant a stay, as was held by the Court of Appeal in respect of a similar general provision in rule 11 of the Disciplinary Committee Proceedings Rules in Registrar of Hong Kong Institute of Certified Public Accountants v X [2017] 3 HKLRD 541 at §§13 and 14.  It is beneficial that an application for stay pending appeal should be dealt with in the first instance by the Tribunal, hence section 37(g) of the Ordinance and rule 8 of the BDTP Rules should receive such a fair, large and liberal interpretation as will best ensure the attainment of this objective.

14.We hold that the Tribunal does have jurisdiction to grant a stay of its order pending appeal.

15.We turn to the substance of this application.

16.The existence of an arguable appeal, namely, one with reasonable prospects of success, is the minimum requirement before the court would even consider granting a stay.  However exceptional the circumstances may be otherwise justifying a stay of execution, if the court is not convinced there exist arguable grounds of appeal, no stay will be granted (Star Play Development Ltd v Bess Fashion Management Co Ltd, HCA 4726/2001, 7 June 2002, §10(6)).  Therefore, we need to form a preliminary view of the merits of the appeal for present purpose (Star Play Development Ltd, §10(5)).

17.The statement of findings of the Tribunal ran into 107 pages. The grounds of appeal do not challenge directly or specifically any of the findings made by the Tribunal on the evidence adduced or the appropriateness of the sanctions imposed.  The complaint in the grounds of appeal is simply that the proceedings before the Tribunal were unfair for two reasons:

(1)  The Tribunal refused to adjourn the proceedings pending the outcome of the respondent’s application made out of time, first to the Court of Appeal and then to the Court of Final Appeal, for a certificate that points of law of great and general importance are involved in his intended appeal to the Court of Final Appeal against the judgment of the Court of Appeal in May 2017.  It is contended that the judgment of the Court of Appeal prejudged the issues before the Tribunal, such that no fair trial of the complaints against the respondent is possible.  If the Court of Final Appeal should grant leave to appeal and if the appeal is eventually allowed, the judgment of the Court of Appeal will be quashed and the highly critical conclusions of the Court of Appeal would not then prejudice the fairness of the disciplinary process.

(2)  No steps were taken by the Bar Council to ensure that the disciplinary proceedings were to be heard by a tribunal whose members are ignorant of the judgment of the Court of Appeal. It is contended that in light of the judgment of the Court of Appeal, which would have the effect of pre-judging the issues before the Tribunal, no independent observer could have been satisfied that the Tribunal was fair to the respondent.  No tribunal, however strongly independent, could remain unaffected by the strong conclusions of the Court of Appeal or could give the appearance of remaining unaffected.

18.The judgment of the Court of Appeal was handed down on 15 May 2017.  The complaints of misconduct were laid against the respondent on 9 July 2018.  A preliminary hearing for directions on the complaints was held on 29 August 2018.  On the first day of the substantive hearing on 27 September 2018, the respondent applied to adjourn the proceedings to permit him to seek leave to appeal against the Court of Appeal judgment out of time.  He only filed a notice of motion in the Court of Appeal for a certificate of two points of law of great and general importance on 5 October 2018.  He was more than 15 months out of time.  And his application for leave to appeal was only filed in the Court of Final Appeal on 9 November 2018.

19.The two points of law were: (1) whether the Court of Appeal had jurisdiction to entertain an appeal brought pursuant to sections 19(2) and (3)(a) of the Costs in Criminal Cases Ordinance, Cap 492, by virtue of the provisions of section 113 and section 118(1)(d) of the Magistrates Ordinance, in light of the mandatory requirement of section 19(3)(a) that the appeal be heard by the Court of First Instance; and (2) whether the conduct covered by the words “seriously improper act or omission or other serious misconduct” in section 18 of the Costs in Criminal Cases Ordinance includes conduct beyond that which would ordinarily be held to justify debarment, striking off, suspension from practice or other serious professional penalty, or which would involve a significant breach of a substantial duty imposed by a relevant code of professional conduct, so as to include “conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion whether or not such conduct violates the letter of a professional code”.

20.On 18 January 2019, the Court of Appeal refused to grant a certificate in respect of either of the questions proposed and dismissed the application for a certificate out of time ([2019] HKCFI 140).  It took the view that the application was woefully out of time and did not accept the reasons put forward to justify such a delay.  As for the merits, the respondent sought to raise new matters which were not the subject of argument at the appeal and are contrary to the position adopted by his then leading counsel, who took no issue with the principles distilled by the magistrate from cases regarding the approach in an application for wasted costs in criminal cases.

21.As for the application for leave to appeal filed with the Court of Final Appeal on 9 November 2018, the decision on this is still awaited.

22.On a preliminary basis, we do not think the points of law sought to be raised in the intended appeal to the Court of Final Appeal are reasonably arguable and it is not reasonably likely that the respondent would obtain leave to appeal.  We do not think it reasonably arguable that the Tribunal was in error in refusing to adjourn the proceedings for him to seek leave to appeal to the Court of Final Appeal.

23.Even if leave to appeal were to be granted by the Court of Final Appeal in respect of the respondent’s appeal against the wasted costs order, this would not affect the substantial part of the Court of Appeal judgment dealing with the misconduct of the respondent as the trial counsel of Harjani, which led to the appeal against conviction of Harjani being allowed.

24.The judgment of the Court of Appeal was published in the law reports and has been in the public domain for some time.  It is a matter of public knowledge within the legal profession as it is an important judgment dealing with the impact of misconduct of trial counsel on the administration of justice and the application of the principles on the making of a wasted costs order in a criminal case.  Mr Clough acknowledged it would be unrealistic, to say the least, to find members on the panel of the Barristers Disciplinary Tribunal who would be ignorant of this judgment.

25.The status of the judgment of the Court of Appeal in the disciplinary proceedings was a matter of concern to all involved as early as the preliminary hearing for directions.  As the Tribunal made clear in the statement of findings at §§25 to 28, the comments of the Court of Appeal “do not affect the Tribunal’s duty and ability to come to its own independent conclusions on the relevant issues at a fresh hearing of all the evidence at the Hearing”.  The Tribunal further noted that the respondent did not testify before the Court of Appeal or offer an explanation of his conduct in the appeal proceedings, so the Court of Appeal did not investigate the full circumstances involving the respondent in which all aspects of the complaints arose.  The Tribunal concluded that the comments of the Court of Appeal are not determinative in the disciplinary proceedings and it would have to fulfil its duties in “carefully considering the evidence before [it], conducting [its] own analysis, and come to [its] own findings based on the evidence received and issues raised by the parties at the Hearing.”

26.In light of the above statements, Mr Clough does not allege actual bias of the Tribunal and contended there was apparent bias.  The test to be applied is the objective standard of the fair-minded and informed observer, whether the comments of the Court of Appeal judgment would cause such an observer to reasonably apprehend that the Tribunal would approach the case with its mind closed to persuasion and would not be able to adjudicate with the detachment and impartiality essential to the judicial process.

27.It is pertinent to note in the grounds of appeal and the submissions made on behalf of the respondent that there was no articulation of any logical connection between the comments of the Court of Appeal judgment as allegedly giving rise to the apprehension of bias and the possibility of departure from impartial decision-making by the Tribunal. It did not appear from the grounds of appeal or the respondent’s submissions in what way it could be said that the criticisms of the Court of Appeal were not capable of being justified.  If the criticisms of the Court of Appeal were capable of being justified, and there is no indication to the contrary, it seems to us that a fair-minded and informed observer of all the facts and circumstances would be slow to apprehend a real possibility of bias in this situation.

28.Our preliminary view of the merits of this appeal is that the grounds of appeal are not reasonably arguable.  As this requirement is not satisfied, there will be no stay of execution pending appeal no matter how exceptional the circumstances of the respondent may be. 

29.It is therefore not strictly necessary to deal with the prejudice and irreparable harm to the respondent urged upon us by Mr Clough, who placed heavy reliance on Registrar of Hong Kong Institute of Certified Public Accountants v X.  The statutory scheme of the Professional Accountants Ordinance, Cap 50 considered in that case, in particular section 38(2), is very different.  The Court of Appeal also found the appeal of the accountants to have reasonable prospect of success.

30.Even if it were necessary to carry out a balancing exercise of competing interests (which is not the case here), we would not have been persuaded that the balance should be in favour of granting a stay pending appeal.  There is much to be said for the submissions on behalf of the Bar Council that the misconduct found by the Tribunal is very serious, and it is clearly in the public interest that the order to suspend the respondent from his practice should take effect without any further delay.  The order of suspension is for the protection of the public and the maintenance of the reputation of the profession of barristers.  Public interest considerations are more important than the personal hardship and professional reputation of the respondent.

31.We dismiss the respondent’s application for stay of execution pending appeal.  The respondent incurred costs to apply to the Court of Appeal which would not have been necessary had the Tribunal dealt with his application for stay pending appeal.  We think it appropriate to make no order as to costs and we so order.

Mr Neal Clough, instructed by Oldham, Li & Nie, for the Respondent (Applicant)

Mr Tony Ko, instructed by Kwok, Ng & Chan, for the Applicant (Respondent)