The Bar Council v. Mark Richard Charlton Sutherland

CACV 365/2019

[2021] HKCA 1886

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 ADMINSTRATIVE REGION MADE ON 18 JULY 2019)

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BETWEEN

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Before:  Hon Kwan VP and Cheung JA in Court

Date of Hearing:  3 December 2021

Date of Decision:  3 December 2021

Date of Reasons for Decision:  9 December 2021

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REASONS FOR DECISION

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Hon Cheung JA (giving the Reasons for Decision of the Court) :

1.We granted leave to Mr Sutherland, the respondent, to adduce the new evidence listed in the annex of this Decision in support of his appeal against the decision of the Barristers Disciplinary Tribunal (‘BDT’)  of the Bar Council which had found him to be in breach of various provisions of the Code of Conduct of the Bar. We now give reasons for our decision.

2.In his Supplementary Notice of Appeal, the respondent raised for the first time the lack of impartiality of Mr. Selwyn Yu SC, the Chairman of the BDT and he sought to adduce the new evidence to support his complaint.  The respondent who acted in person submitted that the complaint is about the apparent bias of Mr. Yu and he did not receive a fair hearing because of Mr. Yu’s earlier involvement with the disciplinary proceedings.  The respondent submitted that his complaint is not intended to be a personal criticism of Mr. Yu.  The gist of his complaint is that Mr. Yu served on the Bar Council’s Special Committee on Discipline (‘Special Committee’)  between 2013 and January 2015.  During this period, the initial complaint that gave rise to the disciplinary proceedings was received by the Special Committee on or about 6 March 2014.  The respondent submitted that this Special Committee was the prosecuting authority of the BDT proceedings.  The respondent submitted that a fair-minded and informed observer would have a reasonable perception that Mr. Yu might well have seen the complaint or formed an adverse opinion about it at that time and Mr. Yu’s natural sense of duty to the Special Committee was, even if only unconsciously, carried over into his role on the BDT.  The BDT was first convened on 13 July 2018 and the hearing against the respondent commenced on 29 August 2018.

3.The respondent also submitted that Mr. Yu was the Vice-Chairman of the Bar Council from 2013 to December 2014.  He was also a member of the Bar Council Committee on Overseas Admissions which in May 2016 refused an application by the respondent to be represented by an English Queen’s Counsel in a wasted costs proceeding.

4.The Ladd v Marshall criteria for adducing new evidence on an appeal are well established.  The first requirement is that the new documents could not have been obtained and placed before the BDT had reasonable diligence been exercised.  The respondent was represented at the BDT hearing by four counsel, one of whom was a Senior Counsel.  No point was taken about the impartiality of Mr. Yu by the respondent’s counsel.  The respondent said he was not advised by his lawyers to take the apparent bias point although he said that he does not lay blame on his counsel.  The respondent also submitted that the issue of law was fairly novel.

5.We are not satisfied that the respondent is able to meet the first requirement.  His explanation about not taking the apparent bias point is simply not sufficient.  However, there is no dispute that this Court has a residual discretion to admit new evidence where interest of justice is required in exceptional circumstance.  What caused us to grant leave is on the issue of complaint of the respondent’s misconduct to the Special Committee in March 2014 when Mr. Yu was a member of that Committee.  The respondent produced a copy of the written submissions on costs in KCCC 4933/2012 lodged by the counsel of the defendant who was the respondent’s former client in response to the Department of Justice’s application for costs against the defendant and the respondent personally.  It was stated in the written submissions that a formal complaint to the Bar Council against the respondent had been laid on the ground that the respondent’s conduct denied the defendant a fair trial.  The defendant was convicted by the magistrate but the Court of Appeal later overturned the conviction on the basis of the respondent’s mishandling of the case and referred the matter to the Bar Council to take such actions as it may deem necessary. 

6.Although the applicant stated that the disciplinary proceedings arose because of the Court of Appeal’s referral, it had not dealt with the earlier complaint of 6 March 2014, such as, for example, what action was taken on this complaint and the involvement of Mr. Yu, if any, as a member of the Special Committee, with this complaint.  Mr. Yu’s involvement, if any, would have a direct bearing on the ground of appeal now raised by the respondent.  This would also engage the second requirement of Ladd v. Marshall, namely, the evidence would or might, if believed, have a very important influence on the result of the case, although it need not be decisive.   Until this Court is provided with this information, it is difficult for us to properly assess the merits of this ground of appeal.  It is for this reason that we decided that we should exercise the residual discretion to allow the respondent to adduce the new evidence so that the point on apparent bias could be properly argued on appeal.  We granted leave to the applicant to file evidence in response within 35 days and we reserved the question of costs of the application to the hearing of the appeal.

Mr Robert Pang SC and Mr Tony Ko, instructed by Kwok, Ng & Chan, for the Applicant

Mr Mark Richard Charlton Sutherland, the Respondent, unrepresented, appearing in person

annex

1)  Bar Constitution (pages 1 to 28);

2)  Report of the Special Committee on Discipline dated 13 December 2013 (pages 29 to 30);

3)  Special Committee on Discipline Annual Report 2014 dated 15 January 2015 (pages 31 to 33);

4)  Special Committee on Discipline Annual Report 2015 dated 29 December 2015 (pages 34 to 36);

5)  Website showing Mr. Selwyn Yu SC’s date of appointment to the Bar Disciplinary Tribunal (‘BDT’)  of 4 May 2015 (page 37);

6)  Report of the Special Committee on Overseas Admissions dated 31 December 2015 (page 38);

7)  Junior Counse1’s Certificate dated 10 May 2016 (pages 39 to 44);

8)  Extract from the website of the Hong Kong Bar Association’s list of ‘Past Officers’ (pages 45 to 46);

9)  Letter dated 26 May 2016 from the Hong Kong Bar Association to Messrs Mayer Brown JSM (pages 47 to 48);

10)  The submissions on costs application in KCCC 4933/2012.