Wong Wa Fun v. Wong Wai Fun, Stella, Chairperson of Inquiry Committee
Read the full judgment text of HCAL 890/2022 on BabelCite. This High Court CFI judgment was delivered on 11 November 2022.
1. The Applicant is a ‘Senior Court Prosecutor II’ of the Department of Justice (“DOJ”), and as a result he really ought to know better than to have behaved in the disgraceful way he behaved during the Disciplinary Inquiry proceedings giving rise to his intended judicial review challenge in this action.
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HCAL 890/2022 [2022] HKCFI 3407 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 890 OF 2022 ________________________
________________________ BETWEEN
________________________ Before: Hon Coleman J in Court Date of Hearing: 9 November 2022 Date of Decision: 11 November 2022 ________________________ D E C I S I O N ________________________ A. Introduction 1.The Applicant is a ‘Senior Court Prosecutor II’ of the Department of Justice (“DOJ”), and as a result he really ought to know better than to have behaved in the disgraceful way he behaved during the Disciplinary Inquiry proceedings giving rise to his intended judicial review challenge in this action. 2.The Applicant is himself the subject of that Disciplinary Inquiry, which was appointed by the Civil Service Bureau (“CSB”) to enquire into his alleged misconduct. The Disciplinary Inquiry remains un-concluded, and has in effect been interrupted by these proceedings. 3.The Inquiry Committee comprises (1) a Chairperson, Ms Stella Wong Wai-fun, and (2) a second member, Mr Chong Ping-keung. Mr Jonathan Kwan, a barrister in private practice, was appointed as Legal Adviser to the Inquiry Committee. The duty to present all relevant evidence to the Inquiry Committee falls on an Assisting Officer, in this case originally Ms Francesca Lam, subsequently replaced by Ms Andrea Young. Ms Jane TC Ho, another barrister in private practice, was appointed as the Legal Representative of the Assisting Officer. 4.By his Form 86 dated 7 September 2022, the Applicant seeks leave to challenge:
5.The Chairperson is named as the putative respondent to this application, whilst the Secretary for Civil Service (“SCS”), Mr Kwan and Ms Ho have been named as interested parties. 6.I gave directions for the filing of evidence, including because of the nature of the challenge giving leave to the Hong Kong Bar Association to file evidence. Further, I directed a rolled-up hearing, which was fixed for 9 November 2022. 7.At the hearing, the Applicant continued to act in person; and the SCS was represented by Mr Mike Lui of Counsel with Mr Alvin Hor, Government Counsel. 8.Prior to the hearing, the Chairperson, Mr Kwan and Ms Ho had (in my view, properly) indicated that they took a neutral stance to the proceedings, and they were excused from attendance. The Honorary Secretary and Treasurer of the Hong Kong Bar Association filed evidence to assist the Court, but otherwise took no role in the proceedings. 9.At the end of the hearing, I reserved my decision. This is that Decision. 10.The Decision is longer than it might perhaps have been, because it seems to me to be appropriate to take the opportunity to dispel any misconceptions about the roles and independence of barristers who happen to be members of the same set of Chambers. B. Background 11.The relevant background giving rise to the Disciplinary Inquiry can be canvassed very briefly. 12.As already stated, the Applicant is a court prosecutor, and so a civil servant subject to the rules governing members of the civil service. He joined the civil service as a Court Prosecutor in the DOJ on 26 October 1992, and was promoted to Senior Court Prosecutor II on 2 August 2004. 13.On 2 September 2019, 4 June 2020 and 24 December 2020, the Applicant issued three emails which have become the subject of the Disciplinary Inquiry:
14.The first and second emails generated extensive complaints to the DOJ from members of the public and staff of the DOJ. Hence internal investigation was started about them by the Secretariat of Civil Service Discipline (“SCSD”). Similarly, an investigation was commenced in relation to the third email. In response to the investigations the Applicant generally stated that he preferred to remain silent, though he also said that any allegation against him would not be substantiated in court, and if any adverse finding were to be made against him in disciplinary proceedings he would apply for judicial review and was prepared to take the case to the Court of Final Appeal one day. He also expressed the view that invoking civil service rules to deal with the third email was disproportionate. 15.On 31 December 2021, the Applicant was informed that the Disciplinary Inquiry would be held against him on three charges, one related to each of the emails. 16.Though I have briefly identified the matters giving rise to the disciplinary charges laid against the Applicant, the details of those matters are for present purposes only background information, and are not relevant to the determination of the issue in these proceedings. 17.The Disciplinary Inquiry was apparently held on 24, 25, 26 and 31 January 2022; 23 February 2022; 7 and 15 March 2022; 1, 19, 23, 25 and 26 August 2022; and 2, 7 and 13 September 2022. As I have already indicated, the Disciplinary Inquiry has been interrupted by the Applicant’s bringing this application for leave to apply for judicial review. The occasion giving rise to the intended judicial review challenge was on 23 August 2022 (which the Applicant regards as in reality only the fifth day of hearing, after various adjournments as a result of the public health circumstances and for other administrative reasons). 18.When the Disciplinary Inquiry resumed on 23 August 2022, the Applicant for the first time made the complaint (without prior notice) that the Legal Adviser (Mr Kwan) and the Legal Representative (Ms Ho) were members of the same set of barristers’ chambers, and suggested that there was or might be bias. As is evident from the transcript of the hearing, and the video recording from which the transcript was produced, there was a lengthy exchange on this complaint, during which the Applicant behaved very aggressively at times, shouting or yelling at the Chairperson, Mr Chong, Mr Kwan and Ms Ho, in a combination of ranting, seeking to interrogate them, interrupting them and requesting them to stop talking. In the evidence filed for the SCS, the Applicant’s confrontational approach to the various persons at the Disciplinary Inquiry on that day has been described as “using extremely personal and abrasive language”, which seems to me to be an entirely fair, if not understated, description. To my mind, the Chairperson showed remarkable tolerance, notwithstanding that the Applicant appeared impervious to her requests that he should calm down, behave and follow the appropriate procedure. 19.Indeed, after having considered those various materials prior to the hearing, it came as something of a relief that the Applicant behaved in Court in a starkly contrasting fashion, as the very model of brevity and courtesy. 20.In any event, the ‘discussion’ at the Disciplinary Inquiry on 23 August 2022 lead to the following:
21.It is worth emphasising that the only matter raised by the Applicant in speculating about any appearance of bias was the fact that Mr Kwan and Ms Ho are members of the same set of barristers’ chambers. The Inquiry Committee simply did not find that fact sufficient to justify any finding of apparent bias. C. The Bar Association’s Evidence 22.The Bar Association has taken no particular stance in respect of the outcome of the Applicant’s application, but has filed evidence to set out matters touching upon the relevant rules, regulations and tradition concerning the practice of barristers and barristers’ Chambers in Hong Kong. In summary, the evidence points out the following matters. 23.The legal profession in Hong Kong adopted the English model, comprising the two branches of solicitors and barristers, from a very early stage. The legal system has remained largely unchanged and the legal profession has continued to operate on the same basis, including after reunification on 1 July 1997. 24.The Hong Kong Bar Association was founded in 1949, and is the governing and regulatory body for barristers in Hong Kong. It is the duty of all barristers to comply with the provisions of the Code of Conduct for the Bar of Hong Kong. The key characteristics of the barristers’ profession include the following: (1) it is a profession of specialised advocates and legal advisers; (2) it is by and large a referral profession, subject to some limited unregulated situations which allow for direct access; (3) it is an independent profession; and (4) it is a profession that adheres to the “cab rank rule”. 25.Every barrister in Hong Kong can only practice law as a sole proprietor. Barristers are not allowed to enter into partnership, nor may they incorporate themselves as a corporation or company. Although barristers are sole proprietors, it is common for barristers to group themselves together to form a set of Chambers, being an office where they practice law. Despite the tradition of forming Chambers, barristers remain independent of each other, because they are only allowed to share expenses but are not allowed to share profit. In any set of chambers, each individual barrister remains responsible for his or her own professional practice. There is no concept of joint or several liability amongst members of the same chambers. 26.These restrictions are, and have been, found in the various provisions of the Bar Code, which also includes requirements that (1) a practicing barrister must be a member of, or permitted use of, professional chambers in Hong Kong, (2) a barrister must maintain complete independence in practice and conduct as sole practitioner, and (3) a practising barrister must not compromise his professional standards in order to please his professional or lay client, the Court or a third party, or permit his absolute independence, integrity and freedom from his personal interest or external pressures to be compromised or do anything in such circumstances as may lead to any inference that his absolute independence, integrity and freedom from his personal interest or external pressures may be compromised. 27.It is recognised by the courts that the rule against conflict of interest does not prevent practising barristers in the same set of chambers appearing against one another, and that the restrictions against practising barristers entering into partnership, employment or other similar relationship are put in place in order to maintain the position where they can appear against or in front of one another. As put by the Honorary Secretary in his evidence, if it were otherwise, public access to the Bar would be severely limited: each time a member of a set of chambers accepted instructions, he would debar any other member of those chambers, although independently practising self-employed barristers, from accepting instructions from any other party with a different interest in the same dispute. Nor would he be able to appear before a recorder, deputy judge or arbitrator from the same set of chambers in the same proceedings. That would likely amount to a severe limitation of the administration of justice in Hong Kong. D. Intended Grounds of Review 28.In his Form 86, the Applicant set out what he regards as the relevant background facts, most of which I have already rehearsed above. One of the matter touched upon by the Applicant was his complaint that three legal issues raised by him were determined against him. 29.The only specific intended ground of review is identified in §8 of the Form 86, which reads as follows:
30.In support of the argument as to irrationality, the Applicant stated that he would rely on materials attached to the Form 86 being:
31.Despite the directions as to filing of evidence given by me, the Applicant did not file any evidence in reply to the evidence filed on behalf of the SCS and by the Hong Kong Bar Association. Instead, the Applicant wrote a letter dated 24 October 2022 to the Law Officer (Civil Law) of the Civil Division of the DOJ, with a suggestion for disposing of the application by agreement. The letter has been included in the hearing bundle, and I have read it, but I do not think I need to rehearse its contents for the purposes of this Decision. 32.Neither did the Applicant file any written or skeleton submissions in support of his application, as is ordinarily required by the Practice Direction. Instead, he filed written reply submissions to the written submissions filed on behalf of the SCS. 33.At the hearing, the Applicant chose not to expand on any of his points in oral submission. He simply politely stated that he was content wholly to rely upon those matters which he had already canvassed in his Form 86 and his reply submissions. E. Correct Approach 34.At the beginning of his oral submissions, Mr Lui helpfully raised the point about the appropriate approach to a challenge based upon an appearance of bias, and hence the appropriate standard of review. It is convenient to deal with that point, before looking at the substantive question. 35.I think it is settled that, although each case of apparent bias is fact sensitive, the question is one of law to be answered in the light of the relevant facts: see, for example, the Superb Quo case at §39. 36.In other words, though the Applicant has framed his challenge on an “irrationality” ground, that is strictly not the right approach. No exercise of discretion is involved in deciding the question whether there is a real possibility of bias. Further, the Court is well able to assume the vantage point of a fair-minded and informed observer with knowledge of the relevant circumstances, and is able to make an assessment of all the relevant circumstances and then decide whether there is or was a real possibility of bias. 37.Nevertheless, I will also approach the question for completeness by looking at possible irrationality. As will be seen below, no different answer arises on the two different approaches. F. Lack of Merits in Intended Challenge 38.As the heading identifies, I consider there to be absolutely no merit in the intended challenge. 39.First, there is some force in Mr Lui’s submission that it is unclear from the Form 86 what “facts” (plural) are being put forward as would lead to a fair-minded and informed observer, properly acquainted with those facts, to conclude that there was a real possibility of bias. Both at the hearing before the Disciplinary Inquiry and in §8 of the Form 86, the Applicant actually placed intended reliance on only one fact, namely that Mr Kwan and Ms Ho are members of the same set of Chambers. 40.Secondly, I agree with Mr Lui that the materials annexed to the Form 86 provide no assistance to the Applicant in this application. First, the press release relates to an entirely different matter, and a different set of circumstances. Secondly, other than being an application of principle, the reported case was dealt with on its own facts. Both matters are factually irrelevant to the present application. 41.Thirdly, there is no realistic dispute about the test for apparent bias. It is an objective test, namely whether a fair-minded informed observer, having considered the relevant facts, would conclude that there is a reasonable apprehension or real possibility of bias. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the decision-maker has not brought or will not bring an impartial mind to bear on the adjudication of the case. 42.Fourthly, in any event, neither Mr Kwan nor Ms Ho are any part of the decision-maker in the Disciplinary Inquiry. The Inquiry Committee comprises only two persons, being the Chairperson (who is an Inquiry Officer) and Mr Chong (who is a Chief Immigration Officer). Whilst it is correct that neither of those persons is legally qualified, and they are legally advised by Mr Kwan, that does not make Mr Kwan the decision-maker. 43.As also pointed out by Mr Lui in his submissions, the role of the Legal Adviser is provided for in the ‘Guide for Inquiry Offices, Inquiry Committees, Assisting Offices and Accused Officers Involved in Disciplinary Enquiries under PS(A)O Section 9 or 10’ as follows:
44.Hence, insofar as the Applicant’s intended challenge rests upon the suggestion that Mr Kwan is a member of the decision-making body, it is misplaced as a matter of fact. 45.Fifthly, it has anyway long been recognised that the mere fact that judges have present or past close professional connections with those who appear before them does not, of itself, create a risk of bias nor appearance of bias. Indeed, in one of the cases which can be cited in support of that proposition, Zuma’s Choice Pet Products Ltd v Azumi Ltd [2017] EWCA Civ 2133, at §44 a salutary reminder was given against proceeding on unfounded accusations or misconceptions about law and procedure. As it was put, it should not be thought that a fair-minded observer is so sensitive as to think that any allegation of this kind, no matter how ill-conceived, gives rise to a possibility of bias. Any over-readiness to perceive bias will provide the easiest of routes for litigants to disrupt cases, not least if they think matters are going or are likely to go against them. Reference can also be made to Taylor v Lawrence [2003] QB 528 at §64, where it the general comment was made that:
46.The Applicant has sought to place reliance upon the latter part of that quote, but in a way which is entirely circular. This case is certainly not “borderline”, or more than “borderline”. In this case, no fair-minded and informed person would think that membership of the same Chambers races the real possibility of bias. For that reason, there clearly was no need for Mr Kwan or Ms Ho to have raised the point about their being members of the same Chambers, and it is simply unfair to paint that as they having “all along remained silent about their relationship of using the same barrister Chambers until being questioned by the Applicant”. Nor do I think there is any analytical difference arising from the fact that neither the Chairperson nor Mr Chong are subject to any judicial oath. Nor do any duties imposed upon a prosecutor (of the sort which the Applicant argues are imposed upon Ms Ho as the Legal Representative of the Assisting Officer) assist the Applicant’s argument. 47.I also expressly reject the idea that simply because the Applicant lost on all three legal issues raised by him that somehow a fair-minded observer would ask why “he is denied the right to a fair hearing on all 3 issues” or that any fair-minded and informed observer “would have concluded that there was real possibility of bias”. 48.Sixthly, the claim of apparent bias on the part of either Mr Kwan and/or Ms Ho based on the sole fact that they are members of the same Chambers is simply not reasonably arguable. This is so if the question is approached as a matter of law or as a matter of irrationality. On that fact, it is not reasonably arguable as a matter of law that there was an appearance of bias. Further, on that fact, it is not reasonably arguable that the Decision that there was no appearance of bias was somehow irrational. 49.Seventh, I reject the Applicant’s suggestion that in deciding that there was no apparent bias the Chairperson somehow failed to make her own independent inquiry and make her own judgment. First, what the Chairperson accepted from Ms Young was that there was no conflict of interest in the appointment, by two different teams within SCSD, of two barristers from the same set of chambers to the different roles for the Disciplinary Inquiry. The presence or absence of a conflict of interest is not coterminous with the presence or absence of the appearance of bias, as they are separate questions. Secondly, the real basis of the Chairperson’s/Inquiry Committee’s decision that there was no appearance of bias was simply on the basis that the fact that Mr Kwan and Ms Ho are members of the same set of chambers was not sufficient to give rise to a reasonable apprehension or real possibility of bias. Further, the Applicant’s suggestion confuses what is envisaged by the concept of conflict of interest, and he fails to identify which person he says has a conflict and what two or more interests that person has which are said to be in conflict. 50.Eighth, in that light, I further reject the Applicant’s suggestion that somehow further enquiries ought to have been made. There was nothing improper about the Chairperson’s taking the approach of declining to engage with the Applicant in his intended ill-tempered and general fishing interrogation of Mr Kwan and Ms Ho. 51.In conclusion, it is clear that the Applicant’s intended grounds put forward in his application for leave to apply for judicial review to challenge the Decision is not reasonably arguable with any reasonable prospect of success. Far from it. Quite simply, no fair-minded and informed observer would conclude that there was a real possibility or reasonable apprehension of bias on the part of the Inquiry Committee or Mr Kwan as Legal Adviser based simply on the fact that Mr Kwan and Ms Ho are members of the same set of Chambers. If the question is looked at on the ground of irrationality, it is also clearly not reasonably arguable with any reasonable prospect of success that the Decision was made on an irrational basis. 52.The Applicant’s application for leave to apply for judicial review is dismissed. G. Costs 53.On that basis, the SCS seeks indemnity costs, with certificate for Council. 54.First, I do not think there can be any real argument against an order that costs should follow the event of the application, when I directed a rolled-up hearing requiring and leading to the full participation of the SCS. Clearly that participation has been at material benefit to the Court in determining the application, even though it had obvious underlying lack of merit. I consider the participation of the SCS important at a rolled up hearing, in part to provide assistance in clarifying any misconception or misunderstanding about the independence of barristers who are members of the same set of chambers. It is also correct that the SCS, which the Applicant himself recognised to be an interested party, had a separate interest justifying separate representation (and all the more so when it was likely that the Chairperson/Inquiry Committee and the two barristers concerned would take a neutral stance). Further, where the Applicant is himself an experienced court prosecutor (the holder of an LLB and LLM, even if not a PCLL or any professional qualification as solicitor or barrister), his own experience – limited as it may have been to criminal matters in the Magistrates’ Courts – ought to have led to his realisation that the suggestion of apparent bias based on the only fact put forward by him was hopeless to the point of being frivolous or vexatious. 55.Secondly, the question arises as to the appropriate standard of costs. The applicable principles are straightforward. Indemnity costs may be ordered in judicial review proceedings for reasons which may include that it is thought that those proceedings have been conducted in an unreasonable or disproportionate way. But there is no inflexible rule on, or defined categories of, what kind of conduct is or should be considered as unreasonable or disproportionate. 56.Mr Lui submits that an indemnity costs award is appropriate in this case for the reasons that: (1) the intended application for judicial review is utterly meritorious to the extent of being frivolous or vexatious; (2) the application was brought for a tactical purpose; (3) the application has been brought in bad faith or for an ulterior motive, demonstrated by (a) his failing to file proper evidence and providing only documents that hardly assist the Court, and (b) his offering to drop the application if the Disciplinary Inquiry were to be reconstituted de novo, with different members of the Inquiry Committee; (4) the application was formulated in a hopeless and confusing way; and (5) the presentation and preparation of the case is inexcusable when the Applicant is a seasoned court prosecutor. 57.Though he has not said so in terms, I take it that the Applicant opposes any indemnity costs order. Certainly he has pointed out that he does not accept the “bad faith” accusation, stating that his letter to the DOJ dated 24 October 2022 under the heading “Suggestion to dispose of the JR case by an agreement” speaks for itself. 58.Having carefully considered matters, it does not seem to me to be strickly necessary to make any finding of bad faith on the part of the Applicant. The other circumstances I have identified seem to me to point in favour of an indemnity costs order, and I so order. 59.As a result, the Applicant will pay the SCS’s costs on an indemnity basis, to be summarily assessed by me on paper. A Statement of Costs for Summary Assessment should be provided to me within 7 days, and the Applicant will have 7 days thereafter to file any List of Objections. After that period, I will make the summary assessment. 60.Lastly, whilst I express my appreciation for the assistance provided by the Hong Kong Bar Association in filing of evidence, I make no order as to any costs incurred in providing that evidence. H. Postscript 61.Though I take the view that, with his bachelor’s and master’s degrees in law and decades of experience as a court prosecutor, the Applicant either does or should know better, I acknowledge that some other persons may form a misunderstanding or have a misconception as to whether barristers who are members of the same set of chambers are independent from each other. 62.I hope the materials I have traversed in this Decision will help to remove any misunderstanding or misconception. It is worth remembering that the importance of the independence of the Judiciary in Hong Kong is in part supported by the independence of the legal professions, and the members of those professions. Hong Kong generally adopts the adversarial process of court proceedings. Judges and judicial officers must and do place reliance on the integrity and independence of those who argue cases before them. When the characteristics and rules and obligations of the barristers’ profession and the true nature of the relationship between members of the same set of Chambers are properly understood, it will be seen that shared membership of Chambers of itself cannot reasonably give rise to any apprehension of bias. 63.Barristers are independent sole practitioners who in general act on the referral of and instructions from another lawyer (the instructing solicitor), and who must maintain independence one from another. Indeed, even when members of the same set of Chambers, they are often competitors in practice. It is to be remembered that – unlike solicitors of a firm who share an economic interest – barristers are sole proprietors and individual economic units.
The applicant, acting in person The putative respondent, and the 2nd and 3rd interested parties were excused from court attendance Mr Mike Lui, instructed by the Department of Justice and Mr Alvin Hor, Government Counsel, of the Department of Justice, for the 1st putative interested party |
Cases cited in this judgment