Nicholas F.F. Pirie v. The Bar Council

CACV000744/2000

CACV 744/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 744 OF 2000

(ON APPEAL FROM THE BARRISTER'S DISCIPLINARY TRIBUNAL
THE BAR COUNCIL v NICHOLAS F.F. PIRIE)

(IN THE MATTER OF an Appeal pursuant to Section 37B of
the Legal Practitioners Ordinance, Chapter 159 Laws of Hong Kong)

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Coram: Hon Mayo VP, Le Pichon JA & Hartmann J in Court

Date of Hearing: 4 September 2001

Date of Judgment: 21 September 2001

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J U D G M E N T

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Hon Mayo VP:

1.The appellant is appealing against the decision of a Barrister's Disciplinary Tribunal.

2.The Tribunal heard three separate complaints. They were all contrary to para. 6(b) of the Code of Conduct of the Bar. It was alleged that the appellant had been guilty of conduct which may bring the profession into disrepute.

3.The three complaints related to alleged assaults perpetrated by the appellant upon his pupil Mr Lau. The first two assaults had not occasioned Mr Lau any actual bodily harm and Mr Lau was unable to remember the exact dates upon which they had occurred. The third assault which was alleged to have taken place on 23 May 1998 had occasioned Mr Lau actual bodily harm. It had occurred on a Saturday morning. In the afternoon Mr Lau had attended at the Queen Mary Hospital where he received treatment. According to the medical evidence there was some bruising and tenderness on Mr Lau's head.

4.Mr Lau's pupillage with the appellant was of short duration. It commenced at the beginning of May 1998 and effectively ended on 23 May.

5.It appears to have been common ground that the pupillage had not been harmonious from the outset. The appellant was critical of the standard of Mr Lau's written and spoken English and of his ability to understand the assignments which were given to him. In particular the appellant complained about the adequacy of the notes Mr Lau took of court proceedings.

6.The appellant alleged that Mr Lau had an unkempt appearance and had not been properly dressed. On one occasion he had observed toothpaste all the way down his suit. One of the matters which the appellant had referred to was his opinion that Mr Lau might be suffering from some form of mental illness such as depression. He claimed that Mr Lau had told him that he had been taking medication for depression and that this might provide an explanation for his performance.

7.On his part Mr Lau was highly critical of the appellant. He described his experience working for the appellant as being a "nightmare - a terrible experience". He accepted that there had been problems with the preparation of authorities. The reason for this had been his lack of knowledge concerning the whereabouts of the relevant reports.

8.He denied however that he had been inappropriately dressed or that he had ever told the appellant that he was taking medication for any ailment.

9.He accepted that he had been embarrassed and humiliated by the criticisms which had been made of him by the appellant. He denied however that he had fabricated the allegations he was making against the appellant.

10.The first two assaults he complained of had occurred in the appellant's room in his chambers. He could not remember the exact date of these assaults. They do not appear to have been as serious as the assault which is alleged to have taken place on the morning of 23 May.

11.The Tribunal analysed the events leading up to 23 May.

12.Earlier in the week, the appellant had appeared before Findlay J. The Judge had subjected the appellant to some criticism partly on account of the unsatisfactory state of the preparation of the documentation for the hearing. The atmosphere had been particularly unpleasant and the appellant had caused his secretary to write to the Judge apologising for the disorganised way the documents had been presented to the court.

13.According to the appellant it was at this time that he realised that Mr Lau's pupillage was not working out and that it would be necessary for him to terminate the arrangement.

14.He decided to inform Mr Lau of this on 21 May. Before doing so he took the precaution of requesting Mr Nunn another member of his chambers to attend with him to act as a witness. Mr Nunn made a written statement which it was agreed should stand as evidence. There were some discrepancies between his version of what transpired and the appellant's and also Mr Lau's. According to the appellant Mr Lau did not take the news of the termination of his pupillage well. He appeared to be distressed and close to tears. The appellant had said that Mr Lau need not come in on the following day and could collect his belongings on Saturday morning.

15.Mr Lau did come in on Saturday morning. It is clear that he did spend some time in the appellant's room. A summer student Ms Elaine Wong was also present that morning. She made a written statement the contents of which was available to the Tribunal. According to her at some stage during the morning when she was in the pantry brewing coffee Mr Lau entered the pantry and said that the appellant had assaulted him. She had asked him if the appellant had been joking and he had said this had not been the case. Later she had seen Mr Lau looking up the telephone number of the Bar Association. She had not thought that he had proposed making a complaint concerning the assault.

16.There was also a written statement from Mr Malcolm Merry a barrister in separate chambers who had been Mr Lau's previous pupil master. He said that Mr Lau telephoned him and told him that the appellant had physically assaulted him. He had shortly discussed the matter with him and agreed that if this was the case the matter should be reported to the Bar.

17.It will be appreciated from this very brief outline that essentially the Tribunal was faced with what amounted to a one on one confrontation. There was no scope for there being any misunderstanding.

18.While the Tribunal approached the hearing on the basis that the rules applicable to a criminal trial should be adopted it was also agreed that it was necessary to include a measure of flexibility.

19.It proceeded upon the basis that both the appellant and Mr Lau were of good character and should be given credit for this. Also that it was realistic to conclude that the three complaints stand or fall together.

20.It is evident from a perusal of the statement of findings of the Tribunal that after careful consideration they came to the conclusion that Mr Lau was a credible witness and that the complaints had been proved. Accordingly they found the appellant guilty as charged on all three counts.

21.The first ground of the amended grounds of appeal is that effectively the Tribunal failed to give the appellant credit for his good character. This was because they had also given credit to Mr Lau for his good character and the effect of this was to nullify the appellant's good character.

22.It has to be appreciated that the Tribunal was faced with a rather difficult situation.

23.One of the inevitable consequences of the appellant's denial of the assaults was to call in question Mr Lau's character. Indeed the appellant went so far as to suggest that the reason for Mr Lau making the complaints against him was that he was activated by malice consequential upon his pupillage being terminated by the appellant.

24.The main issue which has to be determined on this ground is the extent to which the rules of evidence applicable in criminal trials should apply to the hearing of this Tribunal.

25.Mr McCoy SC submitted that they should. He referred us to the transcript of the hearing of the first pre-trial review which had been conducted when there had been agreement that the rules of criminal evidence and procedure were appropriate for this Tribunal.

26.He went on to argue that it was a fundamental principle of criminal law that save in the most exceptional circumstances the good character of a prosecution witness was not admissible as this was self-serving evidence. This was a matter of importance in the present case as the appellant had placed considerable reliance upon his good character and probative evidence of this nature could not just be disregarded.

27.A perusal of the transcript of the pre-trial hearing as a whole would indicate that the agreement to follow criminal procedure was at the most tentative. The agreement was that there should be a measure of "flexibility".

28.This is not surprising as it would have been very difficult for the Tribunal to fairly dispose of this hearing if the rules of evidence in criminal proceedings were to be strictly adhered to. I do not think that this was the intention of the parties.

29.A serious allegation had been made against a junior member of the profession of hitherto good character and fairness would have required that the matter was dealt with in the way that it was.

30.It is however clear from the findings of the Tribunal that it did take into account the fact that the appellant was of good character.

31.In my view this ground cannot be sustained.

32.As to the second ground complaint is made that there was a material irregularity in that it first dealt with and rejected the appellant's evidence before dealing with the credibility of Mr Lau's evidence and the credibility and reliability of the independent witnesses.

33.This complaint can be dealt with quite shortly. It is a matter of form rather than substance. It is manifest from reading the findings as a whole that the Tribunal had weighed and considered all of the evidence prior to committing it to writing.

34.The form of presentation was not illogical in all the circumstances. Certainly there was nothing to suggest that there had been any reversal of the burden of proof or that the Tribunal had not given anxious consideration to Mr Lau's evidence and satisfied themselves that his allegations were well founded.

35.Ground 3 is that:

"The Tribunal misdirected itself in law as to the effect of the Complainant's recent complaint to Ms Wong (paragraph 27.8). The Tribunal found her belief to be 'very telling indeed'. and concluded that Ms Wong believed that the Appellant had hit the Complainant. The Tribunal has wrongly used the receipt of (and reaction to) the complaint by Ms Wong as evidence

(i) that negatived the Appellant's defence, namely of fabrication of the allegations by the Complainant

(ii) of support for or corroboration of the evidence of the Complainant

(iii) of the truth of the facts asserted by the Complainant."

36.The main problem which arises in connection with this ground is the weight which the Tribunal appears to have attached to Ms Wong's statement that she had been told by Mr Lau that he had been assaulted by the appellant. She had not herself witnessed the alleged assault and certainly if the law applicable in criminal proceedings was adhered to this would constitute a very serious problem.

37.However there is every reason to believe that it was not the intention of the parties that the strict rules applicable to a criminal trial should be adhered to in relation to Ms Wong's evidence. The appellant himself attempted to place reliance upon the statement to discredit Mr Lau and no objection whatever was made to her evidence at the hearing.

38.What was required in the circumstances was that the hearing should be fair to all parties concerned. Perhaps the best statement upon how the hearing should be conducted is contained in the judgment of Diplock LJ (as he then was) at p. 487 of Ex parte Moore [1965] 1 QB 456:

"Where, as in the present case, a personal bias or mala fides on the part of the deputy commissioner is not in question, the rules of natural justice which he must observe can, in my view, be reduced to two. First, he must base his decision on evidence, whether a hearing is requested or not. Secondly, if a hearing is requested, he must fairly listen to the contentions of all persons who are entitled to be represented at the hearing.

In the context of the first rule, 'evidence' is not restricted to evidence which would be admissible in a court of law. For historical reasons, based on the fear that juries who might be illiterate would be incapable of differentiating between the probative values of different methods of proof, the practice of the common law courts has been to admit only what the judges then regarded as the best evidence of any disputed fact, and thereby to exclude much material which, as a matter of common sense, would assist a fact-finding tribunal to reach a correct conclusion: cf. Myers v. Director of Public Prosecutions. [1964] 3 WLR 145.

These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his."

39.I do not think that it was unfair for the Tribunal to deal with Ms Wong's evidence in the way it did.

40.Ground 4 is that:

"The Tribunal erred in rejecting the unchallenged evidence of Mr Malcom Nunns, Barrister. Such evidence had been admitted by consent before the Tribunal, pursuant to s36(1) Legal Practitioners Ord Cap 159 and s65B Criminal Procedure Ord Cap 221. Further Leading Counsel for the Respondent (Bar Council) had opened his case to the Tribunal on the very basis of the evidence which the Tribunal later rejected. His evidence was highly material as to both the timing and circumstances of the notification by the Appellant (in the presence of Mr Nunns) of the termination of the Complainant's pupillage. The rejection of the written evidence of Mr Nunns, without him being cross-examined or questioned by the Tribunal, is a serious breach of natural justice (causing him to suffer very real professional and personal opprobrium) and a material irregularity in the Tribunal's evaluation."

41.What needs to be borne in mind in relation to this ground is that significant parts of Mr Nunn's statement cannot be reconciled with the appellant's version of events.

42.It would have been impossible to accept all of his evidence and all of the evidence of the appellant.

43.However be that as it may the important point to note is that none of Mr Nunn's evidence was of critical importance.

44.It appears to have been common ground that there was a meeting between the appellant and Mr Lau when Mr Nunn was present. The main issue in contention was whether the meeting took place on the evening of Wednesday 20 May or the morning of the next day, Thursday.

45.It also appears to have been common ground that the appellant did state that he would attempt to find another pupil master for Mr Lau. It is true that the Tribunal appears to have rejected what may have been implicit in Mr Nunn's statement that Mr Lau was being informed that his pupillage was being terminated.

46.Mr McCoy submitted that this was of crucial importance as the rejection of Mr Nunn's evidence would have had the effect of eliminating the motive Mr Lau may have had for fabricating a complaint against the appellant, namely revenge for his pupillage being terminated.

47.In my view there is no merit in this argument. It was common ground between the parties that the relationship between the appellant and Mr Lau had deteriorated by Wednesday afternoon after the unhappy hearing before Findlay J. The relationship had undoubtedly soured. This of itself could constitute a motive for Mr Lau to fabricate the complaint were he minded to do so.

48.The other aspect of Mr Nunn's evidence which appears to have been rejected was the length of time referred to at the meeting when Mr Lau should report back to chambers.

49.As the appellant's evidence in this connection was at variance with Mr Nunn's it is difficult to see how the appellant would have been prejudiced by the rejection of Mr Nunn's statement.

50.In conclusion it can be said that it is rather surprising that Mr Nunn's evidence should have been rejected. We did not of course have the advantage of observing Mr Lau giving evidence and it would not be appropriate for us to in any way attempt to substitute our own view of the matter for the Tribunal's.

51.In Ground 5 complaint is made that the Tribunal should have accepted Mr Lau's evidence having regard to the numerous inconsistencies in the evidence and its inherent improbability.

52.It is only in exceptional circumstances that a Court of Appeal should interfere with findings of fact made by a judge at first instance. Godfrey JA (as he then was) had this to say at p. 162 of Aktieselskabet Dansk Skibsfinansiering v Wheelock Marden & Co Ltd & Ors [1998] 3 HKC 153:

"Before we turn further to consider this finding, we remind ourselves of the guidance given by the authorities as to the approach which we in this court should adopt when faced with a challenge to a judge's finding of primary fact. Those authorities, as we read them, establish that although an appeal to this court is by way of rehearing, that does not mean that this court re-tries the case. It is in the first instance the function of the trial judge, not this court, to find the facts; and we ought not to substitute our own findings of fact for his merely as a result of our own appreciation of the case. In respect of a judge's finding of primary fact, particularly a finding based on the credibility of a witness, before we disturb such a finding, we must be satisfied that there was no evidence to support it; or that it ran counter to documentary or other incontrovertible evidence which the judge must have overlooked; or that it can only have been based on a misapprehension of the facts or some faulty process of reasoning. So the burden on a party who seeks to convince us that a trial judge's findings of primary fact were unjustified is a heavy one, especially in a case where the judge has refused to find fraud."

53.This would appear to be the correct approach. When the court is considering the findings of a tribunal the scope for intervention would appear to be even more circumscribed. Lord Hailsham referred to this in his speech at p. 220 in Libman v General Medical Council [1972] AC 217:

"(1) The appeal lies of right by the statute and the terms of statute do not limit or qualify the appeal in any way, so that the appellant is entitled to claim that it is in a general sense nothing less than a rehearing of his case and a review of the decision: see per Lord Radcliffe, Fox v. General Medical Council [1960] 1 W.L.R. 1017, 1020.

(2) Notwithstanding the generality of the above language, the actual exercise of the jurisdiction is severely limited by the circumstances in which it can be invoked. The appeal is not by way of rehearing in the sense that the witnesses are heard afresh or the evidence gone over again (see per Lord Radcliffe). This, amongst other things, means that there is a heavy burden upon an appellant who wishes to displace a verdict on the grounds that the evidence alone makes the decision unsatisfactory.

(3) Beyond a bare statement of its findings of fact, the Disciplinary Committee does not in general give reasons for its decision as in the case of a trial in the High Court by judge alone from which an appeal by way of rehearing lies to the Court of Appeal (see per Lord Radcliffe, at pp. 1021, 1023). It follows from this that the only circumstances in which an appellate court can reverse a view of the facts taken by the Disciplinary Committee would be a case where, on examination, it would appear that the committee had misread the evidence to such an extent that they were not entitled to make a finding in the state of the evidence presented before them.

(4) The legal assessor who assists the committee at its hearing is not a judge, and his advice to the committee is not a summing up, and no analogy with a criminal appeal against a conviction before a judge and jury can properly be drawn. The legal assessor simply advises the committee in camera on points of law and reports his advice in open court after he has given it. The committee under its president are masters both of law and of the facts and what might amount to misdirection in law by a judge to a jury at a criminal trial does not necessarily invalidate the committee's decision. Where a criticism is made of the legal adviser's account of his advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision: see Fox v. General Medical Council [1960] 1 W.L.R. 1017 and per Lord Guest in Sivarajah v. General Medical Council [1964] 1 W.L.R. 112, 116-117.

In the result, although the jurisdiction conferred by the statute is unlimited, the circumstances in which it is exercised in accordance with the rules approved by Parliament are such as to make it difficult for an appellant to displace a finding or order of the committee unless it can be shown that something was clearly wrong either (i) in the conduct of the trial or (ii) in the legal principles applied or (iii) unless it can be shown that the findings of the committee were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread. Or, of course, an appellant can rely cumulatively or in the alternative on any combination of the three."

54.Bearing in mind these principles I do not think that it can be said that we would be justified in substituting our own views for those of the Tribunal.

55.The sixth ground of appeal was abandoned.

56.For the reasons which have been given I am of the opinion that this appeal should be dismissed.

Hon Le Pichon JA:

57.This is an appeal pursuant to section 37B of the Legal Practitioners Ordinance, Cap. 159 from the order made on 11 October 2000 by the Barristers Disciplinary Tribunal ("the Tribunal") suspending the appellant from practice for a period of one month. The suspension was stayed pending the determination of this appeal. The issue of fact before the Tribunal was whether or not the appellant had assaulted the complainant on three occasions during the latter's pupillage with the appellant in May 1998.

58.According to the complainant, all three assaults occurred in the appellant's room. The 1st assault took place during his first week of pupillage which commenced on either 1 or 4 May 1998. Although this incident allegedly took place in the presence of a third party, namely, a Mr Rodney Tam who was then a practising barrister and a member in the same chambers as the appellant, Mr Tam was not called to give evidence and there is no statement from him. The 2nd assault took place some time between the commencement of pupillage and 22 May 1998 and the 3rd assault which caused actual bodily harm took place on Saturday, 23 May 1998. No other person was present on those two occasions.

59.The appellant denied that he had ever struck the complainant as alleged. The Tribunal took the view that since all three complaints were primarily dependant upon the complainant's evidence, they must stand or fall together. As the Tribunal itself acknowledged, this was a "one against one" case.

The rejection of unchallenged evidence

60.Leading counsel for the appellant relied on five grounds of appeal. I propose, first of all, to consider the fourth ground which was that the Tribunal erred in rejecting the unchallenged evidence of Mr Nunns and that the rejection of his written evidence without his being cross-examined or questioned by the Tribunal was a serious breach of natural justice and a material irregularity.

61.By way of background, some two weeks or so after the complainant had commenced his pupillage, on 18 May, the appellant had a three-day case before Findlay J which did not go well for the appellant. He was admonished by the judge, inter alia, for the unsatisfactory state of the bundle of authorities. The appellant was less than pleased with the complainant whom he had asked to oversee the production of the paginated authorities. This incident coupled with the appellant's dissatisfaction with the complainant's performance which is unnecessary to go into for present purposes, resulted in the appellant deciding to terminate the complainant's pupillage. According to the appellant, having thought about it overnight, he decided to inform the complainant but to do so only in the presence of another member of chambers. The following day he asked Mr Malcolm Reeve Nunns to be present at a meeting with the complainant, after having advised him of what he (the appellant) was proposing to do.

62.Mr Nunns, a barrister in the same chambers as the appellant, had provided a statement confirming the matters stated in his letter dated 15 June 1998 addressed to Mr Lawrence Lok SC who was the Chairman of the Special Committee on Discipline at the time. Mr Nunns's statement had been admitted as evidence by consent before the Tribunal pursuant to section 36(1) of the Legal Practitioners Ordinance, Cap. 159 and section 65B of the Criminal Procedure Ordinance, Cap. 221. The letter which formed part of the statement read as follows:

"Re: Mr. Lau Sai Luk

I am led to believe that you have received a complaint of assault from the above-named who was, until recently, a pupil in these Chambers.

On a Thursday, about 3 weeks ago, Nicholas Pirie, the complainant's pupilmaster, asked me to be present at an interview, as he had an unpleasant duty to perform. He said he had to tell Mr. Lau that his pupillage was at an end. I accompanied Nicholas into his room, where Mr. Lau was waiting. Mr. Pirie went out of his way to explain the pupil's failings. He then told him to take the following day (Friday) 'off' and to see him again on Monday. Mr. Pirie explained that, by then, he hoped to have been able to find another barrister to accept him as a pupil.

The above-named pupil was clearly shocked and subdued. There was no spirited response: nor were harsh words used on either side. When Nicholas Pirie turned his attention to other matters, I excused myself and left the room. I did not see Mr. Lau again, nor has he made any complaint to me."

63.Whether the complainant's pupillage was expressly terminated by the appellant shortly prior to 23 May 1998 was highly material to the appellant's case, the suggestion being that it demonstrated a pretext for the complainant's false allegations against the appellant.

64.It is in this context that Mr Nunns's evidence was material. It is implicit from his statement that the complainant's pupillage was expressly terminated at that meeting. If it did occur, that could have engendered vindictiveness leading to the making of false allegations. This defence advanced by the appellant was thus predicated upon such express termination having taken place. Whether or not it would have found favour with the Tribunal was a different matter: at a minimum, Mr Nunns's evidence supported that of the appellant's, namely, that express termination occurred on 21 May 1998 at a meeting at which Mr Nunns was present.

65.At the hearing, the complainant gave evidence to the effect that there was no express termination of his pupillage on Thursday, 21 May 1998; that Mr Nunns was present at a meeting on Wednesday, 20 May at which, besides the complainant, the appellant and Mr Tam were present; that the meeting took place at the end of the afternoon after the case before Findlay J had finished; that he was told by the appellant (on Wednesday 20 May) to take a break for one day and so did not attend chambers on the Thursday; that there was never any termination of his pupillage but only a suggestion that the complainant, who was not interested in continuing his pupillage with the appellant, should find another pupil master in chambers.

66.In the light of this evidence which was inconsistent with the case as opened by the Bar Council, Mr Nunns's evidence became material not only in its support of the express termination issue but also because it directly impinged on the complainant's credibility and reliability. As noted above, the outcome of the proceedings depended on the credibility and reliability of the complainant. This the Tribunal recognised as is apparent from the following passage in its Statement of Findings:

"18.1 ... we are conscious of the fact that these are very serious complaints and thus if we had any reasonable doubt not only of the Complainant's credibility but also reliability, then the benefit of that doubt must go to the Respondent.

18.2 We also accept Mr. Harris' submission that the evidence of the 'independent' witnesses are of vital importance and we have paid particular attention to them; especially whether or not they cause us concern or discomfort in respect of any aspect, or indeed generally, of the Complainant's evidence of the alleged assaults and the events."

Whilst there was a discrepancy between the evidence of Mr Nunns and the appellant as to the date the complainant was told to return to chambers (i.e. whether it was the Saturday or the Monday), apart from the express termination issue, Mr Nunns's evidence also supported the appellant's evidence as to the date the meeting took place, namely, Thursday, 21 May 1998 and as to the persons present. The acceptance of Mr Nunns's evidence would inevitably have undermined the complainant's credibility and reliability.

67.The Tribunal rejected that Mr Nunns's evidence. In the Statement of Findings it stated as follows:

"27.7 In respect of the termination talk on 21st May, NUNN's statement is not only at odds with the Complainant's evidence but also with that of the Respondent. We find it curious that NUNNS had to stress that Friday was the day following Thursday: 'He then told him to take the following day (Friday) "off" and to see him again on Monday'. The Complainant's evidence was that there was never such a talk and he left the Respondent on 23rd May after the assault. Further, he said that if his pupillage was effectively terminated on 21st May, there was really no necessity for him to take any day 'off'. Initially, the Respondent had denied that he had taken the Complainant to the FCC on the Friday. However, he amended his statement of 18th September 2000 when he gave evidence on 22nd September 2000. He said that he found the Complainant in chambers towards the end of that day and he looked a bit depressed. So he asked the Complainant to go and have a drink with him at the FCC. We find the non-contested incident of the FCC supports the Complainant's evidence that there was no termination of the pupillage on the Thursday. Further, we find the Complainant's evidence on this to be convincing and have no hesitation in accepting that there was no such termination."

68.It is to be noted that in addition to rejecting the written evidence of Mr Nunns, the Tribunal also sought to criticise it. Mr Nunns never had the chance to explain his evidence. Nor was the appellant given any prior intimation that the Tribunal was troubled by certain aspects of Mr Nunns's evidence. The Tribunal did not give the appellant any opportunity to question Mr Nunns on those aspects. Where a witness's statement is unchallenged and has been admitted into evidence by way of consent, a party relying on that unchallenged evidence is obviously disadvantaged when that witness's evidence is rejected without any oral examination of the witness.

69.In Mahon v Air New Zealand Ltd [1984] 1 AC 808, the Privy Council had occasion to consider the rules of natural justice that are germane when dealing with the exercise of an investigative jurisdiction. Lord Diplock observed (at 820H-821B) that:

"... the person making a finding in the exercise of such a jurisdiction ... must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made.

The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice ...

... any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result."

70.In my judgment, those observations are equally apt in the context of disciplinary proceedings. The rules of natural justice would require that the appellant be afforded the opportunity of eliciting from that witness answers that would satisfy the Tribunal as to the truth and accuracy of the witness's statement. The rejection of Mr Nunns's evidence was thus a rejection of the defence advanced by the appellant that a pretext existed for the complainant's false allegations. Moreover, acceptance of Mr Nunns's evidence would have impinged on the complainant's credibility and reliability. The rejection of Mr Nunns's evidence by the Tribunal was, in the circumstances, unfair to the appellant and for that reason alone the verdict of the Tribunal and its order must be set aside.

Direction for application of rules of criminal evidence and procedure "with flexibility"

71.Having reached this conclusion, it is not strictly necessary for me to deal with the other grounds advanced by leading counsel for the appellant. Nevertheless, I wish to add a few observations on a direction made by the Tribunal at the first pre-hearing review.

72.It was common ground at that hearing that so far as the standard of proof was concerned, the criminal standard or a standard that is so close to or indistinguishable from the criminal standard should be applied. It would appear that the Tribunal decided that it was logical for the rules of criminal evidence and procedure to apply. Nevertheless, it acceded to the invitation of counsel for the Bar Council that the Tribunal would exercise "some flexibility over the criminal rules".

73.A direction that criminal rules should apply "with flexibility" appears to me to be entirely unsatisfactory inasmuch as it creates considerable uncertainty as to the extent the rules actually apply. A party who has to defend himself against serious allegations which are tantamount to the commission of a criminal offence and which have serious repercussions on his professional career should not be placed in a situation where the ground rules for defending himself are elastic and the boundaries imprecise.

74.The first and third grounds of appeal are in point. They relate to the good character direction and the rule against previous consistent statements. The issue before us was whether the Tribunal's departure from the rules of criminal evidence and procedure which would have been applicable had these been criminal proceedings was nevertheless permissible by reason of the direction that such rules were to apply "with flexibility". Without going into the technical aspects of these two grounds, the point to be made is simply that such a question ought not to have arisen at all. Whilst Rule 8 of the Barristers Disciplinary Tribunal Proceedings Rules conferred total discretion over procedure on the Tribunal, that discretion ought not to be exercised in a manner such that parties to proceedings (and disciplinary proceedings are no exception) are subjected to uncertainty as to the rules of evidence and procedure that are applicable. It would neither be fair nor just to leave the parameters of such rules ill-defined. Litigants must know precisely where they stand. In this connection, the fact that no objection was made at the hearing (relevant only to the rule against previous consistent statements) is beside the point. If the Tribunal intended to depart from the normal rules, the parties should, at the very least, have been given appropriate forewarning.

Conclusion

75.For the reasons stated, I would set aside the verdict of the Tribunal and direct that there be a full rehearing before a differently constituted tribunal. I would also make an order nisi for costs in favour of the appellant here and below.

Hon. Hartmann J :

76.For the reasons given by Le Pichon JA, I too would allow this appeal. I would add only the following in respect of the Tribunal's direction that, in the proceedings before it, the rules of procedure and evidence applicable to a criminal trial would be adopted but with "some flexibility".

77.Rule 8 of the Barristers Disciplinary Tribunal Proceedings Rules, Cap. 159, allows the Tribunal to determine its own procedures and rules of evidence. This is a broad power subject only to a general duty to act fairly.

78.It was therefore open to the Tribunal to direct that the rules of procedure and evidence applicable to a criminal trial would apply. It was also open to the Tribunal to make reservations to that rule subject to the condition that the appellant should know the limit and extent of those reservations so that he had a reasonable opportunity to present his case.

79.As I have said, in this instance, the reservation directed by the Tribunal was that it would apply criminal rules of procedure and evidence with some flexibility. Left undefined, I agree with Le Pichon JA that such a direction was entirely unsatisfactory inasmuch as it created uncertainty. There was only one way in which that uncertainty could be rectified. That was by the Tribunal, either before the hearing or during it, advising the parties how it intended to compromise the rules, giving to them the opportunity to make submissions and then, having considered those submissions, giving clear directions. Without such directions, the parties could not know the degree to which such flexibility would be employed. As such they could only proceed to present their cases on the basis that, absent such directions, the standard rules of criminal procedure and evidence would in all respect apply.

80.Certainly, in my judgment, what the Tribunal could not do was to reserve to itself, without notice to the parties, the power to exercise flexibility with the rules of criminal procedure and evidence in the process of coming to its determination. That, I believe, would fatally undermine the Tribunal's obligation to ensure a fair hearing. Regrettably, in respect of the appellant's good character, the Tribunal did exactly that.

81.The transcript of proceedings discloses no directions by the Tribunal as to how, as a matter of evidence, it would approach good character, an evidential matter which favoured the appellant and in respect of which he placed reliance. It follows that the Tribunal was obliged in that regard to adhere to the rules of criminal evidence.

82.In its statement of findings, the Tribunal directed itself in the following terms in respect of good character :

"Firstly, it was submitted that since the Respondent is of good character, we should warn ourselves in respect of credibility and propensity. This we have done. However, the Complainant is also a person of good character and thus it is only fair that we should give ourselves the same warning in respect of his credibility and propensity; particularly because the defence raised is that of an allegation of fabrication by the Complainant. This too we have done.

Further, the fact that the Respondent is a very senior member of the Bar, in our view, does not put him in any special position so far as his credibility and propensity is concerned. So to distinguish him from the Complainant would be totally improper."

83.This, in my view, is a material misdirection. Good character, as a matter of evidence in a criminal trial, is not to be balanced between an accused and the witnesses for the prosecution, the good character of one being off-set by the good character of the other. Lord Steyn expressed the principle thus in R. v. Aziz [1996] 1 AC 41 (at page 50G-51A) :

"It has long bean recognised that the good character of a defendant is logically relevant to his credibility and to the likelihood that he would commit the offence in question. That seems obvious. The question might nevertheless be posed: why should a judge be obliged to give directions on good character? The answer is that in modern practice a judge almost invariably reminds the jury of the principal points of the prosecution case. At the same time he must put the defence before the jury in a fair and balanced way. Fairness requires that the judge should direct the jury about good character because it is evidence of probative significance." [my emphasis]

84.In respect of the present matter, the question may be asked : "but did the Tribunal in fact breach its duty to act fairly? After all, it recognized the appellant's good character and gave it what weight it thought proper." I consider, however, that there was such a breach. I say so because, in off-setting the appellant's good character with that of the complainant and thereby diminishing it, the Tribunal effectively ignored the fundamental rationale for a good character direction, namely, that it constituted evidence in the appellant's favour of probative significance.

85.The failure to properly direct itself in respect of good character was the first ground of appeal argued by Mr McCoy. His third ground also flowed from the Tribunal's direction concerning the application of the rules of criminal procedure and evidence. It concerned what Mr McCoy argued was the Tribunal's misdirection as to the effect in law of the complaint's report made to a third party who had not been a witness to any alleged assault. In respect of that third ground, however, both parties were content to integrate the contents of that report into their respective cases, each advocating how the circumstances surrounding the report should be viewed. This was therefore an occasion when, with the tacit consent of both parties, the rule of flexibility was employed in the general interests of a fair hearing.

86.For the reasons stated, I too would set aside the verdict of the Tribunal and direct that there be a full rehearing before a new tribunal. I would also make an order nisi for costs in favour of the appellant both here and below.

Hon Mayo VP:

87.By a majority, this appeal is allowed. We make an order nisi that the appellant is to have his costs.

Representation:

Mr Gerard McCoy SC and Mr Graham Harris, instructed by Messrs Fairbairn Catley Low & Kong, for the appellant.

Mr Michael Bunting SC and Mr Stewart K.M. Wong, instructed by Messrs Anthony Chiang & Partners, for the respondent.