The Bar Council v. Mark Richard Charlton Sutherland

CACV 365/2019, [2023] HKCA 786

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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D E C I S I O N

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

I.  Leave to appeal

1.This is the respondent Mr. Sutherland’s application for leave to appeal to the Court of Final Appeal against our judgment dated 27 January 2023. We will deal with the application on paper.

2.Mr. Sutherland relies on two questions said to be of great, general or public importance, or otherwise, that ought to be submitted to the Court of Final Appeal for decision :

1)  Whether a disciplinary judge who has been instrumental as an informant and/or compliant and/or prosecutor and/or investigator in another recent complaints process against a barrister, is thereby disqualified from being a judge in a subsequent disciplinary trial of that same barrister (‘Question 1’) and;

2)  The period of time that must elapse before he is regarded as not to be so disqualified (‘Question 2’).

II.  Our view

1)  Question 1

3.In our view no issue of great, general or public importance is engaged. The question is academic because by reason of our refusal to admit fresh evidence, this case does not have any factual basis to support a discussion of this question. In any event, the question is fact‑specific.

2)  Question 2

4.This question likewise does not engage the great, general or public importance threshold.

3)  Or otherwise ground

5.The ‘or otherwise’ ground is also not engaged.

III.  Conclusion

6.Accordingly, the application is refused.

IV.  Costs

7.We order the costs of the application to be paid by Mr. Sutherland to the Bar Council. We will assess the costs summarily. The Bar Council is to file a statement of costs within 14 days from the date of this order. Mr. Sutherland is to file a statement of objection within 14 days thereafter (if any).

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

Respondent acting in person