The Bar Council v. Sio Chan in, Devin
Read the full judgment text of CAMP 50/2023 on BabelCite. This Court of Appeal judgment was delivered on 9 August 2024.
1. This is the appellant’s application, by summons filed on 7 February 2023 (and amended on 27 June 2023), for extension of time to appeal against the decision and orders of the Barristers Disciplinary Tribunal (“ the Tribunal ”) dated 10 October 2022 and for stay of execution of the Tribunal’s order.
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CAMP 50/2023 [2024] HKCA 759 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO 50 OF 2023 (ON AN INTENDED APPEAL FROM THE DECISION AND ORDERS ________________________
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________________ J U D G M E N T ________________ Hon Kwan VP (giving the Judgment of the Court): 1.This is the appellant’s application, by summons filed on 7 February 2023 (and amended on 27 June 2023), for extension of time to appeal against the decision and orders of the Barristers Disciplinary Tribunal (“the Tribunal”) dated 10 October 2022 and for stay of execution of the Tribunal’s order. 2.On 2 August 2022, the Tribunal handed down the Statement of Findings (“Statement of Findings”) against the appellant in which it was found that the following complaints of professional misconduct have been proved:
3.In gist, under Complaint 1, the Tribunal found the appellant guilty of misconduct on his own admissions that he failed to plead properly the elements of the causes of action of “unlawful means conspiracy” and “dishonest assistance”, and the prayer for relief is defective. The Tribunal further found the appellant failed to render new advice to his lay client after the exchange of witness statements. In respect of Complaint 2, the Tribunal held that a solicitor’s residence constituted her “office” for the purpose of rule 91 of the Code of Conduct of the Bar (“the Code”) and found on the evidence that the appellant attended the solicitor’s residence for a conference on a matter in relation to his professional practice. Under Complaint 3, the Tribunal found that the appellant’s reply to the Standing Committee’s request for explanation for his attendance at the solicitor’s residence “starkly inverted” his evidence given under oath during the trial of HCCC 30/2018, which the Tribunal found is truthful. The Tribunal found the appellant knowingly furnished untrue information to the Standing Committee in his reply. 4.On 10 October 2022, the Tribunal handed down the Decision and Orders (“the Decision”), which was redacted for publication on 9 November 2022. The Tribunal ordered as follows:
Grounds of appeal 5.The grounds of appeal stated in the appellant’s draft notice of appeal are as follows:
Legal principles 6.Pursuant to section 37B(1) of the Legal Practitioners Ordinance, Cap 159 (“LPO”), a person who is the subject of an order under section 37 or 38 may appeal to the Court of Appeal, and Order 59 of the Rules of the High Court applies to the appeal except that the time for serving the notice of appeal is 21 days from the date of the decision and not 28 days as provided in Order 59. 7.The Court of Appeal may extend the time for the appellant to file and serve the Notice of Appeal even though the application for extension is not made until after the expiration of the prescribed time (Order 3 rule 5). In deciding whether to grant an extension of time, the court will take into account (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if the time for appealing is extended; and (4) the degree of prejudice to the other party if the application is granted (Wong Kwai Sang v Bar Council [2020] HKCA 1036 at §29). 8.The Court of Appeal will generally not interfere with findings of fact of a disciplinary tribunal that had the opportunity to observe the witnesses giving oral evidence unless the findings are not supported by any evidence or are otherwise unsupportable (Mui Kwok Keung Louie v The Bar Council, CACV 102/2010, 21 March 2011, §53). 9.As a disciplinary tribunal is in the best position to adjudicate on the appropriateness of a fellow professional’s behaviour, the Court of Appeal is entitled to disturb the finding of the Tribunal only if it is plainly wrong (The Law Society of Hong Kong v A Solicitor, CACV 280/2003, 25 November 2004, §§36 to 37). Delay 10.The period of appeal starts to run from the date of the Decision being 10 October 2022 (Wong Kwai Sang v Bar Council at §24), not the date of publication of the Decision which was 9 November 2022, as contended by the appellant[1]. Therefore, the appeal period prescribed by statute expired on 31 October 2022. The appellant was late by more than three months when he filed the summons for extension of time on 7 February 2023[2]. The delay is significant. 11.In his supporting affirmation, the appellant explained that he missed the deadline for filing the appeal because of medical reasons. He produced the medical note of a specialist in psychiatry stating that he suffered from depressive disorder and that his condition worsened since mid-November 2022, resulting in missing out the deadline for appeal procedure during the period of his untreated depressive illness. 12.The medical note is not cogent evidence and cannot assist the appellant in explaining his inaction or failure to file an appeal by the prescribed deadline. 13.The appellant consulted the specialist only twice, and the first consultation was just a week before the medical note was issued. Despite the indication in the medical note that the appellant had “impaired motivation and concentration, impaired cognition in reaction to various legal proceedings”, he was apparently able to represent himself in the substantive hearings of the disciplinary proceedings held in March 2022, as pointed out by Ms Catherine Wong, who appeared for the Bar Council throughout. Besides, the medical note stated that his condition worsened since mid-November 2022, which was after the time for appeal had expired on 31 October 2022. 14.Furthermore, the medical note was issued on 23 December 2022 and the appellant’s affirmation was affirmed on 3 January 2023, but the summons for extension of time was not filed until 7 February 2023. The further delay of more than a month after the issuance of the medical note and the preparation of his affirmation remains unexplained. 15.Under the above circumstances, the appellant’s significant delay is not justifiable. 16.We turn to consider the merits of the intended appeal, applying the test that the appellant must show a real prospect of success, not merely a reasonable prospect of success. Ground 1 – unused materials 17.Mr Edward Chow submitted for the appellant that where serious disciplinary charges are concerned, the courts have been prepared to recognise a duty of disclosure on the “prosecuting authority” that approaches the duty on the prosecution in criminal proceedings, citing Securities and Futures Commission v Wong Yuen Yee [2017] 1 HKLRD 788 at §§55, 66. This is no support for the contention in ground 1 which asserts that there was default of “BDT’s duty of disclosure”. Whilst the Tribunal has the powers specified in section 36(1) of the LPO in inquiring into the conduct of the person in respect of which it was constituted, the Tribunal did not owe any duty of disclosure to the appellant. There is no support for the proposition that any duty of disclosure was owed by a disciplinary tribunal, as opposed to the prosecuting authority, to the person under inquiry in the cases reviewed by G Lam J (as he then was) in SFC v Wong Yuen Yee at §§50 to 70. 18.Mr Chow sought to rely on §78 of SFC v Wong Yuen Yee which reads as follows:
19.These statements do not provide support for the proposition that the Bar Council as the prosecuting authority (insofar as any complaint is made against the Bar Council of breach of a duty of disclosure) is required to disclose all unused materials regardless of relevance. The duty of the prosecution authority is to disclose to the defence “relevant material which may undermine its case or advance the defence case” (SFC v Wong Yuen Yee at §§71, 82). “Obviously, fishing expeditions and pointless requests should be discouraged …” (Health and Disability Commissioner v Medical Practitioners Disciplinary Tribunal [1999] 2 NZLR 616 at 628, quoted at SFC v Wong Yuen Yee at §60). 20.Furthermore, under sections 4(a)(iii) and (iv) of the Barristers Disciplinary Tribunal Proceedings Rules, Cap 159P, the Bar Council is required to serve on the respondent statements and documents in its possession “in so far as the same are relevant”. 21.Moreover, there was no unfairness to the appellant as regards the disclosure of unused materials[3]. 22.Prior to the hearing on 24 March 2022, directions had been given by the Tribunal as regards any application for unused materials the appellant might wish to pursue. The appellant informed the Tribunal the unused material he intended to request the Bar Council to provide was the transcript of the trial of HCCC 30/2018 (he had only received the transcript of the judge’s summing up to the jury), to enable him and X to refresh their memories of the evidence they gave and for him to seek legal advice. As the Bar Council replied it did not have the entire transcript, the Tribunal gave directions on 10 January 2022 that the appellant should apply to the Judiciary for the audio recording of the trial in HCCC 30/2018, stating that the application was made with the support of the Bar Council for the purpose of an ongoing disciplinary hearing before the Tribunal, and he should supply a transcript of those parts of the recording he wished to rely on in relation to Complaints 2 and 3. The appellant’s application for unused materials was refused, with liberty to apply in writing within seven days to seek disclosure (if any) of specific, particularised documents relevant to the Complaints. 23.On 21 January 2022, the appellant renewed his application for unused materials, seeking the disclosure of (1) the date on which the Standing Committee came into possession of various documents in the list of documents said to relate to Complaint 3; (2) the identity of “the staff and/or committee member of the Standing Committee of Complaints 2 & 3”; and (3) “the reason why [the partial transcript of the proceedings in HCCC 30/2018] was not provided to the [appellant] for a chance to respond before laying Complaint 3.” 24.The Tribunal rightly dismissed the above application on 24 January 2022, on the ground inter alia that the information sought was not for specific, particularised documents relevant to the Complaints (for which leave had been granted earlier on 10 January 2022), but for information concerning the operation and procedure of the Standing Committee prior to the constitution of the Tribunal. The Tribunal further pointed out that the information sought was irrelevant to the substantive determination of the Complaints, and no grounds had been provided in support. 25.The Tribunal granted the appellant additional time to file the witness statement of X pending the transcript being made available by the Judiciary. The appellant’s application for the transcript was subsequently rejected by the Judiciary. The appellant later informed the Tribunal that upon legal advice, he would not call X to give evidence in the proceedings. 26.The Bar Council had repeatedly confirmed that it had served on the appellant all relevant documents in its possession prior to the substantive hearing on 24 March 2022. 27.Insofar as the complaint for not providing the unused material relates to the transcript of the proceedings in HCCC 30/2018, the complaint is clearly not made out. In seeking leave to appeal, the appellant has not suggested there is any other unused material that may be relevant to the substantive determination of the Complaints. 28.Ground 1 is wholly without merit. Grounds 2 and 3 – questionable credibility of Mr Chan 29.These grounds relate to the alleged failure of the Tribunal to allow the appellant to cross-examine Mr Chan, the complainant of Complaint 2. 30.On 17 January 2022, the Tribunal directed the appellant to advise them whether he would still wish any witnesses relied upon by the Bar Council to be tendered for cross-examination. On 21 January 2022, the appellant confirmed in his email to the Tribunal that he only intended to call Mr Liu for cross-examination, subject to the disclosure of information by the Bar Council (which application the Tribunal dealt with and rejected on 24 January 2022). In these circumstances, it is just not open to the appellant to challenge the Statement of Findings alleging failure of the Tribunal to allow him to cross-examine Mr Chan. 31.Furthermore, the Tribunal’s findings on Complaint 2 are based on the appellant’s own evidence on oath given in HCCC 30/2018[4], rather than any evidence of Mr Chan. The appellant failed to show the relevance of Mr Chan’s credibility or motive in making a complaint against him. 32.Grounds 2 and 3 have no prospect of success. Grounds 4 to 6 – cross border vehicle licence 33.The contention here is that the law in relation to cross border vehicle licences is difficult, as this would involve the interface between Hong Kong law, Chinese law, and Chinese Security Bureau’s departmental practice. It is therefore unjust to lay the blame on the appellant and held him liable for professional misconduct for the dismissal of Mr Liu’s action in DCCJ 157/2017. It was submitted that it was the lay client’s decision whether to appeal against the dismissal of his claim and whether he wanted to spend money to obtain a valuation report on the cross border vehicle licence, the lack of which contributed to the dismissal of the action. 34.We agree with Miss Wong the appellant’s arguments are missing the point. 35.The context of cross border vehicle licences is wholly immaterial to the finding that the appellant was incompetent in acting as counsel for Mr Liu. Before the Tribunal, the appellant admitted the deficiencies in his pleading of both the conspiracy and dishonest assistance claims[5]. The Tribunal has explained at length how the appellant failed to plead “elementary and fundamental” elements of these claims, which amounted to “elementary failing” and resulted in a pleading “that was doomed to fail in limine”[6]. The elementary deficiencies in pleading have nothing to do with any interface between Hong Kong law, Chinese law, and Chinese Security Bureau’s departmental practice, or the valuation of the cross border vehicle licence. 36.Grounds 4 to 6 are plainly untenable. Ground 7 – fraud of the agent 37.The appellant submitted the Tribunal erred in holding that the manner he conducted the action in DCCJ 157/2017 amounted to professional misconduct. He alleged that forgery was committed by the agents of Lee Wai Lun (“Mr Lee”; the defendant in DCCJ 157/2017), based on an admission by one of the agents in a police statement. The agent was asked to complete the form of the Business Registration Office to transfer a sole proprietorship called Sun Tak Hing from Mr Liu to Mr Lee, and did so by signing the signatures of both. As Mr Lee was liable for the forgery committed by his agent in the course of the service, it was not misconduct for the appellant to plead conspiracy to defraud by unlawful means and dishonest assistance against Mr Lee. Further, once fraud is proved, it vitiates all transactions. Hence, it was not misconduct for the appellant to seek the declarations in the prayer for relief in the statement of claim. Nor was it incompetent for the appellant to pursue an “equitable tracing claim” for the right to be issued a cross border vehicle licence held under the name of Sun Tak Hing. To the contrary, the trial judge in DCCJ 157/2017 was wrong to refuse the declarations sought in light of cogent evidence that forgery was committed by Mr Lee’s agent. 38.This contention again misses the point of the findings of incompetence. As rightly pointed out by Ms Wong, it was not wrong to plead conspiracy and dishonest assistance. What is seriously wrong is that the pleading of these claims was fundamentally defective as “elementary and fundamental” elements are missing. Further, the declarations were untenable as a matter of law, as Sun Tak Hing was a sole proprietorship, the alter ego of a natural person, so Mr Liu could not have had a proprietary interest or equitable title over the sole proprietorship allegedly transferred away from him by forgery[7]. 39.Grounds 4 to 7 fail to impeach the findings of the Tribunal in respect of Complaint 1. The Tribunal is entitled to find the elementary failings of the appellant were such that he was not competent, to the degree required for professional misconduct. 40.Furthermore, there is no reliable evidence to show that the appellant had sufficiently advise the lay client as alleged and the appellant failed to demonstrate that the Tribunal was wrong in rejecting his claims concerning the alleged advice he had given to the lay client. Ground 8 – office and residence of solicitor 41.Rule 91 of the Code provides as follows:
42.The appellant’s argument is that the appellant had not contravened rule 91 because there was no evidence he attended the residence of X to “collect a brief”, which is an essential element of rule 91. Further, the Tribunal was wrong to hold that the residence of X constituted an “office” within the meaning of that term in rule 91, citing the dictionary meanings of “home” and “office”. 43.We reject the above arguments. Rule 91 is made up of two parts. The first part reads: “A barrister should not attend a conference at or visit the office of the person authorised to instruct him in the matter”. The second part, which adopts the opening words “A barrister should not attend”, carries on to read as follows: “the office of the company, firm or other body of which such person is a director, partner, member or employee to collect a brief”. The two parts are separated by the conjunction “or”. The phrase “to collect a brief” relates to the second part. It is not an essential element of the first part which prohibits a barrister from attending “a conference at or visit the office of the person authorised to instruct him in the matter”. 44.As for the interpretation of “office” in rule 91, the Tribunal is correct to construe this not just by the natural and ordinary meaning but with regard to the context and purpose of this provision[8]. The finding that the term “office” in rule 91 includes a solicitor’s residence when it is also used as a place of work cannot be faulted. 45.Ground 8 has no merit. Ground 9 – conduct dishonest and discreditable to a barrister 46.The appellant sought to challenge the factual findings of the Tribunal contending that it was wrong to reject his explanation to the Standing Committee that he went to the residence of X in the capacity of a lay client on 29 April 2016 for a conference of a civil claim brought by his father and that the action numbers of the cases were HCA 314/2018 (discontinued) and HCA 352/2020. The Tribunal found this explanation inconsistent with and contradictory to his evidence under oath in the trial of HCCC 30/2018, which the Tribunal found to be truthful. 47.The appellant argued that notwithstanding the two actions mentioned in his explanation were commenced in 2018 and 2020, his father’s claim for adverse possession had been in progress some years before so it was not wrong to seek X’s advice in 2016. He also complained that he was not formally cautioned and reminded of his right to silence and asserted there was no power in the Tribunal or the Bar Council to require him to waive his right to silence and his right against self-incrimination. He asserted that as he was suffering from depression, the possibility of his being mistaken and mixing up the cases cannot be ruled out. 48.The Tribunal gave detailed reasons why the appellant’s account to the Standing Committee (which he affirmed as the truth in his evidence before the Tribunal) was not credible[9]. The assertion that the appellant might have mixed up the cases due to his mental condition has never been raised before, and is in any event not supported by evidence. According to the medical note adduced for present purpose, the onset of the appellant’s depressive was in 2021. The explanation given to the Standing Committee was in July 2020. There is no basis to think that the factual finding of the Tribunal is plainly wrong or otherwise unsupportable by evidence. 49.A disciplinary proceeding is not criminal in nature. No authority has been cited for the proposition that the respondent must be cautioned and be reminded of his right to silence. 50.Ground 9 must be rejected. Ground 10 - penalty 51.This ground is bound to fail as the appellant has not given any submissions or basis to demonstrate that the penalties imposed on Complaint 1 and Complaint 3 are manifestly excessive. The Tribunal has explained the seriousness of the misconduct in these complaints, and has duly considered the totality principle in imposing the penalties. Conclusion and costs 52.For the above reasons, as there is no prospect of success on any of the intended grounds of appeal, the application for extension of time to appeal is refused. As the appellant is not allowed to file his appeal out of time, there is no reason to order a stay of execution pending appeal. We dismiss also §§2 to 4 of the summons. 53.We further order no party may request the Court of Appeal to reconsider the application at an oral hearing inter partes, as we consider the application is totally without merit. 54.Costs of the application should follow the event. The Bar Council seeks costs on an indemnity basis as the application is totally unmeritorious and because of the unsatisfactory manner the application bundles were prepared. We are inclined to agree. We make an order nisi for costs against the appellant on an indemnity basis, to be assessed summarily. If no application for variation is made within 14 days, the order will be made absolute. 55.We direct the Bar Council to serve a statement of costs within 14 days hereof and the appellant to serve any objections to the statement of costs within 14 days thereafter.
Mr Chow Lap San Edward, instructed by Yu Sun Yau Mak & Lawyers, for the Respondent (Appellant) Ms Catherine Wong, instructed by Keith Lam, Lau & Chan, for the Applicant (Respondent) [1] Affirmation of Sio Chan In Devin filed on 7 February 2023, §2 [2] The revised application bundles, five volumes in all, were lodged belatedly on 18 and 19 May 2023, in breach of the directions of the Registrar. They were put together by indiscriminate inclusion of the documents used at the hearing before the Tribunal, contrary to Practice Direction 4.1 §9. [3] Statement of Findings, §§38 to 49 [4] Statement of Findings, §188 [5] Statement of Findings, §§130, 132 [6] Statement of Findings, §§131 to 137 [7] Statement of Findings, §135 [8] Statement of Findings, §§159 to 165 [9] Statement of Findings, §§168 to 188 | ||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under CAMP 50/2023