The Bar Council v. Vivien Chan Man Wai
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CACV 566 /2024 [2026] HKCA 1978 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 566 OF 2024 (ON APPEAL FROM THE DECISIONS OF THE BARRISTERS DISCIPLINARY TRIBUNAL DATED 14 MARCH 2024 AND 29 NOVEMBER 2024)
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________________________ J U D G M E N T ________________________ Hon Kwan VP (giving the Judgment of the Court): 1.This is an appeal brought by Vivien Chan Man-wai (“Ms Chan”) against the decision of the Barristers Disciplinary Tribunal (“BDT”)[1] on 14 March 2024 (“Decision”) and its decision on sentence and costs handed down on 29 November 2024 (“Decision on Sentence and Costs”). 2.Ms Chan was admitted as a barrister in Hong Kong in 2016[2]. She acted in person at the trial before the BDT[3], which lasted for six days in December 2022 and the summer of 2023. In this appeal, she was represented by Mr Simon Chiu and Ms Fanny Wong. The Bar Council appeared by Mr Marc Corlett below. He was assisted on appeal by Ms Chelsea Lau. The Facebook postings and the Complaints 3.Five complaints (“Complaints”) were laid against Ms Chan on 26 August 2021. They arose out of eight postings on a Facebook account opened in the name of Ms Chan which were as follows:
4.These were the allegations of professional misconduct in the Complaints against Ms Chan: Complaint 1 5.Between 7 October 2019 and 14 February 2020, Ms Chan breached Bar Code paragraph 4.1(b)(ii) by engaging in conduct (whether in pursuit of her profession or otherwise) that was likely to bring the profession of barristers into disrepute or otherwise diminish public confidence in the profession of barristers by posting on her Facebook account Posts 1 to 7. Complaint 2[4] 6.Between 7 October 2019 and 14 February 2020, Ms Chan breached Bar Code paragraph 4.1(b)(iii) by engaging in conduct (whether in pursuit of her profession or otherwise) which is prejudicial to the administration of justice or otherwise likely to diminish public confidence in the administration of justice by posting on her Facebook account Posts 1, 2 and 7. Complaint 3 7.Between 7 October 2019 and 14 February 2020, Ms Chan breached Bar Code paragraph 4.1(c) by failing to observe the ethics and etiquette of her profession by posting on her Facebook account Posts 1, 2 and 7. Complaint 4 8.On a date unknown but on or before 25 June 2020, Ms Chan breached Bar Code paragraph 4.1(b)(iii) by engaging in conduct (whether in pursuit of her profession or otherwise) which is prejudicial to the administration of justice or otherwise likely to diminish public confidence in the administration of justice by posting on her Facebook account the Madam Peck Article in Post 8. Complaint 5 9.On a date unknown but on or before 25 June 2020, Ms Chan breached Bar Code paragraph 4.1(b)(iii) by engaging in conduct (whether in pursuit of her profession or otherwise) which is prejudicial to the administration of justice or otherwise likely to diminish public confidence in the administration of justice by posting on her Facebook account the Comment in Post 8. 10.Ms Chan pleaded not guilty to all the Complaints. The findings of guilt and sanction 11.The BDT was not satisfied that the Complaints in respect of Posts 1 to 6 have been proved to the necessary standard to have been posted on and extracted from Ms Chan’s Facebook page. There was a lacuna in the chain of evidence. Accordingly, it dismissed those parts of the Complaints that relate to Posts 1 to 6[5]. 12.The BDT was satisfied to the requisite standard that Ms Chan was the person who put up Post 7 on her Facebook account on 14 February 2020 and that the post in effect denigrates the Judiciary in Hong Kong generally and implicitly holds the judges responsible for the ongoing violence and chaos. The BDT was of the view that such comments in a forum accessible to the public would be perceived by any right-thinking person as being prejudicial to the administration of justice or likely to diminish public confidence in the administration of justice. It was not satisfied that Complaint 1 is engaged as there is nothing in Post 7 that denotes Ms Chan was/is a barrister. Complaint 1 in respect of Post 7 was dismissed. It found Complaint 2 in respect of Post 7 proved to the requisite standard and found Ms Chan guilty of the same[6]. 13.The BDT was satisfied it was more likely than not it was Ms Chan who re-posted the Madam Peck Article in Post 8 on 25 June 2020 and it was she who added the Comment in Post 8. It rejected the evidence of Ms Chan’s brother, Mr Chan Kwok Tai (“Mr Chan”), who claimed that he was the one who had put up Post 8. The BDT took the view that by re-posting such an article more than 6.5 years old at a difficult and turbulent time in Hong Kong society, Ms Chan’s intention could have been nothing other than to create prejudice against the administration of justice or to otherwise diminish public confidence in the administration of justice. It was satisfied that Complaints 4 and 5, which only concerned Post 8, have been proved to the requisite standard and found her guilty of Complaints 4 and 5[7]. 14.The BDT was satisfied that the facts underlying Complaints 4 and 5 do not warrant a suspension or striking off from practice of Ms Chan, as they do not involve any element of dishonesty or monetary loss to the public[8]. In all the circumstances, it imposed the following sentence[9]:
15.The BDT made no mention in the Decision of any finding of guilt of Complaint 3 in respect of Post 7. It only found Complaint 2 in respect of Post 7 was proved and that Ms Chan was guilty of the same. However, in the Decision on Sentence and Costs, it was stated in §1 that “the Tribunal had found her not guilty of Complaints 1-3, but found her guilty of Complaints 4 and 5” and went on to impose sentence only in respect of Complaints 4 and 5. As these apparent omissions and inconsistencies[10] in the Decision and the Decision on Sentence and Costs are not within the scope of this appeal, this court does not have power to rectify the position. This appeal 16.Ms Chan filed a notice of appeal on 20 December 2024 against the conviction of Complaints 4 and 5 and the Decision on Sentence and Costs. She was then acting in person. In July 2025, C&L filed a notice to act for her. 17.In the notice of appeal, she sought to set aside the conviction of Complaints 4 and 5 and the sanctions in the Decision on Sentence and Costs. She sought an order that the Bar Council should pay her the costs of the disciplinary proceedings including the costs of her application for further discovery and the costs of and occasioned by the adjournment on 5 December 2022. 18.There are a total of 25 grounds in the notice of appeal, and they are wide-ranging. Ms Chan did not merely challenge the decisions of the BDT but attacked the Bar Council, the Standing Committee on Discipline (“SCD”) and its former chairman and the BDT, claiming unfair, unjust and improper treatment of her in the conduct of these proceedings. The points covered in the grounds of appeal were dealt with by the BDT in its ruling given on 13 May 2022 (“Disclosure Ruling”) on her application for further discovery, in the Decision and the Decision on Sentence and Costs. 19.As helpfully summarised by Mr Corlett, the grounds of appeal encompassed the following topics:
20.Mr Corlett pointed out that Grounds 2, 8, 9, 12 and 13 do not appear to have been dealt with in the skeleton argument dated 27 August 2026 signed by C&L. Mr Chiu lodged a reply submission on 18 September 2026 contending that these grounds were in fact mentioned “in the flow” of the skeleton argument and it is incorrect that Ms Chan no longer relies on them. We allowed him to rely on these grounds at the hearing of the appeal. 21.The grounds of appeal were not identified by their paragraph numbers in the skeleton argument served by Ms Chan and were grouped together in a different manner. We think it more appropriate to consider the grounds of appeal following the groupings suggested by Mr Corlett as stated above. The approach of the appeal court 22.Before turning to the grounds of appeal, it is appropriate to mention the approach of the appeal court in reviewing the rulings of a disciplinary tribunal. This has been set out comprehensively in Sin Chung Yin Ronald v Dental Council of Hong Kong (2016) 19 HKCFAR 528 at §§42 to 50, where relevant authorities were discussed. 23.In summary, in reviewing the findings of a disciplinary tribunal, the appropriate degree of deference the appeal court would accord to such findings depends on the nature of the issue in question. It would not defer to the judgment of the tribunal more than is warranted by the circumstances. It is sensible for the appeal court to be cautious and diffident about interfering with a disciplinary body’s assessment of matters calling for professional judgment and expertise, as in the case where professional misconduct is alleged in connection with technical or clinical judgments or competence, or where the unprofessional conduct raises questions of professional ethics governing, for instance, the relationship between the professional and his or her clients or fellow members of the profession. Where the alleged misconduct does not concern areas of technical or clinical judgment or professional expertise or ethics, diffidence is not called for and the court might conclude there was little to inhibit it from substituting its own judgment if it should have cause to differ from the disciplinary tribunal. 24.An important part of this appeal is the challenge to the BDT’s findings of primary fact, namely, that Ms Chan was the person who posted the Madam Peck Article and the Comment in Post 8. The approach of the appeal court regarding this is no different from an appeal against a finding of fact in a civil action. In respect of a judge’s finding of primary fact, particularly a finding based on the credibility of a witness, before the appeal court is to disturb such a finding, it 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 could only have been based on a misapprehension of the facts or some faulty process of reasoning. The burden on a party who seeks to overturn a trial judge’s finding of primary fact is a heavy one[11]. Background 25.We will first relate relevant matters which led to the investigation of the complaints and the disciplinary proceedings against Ms Chan, in light of the complaints she made about the fairness and propriety of the entire proceedings and the costs orders against her. They are taken largely from the Decision, as well as from other documents in the appeal bundle and matters not in dispute or are indisputable. 26.On 8 April 2020, the Hong Kong Bar Association (“HKBA”) received hundreds of emails from the public, all in relation to an article published in the Stand News dated 8 April 2020, which contained various screen captures of Ms Chan’s Facebook account. At around 11:25 am, HKBA received a complaint form from Mr Yuen Hoi Man against Ms Chan and another complaint against her at around 2:52 pm and 6:20 pm from Mr Lo Che Hon. The administrative secretary of the Bar Secretariat, Mr Tsang Wing (“Mr Tsang”), referred the matter to the SCD to consider. 27.On 23 April 2020, the then chairman of the SCD, Mr Erik Shum (“Mr Shum”), wrote to Ms Chan to inform her that the SCD had received complaints alleging that she had posted on her Facebook open to public viewing inappropriate and degrading comments relating to judges, the judiciary and protestors in the social unrest in 2019. Extracts of the Facebook pages were annexed to the letter. She was requested to provide explanation or representation of the same within 21 days, and to the allegation that it was not appropriate for her to act as prosecuting counsel in KCCC 2558/2019 given the comments and remarks about protestors. 28.KCCC 2558/2019 was brought against Au Nok Hin (“Au”), a former Legislative Council member. He was charged with assaulting a police officer at a protest scene in the social unrest. The trial took place before a magistrate from 20 to 22 January 2020, with Ms Chan prosecuting on fiat. A verdict of guilty was given on 6 April 2020 and Au was sentenced to community service on 24 April 2020. Ms Chan filed a case report to the Department of Justice on 25 April 2020 recommending review of the sentence and stating that from the time the date of verdict was announced to the sentencing, she and her family members had suffered online harassment and threatening phone calls and messages. 29.On 6 May 2020, C&L replied to the letter of 23 April 2020 stating that since the conviction of Au on 6 April 2020, Ms Chan had received emails and messages from unknown persons claiming they had provided a lot of information and materials to HKBA in order to “put [Ms Chan] to an end”. The letter went on to state that before Ms Chan “is in a position to consider” the matters raised in the letter of 23 April 2020 (“Subject Matter”), C&L wanted disclosure of all complaints made against her in any format, all information and documents received by HKBA relating to the Subject Matter, the full identities of all the complainants, and all information and documents relevant to the Subject Matter. C&L reserved the rights to request for further information and documents. 30.Mr Shum replied by letter dated 13 May 2020 stating that the summary of the complaints against Ms Chan had been set out in the letter of 23 April 2020, that the comments relating to judges, the judiciary and protestors were allegedly posted by her via her Facebook which was open to viewing by the public, and that they were extracted from her Facebook pages. The letter went on to state that sufficient information and evidence had been disclosed to enable Ms Chan to make meaningful and focused representation in response to the subject complaints and reminded her that she was duty bound under paragraph 4.7 of the Bar Code to respond to the letter of 23 April 2020. She was given a deadline to respond by 27 May 2020. 31.Ms Chan responded by a letter of C&L dated 26 June 2020. A summary of various attacks against her arising out of the prosecution in the Au case was given, including a forged letter dated 26 April 2020 purportedly written in her name to the judiciary complaining about the judicial conduct of a District Judge. The letter stated as Au had lodged an appeal against conviction and the Secretary for Justice had applied for review of sentence, the Au case had not concluded and asserted it would be inappropriate for her to provide any further response to the Subject Matter. It went on to state that once the Au case was concluded[12], she would respond further. The letter reiterated the earlier request for a “full set of information and materials provided to HKBA allegedly to put [Ms Chan] to an end”. 32.Mr Shum replied by letter dated 8 July 2020, disagreeing with C&L that Ms Chan that she could only respond to the Subject Matter after the “full set of information and materials” provided to HKBA were also provided to her. He pointed out that the extracts of the posts, copies of which had been provided to Ms Chan, were allegedly posted between 7 October 2019 and 14 February 2020, at least seven weeks before the verdict in the Au case. He made the point that any explanation Ms Chan wished to provide was within her knowledge and the progress of the Au case had no relevance or bearing to the Subject Matter. She was given a deadline of 22 July 2020 to respond and reminded again of the operation of paragraph 4.7 of the Bar Code. 33.A second letter was issued by Mr Shum to C&L on 8 July 2020 raising queries, inter alia, about a new Facebook post published on Ms Chan’s Facebook on 25 June 2020, namely, Post 8, making accusations against former Chief Justice Andrew Li. Ms Chan was asked to provide any relevant explanation and/or representation in respect of this post on or before 29 July 2020. 34.On 28 July 2020, C&L replied to the second letter of 8 July 2020, seeking an extension of six weeks to respond as Ms Chan had sprained her shoulder blade, neck and arm. HKBA allowed her to provide a substantive response by 9 September 2020. 35.On 9 September 2020, C&L provided a response regarding Post 8 in these terms: “The said post in the Facebook was not made by [Ms Chan].” No further details were given. 36.On 15 September 2020, Mr Shum wrote to C&L asking for particulars of the contention that Post 8 was not made by Ms Chan. He specifically asked for the time and circumstances when she first noticed Post 8 on her Facebook page which was open to be seen by the public, any measures or inquiries taken by her to find out how the post was posted on her Facebook page, and steps taken by her to have the post removed and when the measures or inquiries were taken. She was asked to respond by 6 October 2020. 37.C&L responded on 6 October 2020, claiming that before replying further, Ms Chan requested for confirmation the HKBA did receive formal complaints relating to Post 8, and if so, HKBA should provide all details and information relating to such complaints. C&L asked HKBA to confirm if it was the position of HKBA that Post 8 should be removed, and if so, the reasons. The particulars sought by Mr Shum for the contention that Post 8 was not made by her were simply not provided. 38.Mr Shum wrote further on 9 October 2020 stating that HKBA received formal complaints about Post 8 on 25 June 2020 and that sufficient details had been provided to Ms Chan to make any reply or representations in respect of this complaint. He stated that the SCD took no position whether the post should be removed by her. She was requested to give a substantive reply on or before 16 October 2020. 39.In the reply of 16 October 2020, C&L expressed regret at the refusal of HKBA to provide full details of the formal complaints. They asserted that Ms Chan “could not recall the date and time when she first noticed [Post 8]” and confirmed she had not removed the post. The letter went on to state that the Madam Peck Article was written in 2013 and had been published and circulated in various media and was available for public view and comments since then. No direct response was given as to who posted Post 8 on her Facebook account. 40.By a letter dated 20 January 2021 from the Honorary Secretary of the HKBA to Ms Chan, she was informed that the Bar Council resolved at its meeting on 7 January 2021 to refer the complaints regarding postings on her Facebook account to the BDT for disciplinary inquiry. She was also informed, inter alia, that even if she did not intend to admit any of the charges, any constructive suggestion on the admission of facts or otherwise by her to reduce or limit the scope of dispute and inquiry would be appreciated. 41.Formal complaints were drawn up on 26 August 2021. The Complaints and a bundle of documents were served on Ms Chan in early September 2021. 42.On 20 October 2021, Ms Chan wrote to the BDT requesting an extension of eight weeks to seek legal advice as to her intended plea. This was granted by the BDT and she was asked to indicate her decision regarding her plea on or before 15 December 2020. 43.By a letter of C&L to the BDT dated 15 December 2021, C&L claimed that before Ms Chan could be “fully and properly advised”, they sought disclosure of the following documents and information “as directed by counsel”:
44.C&L requested an extension of four weeks after the provision of all the above information and documents for Ms Chan to indicate her position relating to the Complaints. 45.By the letter of W&G dated 17 December 2021, the Bar Council objected to the extension of time sought and submitted that the information and documents in the document bundle despatched to Ms Chan on 3 September 2021 were adequate for her to understand the charges and indicate her plea. They referred to section 5 of the Barristers Disciplinary Tribunal Proceedings Rules, Cap 159P, pursuant to which Ms Chan should indicate her plea within 14 days from the despatch of the documents. 46.On 4 January 2022, the BDT chairman directed that Ms Chan should indicate her plea on or before 11 January 2022. 47.By a letter of C&L to the BDT chairman dated 11 January 2022, it was asserted that the documents requested in the letter of 15 December 2020 were relevant to Ms Chan’s pleas and the “validity and procedural propriety of the [BDT]”. C&L reiterated that Ms Chan was not in a position to indicate her pleas without the requested documents but faced with the chairman’s direction to do so, she would comply “under protest, to confirm that she does not admit to any of the Complaints”. 48.Ms Chan applied for further disclosure as per the letter of C&L dated 15 December 2021. After considering the submissions of C&L dated 17 February 2022, the submissions of Mr Corlett for the Bar Council dated 24 February 2022 and the reply submissions of C&L dated 7 March 2022, the BDT made the Disclosure Ruling on 13 May 2022 dismissing Ms Chan’s request for disclosure of documents and information and reserved the costs of the application to be dealt with after the hearing of the Complaints. 49.The Complaints were scheduled to be heard from 5 to 8 December 2022. Mr Corlett served his opening submissions on 21 November 2022. Ms Chan, who was by then acting in person, did not lodge her opening submissions despite the directions of the BDT on 12 October 2022[13]. 50.When the hearing commenced in the morning of 5 December 2022, after Ms Chan confirmed her plea of not guilty to all the Complaints, she raised an issue as to the authenticity of the posts allegedly from her Facebook page, asserting that the Bar Council had the burden of proof. In light of this, Mr Corlett indicated that the Bar Council would be able to call a witness (ie Mr Tsang) who was apparently responsible for obtaining and downloading copies of the Facebook posts that were the subject of the Complaints. 51.Ms Chan opposed the calling of any witnesses by the Bar Council, asserting that it had confirmed on 19 May 2022[14] no witness would be called and that she had prepared for the hearing on that basis. She complained of being ambushed. 52.After hearing arguments, the BDT granted provisional leave to the Bar Council to provide a witness statement of the proposed witness before making a ruling on the calling of the witness. The hearing was adjourned to the afternoon to enable W&G to prepare and serve the witness statement. 53.When the hearing resumed in the afternoon, the witness statement of Mr Tsang dated 5 December 2022 was served on all parties. In it, Mr Tsang claimed he had checked four of the subject posts were visible on Ms Chan’s Facebook account. Ms Chan persevered with her objection and claimed she would not be able to continue with the hearing as she would need to seek legal advice, consider what witness or witnesses she might need to call in turn and some might not be immediately available in Hong Kong. She claimed she might have to consider seeking legal representation in the proceedings and/or change her line of defence. 54.The BDT adjourned the hearing to the afternoon of 7 December 2022 before making a ruling, giving Ms Chan further opportunity to consider her position. At the resumed hearing, Ms Chan indicated she needed more time to obtain full and proper legal advice, to consider her line of defence and consider getting legal representation. 55.The BDT adjourned the hearing to a date to be fixed and reserved the costs of and incidental to the adjournment to the conclusion of the hearing. 56.On 8 May 2023, the Bar Council served a supplemental witness statement of Mr Tsang of 5 May 2023 to correct his earlier statement that he had personally reviewed four of the subject posts. He claimed that by 8 April 2020, when HKBA received hundreds of emails from the public in relation to the Stand News article about Ms Chan’s Facebook account, he was only able to view the posts from her Facebook account since February 2020. Hence, he had only viewed Post 7 (dated 14 February 2020) personally. For Posts 2, 3 and 6[15] (dated 16 October 2019, 17 October 2019 and 2 January 2020), he only checked them via the Stand News article. For Posts 1, 4 and 5 (dated 7 October 2019, 21 November 2019 and 2 January 2020), he had not viewed them from her Facebook account or other extrinsic materials such as the Stand News article or separate complaints. 57.When the hearing resumed on 19 June 2023, Ms Chan continued to represent herself. The Bar Council called Mr Tsang to testify. Ms Chan elected to give evidence and called Mr Chan, who came to Hong Kong from Texas USA to testify, as her only witness. The hearing lasted another four days. Grounds 3, 6 and 19 – failure of the Bar Council and the SCD to disclose relevant information and documents 58.These grounds attacked the Disclosure Ruling dismissing Ms Chan’s request for disclosure of items 1 to 6 set out in the letter of C&L to the BDT dated 15 December 2021, and the decision refusing to award her costs of the disclosure application. 59.Ms Chan contended that the Disclosure Ruling was in error. She asserted that the documentary records she requested the Bar Council to disclose from beginning to end were all core matters relating to the Complaints and her request for disclosure is correct and reasonable. If there had been proper disclosure, the ‘surprise’ calling of Mr Tsang as a witness on 5 December 2022 would not have occurred. In her costs submissions to BDT dated 30 September 2024, she had clearly submitted in §§2 to 5 that she should be awarded all the costs incurred in respect of the disclosure application. In the Decision on Sentence and Costs, it was not stated that the BDT had considered her submissions in this respect and it did not give reasons for refusing to award costs to her. 60.The Bar Council’s stance in respect of the request for disclosure of the six items was set out in its email to the BDT dated 8 February 2022:
61.Notwithstanding the above response, Ms Chan persisted in seeking discovery in respect of items 1, 3, 4 and 6 as stated in C&L’s letter of 15 December 2021. For item 1, she claimed an entitlement to know the identity of the sender of the email complaint to HKBA on 27 June 2020 in respect of Complaints 4 and 5, without wishing to disclose her defence for the time. For item 3, she contended that the authenticity of the Facebook messages in the hearing bundle is of “utmost importance” and took issue with the Bar Council in not providing any statement, document or information to prove the “chain of evidence”. She argued that confidentiality of Bar Council minutes of the resolution to proceed against her in item 4 is not a reason to withhold disclosure, as this would deprive her of a fair trial and adequate knowledge of the prosecution’s case. For item 6, she likened the proceedings to a criminal case in which the prosecution is obliged to disclose all unused materials which are directly or indirectly relevant. 62.In respect of the “chain of custody” evidence, the Bar Council took the position that Ms Chan had been provided with copies of the Facebook posts that gave rise to the Complaints and presumably should be well aware if the copies she received were authentic. If and when she was to admit or dispute the misconduct alleged in the Complaints, as she was required to do under section 5 of the Barristers Disciplinary Tribunal Proceedings Rules, it would be known if authenticity was accepted or disputed. In the event that authenticity was disputed, the Bar Council would need to prove the authenticity of the copies by evidence, but in the meantime there was nothing relevant to disclose. 63.Ms Chan maintained in her reply submissions she had made known in the letter of C&L dated 11 January 2022 that “she does not admit to any of the Complaints” and that was all that was required of her under section 5 of the Rules. She asserted that authenticity of the Facebook posts was in issue. 64.The BDT did not accept her submissions and refused the application. It had regard to the fact that the Complaints essentially related to alleged posts put up on the Facebook account of Ms Chan and those were matters peculiarly within her knowledge. It was satisfied that disclosure of further documents or information at that stage was not necessary or relevant, and that absence of the documents sought did not in any way hamper Ms Chan in addressing the Complaints or mounting any defence to the same[16]. 65.Up to the commencement of the hearing of the Complaints on 5 December 2022, and as Ms Chan did not serve opening submissions, she had not provided any substantive response to the Complaints and it was not known if it was accepted by her that she did put up the alleged posts on her Facebook account[17]. It was in answer to the chairman’s questions that she stated her “main reply is about the authenticity of the alleged Facebook posts” and maintained that even though she did not want to give any hint of what she was to say in reply the burden of proof was always on the Bar Council to prove all the Complaints, at which point Mr Corlett informed the BDT that the Bar Council could provide relevant evidence from Mr Tsang on the alleged posts[18]. 66.In this appeal, Ms Chan essentially reiterated her stance before the BDT that in her two submissions in the disclosure application, she had clearly indicated that she would dispute the authenticity of the alleged posts and hence the BDT was in error in refusing disclosure. 67.We have set out in detail the relevant correspondence from the very beginning, when Ms Chan was first provided with copies of the alleged Facebook posts. The communications provided the context of the request for documents and information in C&L’s letter of 15 December 2021. Up to the time of that letter, she had not indicated whether she would admit or dispute the misconduct alleged in the Complaints, and she would not indicate her position regarding the Complaints until full information and materials as sought were provided to her. Her mindset was that when seeking discovery, she was not obliged to disclose to the BDT that Posts 1 to 7 were never on her Facebook page because “[she] was wholly under oppression and [the Bar Council is] so unreasonable to put the burden of proof on [her] to ask [her] to do something so unreasonable.”[19] 68.The BDT is correct in regarding the disclosure application as made in the context of repeated requests for extension of time to indicate what her plea would be and the Disclosure Ruling dealt with whether she needed the documents requested before she could enter a plea[20]. Her submissions in the disclosure application did not indicate that the authenticity of the alleged Facebook posts was disputed in that she did not post them or that they were not taken from her Facebook account. She expressly stated she had no wish to disclose her defence at that time (and hence the issues that would arise for determination were not known) and asserted that as the Bar Council has the burden of proof, the documents and information sought in items 1, 3, 4 and 6 should be disclosed to her. 69.We do not accept that merely because the Bar Council bears the burden of proof, the wide-ranging documents and information sought by Ms Chan should be disclosed to her regardless of the issues that would probably arise for determination at the hearing. As for the issue of the chain of evidence, this did not become obvious and was not made clear until after Mr Tsang testified and when Ms Chan herself gave evidence[21]. We are of the view that the BDT was entirely correct in exercising its discretion to refuse disclosure in the context of the particular circumstances, and we see no reason why costs of the application should not follow the event. 70.Grounds 3, 6 and 19 are of no merit. Grounds 10, 11 and 16 – evidence of Ms Chan and her brother in relation to Post 8 71.These grounds seek to challenge the findings of fact that the Madam Peck Article was re-posted in Ms Chan’s Facebook account by Ms Chan and that Ms Chan added the Comment that went with this re-posting. 72.The submissions on behalf of Ms Chan repeated the evidence given by her and her brother that the Facebook account in her name was not her personal account but a family account used by all the members of her family as well as her then boyfriend, and that the Madam Peck Article (running over four A4 pages) was copied and pasted on her Facebook account by her brother without reading the contents and without adding a single word. She asserted that the BDT had no “evidentiary basis” to reject their evidence and there was no evidence to prove that the Article was re-posted by her and the Comment was added by her to the re-posting. She submitted that in §143 of the Decision, the BDT referred to Post 7 as reflecting her attitude towards some of the Hong Kong judiciary and took the view that the Comment in Post 8 appeared to fit in with that attitude of casting aspersions and insinuations against the judiciary generally. The inference drawn by the BDT in this respect was inherently unreasonable and it had fallen into serious error. 73.The BDT found Ms Chan and Mr Chan were not impressive or convincing witnesses and took the view that their evidence “carried all the hallmarks of being highly contrived and simply lacking any ring of truth”[22]. In relation to Ms Chan, her failure to inform HKBA that Post 8 was put up by her brother until she testified at the adjourned hearing on 20 June 2023[23] could hardly be said to be in conformity with her obligations under paragraph 4.7 of the Bar Code[24]. As for the evidence of Mr Chan, who had left Hong Kong for 20 to 30 years and was then running a funeral home in Texas, the title of the Madam Peck Article (“Rewinding to take a look at justice in Hong Kong! The insuperable Andrew Li”) “clearly is not something that would have piqued the interest or curiosity of [Mr Chan] to take the trouble to post it up on [Ms Chan’s] Facebook account.”[25] The BDT was “firmly of the view” that the “belated and beleaguered attempt” by him to claim he was the one who put up Post 8 “simply defies logic and common sense”, and saw it as “nothing more than a desperate attempt to provide a lifeline for [Ms Chan] to attempt to defend the indefensible.”[26] 74.No proper grounds have been put forward for the appeal court to disturb the findings of primary fact of the BDT, which are based on its assessment of the credibility of the witnesses. As for the assertion there was no evidence to suggest that the Comment in Post 8 (“So that is why! No wonder no wonder!”) was made by Ms Chan, the BDT is entitled to reject Ms Chan’s evidence that neither she nor her brother had put up the Comment. As rightly pointed out by Mr Corlett, Post 8 comprising the Madam Peck Article and the Comment appeared on Ms Chan’s personal Facebook account and were seen by Mr Tsang personally[27]. The BDT found Mr Tsang a “frank, forthright and truthful witness”[28]. There is sufficient evidence for the BDT to infer that the whole of Post 8 was put up by Ms Chan on her Facebook page. 75.We reject Grounds 10, 11 and 16. Grounds 15 and 17 – whether Post 8 was in breach of paragraph 4.1(b)(iii) of the Bar Code 76.The Madam Peck Article accused former Chief Justice Andrew Li of misconduct in relation to the judgment of the Court of Final Appeal in Albert Cheng & Anr v Tse Wai Chun (2000) 3 HKCFAR 339[29]. In particular the former Chief Justice was accused of: failing to recuse himself for complicit of interest despite being “best buddies and close friends” with Albert Cheng; influencing the composition of the bench; “twisting the law” to find for Albert Cheng; and breaching professional ethics. 77.On appeal, Ms Chan contended this was merely a “gossip article” in a newspaper column and was “simply rather boring and dull” to legal practitioners. The Article merely questioned a possible conflict of interest of a former judge in a past concluded case. She argued that the Article was published in a newspaper, included in a book which was sold and had been uploaded to the internet for many years, without damaging the administration of justice or undermining public confidence in the administration of justice. The BDT failed to explain why re-posting the Article would suddenly and objectively have the alleged effect and why merely forwarding the Article was sufficient to constitute professional misconduct. She claimed this was “legitimate speech monitoring the operation of the judiciary and upholding judicial fairness”, and there was no evidence that the contents of the Article were false, inaccurate or maliciously fabricated. 78.The BDT took the view that by re-posting this Article of more than 6.5 years old at a time that was difficult and turbulent in Hong Kong society, the intention of Ms Chan could have been nothing other than to create prejudice against the administration of justice or to otherwise diminish public confidence in the administration of justice. The Article cast serious imputations and innuendoes on the integrity and fairness of a former Chief Justice. Ms Chan has added to the gravity of the Article by the Comment, which endorsed the views, imputations and innuendoes in the Article. The BDT concluded that the combination of the re-posting of the Article and the addition of the Comment was clearly likely to diminish public confidence in the administration of justice[30]. 79.The BDT is entitled to come to this view and was plainly right in doing so. As a member of the legal profession and a practising barrister, she re-posted an article that was clearly disparaging to the former head of the judiciary without any foundation in fact and giving her comment of endorsement. By the time Post 8 was posted on her Facebook page, she was already aware that some members of the public had lodged complaints with HKBA in relation to postings on her Facebook account. The degrading comments uncorrected by response from the judiciary (the traditional view being that judges and the judiciary do not speak out in defence of their decisions or defend themselves publicly against unfair and inappropriate criticism[31]) might leave members of the public reading the post with the impression that the administration of justice in Hong Kong had been in disarray. This is clearly a matter of concern to the legal profession and the governing body of barristers. She had engaged in conduct prejudicial to the administration of justice or otherwise likely to diminish public confidence in the administration of justice and is plainly in breach of paragraph 4.1(b)(iii) of the Bar Code. 80.We reject Grounds 15 and 17. Grounds 1, 4, 5 and 25 – errors, improper and/or unfair conduct of the BDT proceedings 81.These grounds attacked the BDT of making serious errors in the apparent omissions and inconsistencies in the Decision and the Decision on Sentence and Costs, in that no finding of guilt or otherwise was made as regards Complaint 3 in respect of Post 7, and that sentence was imposed only in respect of Complaints 4 and 5 despite the earlier finding of guilt as regards Post 7 in Complaint 2. It was contended that these errors are not merely an administrative oversight, but the entire deliberation and decision-making process constituted serious error, impropriety and injustice. 82.Ms Chan repeated her testimony before the BDT that this was not a genuine disciplinary inquiry and accused the HKBA of participating in the process of bullying, doxxing and persecuting ‘patriots’ during the social unrest in 2019. She reiterated the chronology of various attacks against her and her family members ever since she took up the prosecution in the Au case and attacked the SCD chairman Mr Shum in his handling of the complaints against her and accused him as “completely lacking in integrity” and having “improperly interfered with judicial proceedings and damaged Hong Kong’s judicial system” in making inquiries about her conduct as prosecuting counsel in the Au case behind her back. She complained that Mr Shum should not have pressed her to respond to the complaints before the Au case was finally concluded and alleged that he had erroneously failed to recuse himself, violated the principles of natural justice and clearly adopted double standards in the handling of complaints. She asserted that these were all “legitimate grounds” of defence, which were completely disregarded by the BDT without analysis. She took issue with the BDT’s view that the allegations against Mr Shum had taken the Bar Council and the BDT by surprise, as she had disputed the authenticity of the alleged posts and Mr Shum should have been called as a witness as he had provided some of the posts to Mr Tsang. 83.We do not think any of these grounds are of merit. She ignored the reminder by the BDT at the hearing that her ventilation of grievances against the Bar Council was peripheral and had nothing to do with the Complaints she was facing or the task at hand for the BDT[32]. Posts 1 to 7 predated her taking up of the Au case and none of them had any connection with the case. Even when the Au case was truly over with the determination of the appeal against conviction and the review against sentence, she did not see fit to respond to HKBA regarding the complaints[33]. 84.We see no reason to differ from the BDT that the attacks against Mr Shum came as a surprise. The BDT noted that at one time Mr Corlett was contemplating at the conclusion of Mr Tsang’s evidence to call Mr Shum but did not do so as at that time there were no personal attacks on Mr Shum accusing him of behaving in an unjust and dishonest manner and attacking his integrity[34]. The BDT saw the attacks against Mr Shum as sweeping and unsubstantiated[35]. We agree. 85.As for the apparent omissions and inconsistencies in the Decision and the Decision on Sentence and Costs, they do not warrant the wholesale attack on the propriety of the entire process of investigation, deliberation and decision making. We are satisfied that Ms Chan was dealt with fairly throughout the whole process, as apparent from the above narrative of relevant matters in the investigation of the complaints and the disciplinary proceedings. 86.Grounds 1, 4, 5 and 25 are rejected. Grounds 18, 22, 23 and 24 – errors in imposing various sanctions 87.Ms Chan challenged the power of the BDT to impose the sanction of publishing the Complaints, the Decision, the Decision on Sentence and Costs; providing a copy of the aforesaid documents to various bodies; and making the same available to the public on request. These forms of sanction are clearly within the power of the BDT under section 37(g) of the Legal Practitioners Ordinance, which provides that the BDT may “make any other order it thinks fit”. 88.She also challenged the propriety of the above forms of sanction, contending that the convictions on Complaints 4 and 5 were among the “most minor breaches of disciplinary conduct” and the sanction was disproportionate to the convictions. We do not agree with this. The BDT found the actions of Ms Chan in respect of Complaints 4 and 5 “deliberate and premeditated”, they are serious charges as Post 8 cast serious imputations and innuendoes on the integrity and fairness of a former Chief Justice of Hong Kong, and this is not a case of an inexperienced barrister making an error of judgment or someone acting impulsively[36]. It is important that members of the legal profession and the general public understand that such conduct from a member of the Bar is wholly unacceptable. 89.We think it is entirely appropriate to impose the sanction to publicise the Complaints, the Decision and the Decision on Sentence and Costs. This is to demonstrate to members of HKBA as well as to the society generally, the determination of the governing body of barristers to enforce appropriate standards of conduct[37]. A principal purpose of the BDT’s jurisdiction in relation to sanction is the preservation and maintenance of public confidence in the profession of barristers; if members of the public feel that improper behaviour on the part of barristers is left unchecked and they are not held accountable in a suitable manner, that confidence will be eroded[38]. We do not consider the sanction in this regard was disproportionate to the aim of maintaining public confidence in the profession. 90.This leaves the penalty imposed of $40,000. As explained in the Decision on Sentence and Costs, this was for “her deliberate and uncooperative attitude throughout these proceedings”[39]. The BDT also remarked that “throughout the investigations by the [Bar Council] into the Complaints and in the course of the Tribunal hearings, [Ms Chan] has adopted what can only politely be described as an antagonistic, uncooperative and at times belligerent attitude towards her own professional body, and at times even with this Tribunal.”[40] 91.We have no reason to disagree with the remarks of the BDT regarding Ms Chan’s uncooperative attitude throughout. However, we think it is wrong in principle to fine her for this attitude. If time was wasted due to uncooperative behaviour on her part, the appropriate order is to penalise her in costs, on a party and party basis, or, in a bad case, on an indemnity basis. 92.We allow the appeal in respect of Ground 18, which relates to the impropriety of imposing a fine for uncooperative behaviour. Grounds 22, 23 and 24 are rejected. Grounds 7, 14, 20 and 21 – errors in respect of the costs ordered 93.These grounds relate to the costs of and occasioned by the adjournment on 5 December 2022 and the costs of the entire proceedings. 94.Ms Chan repeated her submissions before the BDT and contended that the adjournment was caused entirely by the Bar Council’s fault. Notwithstanding its clear confirmation on 19 May 2022 that it would not call any witness, the Bar Council requested to call Mr Tsang on 5 December 2022 without prior notice to her. She had clearly indicated in her two submissions for the disclosure application that she would dispute the authenticity of the alleged posts and that the Bar Council had to prove the chain of evidence. It was wrong for the Bar Council and the BDT to allege that she only raised the dispute over authenticity on the first day of the hearing. 95.She asserted that the order requiring her to pay all the costs and expenses of the proceedings clearly demonstrated that the BDT was unfair and biased. She was acquitted of Complaints 1 to 3 and found guilty of only Complaints 4 and 5, and of the eight alleged posts only one resulted in conviction. She repeated her submissions below that costs should be ordered proportionally. 96.We have related in detail the relevant events in the process of investigation, the discovery application and the first day of hearing on 5 December 2022. For the reasons mentioned above, we agree with the BDT that prior to the first day of hearing, she had not indicated that authenticity of the alleged posts was disputed by providing a basis that she did not post them or that they were not taken from her Facebook account. The issue of the chain of evidence was not made clear until after Mr Tsang testified and when Ms Chan herself gave evidence. The BDT is correct is rejecting her contention that the adjournment was due to any fault on the part of the Bar Council. The BDT was alive to the arguments on both sides regarding the costs of the adjournment[41]. There is no basis to interfere with the discretion of the BDT in ordering her to bear the costs of and occasioned by the adjournment of the hearing. 97.As for the costs of the entire proceedings, it is within the discretion of the BDT to order her to pay those costs. It does not follow that just because the BDT found only some of the Complaints proved to the required standard but not others, the Bar Council must be deprived of part of the costs. Under the established principles, in an appeal against the discretionary exercise on costs, the appeal court would not interfere with the discretion of the primary judge, who would have greater familiarity with the proceedings, unless there is some error in principle, or that the judge had failed to take into account relevant matters, or had taken into account irrelevant matters, or that the exercise of discretion fell outside the range within which reasonable disagreement is possible. The onus is on the party challenging the costs order to establish one or more of the above situations to justify appellate interference. 98.Here the BDT was satisfied “in all the circumstances” it is appropriate to order Ms Chan to pay the costs of the entire proceedings[42]. Although the BDT has not mentioned specifically what those circumstances were, it is not difficult to deduce from its two decisions what they could be. The BDT found the complaints in respect of Posts 1 to 6 not proved to the necessary standard owing to the lacuna in the chain of evidence, “even if there is a high index of suspicion that the other 6 posts complained of were more likely than not posted on and extracted from her Facebook account”[43]. The actions of Ms Chan in respect of the post of which she was convicted were deliberate and premeditated and she has shown no signs of regret or remorse for her actions[44]. 99.The threshold for interfering with the exercise of discretion on costs is simply not met. There is no basis for the appeal court to interfere with this exercise of discretion of the BDT. 100.Grounds 7, 14, 20 and 21 are all rejected. The remaining grounds – Grounds 2, 8, 9, 12 and 13 101.Ground 2 alleged that the BDT erred in finding that the first letter of the SCD to Ms Chan dated 23 April 2020 informing her of complaints regarding the postings on her Facebook arose out of a complaint form signed by Yuen Hoi Man. Mr Tsang had said under cross-examination that copies of Posts 1 to 7 being Annex 1 and Annex 2 to that letter were provided to him on 13 April 2020 by Mr Shum who did not disclose the provenance of these postings. Mr Chiu submitted that the evidence of Mr Tsang showed that the BDT’s finding was in error and this had a “clear bearing on the impartiality and procedural fairness of the [SCD] in investigating the complaints”. 102.The complaint form of Mr Yuen dated 8 April 2020 was adduced in evidence. Mr Tsang said in §6 of his witness statement of 5 December 2022 that Mr Yuen’s complaint form was received on 8 April 2020 at around 11:25 am and attached to that complaint form was, among others, a copy of Post 7. Mr Tsang also mentioned that at 2:52 pm on the same day, HKBA received a complaint from Lo Che Hon and attached to the emails was, among others, a copy of Post 2. In the Decision at §§45 to 56, the BDT gave a detailed account of Mr Tsang’s evidence regarding the directions he received from Mr Shum on the investigation of the seven relevant posts and which of them were given to him by Mr Shum. It could hardly be said that the BDT had made an error in this regard, this is an abject attempt to find fault with the Decision. The sustained attack on the SCD is of no consequence. 103.The complaint in Ground 8 is that the BDT erred in admitting the ‘cut-and-paste’ copies of the alleged eight posts on Ms Chan’s Facebook account. This is again an attack on Mr Shum who provided copies of some of the posts to Mr Tsang. As mentioned, this attack is of no consequence. 104.Ground 9 alleged the BDT erred in finding that Mr Tsang was a frank, forthright and truthful witness in that he “prevaricated” between December 2022 and May 2023 over important events that took place in April 2020. Full reasons were given in §§118 to 121 of the Decision why his evidence was accepted. This is a hopeless challenge to BDT’s assessment of a witness. 105.Ground 12 sought to challenge another finding of fact of the BDT in rejecting Ms Chan’s evidence that as the prosecuting counsel in the Au case, she could not make any response to the SCD until the case was over. A number of reasons for rejecting her evidence in this regard were given in the Decision at §§75 to 80 and 125. In seeking to attack this finding of fact, Mr Chiu did not engage with the reasons of the BDT. Merely repeating Ms Chan’s submissions below does not show in any way that the BDT had erred in rejecting her evidence. 106.Ground 13 alleged that the BDT erred in drawing adverse inference against Ms Chan for failing to disclose in advance all the particulars of her defence and wrongly used this as the basis to find guilt that the alleged posts were put up by her. The rejection of Ms Chan’s evidence for not responding to the inquiries of the SCD in a timely or satisfactory manner could not be used to prove guilt. Mr Chiu prayed in aid the rule that lies usually affect credibility only and, as a matter of law, a lie in itself cannot be used as proof of guilt and at most it could only be used to corroborate independent evidence of guilt under certain criteria[45]. Furthermore, the BDT only focused on the question whether there was a lacuna in the chain of evidence, whereas Ms Chan had raised the pertinent issue that her Facebook account was a family account to which all her family members and even her former boyfriend could place posts on her Facebook page. This aspect of her evidence was not challenged in cross-examination, nor did the BDT make any finding negating such evidence. Mr Chiu submitted that whilst the BDT found there was a complete chain of evidence that Posts 7 and 8 were posted on her Facebook, there was no evidence that they could only be posted by Ms Chan “as there were others who could do so”. He contended that the BDT completely failed to address this material issue. 107.We do not think the above contentions are of merit. 108.We examine first that aspect of Ms Chan’s evidence which the BDT considered did not stand up to scrutiny to see whether it would meet the criteria for such evidence to be used to corroborate or support an inference of guilt. This related to the reason she gave for not being able to respond to inquiries of the SCD until the Au case was truly concluded. As mentioned when we dealt with Ground 12, the BDT gave cogent reasons for rejecting her evidence. Her evidence in this regard was deliberate and there is no innocent explanation for it. It related to a material issue in the case. As found by the BDT, her explanation that because of the Au case being ongoing she could not inform the SCD that the seven posts complained of were fabricated was “simply incredible and lacking in candour and truth”. The BDT considered it highly unlikely and improbable that when a professional person receives a complaint from her professional body, which she knew was fabricated and would provide a complete defence to the complaint, would choose to let the matter proceed to a full hearing rather than alert her professional body that they were proceeding on an erroneous basis[46]. 109.In our view, the aforesaid evidence of Ms Chan rejected by the BDT as “simply incredible and lacking in candour and truth” clearly met the criteria for such evidence to be used to provide corroboration for an inference of guilt. 110.The inference of guilt was not drawn solely from the above evidence, as suggested by Mr Chiu. The above evidence should be considered in conjunction with other evidence that the Bar Council could rely on as providing support for an inference of guilt in that the posts were not fabricated. There was the evidence of Mr Tsang, which was accepted by the BDT, that he had personally checked the Facebook account and had seen Posts 7 and 8. The BDT was also satisfied, from the evidence of Ms Chan and Mr Chan in this regard[47], it was more likely than not that it was Ms Chan who re-posted the Article in Post 8 and it was she who added the Comment in Post 8. 111.As reasoned in §133 of the Decision, however incredible or far-fetched may be the evidence adduced on behalf of Ms Chan, the crucial question at the end of the day was whether it was established that any, and if so which, of the alleged seven posts the subject matter of Complaints 1 to 3 were seen on and extracted from her Facebook page. It was in this regard that the BDT found a lacuna in the chain of evidence in respect of Posts 1 to 6 and on that basis dismissed those Complaints relating to Posts 1 to 6. The BDT did find Post 7 proved to the requisite standard as there was no lacuna in the chain of evidence[48]. We do not think the reasoning of the BDT could be faulted. 112.Mr Chiu contended that the BDT had failed to consider a material issue in that there were others who could put up Posts 7 and 8. This suggestion seems to us to be far-fetched. In any event, in respect of Post 8, with which this appeal is concerned, it is Ms Chan’s case that the re-posting of the Article was not done by other people but by her brother. 113.For all the above reasons, we reject Grounds 2, 8, 9, 12 and 13. Conclusion and costs 114.Of the 25 Grounds advanced on behalf of Ms Chan, she has failed on 24 Grounds, the only exception being Ground 18 which relates to the penalty of $40,000 imposed for her deliberate and uncooperative attitude throughout these proceedings. The appeal is allowed to this limited extent, all the other Grounds are dismissed. 115.In light of the very limited extent to which this appeal is allowed, the Bar Council should be regarded as the successful party overall. We make a costs order nisi that Ms Chan is to pay the Bar Council 90% of its costs of this appeal. The order nisi will be made absolute if there is no application to vary within 14 days hereof. 116.As we have indicated at the conclusion of the hearing, there will be a summary assessment of the costs of the appeal. We direct the Bar Council to lodge a statement of costs within seven days hereof, with leave to Ms Chan to respond within seven days thereafter of no more than two pages.
Mr Marc Corlett and Ms Chelsea Lau, instructed by Wilkinson & Grist, for the Applicant (Respondent) Mr Chiu Chun Wan Simon and Ms Wong Kam Hing Fanny, instructed by Chui & Lau, for the Respondent (Appellant) [1] Chaired by Mr Kumar Ramanathan SC, with Ms Jolie Chao and Dr James Chiu as members. [2] Prior to joining the Bar in 2016, Ms Chan had commenced her legal career in the Department of Justice in 1998. [3] Messrs Chui & Lau (“C&L”) initially acted for Ms Chan. She notified the BDT on 15 November 2022 she would act in person at the hearing and requested for proceedings to be conducted in Chinese. Arrangements were made for an interpreter to attend the hearing scheduled to commence on 5 December 2022. [4] Complaints 1 and 2 are in the alternative. See transcript of proceedings on 7 December 2022, [C/407] line 13 to [C/408] line 22; and Decision, §141. [5] Decision, §§137 to 138 [6] Decision, §§139 to 141 [7] Decision, §§142, 144 to 146 [8] Decision on Sentence and Costs, §20 [9] Decision on Sentence and Costs, §21 [10] They were brought to the attention of the chairman of the BDT by the Bar Council’s solicitors Wilkinson & Grist (“W&G”) on 21 August 2025, after Ms Chan has filed a notice of appeal against conviction and sentence. C&L wrote to the chairman of the BDT on 9 September 2025 objecting to the BDT doing anything about the matters raised. [11] Nicholas F F Pirie v The Bar Council, CACV 744/2000, 21 September 2001, at §§52 to 53, per Mayo VP, citing Aktieselskabet Dansk Skibsfinansiering v Wheelock Marden & Co Ltd & Ors [1998] 3 HKC 153 at 162C to F. Mayo VP was in the minority but the general guidance on appellate interference in an appeal against a finding of fact was not in dispute. [12] Judgment on the appeal against conviction was given on 20 January 2021, with reasons for judgment handed down on 3 February 2021. Judgment on the application for review of sentence was given on 23 March 2021, with reasons for judgment handed down on 23 April 2021. [13] In reply to the chairman’s question why she did not do so, she said she had understood she did not need to file her opening submissions until after the Bar Council had finished adducing evidence. See transcript of proceedings on 5 December 2022, [C/381] lines 1 to 5. [14] Email of W&G to BDT chairman dated 19 May 2022 [15] Mr Tsang later testified at the hearing that Post 6 was not included in the Stand News article and that Posts 1, 4, 5 and 6 were given to him by Mr Shum on 14 April 2020, see Decision at §§48, 56. [16] Disclosure Ruling, §§14, 15 [17] Opening submissions of Bar Council dated 21 November 2022, §8; transcript of proceedings on 5 December 2022, [C/381] lines 9 to 11, [C/386] lines 9 to 12, 22 to 24. She maintained this position at the initial stages of the trial. In answer to the direction question from the BDT whether it was her case that the alleged posts were never put on her Facebook page or that somebody had put them there but she was not aware of it, she said: “I dispute the authenticity of those posts, including questions as to whether they actually appeared on the alleged Facebook or any one but me put them there. Well it is for you to prove that.” See Decision, §52. [18] Transcript of proceedings on 5 December 2022, [C/382] lines 12 to 13, [C/382] line 21 to [C/383] lines 2, 10 to 14, [C/384] lines 17 to 19, 22 to [C384] line 2; Decision, §§30, 34. [19] Decision, §132 [20] Transcript of proceedings on 5 December 2022, [C/387] lines 21 to 24 [21] Decision, §§50 to 52, 62, 81 to 83, 134 [22] Decision, §122 [23] Transcript of proceedings on 20 June 2023, [C/517] line 12 [24] Decision, §§127 to 128 [25] Decision, §129 [26] Decision, §145 [27] Decision, §45 [28] Decision, §118 [29] The Article was dated 2 December 2013. The judgment of the Court of Final Appeal was handed down on 13 November 2000. [30] Decision, §144; Decision on Sentence and Costs, §§13 to 14. [31] Secretary for Justice v Persons Unlawfully and Wilfully Conducting Etc (1847/2020) [2020] 5 HKLRD 638 at §53 [32] Decision, §63 [33] Decision, §87 [34] Decision, §115. See also §§50 to 52. [35] Decision, §114 [36] Decision on Sentence and Costs, §§13, 15 [37] Disciplinary and Regulatory Proceedings (10th ed), by Dame Alison Foster et al, §10.17 [38] Disciplinary and Regulatory Proceedings, §§10.22 to 10.23 [39] Decision on Sentence and Costs, §21(b) [40] Decision on Sentence and Costs, §17 [41] Decision on Sentence and Costs, §§5(b), 6(d), 10, 11 [42] Decision on Sentence and Costs, §21(c) [43] Decision, §137 [44] Decision on Sentence and Costs, §§13, 18 [45] Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113 at §§32, 34 [46] Decision, §§122 to 125, 130 to 132 [47] Decision, §§84, 90, 94, 95, 97, 126 to 129, 142, 145 [48] Decision, §§134 to 139 |
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