Re John Richard Duffy

HCMP002579/1987

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Coram: Hon Cons, V.-P.

Dates of hearing: 16 and 21 December 1987

Date of delivery of judgment: 21 December 1987

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JUDGMENT

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Cons, V.-P.:

1. Mr. John Richard Duffy was admitted as a solicitor of the Supreme Court in 1968 From then on he practised as such, first within a partnership, and then on his own account, for some 10 years. In December 1978 he was ordered by the then Chief Justice to be struck off the roll of solicitors following conviction on four counts of buggery and three of gross indecency. The record indicates that the application to strike off had been made at the instance of the Law Society and relied solely upon the fact of the convictions.  No other matters were referred in the supporting affidavit.

2. Mr. Duffy was released from prison in October 1980. Since then he has been employed by two companies in positions where he has been able to make use of his legal expertise. The first was in Taiwan, until 1982; the second, which should have terminated last month, was in Bangkok.  He has been offered a similar position with a group of companies operating in both Hong Kong and Shenzhen. To accept this position would require him to work to some extent here in Hong Kong. The nature of his duties would then bring him into conflict with the provisions of the Legal Practitioners' Ordinance Cap. 159.  He therefore applies under Section 5(3) of that Ordinance to have his name replaced on the roll. I am told that if he is successful he would want at some time to resume general practice as a solicitor. He is prepared to give an undertaking that he would not do so within two years.

3. Section 5(3) is in these terms -

"        The Chief Justice may, if he thinks fit, at any time order the Registrar to replace on the roll of solicitors the name of a solicitor whose name has been removed or struck off the roll of solicitors."

Section 36 of the Supreme Court Ordinance Cap. 4 provides for the authority of the Chief Justice to be exercised by any judge of the Supreme Court.

4. In England and Wales the power to restore to the roll the name of a former solicitor who has been struck off is vested in the Solicitors Disciplinary Tribunal, subject to an appeal to the Master of the Rolls. Having regard to his decisions the Tribunal has formulated for itself the following guidelines⁽¹⁾ –

"(i)         The striking off of a solicitor can have a punitive element.  It can also have an element of protection for the public. It always bas an element of protecting the good name of the profession and this element must be paramount.

(ii)        If the paramount element of protecting the good name of the profession ultimately causes injustice to an individual who has broken the professional rules and that injustice is unavoidable in the individual case it has to be accepted as the price of maintaining the reputation of the profession and the public confidence in it.

(iii)        Where an applicant has been convicted of a criminal offence - particularly one involving dishonesty - the onus falling on him to demonstrate that his restoration to the roll could not damage the reputation of the profession as a whole, is a very heavy one.

(iv)        The essential test to be applied by the Tribunal, however fit and proper the applicant may demonstrate he is, is that of the public interest. The Tribunal is obliged to regard restoration to the roll as an exceptional circumstance and can do nothing, when granting an application, which will damage public confidence in the profession."

5. I would respectfully adopt those guidelines as being equally suitable for this jurisdiction and not inconsistent with such Past practice as there has been.

6. Two affidavits, apart from those of Mr. Duffy himself, have been filed in support of the application. The second exhibits letters from one leading counsel and four reputable solicitors. In general the deponents and the writers speak of knowing no reason why Mr. Duffy should not now be restored to the roll and indicate that they would find no embarrassment in dealing with him professionally if that were done. In three instances tribute is paid to his professional competence and honesty. No other evidence has been placed before me save the trancript of the proceedings in 1978.

7. It has to be accepted that while in the normal run of society there are few, if any, crimes which are of such a nature that the culprit cannot eventually be accepted back into the position which he formerly held, having paid the penalty and demonstrated by his subsequent conduct that he is determined to pursue an honourable and faultless future, the public interest in maintaining, the reputation of a particular profession and the public confidence therein makes it more difficult for a former profession man to obtain restoration to the appropriate register.

8. Counsel for Mr. Duffy has urged strongly that the conduct in question was in no way related to his practice as a solicitor that it was a personal failing in his private life and that as such it did not reflect upon his profession and should not stand in the way of his resuming that profession. However it is apparent from the record that Mr. Duffy did not in fact so segregate his personal and professional lives. I quote from the facts outlined by prosecutinn counsel and agreed to at his trial -

"        The third charge relates to KEUNG Wai-tak, aged 15 years, who was a former client of the defendant and had heen represented by him in March of 1978. The defendant was again representing KFUNG in July of this year when KEUNG, accompanied by KAN visited the defendant at his Tsimshatsui office.  (I interpose here that Kan was the boy with whom the counts of gross indecency had been committed and who seems to have been used by Mr. Duffy as a means for introducing other boys. ) The defendant advised them to visit him at his home that evening, and they did so. After dining out with the defendant and discussing KEUNG's case, KEUNG and KAN at the defendant's invitation returned to his home. to sleep. The defendant and the two boys slept in the defendant's bed that evening and the defendant committed the act of Buggery with KEUNG, KEUNG taking the passive role. The following morning the defendant gave KEUNG $50. About one week later at the defendant's invitation KEUNG went to the defendant's home, stayed the night, there with the defendant, committed the act of Buggery with KEUNG, KEUNG again as the passive partner. On this occasion the defendant gave the boy $30 and indicated that he would not charge him costs for acting for him in his court case."

I find it difficult to envisage anything more likely to cause grave apprehension in the mind of the general public than the though that the pursuit of legal advice or representation by a young boy might lead him into a similar situation.

9. The two affidavits filed by Mr. Duffy, in addition to setting out matters to which I have already referred, confirm that there has been no further conviction in the intervening years, nor has any suggestion been made as to his honesty or financial integrity.

10. The Law Society, which by counsel resists this application generally, goes on to suggest that the two affidavits do not go far enough. They observe that Mr. Duffy did not submit himself to a course of therapy in the United Kingdom as his counsel at the trial has suggested, and that it is impossible for them to evaluate his conduct since release from prison because he has remained all the while outside Hong Kong.

11. To be fair to Mr. Duffy, the course of treatment offered by his counsel was dependant upon a submission that the judge should suspend the inevitable term of imprisonment, but the judge did not. As to his subsequent conduct, while his affidavits do no more than recite the absence of further conviction,  I take it from the mere fact of this application that he intends at the moment to restrain himself from the commission of further criminal acts, at least while he is within the confines of this jurisdiction. Nevertheless, the memory of the conduct that I earlier outlined must still be such that I do not think the general public could now, or even within the next few years, accept with equanimity the restoration of Mr. Duffy to his practice as a solicitor. There would be a significant reduction of the respect in which the public now holds the profession as a whole and a lessening of confidence in its integrity. It may be that the public would not be so concerned with activities related only to a commercial enterprise or group of companies, but there are no provisions for limited reinstatement, and without reinstatement to the roll I do not see how contravention of the Legal Practitioners' Ordinance could be avoided.

12. For these reasons the application must be refused.

(i)     Para. 20. 20 "The Professional Conduct of Solicitors" published by the Law Society

Representation:

Adrian Huggins (M/s Wilkinson & Grist) for the Applicant

Denis Chang, Q.C. and Paul W. Tse for the Law Society