Re James Peter Chandler

HCMP003721/1990

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Coram: Hon. Sir Derek Cons, Ag. C.J. in Court

Date of hearing: 18 July 1991

Date of delivery of judgment: 19 July 1991

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JUDGMENT

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Sir Derek Cons, Ag. C.J.:

This is an application by way of notice of originating motion by James Peter Chandler for admission as a barrister of the Supreme Court under s. 27A of the Legal Practitioners Ordinance, Cap. 159. The section embodies a recent amendment providing for the admission, in appropriate circumstances, of practitioners qualified in other jurisdictions.

2. The motion was first brought before this court on the 3rd of April, but was adjourned at the request of counsel representing Mr. Chandler. Although not granted for that purpose the adjournment has obviated difficulties that may otherwise have then arisen from the limitation as to numbers imposed by subs. (2). It is not disputed that Mr. Chandler fulfils all the requirements of subs. (1). The application is however opposed by the Committee of the Hong Kong Bar Association, which has a right to be heard on the question by virtue of s. 33 of the Ordinance. The position taken by the Committee is supported by the Attorney General.

3. Mr. Chandler was born in England in 1944, taken to New Zealand at the age of seven when his father emigrated with the rest of his family to Wellington. Educated in Wellington at Onslow College and Victoria University, he qualified and was duly enrolled as a solicitor of the Supreme Court of New Zealand in 1967, and then as a barrister in 1968. Following four years as a commissioned officer in the New Zealand Army Legal Services he was employed with a private firm in Tauranga for two years before accepting an offer to come as crown counsel to Hong Kong. Working for the same firm in Tauranga was a certain Warwick Reid, who also subsequently came to Hong Kong as crown counsel. Mr. Chandler, Mr. Reid and their respective families became and remained thereafter firm friends.

4. Mr. Chandler was successful in his new career in Hong Kong. After only two years he was promoted to senior crown counsel, then assistant principal, deputy principal and finally principal crown counsel in October of 1987. During the course of his career he received one "admonishment" and one "reprimand", for social indiscretions not connected with official duties and which would be long forgotten had it not been for the present proceedings. At the same time his work has been once commended by a judge of this court and four times by members of the Independent Commission Against Corruption. In February last year he was holding the office of deputy crown prosecutor.

5. He appears to have been well thought of within the legal profession itself. Complimentary affidavits have been filed on his behalf by three members of the Bar and one solicitor. He has similar support from outside the profession, in particular the court received, shortly before the adjourned hearing and independently of Mr. Chandler, a letter from the parents of a teenage murder victim who spoke of his compassion and warmth and the personal dedication exhibited by him in the subsequent prosecution of the culprits.

6. The opposition to his admission rests upon a flaw of character revealed by his conduct early last year. He was on leave in Thailand, returning to give evidence for the defence in what at the time was a notorious criminal proceeding. It had been agreed with Government that he could return to Thailand to continue his leave when his evidence had been completed. Unfortunately, due to a combination of circumstances and in particular very heavy rainfall, he was unable to catch the Saturday flight to Thailand as he had arranged and decided instead to spend the weekend in Manila, returning to Hong Kong on the Monday to continue his original flight. That Saturday night in Manila, and by absolute chance, he met Warwick Reid in a city nightclub. Mr. Reid was then a wanted man in Hong Kong, having absconded while on bail granted by the Independent Commission Against Commission following his arrest upon suspicion of offences of corruption. In Hong Kong at that time his whereabouts were generally thought to be unknown. Yet Mr. Chandler made no effort to acquaint the authorities here with the fact of his presence in Manila, despite the obvious opportunities of the telephone and his meeting with another crown counsel during his transit through Kai Tak the following morning.

7. Mr. Anthony Neoh, who appears for the Bar Committee, emphasizes that Mr. Chandler must have been well aware from his knowledge of the relevant legislation that there was reasonable suspicion that Mr. Reid was indeed guilty of corruption, that his flight to Manila indicated an intention to evade prosecution if possible, that inevitably there was a warrant out for his arrest, and that should his return to Hong Kong be ever achieved there was a real probability of his prosecution. To those factors I would add the loudly voiced public concern that Mr. Reid had apparently managed to escape successfully from this jurisdiction.

8. The upshot of the non-disclosure, and I quote from a letter written by the Attorney General on the 23rd of March, was that:

"On 5 December 1990 Mr Chandler's service (with the Crown) was brought to a premature end. That was achieved by way of mutual resolution of his contract."

Mr. Chandler had been interdicted from his duties since the 30th of August. The Attorney General further explained:

"My Law Officers and I took the view that in failing promptly to report his meeting with Warwick Reid ... Mr Chandler had fallen short of the proper professional standards which are expected of lawyers in the service of the Crown; and that his continued employment in my Chambers was unacceptable."

9. It is pertinent, I think, to note that the Attorney General must have taken the view that disciplinary proceedings were not necessarily appropriate, although I assume he would have felt obliged to initiate them had not Mr. Chandler accepted mutual termination of his contract with its naturally attendant benefits. Since that time Mr. Chandler has been unemployed.

10. Mr. Charles Ching, who appears for Mr. Chandler, has submitted that there was in fact no duty of any kind imposed upon him to make a report, other than perhaps some moral obligation to the Hong Kong Government as his employer. With every respect that seriously understates the position. The whereabouts of Mr. Reid was obviously a matter in which the authorities in Hong Kong would be extremely interested, whatever the position might be with regard to extradition. As a senior officer in the Government's own Legal Department it was, in my view, clearly his duty to acquaint the authorities with the situation. I accept that having regard to the long friendship between the families the quirks of chance had placed Mr. Chandler in a most unenviable position. I accept that, as he says, he agonized long over what he should do. But I also have to accept that in the end he made a deliberate and conscious decision which did not match up to the standards that could properly be expected of him by the profession which he now seeks, and would otherwise have been entitled almost as a right, to join.

11. Two questions arise. The first is whether that single lapse, set against 16 years of otherwise dutiful service to the community, is sufficient to warrant his exclusion from that profession for the rest of his life, which is the inevitable consequence of the dismissal of this motion by reason of para. d(ii) of subs. (1) of s. 27A. A barrister actually suspended or disbarred would not be so harshly treated. Provision is made for possible reinstatement by the Chief Justice or the Court of Appeal under respectively s. 29(3) and s. 38 of the Ordinance. Mr. Chandler would have no such opportunity. The second question is whether admission of a man capable of compromising his clear duty to the administration of justice would undermine public confidence in the Bar and ultimately in the administration of justice itself.

12. The two questions come to much the same, being merely different facets of the same stone, the first reflecting the approach adopted on behalf of Mr. Chandler and the second reflecting the concern expressed by the Bar Committee. In my judgment the answer to both is "no". I am not satisfied that Mr. Chandler's conduct, serious though it was, illustrates a permanent unsuitability for the Bar. The consequences so far must surely have driven home the necessary message beyond any possibility of its ever again being ignored or overlooked. To add further what would in effect be lifelong disbarment in this jurisdiction would, in my view, be unnecessary and excessive punishment. Had he done it for himself, had he put his own interest before his duty, different considerations would have arisen. But that is not the position, and it is ironic that loyalty to colleagues and friends would normally be regarded as a virtue, one which, I am sure, in other circumstances the Attorney General would encourage between members of his Chambers. In the instance it was misguided loyalty, but it is nevertheless a factor that I bear in mind and which I feel would also be borne in mind by the general public. I am confident that if the public are informed fully as to the circumstances they will take the same view as I do. They will not take the admission of Mr. Chandler as a lowering of the accepted standards and their confidence in the integrity of the Bar as a whole will not in any way be diminished.

13. For these reasons I propose to make the order in the terms of the notice of motion, but shall adjourn for a few minutes, as was suggested yesterday, to enable Mr. Chandler to robe and properly prepare himself for the usual and formal invitation to take his place within the Bar of this court. I shall resume when I am informed everything is ready.

Representation:

Charles Ching, Q.C. & William Stone (M/s Lam, Yim & Ng) for the applicant

Anthony Neoh, Q.C. & Allen Yau (M/s C.Y. Kwan & Co.) for Bar Association

Robert Kotewall, Q.C. & K.T. Thong for Attorney General