Re A Barrister

HCMP001461/1982

Coram: Roberts, C.J., McMullin, V.P., Li, J.A.

Dates: 11 January 1983 & 14 January 1983

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JUDGMENT

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Roberts, C.J.:

Committee of Inquiry

1. On the 3rd December, 1981, the Committee of the Hong Kong Bar Association applied to the Chief Justice, under section 34 of the Legal Practitioners Ordinance, for the appointment of a Committee of Inquiry to inquire into various complaints of the conduct of Frederick LEE, a practising barrister (the respondent).

2. The Chief Justice, in exercise of the powers conferred upon him by section 34 of the Legal Practitioners Ordinance appointed a Committee of Inquiry, to exercise the functions set out in section 35 of the said Ordinance in relation to such complaints against the respondent as might be laid before the Committee of Inquiry by the Committee of the Hong Kong Bar Association.

3. Complaints were duly laid before the Committee of Inquiry on 30th January, 1982, by solicitors acting on behalf of the Bar Committee. The original complaints were amended by leave on 19th April, 1982.

4. On 3rd February, 1982, the Committee of Inquiry ascertained that the respondent was not legally represented, and therefore gave directions that the hearing of the complaints should begin on 19th April, 1982. This order took into account a letter, dated 9th January, from the respondent in which he stated that he was leaving Hong Kong for two months but was willing to return at short notice if the need arose. He was informed by registered post of the hearing fixed for 19th April, 1982, shortly after the order of 3rd February was made.

5. On 19th April, the Committee sat but the respondent was absent and unrepresented. The Committee therefore adjourned the hearing until the 10th May, taking into account a letter from a firm of solicitors, dated 15th April, in which the latter stated that the respondent had expressed an interest in instructing them to represent him at the Inquiry and asked for an adjournment.

6. Early in May 1982, the Chairman of the Committee of Inquiry received a letter dated 24th April from the respondent, who sought a further adjournment until August 1982.

7. On 5th May, 1982, the Committee of Inquiry refixed the hearing of the complaints for 7th June, 1982. The respondent was informed of the new hearing dates by letter dated 6th May, 1982. The respondent replied to the Committee by a letter dated 26th May, saying that he did not wish to hold up the Inquiry and asking that it should proceed in his absence. He added that he would come back and defend himself in the Court of Appeal if the complaints against him proceeded to that stage. The Committee of Inquiry duly sat on ten occasions between 7th and 21st June, 1982.

History of matter since the report of the Committee of Inquiry

8. The Committee of Inquiry submitted its report to the Chief Justice, dated 31st July, 1982. On 10th August, 1982, the Registrar of the Supreme Court wrote to the respondent at his American address and at an address in London, informing him that the Court of Appeal proposed to consider the Committee of Inquiry's report on 2nd November, 1982.  The letter of 10th August, addressed to the respondent at an address in Kentish Town, London, was returned by the Post Office as unclaimed on 29th October, 1982.

9. Unfortunately, no copy of the letter was sent to Collindale the address which had been given by the respondent as his London address in his letter to the Committee dated 26th May, 1982.

10. On 2nd November, at the hearing before the Court of Appeal, the respondent did not appear and was not represented.

11. The Court of Appeal ordered that the consideration of the report of the Committee of Inquiry should be adjourned to a date to be fixed in January 1983, that Notice of Hearing and the appropriate papers should be sent both to the respondent's address in Collindale, and to his American address and that a telex should be sent to him at his Collindale address, informing him of the new hearing date and that the papers were on their way. These steps were taken by `the Registrar of the Supreme Court on 2nd November.

12. The Registrar's telegram and letter were acknowledged by the respondent in a letter dated 15th November, 1982. In this letter, he also stated that he intended to be legally represented at the hearing on 11th January, 1983, and that he would be calling witnesses.

13. On 12th November, the Registrar wrote to the respondent at his American and Collindale addresses informing him of the date of hearing on 11th January and enclosing copies of the charges and of the report of the Committee. A certificate from the Post Office showed that this letter was delivered to the respondent's address in Los Angeles.

14. By letter dated 7th December, 1982, and received on 14th December, the respondent inquired of the Director of Legal Aid as to whether he would be eligible for legal aid in connection with the hearing before us. By a further letter dated 23rd December and received on 30th December, he informed the Director of Legal Aid that he was in the United States and gave an address at which he could be contacted. He asked the Director to let him know of the latter's decision as to whether or not legal aid would be granted.

15. The Director sent an application form for legal aid to the respondent in December 1982. This was completed and returned to the Director with a letter from the respondent dated 6th January, 1982.

16. The respondent did not attend at the hearing before the Court of Appeal which had been fixed for 11th January. To enable the respondent's application for legal aid to be considered, the Court adjourned the matter until 14th March, making it clear when so doing that further adjournments would not be granted.

17. Notice of the hearing fixed for 14th March was sent to the respondent on 12th January, and received at his London address on 19th January and at his American address on 26th January.

18. On 21st January, the Director, having received the respondent's application for-legal aid, replied to him seeking further information. This letter referred to the hearing date of 14th March. Some of the information was supplied in a letter addressed to the Director and dated 29th January.

19. The Director refused legal aid in a letter dated 10th February and sent to the respondent's American address.

20. The respondent did not appear before us on 14th March. He did, however, send a telegram, addressed to the Registrar, which was handed to the Court just before the conclusion of the hearing on that date. It read as follows -

"Unable to return. Have just airmailed express a detailed written defence and submission for their lordships' consideration. Please place this before court when received.  Many thanks. Frederick Lee."

21. This was the last in a series of failures by the respondent to appear at any hearings, whether before the Committee of Inquiry or before this Court.

22. He has been treated with much consideration by the Committee, which adjourned proceedings on more than one occasion at his request, as this Court has done twice.

23. We saw no reason to grant any further adjournment, on the basis only of a telegram received on the morning of the hearing before us. Even if we had been willing to take written representations of this nature into account, he has had abundant opportunities during the past year, to put forward representations or arguments, to the Committee and to this Court. He has failed to do so, his only representations amounting to various requests for adjournment.

24. We, therefore, proceeded to deal with the matter in the respondents absence.

Summary of evidence

25. The Committee of Inquriy sat to hear evidence on ten occasions between 5th May and 21st June, 1982, when thirty-eight charges of professional misconduct by the respondent were considered and seventeen witnesses gave evidence.

26. CHAN Sek-kwong, about 16 years' old at the time, was convicted of robbery in March 1981 and sentenced to 6 years' imprisonment by a District Court Judge.

27. After his conviction and sentence, CHAN Sek-kwong lodged an appeal and applied for legal aid. Pending his appeal, Chan was detained in Pik Uk Correctional Institution. His elder sister, CHAN Po-sze ("Po-sze") then about 21 years' old, was concerned about her brother's conviction and sentence and wished to engage lawyers on his behalf. She was unemployed at the time and took a job as a nightclub hostess in order to earn sufficient money and pay lawyers to represent her brother.

28. While working as a nightclub hostess, she met MAN Yat-piu ("Man"). Man introduced her to the respondent. In May, 1981, Po-sze and her younger sister, CHAN Po-chun ("Po-chun"), were taken by Man to the respondent's Chambers in the Bank of Canton Building, Central.

29. At this first meeting with the sisters, the respondent said that his fees for handling the case would be $30,000. After some hesitation, the sisters agreed to engage him, and to pay the fees demanded. The respondent said that he required a deposit of $5,000 to be paid the next day.

30. The following day the two sisters returned to his Chambers. They had been unable to raise the $5,000 asked for, but Po-sze brought $3,000 with her in cash, which she handed to the respondent. She asked him for a receipt, which he said he was not able to give as the matter had not been transacted "through a lawyer's firm". The respondent had also warned the sisters that if he was to visit the brother in prison he would require a further $5,000 fee, to which the sisters agreed.

31. On 14th May, the two sisters returned to the respondent's Chambers as a result of a further phone call from him asking if the $5,000 demanded for a visit to the prison was available.

32. On the 14th May, Po-sze handed over $3,000 in cash to the respondent, who took it and asked them not to tell anyone that they had handed cash to him, as that would harm both him and the younger brother.

33. The respondent the asked Po-chun to leave the room. This she did, leaving the respondent alone with the elder sister, Po-sze. He thereupon asked her personal questions and made various sexual advances to her, offering to return part of her fees if she would spend the night with him.

34. Po-sze expressed reluctance, but not outright rejection, fearing to offend him and thereby to prejudice her brother's case. Thereafter, the respondent and the two sisters went to Pik Uk. The two sisters stayed in the waiting room, while the respondent interviewed the brother alone. Having discussed the appeal briefly with the brother, he produced a piece of paper and asked the brother to write on it a statement to the effect that he did not want the Director of Legal Aid to act for him, and that the respondent was to be engaged instead. The brother hesitated, because he was worried about the amount of fees that his family would have to pay. The respondent then told the brother not to worry, as he was a good friend of the elder sister and was not charging any fee. On the basis of this representation, the brother wrote as asked on the piece of paper, on which it was also stated that the brother wished to appoint the firm of Ho & Ng to conduct the appeal.

35. The respondent returned to the waiting room where he told the sisters that he had been obliged to "hoax" the brother into signing the paper by telling him that he was not charging a fee. He asked the sisters not to tell their brother that he was doing so.

36. After the respondent and the sisters left Pik Uk in a taxi, the respondent suggested that the younger sister should leave them. He then took the elder sister, Po-sze to an apartment house, having suggested that they should go and have tea. At the apartment house, he took Po-sze firmly by the arm, led her to a lift and tried to drag her inside one of the rooms in the apartment house. She protested strongly and shouted and cried, whereupon he released her and they left the apartment house.

37. Some days' later, as a result of a phone message, Po-sze and Po-chun went again to the respondent's Chambers, accompanied by Man, and handed over a further $3,000 in cash to him, asking for a receipt, which the respondent again refused to give.   About one or two weeks' later, Po-sze was again asked to go and see the respondent, which she did accompanied by her mother and Po-chun. On this occasion, Po-sze handed over another $3,500 in cash to the respondent, after which the respondent asked the others to leave the room; when they did so, he made further sexual advances to Po-sze.

38. The Committee found that there were two or three other occasions, apart from those referred to above, when the respondent asked Po-chun to leave the room, made indecent verbal suggestions to Po-sze and placed his hands on her body.

39. In July 1981, a further $2,000 was handed over in cash by Po-sze to the respondent.

40. In May 1981, the respondent contacted a litigation clerk in the firm of Ho & Ng, and a partner, Mr. Ronald Ho, and tried to persuade them to agree to the firm being the solicitors on the record. They at first refused to do so, but eventually Mr. Ho reluctantly agreed to the proposal. The firm received no fees of any kind in relation to the matter, and the respondent was sent a complimentary brief in the belief, which he had falsely induced in the solicitor, that he was acting free of charge for a friend.

41. On 20th July, the respondent appeared in the Court of Appeal as counsel for the brother, but the case was adjourned to the 11th August for training centre and probation reports.  After the adjournment, the respondent  asked the sisters to go to his Chambers, which they did. Here, he was handed an envelope containing $4,000 in cash by Po-sze.

42. The respondent appeared in court on behalf of the brother on the appeal on 11th August, when the case was adjourned until 18th August. By this time, the sisters were unhappy about their relationship with the respondent, and made a complaint to the I.C.A.C., which referred the matter to the police.

43. On 12th August, Po-sze was asked by the respondent to go to his Chambers. Before she did so, she was provided with a tape recorder by the police and instructed in its use.

44. When the two sisters arrived at the respondent's Chambers, they found two strange men there, introduced as Uncle Wing and Brother Chang. After some conversation between the respondent and the sisters during which he suggested that they should now release him from the case, Brother Chang said that the sisters should pay $5,000 more for the lawyer's fees and that that would be all.

45. The respondent added that, as a result of the case lasting longer than he had expected, he had been obliged to cancel an air ticket and had lost the value of this. He stated that, if he did not receive the money from the sisters, he would tell Brother Chang to collect for him. Brother Chang commented "You pay $5,000 and the matter is settled".

46. As a result of further demands by the respondent, Po-sze handed $1,000 in cash to him on 17th August.

47. The last meeting between the sisters and the respondent took place on 20th August; 1981, in the respondent's Chambers, at the request of the respondent, Po-sze was again carrying with her a tape-recorder provided by the police.

48. The object of getting the sisters to attend his Chambers on this occasion was to obtain his release from the case.  He dictated a form of words to be used, which formally released Ho & Ng from the case, though, as has been stated above, they had done no more than provide a complimentary brief at the respondent's suggestion.

49. Po-sze asked for a receipt for the money which he had paid to the respondent. Man intervened, offered to write a receipt which showed that he had received the money, and did so.

50. The conversations which took place during the meetings in the respondent's Chambers, on 12th, 17th and 20th August were tape-recorded. They were produced in evidence before the Committee of Inquiry and were found to contain a reproduction of fair quality. The conversations recorded were transcribed and English translations made. Copies of both the English and Chinese versions of the transcripts were provided to the respondent.

Conclusions of Committee

51. The Committee found that there had been a series of acts by the respondent which amounted to an extremely serious case of professional misconduct. In its view, the respondent had exploited the inexperience of the sisters, their ignorance of the law and their concern for their brother to extract large sums of money from them.

52. From beginning to end, his dealings with them were direct, without the intervention of a solicitor, a course of conduct which he must have known to be improper, as he had been censured for such behaviour by this court in May 1980.

53. The respondent knew that the brother's family was poor and that, after the first two payments to him of $3,000 each, the elder sister was having difficulties in raising further sums. He exploited her vulnerability by making sexual advances to her and by repeated acts of sexual assault, knowing that she would not find it easy in the circumstances to make too much fuss.

54. In commenting on the interviews of the 12th and 17th August, at which Uncle Wing and Brother Chang were present, the Committee could see no proper professional purpose which could have been served by the respondent inviting these two men to be present at the meeting and was driven to the conclusion that the intention was to intimidate Po-sze and her family.

55. The Committee found that, from beginning to end, there was no vestige of a proper professional relationship, nor any real pretence of one. The respondent deceived the brother into signing a paper to the effect that he did not want legal aid. He deceived a partner of Messrs. Ho and Ng into sending him a complimentary brief.  He tried to cover his tracks by arranging for Man, rather than himself, to sign a receipt for the monies which he had received from Po-sze.

56. The Committee found that 29 of the 38 charges brought against the respondent had been proved to their satisfaction. Those which the Committee found to be established can be divided into the following four groups -

Order

57. The findings of the Committee of Inquiry, which are fully justified by the evidence placed before it, disclose a course of conduct by the respondent, in his professional capacity, which is inexcusable and which shows him to be wholly unfitted to practise his profession.

58. The respondent has deliberately deceived both a firm of solicitors and his own client. He has negotiated his own fees with his lay client, whom he repeatedly harassed for further payments. He lied to his client, to his client's family and to solicitors. He misused his professional position in an effort to obtain sexual favours. Not only has he been guilty of appalling conduct in the professional sense; on the evidence accepted by the Committee he has been guilty also of the criminal offences of indecent assault, blackmail, false accounting and obtaining money by deception.

59. No barrister who behaves as Frederick Lee did, in relation to his client and the latter's sisters, between May to August 1981 is fit to remain on the Roll. We note in passing that on the 5th May, 1980, this court delivered a reprimand to the respondent for his unprofessional conduct in 1979, having taken what may now appear to have been a somewhat merciful view of his behaviour on that occasion.

60. The order of this court is that the name of Frederick Lee shall be struck from the Roll of Barristers in Hong Kong, that this order shall be duly publicised in the Gazette, that the Hong Kong Bar Association and the Law Society of Hong Kong shall be informed of this order and that a copy of this order and of this judgment shall be sent to the Under-Treasurer of the Middle Temple, of which Society the respondent is a member.

61. We also order that the costs of the Committee of Inquiry and of the proceedings before this Court shall be paid by the respondent.

Representation:

Robert Wei, Q.C., Susan Kwan (C.Y. Kwan & Co.) for Bar Committee

Respondent absent.