Re A, HCMP 2079/2016, 16 June 2017, considers what it means to be “fit and proper” in the context of an application for admission to the Hong Kong Bar.
The applicant is a young man who had been convicted (when a student) of an offence before the Magistrates court. The offence appears to have involved some serious circumstances, for which the applicant received a short custodial sentence in 2010.
After working in another profession for a while, the applicant turned his hand to law and eventually became a bar pupil. The applicant disclosed his conviction (and certain other relevant details) with his certificate for eligibility. He was later granted a certificate of qualification for admission by the Bar Council. However, unlike the Bar Association, the Secretary for Justice did not consent to the applicant’s Notice of Motion to be admitted and enrolled as a barrister of the High Court of Hong Kong. Neither did the court.
The case is interesting in a number of respects.
It is a rare example of a contested application for admission pursuant to s.27(1) of the Legal Practitioners Ordinance (Cap. 159) (as opposed to ad hoc admission of overseas counsel pursuant to s. 27(4)). In particular, the parties were unable to refer to any previous application for admission pursuant to s. 27(1) where the Bar Association and the Secretary for Justice had reached different views on an applicant’s admission.
The case is also a useful summary of some of the general legal principles relevant to the determination of whether an applicant is fit and proper to be admitted as a barrister. While fact sensitive, these general principles may have a wider application to other professions that admit members based on their fitness and probity.
Cases such as these demonstrate the tension between safeguarding the public interest and making some allowance for past human frailty. It cannot be that every conviction resulting in a custodial sentence necessarily disqualifies an applicant from becoming a lawyer. Some readers might draw a distinction between (for example) offences involving certain types of assault or public disorder and offences of a more serious nature or involving dishonesty.
The case also raises the issue of the degree of disclosure required of an applicant to a regulator, both with regard to the offence itself and any disciplinary proceedings that may follow it.