Barristers – "Fit and Proper" (and Looking Forward)

In Re A [2018] HKCA 272, the Court of Appeal has handed down a commendably fair judgment and, in doing so, has allowed an applicant's appeal against a first instance decision refusing his application for admission to be a barrister pursuant to s. 27(1) of the Legal Practitioners Ordinance (Cap. 159). The Bar had not opposed the application, although the Secretary for Justice's legal representatives had. Their respective stances appear to have remained the same in the appeal.

The brief background to the case is set out in an Industry Insights for August 2017 ("Fit and Proper to be Admitted as a Barrister"). A number of years ago, the applicant was convicted of a serious offence although, apparently, not one that demonstrated such a defect of character that he could, by the fact of the offence alone, never expect to be admitted as a barrister, provided he had the necessary qualifications.

What is particularly welcome in the judgment is the Court of Appeal's confirmation of the role of an appeal court in such appeals. While an appellate court should be cautious in interfering with a lower court's evaluation of the circumstances of a case, it could intervene where a lower court had (for example) erred in principle.

On the facts, the Court of Appeal determined that the lower court had erred in principle. In essence, the lower court had taken too dogmatic an approach to the application of the test of "fitness and probity"; for example, too much focus was placed on past events and not enough on the applicant's rehabilitation and evidence of good character over a number of years.

Also of interest is the greater weight that the Court of Appeal appears to have placed on the references given by the applicant's pupil masters – experienced barristers who, presumably, were as capable of judging the applicant's character as well as anyone else. Provided such references were informed and balanced they should carry weight. An applicant in these circumstances should make sure that he or she gives full disclosure to a regulator; regulators will often give credit for this.

While the public trust is paramount in such matters, the Court of Appeal's judgment does allow for a more nuanced approach with respect to applicants who may have committed less serious transgressions. There are lessons for any profession whose members are admitted on the basis of a test of (among other things) "fitness and probity".

Some applicants who seek admission to a profession may have made mistakes in the past. Contrary to popular misconception in some quarters, lawyers are also human and, as the judgment notes, are not expected to be paragons of virtue. Anything else might invite the question who else is entitled to be admitted (or, insofar as lawyers are concerned, who is entitled to remain "on the Roll").

One might hope that matters end there. That said, it will be interesting to learn if the Secretary for Justice's legal representatives consider an appeal to the Court of Final Appeal, in order to seek clarification of a point of great general or public importance. If so, many will consider that the more progressive approach of the Court of Appeal has much to commend it (particularly, at para. 22 of the judgment).

Senior Consultant, RPC