Re A (admission as barrister)
Court of Appeal
Civil Appeal No 161 of 2017
Lam V-P, McWalters and Poon JJA
10 May 2018

Legal profession - barristers - admission - "fit and proper" criterion - old criminal conviction for indecent assault - proper approach to whether criterion under s.27 satisfied - Legal Practitioners Ordinance (Cap.159) s.27

In September 2010, "A", then aged 22 and a radiation therapist, was convicted of indecently assaulting a 14-year-old girl in school uniform, by intentionally touching her breast with his elbow and clutching her buttocks. The Magistrate rejected "A's" testimony as untruthful and sentenced him to 14 days' imprisonment. In 2011, "A's" appeal against conviction to the High Court and application for leave to appeal to the Court of Final Appeal were dismissed. In 2013, "A" was reprimanded for his conviction following disciplinary proceedings by the Radiographers Board. Meanwhile "A" read law, passed PCLL in 2014, then worked as a legal clerk and completed pupillage under three pupil masters who certified him as a fit and proper person to be admitted as a barrister. In August 2016, "A" applied for admission to the Bar. His application was not opposed by the Bar, but was contested by the Secretary for Justice. The Judge dismissed "A's" application, finding that he was not a fit and proper person for admission to the Bar under s.27 of the Legal Practitioners Ordinance (Cap.159), because the offence was serious and did not accord with the expectations of the community of Hong Kong on the standard and integrity of the Bar (the Decision). "A" appealed.

Held, allowing the appeal by granting an order admitting and enrolling "A" as a barrister of the High Court, that:

  1. While each case depended on its facts, the relevant considerations included that: (a) the applicant bore the burden of demonstrating that he was a fit and proper person for admission to the Bar; (b) the inquiry was directed to the applicant's character and integrity currently, not when the offence was committed; (c) evidence of reformation did not require a public admission of guilt, but, depending on the circumstances, could include a lengthy period of honest and responsible living since the conviction; (d) cogent evidence from a pupil master would usually carry substantial weight and, in difficult cases, more individualised assessments in addition to a general statement in a certificate of fitness would be helpful; (e) character references from other people closely associated with an applicant were also relevant; (f) in cases of doubt, the Bar Council and/or the Department of Justice could request further information, interview the applicant, and in exceptional circumstances, apply for cross-examination of the applicant before the court; and (g) where there was a single, old conviction either due to juvenile folly or an aberration, the court should have more regard to the applicant's subsequent conduct to properly assess the significance of that conviction which must be disclosed (L v Canterbury District Law Society [1999] 1 NZLR 467, Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577, Re M [2005] 2 NZLR 544, Re Youh Alan [2013] 2 HKLRD 485, Tsit Wing (Hong Kong) Co Ltd v TWG Tea Co Pte Ltd [2015] 1 HKLRD 414, AmTrust Europe Ltd v Trust Risk Group SpA [2016] 1 All ER (Comm) 325 applied). (See para.22.)
  2. The Judge had erred in principle in his approach, which focused only on the conviction and the immediate custodial sentence, and was too dogmatic, inflexible and not forward-looking. He failed to take account of more relevant considerations including the length of the sentence, the passage of time and "A's" circumstances when the offence was committed. The Judge's understanding of the community's expectations was incongruent with the underlying spirit of the Rehabilitation of Offenders Ordinance (Cap.297), under which a person who satisfied s.2(1), such as "A", was a rehabilitated individual. (See paras.25-27, 30.)
  3. While a standard certificate of fitness was insufficient here, two pupil masters had provided more substantial testimonial of the character and fitness of "A". The Judge had wrongly disregarded these and other highly pertinent testimonials concerning "A's" rehabilitation and integrity. (See paras.32-37.)
  4. The Judge also erred in his evaluation that "A" had not reformed based on his non-disclosure to the Bar Council of his appeal against conviction and the disciplinary proceedings. While it would have been better to disclose the disciplinary proceedings earlier, such omission did not equate with a failure to reform. As for the appeal against conviction, given that "A" had not misrepresented that he accepted responsibility for the offence right from the start, the fact that he had exercised his right of appeal was not so significant. (See paras.41-42.)
  5. The Decision must be set aside. Although the offence was serious, given that it was wholly out of character, the likelihood of reoffending was extremely low and "A" had led an honest, decent and responsible life since then, he was a fit and proper person for admission to the Bar. (See paras.43-46.)

Appeal

This was an appeal against the judgment of Anthony Chan J dismissing an application for admission as a barrister by a person with a criminal conviction (see [2017] 3 HKLRD 763). The facts are set out in the judgment.

Jurisdictions: 

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