HCAL
63/2014
IN
THE HIGH COURT OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
COURT
OF FIRST INSTANCE
CONSTITUTIONAL
AND ADMINISTRATIVE LAW LIST
NO
63 OF 2014
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BETWEEN
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Applicant
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and
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THE
BAR COUNCIL OF THE HONG KONG BAR ASSOCIATION
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Respondent
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Before:
Hon G Lam J in Court
Date
of Hearing: 14 April 2015
Date
of Decision: 24 September 2015
__________________
D
E C I S I O N
________________
I.
INTRODUCTION
1. This
is an application for judicial review of the refusal by the Bar
Council of the Hong Kong Bar Association to give permission to the
applicant, then a practising barrister, to engage in neuro-beautology
as a supplementary occupation. The applicant relies upon two
grounds for judicial review: first, that paragraph 23 of the Code of
Conduct of the Bar of the Hong Kong Special Administrative Region
(“Code of Conduct” or simply “Code”), pursuant to which the
Bar Council’s decision was made, is itself unlawful as being in
infringement of Article 33 of the Basic Law and, secondly, that the
Bar Council has failed to give adequate reasons for its refusal.
Where the meaning is clear from the context, I shall refer below to
paragraph 23 of the Code of Conduct simply as “paragraph 23”, and
to Article 33 of the Basic Law as “Art. 33”.
II.
THE FACTUAL BACKGROUND
2. The
applicant was called to the Hong Kong Bar in 2005. He had
worked as an employed barrister since September 2005. On
1 January 2014, he resumed private practice at the Bar and
became a full tenant in a set of chambers, having entered into a
fixed-term contract with the set expiring on 30 June 2015 pursuant to
which he had to pay a monthly contribution of $9,000 for rent and
secretarial services.
3. In
March 2014, the applicant completed a course for “Professional
Certificate in Neuro-Beautology” with an institution called
“International Naturopathic College”, operated by International
Naturopathic College, Limited, which is a company incorporated in
Hong Kong in 2002.
4. By
a letter dated 5 March 2014, the applicant applied to the Bar Council
under paragraph 23(3)(a) of the Code of Conduct for permission to
engage in Neuro-Beautology as his supplementary occupation. The
letter set out a link to a website for information about
Neuro-Beautology. Certain print-outs of the website have been put in
evidence in these proceedings, containing the following explanations
of the International Naturopathic College:
“Brief
Introduction
International
Naturopathic College, Limited
International
Naturopathic College, Limited was founded in 2002. It takes promoting
Naturopathic education in Chinese as its responsibility. Through
several years’ negotiation and research, this college made
agreement with different institutes and colleges in the world and set
up a series of naturopathic medicine courses taught in Chinese and
with International certificate in Hong Kong. It is a great
breakthrough in the education of naturopathic medicine.
Principle
To
promote preventive medicine with professional and universal
education, to encourage students understand [sic] preventive
medicine, and moreover to apply preventive medicine for treating
others”
and
of the Professional Certificate in Neuro-Beautology:
“ ‘Professional
Certificate in Neuro-Beautology’ was formally introduced to Hong
Kong by International Naturopathic College in 2006. In 2008, the
relevant course was presented, demonstrated and promoted in various
districts in Hong Kong. “Neuro-Beautology” is one type of
Naturopathy which adjusts body gestures in a painless, effective and
non-invasive way. It is a professional technique and technology that
brings immediate improvement effects. The relevant technique is to
efficiently correct distorted body structure through simple spine and
pelvis adjustment techniques with the aim of removing or improving
humpback, discomfort due to spine, thick waist, lopsided shoulders,
legs of different lengths, uneven breasts sizes, neck wrinkles etc.
based on skeletal nerve reflexivity. The most incredible thing about
this course is that anyone can apply for this course no matter what
age you are, whether you have a professional or related background or
not. Regardless of the education level, one can apply for this course
to acquire a skill.
Qualified
professional graduates in ‘Neuro-Beautology’ will utilize this
technique to integrate or apply in medical, health care and beauty
business or treatment, forming a new programme for overall health,
beauty and health care with immediate effects so as to increase the
competitiveness within the industry. This is also beneficial to
the developments of new markets and new sources of customers. In
addition, many graduates become Neuro-Beautologist either by
establishing their own business or partnership to provide
professional Neuro-Beautology services to the public.”
5. On
the same day, the Bar Secretariat replied to the applicant, asking
for details of (a) the nature of work in the proposed supplementary
occupation; (b) the time to be spent in terms of number of hours per
week or month; and (c) the remuneration expected. The email
stated that these details had to be supplied before the matter could
be considered by the Bar Council.
(1) In relation to the nature of work, he stated that the nature of work is in the field of natural medicine. He attached a print-out from the website previously mentioned, adding that a person who practises neuro-beautology is ordinarily called a “body figuring practitioner”.
(2) As to the time to be spent, the applicant stated he intended to practise neuro-beautology as his supplementary occupation on a freelance basis. The time normally spent for each client per session was about an hour, with the first session possibly taking longer because of the need to explain “the procedure and aftercare”.
(3) As for remuneration, the applicant stated that the price charged to each client is normally fixed for each session and that he believed that the price for neuro-beautology service in Hong Kong was currently in the range from $3,800 to $5,000 per session.
7. On
6 March 2014, in reply to a question, the applicant further stated to
the Bar that he undertook not to spend more than 17 hours a week
in the supplementary occupation.
8. Meanwhile,
the Honorary Secretary of the Bar Council, having visited the website
referred to by the applicant, was not impressed by the International
Naturopathic College, which he found was registered only as a private
company in Hong Kong, or by the fact that the course attended by the
applicant only required secondary education as an entrance
requirement which could be waived by the college. The Honorary
Secretary found that the college offered various short courses
leading to certain qualifications of various descriptions, which
seemed to him to be akin to cosmetic therapy or treatment. He
observed that those who completed the course attended by the
applicant were said to be able to give treatment to correct spinal or
pelvic deformity or asymmetry so as to eliminate or improve kyphosis
and wrinkles around the neck or to achieve effects such as breast
augmentation, slimming of the waist and correction of spinal
problems. Overall he was left with considerable reservations on
the professional standing of the college, of the “International
Naturopathic Medicine Association” (of which holders of the
certificate held by the applicant are apparently eligible for
membership), of the professional certificate held by the applicant
and, ultimately, of body-figuring practitioners generally. In
the Honorary Secretary’s view, the issue also arose as to whether
the claims of the ability to correct spinal or pelvic deformity or
achieve breast augmentation might have engaged relevant laws
regulating the medical and related professions.
9. At
its meeting on 6 March 2014, the Bar Council, to whom the Honorary
Secretary had reported his findings, took the view that the
applicant’s intended supplementary occupation was “not compatible
with his practice as a barrister, primarily by reason of its nature
and lacking in professional standing”.[1] The
minutes of the meeting recorded as follows:
“The
Hon Secretary said that there were two issues for consideration: (1)
the proposed time spent was 17 hours per week which was way above
what the Bar Council could accept, and (2) the compatibility of this
supplementary occupation to practice as a barrister. He said that
when … asked to give more details of the intended supplementary
occupation, Albert Leung gave a link to the website of this
discipline of neuro-beautology. He had serious reservation about the
application by the look of the website.
The
Chairman shared the same view and the application must be refused.
Members
agreed.
It
was resolved that the application by Albert S H Leung be refused.”
10. By
a letter from the Chairman of the Bar dated 7 March 2014, the
applicant was informed that the matter was considered by the Bar
Council at its meeting on 6 March 2014. The letter continued as
follows:
“I
regret to inform you that the Bar Council is not satisfied that your
engagement as a Neuro-Beautology [sic] would be compatible with your
practice as a barrister and had come to the view that permission
should not be granted to your proposed work as stated in your above
letter and email.”
11. On
12 March 2014, the applicant notified the Bar that he had decided to
cease to be a practising barrister with effect from 15 March 2014.
12. On
10 May 2014, the applicant wrote to the Bar stating that the reason
given for refusing his application was inadequate and asking the Bar
to elaborate on the reason.
“I
trust you realise that approval for engagement in a supplementary
occupation is not to be granted as a matter of course. In arriving at
its decision, the Bar Council has carefully considered the
information provided in your previous letter and email respectively
dated 5th and 6th March 2014.
Without
admitting any obligation to give reason, I respectfully disagree that
no adequate reason for the refusal has been given in the Chairman’s
letter to you dated 7th March 2014.”
14. On
9 June 2014, the applicant filed an application for leave to apply
for judicial review of the Bar Council’s decision. Leave was
given by Au J in November 2014 having considered the papers including
an initial submission by the respondent lodged in August 2014
(“Initial Response”).
III.
THE RELEVANT PROVISIONS OF THE CODE OF CONDUCT
15.
The Code is primarily based on theCode of Conduct for the Bar of
England and Wales (1981 Edition)with variations warranted by local
conditions and practice and with certain specified paragraphs and
annexes not adopted. The Code was published in January 1983 and
amendments have since been made to it from time to time.
16. The
Code is a set of norms or rules that the Bar Association has resolved
to issue. It may be amended by the Bar Association in general
meeting or by resolution of the Bar Council (paragraph 2). It
applies to all barristers (including pupils after their admission as
barristers). Paragraph 4 of the Code states:
“Every
barrister whenever called to the Bar, whether in practice or not,
should uphold at all times the standards set out in this Code, the
dignity and high standing of the profession of barrister and his own
standing as a member of it.”
Paragraph
6 states:
“It
is the duty of every barrister
(a)
to comply with the provisions of this Code and with the undertakings
(if any) which he made on his call to the Bar;
…
(c)
to observe the ethics and etiquette of his profession;
…”
Paragraph
7 states:
“Serious
failure to comply with the duties set out in paragraph 6 shall be
professional misconduct and, if so found by a Barristers Disciplinary
Tribunal, shall render the barrister liable to be punished in
accordance with the provisions of the Legal Practitioners Ordinance,
Cap. 159.”
17. Paragraph
23 is found in a part of the Code of Conduct with the heading
“Practising Barristers – General Principles”.
“a
barrister who has been admitted to practise in Hong Kong and who is
entitled and holds himself out as willing to appear in a court on
behalf of a client or to give legal advice or services to a client;
but is not an employed barrister.”
19. The
current version of paragraph 23 and the related Annexes (4 and 4A) is
the version obtaining after revisions in 2009. Those revisions were
made after a special committee was set up by the Bar and reviewed the
provisions of the Code regarding additional occupations of
barristers, though not all the recommendations of the committee were
adopted.
20. Since
it is the very subject matter of the challenge, I shall set out the
first three sub-paragraphs of paragraph 23 in full, omitting
sub-paragraphs (4) and (5) which concern barristers acting as company
directors and barristers in pupillage:
“23.
(1) A barrister may not, without the permission of the Bar Council,
or save as provided for in Annex 4A to this Code, become or remain a
practising barrister unless he is willing for his practice to be his
primary occupation; and he may not engage directly or indirectly in
any other occupation if his association with that occupation may
adversely affect the reputation of the Bar.
(2)
A practising barrister must not engage directly or indirectly in any
other occupation if his association with that occupation may
prejudice his ability to attend properly to the interests of his
clients.
(3)
(a) A practising barrister who wishes to engage in a supplementary
occupation should do so only in accordance with the general or
special permission of the Bar Council.
(b) Supplementary
occupations for which the Bar Council has granted general permission
are set out in a List of Approved Supplementary Occupations in Annex
4 and in the List of Approved Occupations in Annex 4A to this Code.
A practising barrister who wishes to engage in an occupation not
listed in Annex 4 or Annex 4A or is in doubt whether a proposed
occupation is within the approved list should seek the special
permission of the Bar Council before taking up the occupation.”
21. So
far as material, the effect of these sub-paragraphs is to place the
following four restrictions on practising barristers in relation to
their engagement in any additional occupation:
(1) A practising barrister may not engage in any occupation if association with it may adversely affect the reputation of the Bar. For ease of reference I shall call this the “Reputation Rule”.
(2) A practising barrister may not engage in any occupation if his association with that occupation may prejudice his ability to attend properly to the interests of his clients. I shall call this the “Prejudice Rule”.
(3) Practice at the Bar must be a barrister’s primary occupation unless
(a) the general permission set out in Annex 4A applies; or
(b) special permission of Bar Council is obtained in advance under paragraph 23(1).
I shall call this the “Primary Occupation Rule”.
(4) A barrister may not engage in any supplementary occupation unless
(a) the general permission set out in Annex 4 applies; or
(b) special permission of Bar Council is obtained in advance under paragraph 23(3).
I shall call this the “Supplementary Occupation Rule”.
The
Primary Occupation Rule seeks to ensure that practice at the Bar is
and remains the primary occupation of a practising
barrister. “Primary” means main, chief or principal.
It does not in itself exclude the existence of what is merely
secondary or supplementary. This rule does not prevent a practising
barrister from engaging in a supplementary occupation provided
practice at the Bar remains his primary occupation. The
Supplementary Occupation Rule goes further and prevents a practising
barrister from engaging even in a supplementary occupation
except with the consent of the Bar Council.
22. In
the present case it is the Supplementary Occupation Rule pursuant to
which the applicant applied for, and the Bar Council refused,
permission for him to work as a neuro-beautologist as a supplementary
occupation. I shall deal with the implications of this on the
scope of the dispute in the next section of this judgment.
23. Annex
4A, which was added as part of the amendments made to the Code in
2009, sets out the “occupations which a barrister may engage in,
irrespective of whether, by engaging in any of those occupations,
practising as a barrister is or remains the primary occupation of the
barrister”. It contains therefore the general permission
given under the Primary Occupation Rule. A
barrister can properly engage in these occupations (set out as
follows) even if, by doing so, practice at the Bar ceases to be his
primary occupation.
“(1)
Member of Executive Council;
(2)
Member of Legislative Council;
(3)
Member of any District Council;
(4)
Member of the Heung Yee Kuk or any rural committee;
(5)
Acting as a ‘Village Representative’ as defined under the Village
Representative Election Ordinance (Cap 576);
(6)
Lecturing or teaching in law, or administering any Law Faculty or Law
School or any departments thereof of any university, whether in Hong
Kong or elsewhere;
(7)
Practising as a legal practitioner (of whatever description) in
another jurisdiction;
(8)
Law reporting;
(9) Caring
for immediate family members.”
24. Annex
4 sets out a list of supplementary occupations
(quoted below) that have been approved by the Bar Council as
compatible with practice at the Bar. It represents the general
permission given under the Supplementary Occupation
Rule. Such permission is nevertheless subject to the Primary
Occupation Rule, so that in engaging in these occupations a barrister
is required to maintain practice at the Bar as his primary
occupation.
“(1)
Legal
(a)
Offices
(i)
Coroner
(ii)
Third Party Neutral in alternative dispute resolution procedures,
including Mediator, Adjudicator, Arbitrator or Umpire (Circular
No. 48/98)
(iii)
Member of a board of review, board of inquiry, tribunal, panel or
committee established under any statutory or administrative powers
(b)
Occupations
(i)
Examining newspapers, periodicals, books, scripts and other
publications for libel, breach of copyright, contempt of court and
the like
(ii)
Advising producers of plays and films on such matters
(iii)
Running a private law tutorial school
(iv)
Acting as a trustee for remuneration provided for in the settlement
(v)
Acting as unpaid or honorary legal adviser to any charitable,
benevolent or philanthropic institution, including a company that has
been established for such purpose
(2)
Legal or Non-Legal
(a)
Writing, editing, and reviewing books and periodicals
(b)
Journalism
(c)
Broadcasting
(d)
Member of a non-trading body established under any statutory or
administrative powers
(3)
Non-Legal
(a)
Lecturing
(b)
Business
(i)
Non-executive director of a company (whether public or private) or
chairman, director, secretary of a company not actively engaged in
trade or business
(ii)
Chairman, secretary, officer or member of the board of a co-operative
society, a management committee of the incorporated owners of a
building
(iii)
Landlord of rented accommodation
(c)
Charities
Officer,
trustee or governor of any charitable, benevolent or philanthropic
institution, and where a company has been established for such
purpose, chairman, director or secretary of such company”
25. It
appears from the evidence that the Primary Occupation Rule no longer
exists (if it ever did) in the professional rules of the English Bar,
the Law Society of Singapore, the Australian Bar Association, the New
Zealand Law Society, the Canadian Bar Association, the Law Society of
Upper Canada, the Law Society of Alberta, the Law Society of New
Brunswick, the Nova Scotia Barristers’ Association and the Law
Society of British Columbia. Nor does it exist in the professional
rules of the Law Society of Hong Kong. As Mr. McCoy SC who
appeared for the respondent acknowledged, the Hong Kong Bar appears
to be unique among common law jurisdictions in retaining this
restriction on its members.
IV.
SCOPE OF THE APPLICATION AND THE ISSUES
26. As
stated at the beginning of this judgment, the applicant relies on two
main grounds of attack: unconstitutionality and lack of reasons.
The respondent disputes the applicant’s case and further takes the
position that the decision in question is a private law matter not
amenable to judicial review.
27. There
is no dispute on the way in which a constitutional challenge is, in
general, to be analysed. It is necessary first to ascertain
whether a constitutional right is engaged and whether the measure in
question imposes a restriction or limitation on the right. Once
this is established, the burden falls on the respondent to show that
the restriction on the right is both prescribed by law and
proportionate. In assessing whether the measure meets the
proportionality test, it is relevant to see if it pursues a
legitimate aim, whether the measure is rationally connected to the
legitimate aim, and whether it is no more than is necessary to
accomplish the legitimate aim. See, generally, Leung
Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at §§17,
33-39; Secretary for Justice v Yau Yuk Lung (2007)
10 HKCFAR 335 at §20; Dr Kwok-Hay Kwong v Medical Council of
Hong Kong [2008] 3 HKLRD 524 at §68; Chan Kin Sum v
Secretary for Justice [2009] 2 HKLRD 166 at §§64-78.
As I understand his submissions, Mr McCoy SC, who appeared for
the respondent, did not dissent from this approach.
28. On
this basis, in his excellent argument on behalf of the applicant, Mr
Timothy Parker has identified six main issues that arise for
determination.
1. Whether the decision is public law decision or is merely a private law decision not amenable to judicial review.
2. Whether paragraph 23 of the Code of Conduct unlawfully restricts the freedom of choice of occupation and is unconstitutional. This question can in turn be divided into four issues:
(A) Whether Art. 33 is engaged by the decision.
(B) Assuming Art. 33 is engaged, whether the restriction is prescribed by law;
(C) Whether there is a rational connection to the legitimate aim pursued;
(D) Whether the restriction satisfies the requirement of proportionality.
3. Whether the decision should be set aside for the failure to give adequate reasons.
I
shall deal with these issues in turn below.
29. For
the purposes of the constitutional issues, however, it is necessary
to examine a little more closely what precisely is in dispute and
under challenge. As I have outlined above, the applicant sought
permission to engage in a supplementary occupation.
He did not propose to practise neuro-beautology as
a primary occupation.
Nor did the Bar refuse his application on the ground that practice at
the Bar would cease to be the applicant’s primary occupation, even
though the amount of time he proposed to spend in the practice of
neuro-beautology was mentioned at the meeting of the Bar
Council.[2] Had
the Bar Council’s only concern been the extent of the applicant’s
proposed supplementary occupation, it might have proposed conditions
for giving permission and the parties might have been able to resolve
the matter amicably, but that was not the case. As such it
seems to me the actual dispute prima
facie does
not involve the Primary Occupation Rule.
30. This
is in my view fortified by the way in which the applicant’s notice
of application for leave to apply for judicial review (Form 86) was
formulated. In that document the applicant avers that paragraph
23 of the Code restricts his “freedom … to engage in
a supplementary occupation that can generate more
stable income to support his primary occupation at
the Hong Kong Bar” and that paragraph 23 “unreasonably restricts
the freedom of junior barristers to engage
in supplementary occupation”. In conclusion,
the applicant avers that paragraph 23 contravenes Art. 33
because it infringes:
“[the]
freedom of choosing a supplementary occupation
to financially support a primary occupation
at the Hong Kong Bar and freedom of choosing
a supplementary occupation
[in] its own right for personal interest or otherwise …”[3]
31. It
follows that what is principally in issue so far as the
constitutional question is concerned is the Supplementary Occupation
Rule. The Primary Occupation Rule, which has neither been
relied upon by the Bar in refusing permission nor specifically
attacked by the applicant in his Form 86 as constituting an unlawful
restriction on his freedom, is not directly in issue. While
counsel on both sides have spent much time on the Primary Occupation
Rule in their submissions, the ambit of this application has to be
defined by reference to the actual facts and the case put forward in
the notice of application.
V.
ISSUE 1 – AMENABILITY TO JUDICIAL REVIEW
32. On
behalf of the respondent Mr Gerard McCoy SC, leading Miss Emma Tsang,
took as their first point that neither the Bar Council nor the Bar
Association is a governmental or statutory body. The Code is
not rules made under s. 72AA of the Legal Practitioners Ordinance.
The decision in question is a matter of internal management of the
Bar as a professional body.
33. They
further submitted that matters of internal management are governed by
the majority rule: Barrett v. Te Runanga O Ngati Pu
Inc [2002] NZAR 296, and that the applicant could have
raised the matter at a general meeting of the Bar Association,
referring to the previous amendment of paragraph 23 in 2009 as an
example.
34. It
is regrettable that this issue was never raised in the Initial
Response of the respondent at all at the stage when the court
considered whether or not to grant the applicant leave, which
implicitly accepted that the Bar Council’s decision was amenable to
judicial review. As the question concerns the jurisdiction of
this court, however, I permitted the respondent to take the point and
Mr Parker, no doubt having spent many uncovenanted hours after
receiving Mr McCoy’s skeleton argument, was able to respond to
it.
35. In
my view, on a correct analysis of the principles concerning
susceptibility to judicial review, neither the status of the body in
question, nor the source of power, nor the scope of persons subject
to the rules concerned, is determinative. It is necessary
instead to focus upon the nature of the power and function in
question. In the seminal authority on the subject, R v
Panel on Take-overs and Mergers, ex parte Datafin plc [1987]
QB 815, Lloyd LJ, stating the principles, said at p 847:
“I
do not agree that the source of power is the sole test whether a body
is subject to judicial review … Of course the source of the power
will often, perhaps usually, be decisive. If the source of power is a
statute, or subordinate legislation under a statute, then clearly the
body in question will be subject to judicial review. If, at the other
end of the scale, the source of power is contractual, as in the case
of private arbitration, then clearly the arbitrator is not subject to
judicial review: see R
v. National Foint Council for the Craft of Dental Technicians
(Disputes Committee) ex parte Neate [1953]
1 QB 704.
But
in between these extremes there is an area in which it is helpful to
look not just at the source of the power but at the nature of the
power. If the body in question in exercising public law
functions, or if the exercise of its functions have public law
consequences, then that may, as Mr Lever submitted, be sufficient to
bring the body within the reach of judicial review. It may be
said that to refer to ‘public law’ in this context is to beg the
question. But I do not think it does. The essential
distinction, which runs through all the cases to which we referred,
is between a domestic or private tribunal on the one hand and a body
of persons who are under some public duty on the other.”
In
the same case, Sir John Donaldson MR said, at p 838:
“In
all the reports it is possible to find enumerations of factors giving
rise to the jurisdiction, but it is a fatal error to regard the
presence of all those factors as essential or as being exclusive of
other factors. Possibly the only essential elements are what can be
described as a public element, which can take many different forms,
and the exclusion from the jurisdiction of bodies whose sole source
of power is a consensual submission to its jurisdiction.”
36. As
Sir Thomas Bingham MR said in R v Disciplinary Committee of
the Jockey Club, ex parte Aga Khan [1993] 1 WLR 909 at 921C,
the effect of Datafin was:
“to
extend judicial review to a body whose birth and constitution owed
nothing to any exercise of governmental power but which had been
woven into the fabric of public regulation in the field of take-overs
and mergers.”
37. In Regina
(Beer (trading as Hammer Trout Farm)) v Hampshire Farmers’
Markets Ltd [2004] 1 WLR 233 at §16, Dyson LJ said:
“It
seems to me that the law has now been developed to the point where,
unless the source of power clearly provides the answer, the question
whether the decision of a body is amenable to judicial review
requires a careful consideration of the nature of the power and
function that has been exercised to see whether the decision has a
sufficient public element, flavour or character to bring it within
the purview of public law. It may be said with some justification
that this criterion for amenability is very broad, not to say
question-begging. But it provides the framework for the investigation
that has to be conducted. …”
38. The
approach heralded by Datafin has been applied in
numerous cases in Hong Kong, both in cases concerning whether
particular acts of the Government or a public body were nevertheless
private in character and conversely whether particular acts of
private bodies were nevertheless public in nature. In Hong
Kong and China Gas Co. Ltd v Director of Lands [1997] 3
HKC 520, at 526, Keith J referred to the true question as
whether the making of the particular decision in question amounts to
“the performance of a function within the public domain”.
39. In Pacific
Century Insurance Co Ltd v Insurance Claims Complaints Bureau [1999]
3 HKLRD 720, Hartmann J (as he then was) had to deal with the
question whether a decision of the Insurance Claims Complaints Bureau
was amenable to judicial review. The bureau had received a
complaint from an insured person against the applicant for rejecting
a claim under a policy issued by the applicant. The complaint
was referred to the complaints board of the bureau which made an
award against the applicant, concluding that the insured was entitled
to compensation under the policy. The applicant sought judicial
review of the award and the first question that arose was whether
that decision was susceptible to judicial review.
40. As
Hartmann J said (p 725), the bureau had essentially been a creation
of the Hong Kong insurance industry as a limited liability company,
formed in order to provide a self-regulatory mechanism for
arbitrating complaints related to personal insurance.
Membership of the bureau was restricted to entities carrying on
insurance business in Hong Kong. Membership, under the Articles of
Association, was voluntary and could be terminated upon three months’
notice. The articles bound the members to honour awards made
against them by the complaints board. However, since 1996, the
Insurance Authority – a public body set up by the Insurance
Companies Ordinance (Cap. 41) – had pursued a policy of ensuring
that all insurers submit themselves to the jurisdiction of the
bureau. On that basis, Hartmann J held (at p 730C):
“I
believe it is clear that in 1996 the Insurance Authority, in
fulfilling its statutory mandate to supervise the insurance industry
and protect actual or potential policy holders, took steps to weave
the Bureau into a regulatory fabric that achieved this end for the
greater good of the industry and the public at large. In so doing,
the Authority made it mandatory for all new insurers to become
members of the Bureau and submit to its judicial or quasi-judicial
jurisdiction. As a result, it could not be said that the authority of
the Bureau to make awards against its members was derived solely from
contract. For those members who have joined since the institution of
the scheme it was a condition of their authority to do business that
they become members. …”
That
alone, however, according to Hartmann J, would not be sufficient to
subject the decision in question to the court’s supervisory power
by way of judicial review. He said (at 731E):
“But,
of course, the mere fact that a body lacking statutory, prerogative
or common law powers, has been incorporated into a scheme of public
regulation does not, of itself, mean that it is amenable to judicial
review. No single factor is determinative.”
After
referring to the passage in Donaldson MR’s judgment
in Datafin quoted in paragraph 35 above, Hartmann J
continued:
“Is
there then a public element in the present matter; in short, by its
incorporation into a regulatory scheme underpinned by the [Insurance
Companies] Ordinance,
has the Bureau at all material times been carrying out a public
function? I believe it has. I believe it can properly be said that
the Insurance Authority from the commencement of the scheme in 1996
determined to ensure that all providers of personal insurance in Hong
Kong would fall under the jurisdiction of the Bureau and would
therefore - for the assurance of industry standards and the general
protection of the public - all be obliged to honour awards made
against them by the Bureau’s Complaints Board. It was intended and
has become a scheme which binds all of Hong Kong’s personal
insurance businesses and which thereby gives to a broad section of
the general public a fast, efficient avenue for redress of
complaints. As such, the Bureau has at all material times carried out
a public function of conciliation and arbitration, if not as a
surrogate of government, at least as an extension of government
policy.”
41. In R
v Disciplinary Committee of the Jockey Club, ex parte Aga
Khan, supra, a case heavily relied upon by the
respondent, there was an application for leave to move for judicial
review of a decision of the disciplinary committee of the Jockey
Club, a body incorporated by Royal Charter with the responsibility
for the organisation and control of horse racing and training
activities in Great Britain. Despite the fact that, as Sir
Thomas Bingham MR accepted at p 923G, the club regulated a
significant national activity, exercising powers which affected the
public and were exercised in the interest of the public, the Court of
Appeal held that the decision was not amenable to judicial review.
All three judges referred to the fact that the powers exercised by
the club were consensual in nature, derived from the agreement of the
parties and gave rise to private rights (pp 924C, 928G, 929G, 932H).
42. At
923H, Sir Thomas Bingham MR said the Jockey Club “ha[d] not been
woven into any system of governmental control of horseracing”, with
the result that while the club’s powers could be described as, in
many ways, “public”, they were in no sense “governmental”.
Farquharson LJ accepted that many of the decisions of the club would
affect members of the public but pointed out at p 930A that there was
a difference between what might affect the public and what amounted
to a public duty. Hoffmann LJ at pp 931H-932A contrasted the
Jockey Club with “private bodies established by the industry but
integrated into a system of statutory regulation”, whose decisions
previous authorities had held to be amenable to judicial review.
His Lordship also took the view that the English legislator’s
attitude to racing was akin to his attitude to religion: “it is
something to be encouraged but not the business of government” (p
932G).
43. Aga
Khan was applied by the Court of Appeal in Hong Kong
Rifle Association v. Hong Kong Shooting Association (No 2) [2013]
3 HKLRD 362. There the Hong Kong Rifle Association sought leave
to apply for judicial review of the decision of the Hong Kong
Shooting Association not to reinstate the former as a member of the
latter. The Hong Kong Shooting Association was a company
limited by guarantee and recognised by international sports
associations as the sole governing body of all shooting sport in Hong
Kong, with the sole authority to select sportsmen to represent Hong
Kong in relevant games. It depended on Government subvention
for funds to operate. The Court of Appeal, affirming the
decision of Poon J below, held that the decision was not amenable to
judicial review. Kwan JA, giving the reasons of the court,
stated that the association was “not in its origin, history,
constitution or membership a public body”, there was “no public
source for any of its powers” (§24), that “it cannot be said
that in deciding whether to admit or reinstate a Member, the HKSA is
exercising a public law function or that its decision would have
public law consequences” (§28) and that “[g]overnmental power,
whether de facto or de jure, is simply
not exercised by the HKSA as the sole governing body of the sport of
shooting in Hong Kong” (§30).
44. It
is clear from these authorities that a proper assessment of the
argument on amenability requires a closer examination of the status
and functions of the Bar Association and the Bar Council as well as
the scope and effect of the Code of Conduct.
45. The
Hong Kong Bar Association is the professional organisation of
barristers in Hong Kong established by barristers in 1949. It
is an unincorporated association registered under the Societies
Ordinance (Cap. 151). Its objects and matters of internal
management are set out in its Regulations. The objects for
which it is established are, as stated, “to consider all matters
affecting the profession and the administration of justice and to
take such action thereon as it deems proper”, including prescribing
of rules of professional conduct, discipline and etiquette for
barristers. The Association also has a set of By-Laws relating
to classes of memberships and certain procedural matters concerning
the Bar Council.
46. Art.
94 of the Basic Law provides that on the basis of the system
previously operating in Hong Kong, the Government may make provisions
for local lawyers and lawyers from outside Hong Kong to work and
practise in the Region. The legal profession in Hong Kong,
including barristers, are regulated by the Legal Practitioners
Ordinance (Cap. 159) (“the Ordinance”).
47. Under
s. 44(1) of the Ordinance, it is an offence for any person not being
a qualified barrister to practise or act as a barrister. A
barrister is a person who is enrolled as a barrister on the roll of
barristers: see s. 2. The roll of barristers is kept by the
Registrar of the High Court: s. 29(1). A person becomes a
barrister by being admitted to the Bar or, as it is commonly known,
“called” to the Bar. The power to admit barristers is
vested in the Court of First Instance: s. 27. Once admitted, a
barrister’s name remained on the roll until it is removed or struck
off.
48. Just
being a barrister does not, however, qualify a person to practise as
a barrister. To be so qualified he must, inter alia, hold a
valid practising certificate: s. 31(1)(b). Practising
certificates are issued by the Bar Council: s. 30(1).[4]
By virtue of s. 30(3)(a), a practising certificate may only be issued
to a person who has paid to the Bar Association the membership
subscription except where the Bar Council has exempted him from the
requirement.[5] A
fee must also be paid for the issue of the practising certificate
itself; the fee is fixed by subsidiary legislation, namely, the Legal
Practitioners (Fees) Rules (Cap. 159D), which requires it to be
paid to the Bar Association for the payment of its expenses.
49. This
means that, by this indirect statutory route, any person who wishes
to practise as a barrister in Hong Kong is required to be a member of
the Bar Association. In fact, a “member” of the Bar
Association is defined in the Regulations to mean a practising
barrister or an employed barrister who is a member of the Bar
Association, signifying that all practising barristers are members.
The Bar Association is therefore not a voluntary professional club
that practising barristers may choose whether or not to join.[6] It
is a body, albeit not established by statute, whose membership is
made mandatory by statute for all practising barristers.
50. The
respondent in these proceedings – the Bar Council – is the
executive committee of the Bar Association, consisting of elected
office-bearers and members as well as co-opted members.
Although it is also not established by statute it is recognised in
legislation and exercises a number of statutory functions: see the
Ordinance, Barristers (Admission) Rules (Cap. 159AA), Barristers
(Advanced Legal Education Requirement) Rules (Cap. 159AB), Barristers
(Qualification for Admission and Pupillage) Rules (Cap. 159AC),
Higher Rights of Audience Rules (Cap. 159AK), Barristers
(Qualification) Rules (Cap. 159E), Practising Certificate
(Barristers) Rules (Cap. 159K) and Barristers Disciplinary Tribunal
Proceedings Rules (Cap. 159P), to name a few examples. The key
function in question in the present case is the promulgation of rules
governing barristers’ professional practice, conduct and
discipline. This function is recognised by law in s. 72AA of the
Ordinance as a proper function of the Bar Council. That section
confers a number of the powers on the Bar Council, the first of which
is the making of rules on the professional practice, conduct and
discipline of barristers. So far as relevant, it reads:
“Subject
to the prior approval of the Chief Justice, the Bar Council may make
rules-
(a)
in respect of the professional practice, conduct and discipline of
barristers and pupils;
…”
51. Further,
by s. 33 of the Ordinance, the Bar Council has a general right of
audience before the court on the hearing of:
“any
proceedings in the Court relating to, affecting or touching any
matter affecting the qualification or examination of a person seeking
to be a barrister or affecting the privileges, restrictions or
offences in connection with the professional practice, conduct and
discipline of a barrister”.
52. Mr
McCoy pointed out, correctly as a matter of fact, that the existing
Code of Conduct was not made by the Bar Council pursuant to s. 72AA
and that the Chief Justice had not approved it. The Code of
Conduct was first adopted by the Bar itself in 1983 and the current
version in 1997 (with subsequent amendments), well before s. 72AA was
added to the Ordinance in 2000.[7]But
this does not affect the point. The point is that the
Legislature has seen fit to provide for this matter and has by
legislation entrusted this rule-making function to the Bar Council,
subject to the approval of the Chief Justice. The section in my
view underscores the public and governmental nature of the function.
53. The
reason that no rules of conduct have been made under s. 72AA(a) is,
one may reasonably infer, that the existing Code has been found
adequate. Had there not been an existing code of conduct, it
seems to me highly arguable that the Bar Council would have been
under a public law duty to consider exercising its statutory power
under s. 72AA(a) to make rules. And if the same rules of
practice and conduct in question as those contained in the Code had
been promulgated under s. 72AA, it is clear, as indeed Mr McCoy
accepted,[8] they
would be susceptible to judicial review. The notion of the Code
as a set of norms of a voluntary professional club by which certain
individuals freely and mutually agree to abide, if valid in an age
bygone, is in my view no longer an entirely accurate picture of the
reality.
54. The
function of the Bar Council in question concerns the regulation of
the practice and conduct of barristers – a matter essential to the
due administration of justice. Barristers have rights of
audience in our courts and tribunals and especially, to the exclusion
of solicitors (except solicitor advocates), in the higher courts.
The courts have to be able to rely on the competence and diligence of
barristers. The right of Hong Kong residents to choice of
lawyers guaranteed by Art. 35 of the Basic Law is affected by
the rules governing who may practise at the Bar. The roll of
barristers is a document kept by the Registrar of the High Court that
can be inspected by any person without payment: s. 29(1) of the
Ordinance. The administration of justice does not only affect
the public but is inherently a public concern of society. In
this sense the Bar Association is in my view not comparable to the
jockey club in Aga Khan or the shooting association
in Hong Kong Rifle Association v Hong Kong Shooting
Association (No 2), referred to above, or the greyhound racing
club in Law v National Greyhound Racing Club Ltd [1983]
1 WLR 1302, a case on which Mr McCoy also relied.
55. The
standard, conduct and discipline of barristers are in particular a
matter in which the courts have traditionally taken a keen interest.
In England the disciplinary power over the Bar was said to have been
delegated by the judges to the Inns of Court and historically
retained by the judges as visitors exercising appellate
jurisdiction: R v Gray’s Inn Barristers (1780) 1
Doug 353; R v General Council of the Bar, ex parte
Percival [1991] 1 QB 212, 227; R v Visitors to the
Inns of Court, ex parte Calder [1994] QB 1, 31, 44. In
the colonies, of which Hong Kong was one, the judges had retained
both the power to determine who should be admitted to practise as
barristers and the right to suspend or prohibit a barrister from
practice for misconduct: Attorney General of The Gambia v
Pierre Sarr N’Jie [1961] AC 617, 630-631; Re a
Committee of Inquiry, ex parte a Barrister [1990] 1 HKLR
216, 218. In Hong Kong, the power to suspend a barrister or
strike him off the roll is now vested in the Barristers Disciplinary
Tribunal although, to this date, admission to the Bar remains in the
hands of the courts. S. 72AA of the Ordinance, by
requiring the prior approval of the Chief Justice before the Bar
Council can make rules pursuant to that section, seems to me to
reflect the continued interest and responsibility that the courts
have over the regulation of barristers.
56. Although
the Code of Conduct has not been made under s. 72AA and is
therefore not subsidiary legislation, it enjoys statutory recognition
and underpinning. Thus s. 10(3) of the Barristers
(Qualification for Admission and Pupillage) Rules (Cap. 159AC)
provides that a person undertaking pupillage is subject to the Code
of Conduct. The Code is also referred to in various forms under
the Practising Certificates (Barristers) Rules (Cap. 159K).
The Code is justiciable in the Barristers Disciplinary Tribunal –
the statutory disciplinary tribunal set up by the Ordinance for
barristers. Breach of the Code can amount to professional
misconduct and be referred by the Bar Council to the Barristers
Disciplinary Tribunal – a tribunal in which a member of the public
must be present as member: s. 35A(1)(c). Serious, and public,
consequences can result from those proceedings, which are expressly
provided for by statute (see s. 37 of the Ordinance), including
suspension from practice and having one’s name struck off the roll
of barristers. A person subject to a disciplinary order of the
tribunal may appeal to the Court of Appeal. It is also notable
that the expenses not only of the Barristers Disciplinary Tribunal
but also of the Bar Council in connection with proceedings in the
tribunal (and any appeal therefrom) may be paid to the Bar Council
out of general revenue upon a certificate issued by the Secretary for
Justice: see s. 39(1).[9]
57. While
the Code of Conduct can be said to be a set of domestic rules in the
sense that it was adopted by the Bar Council and applies only to
barristers, the Code – at any rate the provision in question –
has in my view an unmistakably public element having regard to its
functional equivalence to rules that are envisaged to be made by the
Bar Council under s. 72AA(a), its nature as rules governing the
practice and conduct of barristers as such, its integration into the
statutory disciplinary regime over barristers and the statutory,
public consequences of non-compliance with it: c.f. R
v Visitors to the Inns of Court, ex parte Calder, supra, at p
48D-F. In my judgment the respondent’s argument on
amenability to judicial review therefore fails.
58. I
reject the associated point made by the respondent based on the power
of the Bar Association in general meeting to amend the Code of
Conduct. For the reasons above the existence of this power does
not take this case out of the public domain. Nor does it render
judicial review an inappropriate remedy. Plainly judicial
review proceedings are the more suitable avenue for determining the
constitutionality of paragraph 23 of the Code.
VI.
ISSUE 2(A) – WHETHER ART. 33 IS ENGAGED
“Hong
Kong residents shall have freedom of choice of occupation.”
60. In
its Initial Response called for by the court and dated 9 August
2014, the respondent raised no argument that Art. 33 was not
engaged. On the contrary, it accepted that paragraph 23 of the
Code of Conduct “prima
facie infringes
Article 33 of the Basic law”, and went on to argue that “the
freedom of choice of occupation is not an absolute right” but “can
be subjected to limitation based on the usual test ie existence
of legitimate aim, a rational connection between the legitimate aim
and the restriction in question, and whether the restriction is no
more than necessary to achieve the legitimate aim”.[10]
61. The
Initial Response was expressly adopted in full by the respondent in
the affirmation of the Honorary Secretary filed on 2 February
2015. It was not until when the respondent’s skeleton
argument for the hearing was served that it sought to raise the issue
that Art. 33 was not engaged. This was most unsatisfactory, not
least because the applicant was left with very little time to deal
with it. In my view the Initial Response contained a concession
on this issue. No explanation had been given why it was made in
the first place and why it should be allowed to be withdrawn at the
last moment. Indeed no application was made for leave to
withdraw the concession.
62. Be
that as it may, given the question concerns a constitutional
challenge, I shall discuss the issue on its merits. As a
provision within Chapter III of the Basic Law, Art. 33 is to be given
“a generous interpretation … in order to give to Hong Kong
residents the full measure of fundamental rights and freedoms …
constitutionally guaranteed”: Ng Ka Ling v Director of
Immigration(1999) 2 HKCFAR 4, 29A, 34F-35A; Gurung Kesh
Bahadur v Director of Immigration (2002) 5 HKCFAR 480 at
§§24, 29; Leung Kwok Hung v HKSAR (2005) 8 HKCFAR
229, §16; HKSAR v Chow Nok Hang (2013) 16 HKCFAR
837, §32.
63. Art.
33 has not frequently arisen for interpretation by the courts but
there are two cases which shed some light on the boundaries of the
provision. In Cheng Chun-Ngai Daniel v Hospital
Authority (HCAL 202/2002; 12 November 2004), an
audiologist who had been dismissed from his employment by the
Hospital Authority sought leave to apply for judicial review.
He argued, inter alia, that because audiology was a profession which
opened itself to limited employment prospects with the overwhelming
majority of audiologists having to rely on employment in the public
sector, his wrongful dismissal effectively denied him the right
guaranteed by Art. 33 to continue to work in his chosen occupation of
an audiologist. Hartmann J (as he then was) rejected this
argument, saying:
“54.
Art.33 does not yet appear to have been the subject of judicial
scrutiny. The article appears in Chapter III of the Basic Law and is
therefore a fundamental right guaranteed to all residents. As such,
the right is to be interpreted generously and purposively.
55. However,
as I read the article, even when it is interpreted generously and
purposively, it is not to be interpreted in an active sense, by which
I mean that it does not guarantee the right of employment in any
particular field of occupation. Whether employment can in fact
be obtained will depend on the laws of supply and demand as they
apply in the market place. The article, in my view, is to be
interpreted rather in the light of what it seeks to prevent; namely,
outside of issues of national service, should they ever arise, any
form of conscription to particular fields of occupation.”
64. In GA
v Director of Immigration (2014) 17 HKCFAR 60, the
applicants, three of whom were mandated refugees and one a
screened-in torture claimant, sought judicial review of the Director
of Immigration’s decision not to grant them permission to work
while they remained in Hong Kong. They argued they had a
constitutional right to work contained in various provisions
including, so far as relevant for present purposes, Art. 33 of the
Basic Law. On the scope of Art. 33, Ma CJ, with whom the other
judges of the Court of Final Appeal agreed, held:
“Article
33 does not refer to the right to work in general. It is much
narrower than that, dealing only with the freedom of choice of
occupation. If it was intended that a wider right was to exist, the
article would simply have said so or it would have been made much
clearer, rather than to adopt a somewhat elliptical technique.”
The
Chief Justice also expressly agreed with the following passages in
the judgment of Fok JA (as he then was) in the Court of Appeal in the
same case (CACV 44 – 48/2011; 27 November 2012):
“139.
BL33 has its origins in article 3(5) (§17) of the Joint
Declaration and Annex I Section XIII to the Joint
Declaration (§151) both of which refer to various rights and
freedoms including that “of choice of occupation”. No wider
right to work is expressly referred to. At the time of the
Joint Declaration, the significance of a freedom of choice of
occupation was the practice in the PRC’s planned economy of
assigning students joining universities to specific fields of studies
and occupations after graduation: see Chan and Lim (General
Editors): Law
of the Hong Kong Constitution (Sweet
& Maxwell, 2011) at §24.004.
140.
In my opinion, a right to choose one’s occupation is narrower than
a right to work in general. As the CESCR General Comment No. 18
states, at §6, the right to work is not to be understood as an
absolute and unconditional right to obtain employment but includes
the right to decide freely to accept or choose work. This
demonstrates that the freedom of choice of occupation is therefore
only part of the wider right to work in ICESCR6. If BL33 was
intended to confer more than a freedom of choice, one would have
expected its wording to be different.
141.
Furthermore, the relevant context of BL33 would include the fact that
by reason of BL39, the ICCPR and ICESCR as applied to Hong Kong
include both the immigration reservation, reflected in HKBORO s. 11,
and the UK’s reservation to ICESCR6.[11]
I have addressed the construction of those reservations above and, in
the light of my conclusions as to their proper interpretation, it
would not be right to conclude that BL33, properly construed in its
context, is co-extensive with ICESCR6 since this would be to ignore
the UK reservation to that article.
142.
I would add that this conclusion as to the proper construction of
BL33 is consistent with previous cases dealing with BL33 which have
held that its effect is not to guarantee a right to be employed
either generally or in any particular field, but instead, is to
protect against conscription to particular fields of occupation:
see Cheng Chun-ngai Daniel v Hospital Authority, unrep.,
HCAL 202/2002 (12 November 2004) at §55; Financial
Services and Systems Limited v Secretary for Justice, unrep.,
HCAL 101/2006 (6 July 2007) at §§49-53; Ng King
Tat Philip v Post-Release Supervision Board, unrep., HCAL 47/2010
(23 August 2010) at §§116-117. See also, Hong
Kong’s New Constitutional Order (2nd Ed.) by
Professor Yash Ghai at pp. 435-436.
143.
In my view, therefore, the right conferred by BL33 is a passive or
negative right of freedom to choose an occupation, but does not imply
a right to take up available employment in the first place. Nor
does it confer an unqualified right to obtain employment, which is
necessarily subject to market forces and also subject to legal
constraints, such as visa and qualification requirements.”
65. The
applicant is not seeking to enforce a general right to work or a
right to employment, nor is he asserting a right, in Mr McCoy’s
words, “to practise a chosen profession in whatever manner he wants
without any restriction or regulation by the governing body”.
On behalf of the applicant Mr Parker accepted that the right
conferred by Art. 33 is a qualified right and may in principle be
made the subject of limitations or restrictions, such as
qualification requirements for entry into a profession as
contemplated by Art. 142 of the Basic Law.
66. The
respondent has raised no dispute that the applicant has had the
requisite education and training and is in possession of the
necessary knowledge and skill to qualify him to practise as a
barrister. The salient question is whether he can both practise as a
barrister and work as a neuro-beautologist. Paragraph 23 of the
Code – in particular the Supplementary Occupation Rule – forbids
it, subject to the Bar Council’s permission, which has been refused
in this case.
67. It
was argued by the respondent that the restraint on concurrent
occupation is an internal ethical standard attuned to the specific
conditions of practice at the Hong Kong Bar. It does not follow
however that the restriction is an essential, integral part of being
a barrister, in the same way as, for example, dealing with children
is an integral part of being a school teacher, so that a person
cannot choose one without taking the other.
68. It
is not clear whether the respondent would go so far as to contend
that Art. 33 is concerned solely with the right against conscription
or compulsory allocation to assigned fields of occupation. In
my opinion the passages in the judgments in GA v Director of
Immigration do not support such a narrow interpretation.
Art. 33 refers to freedom of choice of occupation. That freedom
is in my view curtailed both where a person is compelled to take up
an occupation against his wishes, and where he is prevented from
pursuing an occupation of his choice. Without paragraph 23 of
the Code, the applicant could prima facie both
practise at the Bar and take up supplementary occupation (including
the practice of neuro-beautology). With paragraph 23 in place and
absent permission from the Bar Council, he cannot do so without
risking disciplinary sanctions as a barrister. Giving the words
in Art. 33 their ordinary meaning, it seems to me that in a real and
substantial way, the applicant’s freedom of choice of occupation
has prima facie been restricted by paragraph 23.
It probably does not matter whether one characterises it as a
restriction on the applicant’s freedom to practise as a barrister,
or his freedom to practise as a neuro-beautologist, or both.
If, for example, a man is qualified to practise both law and
medicine, but because of rules imposed by one of the professions he
cannot freely practise in both occupations, it seems to me Art. 33 is
engaged. In fact it appears that Mr McCoy accepted that this
conclusion would follow on a natural reading of Art. 33. He
submitted however that “[t]he Article cannot literally mean what it
might appear to say” – a submission that seems to seek to place a
restrictive, rather than generous, interpretation on the article.
The reason given was that otherwise, for example, an unqualified
person could practise as a medical practitioner. But that is a non
sequitur. No one disputes that even if Art. 33 applies,
qualification requirements for professionals may with justification
be imposed: see Art. 142. The question under consideration is
simply whether Art. 33 is engaged. For the reasons I have
endeavoured to give I conclude that it is, and that paragraph 23 of
the Code “prima facie infringes Article 33 of the Basic
law” as is conceded (in my view correctly) by the respondent.
VII.
ISSUE 2(B) – WHETHER THE RESTRICTION IS PRESCRIBED BY LAW
69. Art.
39 of the Basic Law provides that any restriction on fundamental
rights must be “prescribed by law”. This includes the
requirement of accessibility and certainty. Mr Parker mounted a
root and branch challenge against paragraph 23 in this respect,
contending that all the restrictions contained in paragraph 23 of the
Code are vague and insufficiently clear or precise to meet the
requirement that the restrictions are “prescribed by law”.
70. In
an oft-quoted passage in Sunday Times v United Kingdom (No.
1) (A/30) (1979-80) 2 EHRR 245, the European Court of Human
Rights stated the requirement in these terms:
“First,
the law must be adequately accessible: the citizen must be able to
have an indication that is adequate in the circumstances of the legal
rules applicable to a given case. Secondly, a norm cannot be regarded
as a ‘law’ unless it is formulated with sufficient precision to
enable the citizen to regulate his conduct: he must be able - if need
be with appropriate advice - to foresee, to a degree that is
reasonable in the circumstances, the consequences which a given
action may entail. Those consequences need not be foreseeable with
absolute certainty: experience shows this to be unattainable. Again,
whilst certainty is highly desirable, it may bring in its train
excessive rigidity and the law must be able to keep pace with
changing circumstances. Accordingly, many laws are inevitably couched
in terms which, to a greater or lesser extent, are vague and whose
interpretation and application are questions of practice.”
The
passage has been adopted by the Court of Final Appeal in Shum
Kwok Sher v HKSAR (2002) 5 HKCFAR 381 at §§63 & 89.
71. In Sabapathee
v The State [1999]
1 WLR 1836 at 1843, Lord Hope, giving the opinion of the Privy
Council, stated that the precision which a law needs to exhibit to
avoid being struck down as unconstitutional will necessarily vary
according to the subject matter.
72. While
the requirement of “prescribed by law” has often been invoked in
challenges against criminal offences as being vague and uncertain,
the requirement may also be applied to assess whether a discretionary
restriction on fundamental rights is constitutional. In Leung
Kwok Hung v HKSAR, supra, the Court of Final Appeal
was concerned with the discretion conferred by the Public Order
Ordinance (Cap. 245) on the Commissioner of Police to object to a
public procession being held on the ground of “public order (ordre
public)”. In their joint judgment, the majority of the Court
stated at §29:
“A
law which confers discretionary powers on public officials, the
exercise of which may interfere with fundamental rights, must give an
adequate indication of the scope of the discretion. The degree of
precision required of the law in this connection will depend upon the
particular subject matter of the discretion.”
In
the result they held (at §77) that the expression “public order
(ordre public)” as a concept of constitutional norm taken from the
ICCPR did not give an adequate indication of the scope of the
discretion and the discretion fell foul of the constitutional
requirement of “prescribed by law”.
73. In Malone
v United Kingdom (1984) 7 EHRR 14, the question arose as to
the lawfulness of interception of communications effected by the
police with reference to the right to respect for private life and
correspondence. The European Court of Human Rights held (at
§68) that a law which confers a discretion
“must
indicate the scope of any such discretion conferred on the competent
authorities and the manner of its exercise with sufficient clarity,
having regard to the legitimate aim of the measure in question, to
give the individual adequate protection against arbitrary
interference”.
74. In de
Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries,
Lands and Housing [1999] 1 AC 69, the measure in question
was a provision in the Civil Service Act of Antigua and Barbuda that
prohibited a civil servant from publishing “any information or
expressions of opinion on matters of national or international
political controversy”. The Eastern Caribbean Court of Appeal
accepted that the prohibition would, on its own, infringe the
applicant’s freedom of expression, but held that the prohibition
was qualified by another provision in the Constitution so that it
only applied where the civil servant’s forbearance from such
publication was “reasonably required for the proper performance of
his official functions”. In the opinion of the Privy Council,
however, that guidance was not sufficiently precise to secure the
validity of the provision and that even under the formulation
suggested by the Court of Appeal, the civil servant would be “left
with no clear guidance as to the exercise of his constitutional
rights” (see pp 78F-79A).
75. As
submitted by Mr McCoy, however, the approach adopted by the courts in
examining the precision and certainty of criminal law is not
necessarily fully applicable to a professional code of conduct.
In Chan Hei Ling Helen v Medical Council of Hong Kong, on
appeal from a disciplinary inquiry held by the Medical Council over
the conduct of a doctor, the courts had to deal with an argument that
the rule against the public endorsement or promotion by doctors of
commercial brands of medical or health-related products was not
prescribed by law. The doctor was charged with “misconduct in
a professional respect”. The factual basis of the charge was
that she sanctioned, acquiesced in or failed to take steps to prevent
the appearance of her name, title, photographs and statements in a
newspaper advertisement in which she endorsed a particular line of
health products with which she had a financial relationship.
The Court of Appeal held ([2009] 4 HKLRD 174 at §§35-42) that the
disciplinary offence in question, namely, “misconduct in any
professional respect” was not too uncertain. The applicable
professional code was expressly stated to be “only a guide and …
by no means exhaustive”. The code described professional
misconduct by reference to the doing of “something which will be
reasonably regarded as disgraceful, unethical or dishonourable by his
professional colleagues of good repute and competency”.
Citing Gardiner v General Medical Council (1961) 105
Sol Jo 525, Le Pichon JA stated that the norms for professional
conduct may be unwritten (§38) and further (at §39):
“Professional
misconduct, by its nature, can take many different forms and include
a wide spectrum of circumstances. The profession, being conditioned
by written and unwritten rules, is given fair warning that the fact
that there has been no breach of the code does not preclude a finding
of professional misconduct. Where, as in the present case, the
unwritten rule is prescribed through content, its parameters may be
imprecise and may vary over time because of the need to keep pace
with, and to adapt to, changing circumstances. But the fact that the
parameters are imprecise does not render the unwritten norm
unconstitutional. …”
76. Her
Ladyship also noted that in Roylance v General Medical
Council (No. 2) [2000] 1 AC 311, the Privy Council had
acknowledged “the impossibility in changing circumstances and new
eventualities of prescribing a complete catalogue of the forms of
professional misconduct which may lead to disciplinary action”.
The Court of Appeal held that the restriction satisfied the
requirement of certainty and accessibility and was thus “prescribed
by law” for the purposes of Art. 39 of the Basic Law.
77. The
Court of Final Appeal agreed with the Court of Appeal’s conclusions
on this part of the case ((2010) 13 HKCFAR 248 at §81). In his
judgment in which all the other members of the Court concurred,
Bokhary PJ stated (at §82) it was not unconstitutional that under
the safeguards of a fair system of adjudication and appeal, persons
are held to the customary ethics of their profession unless the
particular rule of ethics involved is irrational.
The
Supplementary Occupation Rule
78. In
the light of these principles, does the Supplementary Occupation Rule
pass muster? This restriction requires a barrister to obtain
the Bar Council’s permission before engaging in any supplementary
occupation. The conditions for the exercise of this power are
nowhere specified in the Code. Nor does the circular which
announced to members the amendments to the Code in 2009 explain the
considerations involved. All it stated was:
“Every
such application [for permission to engage in a supplementary
occupation] will be considered by the Bar Council on an individual
basis by reference to all the relevant facts and circumstances
existing at the time of the application …”
79. There
is nothing to suggest that this is merely a procedural requirement
for the enforcement of the other three rules in paragraph 23.
On the contrary the evidence suggests that the Supplementary
Occupation Rule is a separate substantive rule by virtue of which the
Bar Council may refuse permission for various reasons.
80. As
an ex post facto explanation, the affirmation filed
by the respondent in these proceedings explaining the process of
dealing with applications for permission to engage in supplementary
occupations is not a document generally accessible to members of the
Bar. In any event, that evidence is far from clear. In
various places the evidence refers to the question as whether the
supplementary occupation is “compatible” with practice at the
Bar, suggesting that compatibility is one of the criteria for the Bar
Council to give special permission under paragraph 23(3).
The notion of compatibility is, however, not found in the Code
(except in the heading of Annex 4 which does not shed light on its
meaning) (see further paragraphs 109-110 below). It does not
seem that the term is employed by the Bar Council as a shorthand for
the Reputation Rule. Various passages in the Initial Response
and the respondent’s affirmation referring to compatibility and the
Reputation Rule as separate requirements would suggest that the two
are not coterminous. Further, compatibility is sometimes
expressed as compatibility with practice as a barrister, and
sometimes as compatibility with the Code.
“There
must be no incompatibility, nor may the occupation bring the
profession into disrepute, …”
and
(at p 4):
“[the
applicant] must satisfy … the following requirements: … (2) that
he may not engage directly or indirectly in any other occupation if
his association with that occupation may adversely affect the
reputation of the Bar; … (4) the supplementary occupation is
compatible with Article 23 generally; and (5) the supplementary
occupation is compatible with the Code as a whole”.
The
affirmation of the Honorary Secretary stated (at §11):
“… the
supplementary occupation must not: (a) Be incompatible with the
practice as a barrister; (b) Bring the profession into disrepute …”
82. On
that basis the Bar Council is clearly not simply applying the other
three rules contained in paragraph 23 of the Code when it considers
whether to give permission under the Supplementary Occupation Rule.
It also considers, inter alia, whether the supplementary occupation
is one that is compatible with practice at the Bar. How then
does one determine compatibility? According to the Initial
Response of the respondent, one has to view the supplementary
occupation “with reference to the ethos, status, and traditions of
the profession”. What that means was not elaborated upon
further.
83. The
evidence also shows that the Bar Council has, pursuant to paragraph
23(3) of the Code, refused permission for supplementary occupation on
the ground that there was a risk that the applicant
might use directly or indirectly his status as a barrister to further
another occupation or business, contrary to paragraph 24 of the Code,
which provides:
“A
practising barrister may not use or permit the use of his
professional qualification for the advancement of any other
occupation in which he is directly or indirectly engaged or for
private advantage, save in relation to any occupations which involve
the skills of a barrister.”
Thus
the possibility offuture breach has been seen as a
sufficient reason for rejection. Permission will be refused by
the Bar Council where there is a concern that the nature of the
proposed supplementary occupation in question was a “vehicle for
other business ventures”. Permission will also be refused
where the workload in the intended supplementary occupation is such
that it would “affect [the barrister’s] ability to attend to
his/her practice”. None of these reasons is stated in
paragraph 23 or in any other provision of the Code or in any document
published to the members.
84. The
respondent prayed in aid Annex 4 to the Code, containing as it does
supplementary occupations for which general permission has been
given. Annex 4 does not, however, purport to be a list of
occupations for which special permission may be given on a case by
case basis. Indeed, by definition, occupations that require
special permission will not be on that list. Nor is it possible
to find any basis to apply some kind of ejusdem
generis principle to infer what would be permitted. It
is, in my opinion, simply impossible to deduce with any confidence
from Annex 4 what kind of supplementary occupation will be approved
by the Bar Council on an ad hoc basis.
85. In
these circumstances I am unable to subscribe to the view expressed by
the Honorary Secretary that “[t]he wording of paragraph 23 of the
Code (read with Annexes 4 and 4A) makes it clear … exactly what
would be permitted (and thus approved by the Bar Council) and what
would not”. With respect, the considerations that, on the
respondent’s evidence in these proceedings, would be taken into
account by the Bar Council in considering whether to give permission
under paragraph 23(3) are neither accessible to a barrister generally
nor clear and certain. Paragraph 23(3) of the Code confers on
the Bar Council a power of prior restraint with no principle,
guidance or even indication provided as to the scope of this
discretion and the manner of its exercise.
86. I
say at once I have no doubt at all that in exercising its power under
paragraph 23(3) of the Code, the Bar Council has always acted in good
faith, in the belief that its decision was in the interests of the
Bar and ultimately in the interests of the administration of justice
in Hong Kong. Nor did the applicant make any allegation that
the Bar Council had acted capriciously. The “prescribed by
law” requirement is however not met by an executive body exercising
its discretion with the best of intentions, but by “an adequate
indication of the scope of the discretion” in the law itself
(see Leung Kwok Hung v HKSAR, supra, at §29).
With regard to the power of the Bar Council to approve or disapprove
supplementary occupation, it requires accessibility and clarity in
the criteria to be applied, which appears to me to be lacking in the
existing provision of the Code. Even giving due allowance for
the latitude to be afforded to the Code as a set of professional
rules of ethics as opposed to criminal legislation, in my opinion the
attendant obscurity and uncertainty is such that the Supplementary
Occupation Rule does not qualify as a restriction prescribed by law.
The
other rules in paragraph 23
87. Mr
Parker also attacked the Reputation Rule and the Prejudice Rule as
being too vague and uncertain and not amounting to a restriction
prescribed by law. These issues do not directly arise in these
proceedings. As at present advised, I am inclined to think that
such an attack should fail. The additional occupations in which
barristers may seek to engage are myriad, cannot be exhaustively
enumerated or described, and may well change over time. The
standards in question, namely, where a barrister’s “association
with that occupation may adversely affect the reputation of the Bar”
and a barrister’s “association with that occupation may prejudice
his ability to attend properly to the interests of his clients”,
are in my view reasonably comprehensible to a competent professional
person, not least barristers who, as Mr Parker rightly admitted, can
be assumed to be proficient in navigating complex, rule-based
systems. As to what kind of occupation would bring about the
specified effect on the Bar’s reputation or on a client’s
interests, it seems to me to be a matter that depends on the ethics
of the profession which, as Hughes CJ said in Semler v Oregon
State Board of Dental Examiners 294 US 608 (1935), at p 612,
“is but the consensus of expert opinion as to the necessity of such
standards”. As Ma CJHC pointed out in relation to the medical
profession in Dr Kwok Hay Kwong v Medical Council of Hong
Kong [2008] 3 HKLRD 524 at §22:
“…the
courts have consistently recognized that medical regulatory bodies
(such as the [Medical Council]) are the best placed to determine the
boundaries of medical professional conduct”.
88. Likewise
I do not think the Primary Occupation Rule is itself so vague and
uncertain as to fall foul of the “prescribed by law”
requirement. “Primary occupation” is an ordinary phrase
readily understood, unlikely to present difficulties of determination
for any reasonable practitioner; nor did Mr Parker submit to the
contrary. What he argued, instead, is that coupled with the
discretionary power for the Bar Council to give permission under
paragraph 23(1) of the Code exempting a barrister from the rule
(which appears to be at large) and given in addition the existence of
Annex 4A, the restriction imposed by the Primary Occupation Rule is
of uncertain breadth. This is an interesting argument but as
the question does not directly arise for determination in this case I
prefer not to express a view on it.
VIII.
ISSUE 2(C) – WHETHER THERE EXISTS A RATIONAL CONNECTION TO THE
LEGITIMATE AIM
“Restrictions
on rights protected by Article 36 must pursue a legitimate societal
aim and must be rationally connected with the achievement of that
end, employing measures that do not make excessive inroads into the
protected right. If the restriction is not rationally connected to
the avowed legitimate purpose or if the inroads it makes into the
protected right are manifestly without reasonable foundation, the
Court may declare the measure unconstitutional.”
Supplementary
Occupation Rule
90. Mr
Parker’s main attack under this issue is directed towards the
Primary Occupation Rule and the Supplementary Occupation Rule.
So far as the Supplementary Occupation Rule is concerned, the aim
that it pursues may be divided into two levels: first, the aims
sought to be served by imposing the considerations and criteria that
the Bar Council actually takes into account in deciding whether to
give permission; secondly, the aims sought to be achieved in having a
system requiring the prior consent of the Bar Council before a
barrister can engage in any supplementary occupation.
91. On
the first level, since the scope of the discretion of the Bar Council
under the Supplementary Occupation Rule and the criteria by reference
to which it is exercised are, as they seem to me, unclear, it is
difficult to see with precision what the legitimate aims are that are
pursued by those criteria. In any event those aims can be
served by simply requiring the criteria to be satisfied, without
having a system that necessitates prior permission.
92. On
the second level, the evidence is not clear as to what the legitimate
aim is. Two benefits of the present regime have been mentioned
in the materials. First, in the words of the Honorary
Secretary:
“Where
an application to engage in a supplementary occupation is approved,
the applicant can rest assured that his/her engagement is indeed
compatible with and in accordance with the Code, and with the
practice as a barrister generally.”
93. I
doubt that this can be regarded as a legitimate aim, significant
enough in the context of the imposition of a restriction on a
fundamental freedom. As Mr Parker observed, professionals
and, a fortiori, barristers can generally be expected to
be able to construe their own professional rules and regulate their
own behaviour accordingly. Where a barrister was in doubt,
there would be nothing to prevent him from asking the Bar Council of
his own volition for guidance and nothing to prevent the Bar
Council from giving such advice as it saw fit. To require every
barrister to seek the Bar Council’s blessing before being allowed
to engage in a supplementary occupation seems to me a paternalistic
measure going far beyond what is needed in order to provide the
stated benefit. It is in my opinion not a legitimate objective
to force the comfort of that assurance upon all barristers who are
considering a supplementary occupation irrespective of whether they
wish to have it.
94. In
fact the special committee of the Bar (referred to in paragraph 19
above) recommended in 2008 that supplementary occupation be permitted
generally except where it is inconsistent with any provision of the
Code and that paragraph 23(3) of the Code be replaced with a
provision that asks members to seek the ruling of the Bar Council in
case they are in doubt whether the supplementary occupation
is permissible. The respondent has not explained why that
proposal was eventually not adopted and paragraph 23(3)(a) has been
retained unchanged.
95. Furthermore,
in the context of the statutory disciplinary system of the Bar found
in the Ordinance, the role of the Bar Council is generally the
applicant, ie the prosecutor.[12]
Whether a barrister has breached the Code in any particular case is a
matter ultimately for the Barristers Disciplinary Tribunal, a
statutory tribunal independent from the Bar Council, subject to an
appeal to the Court of Appeal. The Bar Council has no power to
give a binding decision on whether or not the Code has been
breached. Nor is it, strictly speaking, within the power of the
Bar Council to give any assurance that a barrister will not be
prosecuted before the Barristers Disciplinary Tribunal, for where the
Bar Council does not make a reference, it is ultimately a decision
for the Chief Judge of the High Court whether or not to submit a
matter to the Tribunal (see s. 35(2) of the Ordinance).
96. The
second perceived advantage of having a system of prior notice and
permission is stated in the Initial Response of the respondent, which
suggested that the Supplementary Occupation Rule:
“also
protects the Bar as it provides the Bar Council with important
information about profession related matters that it could not
otherwise police or know”.
97. Again
I am unable to accept this as a legitimate aim sufficient to call for
restrictions to be placed on the exercise of a fundamental right.
This seems to me to be an instance of the Bar Council as legislator
making a rule to facilitate the work of the Bar Council as police and
prosecutor. To impose a blanket requirement for prior
permission on the ground that policing problems exist is to subjugate
the right to enforcement convenience. Further, the Bar’s own
special committee had recommended abolishing the requirement without
noting any concern about difficulty of enforcement. In my view
the claim of this advantage as a legitimate aim, if there is such a
claim, is not made out.
Primary
Occupation Rule
98. As
explained above I do not think the Primary Occupation Rule is
directly in issue in this case. In deference however to the
arguments raised by both sides I shall refer to their submissions
below. Mr Parker accepted that the Primary Occupation Rule
pursues a sufficiently important legitimate aim. The aim has
been put in the following way by Mr Anthony Thornton QC in Cranston,
R (Ed), Legal Ethics and Professional Responsibility (1995)
at p 70:
“The
reason for the requirement concerned with full-time practice is to
seek to ensure that a barrister is able to concentrate exclusively on
a case once the preparation for trial, or the trial itself, has
started and to retain the necessary cutting edge required of a
professional advocate. It is necessary, to maintain high standards,
for an advocate to practice advocacy regularly and frequently. The
complaint about many American advocates is that they appear in court
too infrequently to have obtained the necessary experience of the
courtroom.”
99. In
the submission of Mr Parker, the exceptions to the Primary Occupation
Rule break its rational connection to the legitimate aim. Look
at Annex 4A, submitted Mr Parker, and questions immediately spring to
mind: if keeping practice at the Bar a barrister’s primary
occupation is necessary for the barrister to attain or maintain the
requisite level of skill and competence – to retain his “cutting
edge”, why are practising barristers given general permission to be
a member of the Executive Council, the Legislative Council, any
District Council, the Heung Yee Kuk or any rural committee or to act
as a “Village Representative”, even if these positions occupy
more than 50% – even 100% – of their time and energies? Why
should there be standing permission for practising barristers to
teach law (not necessarily Hong Kong law or even common law)
in any jurisdiction, or to administer any law
faculty or law school, even if these activities become their primary
occupations or even engage them full-time? Why should
barristers not be restrained from spending the majority of their time
on “hobbies” that are not occupations?
100. Mr
Parker submitted that these questions show that the Primary
Occupation Rule under-regulates when viewed against
its stated aim. Putting it in another way, he submitted that
the rule over-regulates – it goes further than
necessary – because the exceptions to it show that the restriction
is not considered necessary in order to maintain sufficient
competence and diligence in practice or, in other words, it is not
considered necessary for achieving the aim pursued.
101. In
support of his submission Mr Parker referred to A v Secretary
of State for the Home Department [2005] 2 AC 68, which
concerned a provision in the United Kingdom’s Anti-terrorism, Crime
and Security Act 2001 for the detention of non-nationals if the Home
Secretary believed that their presence in the country was a risk to
national security and he suspected that they were terrorists who
could not be deported because of fears for their safety or other
practical considerations. The House of Lords held that the
statutory provision in question did not rationally address the threat
to national security presented by Al-Qaeda terrorists and their
supporters since it did not apply to United Kingdom nationals, since
it permitted non-national suspects to leave the United Kingdom if
they could safely do so, and since it permitted the detention of
persons not suspected of presenting any threat to national security
as Al-Qaeda terrorists or supporters. In the words of Lord Hope
at §133:
“As
Mr Pannick QC put it for Liberty, section 23 of the 2001 Act is not
rationally connected to the legislative objective. If the threat is
as potent as the Secretary of State suggests, it is absurd to confine
the measures intended to deal with it so that they do not apply to
British nationals, however strong the suspicion and however grave the
damage it is feared they may cause. There is also the point that
foreign nationals who present the same threat are permitted, if they
can safely do so, to leave this country at any time. Here too there
is a clear indication that the indefinite detention of those who
remain here as a means of countering the same threat is
disproportionate.”
102. The
principle was similarly applied in Bank Mellat v HM Treasury
(No 2) [2014] 1 AC 700. In that case the United
Kingdom Treasury had given a direction by statutory instrument
pursuant to the Counter-Terrorism Act 2008 prohibiting all persons in
the financial sector from entering into any business relationship
with the claimant, a major Iranian commercial bank, on the ground
that it was believed that the development of nuclear weapons in Iran
posed a significant risk to the national interests of the United
Kingdom. In the result the Supreme Court quashed the order as
being unlawful. Lord Sumption said at §25 :
“A
measure may respond to a real problem but nevertheless be irrational
or disproportionate by reason of its being discriminatory in some
respect that is incapable of objective justification. …”
His
Lordship however rested his decision not on the ground that the
direction had no rational connection with the objective of
frustrating Iran’s weapons programmes, but on the ground that the
distinction between the claimant and other Iranian banks was an
arbitrary and irrational distinction and that the measure as a whole
was disproportionate. In his words at §27:
“The
direction was irrational in its incidence and disproportionate to any
contribution which it could rationally be expected to make to its
objective.”
103. Further,
as a means of maintaining standards, the Primary Occupation Rule will
only be meaningful if as a result barristers actually spend their
time primarily on legal work. But not all barristers
necessarily receive sufficient instructions for their practice to
occupy the majority of their working hours. The rule forbids
them from engaging in other gainful occupation during the surplus
majority of their working time, but does not compel them to do
anything to maintain or improve their professional competence.
McCoy argued that the fair inference is that such barristers will use
their surplus time to keep up with legal developments, case law and
legislation, because it is in their self-interest to do so. He
argued that, if one cannot practise as a barrister except as a
primary occupation, then one has the incentive to take up every
opportunity for mastering this primary occupation. In other
words, deprivation of the opportunity of alternative employment
creates the imperative for self-enhancement of legal learning and
skill.
104. Mr
Parker also not surprisingly relied on the fact that legal
professions in other jurisdictions either have never had or have
abolished any restriction similar to the Primary Occupation Rule.
Why is the limitation on free choice of occupation not necessary for
the proper functioning of the legal profession in those jurisdictions
and yet somehow is necessary in the Hong Kong Bar? Mr McCoy
argued that overseas jurisdictions are not directly comparable having
regard to their different continuing professional education regimes.
But the question remains as to whether it is a proportionate measure
to retain the rule instead of replacing it with a suitable programme
for continuing professional development.
105. As
I have explained above, the Primary Occupation Rule is not directly
engaged in this case and it is unnecessary for me to express an
opinion on it. Nor am I satisfied that all the evidence
relevant to that question has been filed such as the reasons for the
Hong Kong Bar not to have introduced mandatory continuing
professional education for its members.[13] All
I say at this stage is that Mr Parker’s arguments merit serious
consideration but the question will have to left to another occasion.
IX.
ISSUE 2(D) – WHETHER THE RESTRICTION SATISFIES THE REQUIREMENT OF
PROPORTIONALITY
106. So
far as the Supplementary Occupation Rule is concerned, in light of
the views I have reached on the “prescribed by law” requirement
and the rational connection requirement, the question of
proportionality does not arise.
107. Although
Mr Parker waxed eloquent about the austere effects of the Primary
Occupation Rule on members of the Bar, especially junior barristers,
and argued that they are disproportionate to what is sought to be
achieved and what is actually achieved, the question does not arise
and I decline to enter into a discussion of the proportionality of
the Primary Occupation Rule.
X.
ISSUE 3 – ADEQUACY OF REASONS
108. Mr
McCoy submitted that the Bar Council was not obliged to give reasons
for refusing permission to a barrister to engage in a supplementary
occupation, but it is not in dispute as a general principle that
where reasons are given, even voluntarily, they must be adequate: R
v Criminal Injuries Compensation Board, ex p Moore [1999]
2 All ER 90, 95j; Capital
Rich Development Ltd v Town Planning Board [2007]
2 HKLRD 155, §§97 and 98; Anderson
Asphalt Ltd v Secretary for Justice [2009]
3 HKLRD 215, §102. Adequate reasons do not necessarily mean
elaborate explanation. But in the present context they should
at least enable the applicant to know the ground on which permission
was refused and broadly why the Bar Council had come to its
decision. In my view the reply that the Bar Council was “not
satisfied that [the applicant’s] engagement as a Neuro-Beautology
[sic] would be compatible with [his] practice as a barrister”, even
when read in the context of the preceding correspondence, falls short
of the requirement of the law and fairness. The letter did not
even mention that the supplementary occupation was considered by the
Bar Council, based on the information provided by the applicant, to
be incompatible by reason of its “nature” and “lack of
professional standing”, as has since been explained in the
respondent’s affirmation.[14]
The affirmation stated in the same paragraph that the applicant had
failed to provide sufficient cogent evidence of the nature and
standing of the proposed supplementary occupation. This is
something the applicant ought in fairness to have been told.
Had the applicant been informed he might well have taken steps in an
attempt to address the concern. The reasons for refusal, even
if obvious to the persons who had attended the Bar Council meeting,
were not so self-evident as to make the reply clear and adequate.
109. Further,
as stated in paragraph 80 above, incompatibility with practice at the
Bar is not a concept found in the text of paragraph 23 of the Code or
in any other paragraph. Annex 4 does set out certain
occupations said to be supplementary occupations “approved as
compatible with practice at the Bar”, but does not explain what
that means in the context of the Code. The language appears to
be a remnant of former English practice. A student on call to
the Bar in England used to have to give an undertaking that so long
as he continued to practise as a barrister in England or Wales, he
would not, unless authorised by the Benchers of his Inn or the Senate
of the Four Inns, engage in any other occupation which
was incompatible with practice at the Bar: see W W
Boulton, A Guide to the Conduct and Etiquette at the
Bar (5th ed 1971), p 17; Consolidated Regulations of
the Inns of Court (June 1970), 4th Schedule at (d). The
Council of the Bar of England and Wales had in the past also made
rules stipulating that a practising barrister should not “engage or
be concerned directly or indirectly in any profession, vocation,
trade or business which is, under a current ruling of the Bar
Council, incompatible with practice at the Bar”: W
W Boulton, op cit, at p 18.
110. No
such undertaking or rule however remains in the Code of Conduct the
Hong Kong Bar. There is a provision in rule 14(1)(c) of the
Barristers (Qualification for Admission and Pupillage) Rules (Cap.
159AC) and rule 5(c) of the Barristers (Qualification) Rules (Cap.
159E) that a person is not eligible to become a pupil if he “is
engaged in any occupation which, in the opinion of the Bar Council,
is incompatible with pupillage”. No similar subsidiary
legislation applies to practising barristers generally.
“Incompatible with one’s practice as a barrister” is not a term
the meaning of which the applicant can readily ascertain from
legislation or the Code.
111. Mr
McCoy spent much time criticising the applicant for not providing
sufficient information to the Bar Council about neuro-beautology for
his application to be considered. That seems to me to be
irrelevant since the Bar Council did not reject the application for
lack of information about the proposed occupation. Nor does it
justify giving reasons that are so terse as to be inadequate.
112. To
my mind the Bar Council’s reply gave the applicant no adequate
indication of why it had refused his application.
XI.
CONCLUSION AND ORDERS
113. It
follows from the above discussion that, in my view, paragraph 23 of
the Code and the Bar Council’s decision pursuant to it are amenable
to judicial review, the Supplemental Occupation Rule in paragraph
23(3) of the Code infringes Art. 33 of the Basic Law and is not
justified as a restriction prescribed by law that is rationally
connected to a legitimate aim that it seeks to achieve.
Accordingly it is in my judgment unconstitutional and invalid.
Further, the decision of the Bar Council gave reasons which were
inadequate.
114. For
the foregoing reasons, the application for judicial review succeeds
on both grounds. There will be a declaration that paragraph 23
of the Code of Conduct infringes Art. 33 of the Basic Law insofar as
it prevents a barrister from engaging in any supplementary occupation
without the prior permission of the Bar Council. I give liberty
to apply in respect of the precise wording of the declaration.
115. There
will be an order of certiorari bringing up the
decision of the Bar Council to this court and quashing it.
(Godfrey
Lam)
Judge of the Court of First Instance High Court |
Mr
Timothy Parker, instructed by WT Law Offices, for the applicant
Dr
Gerard McCoy SC and Ms Emma T C Tsang, instructed by Kwok, Ng &
Chan, for the respondent
[1]
Affirmation of the Honorary Secretary at §51.
[2] See
affirmation of the Honorary Secretary at §52.
[3] Form
86, §§32, 49, 51; emphasis added.
[4] Alternatively,
a barrister may become employed and provide legal services
exclusively to his employer: s. 31C. Such a barrister is called
an “employed barrister”. By obtaining an employed
barrister’s certificate, he can on behalf of his employer (and for
the purpose of obtaining an opinion only) instruct a practising
barrister without retaining a solicitor: s. 31C(5). But
that certificate is not necessary for a barrister simply to become an
employed barrister.
[5] The
same applies to employed barrister’s certificates: s. 31C(3).
[6] It
appears that employed barristers who do not hold employed barrister’s
certificates and “non-practising barristers” (defined in the Code
of Conduct at paragraph 180) need not be members of the Bar
Association.
[7] By
the Legal Practitioners (Amendment) Ordinance 2000.
[8] The
respondent’s solicitors, quite improperly, wrote a letter to the
court after the hearing suggesting that was not what counsel meant.
In any event there was no substance in what the letter raised.
[9] S.
39(2) further provides: “The Secretary for Justice shall only issue
a certificate under subsection (1) if he is satisfied that - (a) the
expenses were necessarily incurred by the Barristers Disciplinary
Tribunal or the Bar Council, as the case may be, in exercise of the
powers or duties conferred or imposed by this Ordinance; (b) the
amount of such expenses is reasonable; and (c) the expenses could not
reasonably be recovered from the barrister whose conduct is the
subject of the proceedings before the Barristers Disciplinary
Tribunal, the Court of Appeal or the Court of Final Appeal, as the
case may be.”
[10] See
p 2 of the Initial Response. Further, the Initial Response stated at
p 3: “In view of the matters set out above, it is submitted that
while Article 23 of the Code prima facie infringes the freedom of
choice of occupation under Article 33 BL, Article 23 serves a
legitimate aim, is justified and necessary, and it goes no further
than necessary to ensure that hose aims are achieved.”
[11] The
material reservation was stated as follows: “The Government of the
United Kingdom reserve the right to interpret article 6 as not
precluding the imposition of restrictions, based on place of birth or
residence qualifications, on the taking of employment in any
particular region or territory for the purpose of safeguarding the
employment opportunities of workers in that region or territory”;
see GA
v Director of Immigration (CACV
44 – 48/2011; 27 November 2012) at §102.
[12] See
rule 1 of the Barristers Disciplinary Tribunal Proceedings Rules (Cap
159P)
[13] There
is a programme of compulsory legal education for pupils, required by
the Barristers (Advanced Legal Education Requirement) Rules (Cap.
159AB), but not for members.
[14] §51
of the Honorary Secretary’s affirmation
法庭：大狀有權兼職體雕師
入行十年的大律師，因擁有「體雕師」的資格，遂向大律師公會申請以此作副業來幫補家計，但遭否決。他不服有關決定，亦不滿大律師公會以專業守則限制大律師的副業，去年六月申請司法覆核圖推翻公會決定，高院今年四月聆訊後昨頒下判詞，裁定公會限制大律師的副業屬違憲，有關限制亦欠缺充分理據，判大律師勝訴兼得訟費。
申請人梁思豪昨透過電話受訪指，對獲勝訴感到很開心。他透露自去年入稟後一度放棄當大狀，但最近已重返法律界，並打算繼續以體雕師做副業。梁認為法律系學生日後對副業有更多選擇，亦會有更多大律師因本案裁決而重返法律界，市民「多咗律師揀」，對業界有裨益。他指就算公會決定上訴至終審法院，亦有信心接受挑戰。
判詞透露，梁自○五年九月起成為大律師，去年三月他完成「自然療法」的課程，獲體雕師資格，之後去信大律師公會申請以體雕做副業。他並回覆公會的查詢指，療程每節約一小時，收費介乎三千八百至五千元，他每星期提供服務不多於十七小時。
治療寒背及脊椎問題
而據梁就讀該「自然療法」課程的學院網頁顯示，「體雕學」是透過簡易的脊盤調整技術，迅速矯正歪斜體格，達致消除或改善寒背、頸紋、豐胸修腰及脊椎問題，入學資格亦只需中學程度。
大律師公會代表律師早前陳詞指，公會的專業守則第廿三段雖列明，大律師不得從事有損公會名譽的其他職業，從事副業亦需獲公會批准；而當中獲允許的副業，有講師及傳媒等，但不包括體雕師。律師又指公會並非政府或法定機構，其決定不涉公共政策，本案不適宜以司法覆核進行。
法官林雲浩昨判決指公會的有關守則限制了大律師任副業的情況，違反了《基本法》第卅三條保障香港市民有自由選擇職業的權利，公會在未有充分理據下，作出限制是不合理，因此裁定梁勝訴。
案件編號：HCAL
63/2014
Oriental
Daily 25.9.2015
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