Wong Kwai Sang v The Bar Council [2021] 1 HKLRD 455

Steven Kwan appeared for the successful Bar Council in the Court of Appeal in Wong Kwai Sang v Bar Council [2021] 1 HKLRD 455.

This was an application by a summons filed on 21 January 2020 for an extension of time to appeal against a decision of the Barristers Disciplinary Tribunal (the Tribunal) by which W’s name was struck off the roll of barristers. The striking-off was based on W’s convictions after trial in the District Court for using a false instrument, making a false statement on oath, using a copy of a false instrument and theft. Those convictions were affirmed by the Court of Appeal. Leave to appeal to the Court of Final Appeal was refused by the Appeal Committee. The background was that the Tribunal found that W had engaged in conduct which might bring the barristers’ profession into disrepute and/or was prejudicial to the administration of justice and that he had engaged in dishonest conduct. The Tribunal’s decision dated 5 August 2019 was attached to an email of that date to the solicitors for the Bar Council and W. That attachment did not bear the manuscript signatures of the Tribunal members. On 13 December 2019, W received a copy of the decision dated 5 August 2019 bearing the Tribunal members’ signatures. The Tribunal’s decision on sentence was rendered on 20 November 2019. It bore the Tribunal members’ manuscript signatures. On 17 December 2019 W filed a notice of appeal against a decision of the Tribunal said to have been given on 13 December 2019 but annexing the Tribunal’s decision dated 5 August 2019. The Registrar of Civil Appeals directed that W do by 21 January 2020 file and serve a summons for an extension of time to appeal. Such a summons was filed. The extension sought thereby was opposed by the Bar Council.

Held, dismissing the application for extension of time to appeal and making an order striking out and dismissing the appeal, that:

(1)        The disciplinary process was not concluded until 20 November 2019 when the striking-off order was made under s 37 of the Legal Practitioners Ordinance (Cap.159). As the Tribunal correctly informed W, he could appeal within 21 days from that date. The requirement that the Tribunal’s order be signed under s 37A of the Ordinance was not a precondition of the running of the appeal period under s 37B(1) of the Ordinance. Therefore, W’s calculation based on receipt on 13 December 2019 of a signed copy of the decision dated 5 August 2019 was misconceived. The statutory appeal period expired on 11 December 2019 before W served his notice of appeal at 6:17 pm on 19 December 2019. Without an extension, the appeal was incompetent and liable to be struck out (Fok Hing (HK) Trading Ltd v Gunawan-Indra (CACV 74/2014, [2014] HKEC 1108), Kwok Cheuk Kin v Leung Chun Ying [2018] 4 HKC 440 applied). (See paras 21-28.)

(2)        W’s delay was not substantial. He filed his notice of appeal six days after the deadline of 11 December 2019. His application for an extension time shall be considered on the basis that he would have filed on 11 December 2019 but for his misguided calculation of the relevant appeal period. His reason for the delay was, however, neither valid nor reasonable (Lee Chick Choi v Best Spirits Co Ltd (HCMP 371/2015, [2015] HKEC 899), Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 applied). (See paras.29-33.)

(3)        In any event, there was no reasonable, let alone real, prospect of success on the merits of the appeal. W had provided no particulars in support of his grounds of appeal that identified any specific errors on the Tribunal’s part or indicated that the complaints against him were incorrect or unreasonable. There was nothing to support his grounds of appeal or indicate that the Tribunal’s findings were incorrect or unreasonable (Lee Chick Choi v Best Spirits Co Ltd (HCMP 371/2015, [2015] HKEC 899), Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 applied). (See paras.34-37.)

(4)        The crux of the matter was that the Tribunal was correct in ruling that W was barred from mounting a collateral challenge to his criminal convictions. Though W was a respondent in the disciplinary proceedings as opposed to a party initiating a second set of proceedings, his attempt to re-open the merits of his convictions was nonetheless a collateral challenge to findings reached in a criminal trial which his exhaustive attempts to appeal against had been unsuccessful. The rule against collateral challenges was equally applicable to disciplinary proceedings. It mattered not that the parties in the disciplinary proceedings were not identical to those in the criminal proceedings (Hunter v Chief Constable of the West Midlands Police [1982] AC 529, Re a Solicitor(QBD, The Times, 18 March 1996), Shepherd v Law Society [1996] EWCA Civ 977, Ho Kin Man v Commissioner of Police [2014] 3 HKLRD 478, Lee Siu Hong v Law Society of Hong Kong (CACV 155/2014, [2016] HKEC 796) applied). (See paras 38-55.)

(5)        The Tribunal was correct in saying that W had not provided any fresh evidence that entirely changed the aspect of the case. His evidence did not fall within the exception laid down in Hunter. The challenge was an abuse of process. Since there was no viable basis for a collateral challenge, all the grounds were obviously without merit. There was no reasonably arguable case for challenging the Tribunal’s conclusions. The appeal had no prospect of success on the merits (Hunter v Chief Constable of the West Midlands Police [1982] AC 529 applied). (See paras.56-61.)

[The above is excerpted from the headnote to the report in HKLRD.]


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