Barristers – Fit and Proper But Not Perfect

As previously noted in Industry Insights (August 2017 and June 2018), Re A is a rare example of a contested application for admission to the Bar pursuant to s. 27(1) of the Legal Practitioners Ordinance (Cap. 159). That application was dismissed at first instance but allowed by the Court of Appeal.

The Secretary for Justice (who opposed the application for admission) twice sought permission to appeal to the Court of Final Appeal ("CFA"); from the Court of Appeal and the Appeal Committee of the CFA. Both attempts were unsuccessful. In Re A [2018] HKCFA 52, the Appeal Committee of the CFA gave detailed reasons for its refusal.

The application for permission to appeal appears to have focused on the court's approach to an application for admission where the applicant has been convicted of a criminal offence resulting in a custodial sentence and has allegedly shown no remorse as part of a process of "rehabilitation".

At first instance, the applicant's alleged lack of remorse appears to have assumed a greater significance than it should have done in the dismissal of his application. Taking a more holistic approach (described as "multi-faceted"), the Court of Appeal allowed the application for admission and, in the process, gave general guidance for determining whether (among other things) an applicant with a criminal conviction can demonstrate on the facts that he or she is fit and proper to be admitted to the Bar.

Interestingly, in refusing permission to appeal, the Appeal Committee specifically approved of the Court of Appeal's guidance in such matters (at para. 22 of the Court of Appeal's judgment). Therefore, that passage is (for now) the authoritative guidance for determining an applicant's fitness and probity against the background of (among other things) a prior criminal conviction.

The Court of Appeal's approach is commendably fair. As the Appeal Committee notes in its written reasons – each case turns on its facts, rehabilitation is relevant and a custodial sentence following a conviction is a serious factor in the court's deliberations. However, it is wrong for the court to approach the matter on the basis that "the personal and professional sides of a person's conduct cannot be disassociated". Furthermore, it does not follow that a process of rehabilitation must necessarily be accompanied by an admission of guilt. Rehabilitation could be shown by other forward looking factors – not least (for example), the applicant's lifestyle over a long period since the conviction and credible references from the applicant's pupil masters.

It appears that the CFA has not previously provided authoritative guidance in this context – namely, aspects of the meaning of "fit and proper" with regard to a person with a criminal conviction (resulting in a custodial sentence) who seeks admission to the legal profession. Therefore, the Appeal Committee's refusal to grant permission to appeal is all the more telling and the guidance provided by the Court of Appeal ([2018] HKCA 272) is all the more important.

That guidance is relevant to any person who seeks admission to a profession in Hong Kong on the basis of a test of "fitness and probity". The Hong Kong Bar Association's consistent position in not opposing the application for admission has much to commend it (on the facts). That said, it is worth noting that the conviction in question was not one of serious dishonesty or for an offence the severity of which was such to make admission as a lawyer all but impossible.

Jurisdictions: 

Partner, RPC

Senior Consultant, RPC