Hong Kong court rules Bar Association’s restriction over second jobs nothing to do with constitutional rights

Barrister to file appeal as court finds move by legal body to bar lawyer from having second occupation did not infringe his freedom of choice of work

PUBLISHED : Friday, 28 October, 2016, 4:08pm
UPDATED : Friday, 28 October, 2016, 11:49pm

Five Uber drivers who face an unprecedented criminal trial over their work with the controversial ride-hailing app have been forced to drop a bid to have their prosecutions declared unconstitutional.

In a dramatic legal twist on Friday, lawyers for the men had no option but to drop a legal challenge to the prosecutions after a ruling by a higher court in a separate case effectively killed off their argument and ensured they will stand trial on a series of road traffic offences on November 30.

The Uber five had claimed the action against them – which they say relates to the conditions of their work with the firm – were in breach of Article 33 of Hong Kong’s mini-constitution, the Basic Law.

The article states that “Hong Kong residents shall have freedom of choice of occupation”, and the drivers had ­contended that Uber had effectively ­denied them that right.

But as their lawyers marshalled their arguments in Kowloon City Court on Friday afternoon, a judgment came down from the Court of Appeal quashing a lower court ruling in favour of barrister Albert Leung Sze-ho – who had used the same argument as the Uber five.

Last year, Leung challenged a ruling by the Bar Association preventing him from taking a second job – in a health-related occupation – on the grounds that it was incompatible with his job as a barrister.

Leung launched a challenge using the same Article 33 argument as the Uber drivers and won in the High Court. It was that decision – by Mr Justice Godfrey Lam Wan-ho – that Friday’s Court of Appeal decision overturned.

Leung’s legal tussle with the Bar ­Association put the spotlight on the issue of barristers looking to earn extra cash by doubling up as practitioners in other fields. Such a move requires formal approval from the association and places the bar relatively high on which ­occupations are deemed suitable for practising barristers.

In overturning the lower court ­decision in the Leung case, judges at the Court of Appeal on Friday ruled that ­Article 33 only meant a Hong Kong ­resident should not be forced to work in a particular field against his or her wish.

It did not cover the freedom to work in any field or occupation he or she chose, chief judge Mr Justice Andrew Cheung Kui-nung said.

Uber drivers Chan Tsz-lun, Sunny Leung Hoi-shun, Lau Kwan-wing, Chan Kin-fung and Luk Chun-pong, aged between 29 and 53, each denied one count of driving a vehicle for hire without a ­permit and one count of using a vehicle without third-party insurance between August 11 and 12 last year.

On hearing of the decision of the higher court in the Leung case, the drivers’ lawyer, Derek Chan, acknowledged defeat and said: “This application must fail on the judgment of the Court of Appeal.”

Presiding Magistrate So Wai-tak said he had prepared a 27-page ruling which shared the view of the Court of Appeal.

The drivers were not required to attend the hearing, but were asked to attend during the trial itself.

So adjourned the case to November 16 for another pretrial session.