Man with indecent assault conviction ‘fit and proper person’ for admission to Bar, Hong Kong court rules
In landmark case, Court of Appeal backs would-be barrister who had his application rejected last year after indecently assaulting a 14-year-old girl in 2010
An aspiring barrister who was deemed not fit and proper for admission to the Bar because of an indecent assault conviction in 2010 was finally admitted by the High Court on Thursday after two years of controversial debate.
The man, identified only as “A” in court, had applied to the Bar Association’s Bar Council for a practising certificate but the secretary for justice made an objection to the Court of First Instance, which has the final say on admissions. In a first, the justice chief’s objection was not backed by the association.
Siding with the justice chief, Mr Justice Anthony Chan Kin-keung concluded last year that the applicant was “not a fit and proper person” because he committed a serious offence and his record did “not tally with the expectations of the community of Hong Kong on the standard of the Bar”.
But on Thursday Court of Appeal vice-president Mr Justice Johnson Lam Man-hon found the judge had erred with no basis to support his understanding of the community’s expectations, and criticised his approach as “too dogmatic and inflexible”.
“The judge unwittingly focused solely on the conviction and the sentence and in so doing failed to apply a forward-looking perspective,” he said in a 19-page judgment.
“Since his conviction, the applicant has led an honest and decent life … We are satisfied that the applicant is a fit and proper person for admission to the Bar.”
The landmark case raised the question of whether a person could still meet the benchmark of “fit and proper” following a criminal conviction.
The applicant was a 22-year-old final-year radiation therapy student at Polytechnic University when he was convicted of indecently assaulting a 14-year-old girl on her way to school.
Fanling Court found that he had “intentionally and purposely” touched the victim’s breast and clutched her buttocks.
He was jailed for two weeks after pre-sentencing reports showed that he still maintained his innocence after the conviction but that his risk of reoffending was low.
His appeal to the High Court was dismissed and he failed to take his case to the Court of Final Appeal.
Meanwhile, he went on to read law at Chinese University, worked as a legal clerk and served his pupillage under three pupil masters after he decided to become a barrister.
The pupil masters certified him as “fit and proper” and described him as a happily married man with integrity who was hardworking, able and responsible.
An application for admission was filed in August 2016.
The Bar Association did not oppose his application. But the secretary for justice raised concerns about the lack of disclosures on the applicant’s appeal against his conviction as well as the outcome of disciplinary proceedings by the Radiographers Board, which had reprimanded him.
Neither party was aware of any previous application of this nature in which the justice chief and the association were in disagreement.
Citing a High Court of New Zealand judgment, Lam said the test of “the fit and proper criterion” was a forward-looking one for evidence of the person’s change of character or reformation, with due recognition given to the circumstances of youth as well as the facts of the case.
The burden was on the applicant to satisfy the court that he was fit and proper, based on inquiries directed towards his present character and integrity, best assessed by those having close and long-term association with him.
The court would also have to consider whether the conviction was so serious that the offender could never be considered as fit and proper. Lam said that was not the present case.
“It is apposite to highlight though high standard of integrity and probity should be expected we are dealing with human beings rather than paragons,” Lam continued.
“Though the offence is a serious one … it was clearly an offence wholly out of character … We cannot find any evidence to even remotely suggest that the applicant would be a risk to vulnerable persons.”
The two other judges presiding over the case are justices Ian McWalters and Jeremy Poon Shiu-chor.