BAR COUNCIL OF THE HONG KONG BAR ASSOCIATION v. A BARRISTERS DISCIPLINARY TRIBUNAL APPOINTED UNDER SECTION 35A OF THE LEGAL PRACTITIONERS ORDINANCE (CAP 159)

HCAL 159/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 159 OF 2014

___________________

___________________

______________

D E C I S I O N

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1.  The parties to the proceedings by joint application seek an order by consent that the application for judicial review be withdrawn and there be no order as to costs of the application for judicial review and of the consent summons.

2.  On 3 March 2015, I granted the Bar Council, the applicant, leave to judicially review the decision of a Barristers Disciplinary Tribunal.  I found that the grounds advanced by leading counsel on behalf of the Bar Council were reasonably arguable.  See Re A Barrister [2015] 2 HKLRD 150.  Upon leave being granted, the respondent indicated it would take a neutral stance, whilst the interested party indicated he would participate in the proceedings.

3.  On 26 August 2015, a consent summons was issued by the respective solicitors for the applicant and the interested party for an order by consent that the judicial review be withdrawn and no order as to costs.  Nothing further was filed with the Court. 

4.  By my direction dated 28 August 2015, the parties were requested to comply with the requirements in paragraph 23(1) of the Practice Direction SL-3 which reads:

“Where parties are agreed as to the terms on which applications for judicial review can be disposed of, and require an order of the Court to put those terms into effect, they should file a draft consent order, together with a short statement signed by the parties’ solicitors setting out the matters relied upon as justifying the making of the order, and citing the relevant authorities and statutory provisions. The order and the statement will then be submitted to a Judge. If he is satisfied that such an order can be made, the proceedings will be listed for hearing and the order will be announced in open Court without the parties or their representatives having to attend. If the Judge is not satisfied that such an order can be made, the proceedings will be listed for hearing in the normal way.”

5.  In response to my direction, on 17 September 2015, a joint statement was submitted in the following terms:

“1. Having received representations from Counsel for the Interested Party, and having considered the exceptional and unprecedented nature of these proceedings, and also having been properly advised, the Applicant had convened a meeting on 23 July 2015 and in the same meeting formally resolved not to continue with these proceedings;

2. Hence, the Applicant and the Interested Party (with the Respondent having indicated no intention to participate in these proceedings by letter dated 15 April 2015), by consent, discontinue these proceedings under the Rules of the High Court (Cap. 4A), Order 21 Rule 2(4) in terms of the Consent Summons filed with the Court on 26 August 2015.”

6.  On 25 September 2015, I made a further direction that a hearing be held for the parties to address me on the requirements of the Practice Direction and the form of the short statement in the present case. 

7.  As required by the Practice Direction the parties in seeking a consent order from the Court to dispose of the judicial review need to provide a short statement setting out the matters relied upon as justifying the making of the order and citing if necessary any relevant authorities and statutory provisions.  This is required so that the Judge from whom the order is sought can be satisfied that such an order can be made, and if he is not so satisfied then the proceedings are to be listed for hearing in the normal way. 

8.  In the commentary of Hong Kong Civil Procedure 2016 in relation to the relevant order of the Rules of Court, Order 53, at paragraph 53/14/55, it is stated that an application for judicial review is something more than a legal suit between parties and there is a public interest in the disposal of applications for judicial review without a hearing when an order may be made concerning an inferior court, tribunal or public body.  Parties by consenting to a particular course, should not by doing so, dictate to the Court how it should exercise its discretionary jurisdiction once it has been commenced, for the Court still had to satisfy itself that the relief sought was justified on the case established before it.

9.  As I observed in my direction to the parties, these comments seem to be directed to situations where an order is made in relation to a matter where a Court needs to be satisfied that the order is just and appropriate bearing in mind the interests of the parties and any wider public interest that may be also relevant to the case.  It will always remain for the Court to satisfy itself that the relief sought is justified on the case established before it even though it is in effect unopposed.  I pointed out that in the present case the consent order is to withdraw the proceedings however this review had reached the stage where leave had been granted after a considered decision had been made by the applicant to make the application for leave by listing a number of grounds which had been supported by comprehensive and detailed written argument which was elaborated upon in oral argument at the leave hearing.  I also pointed out that the subject matter of the review raised issues in relation to the professional conduct of a barrister in the context of a criminal trial and therefore sought to have addressed matters that were obviously of importance to the public interest. 

10.  In Law Yiu Wai, Ray v The Medical Council of Hong Kong & Ors, HCAL 46/2015, 12 October 2015, unreported, I discussed generally the underlying principles of the Practice Direction.  I noted that the purpose of the short statement was to ensure that the order sought could be properly and justly made.  I explained that a Court is not a rubber stamp and whenever it makes an order by consent of the parties or after a contest between them it does so because it is just and appropriate. That means not only necessarily taking into account the interest of the parties but also any wider public interest that may be relevant to the case.  Hence, a short statement should provide sufficient reasons and circumstances that would justify and legitimise the order of the Court.

11.  On 6 October 2015, a supplemental joint statement was submitted by the parties in accordance with the Practice Direction. So far as material it read:

“1. In light of the Court’s directions dated 25^th September 2015 (“Directions”), the parties have come to agreement that that the “Representation” referred to in the “Joint Statement Pursuant to Paragraph 23(1) of Practice Direction SL3 and Order Dated 28 August 2015” dated 17^th September 2015 be provided to the Court for his Lordship’s further consideration.

2. The Representation is now annexed to this statement.

3. The parties both invite the Court to re-consider the Directions and decide whether a hearing to address the issues highlighted by the Court therein is still necessary.

…”

12.  It would appear from the original and supplemental short statements that the Representation by counsel on behalf of the interested party to the Bar Council was the basis for its decision agreeing with the interested party to withdraw the application.

13.  The Representation is dated 21 July 2015 and was tabled at Bar Council meeting on 23 July 2015.  It makes various representations as to why the application should be withdrawn and it is appropriate that I provide a brief summary of them. 

14.  It was requested that the Bar Council should not continue with the judicial review in light of the decision of the Court of Appeal (Barma, Macrae and McWalters JJA) in Wong Kam Kuen, Catherine v The Bar Council, CACV 174/2014, 30 June 2015, unreported, which concerned another counsel who was involved in the same case as the interested party where she took the same course of action as he did not to call a particular witness.  The Court held that her advice to do so was correct as a matter of law.  It was submitted that the Court’s decision was directly relevant to the interested party’s case as it held in that case that counsel’s own professional advice and decision not to call the witness was correct as a matter of law, and therefore did not involve any negligence or breach of professional duty on her part.  It was contended on behalf of the interested party that it would follow that his decision not to call this particular witness was equally correct as a matter of law so that there was no question of his conduct resulting in any substantive injustice to his client. 

15.  Counsel for the interested party pointed out that the Bar Council’s application for judicial review was an exceptional remedy as there is no right of appeal against an acquittal by the Bar Disciplinary Tribunal.  It was submitted that in these circumstances the jurisdiction should only be invoked by the Bar Council in the clearest and most compelling cases and that in light of the Court of Appeal’s decision in Wong Kam Kuen, Catherine this case did not fall into that category.  

16.  It was argued that there were two principal reasons for this.  First, the decision by the interested party not to call a witness for the defence was not unreasonable or negligent in light of the Court of Appeal’s decision in Wong Kam Kuen, Catherine.  It was noted that the original Court of Appeal decision that quashed the conviction of the interested party’s client was based on a finding that the interested party was guilty of flagrant incompetence in failing to call the witness and that it had reached its finding without offering the interested party an opportunity to be heard on the reasons for his decision.  It was submitted that the finding of flagrant incompetence had been effectively reversed by the Court of Appeal in Wong Kam Kuen, Catherine where it was decided that it was right not to call the witness after hearing argument as to the strong tactical risks of calling the witness, and as to the very limited benefit to the defence of calling him, if any. 

17.  Secondly, the alternative complaint that the interested party should have consulted and advised his client or at least advised him more fully before deciding not to call the witness, was not made out in the circumstances of the present case.  It was submitted that no duty arises where counsel reasonably forms the view that a particular witness was not in fact exculpatory, or would not, in the end, assist the defence case, and might in fact damage it.  It was pointed out that this was the position that was found by the Tribunal in the intended party’s case that he in fact had no duty to consult the client on this particular decision.  Cited as authority was the passage from the Court of Final Appeal case of Chong Ching Yuen v HKSAR (2014) 7 HKCFAR 126 referred to by the Court of Appeal in Wong Kam Kuen, Catherine at paragraph 45. 

18.  It was stated that the Court of Appeal decision made the point that the law might be developing and changing so as to require a greater degree of consultation from counsel, but it was argued that it was not appropriate to invoke the possibility of a change in the law to justify the judicial review application which in effect was an appeal against an acquittal for disciplinary misconduct.  It was further argued that this case on a sensible appraisal was not one where the decision of the Tribunal was Wednesbury unreasonable or an obvious error of law. 

19.  My reading of the Court of Appeal’s judgment in Wong Kam Kuen, Catherine does not accord with the suggestion that it was saying that the law was developing and changing so as to require a greater degree of consultation from counsel. 

20.  The judgment of the Court of Appeal was given by Macrae JA who at paragraph 40 explained it was not an issue in that case that the appellant failed to advise her client at all about the relevance and significance of the witness’s evidence and that she considered it necessary to at least discuss with her client the advantages and risks of calling the witness and to explain why she considered his evidence ultimately to be unhelpful to what she conceived to be the real issue in the case. 

21.  Macrae JA, in paragraph 44, addressed the contention that counsel’s autonomy and discretion when conducting a criminal trial cannot be contained or qualified unless and until his instructions were withdrawn, and that this would encompass not only decisions made in the conduct of the trial but also advice (or, perhaps, the lack of it) given to the lay client in the course of the proceedings.  In the subsequent paragraphs, he made certain observations about the argument.  He quoted a passage from Chong Ching Yuen where Sir Thomas Eichelbaum NPJ at 142J discussed the conduct of counsel in relation to an allegation of flagrant incompetence by counsel conducting a criminal trial and during the course of his discussion he referred to the cases of Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914 and Rondel v Worsley [1969] 1 AC 191. 

22.  Macrae JA explained that whilst they agreed with the statements of principle in the authorities so far as they delineate as a general rule the authority and discretion of counsel in his conduct of a criminal trial, they would add an important caveat which was that times have changed considerably since 1967 when Rondel was decided, let alone 1876 when Batchelor was decided. 

23.  Macrae JA added at paragraph 46:

“Litigants are far more educated today than they were over a century, or even a generation, ago as to their rights and entitlements generally and in their expectations specifically of the performance and professionalism of those acting on their behalf. Equally, professionals are far more conscious of their clients’ knowledge of their rights and entitlements and, as a result, far more aware of their clients’ expectations.”

24.  He explained that the sea change in public awareness and education had been accompanied and encouraged by the enactment of legislation addressing individual rights and matters of fairness.  He noted by way of obiter at paragraph 48:

“These developments and changes in legislation and public awareness have at the same time also resulted in a greater expectation by the public and practitioners alike of the need for judges and tribunals to give reasons and to account for their decisions. It would be strange if counsel were to remain exempt from these same trends and influences so far as advising and, in appropriate circumstances, explaining and discussing their advice with their clients.”

25.  Macrae JA pointedly stated at paragraph 49 that this greater awareness of rights and expectations by the general public had been accompanied by a greater vigilance by professional bodies in upholding the professional standards of their members.  He was not, in my view, suggesting a possibility of change in the law, but in fact recognising that it had changed and that counsel should appropriately note the Court of Appeal’s observations in relation to counsel’s autonomy and discretion and the increased obligations on them in dealing with clients.  The obiter comments of Macrae JA should not go unheeded. 

26.  It was also submitted by counsel on behalf of the interested party that he had been subjected to a prolonged ordeal since the complaint was made against him back in 2010 and given the recent Court of Appeal decision it would be harsh and oppressive to continue with the judicial review application.  This was particularly the case now that the decision of the intended party not to call the witness had been vindicated by the Court of Appeal and that his former client would now be seen to have been very fortunate to have had his original conviction quashed.  In consequence, it was submitted that the intended party’s former client had no legitimate complaint that he suffered any injustice as a result of the intended party’s decision not to call the witness which was entirely justifiable.

27.  From the original and supplemental short statements it would appear that the Bar Council has accepted the representations from counsel for the interested party and as a result decided not to continue with the judicial review. 

28.  In light of the foregoing, I make an order by consent of the parties that the application for judicial review be withdrawn with no order as to costs.

HCAL 159/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 159 OF 2014

___________________

___________________

______________

D E C I S O N

______________

1.  On 2 September 2014, a disciplinary complaint against a barrister was dismissed by a Barristers Disciplinary Tribunal (the Tribunal) that had been constituted under s 35A of the Legal Practitioners Ordinance, Cap 159, to inquire into the matter.

2.  The dismissal decision of the Tribunal, consisting of an Order, including a statement of findings, (the decision), was subsequently considered by the Council of the Hong Kong Bar Association (the Bar Council) in a series of meetings where an application for judicial review of the decision was mooted. Eventually, on 31 October 2014, it was decided by the Bar Council to obtain independent advice from two Senior Counsel on the issue.  This was done and the two advices were received and considered by the members of the Bar Council in the period from 19 to 24 November 2014.

3.  On 27 November 2014, the Bar Council formally resolved in favour of making an application for judicial review of the decision. 

4.  On 28 November 2014, an urgent application was made by the Bar Council for an Anonymity Order in relation to the other parties to the proceedings which was granted.[1]  The protected parties were identified as the respondent and any of the members thereof and/or interested parties.  The Anonymity Order is to apply throughout the proceedings and unless and until the court orders otherwise.  I will at this stage vary the order to name the respondent as I believe on a review of the papers that as a matter of open justice it is proper to do so and I see no prejudice resulting to the individuals involved given the order currently in force.  At an appropriate time, I wish to be addressed as to the continuance of the order, and if it is to be continued, the terms and scope of it. 

5.  On 1 December 2014, the Bar Council filed a Notice of application for leave to apply for judicial review.  The time taken to consider and make the decision by the Bar Council to judicially review the Tribunal’s decision was understandable, and I consider that in the circumstances of this case given the nature and subject matter of the application, it was made as soon as practicable. 

6.  The court in this ex parte application is being asked to grant leave to review the decision of the Tribunal dismissing a disciplinary complaint against a barrister for breach of certain provisions in the Code of Conduct of the Bar of the Hong Kong Special Administrative Region (the Bar Code).  It therefore falls on the court to decide on the papers whether the application should be granted on the basis that there is a reasonably arguable claim which enjoys realistic prospects of success.[2] 

7.  The Tribunal is a statutory body performing functions under Part III of the Legal Practitioners Ordinance and is therefore amendable to judicial review.[3] The Bar Council as the applicant clearly has a sufficient interest in the matter to which this application relates and therefore has standing to bring these proceedings. 

8.  In this decision, the description of “barrister” and “counsel” shall be used interchangeably.  I will also be appropriately circumspect in my discussion about the case in light of the Anonymity Order. 

9.  The underlying criminal trial from which the complaint against the counsel arose concerned a number of defendants facing a variety of charges in the District Court in relation to the payment of commissions with respect to property transactions.  One of the defendants was represented by the counsel together with a junior counsel.  This defendant faced two charges of conspiracy to defraud a property agency with regard to the payment of a referral fee on two property transactions.  It was alleged that the defendant conspired with others to defraud the property agency by falsely representing that in relation to each property transaction a specified corporate entity was entitled to a referral fee.  He was convicted of the two charges after trial having elected not to give evidence.  There was a witness statement in the unused material from the owner of the purchasing company involved in one of the property transactions in which he said that it was permissible for his agent to receive any additional commission such as a referral fee.  It appears that the counsel made the decision not to call the witness or the defendant without advising or consulting him about it.  The trial judge on the evidence before him inferred that the defendant knew that it was unlawful for the agent to receive the benefits he did and accordingly convicted him of the charges.  The defendant lodged a complaint against the counsel after he successfully appealed against his conviction on the ground of flagrant incompetence of counsel.  In general terms, the appellate court’s judgment found that the conduct of counsel amounted to flagrant incompetence as the statement of the witness was highly relevant both to the defendant’s dishonest intention and to the element of economic loss to the property agency in one of the charges.  The appellate court concluded that counsel had been grossly negligent in not calling the witness which therefore deprived the defendant of a fair trial. 

10.  The grounds of review essentially focus on the Tribunal’s reasoning of its decision in relation to the conduct and professional standards of a counsel in a criminal trial.  There are four grounds of review. 

11.  The first ground of review complains that the Tribunal misdirected itself as to the scope of counsel’s autonomy in the conduct of a criminal trial.  The Tribunal concluded that the standards of professional conduct and the duty placed on counsel did not require counsel to describe to the client the reasons for every course of conduct embarked upon during a trial, and therefore to expect counsel to explain the implication of not calling a witness was to impose too high a duty upon counsel representing a criminal defendant.  The Tribunal relied on Chong Ching Yuenv HKSAR (2004) 7 HKCFAR 126 for the principle that certain “tactical decisions” can reasonably be left to counsel without any requirement to seek the client’s approval.[4] It is argued under this ground that the Tribunal misunderstood and misapplied the principle as stated by the Court of Final Appeal in Chong Ching Yuen where it was emphasised that in some exceptional cases, an error of sufficient proportion and consequence will enable a court to intervene and avert a miscarriage of justice. 

12.  It is worthwhile noting the principles that were stated in Chong Ching Yuen.  The two leading judgments of the court were delivered by Bokhary PJ and Sir Thomas Eichelbaum NPJ with whom the other judges agreed. 

13.  Bokhary PJ in his judgment stated that the ground of appeal of flagrant incompetence of counsel focused firmly on the standard of trial that our criminal system of justice insists upon.  He explained:

“… I have no doubt that the sort of trial that our system insists upon is a fair trial. This being an imperfect world, one cannot expect perfect trials. But to be effective, a trial must be fair. If defence incompetence has, all things considered, resulted in the trial being something less than a fair trial, such incompetence constitutes a ground for quashing a conviction. There is a direct correlation between the fairness of a trial and the viability of a conviction”.[5]

14.  He further explained that the use of the word “flagrant” indicated the sort of defence incompetence that would necessitate the quashing of a conviction and that it was “unlikely that anything short of a very high degree of defence incompetence would ever reduce or contribute to reducing a trial to something less than a fair trial”.  He went on to emphasise however that:

“Nevertheless it has to be borne in mind that the appellate court is concerned with what impact defence incompetence had on the trial, and not with whether or how severely defence counsel deserves to be criticised”.[6]

15.  Sir Thomas Eichelbaum NPJ in his judgment cited with approval an extensive passage of the judgment of Gleeson CJ (as he then was) in the New South Wales Court of Appeal decision of R v Birks (1990) 48 A Crim R 385 which included the following comments:

“As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.”[7]

16.  Sir Thomas Eichelbaum explained that assertions of “incompetence” will generally relate to the manner in which counsel dealt with a specific issue during trial, involving a matter of judgment or decision, or advice given to the defendant.  He said:

“The expression ‘flagrant incompetence’ rightly underlines an appellant’s need to show much more than a mistake, an error of judgment, or a decision to follow on course when in hindsight another would have been preferable. But it should not deflect attention from the most critical point, namely given that there was a significant error of some kind, what will be decisive is the effect of the error on the trial.”[8]

17.  As can be seen from this cursory examination of the leading judgments in Chong Ching Yuen, the “flagrant incompetence” cases focus on whether counsel’s incompetence has resulted in the defendant not receiving a fair trial which may or may not have constituted misconduct by counsel.  On the other hand, there may be cases where counsel has misconducted himself and the defendant has nevertheless received a fair trial.  Whilst guidance may be provided by the principles and comments in “flagrant incompetence” cases, they must be appropriately applied in the context of disciplinary proceedings against a counsel for professional misconduct and the circumstances of the case under scrutiny. 

18.  It is argued by the Bar Council that where a decision of counsel may impact on the opportunity for a defendant to avoid a conviction, as is submitted was the situation in the present case because it concerned a decision to adduce exculpatory evidence, then the implied authority of counsel in the conduct of the trial must necessarily be constrained by the need to seek full instructions and properly advise the defendant about such evidence.

19.  It is further argued that the provisions of the Bar Code dictate such an approach by counsel.[9] It is submitted that in the present case the decision not to call a witness that could have given exculpatory evidence was outside the scope of a “tactical decision” envisaged by the Court of Final Appeal in Chong Ching Yuen and was one that required the client’s informed consent or instruction upon proper advice. 

20.  It is submitted that the Tribunal erred in law in that it erroneously considered that the decision of counsel not to consult and/or advise the defendant of the witness statement was within counsel’s autonomy in the conduct of the case for the defendant and that this therefore led the Tribunal to wrongly conclude that there had been no breach of the Bar Code and that the complaint should be dismissed. 

21.  The second and third grounds of review can be dealt with together.  The second ground complains that the Tribunal failed to take into account the relevant consideration of the defendant in a criminal trial not being able to make an informed choice as to whether to call a witness or to give evidence himself.  The third ground complains that the Tribunal failed to address the true nature of the complaint against the counsel. 

22.  It is argued under these two grounds that the Tribunal failed to consider a fundamental aspect of the duty of a barrister in defending a client in a criminal case, that is, that a client must be properly advised so that he could make an informed decision as to whether to call the witness in question to give evidence on his behalf or to give evidence himself.  It is argued that this led the Tribunal into error by treating the decision as to whether or not to call the witness as a “tactical decision” within counsel’s purview to decide such matters without reference to the defendant. The two grounds seek to show that the Tribunal did not properly and thoroughly analyse the matter, and took into account irrelevant considerations and failed to take into account relevant considerations.  It is further argued that the failure by counsel to advise the defendant as to whether or not he should give evidence and the decision he made that the defendant not give evidence, which was not his decision to make, meant the defendant lost the opportunity to make an informed choice as to whether or not to testify in light of the content of the witness statement which was both relevant and exculpatory. 

23.  The fourth ground of review complains that the Tribunal was unreasonable and irrational in its decision.  Under this ground of review, it is argued that as this application relates to a determination of a question of professional competence to a defendant in a criminal trial, a more exacting standard of review is required.  Reference is made to the judgment of the Divisional Court in R (Lumsdon) v Legal Services Board [2014] EWHC 28 (Admin) and in particular to the following statement in relation to the standard of review concerning the legal profession and its professional standard:[10]

“Although the subject of submission, in our judgment it is beyond argument that the standard of review in this case is to be found in the normal application of the Wednesbury principles. Thus, we are confined to such matters as legality, rationality and whether the LSB (Legal Services Board) and BSB (Bar Standards Board) took all relevant considerations into account. In applying that standard in this case, however, the reality is that the intensity of review is higher than in other cases. Not only does the subject matter fall within an area in which we as judges have an expertise but the claim also raises issues important to the administration of justice. But that heightened scrutiny derives not from the law but from the nature of the claim. It is a burden these regulators must bear.”

24.  Under this ground the overall thrust is that the arguments advanced in the application either individually or cumulatively support the contention that the decision of the Tribunal was irrational according to public law principles, in that the effect of it was that even where counsel has not apprised himself of the content of an exculpatory statement given prior to trial by a potentially key exonerating witness without discussing its evidential value in the defence’s case, and fails to advise on the potential benefit of the evidence and makes a decision not to call the exonerating witness without consultation with the client, the conduct can still be accorded immunity on the sole ground that it is nonetheless a “tactical decision”.[11]

25.  The intricacies and dynamics of a criminal trial can be very complex bearing in mind the various interests involved and the roles played by the participants in the adversarial setting of a courtroom.  Nevertheless, our criminal justice system is founded on a body of core principles and procedures which are required to be followed and applied by counsel according to high professional standards and when there is a departure from these standards by counsel, a finding of professional incompetence or misconduct may result against him or her.

26.  The arguments advanced in support of the grounds of review in the circumstances of this case are in my view reasonably arguable and I therefore grant the Bar Council leave to review the decision of the Tribunal.  The Tribunal is the respondent and the counsel who was the subject of the complaint is an interested party and both are therefore entitled to have standing in these proceedings.  It is a matter for the counsel as to whether he wishes to participate in the proceedings.  If any members of the respondent or other interested parties wish to participate in these proceedings, then an appropriate application should be made to the court. 

27.  I direct that the hearing of the substantive application be fixed for 2 days and that the parties shall apply for an early hearing date.  I further direct that the parties are to agree on directions, failing which they shall apply to this court. 

[1] The Anonymity Order was granted by Au J on 28 November 2014 where it was ordered that the proceedings be referred to as Re A Barrister and that the parties, being the respondent and any of the members thereof and/or interested parties, not be identified.  

[2]Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

[3] See Tse Wai Chun v Solicitors Disciplinary Tribunal, HCAL 636/2001, 27 August 2001, unreported; Au Wing Lun v Solicitors Disciplinary Tribunal, CACV 4154/2002, 9 September 2002, unreported, paragraphs 33-34.

[4] At paragraphs 47 and 48.

[5] At paragraph 10.

[6] At paragraph 15.

[7] At paragraph 47.

[8] At paragraph 49. 

[9] Reference is made to paragraphs 135 and 146 of the Bar Code.

[10] At paragraph 90.

[11] See paragraph 75 of the application.