RE AUGUSTINE CHUNG SHAI KIT

HCMP002337/1988

1988, No. 2337
Miscellaneous proceedings

Solicitor – application to restore name to Roll of Solicitors, s.5(3) Legal Practitioners Ordinance – principles to be applied.

Decision of Cons; V. -P. in In the Matter of John Richard Duffy (Misc. Proceedings No. 2579 of 1987: 21 December 1987, unreported) followed.

IN THE SUPREME COURT OF HONG KONG

1988, No. 2337

Miscellaneous Proceeding

IN THE MATTER of Section 5(3) of the Legal Practitioners Ordinance

and

IN THE MATTER of Augustine Chung Shai Kit

______

Coram: Fuad, V. -P.

Date of Hearing: 22 December 1988

Date of Judgment: 22 December 1988

___________

JUDGMENT

___________

Fuad, V. -P.:

1. This is an application by Mr. Augustine Chung Shai Kit (“the Applicant”), a former solicitor, for an order directing the Registrarof the Supreme Court to replace his name on the Roll of Solicitors. The application is made under s. 5(3) of the Legal Practitioners Ordinance which empowers the Chief Justice to make such an order “at any time” and “if he thinks fit”. This jurisdiction may be exercised byany judge of the Supreme Court by virtue of s.36 of the Supreme Court Ordinance.

2. The Applicant appears in Person. The Law Society opposes the application and is represented by Mr. Denis Chang, Q.C..

3. The Applicant was admitted as a solicitor of the Supreme Court of Hong Kong in February 1970. He practised in the same firm for thenext six years, first as an Assistant Solicitor and later as the second partner.

4. Complaints regarding the conduct of the Applicant were made by the Law Society itself and heard by a Disciplinary Committee appointedby the Council of the Law Society. On 23 February 1976 the Committee ordered the name of the Applicant to be struck off the Roll.

5. The allegations against the Applicant can be divided into three groups – (i) advertising his practice as a solicitor in breach ofrule 2(b) of the Solicitors Practice Rules; (ii) improperly accepting gifts and advantages and (iii) threats to and attempted extortionfrom a fellow solicitor, Mr. Donald Cheung. Two of the allegations under (iii) and one allegation put in the alternative were notproceeded with before the Disciplinary Committee. The Applicant admitted all the other allegations.

6. Although the Disciplinary Committee described the breach of the rules relating to advertising as “blatant”, “deliberate” and “wilful”and concluded that the Applicant “had no regard for the ethics or proprieties of the profession or the standards expected of him”,I will say no more about this finding because had that been his only transgression it is doubtful whether, after the passage of 12years, and in the light of the Applicant’s conduct since the striking off, his restoration to the Roll could fairly have been resisted.Such a severe penalty is unlikely to have been imposed in the first place.

7. The complaints under groups(ii) and (iii) were framed as follows:

(c) The said Augustine Chung Sai Kit without lawful authority or reasonable excuse on the said 11th day of July 1975did make statements to Donald Quintin Cheung which were likely to make the said Donald Quintin Cheung apprehensive as to what mighthappen to the said Donald Quintin Cheung if he did not pay to the said Augustine Chung Sai Kit the sum of half a million U.S. dollarsnamely that he, the said Donald Quintin Cheung, would be prosecuted in criminal proceedings brought as a result of investigationsinto the affairs of the Paul Lee Engineering Co. Ltd.

(d) The said Augustine Chung Sai Kit without lawful authority or reasonable excuse on the said 12th day of July 1975did make statements to Donald Quintin Cheung which were likely to make the said Donald Quintin Cheung apprehensive as to what mighthappen to the said Donald Quintin Cheung if he did not pay to the said Augustine Chung Sai Kit the sum of half of HK$1 million namelythat he, the said Donald Quintin Cheung, would be prosecuted in criminal proceedings brought as a result of investigations into theaffairs of the Paul Lee Engineering Co. Ltd.

(e) The said Augustine Chung Sai Kit between about 1971/1972 and about March/April 1975 accented gifts of money and advantagesamounting to a total of approximately one-and-a-half million dollars which were wholly disproportionate to the legal services renderedby the said Augustine Chung Sai Kit to the donors of the said gifts and were in addition to the fees charged by the said AugustineChung Sai Kit or his firm W.I. Cheung & Co.

(f) The said Augustine Chung Sai Kit between about 1971/1972 and about March/April 1975 improperly accented gifts ofmoney and advantages amounting to a total of approximately one-and-a-half million dollars without accounting to his partners in Messrs.W.I. Cheung & Co. for the same or any part thereof.

(g) The said Augustine Chung Sai Kit between about 1971/1972 and about March/April 1975 accepted gifts of money and advantages amountingto a total of approximately one-and-a-half million dollars thereby rendering impossible for the partners of the said firm to maketrue returns of the profits of the said partnership to the Inland Revenue Department. “

8. In their written Decision, the Disciplinary Committee noted that the Applicant had been acquitted by the District Court of offencesunder ss.17 and 23 of the Theft Ordinance where Mr. Donald Cheung was the alleged victim “having been given the benefit of the doubt on the element of intent. “

9. In respect of allegations (c) and (d), they said :

“We accept the approach which we have been asked to adopt by Counsel for the Respondent that we give the Respondent the same benefitof the doubt which was given to him by the District Court, namely, that what he did was the result of his experiment in human psychologyand that he used Donald Cheung for such experiment.”

10. Later they said :

“We have paid close attention to all that counsel for the Respondent has said to mitigate the gravity of the offences relating tocharges (c) and (d). We have taken into account the medical evidence which shows that the Respondent was suffering from hypomania;but as the mental condition induced thereby did not involve his loss of understanding of what his acts amount to nor tend to makehim act out of character, we are unable to regard it as a feature of sufficient mitigating value. It is hardly necessary for us tosay that his acts were scandalous amounting as they do to a criminal offence punishable with imprisonment with which the Respondentwas, fortunately for him, not charged, but which, had he been so charged, he would, on his counsel’s own admission, have been convicted.”

They went on to say :

“Charges (c) and (d) are particularly reprehensible. The deceit which the Respondent practised on a professional colleague; the anxietyand apprehension he must have caused is not only to be deplored if committed (being criminal in nature) by a layman but shows, inaddition, the scant regard he had for the law and his total lack of considerations for human decency.”

11. This is how the Disciplinary Committee viewed allegations(e), (f) and (g) :

“We think it is deplorable for a partner in that manner to fail to account for monies belonging to the partnership and to put thepartnership in the invidious position of not being able to make true returns to the Inland Revenue Department. Such conduct is unbefittingof a solicitor.”

12. The Committee, having earlier categorised the Applicant’s behaviour in general as “disgraceful”, concluded their Decision in thesewords :

” We are dealing with a solicitor who at the time he was being investigated for professional misconduct relatingto the advertising charge and being aware of it, committed the more serious offences covered in charges (c) and (d) well knowingthat he has also committed other acts of misconduct being charges (e), (f) and (g) which have subsequently come to light.

These features, in addition [to] the seriousness of each change, reveal that the Respondent is a person whose character andconduct is such as to make him wholly unfit to remain an officer of the court and a member of an honourable profession. We do notsee how we can justifiably expect any member of the public or other members of our calling to have any dealing or enter into professionalintercourse with such a solicitor whose moral fibre and integrity is so far below the standards expected of a solicitor. We findthe Respondent unfit to continue on the Roll of Solicitors and we order his name to be struck off the Roll. “

13. I have before me an affidavit sworn by the Applicant in support of his application to be restored to the Roll. He is a permanentresident of Hong Kong. He says that in July 1976, about 5 months after he was struck off, he set up a business acting mainly as abusiness adviser and management consultant to different business enterprises mainly in the field of transportation. A large proportionof his services were given to the public on a complimentary basis and he lists some of the services be rendered the public betweenthe years 1976 -1988:

(a) he acted ao a bridge between the Government and members of the Police Rank-and-File Association, the Customs &Excise Rand-and-File Union, the Immigration Assistants’ Union, the Fish Marketing Organization Employees’ Union, the Civil ServantsGeneral Union and several other unions in the civil service;

(b) he acted as a go-between in resolving a dispute between residents in Sai Lau Kok, Tsuen Wan on the one side, andthe Housing Authority on the other, by reason of their dissatisfaction with conditions for compensation for resumption of property;

(c) he helped the police to effect the surrender of a gunman who had seriously wounded a man and held several women ashostages in Realty Building;

(d) he helped the Housing Authority in dissolving peacefully the gathering of several thousand Ma Tsui Hang fire victimswho had staged a 3-day sit-in protest outside the Authority’s headquarters;

(e) he helped the Transport Department defuse the explosive and near-riot strike of 16,000 taxi-operators, which hadparalysed traffic for 2 days; and

(f) he helped the Social Welfare Department defuse the protest procession led by several thousand residents of Sun Tsui Estate in Shatinagainst the Social Welfare Department’s decision to establish a midway home for mental patients in housing estates.

14. The Applicant also deposes that he was an elected member of the Urban Council during the years 1979-1986, having been re-electedunopposed for his second term. During his membership of the Urban Council, he served as a Chairman of one of its Select Committees,a Vice-Chairman of two of its other Select Committees and a member of six other Select Committees (he names them all). From 1981-1986he served as an appointed member of the Wong Tai Sin District Board. During the years 1976-1988 he was the Honorary President and/orAdviser to over one hundred unions, associations and “other establishments”.

15. He says that he is financially sound and has kept his knowledge of the law up-to-date. He speaks of a scholarship worth more than$100,000 which he gave to a student to help him study law in the United Kingdom. His beneficiary is now a solicitor practising inHong Kong.

16. The Applicant concludes his affidavit by giving an account of his present business interests and states that his wife can help himto run them so that they do not require his full-time involvement. “I therefore feel” he adds “that with my knowledge, skill andexperience in law, industries, international trade, transport, urban services, real estate development, economic analysis, and soon, I would be more capable of expanding my value to the society if I should resume my practice as a Solicitor in Hong Kong again.”

17. The Applicant put before me another affidavit sworn by him earlier today. To it he exhibited a number of newspaper cuttings whichgive accounts of his activities since the striking off (some only of which were referred to in his first affidavit). Also exhibitedare copies of letters he has written, speeches he has made and trophies he has been given. He explained that the purpose of puttingall this before me was to demonstrate that the public trusts and respects him. He also suggests that some of the writings he hasexhibited show that he has kept in touch with the law despite his absence from the Roll.

18. In his submissions to me, the Applicant pointed out that if members of the public did not have confidence in him, they would notso often have turned to him for help. His election as Urban Councillor was a plain indication of the trust and respect he had earned.His canditacy for his second term could hardly have been unopposed had members of the public entertained doubts about his integrityor mental stability. Nor would he have been asked to speak (as he often was) at functions organised by Lions Clubs, Rotary Clubsand similar organisations. His fellow councillors would not have elected him as Chairman of so important a Select Committee (responsiblefor administrating huge funds) as the Capital Works Select Committee, and Vice-Chairman and member of other Select Committees unlessthey trusted and respected him. He told me that he would need a room of 300 square feet if he were adequately to display all histrophies and souvenirs.

19. The Applicant explained that he had not considered applying to have his name restored to the Poll while he was an Urban Councillor.He decided not to stand for a third term and now wanted to be re-instated so that he could better serve the public. As a solicitorhe would not be so accessible to the many who came to him for help. He would be able to turn down cases for good reasons.

20. He fully accepted that he had behaved “exceedingly stupidly” in July 1975. He had made a bad mistake but his conduct was never criminal.He had allowed himself to he carried away by attempting to serve too many members of the public; with his work as a solicitor hewas overburdened and overworked. He said that his conduct towards Mr. Donald Cheung had been misunderstood by everyone. He listed16 what he called “pieces of a jigsaw puzzle” which had not been put in the right places. Had this been done the purity of his motiveswould have become apparent. In this connection he specifically referred me to a letter he had written to His Excellency the Governor(dated 20 December 1977).

21. I am bound to say that having had the benefit of the Applicant’s submissions, however the pieces of the jig-saw puzzle are ordered,I am unable to understand how anyone could view his conduct towards a fellow solicitor in a favourable light, whether or not thatconduct was criminal.

22. The Applicant said that “an unfortunate situation had been created, and “a regrettable incident” had occurred but he had served thepublic devotedly ever since he had ceased to practice. He had rightly been struck off but he had earned the right to have his namerestored to the Roll by his irreproachable and public-spirited conduct ever since.

23. We have seen that the Disciplinary Committee took into account the medical evidence that the Applicant was suffering from hypomania.In his judgment the District Judge had noted that the doctor who had given evidence for the Applicant at the trial had describedhypomania as a disturbance of moods which affected a person’s behaviour. A hypomaniac was invulnerable to logic and reason. Sucha person would know what he was doing but would not appreciate the consequences. The doctor gave it as his opinion that the Applicantwas in need of treatment.

24. Since the hypomania played so important a part in explaining the Applicant’s conduct, it would have been better had there been expertevidence before me about the likelihood or otherwise of hypomania recurring in someone who has once been subject to it. The Applicanttold me that he had not agreed with his doctor’s diagnosis that he needed treatment but had, nevertheless, accepted medication overa period of some 6 months after the trial in the District Court. However all this may be, I am prepared to accept the Applicant’ssubmission that his activites, writings and speeches in the past 12 years do not suggest that he is “invulnerable to logic and reason”,one of the symptoms, according to his witness at the trial, of the hypomaniac.

25. I propose to follow the approach of Cons, V-P. in In the Matter of John Richard Duffy, Miscellaneous Proceedings No. 2579 of 1987 (21 December 1987, unreported) by applying the principles to which the Solicitors DisciplinaryTribunal of England and Wales adhere when exercising the discretionary jurisdiction to restore a former solicitor to the Roll. Irespectfully agree with Cons, V-P. that these principles are appropriate for this jurisdiction. They are to be found set out in Chapter20 of THE PROFESSIONAL CONDUCT OF SOLICITORS published by the Law Society and at p.325 of CORDERY ON SOLICITORS (8th Edition). Theprinciples are :

(i) the striking off of a solicitor can have a punitive element. It can also have an element of protection for the public.It always has an element of protecting the good name of the profession and this element must be paramount.

(ii) if the paramount element of protecting the good name of the profession ultimately causes injustice to an individualwho has broken the professional rules and that injustice is unavoidable in the individual case, it has to be accepted as the priceof maintaining the reputation of the profession and the public confidence in it.

(iii) where an applicant has been convicted of a criminal offence, particularly one involving dishonesty, the onus whichfalls on him, to demonstrate that his restoration to the Roll could damage the reputation of the profession as a whole, is a veryheavy one.

(iv) the essential test to be applied by the Tribunal, however fit and proper the applicant may demonstrate he is, is that of the publicinterest. The Tribunal is obliged to regard restoration to the roll as an exceptional circumstance and must do nothing when grantingan application which will damage public confidence in the profession. “

26. It is clearly my duty to take into account all the circumstances relating to the conduct which led to the Disciplinary Committeesorder. The onus is on the Applicant positively to establish that he is now a fit and proper person to be restored to the Roll. Dueweight must be given to the attitude of the Law Society. The Applicant must prsuade me that the serious misconduct which promptedthe Committee’s decision did not make him permanently unfit to practise as a solicitor.

27. The Disciplinary Committee was right to regard the misconduct admitted by the Applicant as being of the most grave and serious character.The Committee had before them the judgment of the District Judge (dated 18 October 1975) who acquitted the Applicant of blackmailand attempting to obtain property by deception. This is the summary by the judge of the Applicant’s explanation for his bizarre conducttowards Mr. Donald Cheung :

“He himself claims to believe that a person of integrity, who is subjected to stress and strain, will break-down at a certain point.He also says that he was worried by the slow procedure in Government departments, and that he considered this to be the underlyingcause of corruption and other crimes. Accordingly, when he got his information about Donald Cheung, it suddenly occurred to him thatthis was a golden opportunity to test his theory. If Donald Cheung who was already the subject of protracted investigation was putunder severe pressure, would he break-down and resort to corruption in order to relieve the pressure on him? If so, the accused coulddemonstrate to the Government, and to the public at large, the in justice of current existing procedures, and thus get rid of a seriousbarrier between the Government and the public. Accordingly he says he jumped at the opportunity and instantly put it into effectwithout further consideration. “

28. It is necessary to note that Counsel appearing for the Applicant at the trial had submitted, inter alia, that on the face of it,the Applicant had tried to squeeze money out of Mr. Cheung and “the offences proved were there and complete”. He posed the questionwhether the Applicant’s explanation of a psychiatric experiment negatived the offences. He submitted that no one would expect a solicitorto behave in the way the Applicant did – his conduct could only be explained on the basis of hypomania. At the end of his submission,Counsel said: “Could he be in his proper mind at all? [It must be] because he cannot help himself. “

29. There can be no doubt at all about the extent and importance of the Applicant’s public service during the years which have elapsedsince his name was removed from the Roll. I do not wish anything I say to be understood as a failure to appreciate and acknowledgethe value of his service. It is sad, perhaps, that all that happened so long ago has had to be publicly exposed and debated onceagain, but an application of the kind before me compels this course.

30. I have a solemn duty to perform. The question I have to ask myself is whether such a person as the Applicant admitted himself tobe (whatever his motives might have been), notwithstanding the passage of 12 years and his subsequent conduct, should be readmittedto the ranks of an honourable profession – a profession, rightly jealous of its reputation, to which men and women resort to helpthem in the management of their affairs; a profession in whose members, as officers of the Court, the public and the Courts are entitledto repose the utmost confidence.

31. I have listened carefully to all that the Applicant has so eloquently urged upon me. Hard though it may seem to him, I have no doubtthat I would be failing in my duty to the public and to the profession to which he once belonged, were I now to order that a persontainted by such irresponsible, callous and outrageous conduct (I am now referring particularly to what he did to Mr. Donald Cheung)be restored to the Roll. I find it impossible to accede to thisapplication.

[Application dismissed with costs]

Representation:

Mr. Chung Shai Kit Augustine, Applicant in person.

Mr. Denis Chang, Q.C. & Mr. Paul Tse for the Respondent.