In Hong Kong, many professions are regulated. Some professional bodies or regulators have made rules to restrict or even bar legal representation in these disciplinary proceedings. In the case of Lam Siu Po v Commissioner of Police [2009] HKEC 475, the validity of a statutory bar to legal representation was under challenge.

Background

The appellant was a police constable who declared bankrupt in late 2000 and was later convicted by the police disciplinary tribunal of financial imprudence in 2002. The penalty imposed on him was compulsory retirement with deferred benefits. He had requested to be represented by a solicitor at the disciplinary hearing but was refused by the tribunal. He complained that the exclusion of professional legal representation by the relevant police regulations had deprived him of a fair trial. He therefore challenged the constitutional validity of that exclusion and the lawfulness of the disciplinary proceedings by judicial review but was unsuccessful in the lower courts.

An Absolute Bar of Legal Representation is Effectively Unlawful

The Police (Discipline) Regulations 9(11) and 9(12) stated that a defaulter (i.e. an police officer charged with a disciplinary offence) may be represented by an inspector or an officer who is qualified as a barrister or solicitor, but “no barrister or solicitor may appear on behalf of the defaulter.”

The appellant argued that the express prohibition by subordinate legislation of any legal representation was inconsistent with Article 10 of the Bill of Rights which guarantees the fairness of hearings: “ All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law……”

Among other things, the Court of Final Appeal (“CFA”) expressly overruled the Court of Appeal decision in 陳庚秋訴 香港警務處處長 (HCMP2824/2004) that Article 10 is inapplicable to police disciplinary proceedings and held that an absolute bar to legal representation in disciplinary proceedings was inconsistent with the said Article and was effectively unlawful.

A Discretion to Permit Legal Representation

It certainly does not mean that all persons facing disciplinary charges can simply insist on being legally represented. The CFA in this case pointed out that fairness does not always carry a right to be legally represented. A disciplinary tribunal has a discretion to permit such a person to be legally represented. But it should do so if refusing such permission would be unfair. A disciplinary tribunal, if deemed appropriate, should provide sufficient justification for excluding the Article 10 protections in the disciplinary proceedings. Whether fairness requires that legal representation be permitted at a disciplinary hearing is primarily for a disciplinary tribunal to assess, and it is very unlikely that the court would disturb such an assessment except for plainly compelling reasons. It depends on the circumstances of each case.

Ways to Have Rights Better Protected in Disciplinary Proceedings

Many consider that it is vital for persons facing disciplinary charges to be given a fair chance to speak for themselves since the rights involved in disciplinary proceedings are usually important ones and extend to the right to remain in a profession, service or occupation. It is anticipated that the disciplinary tribunals will need very strong justification if decided to refuse legal representation completely in the disciplinary proceedings. Also, since the outcome of a disciplinary proceeding can be disastrous in terms of one’s career and/ or reputation, person facing disciplinary charges should carefully consider the option of obtaining professional assistance and legal representations.