刑事檢控科各律師/高級律政 - Department of Justice

4
Appeal No.
(Date of Case Significance
Judgment) Title
A. HONG KONG COURT OF FINAL APPEAL/
APPEAL COMMITTEE
/
FAMC 15/2000
Bokhary,
Chan &
Ribeiro PJJ
(14.9.2000)
*Peter Chapman
& R K Y LEE
#Clive
Grossman SC &
Paul Stephenson
BARNES,
Stephen Daryl
Construction of s 46 of Cap 159/Wilful pretence that qualified to
act as solicitor/Whether ‘wilful’ includes ‘reckless’/Concept of
recklessness applicable to acts of pretence/Questions of fact not
giving rise to questions of law of great and general importance
159 46 -
-
- -
The Applicant was convicted of three offences contrary to s 46
of the Legal Practitioners Ordinance, Cap 159.
The first offence charged the Applicant with ‘being an
unqualified person on or about 19 September 1997, in Hong Kong,
wilfully pretending to be recognised by law as qualified to act as a
solicitor by means of an advertisement inserted in the Hong Kong
Post’.
The second offence charged a repeat of the first offence on
3 July 1998.
The third offence charged the Applicant with ‘being an
unqualified person in February 1998, wilfully using descriptions,
namely, ‘Lawyer’ and a certain Japanese phrase, implying that he
was qualified or recognised by law as qualified to act as a
solicitor’.
The magistrate held that a ‘Lawyer’ in the context in which the
Applicant had used the term was to be taken to mean someone
qualified to practise law and that it was unnecessary for the prosecution
to show that the Applicant had misled anyone by so describing himself.
The magistrate found that the Applicant had not deliberately pretended
to be recognised by law as qualified to act as a solicitor. However, he
held that in s 46 ‘wilfully’ included ‘recklessly’ and that the evidence
established the requisite recklessness on the Applicant’s part. In
particular, in order to promote his business, the Applicant had