刑事檢控科各律師/高級律政 - Department of Justice

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consciously taken the potentially harmful risk that people might think he
was a solicitor when he was not. Precautions to counteract that risk
were inadequate to negate recklessness.
On appeal, the Court of First Instance upheld the magistrate’s
decision, and held that in the context ‘wilful’ meant ‘deliberate and
intentional’ but that it also encompassed recklessness, relying
principally on R v Sheppard [1981] AC 182. The court declined to
certify the case for appeal under s 32 of Cap 484 on the ground that it
was not reasonably arguable.
The Applicant sought to have certified as raising points of law of
great and general importance these questions:
1. Whether a person can be convicted of an offence under the
provisions of s 46(1) of the Legal Practitioners Ordinance, Cap 159 on
the basis of recklessness.
2. If the answer to Question 1 is in the affirmative, whether the
mens rea necessary to constitute recklessness is abrogated or rendered
otherwise insufficient to constitute recklessness in law if the appellant
puts in place steps or procedures which he believes will avoid
constituting the offence but which in fact failed to eliminate the risk of
commission of an offence under the provisions of s 46(1) of the Legal
Practitioners Ordinance.
3. If the answer to Question 1 is in the affirmative, whether in
relation to SPS 2286 and SPS 2287 the appellant’s conduct could in
law have amounted to recklessness.
Held :
Section 46, so far as was material, provided:
Any unqualified person who wilfully pretends to be, or
takes or uses any name, title, addition or description
implying that he is qualified or recognised by law as
qualified to act as a solicitor shall be guilty of an
offence …
Question 1
(1) The authority of R v Sheppard (above), which supported the
proposition that where a statutory offence prohibited conduct
performed ‘wilfully’, it was generally sufficient for the prosecution to
prove that the accused recklessly, had been followed in Hong Kong in
R v Li Wang-fat [1982] HKLR 133, and in R v Chau Ming-cheong