|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of Fiji |
IN THE COURT OF APPEAL
APPELATE JURISDICTION
CIVIL APPEAL NO. ABU 0068 of 2013
(Appeal from Independent Legal Services Commission)
BETWEEN:
IFTHAKHAR IQBAL AHMAD KHAN
Appellant
AND:
THE CHIEF REGISTRAR
Respondent
Coram : Suresh Chandra, JA
Almeida Guneratne, JA
Kamal Kumar, JA
Counsel : Appellant in person
(Mr. Iqbal Khan – Legal Practitioner under suspension)
Mr. M. Waibuta with Mr. V. Sharma for the Respondent
Date of Hearing : 5 September 2014
Date of Judgment : 25 September 2014
JUDGMENT
Suresh Chandra, JA
I agree with the judgment and the reasoning of Justice Guneratne JA.
Almeida Guneratne, JA
[1] This is an appeal under Section 128(1) of the Legal Practitioners Decree (2009) (LPD) from the Order of the Independent Legal Commission (hereafter referred to as Commissioner) dated 11th December, 2013 made pursuant to Section 84 of the LPD.
[2] By that Order the learned Commissioner after inquiry imposed a period of fifteen months suspension on the Appellant (Mr. Khan) in respect of certain complaints made against him.
[3] Initially there had been many complaints but most of them had been withdrawn and the complaints were pruned down to three.
[4] Properly construed, the Appellant in this appeal seeks to have the Order of the learned Commissioner set aside on the following main grounds. viz:
(1) That, the Commissioner's Order was tainted with bias. This in turn was based on three ancillary grounds:
(a) that, the Commissioner sitting as a High Court Judge, in a case in which Mr. Khan had appeared in the past had made a reference to him as being 'dishonest' which had prompted the Appellant to make an application for Recusal which was refused by the learned Commissioner.
(b) that, two of Mr. Khan's appeals to the Court of Appeal against judgments of the Commissioner sitting as a High Court judge had been allowed the day previous to the impugned Order of the Commissioner and;
(c) that, adjournments sought on his behalf at the hearing were refused;
(d) that, (impliedly) the eventual order of the Commissioner finding him guilty of the three complaints carried that initial bias;
(e) and finally that, in any event on the evidence led before the Commissioner, his findings are not sustainable in fact and in law as urged by the Appellant in his Notice of Motion and the Grounds of Appeals should this Court reject the allegation of bias.
[5] And further, that, the period of suspension imposed is not sustainable in as much as it had been imposed without affording the Appellant to plead in mitigation thereof.
[6] I shall now proceed to deal with the aforesaid grounds.
Re: The Application for Recusal
[7] As recapped above, the said application had been based on the fact that, the Commissioner, sitting as a High Court Judge in a case in which Mr. Khan (the Appellant) had appeared in the past had made a reference to him as being 'dishonest'.
[8] It must be noted that, the learned Commissioner is also a member of the High Court. The Appellant is a senior practitioner appearing frequently in the High Court before the Commissioner as a High Court Judge. Is the Commissioner then as a Judge required to step down each time the Appellant appears in a case before him?
[9] Hence the difficulty I was faced with in applying the rule against bias as articulated by Lord Hewart, C.J. in R v. Sussex Justices ex parte McCarthy [1923] EWHC KB 1; (1924) 1 KB 256 that, "Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice."
[10] Mr. Khan may well have harboured a suspicion that, the Commissioner was prejudiced against him. But prejudice must be viewed as distinct from bias. As Lord Devlin once said "The devil himself knoweth not the mind of man." In the ever continuing working relationship between the bench and the bar, Judges will naturally form opinions regarding lawyers who appear before them – astute lawyers and those who are not; pleasing Court personalities and those who are not; Counsel who mislead Court and those who do not etc. These inevitable prejudices could be many the name of which is legion. Perhaps, to form the view that, a particular lawyer is dishonest could be for any one or more of such reasons.
[11] But, here, in the Commissioner's own words as seen from his ruling dated 5th November, 2013 refusing the application for recusal, he had in that High Court case, sitting as Judge said that "I had at no time called into question the credibility of the practitioner; my allegation was that the practitioner as defence counsel had resorted to dishonest tactics."
[12] To my mind, there is a significant difference in calling a person "dishonest" per se and commenting that a practitioner had resorted to "dishonest tactics" in pursuit of his client's cause.
[13] In any event the said High Court case had been in April, 2011. The present proceedings commenced as way back in 2009 and the application for recusal was only in 2013. In the meantime, the Appellant himself had appeared in a number of cases in the High Court before the Commissioner, sitting as a Judge.
[14] Two applications for recusal against a former Commissioner by the Appellant had also failed.
[15] In those circumstances I am unable to agree with the Appellant that, the Commissioner's decision to refuse the application for recusal was tainted with bias:
[16] The "Reasonable Suspicion" test had been even equated to a "mere suspicion" (vide: R v. Rand (1866) LR 1 QB 230; Healey v. Rauhina (1958) NZLR 945 to cite a few precedents.
[17] Looking at the judicial thinking in those precedents, it is my view that, even if the Appellant's suspicion of bias against the Commissioner, whether it could be characterised as 'reasonable' or 'mere', in the absence of a 'personal interest' on the part of the Commissioner, that test is rendered inapplicable. (vide: R v. Gaisford [1891] UKLawRpKQB 193; (1892) 1 QB 381 and Cooper v. Wilson (1937) 2 KB 309 at 324 among other precedents.
Prejudice as distinguished from Bias
[18] I wish to briefly elaborate on what I have articulated above.
In what circumstances would Prejudice amount to Bias?
[19] Prejudice indeed could amount to bias if, one could find, interalia, some element of 'hostility' (vide: R v. Handley (1921) 61 DLR 656 and compare White v. Kuzech (1951) AC 585.
[20] Mr. Khan in his affidavit does not allege 'hostility' but rather appears to have rested his case on the learned Commissioner referring to him as being 'dishonest' in a past High Court case. In any event, having gone through the proceedings, I could not find any element of 'hostility' on the part of the Commissioner.
[21] There is also authority for the proposition that, there can normally be no objection to a tribunal sitting in an application by a party who has previously appeared before it on other applications. (vide: R v. Oxford Regional Mental Health Review Tribunal, ex parte Machman (The Times), 2nd June, 1986).
[22] In the legal classic Dimes v. Grand Junction Canal, [1852] EngR 789; (1852) 3 HLC 759 Lord Campbell cautioned all tribunals that, not only in their decrees that they should not be influenced by their personal interest, but to avoid the appearance of labouring under such an influence.
[23] The case law in all modern jurisdictions bristles with expositions on the nature of interest and the tests applied to determine bias.
[24] I am not satisfied that, the tests applied in determining bias viz: the "real likelihood" (vide: R v. Camborne Justices, ex parte Pearce [1955] 1 QB 41, also Hannam v. Bradford Corporation [1970] 1 WLR 937); "reasonable suspicion" (vide: Metropolitan Properties (FGC) Ltd. v. Lannon [1968] EWCA Civ 5; [1969] 1 QB 577); "real danger" (vide: R v. Gough [1993] UKHL 1; [1993] AC 646; "Real Possibility or Probability" (vide: R v. Barnsley Licensing Justices [1960] 2 QB 167 at 187 are satisfied in the present case.
[25] Given the factual context in the instant case, I am of the view that, it stands distinguished from the criterion of interest as well, whether personal or professional or any other interest akin to such interests that have featured in past precedents.
[26] Delving briefly on the aforesaid theme further, it is to be noted that, it has been academically opined in relation to the adoption of the "real likelihood of bias test" that, emphasis had come to be laid in cases on the said test because allegations of bias on the "suspicion test" had come to be far fetched (R v. Camborne Justices, supra). (See: Wade and Forsythe (9th ed.) on Administrative Law, Oxford University Press, p.464, 2004).
[27] I think this is one such case.
Conclusion on the Application for Recusal and Allegation of Bias
[28] For the aforesaid reasons I am of the view that, the application for recusal, was not entitled to succeed and the Appellant's bias allegation against the Commissioner was ill-founded.
[29] I was not able to find anything in the several authorities cited by Mr. Khan including the cases of Koya v. State [1988] FJSC 2 and Ratu & Others v. State [Crim. App. No. AAU 0041 of 2004S at pages 7 to 10] and others that militate against the view I have expressed above.
[30] The Appellant also argued that, in as much as two of his appeals against judgments handed down by the Commissioner sitting as a High Court Judge had been allowed the day previous to the impugned order of the Commissioner this was also a pointer to the Commissioner being biased in refusing the application for recusal and subsequently refusing applications for adjournments.
[31] I have already held that the refusal to grant the application for recusal is not attributable to bias. That being the foundation on which the Appellant's allegation of bias was based, Appellant's contention that, the Commissioner was biased in handing down the impugned order because two of his appeals against judgments of the Commissioner sitting as a High Court judge had been allowed the day previous to the said order is rendered pro non scripto.
Refusal to grant applications for adjournments
[32] For the same reasons I have articulated in Paragraph [30] above, the refusal to grant adjournments also loses any connection with bias although the said refusals may well be tested on the basis whether they amounted to a denial of a fair hearing as postulated by the principle audi alteram partem.
Refusal to grant adjournments in the context of the principle –
audi alteram partem
[33] The Appellant (Mr. Khan) posed the question that, in as much as, although ten days had been set for the trial, the whole matter being concluded in about ninety minutes, was it not reasonable to have granted the adjournments sought for the reasons they were sought?
[34] The Courts have repudiated earlier suggestions that, the principles of natural justice do not apply to disciplinary bodies. "They must act fairly just the same as anyone else and are just as subject to control by the Courts." (vide: Buckoke v. Greater London Council [1971] Ch. 655.
[35] The Legal Practitioners Decree (2009) in pursuance of which the impugned proceedings have taken place do not speak of any right to adjournments.
[36] Nevertheless, reflecting on the epigram of Byles, J, in Cooper v. Wandsworth Board of Works [1863] EngR 424; [1863] 14 CB (NS) 180 that, "the justice of the common law will supply the omission of the legislature", I am inclined to the view that, there is nothing in the said Decree or any other law that prevents a similar approach being adopted in Fiji, at least as a presumption and ought not to be excluded for the sake of administrative or a tribunal's convenience for "convenience and justice are often not on speaking terms." (vide: General Medical Council v. Spackman (1943) AC 627 at 638.
[37] It follows then that, "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting and the subject matter to be dealt with and so forth." (vide: Russell v. Duke of Norfolk [1949] 1 All ER 109 at 118 and Lloyd v. McMahon [1987] UKHL 5; [1987] AC 625 at 702).
Applicability of the aforesaid Principles to the proceedings under consideration
[38] The matter under consideration pertains to a disciplinary hearing into complaints against a legal practitioner.
[39] It is to be noted that, both the Court of Appeal in England and the House of Lords have held that, in disciplinary proceedings which demand a rapid hearing and decision, natural justice may even be excluded (vide: Fraser v. Mudge [1975] 1 WLR 1132) though on some occasions it has been held that, "principles of fairness must be observed." (vide: R v. Home Secretary, ex parte Tarrant [1985] QB 251.
[40] It has also been said that, "arrangements for hearings must be fair and justice may not be sacrificed to speed." (vide: R v. Portsmouth CC, ex parte Gregory & Moss [1991] 2 Admin. LR 681).
[41] But, as the record reveals proceedings against the Appellant had been initiated as way back in the year 2009 and the trial for whatever reasons had got underway only in 2013.
[42] I do not think I could substitute my view to that of the Commissioner's, unless I could say that, he has exercised discretion wrongly. The Commissioner has exercised discretion and I cannot say that, it has been exercised wrongly.
[43] In that context, I have also had regard to the affidavit filed by the Court Officer attached to the Chief Registrar's office in the Legal Practitioner's Unit (vide: page 122 of the Supplementary Record of the High Court – Particularly Paragraph 15 at page 123 thereof). I have also looked at the Order of the President of this Court in refusing a stay of the suspension imposed on the Appellant (particularly paragraph [24] at page 147 of the Supplementary Record of the High Court).
[44] I have also noted the tenor of the proceedings had before the Commissioner himself.
[45] Taking into consideration all those facts and circumstances, in the light of the principles emanating from judicial precedents referred to earlier, I am of the view that, there has not been any wrongful exercise of discretion on the Commissioner's part in refusing the applications made by the Appellant and/or on his behalf for the said adjournments that could be said to have constituted a denial of a fair hearing and a violation of the principles of natural justice – both nemo judex in causa qua and audi alteram partem.
Conclusion on the allegation of bias and a denial of a fair hearing
[46] In conclusion, on the said allegations, I hold that, the learned Commissioner's impugned order is not amenable to be set aside.
[47] I now proceed to examine the complaints in question against the Appellant and the findings of the Commissioner thereon.
"COMPLAINT 1A
On 28th of January 2009, Mr. Iqbal Khan failed to conduct himself in a professional manner when he appeared on Fiji One News at 6pm and made open derogatory remarks saying "... the police officers grabbed him from his house, drag him, take him to police station, keep him there, and assault him. ..." and he added "we are suing the police officers individually, so they'll have to sell their underwear to pay the damages, because this report speaks for itself, this is a police medical report where they confirm that this person was assaulted in police custody. ...", which comments were against the Police officers who were involved in a matter concerning his client on National Television, which conduct was an act of professional misconduct.
COMPLAINT 1B
On 28th of January 2009, Mr. Iqbal Khan failed to conduct himself in a professional manner when he appeared on Fiji One News at 6pm and openly talked about the proceedings in the High Court matter no. 31 of 2009 of Faiyaz Khan v. Inspect Abdul whilst the proceedings were still pending which conduct was an act of professional misconduct.
COMPLAINT 4
IQBAL KHAN a legal practitioner, between the 28th of March 2008 and the 29th of March 2008 in his capacity as principal of Iqbal Khan & Associates, having received the sum of $500 from Mohammed Yunus Hussain, failed to disclose to Mohammed Yunus Hussain that he was also acting for Alvin Raj the co-accused who had conflicting defences in the criminal matter the said Mohammed Yunus Hussain was charged thereof, falling short of the standards of competence and diligence that a member of the public is entitled to expect of a reasonably competent or professional legal practitioner, which conduct was an act of professional misconduct."
Re: Complaints 1A and 1B
[48] The facts as constituting evidence pertaining to this complaint have been recapped by the learned Commissioner in his order at pages 365 to 367 of the Record of the High Court.
[49] The learned Commissioner's analysis of the evidence is contained at pages 367 to 369.
Re: The findings of the Commissioner
[50] I begin with paragraph 12 of the learned Commissioner's order (vide: page 367 of the Record of the High Court hereinafter referred to as the Record) where the learned Commissioner holds "there is no evidence from the practitioner to counter or explain the complaints of ASP (Abdul)."
[51] That counter or explanation as regards the said complaints are reflected at pages 18 to 19 and re-iterated at pages 21 to 22 of "the Record".
[52] Consequently, proceedings being instituted against the Appellant (the practitioner), the burden in law was fairly and squarely on the Respondent to prove the facts alleged in the said complaints at the ensuing trial.
[53] Was that done?
[54] The T.V. Report on the relevant date of broadcast on the incident is reflected at page 23 of the Record.
[55] There is not a single word by the Appellant referring to the complainant (Inspector Abdul) in particular therein but rather a reference to the police in general in regard to the treatment meted out to his client, the alleged victim of police abuse, Faiyaz Khan.
[56] The Commissioner however hold that, "In an interview on camera, the practitioner said he was suing this police officer and showed the name of the witness (Inspector Abdul- the complainant) quite clearly on the writ ..." (at page 366 of the Record in the Commissioner's order).
[57] No doubt the writ of summons names the said Inspector Abdul as the defendant. (vide: page 24 of the Record).
[58] But, where is the material to show that, Inspector Abdul's name was displayed as such defendant on the said writ at the said interview on camera?
[59] This query on my part stands fortified in the Commissioner's own observation reflect at paragraph 14 of his order (vide: page 368 of the Record) wherein, the learned Commissioner observes that, "the quotes attributed to the practitioner in the telecast of 28th of January, 2009 do not specifically name Abdul Khan (the complainant) as the perpetrator of the assault ..." (vide: at page 368 of the Record).
[60] At paragraph 15 (page 368 of the Record) the learned Commissioner articulates on "matters that were about to become sub judice (and therefore), that was totally inappropriate for him (the Appellant – the parenthesis is mine) to discuss those matters and to influence the public on public television the day before he was to file them. It is not for the practitioner to pre-empt any future finding of a Court on his summons, it was certainly not a matter for open discussion at that stage."
[61] I do not agree and have no hesitation in holding that the said view expressed by the learned Commissioner is a misdirection in law on the principle relating to "sub judice."
[62] By simple logical reasoning how could "matters that were about to become sub judice (as the learned Commissioner thought) become in fact and in law sub judice?
Re: Section 3.5 of the Rules of Professional Conduct
decreed by the Legal Practitioners Decree
[63] The learned Commissioner in his impugned order holds that:
"In addition to the absolute impropriety of publicly discussing legal actions he was about to launch, when doing so breached section 3.5 of the Rules of Professional Conduct incorporated into the Legal Practitioner's Decree"
(vide: at page 368 of the Record)
[64] The said Rule 3.5 reads thus: "A practitioner shall not on behalf of a client attack a person's reputation without good cause."
[65] The learned Commissioner also held that:
"By showing ASP Abdul Khan's name on the writ and by then going to complain of violent assaults by the Police, the practitioner is, on behalf of his client, in a very public area attacking the reputation of ASP Khan without the matter (being) decided by determination by a Court of Law."
(vide: page 369 of the Record)
[66] To begin with, Abdul Khan's name on the said writ, with particular reference to him was not displayed at the said T.V. interview. Assuming it was in fact seen on the face of the said writ that was not Mr. Khan's problem given the fact that, his endeavour on behalf of his client was against abuse of police power in general which he had in no uncertain terms been saying on the said T.V. Broadcast.
[67] I go further in reflecting on the fact that, even if Mr. Khan (Appellant) had attacked Inspector Abdul's reputation as the principal perpetrator of the abuse meted to his client, it would have satisfied the criterion of "good cause" as contemplated in the said Rule 3.5.
[68] Thus, the resulting position is that:
(a) Not only had the Appellant not attacked the complainant's reputation personally, even assuming that, his name was shown on the writ.
(b) but it was rather a stricture on abuse of police powers in general that he had passed, which the appellant in my view, was entitled to do in the said T.V. Broadcast in pursuit of his client's cause.
[69] Independently of all that, it is a matter of record that, ASP Abdul, the complainant on the said Complaints 1A and 1B had, after the conclusion of the proceedings and before the Commissioner's impugned order had withdrawn the said complaints.
[70] Notwithstanding that, the Commissioner had come to the finding that, "the complaint in 1A and 1B are made out and a finding of professional misconduct in respect of each count is established." (vide: Commissioner's finding at page 369 of the Record).
[71] That withdrawal was an additional and a relevant factor the Commissioner ought to have addressed his mind to.
[72] Accordingly, for the aforesaid reasons, I am of the view that, the Appellant was entitled to be exonerated of the said complaints (charges) contained in the said Complaints 1A and 1B.
Re: Complaint No. 4 (based on Section 81 of the LPD)
[73] This complaint, no doubt, is a serious allegation.
Re: The Evidence on the said complaint
[74] The evidence on the said complaint has been recapped in the learned Commissioner's impugned order at pages 369 to 370 of the Court Record.
[75] The analysis of the said evidence is at pages 371 to 372 of the court record.
[76] The learned Commissioner arrived at the following findings, that:
(a) the clerk Prem, was acting on behalf of the Appellant.
(b) in regard to the deception charge 'YH' (witness) at the trial he was facing, a sum of $500 had been paid to the Appellant to represent him.
(c) 'YH' had seen the Appellant on T.V. defending Alvin – his co-accused in the said deception case, although 'YH' in giving instructions to Prem had told Prem that he was fighting Alvin.
(d) the practitioner has accepted that he was appearing for Alvin. (Ironically, this transpired) on account of it being suggested to 'YH' in cross-examination that, the Appellant was representing Alvin "on instructions".
(e) Even if the Appellant was appearing for Alvin "on instructions" he was still in conflict of interest vis a vis his original client (YH).
(f) Section 1.2 and 1.3 of the Rules of Professional Conduct and Practice restrict a practitioner from acting for more than one party in the same matter, particularly in a criminal case where the practitioner has had independent and conflicting instructions from two clients. ('YH' and Alvin).
[77] Consequently, the learned Commissioner found the Appellant guilty of the said complaint.
[78] The learned Commissioner has cited the case of ILSC v. Rajendra Chaudhry (vide: page 373 of the Court Record) which strengthens the said findings.
[79] I have perused the evidence at pages 282 to 286 of the Court record.
[80] I find that, the findings are in harmony with that evidence.
[81] In his submissions, Mr. Khan was heard to argue that, in the said case involving ('YH'), he had not made an appearance on behalf of Alvin (the co-accused with 'YH').
[82] However, he did not make an application to this Court to call for the said case record.
[83] In any event, he being retained by 'YH' through Prem, and having accepted a fee of $500, he had committed himself to defending Alvin as well, as the uncontroverted evidence on record reveals, wherein 'YH' had given express instructions that, his defence in the deception case was in conflict with his co-accused – Alvin.
[84] Whether there was a conflict in the defences of 'YH' and Alvin is not the issue.
[85] It was, when 'YH' had felt that, there was going to be a conflict, and when he had asked for a refund of the fee of $500 he had paid to the Practitioner (the Appellant) which, again, as the evidence on record reveals, the Appellant had not done, although he is supposed to have said that, he will return it.
[86] It is at that point that, the Appellant's role (as a legal practitioner) stood compromised per se.
[87] Viewed in that perspective, I have no hesitation in coming to the conclusion that, the learned Commissioner's assessment in re: the said complaint (No. 4) stood established.
[88] I see no reason to interfere with the findings of the learned Commissioner. I see no error nor any misdirection in his order in regard to the said complaint (No. 4).
Re: the Question of Sentence
[89] The Appellant (Mr. Khan) lamented that, he had not been afforded an opportunity to plead in mitigation of the sentence of fifteen (15) months imposed on him.
[90] This appears to be so and respectively I see some procedural lapse on the part of the Commissioner in that regard.
[91] However, in his order, the learned Commissioner has addressed the guiding principles in sentencing adapting perhaps a pre-emptive approach. (vide: at pages 373 to 374 of the order).
[92] I do not think there has been any miscarriage of justice on account of that approach.
Conclusion
[93] I have earlier absolved the Appellant of the charges contained in Complaints 1A and 1B.
[94] I affirm the learned Commissioner's order in regard to Complaint 4.
[95] Already the Appellant has served almost 9 ½ months of his 15th month sentence of suspension.
[96] In those circumstances the ends of justice would be met if the suspension is lifted with immediate effect.
[97] I have considered the oral submissions made and the written submissions filed on behalf of the parties in the light of the several authorities cited.
Kamal Kumar, JA
I agree with the reasons and decisions of his Lordship Justice Guneratne JA.
Orders of the Court
.....................................................
Hon. Justice Suresh Chandra
Justice of Appeal
.....................................................
Hon. Justice Almeida Guneratne
Justice of Appeal
....................................................
Hon. Justice Kamal Kumar
Justice of Appeal
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJCA/2014/160.html