Bankruptcy Move by the New Hong Kong Bar Chairlady Ms Audrey EU to enforce the cost awarded by the Barristers' Disciplinary Tribunal, based on Hong Kong's present bankruptcy laws which is against human rights (e.g. lifetime bankruptcy, closure of all bank and credit card accounts, restriction of freedom of movement. On 12 Nov 97, Master KWAN referred the question of whether Mr Chua's "Gandhi-Style Protest amounts to a valid legal Opposition to the bankruptcy move" per his faxbroadcast of 7 Nov 97 ref H-P-Bar3, to be heard on 17 Nov 97 by Mr Justice Rogers as below:

蔡 誌 慶
ANTHONY C.H. CHUA
BSPharm, Reg Pharmacist, LLB, PCLL, Cert China Trade
University of Hong Kong Constitutional Law Research Student
Flat 607, Wang Mei House Secretarial-Pager : 7922 7756
Tin Wang Court, Chuk Yue Tel-Modem: (852) 2325 5629
Kowloon, Hong Kong. E-Mail : achchua@hkusua.hku.hk
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7 Nov 1997 My ref: H-P-bar3 My HomePage: http://www.hku.hk/achchua
U R G E N T : OUTLINE
BY eMail & FAX BROADCAST ONLY (Total: 1 fax-cover + 5 pages)

To: Ms Audrey EU QC, HK Bar Council, LG2 Supreme Ct (Tel: 28690210 Fax:28690189)

cc Mr Julian Betts, Registrar of HK Supreme Court (Fax: 28690640)
Mr Edmund Lo, Official Receiver, B10/536/97-EL/A, Tel: 28672503 Fax: 21047151
Ms C.I. LEE, Solicitors T S Tong & Co (Tel:25228147 Fax:28100950)
PLegCo,ComplaintSectMissEllataLai,CP/C539/97Tel:25264027 Fax:25217518

bcc Mr Philip Dykes QC (former pupilmaster & incumbent Bar Councilor), for sharing this bundle with Mr Denis Chang QC (former defence counsel in this Bar Disciplinary case) (Fax: 28450439)
Ms Phyllis Kwong, Solicitor 5F DahSing 99DVRC (Tel: 28051182 d28513778 Fax: 28051319)
Mr Paul Harris,Barrister1001FarEastFinCtr(Tel:28668233Fax: 28663932)
Mr Johannes M M CHAN, HKU Law (Tel: 28592935 Fax: 25593543) (incumbent Bar Councilor)
Prof Yash GHAI, Law Faculty Rm510 (Tel: 28592961 Fax:ditto) (my present supervisor)
Mr Martin LEE QC Tel:2397-7033 Fax:2397-8998
陸恭蕙 Ms Christine LOH (Tel:25216820, Fax: 25376937)
HK Law Society, Secy-General 1403 Swire (Tel: 28460500 Fax: 28450387)
Others (later)

Dear Ms Eu,

Bankruptcy No. 536/97 HK Bar v Anthony Chua for HK$0.446 million Cost for Disciplinary Case
Offer to Negotiate: Dropping Gandhi-style Protest and Pay the Equivalent Cost for a Rights WebSite
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1. This is my Offer to Negotiate with you in the captioned Bankruptcy to be heard on Wednesday 12 Nov 97 at 9:30am in the High Court. To give you sufficient time to convene the HK Bar Council to properly consider my offer, I now fax you this OUTLINE and request you (and Mr Betts and Mr Lo) to postpone the hearing to a date to be agreed. I will resume typing this letter once my computer is freed from the fax-broadcasting and emailing. Furthermore, as I have adopted the Ganghi-styled protest (unless settled with the HK Bar) and am busy fulfilling my primary duty as a full-time HKU student (see below), I will not be able to attend court. Please therefore read this letter (this OUTLINE and FULL) carefully.

2. As a barrister whose name still appears on the Supreme Court's roll, I am concerned that the reputation of the HK Bar and the HK court will be further harmed by your using the bankruptcy proceeding (which at present is against human rights because of lifetime bankruptcy, restriction of freedom of movement etc. (the because clause told by the Official Receiver)) to enforce an already unlawful and immoral disciplinary case cost against me and your unheeding of my Gandhi-style protest. You should be familiar with Gandhi's refusal to pay the salt tax, which ultimately led to the demise of the sentencing British magistrate and the British Empire in India. In the same vein, refusal of legal aid to me (I have passed the financial means test) by your predecessors (and the HK Law Society), the then Chief Justice Sir T L Yang, the Legal Aid Dept and the 3 High Court masters (Betts, Woolley and Jones) have hightlighted the need to decolonise a wide spate of legal institutions. A Gandhi-style protest is based on a single person bearing ALL the cost for reforming the unjust structures and mentality and on publicity. When Martin LUTHER in 1517 revolted against the then autocratic Catholic Church, his reformation thesis served as his publicity drive (see the book on the rise of nation-states by Benedict ANDERSON 1991 39-40).

3. A Gandhi-style protest is the highest indictment against the established institutions. Through presenting my first whistleblowing case against the Government Department of Health, I had encountered in person seven High/Appeal Court judges (including Mr Justice LITTON, who, unlike the helpful style of Lord Denning, criticised my written papers for being "unintelligible"). In raising issues on the legitimacy of the colonial government, the judges had felt obliged to "legalise" the law as a Marxist instrument of the rule by law, rather than the rule of law (true justice) (see below and my other writing). The only justice they could deliver was not awarding cost against me. The judges concerned had now all switched allegiance; and it is right time for the legislature to examine my cases from the point of view of legislative changes. Based on these experience (and rightly so per recent court rulings concerning the Basic Law), I believe that the Court will continue to adopt a "hands-off" attitude in my second whistleblowing case against the HK Bar Council (which leads to the present bankruptcy proceeding). Hence, my application for the above-mentioned legal aid and the formal adoptation of Gandhi-style protest.

4. I have also referred to the Provisional Legislative Council Complaint Section my claims that the HK Bar Council has abused its disciplinary powers, as given by the Legislature, and practised double standard in human rights, as disclosed in your unlawful and immoral enforcement of the Bar Code 101 for advertising against me and in asserting an improper status of being above the rule of law. These claims are LIMITED only to what you have done to persecute me, as a whistleblowing barrister. In other words, I have still high regards for you (especially your presentation in the June 1997 HKU Constitutional Transition Conference) and other barristers (especially Mr Philip Dykes QC (for Queen's Counsel - now renamed SC for Senior Counsel) for introducing me to the theory and practice of proper contradictor, one who put up a case for the court/public to decide if a human rights principle can be established). I have been asked by the previous legislature to provide information on worldwide whistleblowing legislations. Obviously this is too big a request for me to fulfil. In my letter to PLegCo ref. H-PlegW1 dated 13 August 97, I could only enclose an article by HKU's David CLARK and my joint article with Derek GOULD. As a full-time HKU post-graduate student under the academic supervision of Professor Yash GHAI, I have learnt sufficient research skill from the HKU Libraries and Computer Centre to fulfil this request (albeit only secondly to my duties as a student under Prof GHAI in writing my own thesis of Greater China and Federalism). As my line of reasoning has been consistent throughout all my endeavours, I believe that consolidating them into one cover (under different section headings) will save me resources and be effective in the putting the right information to the right person.

5. I have selected and downloaded a number of more useful Home-Pages (or web page in the internet's worldwide web) from more than 5 million whistleblowing Home-Pages and 29 million Home-Pages containing "British and Law" via the internet search engine called Infoseek. From the USA (United States of America), I will summarise below that of the GAP (Government Accountability Project), a non-profit NGO (Non-Governmental Organisation), which has URLs (Uniform Resources Locators, meaning the internet address of the Home-Page) of other governmental/non-governmental agencies, Law Firms specialised in whistleblowing legislations and the whistleblowers themselves. From the UK (United Kingdom), I will summarise that of the UK Law Society and those of a number of UK QCs (concerning how they advertise themselves within the UK disciplinary rules). From Australia, I will also summarise their development; but in lesser details. Only two HK Law Firms have Home-Page; the HK Law Society has none (per the UK Legal Society web search engine).

6. Whistleblowing has been defined by HKU's Terry LUI as "a situation when an official sounds an alarm drawing attention to instances of abuse or neglect in the organization which might threaten the public interest" and was adopted by the Court of Appeal in my case against the HK Government Dept of Health. A typical case runs as follows: An official (or a barrister or a company director) raises an issue of public importance, which is disagreed by the top management of the organisation (e.g. the Government Dept of Health, the HK Bar Council or the UK Barings Investment Company). The top management retaliates by firing the whistleblowing employee or taking disciplinary proceedings to silence the art of whistleblowing. The retaliation may precede or consequent to the employee's going public. My whistleblowing case against the HK Government for lack of drug safety in non-separation of dispensing from prescribing, in not regarding medical oxygen as medicine and in discriminating against Chinese medicine has been presented in my joint article above and by the lcoal media e.g. the SCMP (South China Morning Post).

7. UK's The Times newspaper (available via HKU's CD-ROM network or the internet online database Dialog@CARL) reported on 31 Jan 97 that the now defunct Barings company manager Ian HOPKINS was found guilty in a disciplinary proceeding for not discharging "due skill, care and diligence" against Nick LEESON's rogue trading of securities in Singapore in 1995. A tribunal of UK's Securities & Futures Authority dismissed Mr HOPKINS' defence of whistelblowing i.e. raising the issue at internal meeting and "warning Coopers & Lybrand, Barings's auditor, about serious accounting problems", and said that "senior managers have a duty to persist with their concerns until they are noted by the proper authorities". In UK, where protection for whistleblowers is still relatively weak, whistleblowers have been forced to drop their commitment by threat to their jobs. HOPKINS "was fired from the governing management committee just three days before the collapse" of Barings.

8. The disciplinary case of advertising under HK Bar Code 101 is a retaliation against my series of "suggestions" to the HK Bar Council (then udner Miss Jacqueline LEONG QC and Mr Ronny WONG QC). Based on the UK practice of allowing a short period of pupillage (internship for barrister) at the European Union and the spirit of OCTS (One Country Two Systems), I proposed to the HK Bar to allow me a few months of pupillage in Beijing. This suggestion was at odd with the then hard-line stand against Beijing. I argued further with the case of HK's first barrister Mr WU Ting-fong (see HK Law Journal), who left HK and participated in law/political reform at the national level. I believe that the destiny and autonomy of Hong Kong depends more in Beijing. This is again at odd with many barristers, who believed in separation and hence the protection of their vested interest under the comfines of Hong Kong.On the change of the HK Bar's logo from the one based on UK's Inns of Court, I took an opposite stand and argued that under OCTS, we could keep the logo based on the Inns of Court. I wrote to the SCMP and a number of barristers were also agitated into action. Amidst a series of other suggestions, I managed to introduce Professor XU Chungde to Mr Ronny WONG for increasing the linkage between Beijing and Hong Kong (see below for Professor XU's useful view in the abstract of my HKU thesis). I was not allowed to join the HK Bar's delegation to Beijing.

9. Retaliation appeared when Mr WONG asked me to desist from presenting a home-made name-card. I dutifully agreed; but such agreement did not naturally include desistance from making dissident views. I was then confronted with a photo of myself in wig and gown on the date of my call to the HK Bar and asked to explain my role therein when it was published in a local magazine almost a year ago in December 1992, concerning my difficulties in finding a pupilmaster because of my whistleblowing case against the HK Government. I was quite unhappy and took the view that the the photo and the article were self-explanatory. I did not reply as a protest of silence. Later, when I appeared in a HK Bar seminar with my then pupilmaster Mr Philip DYKES, Mr WONG interpreted that I had the backing of Mr Dykes. Mr WONG asked Mr DYKES to ask me to reply. I did so promptly with the one sentence reply of "self-explanatory", which Mr DYKES did not oppose. There was no usual terminologies in advertising (as per the Home-Page of Mr John Gardiner QC - to be shown later) e.g. area of specialty, still less fees. Mr DYKES apparently did not take it as a serious threat. However, Mr WONG and his disciplinary committee took the unusual view that this is a VERY SERIOUS MISCONDUCT and invoked the disciplinary machinery, which could lead to my disbarment (ie having my name struck off from the barrister's roll of the HK Supreme Court).

10. The HK Legislature had then transferred the "public function" of disciplinary actions to the HK Bar Council, making it a "public authority" under the HK Bill of Rights Ordinance (a defence later raised by my defence pro bono counsel Mr Denis CHANG QC that the HK Bar Code 101 was in breach of freedom of speech). At the Barristers' Disciplinary Tribunal, Chairman Mr Alan HOO QC would not hear my argument that the disciplinary charge was not a serious one, which could have been dealt with by "an interview of the Bar Chairman". I sucessfully argued for opening the disciplinary proceeding (by implication for news reporters). Mr HOO was furious when I persisted in raising the defence of victimisation by the HK Bar. As a leading criminal lawyer, he had no difficulty in dismissing my victimisation defence. More troublesome were the news reporters, whom he labelled "media circus'' when I protested in wig and gown with a placard against the HK Bar's double standard in human rights (see SCMP 10 Sept 1994 via Dialog@CARL). As a result, he did not deliver his judgment on that scheduled date by an excuse; but delivered a warning of contempt of the disciplinary proceeding. He refused the HK Bar's request to fine me (? - from my memory) and pay all the cost. By something more of an excuse (he acquitted me of failing to reply to Mr WONG's query), he ordered me to pay half of the cost only.

11. My determination to strike down the HK Bar Code 101 and make the HK Bar Council subject to the HK Bill of Rights was boosted mid-way through the disciplinary proceeding when I visited my alma mater in Manila. The Philippine People's Power revolution in 1987, when civilians blocked the army tanks, had a significant impact on the universitities (and vice versa). The Philipppine Human Rights Commission was established. Pro Bono Clinics were set up in the universities. A number of Human Rights Lawyers disappeared (killed). The cost for democracy was high. Back home, I was concerned that the double-standard in human rights would ultimately discredit the HK Bar. More importantly, the role of the HK Bar must be strengthened by arousing the public spirits of the barristers. Based on my reading of Counsel Carson's walking out of an unjust tribunal (a textbook in HKU PCLL program, which Mr WONG had earlier interpreted as not a valid basis to challenge the HK Bar's rules). If I was let off by Mr HOO, no one would mount an attack/defiance against HK Bar Code 101 (the amicus curia invited by Mr HOO also agreed that it was in breach of freedom of speech). My defiance so far proved to be correct. The Attorney General's proposal to relax HK Bar Code 101 along the line of trueful advertisement was not carried through the previous Legislative Council (to be confirmed), because of too much vested interests.

12. What I have written so far is therefore of direct relevance to the HK Bar and the Provisional LegCo and to Professor GHAI. I have to concentrate on my academic research and to spend 3 month in Beijing; hence I cannot spare time to defend against the HK Bar in the conventional way. The Gandhi-style protest via the internet is most efficient and effective (I can let million of web-pages and all major chambers in UK know the stories in this letter). I hope that the HK Bar can understand that my research topic under Prof GHAI is of interest not only to Hong Kong but the whole China. What is the point for the HK Bar to charge me under HK Bar Code 101 anyway? Can you bear the responsibility (towards the HK Bar, the judges, and the Legislature) for taking Mr WONG's action one step further? Could you like to see my home-page listed cross the world (a dummy one is already listed per my home-page address above)? Do you understand the comment of BYRNES and CHAN in the Human Rights Bulletin concerning Mr WONG's case against me?

13. Thank you very much for your kind consideration and please reply by mail or email.

Yours sincerely,

Anthony C H Chua