Re A Solicitor

CACV000002A/2001

CACV 2/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 2 OF 2001

(ON APPEAL FROM THE SOLICITORS' DISCIPLINARY TRIBUNAL)

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Coram: Hon Mayo V-P, Stock JA, and Cheung JA in Court

Date of Hearing: 23 October 2002

Date of Judgment: 23 October 2002

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J U D G M E N T

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Hon Stock JA:

Background

1On 14 June this year, this Court delivered judgment in this case and, by a majority, dismissed the applicant's appeal from a decision on 14 December 2000 of the Solicitors' Disciplinary Tribunal, by which decision that Tribunal found the appellant guilty of using promotional material which was likely to mislead. The material was constituted by two separate circulars in which the appellant's firm said that its "legal services for conveyancing had been assessed by the Hong Kong Quality Assurance Agency [HKQAA] to be up to the [services] standard of the ISO 9001".

2Put very broadly, this was said to represent that there had been an assessment by the HKQAA of the quality of the firm's actual work, rather than that of its quality management system. As I summarized the matter, at para 84 of my judgment, the Tribunal concluded, and I agreed, that the impression created by the circulars issued by the appellant was that the HKQAA had indeed assessed the quality of the firm's legal work and had approved it, whereas that was not true. As that judgment also makes clear, it had been the appellant's stance before the Tribunal that there was a material difference between the two, that is, legal work itself, and the system for quality management; and that indeed the ISO did not assess quality of work, but that the circulars did not mislead. Before this Court, on appeal, that tack was changed so that it was then said, and evidence was adduced in support to show, that the HKQAA had indeed assessed the legal work itself, rather than merely the quality management system in place.

3Cheung JA took the view there was no misrepresentation, since a quality management system was but part and parcel of the legal service provided. Mayo VP and I took the view that they were not synonymous, that the second went materially further than the first, and that, accordingly, the Tribunal was correct in its conclusion that the circulars were likely to mislead those to whom they were directed, namely, thousands of ordinary tenants of housing estates. The appeal was, accordingly, by a majority, dismissed.

4We have before us a number of applications.

Leave to re-open the appeal

5The first is an application to re-open the appeal and to set aside the order of the Tribunal by which the appellant was censured and fined $10,000. The decision of the Tribunal was dated 14 December 2000. The time for appealing is 21 days from that date. The appeal was launched on 3 January 2001. Further, there is an application to amend the Notice of Motion which launched the appeal in order to add a complaint about the penalty.

6Whilst the Notice of Motion, by which the Tribunal's decision was made the subject of the appeal, made express reference to the penalty whereby the appellant was fined $10,000 and censured and sought from this Court an order that the complaint (against the appellant) be dismissed - so that to that extent this Court was in effect asked as well to set aside the fine and order of the censure - that application was put in consequence of the contention that the determination that the circulars were misleading was erroneous. There was no suggestion whatsoever that, if the finding of the Tribunal that the appellant had misled the recipients of the circulars was justified, the penalty was too high and that this Court should disturb it. Yet that is now what the appellant seeks to do.

7The basis of the application is this, that in its judgment this Court made comments adverse to the circular or guidance issued by the Law Society in April 2000, which by that guidance allowed the publication by solicitors of the ISO logo, provided that the area of the firm's practice to which the certification relates was clearly stated. The Court said that the circular was not satisfactory for it had the potential to mislead. Furthermore, one of the members of this Court, Mayo VP, commented also that in his view the appellant was only guilty of an error of judgement and not of dishonesty or serious conduct. Reliance is also placed on comments which I made that no-one was suggesting that the appellant was other than an honest solicitor; although it is to be noted that no reference is made in the application or skeleton argument to the critical comments which I went on to express. It is said that in the circumstances the appellant should not have been censured or fined "for taking the same views as the Law Society in respect of the matter of general importance".

8We are taken to a number of cases in which the question is addressed of the circumstances in which an appeal might be re-opened, in particular Taylor v Lawrence [2002] 2 All ER 353. It is said that in our case the judgment of this Court reveals that a significant injustice has occurred and that we should re-open the appeal, the effect of which would be to address an issue that was never raised at the hearing before us, or in the Notice of Motion, namely, the appropriateness of the penalty.

9In my judgment, this is decidedly not the sort of situation which Taylor v Lawrence had in mind at all. There was in the present case a deliberate decision taken by the appellant not to argue that the penalty was excessive. Nothing new emerged between the hearing before the Tribunal and the hearing before this Court, or indeed since, which affects the analysis of the merits open to the appellant and to his legal advisers. They must have taken the view, correctly, that if the Tribunal had been correct in deciding that the appellant's circulars had misled the readers, then no Court of Appeal was going to say that the penalty imposed by the professional Tribunal was excessive.

10The question of the Law Society's guidance issued in the year 2000 was canvassed before the Tribunal and was indeed a matter upon which the Tribunal took a view. The Tribunal commented, on the last page of its decision, that the appellant's circular ran much further than the Law Society's guidance, as clearly, in my opinion, it did. To say that the appellant acted in the same way as the Law Society is, in my judgment, to misrepresent the position. The potential problem with the Law Society's guidance was that by mere display of a logo and words underneath which mentioned the area of practice to which the certification referred, there was room, perhaps, for the lay recipient not to know quite what the logo thus displayed meant. But the appellant did not do as the Law Society suggested. He went further. He made a full and express representation that there had been an assessment about the standard of his legal services. There had not. The two matters were different and to say that this Court found that the Law Society made the same error as the appellant is, in my judgment, not accurate. Certainly, speaking for myself, I made no such finding.

11Nothing new has arisen. This Court, in coming to its decision, has overlooked nothing. It has not looked at the wrong papers. There is no attack on its jurisdictional competence to make the decision which it made. We are not even invited to re-visit an issue the merits of which were canvassed before us. There exist none of the wholly extraordinary circumstances that might justify re-opening this case.

12It is also said that the Court's own comments suggest that the penalty was too high. That, in my judgment, is not so. It is to be remembered that in making its comments about the appellant and his conduct, they were just that - comments. The issue of the appropriateness of the penalty had not been raised; so that was not the issue addressed by those of us who were making the comments. They were asides. It was not even an issue upon which counsel for the respondent had been invited to say anything whatsoever. The Court was not dealing with the degree of culpability as an issue. In any event, speaking for myself, I merely said that it was not suggested that the appellant was a dishonest solicitor. But I expressly remarked that he had not, as he might have, cleared the circulars with the Law Society before he issued them; that there had been no need for him to depart in his second and third circulars from the accurate terms of the first; that there was no explanation why he had not represented in the circulars, as he had in his affirmations, that the ISO Standard evidenced merely a commitment to quality service. Furthermore, his own case had changed. It had been that the circulars had not been misleading: the ISO Certificate was not about the quality of work; and the representations made were not to that effect. However, once it was appreciated that the effect of the representations made in the thousands of circulars distributed could only properly be read as representing that the quality of work had itself been certified, the case changed to one in which it was asserted that the Certificate was indeed about the quality of work. In so far as the appellant places such store on the Law Society circular, the fact of the matter is that he did not adopt its guidance. At para 97 of my judgment I said that in so far as it had been suggested that the assessment as to whether his circulars were misleading was a matter of a fine balance, I did not agree. I remain of that view.

13I do not think that there is the remotest basis upon which it would be appropriate to allow the appellant now to argue the issue of penalty, and I would refuse the application to re-open the appeal, and the allied application to amend the Notice of Motion.

Costs

14The second application is as to costs. This Court made an order nisi that the Law Society should have the costs of the appeal. The appellant now asks that that order should not be made absolute and that, instead, there be no order as to the costs of this appeal.

15In support of this application, it is said the Law Society has made the same error as the appellant. I have already explained why that is not accurate.

16Then it is said that the Law Society has benefited from the appeal, or from the judgment, because of the Court's comments about its guidance issued in the year 2000. That may well be so, but that is a strange basis, I suggest, upon which to oppose an order which follows the event. The appellant has not succeeded on any single one of the several limbs which were argued in this case. There were extensive and thoroughly unmeritorious arguments on issues of procedure, duplicity, natural justice; and then a change in the attack on the substantive issue, which required an adjournment, and which then did not succeed. I do not see the justification for making an order other than the one which this Court has already proposed.

Leave to appeal to the Court of Final Appeal

17The appellant seeks leave to appeal to the Court of Final Appeal. The ground stated in the Notice before us as the ground upon which the proposed appeal is based is that there arises an issue of great or general public importance. The matter of such importance is phrased thus:

"(1)

(a)

Whether given the findings of the Tribunal and the Court of Appeal that the manner of publicising the "Q" mark as allowed in the Circular could produce misleading effects, the publication of the "Q" mark should logically and in effect be banned;

(b)	If so, whether the Law Society as the profession's regulatory body has misled its members by issuing the Circular and is therefore short of moral authority to prosecute, and/or estopped from prosecuting, any of its members in respect of the publication of the "Q" mark;

Alternatively,

(2)	Whether, as a matter of law, circulars issued by the Law Society on matters of practice promotion qualify the Promotion Code so that the Circular qualifies Paragraph 6(a) of the Promotion Code in relation to the publication of ISO 9000-9002 accreditation with the result that a member who publishes the "Q" mark in accordance with the Circular cannot be prosecuted and/or found guilty of a breach of Paragraph 6(a) the Promotion Code;
(3)	Whether, as a matter of principle, circulars issued by the Law Society represent standards of good practice set by the profession's watchdog and the Tribunal and the Court of Appeal are obliged to give effect to them in considering complaints of professional misconduct;
(4)	Whether, given that the Law Society is the profession's regulatory body and sets standards of good practice for its members, the Tribunal and the Court of Appeal are not entitled to find a member guilty of professional misconduct under any rule which the Law Society is itself confused about;
(5)	Whether as a matter of principle the Law Society in prosecuting a member under any rule of conduct is bound by its interpretation of that rule and is not entitled to shift its position at different stages of the disciplinary proceedings; and whether any such vacillation constitutes arbitrary and oppressive prosecutorial conduct which should not be condoned; and
(6)	Whether, in the circumstances of this case, justice is manifestly not seen to be done."

18Section 13(1) of the Legal Practitioner's Ordinance provides that the decision of the Court of Appeal on any appeal from an order of the Solicitors Disciplinary Tribunal shall be final. Whether this in fact precludes an appeal to the Court of Final Appeal is left open by the decision of the Court of Final Appeal in Peter PF Chan v HK Society of Accountants FAMV No. 11 of 2001, 25 April 2001, unreported. This application is in any event substantially out of time, for which fact no explanation is provided save, we are told today, that it was originally hoped to ask this Court to review its decision to dismiss the appeal but that those contemplating that step then changed their minds, and launched this application for leave to appeal to the Court of Final Appeal. That explanation for delay is not in my judgment satisfactory and, for this reason alone, I would refuse leave. Nonetheless, I am content to address the matter on its merits. I cannot agree that the issues suggested by the Notice of Motion were the questions involved in the appeal for the purpose of section 22 of the Court of Final Appeal Ordinance, Cap 484. The question of the Society's guidance upon which such enormous emphasis is now placed, was a side-note; and the adverse comments made about it were not germane to the majority's decision. As I said in my judgment [para 100] "... criticism of the guidance is not to the point in this appeal, for the issue in this appeal is whether the circulars distributed by the appellant were likely to mislead." (emphasis added). Why the Court of Final Appeal should now engage itself, as suggested, in deciding whether that guidance should be 'banned' defeats me entirely.

19The proposed grounds or questions suggest that the Law Society misled its members and that therefore they are short of "moral authority to prosecute". To what proposition of law that gives rise I know not, save for the reference to estoppel which was never argued before us and which does not in any event arise, not least because the guidance was issued by the Law Society after the offending material was issued by the appellant, and was in any event to different effect. I have, furthermore, earlier addressed the material differences between the guidance, on the one hand, and the representation made by the appellant, on the other. The entire subject of the appeal was the appellant's representations. I simply do not see the questions raised as arising from this appeal.

20It is said too, although that was not clear to me until late in the course of argument today, that the second limb of section 22 of the Ordinance is relied upon, namely, that the matter ought to be submitted for other reasons to the Court of Final Appeal for decision. The assertion in that regard, as we see from para 6 of the application, is that justice has not manifestly been seen to be done. The contention is supported by the same arguments as were advanced before us on appeal and decided by us, and by the same argument about the Law Society circulars which I have already addressed. I see no justification for granting leave on this basis either.

21In these circumstances, I would refuse leave.

Hon Cheung JA:

22For my part, since I had allowed the appeal, I had also set aside the penalty and the costs order.

23As for the appeal to the Court of Final Appeal, I would say that the effect of adopting the ISO accreditation in solicitors' practice and advertisements is a matter of great general or public importance which merits the case to be heard by the Court of Final Appeal. Whether the finality provision of S. 13(1) of the Legal Practitioner's Ordinance is constitutional in the light of the Basic Law is clearly a matter fit to be considered by the Court of Final Appeal. I would grant leave notwithstanding the delay in applying for leave.

Hon Mayo VP:

24I agree with the judgment given by Stock JA. In my view the application for the Court to reopen its judgment was misconceived. It would be inappropriate for this Court to review its decision on the basis of what had been said in its judgment.

25More particularly the matters upon which we are being asked to revise our decision were not central to the issue which we had to decide, namely whether the Tribunal which heard the complaints against the solicitor had been plainly wrong. The consequence of this is that by a majority this application is dismissed.

26The next application is for us to revisit the costs order nisi which we made at the conclusion of the hearing. The appellant submits that there should be no order for costs. I agree with Stock JA that in the normal situation costs should follow the event. The simple fact of the matter was that the appeal was dismissed and I can see no reason why our original order should not stand. This application is also by a majority dismissed.

27The final application is for leave to appeal to the Court of Final Appeal. The application is out of time and no satisfactory explanation for this has been forthcoming. So far as the merits of the application are concerned, I agree with the observations made by Stock JA that the questions posed do not meet the requirements of section 22(1)(b) of the Court of Final Appeal Ordinance Cap. 484 that it must be demonstrated that a question of great and general importance arises which needs to be considered.

28There is also the question as to whether any appeal does lie to the Court of Final Appeal. It is not necessary to consider this as the application is in my view lacking in merit.

29The application for leave is by a majority also dismissed.

30The respondent will have the costs of these applications.

Representation:

Ms Wing Kay PO instructed by Messrs J Chan, Yip, So & Partners for the Applicant/Appellant.

Mr John Kerr instructed by Messrs A B Nasir & Co for the Respondent