A Solicitor v. The Law Society of Hong Kong

CACV000202/1994

IN THE COURT OF APPEAL

1994, No. 202
(Civil)

- Headnote -

Appeal on costs only ordered by Solicitors Disciplinary Tribunal - Right of appeal to Court of Appeal conferred by s13(1) Legal Practitioners Ordinance - This section cannot over-ride s14(3)(e) Supreme Court Ordinance - Accordingly, no right of appeal without leave. Appeal dismissed.

IN THE COURT OF APPEAL

1994, No. 202
(Civil)

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Coram: Hon Nazareth, V.-P., Litton and Godfrey, JJ.A.

Date of hearing: 3 March 1995

Date of judgment: 3 March 1995

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J U D G M E N T

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Litton, J.A.:

1. On 20 October 1994 a Solicitors Disciplinary Tribunal made an order for costs against a solicitor pursuant to section 10(2)(e) of the Legal Practitioners Ordinance, following disciplinary proceedings. The solicitor lodged a notice of appeal against that order, purporting to exercise a right of appeal without seeking leave to appeal under section 14(3)(e) of the Supreme Court Ordinance. There is no other matter under appeal.

2. The Law Society through Ms Maria Yuen now takes a preliminary point that this court has no jurisdiction to entertain the appeal as no leave to appeal has been granted. Section 14(3)(e) says as follows:

"No appeal shall lie -

(e)	without the leave of the court or tribunal in question or of the Court of Appeal, from an order of the High Court or any other court or tribunal .......................... relating only to costs which are by law left to the discretion of the court or tribunal;"

3. Plainly, the reference to "tribunal" in para (e) includes the Solicitors Disciplinary Tribunal constituted under the Legal Practitioners Ordinance. This, in effect, limits the jurisdiction of this court regarding appeals relating only to costs. Unless the wording of section 13(1) of the Legal Practitioners Ordinance can be construed to over-ride the limitation imposed on this court by s14(3)(e), as Mr. Chain counsel for the solicitor contends, it must follow that this appeal is bad. This court would have no jurisdiction to proceed to entertain the appeal.

4. Section 13(1) of the Legal Practitioners Ordinance says:

"(1) Subject to section 12(6), an appeal against any order made by a Solicitors Disciplinary Tribunal shall lie to the Court of Appeal and the provisions of Order 59 of the Rules of the Supreme Court shall apply to every such appeal ...".

5. Has s13(1) of the Legal Practitioners Ordinance the effect contended for by Mr Chain? I do not think so. Section 13(1) is not free-standing. It does not provide a comprehensive code for dealing with appeals from orders of the Solicitors Disciplinary Tribunal; for that one must go to the Supreme Court Ordinance.

6. Mr Chain then has a fall-back position. He argues thus: it is only an appeal on "costs which are by law left to the discretion of the court or tribunal" which limits the jurisdiction of the Court of Appeal. He says this: If one turns to section 10(2) of the Legal Practitioners Ordinance it can be seen that the power to order costs is part of the general disciplinary powers of punishment conferred on the tribunal; hence, he argues, the matter now under appeal is not a matter relating only to costs.

7. I would reject this argument as well. Section 10(2)(e) of the Legal Practitioners Ordinance is clear enough in its wording. It empowers the tribunal to order the payment of costs by either party: to be assessed by the tribunal itself or by taxation by a Master on a full indemnity basis. Plainly, the exercise of jurisdiction under that paragraph can relate only to costs.

8. It follows that Ms Yuen for the Law Society is right in her submission. There being no leave given for the appeal to proceed, this court cannot entertain the appeal.

Godfrey, J.A.:

9. I entirely agree; and, for the reasons given by my Lord, Mr Justice Litton JA, for holding that this appeal cannot be entertained, I would dismiss it. There is nothing further that I wish to add.

Nazareth, V.-P.:

10. I also agree that for the reasons given by my Lord, Litton JA, the appeal here is one that relates only to costs which are by law left to the discretion of the tribunal. The result is that the appeal is dismissed.

Representation:

Mr Benjamin Chain (M/S Sousae & Hoosen) for Appellant

Ms Maria Yuen (M/S Haldanes) for Respondent