The Law Society of Hong Kong v. A Solicitor
Read the full judgment text of CACV 2112/2001 on BabelCite. This Court of Appeal judgment was delivered on 18 January 2002.
1. The Law Society of Hong Kong ("Lawso") made an application of complaint dated 3 April 2001 ("Complaint Application") under the Legal Practitioners Ordinance, Cap.159 ("Ordinance") for consideration of the professional conduct of the Respondent solicitor ("Solicitor"). The Complaint Application was supported by an Affidavit dated 3 April 2001 of Mr Harrod, the Director of Compliance of Lawso ("Complaint Affidavit"). The Solicitors Disciplinary Tribunal ("Tribunal") considered the Complaint App
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CACV002112/2001 CACV2112/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO.2112 OF 2001 (On appeal from Solicitors Disciplinary Proceedings) ---------------------- IN THE MATTER OF LEGAL PRACTITIONERS ORDINANCE, CAP.159 ----------------------
----------------------- Coram : Hon Mayo VP, Hon Woo JA and Hon Waung J in Court Date of Hearing : 18 January 2002 Date of Judgment : 18 January 2002 Date of Handing Down Reasons for Judgment : 1 February 2002 ------------------------------------------------------- R E A S O N S F O R J U D G M E N T ------------------------------------------------------- Hon Waung J (giving reasons of the Court) : 1.The Law Society of Hong Kong ("Lawso") made an application of complaint dated 3 April 2001 ("Complaint Application") under the Legal Practitioners Ordinance, Cap.159 ("Ordinance") for consideration of the professional conduct of the Respondent solicitor ("Solicitor"). The Complaint Application was supported by an Affidavit dated 3 April 2001 of Mr Harrod, the Director of Compliance of Lawso ("Complaint Affidavit"). The Solicitors Disciplinary Tribunal ("Tribunal") considered the Complaint Application and pursuant to Rule 6(1) of the Solicitors Disciplinary Tribunal Proceedings Rules ("Rules") by its order dated 21 June 2001 ("Dismissal Order") summarily dismissed the Complaint Application without requiring the Solicitor to answer the complaint allegations and without hearing Lawso. 2.The Appellant Lawso sought leave to appeal to the Court of Appeal from this Dismissal Order and made an ex parte paper application on 9 August 2001 to Keith JA (as he then was) supported by an Affidavit of Mr Harrod dated 8 August 2001 ("Leave Affidavit"). On 15 August 2001 Keith JA made an order ("Leave Order") granting ex parte leave (on paper without hearing any party) to Lawso to appeal the Dismissal Order. 3.The Solicitor upon being served with the Complaint Application, the Complaint Affidavit, the Dismissal Order, the Leave Affidavit, the Leave Order and the Notice of Appeal objected to the Appeal being brought by Lawso. By Summons of the Solicitors dated 27 September 2001 ("Set Aside Summons") the Solicitors sought to set aside the leave to appeal under the Leave Order. The Set Aside Summons was returnable for hearing on the 18 January 2002. The Appellant Lawso applied to set down the appeal for the appeal to be heard immediately after the hearing of the Set Aside Summons. By Order of Mayo VP made on the 21 December 2001, it was ordered that leave be granted to the Appellant Lawso to fix the hearing of the Appeal to be heard immediately after the disposal of the Set Aside Summons on the 18 January 2002. 4.At the hearing on the 18 January 2002, we invited submission first on the question of the jurisdiction of the Court of Appeal to hear appeal from summary dismissal orders under Rule 6(1) of the Rules of the Ordinance as the Court of Appeal might not have jurisdiction to grant leave to appeal from the Rule 6(1) summary dismissal orders. Our attention was accordingly drawn to the statutory scheme of discipline of solicitors by the statutory tribunal established under the Ordinance. The matter of leave to appeal to the Court of Appeal from summary dismissal is intimately connected with the statutory scheme and it will be convenient to first consider the statutory scheme of discipline of solicitors under the Ordinance. Statutory Scheme of Discipline of Solicitors of the Legal Practitioners Ordinance 5.The statutory scheme of the Ordinance provides for complaint against the conduct of a solicitor to be considered by a Solicitors Disciplinary Tribunal ("SDT"). By section 9(1), the Chief Justice appoints a Solicitors Disciplinary Tribunal Panel ("SDT Panel") consisting of not more than 120 practising solicitors of at least 10 years standing and not more than 60 lay persons not connected with the practice of the law. Section 9(4) provides for the appointment of a Tribunal Convenor of the SDT Panel by the Chief Justice. Section 9A provides for the matter of complaint against the conduct of a solicitor to be submitted to the Tribunal Convenor of the SDT Panel by the Council of Lawso. Section 9B provides for the Tribunal Convenor of the SDT Panel appointing from the SDT Panel, two solicitors and one lay person to constitute a SDT. 6.By section 10(2), a SDT has power (on completion of its inquiry and investigation) to make such order as it thinks fit and a list of non-exhaustive powers are set out in section 10(2). Section 10(3) provides that every order made under section 10(2) shall be filed with the secretary of Lawso and shall be available for inspection by person affected by the order. Section 12(1) provides that an order made by a SDT shall include a statement of its findings in relation to the facts of the case and shall be signed by the chairman of the SDT. Section 12(2) provides that a signed copy of the order of the SDT shall be filed with the Registrar of the High Court who shall enter a note of the order on the roll of the solicitors in connection with the name of the solicitor. 7.Section 13(1) provides that an appeal against any order made by a SDT shall lie to the Court of Appeal and the time for appeal is 21 days from the order. Section 13(2) provides that subject to sub-section (2A), Lawso shall be the respondent in the appeal. Sub-section (2A) of section 13 is a recent amendment to the Ordinance and provides that the Council of Lawso may, with leave of the Court of Appeal, appeal an order of a SDT under section 13(1) in which case, Lawso shall be the appellant and the solicitor the subject of the inquiry by the SDT shall be the respondent. 8.Rule 3 provides for the application of complaint regarding the conduct of a solicitor to be made in writing together with an affidavit stating the facts relied on in support of the application. Rule 4 provides for the transmission by the Council of Lawso to the Tribunal Convenor of the SDT Panel the written application and the supporting affidavit under Rule 3. Rule 5 provides that the SDT may at any time require the applicant or the Council to supply such further information and documents relating to the application as the SDT think fit. 9.Rule 6 reads :
10.Rule 8 provides that where in the opinion of the SDT a prima facie case is shown against the respondent, the SDT shall fix a day for the hearing and the clerk of the SDT shall serve notice thereof on each party to the proceedings and also serve on the respondent a copy of the affidavit and a copy of the application. Rule 9 provides for service of notice requiring the parties to furnish to the clerk of the Tribunal and to other parties 14 days before the hearing a list of all documents on which that party intends to rely on. Solicitor's Objection to the Bringing of Appeal 11.The Solicitor objects to the Court of Appeal hearing this proposed appeal from the Dismissal Order on the ground firstly that summary dismissal orders under Rule 6 give rise to no right of appeal to the Court of Appeal (namely Court of Appeal has no power to grant leave) and secondly that in any event, even if the Court of Appeal has power to grant leave, leave to appeal should very rarely be granted from summary dismissal orders under Rule 6 and that this is a wholly unsuitable case for the granting of leave. 12.The Solicitor Respondent's argument that the Court of Appeal has absolutely no jurisdiction over summary dismissals under Rule 6 is on the following grounds :
13.Lawso of course does not accept any of the above arguments of the Solicitor and contends that summary dismissals ex parte under Rule 6 are as much capable of being appealed against as final orders inter partes after fully contested disciplinary hearings and that both types of orders can be appealed with the leave of the Court of Appeal. 14.It is accepted by all parties and by this Court that :
15.The dispute at the hearing is over the circumstances the Ordinance intends that Lawso has the right to apply to the Court of Appeal for leave to appeal. The broad question on jurisdiction to appeal is whether Lawso has the right to apply for leave in respect only of a final inter partes order made after a fully contested hearing under section 10(2) or does Lawso also have the right after a summary decision under Rule 6 and Rule 8 following upon an ex parte application by Lawso. What is the scope for leave to appeal, after say a SDT decides upon ex parte application that out of 10 charges, 6 are summarily dismissed under Rules 6 and 4 give rise to prima facie case of disciplinary action under Rule 8? Can both sides appeal (with Lawso appeal by leave on the six but solicitor appeal as of right on the 4) or is it a situation of both sides not being able to appeal or will it be a case of only Lawso being able to appeal with leave (the 6 dismissals) but solicitor cannot appeal against the 4 going ahead? 16.The second large question for determination is the appropriate consideration for the Court of Appeal in granting or refusing leave to appeal under section 13(2A). The question is under what circumstances should the Court of Appeal grant leave to appeal. Is it on the normal basis of granting leave unless there is no realistic prospect of success on appeal or can the court also take into account :
17.It will be seen that the matter of the jurisdiction of the Court of Appeal to entertain appeals from the SDT is not an easy question (although important) and having reached the decision that in any event, leave to appeal should not have been given in this case, it is not necessary for us to decide this important and difficult question on the scope of the jurisdiction of the Court of Appeal over appeals by Lawso from orders or decisions of SDT. We therefore do not decide in this judgment the broad question of the jurisdiction of the Court of Appeal in respect of appeals by Lawso from orders of SDT. Our judgment is restricted to the decision that leave to appeal ought not to have been granted and on that basis this Court has decided to set aside the Leave Order of Keith JA. Dismissal Order and its Appealability 18.The sequence of events leading to the making of the Dismissal Order is as follows. As result of an employee of the Solicitor's firm being investigated by ICAC, ICAC looked into the business of the Solicitor's firm and it was ICAC (not any client of the Solicitor or Solicitor's firm) which brought to the attention of the Council of Lawso the conduct of the Solicitor. This was in November 1999. Lawso from January 2000 onwards then exercised its very considerable powers under the Ordinance and a very large number of files covering a considerable period of time were seized by investigating officers of Lawso. Following the seizures, there was exchange of correspondence between Lawso and the Solicitor over a large number of matters which were of interest to Lawso. Eventually Lawso decided to move against the Solicitor for professional discipline. By a paper ex parte application, Lawso submitted to the Tribunal the Complaint Application supported by the Complaint Affidavit. This was on or about the 3 April 2001, which was more than one year after the Lawso investigators' first seizure of documents. There was submitted to the Tribunal by Lawso no skeleton argument or written submission and the totality of the materials which was submitted by Lawso to the Tribunal at the time when the Tribunal exercised its power of summary dismissal under Rule 6(1) consisted of the following :
It is to be noted that the Supplementary Appeal Bundle ("New File") which the Appellant now seeks to put before the Court of Appeal as additional evidence was not submitted to the Tribunal. 19.The key documents which described or set out the complaints of Lawso are to be found in the Complaint Affidavit and Exhibit RAH-2 being the letter dated 22 March 2000 from Lawso to the Solicitor ("March Letter"). The Complaint Affidavit is divided into two parts, namely paragraph 8 ("Para.8") which particularised the alleged complaints by reference to the March Letter and paragraphs 14 to 24 ("Para.14/24") which particularised the alleged complaints. The complaints therefore are described in three written parts ("3 Written Parts"), namely firstly in Para.8, secondly in the March Letter and thirdly in Para.14/24. The March Letter stated at the penultimate paragraph (page 32 of the Appeal Bundle) "A summary together with copies of the relevant documents of the above-mentioned files is attached herewith for your reference." The said attachment to the March Letter ("Attachment File") was not however exhibited to the Complaint Affidavit and therefore the Tribunal was not given the Attachment File or any primary document to prove the charges. 20.An analysis of Para.8 and the March Letter (after considerable correlation work done by the Court without the assistance of the Appellant) reveals that the complaints consisted of 259 charges (divided into the 20 Categories as set out in Para.8) made up as follows :
21.The 259 charges which this Court managed to tease out of Para.8 and the March Letter (after considerable study), are however only generic in nature by references to files and are not offence specific in the usual proper way with full particulars. Even confining the reading to merely Para.8 and the March Letter, it would be difficult to spell out in respect of each and every one of these 259 charges, a proper description with full particulars of each charge. 22.The problem however was compounded by a switch in the second part of the Complaint Affidavit (after a description from Para.9 to 12 of the correspondence) to complaint of some 103 charges described in Para.14/24. These 103 charges again were not offence specific with full particulars but generic and by reference to files. There was no cross referencing between the offences in Para.14/24 and the offences in Para.8 or the offences referred to in the 21 paragraphs of the March Letter. Much guess-work is therefore involved if any one wishes to find out the relationship between the 3 Written Parts. 23.A careful reading of the 3 Written Parts will disclose that Para.8 and the March Letter alleged some 259 charges whereas Para.14/24 alleged only 103 charges. But as there was no internal referencing, it was left to the reader of these 3 Written Parts to work out and to speculate whether the 103 charges under Para.14/24 were meant to be part of the 259 charges under Para.8 and the March Letter. If that was the case, then following the same categorisation as made in Para.8, Para.14/24 probably shows the makeup of the 103 charges as follows :
24.So what exactly were the charges complained by Lawso to the Tribunal : 259 charges or the 103 charges or 259 charges plus 103 charges or what. The Complaint Affidavit and the correspondence exhibited to the Complaint Affidavit did not say expressly whether some or what charges had been dropped after the March Letter or whether Lawso was relying on the 259 charges under Para.8 and the March Letter or on the 103 charges under Para.14/24 or on both or some of the 259 charges and some of the 103 charges. This is a highly unsatisfactory way to submit request for disciplinary actions arising out of a large number of alleged acts of misconduct specially when the primary documents were not given to the Tribunal but there was exhibited to the Complaint Affidavit some correspondence. 25.The matter however is much more serious than a possible mere dropping of some charges made in Para.8/March Letter as seemed to be the case of Lawso (which was not indicated to the Court in any written submission but which emerged in the course of answers given by Mr Pow to questions from the Court). A careful examination and comparison of the 3 Written Parts will show that Lawso was not merely dropping some of the 259 charges ending up with 103 charges. New charges were made in Para.14/24 which did not appear anywhere in either Para.8 or the March Letter. 26.Take for example the Category A(iii) of Para.8 said to be 8 charges in breach of Rule 5(D)(a)(v) of the Rules which were identified by the eight files stated in para.4 of the March Letter, namely files 1783, 1840, 1861, 1881, 1994, 2150, 2179, 2221. Para.19 of the Complaint Affidavit relating to the Category A(iii) offences under Rule 5(D)(a)(v) complained however of 10 charges and with the file numbers given as 1482, 1579, 1840, 1855, 1861, 1881, 1994, 2040, 2218 and 2258. Although 1783, 2150, 2179 and 2221 under the March Letter Para.4 had been dropped, 6 new file numbers appeared in Para.19 of the Complaint Affidavit namely 1482, 1579, 1855, 2040, 2218 and 2258. Another example of new charges emerging is the case in respect of Category A(iv) of one charge made under Para.8/March Letter - para.5 but 10 charges appearing in Para.20 of the Complaint Affidavit. 27.What was a Tribunal supposed to do in these circumstances when :
28.It is not surprising to this Court that in these circumstances, the professional Tribunal upon the basis of the materials submitted by the prosecutor applicant decided (after three meetings) summarily to dismiss the Complaint Application. The Dismissal Order in its reasons said inter alia that :
29.The Tribunal did consider the question of asking for additional information under Rule 5 but that was in relation to the power of summary dismissal exercised in the absence of calling for additional material under Rule 5. There was certainly no obligation on the part of the Tribunal to call for additional material under Rule 5 and no complaint can be made against the Tribunal not calling for additional material. Nor was there any obligation on the Tribunal to hear Lawso before exercising the power of summary dismissal under Rule 6. It was up to Lawso to get its Complaint Application and Complaint Affidavit in proper and good order. It did not and it is clear from the Dismissal Order that it was the unsatisfactory procedure followed by the prosecutor applicant which caused the Tribunal to dismiss under Rule 6. 30.The Applicant has adopted if we may say so, a wholly unsatisfactory procedure in making the complaint in respect of charges which were uncertain in number, unspecific in each of its particulars, unsupported by primary documents, and confusing and internally self-contradictory and finally presented in such indigestible form that no professional tribunal could be blamed for throwing out the whole lot. In these circumstances, how could the Tribunal be expected to focus on each charge separately, to examine the documentary and Affidavit material to see if a case of alleged breach was made out and thereafter to consider whether there was established a prima facie case for disciplinary action relating to that charge. The Tribunal could not be faulted for not doing the work which the prosecutor Applicant should have done, namely to go through with great pain, in respect of each and every unspecified and unparticularised charge to see if any of the charges so badly presented could be saved. This is not the sifting process of the Tribunal nor and for that matter even less for the Court of Appeal under section 13(2) of the Ordinance. 31.Further, it is to be noted that trivial breaches do not call for disciplinary action (as indicated by the Tribunal) and that therefore not every breach even proved has the consequence of showing a prima facie case of disciplinary action. Without the primary documents and detailed charges with full particulars presented in a proper way (under 259 folders if there were 259 charges), it would be impossible for the prosecutor Applicant to satisfy the Tribunal that in respect of each of the 259 charges (or 103 charges if that be the case), a prima facie case for disciplinary action has been made out. 32.It was submitted to us that the Tribunal should have at least found a prima facie case established for some of the charges because of the existence of admission contained in the correspondence exhibited to the Complaint Affidavit. We do not accept, based on alleged admissions in the correspondence, the Tribunal must come to a conclusion of a prima facie case of disciplinary action in respect of particular charges. There was in fact hardly any express admission by the Solicitor of any wrongdoing and certainly not sufficiently specific as to compel the Tribunal to conclude a positive prima facie case had been made out in respect of any particular charge. But reliance of admission as foundation for charges is however more disturbing here because there had been apparently dropping of charges even after admission. Why would the same general alleged admission lead to certain charges being dropped but other charges being pursued? Admission is not a satisfactory basis for charges of professional misconduct and certainly no substitute for proof by primary documents. 33.The power given under Rule 6(1) to the Tribunal can be exercised when the Tribunal "is of the opinion that no prima facie case is shown for any disciplinary action, the Solicitors Disciplinary Tribunal may dismiss the application ...." (The power that there is a prima facie case under Rule 8(1) is also exercisable upon "opinion of" the Tribunal.) The power under Rule 6(1) is exercisable by the Tribunal if the Tribunal is of the opinion that no prima facie case for disciplinary action is shown. The opinion required by the Ordinance under Rule 6(1) is that of the Tribunal not that of the Court of Appeal. It seems to us that the Court of Appeal, even if it has jurisdiction, should generally respect the professional weight of the opinion of the Tribunal and not interfere with the decision of the Tribunal except in the few exceptional cases where the Court of Appeal comes to the firm view that not only was the Tribunal clearly wrong in a serious way but that a great injustice would be caused unless such seriously wrong decision was corrected by the Court of Appeal. 34.In our view, this is clearly not such a case. As we have indicated earlier, the unusual and wholly unsatisfactory procedure adopted by the applicant Lawso led to the understandable result of the Tribunal dismissing summarily the Complaint Application. Many similar SDTs would have come to the same conclusion. Lawso has only itself to blame in this case for being over ambitious in putting forward 259 or 103 charges and not taking the trouble to demonstrate intelligibly and with clear and sufficient particulars to the Tribunal there is a prima facie case in respect of each and every of those charges. 35.The Court of Appeal has been asked in the Notice of Appeal to make an order that a prima facie case for disciplinary action is proved. But proved in respect of which of the 259 or 103 charges and based on what material : the original materials submitted to the Tribunal or the New File. It seems to us that it would be quite wrong to admit the additional evidence of the New File. We must judge the correctness of the Dismissal Order by reference to the total materials submitted to the Tribunal and not substitute the Tribunal's opinion with our opinion of what should be the decision under Rule 6(1) based on the additional material which was not submitted to the Tribunal. On the basis of the original materials put before the Tribunal there was in fact no realistic prospect of the proposed appeal succeeding because it was not conceivable that the Court of Appeal would rule on which of the 259 or 103 charges (based on the limited and unsatisfactory materials) ought to have gone ahead under Rule 8(1) and not be summarily dismissed under Rule 6(1). On that basis that there was no realistic prospect of the Court of Appeal making an Order in favour of Lawso, leave to appeal ought to have been refused. The Further Basis for Setting Aside Leave to Appeal 36.But in our judgment, leave to appeal ought to have been refused on a much broader basis. What should have been brought to the notice of Keith JA in the ex parte paper application is the nature of the very special appeal where leave was sought. The statutory scheme should have been brought to the attention of Keith JA but there was no mention of this in the Leave Affidavit. The question of jurisdiction of the Court of Appeal to entertain appeal by Lawso from what kind of orders of SDT is very relevant. Not only was the leave application apparently the first of its kind after the recent amendment to the Ordinance but it was a most unusual one of seeking to reverse an ex parte sifting process under Rule 6 and Rule 8. Keith JA ought to have been warned that the Court of Appeal might not have jurisdiction to entertain Rule 6 dismissal orders and that he must be sure that there was jurisdiction before he could properly grant leave. But his mind was never directed to that point. 37.Further his attention ought to have been drawn to the special nature of the ex parte sifting process under Rule 6 and Rule 8. This is important because it had never been suggested previously that a solicitor has the right to appeal against an ex parte decision of the SDT under Rule 8 that there is a prima facie case (namely not to summarily dismiss). The question is, even if the recent amendment of Section 13(2A) extends to Rule 6 summary dismissals (which is a big question), should the Court of Appeal readily grant to Lawso leave to appeal having regard to the fact that there is no corresponding right of appeal for the solicitor and that the summary decision under Rule 6 and Rule 8 is really by way of an ex parte sifting nature and is not meant to be regularly and routinely reviewed in all its details and merits by the Court of Appeal. In our judgment, the Court of Appeal should not ordinarily be involved in the ex parte sifting process of the SDT under Rule 6 and Rule 8 and therefore even if the Court of Appeal is found to have jurisdiction over Rule 6 appeals, as a general rule no leave ought to be granted unless it is an exceptional case where the active intervention by the Court of Appeal is required because the SDT is obviously wrong in a serious way and great injustice would be caused unless that obvious and serious wrong is immediately and publicly corrected. This is obviously not the case here. 38.Furthermore, having regard to the ex parte nature of the paper application and the specific nature of the rejection of the Complaint Application wholesale (not rejecting some charges and accepting others) on the basis of the unusual procedure adopted, it was open to Lawso to properly reformulate its charges and submit a well prepared new application of complaint. This would have been the easier route. But that course was not taken and no explanation was given to Keith JA as to why that course was not taken. 39.In these circumstances, we are convinced that had Keith JA been aware of all the above relevant considerations, he would have refused leave. Unfortunately, Keith JA was misled into thinking this was a straight forward case of whether there was any arguable ground of appeal based on a narrow reading of the reasons for the Dismissal Order and the Rules. 40.We are of course aware of the general practice in the United Kingdom that the Court of Appeal would rarely disturb the leave granted by a single judge of the Court of Appeal (see Smith v. Cosworth Casting Ltd Practice Note [1997] 1 WLR. 1538). But the circumstances of this case are exceptional. There was in fact no good reason for granting leave. We therefore deemed it right to stop the appeal process and announced to the parties at the hearing that leave to appeal ought not to have been given and should be set aside. 41.It should be pointed out here that had we not stopped the process but the whole merits of the summary Dismissal of the 259 charges or 103 charges would have to be considered by this Court, it would entail an adjournment and many more days of hearing requiring detailed additional submissions (first written, then oral) from both sides. The circumstances of this case therefore fully justify the making of an order to set aside the leave granted (unlike the situation described in paragraph 6 of Lord Woolfe's judgment in Smith v. Cosworth). 42.We therefore order that the Leave Order of Keith JA be set aside. We also make an order nisi that Lawso Appellant pay to the Solicitor Respondent the costs of the Set Aside Summons and of the abortive Appeal with certificate for two Counsel.
Representation: Mr Jason Pow, instructed by Messrs Susan Liang & Co., for the Law Society (Summons Respondent and Appeal Appellant) Mr McCoy SC and Mr P. Ross, instructed by Messrs Littlewoods, for the Solicitor (Summons Applicant and Appeal Respondent) |
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