A Solicitor v. The Law Society of Hong Kong/ The Solicitors Disciplinary Tribunal

CACV000254/2003

CACV 221/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.221 OF 2003

(ON APPEAL FROM THE FINDINGS/DECISIONS OF THE
SOLICITORS DISCIPLINARY TRIBUNAL DATED THE 16TH DAY OF
JULY 2003 AND THE ORDERS OF THE SOLICITORS
DISCIPLINARY TRIBUNAL DATED THE 16TH DAY OF JULY 2003)

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CACV 254/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.254 OF 2003

(ON APPEAL FROM THE FINDINGS/DECISIONS OF THE
SOLICITORS DISCIPLINARY TRIBUNAL DATED THE 7TH DAY OF
AUGUST 2003 AND THE ORDERS OF THE SOLICITORS
DISCIPLINARY TRIBUNAL DATED THE 7TH DAY OF AUGUST 2003)

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Coram: Hon Rogers VP, Le Pichon JA & Stone J in Court

Dates of Hearing: 28 and 29 October 2003

Date of Judgment: 11 November 2003

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J U D G M E N T

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Hon Stone J :

The appeal

1.This is an appeal from Orders made by a Solicitors Disciplinary Tribunal against the appellant herein, Mr Josip Ma Pui Tung, who hitherto practised under the name of Messrs Josip Ma & Co.

2.More precisely, there are before the court two appeals, by Notices of Appeal respectively dated 30 July 2003 and 26 August 2003, the first such appeal relating to the Findings made by the tribunal on 16 July 2003, and the second appeal relating to the Orders made by the tribunal consequent upon its earlier Findings, and in particular the conviction of Mr Ma upon certain of the charges which had been laid against him. Why it was thought necessary to mount two appeals arising from one inquiry is unclear, but in any event as a practical matter the appeals were conjoined and treated as one.

The factual background

3.This matter has its genesis in the representation by Mr Ma of a client named Mr Koo Koon Yan, the defendant in HCA No.7305 of 1993.

4.In this action Mr Koo was being sued for specific performance of a Chinese agreement whereby Mr Koo had agreed to sell and the plaintiff, one Jim Class Investment Limited, had agreed to purchase two floors of a building in Tai Po for HK$2,250,000. The main dispute in the action, however, was whether, pursuant to the agreement, Mr Koo as vendor or Jim Class as purchaser should be responsible for payment of the government premium which was payable before transfer of the properties could be effected. This premium was not insignificant, having been provisionally assessed in December 1992 at some HK$1.67 million, such provisional assessment having been increased in 1996 to approximately HK$2.3 million.

5.The action came on for trial on 14 November 1996. But it was not fought. Because on the morning of the trial counsel for the parties, Mr Kenneth Chan for the plaintiff, and Mr Hubert Woo for the defendant, Mr Koo, negotiated terms of settlement which led to a Consent Order disposing of the action.

6.The terms of this settlement reached at the court door were that an order for specific performance was made, and out of the balance of the purchase price (an initial deposit of $100,000 had been paid) the plaintiff was to pay the premium, once finally assessed. Judgment was to be entered for Jim Class against Mr Koo for HK$550,000 as agreed damages for alleged breach of agreement (it was subsequently to be asserted that it had been agreed that this element of the judgment would not be enforced), and that upon assignment of the property free of incumbrances and upon delivery of vacant possession the plaintiff was to make an ex gratia payment of HK$270,000 to Mr Koo. Lastly, Mr Koo was to pay Jim Class agreed costs of HK$60,000.

7.This court is not concerned with the merits of this action between Mr Koo and Jim Class. Taken at face-value, however, this settlement does not appear attractive when viewed from Mr Koo's perspective; the evidence is that by 1996 the provisional premium assessment had increased to about HK$2.3 million (it was to rise yet still further), and thus on any basis the balance of the purchase price would not have been sufficient to meet the outstanding premium.

8.It was subsequently asserted by Mr Koo's counsel, Mr Woo, that the Consent Order, as drawn, did not reflect two additional matters: first, that there was an understanding between counsel at the time of drafting the Consent Order that any excess of premium over the balance of the purchase price would be borne by the purchaser, Jim Class, and also that upon Mr Koo removing all incumbrances prior to the date of assignment that there would be no enforcement of the judgment which had been entered for the payment of HK$550,000. Of these two additional matters, the issue of who was to make payment of the premium excess remained in dispute, and was to cause subsequent difficulty and further litigation.

9.In the event Jim Class paid the premium, which by that stage had been assessed at slightly over $HK2.8 million, and thereafter by summons dated 12 March 1998 sought a declaration that, under the Consent Order made by Deputy Judge Wilson on 14 November 1996, it was not obliged to pay the premium excess. This in turn precipitated a cross-summons issued on behalf of Mr Koo on 16 April 1998 whereby a "correction" was sought of the terms of the Consent Order so as to provide for the liability of the purchaser, Jim Class, to bear the excess of premium over and above the balance of the purchase price. These cross-summonses occasioned the filing of affirmations by persons, including Mr Koo, who had been involved in the settlement on the morning of 14 November 1996.

10.This event this further dispute was again settled. The basis for this further settlement was that Mr Koo was to pay Jim Class HK$100,000 by three instalments, Mr Koo was to waive the entitlement to the ex gratia payment of HK$270,000, and in turn Jim Class waived both enforcement of the judgment in its favour for HK$550,000 and also its entitlement, on the face of the Consent Order, of the sum of HK$60,000 payable in costs.

11.The objective observer might think that the upshot of this unfortunate sequence of events, as set in train by the entry into the Consent Order of 14 November 1996, was that Mr Koo had not fared at all well. The purchaser, Jim Class, had acquired the properties the subject-matter of the sale and purchase agreement for the total sum of HK$2,804,200, which solely represented the payment made to the government in satisfaction of the premium, whilst Mr Koo, as vendor, had received nothing for the sale of his properties, and to wit had ended up owing Jim Class HK$100,000, together with a liability for his own legal costs.

Mr Koo's complaint

12.On 25 November 1996 Mr Koo wrote a letter of complaint to the Law Society of Hong Kong. He made a number of allegations in that letter, which speaks for itself, against Mr Ma Pui Tung, the solicitor in charge of his High Court action, to whom he had been introduced by his friend, a "legal assistant", Mr Wong Yin Tak. Mr Koo said that Mr Ma had failed to perform the duty of a lawyer with due diligence, and asserted that Mr Hubert Woo, the barrister appointed by Mr Ma to appear on his behalf, had misled him into reaching a settlement. Mr Koo was subsequently to state that he had been under the impression that Jim Class would be paying in excess of HK$4 million to purchase the properties, given that he knew that a sum of this order represented the balance of the purchase price and the premium added together.

13.In his initial letter Mr Koo maintained that the settlement agreement, which was in English, had been signed and submitted without the terms and conditions therein having been explained to him. He requested an investigation, and followed up on 23 September 1997 with a letter enclosing documentation supporting his allegations.

14.Thus commenced what became a lengthy and no doubt arduous, and at times somewhat bizarre, disciplinary action against Mr Ma, the result of which forms the subject-matter of the present appeal.

The Law Society proceedings

15.Consequent upon its investigation, the Law Society laid a total of seven charges against Mr Ma concerning his conduct in respect of the High Court action wherein his firm had represented Mr Koo.

16.These charges vary in severity. Charges 1 and 2 allege Mr Ma's failure to provide his client with a written record of fees, and his failure to deliver a bill of costs to Mr Koo within a reasonable time of the conclusion of the matter. The third charge alleges Mr Ma's failure to comply with Mr Koo's instructions in terms of the appointment of counsel, namely Mr Hylas Chung, whilst the fourth charge is in two parts: first, Mr Ma's failure to keep his client properly informed of the true nature of a Notice to Act in Person, which Mr Koo had been asked by Mr Ma to sign, and second that Mr Ma had failed to inform Mr Koo of the advice of counsel, Mr Chung, that a second valuation report be obtained for use in the High Court proceedings. Charge 5 related to Mr Koo's failure to advise his client as to the lack of any prospect of success in these proceedings, whilst Charge 6 asserted the failure of Mr Ma to arrange for the attendance of a responsible representative throughout the proceedings, instead instructing Mr Wong Yin Tak, a clerk, to attend. Finally, Charge 7 asserted failure to ensure that adequate instructions, together with supporting documents, had been sent to counsel in good time to advise.

17.The hearing of this proceeding, before a disciplinary panel of three persons, took place over a total of 38 sessions during the period 17 January 2002 to 1 March 2003. The sessions on Thursday and Friday evenings lasted three hours, but those on Saturdays around seven hours. The transcript alone runs into nine volumes.

18.Viewed objectively it is not immediately apparent why a simple and straightforward disciplinary proceeding of this nature should have become thus extended. However, a flavour of that which occurred can be gleaned by the reference by the tribunal in its Findings to the "generally unacceptable" behaviour of Mr Ma, to his "constant outbursts", and to the disrespect he evinced toward the tribunal, and to his constant attacks on what was termed "persecution by the Law Society".

19.The occurrence of heated exchanges is also noted, in particular a serious incident on 26 September 2002 between Mr Ma and the lay member of the tribunal, Mr Soo. In fact, consequent upon that which is referred to as his "abusive and disrespectful manner", Mr Ma was found guilty of contempt, which after an apology attracted a fine of $5,000. It appears, also, that the appearance of Mr Ma before the tribunal dressed in Arabian garb and dark glasses did nothing to ameliorate the somewhat fraught atmosphere which clearly prevailed during the hearing of this inquiry.

20.In terms of the evidence which was placed before the tribunal there were but seven witnesses, of which there were two principal witnesses on each side. Mr Koo together with his friend Mr Wong Yin Tak were called by the Law Society, and Mr Ma called two witnesses, namely himself and the barrister who had been instructed, Mr Hubert Woo.

21.Three other witnesses also gave evidence, all of whom had been subpoenaed at the request of Mr Ma. They were Mr Kenneth Chan of counsel, Mr Andy Hung of counsel, and Mr Winson Ho Man Cheong, a solicitor. Mr Chan and Mr Ho could recall little, and Mr Hung claimed privilege. So the tribunal was not assisted, and paid no attention to, the evidence of these minor witnesses.

22.Some four and a half months after the conclusion of the hearing on 1 March 2003, the tribunal published its Findings, dated 16 July 2003.

23.Of the seven charges laid against him, Mr Ma was found guilty of Charges 1, 2, the first part of Charge 4, and of Charge 6, whilst guilt was not established in terms of Charge 3, the second part of Charge 4, Charge 5 and Charge 7, so that from a purely numerical perspective he was aquitted of 50% of the charges as brought. Both the fact of conviction and the sentence upon each of the charges for which guilt was established are attacked in this appeal.

24.At the conclusion of its ruling on liability, the Law Society and Mr Ma were ordered to tender written submissions as to both sentence and costs within two weeks from 16 July 2003.

25.In the event the Law Society provided its submissions, but Mr Ma (whom until this stage had been represented by Mr William Allan of counsel, instructed by Messrs Louis Pau & Co. but by now was acting in person) sent to the clerk of the tribunal a letter dated 28 July 2003, which somewhat unpromisingly was intituled "Fight Against the Law Society for and In the Name of God".

26.This letter contained the observation that "it is never too late for sunshine and the truth", indicated that Mr Ma repeated every point made in his supplemental closing submission, and asserted that since the tribunal had been "more than wrong" to find Koo and Wong to have been truthful that it was accordingly "superfluous to ask me to mitigate". The letter concluded with a repeated invocation of the deity, and was signed 'Josip Ali Ma'.

27.In light of this response, the tribunal took it that Mr Ma did not wish to make any submission in relation to sentence, mitigation or costs save as set out in this letter. The tribunal noted that the letter made it clear that Mr Ma "in his usual self-righteous fashion, is less than repentant or apologetic for what happened."

28.The tribunal then proceeded to sentence upon each of the charges with respect to which guilt had been established, and in addition ordered that Mr Ma should bear 80% of all the costs of and incidental to the proceedings, including all prior inquiries and investigations including costs incurred in respect of the charges as were dismissed, to be taxed by a Taxing Master of the High Court "on a full indemnity basis if not agreed".

Appellant's submissions

29.Two Notices of Appeal have been filed, containing in total some 25 Grounds of Appeal. They contain a plethora of argument and extraneous detail, the cumulative effect of which serves to obscure rather than to illuminate.

30.However, at the hearing of this appeal Mr William Allan, appearing for Mr Ma, as he had before the tribunal below, sensibly adopted a more focused approach. He did not go to each of the individual grounds, choosing instead to mount what were termed 'across the board' criticisms of the conclusions reached by the disciplinary tribunal, all of which were encompassed within the Grounds of Appeal, before moving on to consider, with reference to the sentence imposed, the specific charges upon which Mr Ma had been convicted.

31.I deal first, therefore, with the broad themes which I have been able to abstract from his address.

Credibility

32.This was Mr Allan's keynote point. At the outset he specifically accepted and agreed with the stated view of the tribunal (at page 11 of its Findings) to the effect that "there is no doubt that credibility is the single most important factor" for the tribunal to determine in considering whether Mr Ma should be convicted of any of these seven charges.

33.The problem here, said Mr Allan, was that they had believed the wrong people. The tribunal had accepted the evidence of the complainant, Mr Koo, and that of Mr Wong, the interpreter attached to Mr Ma's firm who had effected the Ma/Koo introduction, rather than to believe the evidence of his client and that of the barrister who had been instructed, Mr Hubert Woo.

34.Mr Allan accepted the trite proposition that attempts to disturb factual findings, such as the credibility of witnesses, was a task of some magnitude, and that an appellate court did not lightly disturb the views of the court or tribunal below which had had the advantage of seeing and hearing the witnesses.

35.Nevertheless, he went so far as to characterize the tribunal's views as to credibility in this case as reflective of a conclusion to which no reasonable tribunal could have arrived.

36.In particular, Mr Allan submitted that Mr Koo's evidence had been inconstant and unbelievable, in this context citing discrepancies in Mr Koo's account of that which occurred on 14 November 1996 between his evidence in his statements and before the tribunal when compared with that which he had said on affirmation in April 1998 in the subsequent litigation involving the Consent Order.

37.Mr Allan further complained that the tribunal had wrongly believed the evidence of an interpreter, namely Mr Wong, at the expense of believing the barrister, Mr Woo.

38.I am unable to accept the submission that, in effect, there was insufficient evidence before the tribunal to warrant the view that was taken below to the effect that Mr Koo and Mr Wong were incapable of belief.

39.Indeed, notwithstanding his strongly-held views on the subject, in my view Mr Allan does not begin to approach the threshold necessary to be attained in order for an appellate court to interfere on issues of credibility. The short point is that the discrepancies prayed in aid before this court were prayed in aid also before the tribunal, which clearly took them into account in reaching its decision on the charges brought against Mr Ma.

40.In the helpful section within the tribunal's Findings which dealt with the overall view of the main witnesses, the tribunal noted that "the long hours of cross-examination" had given them ample opportunity to observe Mr Koo, who was not highly educated and was not conversant with English, and that in the event the members of the tribunal had found this witness to be credible, notwithstanding discrepancies which had been highlighted and subject to severe and "ferocious" cross-examination" over many hours.

41.Similarly, Mr Wong, the interpreter who had been responsible for bringing Mr Koo to Mr Ma's firm, and who had been telephoned late in the evening of 13 November 1996 to be told that he should attend court the following morning, and had on the following day left everything to counsel, had undergone "relentless cross-examination" by Mr Allan. In the face of this, the tribunal concluded, on the evidence before them, that Mr Wong did not take any active part on the day of the trial, and it was found that when Mr Koo was giving instructions to Mr Woo that Mr Wong was alone outside the conference room drinking lemon tea.

42.The tribunal determined Mr Wong to have been open and frank in his evidence, and saw no reason why he should lie or perjure himself to help Mr Koo proceed against Mr Ma. In fact, this conclusion was sustained notwithstanding that Mr Wong was also regarded as having been less than candid on one matter, which involved payment for his work on a commission basis, a fact he admitted but as to which he subsequently declined to provide further information.

43.In short, the matters of which Mr Allan now complains in this court have been ventilated in extenso below, and for my part I see no reason to interfere with the conclusions as to credibility reached by the tribunal.

44.With regard to the witnesses called by the defence, the views expressed below as to Mr Ma's credibility are less than flattering, the tribunal noting the impression that he was capable of "shifting his ground and manipulating his evidence to suit particular questions", and I have heard nothing to persuade me to impugn the tribunal's conclusion that Mr Ma was not to be accepted as a reliable witness.

45.As for Mr Woo, his status as a barrister was specifically noted as according him no advantage in the credibility stakes. The of the tribunal was that his evidence was "less than frank", and the tribunal evidently took a strong view as to Mr Woo's efforts on the morning of 14 November 1996, and did not believe the suggestion that the Consent Order had been explained to Mr Koo as Mr Woo had claimed.

46.Whilst Mr Allan clearly was perturbed that a member of an honourable profession had been thus disbelieved, a fact which he considered particularly unmeritorious given that the tribunal had preferred the evidence of Mr Koo or Mr Wong, a mere interpreter (and, he suggested, a somewhat shady one at that), in my view no good reason has been established to merit impugning the tribunal's conclusions in this regard.

47.I note, in addition, that Mr Woo was himself subject to disciplinary action by the Bar Council arising out of this incident, the papers regarding which were before the tribunal, and that ultimately he admitted, by way of plea bargain, a token charge that he failed to ensure that Koo clearly understood the effects and implications of the proposed terms of settlement.

48.A background of this nature, therefore, hardly provides fertile ground for Mr Allan's persistent submission that no reasonable tribunal could have believed Koo and Wong at the expense of Mr Ma and Mr Woo, and I reject this submission as firmly as I may.

49.Nor, it seems to me, did Mr Allan appear to appreciate that so objectively disadvantageous was the Consent Order entered on behalf of Mr Koo on the morning of 14 November 1996 that the intrinsic probabilities tend to support the tribunal's conclusion that there was no true comprehension upon Mr Koo's part as to the terms of settlement which were about to be entered on his behalf.

50.Accordingly, I am against Mr Allan on what, for shorthand purposes, I will term the 'credibility issue'.

Conduct on the part of the tribunal

51.Mr Allan's next general theme was that the "outbursts" which had occurred between his client, Mr Ma, and the tribunal, and in particular the lay member, Mr Soo, had been such as to vitiate due process. He did not put it quite in these terms, but that at any rate was the thrust. In this connection Mr Allan said that the "open hostility" demonstrated by Mr Soo had gone beyond the realms of acceptability, notwithstanding his acceptance of the fact that his client indeed had been guilty of "erratic behaviour" during the lengthy proceeding, and that on occasion Mr Ma had "reacted badly" to what was taking place.

52.Mr Allan observed that his client had been fined for contempt during the inquiry, although this had not been the subject of any further action, whether by judicial review or otherwise, nor did he wish personally to criticize Mr Soo, but the fact remained, he said, that the severe and heated exchanges which had taken place served to cast doubt upon the integrity of the process. There was even one occasion, he informed the court from the Bar, when matters almost came to blows during a coffee adjournment.

53.It is quite clear that it is and can never be appropriate, whatever the provocation (and it seems clear that there was a good deal of that in this case) for a tribunal, or any member thereof, to permit himself a loss of temper, and to evince hostility, or any appearance of loss of control. However, whether the occurrence of such an unfortunate incident or incidents is sufficient to vitiate a proceeding on the basis that justice has not been seen to be done remains a matter for assessment of each individual case.

54.Certainly this tribunal was sufficiently concerned to spotlight this issue in its Findings of 16 July 2003 in its observations on the "unruly behaviour" of Mr Ma during the hearing, albeit the tribunal specifically made the point (at page 10 of its Findings) that in reaching their Findings Mr Ma's behaviour was not held against him "in any way whatever".

55.So that in this case the tribunal endeavoured to rise above the regrettable and intemperate exchanges which had occurred, and when looked at in the round I am unconvinced by the present submission that Mr Ma has not had a fair hearing. To the contrary. It seems to me that the tribunal did its best in extremely trying circumstances, and the result of this case, at least in terms of the charges found to be proven and the sentence thereon, patently does not bear out Mr Allan's point if and in so far as his submission suggests (or implies) residual prejudice resulting in erroneous conviction.

56.The stark fact remains, also, that at no stage was any application made for the tribunal to recuse itself on the basis of the heated exchanges and hostility now prayed in aid. In this connection Mr Allan has indicated that he tendered certain advice to his client, but the point is that notwithstanding such advice he was specifically instructed to proceed with the inquiry, as indeed occurred.

57.Accordingly, for my part I do not consider that it should now be open to Mr Ma to invoke an argument as to prejudice on the part of the tribunal absent contemporaneous complaint and action regarding the manner in which the proceedings then were being conducted. I am against Mr Allan on this point also.

Standard of proof

58.I can dispose of this point shortly. Mr Allan complains that in ruling that the applicable standard of proof in this case was the civil standard for the reason that on the face of the seven charges the tribunal could not find any allegation of conduct of a criminal nature, the tribunal had misdirected itself.

59.In taking this approach the tribunal prayed in aid the approach applied by Nazareth VP in A Solicitor v. Law Society of Hong Kong [1996] 1 HKC 256.

60.This course seems to me to be unexceptional. There is considerable jurisprudence on the point. Disciplinary proceedings are essentially civil proceedings and attract a commensurate burden. There was no charge in this case of the nature of, or equivalent to, a criminal offence.

61.As I understood the argument, Mr Allan suggested that the highly critical manner in which counsel for the tribunal characterized Mr Ma's behaviour in relation in particular to the first part of Charge 4 (requesting Mr Koo to sign a Notice to Act in Person without explaining the nature of the document) had the effect of raising the required standard of proof, but in so far as this indeed is the submission I reject it. The benchmark in each case must be the nature of the charge.

62.Mr Allan also submitted that the sentence imposed, in particular on Charge 6, smacked of the tribunal sentencing as if it were a criminal matter, albeit convicting on the basis of a civil burden. I can see no justification for this submission.

63.Accordingly, this line of attack fails also.

Witness not called

64.Mr Allan maintained that the testimony of Mr Hylas Chung, the junior counsel whom Mr Koo had wished to conduct his High Court case, but who had become unavailable by the time that Mr Ma attempted to retain him, was absolutely vital to Mr Ma's case in that it would have served to discredit Mr Koo's evidence - and in this regard, said Mr Allan, the tribunal had been absolutely correct to consider credibility to be the key issue in this case.

65.The complaint here appeared to be that although the decision had been taken not to call Mr Chung as a witness for Mr Ma - as Mr Allan disarmingly admitted, had he called him there was at least a danger of "shooting ourselves in the foot" - that nevertheless Mr Chung's evidence was of such importance that the Law Society itself ought to have called him, or at the least tendered him for cross-examination, but unjustifiably they had declined to do so.

66.Perhaps I have not understood this submission correctly. Whatever these proceedings may or may not be, they are adversarial in nature. Each side calls the witnesses it considers appropriate to further its case, and the tribunal decides upon the evidence before it. I perceive no obligation on the part of the Law Society to tender a witness for cross-examination at the defendant's behest when that defendant himself has made the specific decision not to call that witness.

67.No authority was produced for the proposition advanced by Mr Allan. I reject it.

Procedural defect

68.The complaint is made that, at the conclusion of the evidence, and by the stage at which Mr Ma had become unrepresented, that the tribunal had wrongly ordered (at page 20 of its Findings) that both the Law Society and Mr Ma were to tender written submissions in relation to sentence (and mitigation), and as to costs, and that the parties were to have two weeks from the date of this ruling to submit such document.

69.Mr Allan says that this was unfair. Not only was his client unrepresented, but before preparing such submission on these aspects as he may have wished to place before the tribunal that he should have had the opportunity to see what was being said against him in the Law Society's submissions.

70.In my view there is some substance in this criticism. Mr Ma should have been given some chance to see what was being said before meeting it, although since by this stage there had been some 36 sessions within this disciplinary proceeding and it seems to me that it was unlikely that any element of surprise then would have reared its head.

71.I bear in mind, also, that the response as actually was elicited from Mr Ma indicated a mindset wherein he was inclined not to do anything but to repeat that which already had been extensively said on his behalf in his supplemental closing submission, together with making adverse reference to the wisdom of the tribunal in finding as they had.

72.Looked at in the round, therefore, I cannot see (as I assume Mr Allan intended to suggest, although he did not say so) that there is any basis here either to vitiate the Findings as to guilt made by the tribunal, although I do accept that there should have been a short period of time made available to Mr Ma to see and to respond to that which had been submitted by the Law Society prior to filing his own submission.

The charges

73.I turn now to consider the particular charges upon which Mr Ma was convicted by the tribunal, and the sentence imposed thereon.

Charge One

74.The first charge, which was found to be proven, was that Mr Ma breached the proper standard of professional conduct in that, contrary to his duty pursuant to principle 4.02 of the Hong Kong Solicitor's Guide to Professional Conduct, 1st Edition, he failed to provide his client with a written record of an agreement signed by him and stating what the fee was, what it covered and whether it included disbursements.

75.In this instance the particulars of the charge alleged that the fee agreed with Mr Koo in June or July 1996 was HK$40,000 as the fee for conducting the defence in HCA No.7035 of 1993, inclusive of counsel's fees, without confirming this in writing.

76.For the cogent reasons given in their Findings, the tribunal specifically accepted, and so found, that there had been an agreed fee of HK$40,000 in this case, and this finding in itself has not been challenged save and except as it falls within the broad credibility submissions made by Mr Allan. I have earlier rejected this submission, and in particular his objection that it was Mr Koo who was believed at the expense of Mr Ma.

77.Mr Allan further objected to the sentence imposed for this offence, submitting that a censure and fine of HK$10,000 was unnecessarily harsh, and suggesting that the appropriate figure should have been HK$5,000.

78.No authority was advanced for this argument, and I was left with the distinct impression that in this regard (and with regard to Charge 2 also) that for the purpose of argument Mr Allan had simply adopted a figure at 50% of the monetary sum imposed, or was attempting, perhaps, to latch on to the submission made by Richards Butler dated 30 July 2003 following the Findings. It is questionable in any event whether a suggestion as to the precise penalty to be imposed should be made by the prosecuting authority. Whereas it might be expected that the prosecuting authority could bring forward details of penalties imposed by other tribunals in similar circumstances in order to give some assistance to a tribunal, it would be inappropriate for the prosecuting authority to give its views as to the exact penalty to be imposed.

79.Unless there is a clear error of principle, or some other manifest error, an appellate court is generally reluctant to interfere with a sentence passed by the disciplinary tribunal appointed by the governing body of the particular profession. In this case, having rejected the submission as to credibility, I can discern no basis whatever to interfere either with the finding as to guilt or as to the sentence imposed.

Charge Two

80.This charge, also found to be proven, asserted that Mr Ma breached the proper standard of professional conduct in that, contrary to principle 4.09 of the Professional Conduct Guide, he failed to deliver a bill of costs to his client within a reasonable time of concluding the matter. The particulars of the charge state that Mr Ma failed to submit a bill to Mr Koo in respect of the sum of HK$40,000 which Mr Ma's firm charged for conducting Mr Koo's defence in the High Court proceedings.

81.Having accepted, on the evidence before them, the assertion by Mr Koo that there had been an agreed fee of HK$40,000, notwithstanding that this had been disputed by Mr Ma, the tribunal did not accept "for one moment" the contention that the case could not have been considered to be concluded, and imposed a like sentence as that on Charge One, namely a censure and a fine of HK$10,000.00.

82.In addition to his general theme as to the lack of credibility of Mr Koo, and the assertion that he should not have been believed, the main thrust of Mr Allan's complaint in this regard was that the matter in question should not have been considered to have been concluded, and he again complained that the sentence of a censure and a fine of HK$10,000 was too harsh, once more suggesting a figure of HK$5,000 as appropriate for this offence.

83.I am unsympathetic to either submission. It seems to me that the fine, which is not large, cannot be considered inappropriate. As to the submission that from Mr Ma's perspective Mr Koo's litigation should not have been considered concluded, I am afraid that this contention strikes me as risible. The hard fact is that Mr Koo removed the papers from Mr Ma's firm, for the purpose of instructing another firm of solicitors, in December 1996, at which time Mr Ma was no longer on the record as acting for Mr Koo. The tribunal correctly took the view that it was either this date which was appropriate, or at the latest March 2001 when monies were transferred from the firm's client account to the office account. This reasoning cannot be faulted.

84.I fail to understand why an appeal was launched in respect of conviction and sentence on this charge.

Charge Four

85.The fourth charge was separated into two parts, and it was only the first part of this charge which attracted a finding of guilt by the tribunal.

86.This charge asserted that Mr Ma, contrary to his duty pursuant to principle 5.17 of the Guide to keep his client properly informed, failed to explain to Mr Koo the true nature of the Notice to Act in Person which in or about September 1996 he had requested Koo to sign, instead informing Mr Koo that the document represented Koo's agreement to appoint Mr Ma's firm to act on his behalf in the High Court proceedings.

87.In this regard the tribunal accepted Koo's evidence, and found as a fact that Mr Ma had told him that the document was a form of authorization, the tribunal crisply noting that "we do not look kindly upon a solicitor who asks his client to sign an undated Notice to Act in Person".

88.In my view the tribunal was entirely justified in reaching the conclusion which it did, the sentence being imposed on this charge being a censure and a fine of HK$50,000.

89.In addition to his general critique as to credibility, Mr Allan submitted that the sentence with regard to this charge was far too harsh, instead submitting that a fine of HK$10,000 would have been appropriate. It was also this charge, and the critical manner in which prosecuting counsel, Miss Campbell-Moffat, had characterized Mr Ma's behaviour in this regard, which provided Mr Allan's starting point for his submission that the tribunal applied the incorrect standard of proof.

90.I have earlier addressed, and rejected, the submission as to the standard of proof. For my part I consider that the comments of the tribunal and of prosecuting counsel were eminently justified in the circumstances, nor do I consider the punishment imposed on this charge to have been wholly disproportionate to the gravity of the conduct involved. I reject Mr Allan's argument.

Charge Six

91.This was the fourth charge, out of the seven preferred, upon which the tribunal found guilt to have been established, and I suspect that it was the finding on this charge, and the sentence imposed thereon, which has had a considerable bearing on the decision to prosecute this appeal.

92.This was the allegation that, contrary to his duty pursuant to principle 10.21 of the Professional Conduct Guide, Mr Ma failed to arrange for the attendance of a responsible representative at the hearing of the High Court proceedings on 14 November 1996, instead instructing a clerk, Mr William Wong Yin Tak, to attend, whom, the particulars allege, "was not able to take proper instructions from or to properly advise Koo, or to assist Counsel with regard to settlement negotiations conducted on 14th November 1996".

93.In light of that which occurred, and the most unfavourable settlement which was entered into on behalf of Mr Koo before Deputy Judge Wilson, this was undoubtedly the gravamen of the case against Mr Ma.

94.The tribunal noted that in considering this particular charge, they had relied heavily on the evidence of Mr Wong himself, and that having observed him in the witness box, it had become "painfully obvious", in the tribunal's view, that he had little knowledge of the law and had viewed his job as simply accompanying client to court. The tribunal found, also, that he "was not whole heartedly involved in the process of giving instructions to counsel", and that some time at least was spent in drinking lemon tea outside the conference room. It was further found that the terms of settlement had been arrived at without any participation of Mr Wong, the tribunal concluding that "we do not see how Mr Wong can qualify for the term 'responsible representative' by any stretch of the imagination."

95.In light of the findings of the tribunal as to credibility, findings which in my view should not be disturbed, notwithstanding Mr Allan's indignation that the word of an interpreter should have been preferred, inter alia, to that of a barrister, Mr Allan has been unable to persuade me that the conviction on this charge should be set aside.

96.As to sentence on this charge, the tribunal ordered that Mr Ma be fined HK$100,000, and that he should be disallowed from practising on his own account or in partnership for a period of 6 months, albeit that since Mr Ma appeared to have stopped his legal practice, such 6 month period would begin to run only when or if Mr Ma resumed his practice.

97.Mr Allan submitted that this was a very severe sentence, that it was no small matter to prevent a man from exercising his profession, and that a censure and a fine of HK$20,000 would have been "more than sufficient".

98.I disagree. Mr Ma has not been prevented from practising at all for the period in question, and it seems to me that this is very much a case of the punishment being made to fit the particular wrong, given that Mr Ma, a sole practitioner at the time, had not attended with Mr Koo precisely because he was required to be in court elsewhere at the time. Nor do I consider the fine to be excessive in the circumstances.

The appeal on conviction and sentence

99.In my view upon the issues raised in the substantive appeal, Mr Ma fails, and fails signally. The events surrounding Mr Koo's High Court case proved very unfortunate, to say the least, and it is not easy to discern any cogent justification for prosecution of this appeal against conviction and sentence upon the specific charges the subject of these disciplinary proceedings.

100.Looked at in the round I cannot see that it can be said that in the circumstances of these proceedings that Mr Ma did not receive a fair hearing, or that the tribunal has erred in its Findings or in the sentences imposed upon the charges upon which guilt was found to have been established. To the contrary. It seems to me that the tribunal went out of its way, often in circumstances of considerable provocation, to discharge its function, notwithstanding (as I have earlier recorded) the unfortunate exchanges which took place, which in my judgment have not undermined the integrity of the process.

101.In my view this appeal is short on substance and replete with a lack of perspective. I have no difficulty whatever in rejecting the arguments raised on the substantive issues involving conviction and sentence.

102.This conclusion, however, does not represent the end of the story, and I turn now to the one issue in this appeal which has engendered concern.

The issue of costs

103.At the conclusion of the Orders made as to sentence, the tribunal observed that in normal circumstances costs would be awarded in proportion to the number of charges convicted, but that in the present case the length of the hearing was caused primarily by the way in which the defence was conducted, by unnecessary repetitive cross-examination by defence counsel and frequent applications irrelevant to the charges, and by Mr Ma's "frequent outbursts" during the hearing.

104.As earlier noted, the tribunal ordered that Mr Ma, as respondent to the disciplinary proceedings, should bear 80% of all the costs of and incidental to the proceedings, including all prior inquiries and investigations in relation to the matters before the tribunal, including costs incurred in respect of the charges as were dismissed, and that such costs should be taxed on "a full indemnity basis".

105.With regard to this order, Mr Allan made a number of complaints. He submitted that costs should follow the event, so that it followed that his client should be awarded his costs with respect to the 50% of the charges upon which he succeeded. He also argued that his client had no idea of the final costs figure, so that he had had no opportunity to examine the items of costs which were contained within any such final figure, and to make representations thereon. Accordingly, his client should not have been ordered to bear the costs on an indemnity basis.

106.He further noted that the constitutionality of the statutory provision providing for an award of indemnity costs, namely section 10(2)(e) of the Legal Practitioners Ordinance, Cap.159, is subject to another appeal currently pending before the Court of Appeal, wherein the court has appointed an amicus, and he asked that the issue of costs in this case be 'reserved' pending the resolution of this other case. Mr Allan made no attempt to argue this discrete point, save to state the fact of a pending appeal, and in my view any decision on the costs element in this case should not be deferred as he requested; if and in so far as section 10(2)(e) is struck down or otherwise affected by subsequent decision of another appellate court in other proceedings, such does not preclude revisitation of the issue in this case, if appropriate.

107.The question of costs was the only matter in this appeal upon which Mr Burns, for the Law Society, was asked to address the court. He strongly defended the costs order made by the tribunal as one which was eminently appropriate in the particular circumstances, submitting that it was not open to criticism, and noted that his understanding of the position was that an order for costs on an indemnity basis was one which was "invariably" made in such disciplinary proceedings.

108.In response to a request from the Vice President, Mr Burns took instructions on the overall costs figure, and informed the court that such costs, comprising the fees of the solicitor for the Law Society, counsel's fees and the fees of the tribunal, amounted to a sum of at or around HK$4 million.

109.Mr Burns relied on the observations of Rogers JA in Re A Solicitor, [1999] 4 HKC 455 at 464, wherein the judge noted the importance of adhering to the principle that the court is very reluctant to interfere with the order of a disciplinary tribunal, and especially so when the matter of appeal relates to sentence or penalty, given that the disciplinary tribunal is "uniquely qualified to evaluate what is the proper sentence". The approach as to costs, submitted Mr Burns, should evince the like response as that adopted by the court towards sentence or penalty. The perceived harshness of a costs order was not a ground justifying interference by this court, he said.

110.The overall conclusion that Mr Ma should bear 80% of the costs was a conclusion reached by the tribunal with full knowledge of all the circumstances of this inquiry, including the parameters of the differing amounts of time taken on the different arguments, and whilst at first blush it does appear severe, given that Mr Ma was aquitted upon 50% if the charges laid against him, in my judgment this decision cannot be castigated as erroneous in principle such that it should be varied by this court. Accordingly on this leg of the argument in my judgment Mr Allan does not succeed.

111.The better point, however, and one which in my view does possess intrinsic validity, is that absent being presented with a detailed breakdown of the costs - or even, as I understand the position, such indication as has been given to this court as to an approximate figure for the final costs bill - it is difficult to see how the tribunal is, or can be, placed in the position of being able properly to make an informed order as to costs.

112.Section 10(2)(e) of Cap.159 empowers a Solicitors Disciplinary Tribunal, upon completion of its inquiry and investigation," to make such order as it thinks fit", and any such order may, in particular, include provision for :

"(e)

payment by any party of the costs of and incidental to the proceedings of the Tribunal and the costs of any prior inquiry or investigation in relation to the matters before the Tribunal, to be taxed by a Master of the High Court on a full indemnity basis, or payment of an amount that the Tribunal considers is a reasonable contribution towards those costs;" (emphasis added)

113.The overwhelming probability in this instance is that the tribunal simply applied that which is widely regarded as the 'usual order' without considering the matter further; in the circumstances, perhaps, it is easy to appreciate why this approach was adopted. However, in order properly to exercise its statutory powers as to costs, and in particular whether to apply the indemnity basis (which in my view encompasses the power to award costs on the more restricted party and party basis), or whether indeed there should be an assessment of an amount considered to be "a reasonable contribution" towards those costs, it seems to me that the tribunal must be placed in the position and given information sufficient to enable it properly to exercise its statutory discretion. This clearly has not occurred.

114.It strikes me also, in the context of disciplinary proceedings at least, that any costs order should strive for at least some element of proportionality. In the present case the charges for which guilt has been established has resulted in fines totalling HK$170,000, yet these proceedings apparently have engendered a cumulative costs bill of some HK$4 million, and possibly more if the full indemnity basis is to be applied on taxation.

115.Whilst I appreciate that these particular proceedings were quite unduly extended, and whilst it is evident, also, that in substantial part Mr Ma has been responsible for the length of time taken over and above what should have been no more than a two, or possibly three day hearing into a relatively straightforward set of charges, the stark fact remains that in this case the punishment levied is dwarfed by the costs, yet such costs effectively have been awarded 'in blank' absent critical scrutiny by the tribunal, and certainly without consideration of the concept of a "reasonable contribution" towards those costs.

116.I bear in mind that this may well constitute an extreme case, but for my own part I am far from satisfied that it is fair or just that the subject of professional disciplinary proceedings, even as an unruly a subject as Mr Ma, should without more be visited with a bill of costs in a sum totally disproportionate to the level of the punishment imposed. In truth, in this instance the costs tail appears to be wagging the disciplinary dog, and no doubt the argument advanced on behalf of the Law Society in this appeal as to the inviolability of the costs order as presently made by the tribunal would have been repeated even if, to stretch the absurdity further, the costs bill in this case had amounted to, say, $8 or even $10 million.

117.The potential for unfairness within the present order for costs is compounded by the revelation, at the end of this appeal, that expensive commercial premises were hired for the holding of these proceedings, including suites in Pacific Place, Wheelock House, The Centre and, on two occasions, even the Mandarin Hotel.

118.It is fair to say that in days past disciplinary proceedings such as these generally were held in solicitors' boardrooms or some appropriate venue not involving payment of a commercial rate. In the same way, professional participants in such proceedings, whether solicitors or counsel, were inclined not to regard these sort of proceedings as profit centres. A like approach does not appear to be prevalent today, and it is for this reason, in my view, that the costs burden potentially to be imposed upon the subject of disciplinary proceedings should be subject to critical scrutiny, in particular as to the basis of the taxation of such costs. For my own part, for example, I do not consider that any subject of disciplinary proceedings, who has no alternative but to attend such proceedings as and when ordered to do so, should be liable to meet the cost of hiring expensive commercial venues. Why, one wonders, were the Law Society's own premises not utilized for this purpose, or some other available venue not necessitating payment of a commercial market rate?

119.It is for these reasons that I have taken the view, not without some reluctance, that the costs order as made by the tribunal should be quashed, and that the issue of costs be referred back to the tribunal for reconsideration in light of a detailed bill of costs which it is proposed to visit upon Mr Ma upon completion of taxation. Save as aforesaid, in my judgment this appeal should be dismissed.

120.I would further make an order nisi that the appellant do pay 85% of the costs of and occasioned by this appeal.

Hon Rogers VP :

121.I have had the advantage of reading in draft the judgment of Stone J. I agree with his conclusions and the reasons therefor and only wish to add a few words in relation to the matter of costs, in view of the fact that the issue of costs is to be referred back to the Solicitors Disciplinary Tribunal (" the Tribunal").

122.As has been pointed out by Stone J, section 10(2)(e) of Cap.159 gives a discretion to the Tribunal as to whether to order taxed costs or a reasonable contribution towards those costs. Prior to the amendment to Cap.159 in 1992, there was no power in the Tribunal to order a taxation. Furthermore, as was pointed out by Kirby P in Walton v. McBride [1995] 36 NSWLR 440, the power to order costs on an indemnity basis was not an inherent power exercisable by the common law courts. It was a power which the courts of the Royal Prerogative considered they could exercise. As Kirby P said at page 447D :

"More significant than the assertion of the Court of Chancery's power to award costs was the longstanding acknowledgment of the common law courts that their only power in respect of costs extended to costs as between party and party. Whether by the 'fusion' of common law and equitable jurisdiction, by the passage of special enabling legislation or a developing view of the inherent jurisdiction, it is important to see the cost powers of superior courts of record as distinguishable from the powers of inferior courts and tribunals. The former have traditionally had large (and often inherent) powers. The latter must always source their power to the statute which establishes them."

123.It is for that reason that a tribunal will not have the power to order indemnity costs unless it is specifically given that power. Before the 1992 amendment the Tribunal had the power to order costs, albeit without a High Court (or in those days Supreme Court) taxation. Whoever assessed those costs would have had to do so on a party and party basis. The change made in 1992 enabled the Tribunal to order indemnity costs, but I do not read the change as indicating an exclusionary provision that the costs can only be taxed on an indemnity basis. I read the provision as permitting the Tribunal to order costs on the higher level if the circumstances so merit. I, therefore, entirely agree with Stone J's observation made in parenthesis that the power to order costs on an indemnity basis encompasses the power to award costs on the more restricted party and party basis.

124.In so saying I have not lost sight of the decision of this court in Au Wing Lun, William v. The Solicitors Disciplinary Tribunal [2002] 1064 HKCU 1. In that case the Tribunal had made what it regarded as the "usual order", namely that costs were taxed on an indemnity basis. Furthermore, as recorded in the judgment of Yuen JA at paragraph 78, the solicitor involved in that case had instructed his counsel not to argue against the basis of costs. The meaning and effect of Section 10(2)(e) was not therefore considered in the course of the appeal. In those circumstances Yuen JA in her dissenting judgment proceeded on the basis that the appropriate order was an order for indemnity costs.

125.It is, of course, well established that an order for costs is a matter of discretion with which an appellate tribunal would only interfere if the court or tribunal had erred in principle. In my view, if the order for costs by the Tribunal had been made on the basis that the Ordinance only allowed an order for taxation on an indemnity basis and not on a party and party basis that would be grounds for interfering with the Tribunal's decision. I would add that an appellate court's reluctance to interfere with an order for costs made by the Tribunal would not be the equivalent of its approach to the question of penalty which is based on the principles so clearly enunciated by Lord Hailsham in Libman v. General Medical Council [1972] AC 217.

126.Indemnity costs are almost always used as a mark of disapproval by a court for the conduct of one of the parties. As was said by Kirby P. in Walton v. McBride :

"Where indemnity costs are available by law, it is usual to confine their provision to cases where the body so empowered to order costs ultimately comes to the conclusion that it must mark its disapproval for wrongful conduct by departing from the ordinary principle of costs and relieving the 'innocent' party of the burden of costs inflicted by the wrongful action of the losing party: see Colgate Palmolive Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225 at 227 citing Fountain Selected Meats (Sales) Pty Ltd (at 400f). Indemnity costs may be ordered where a hearing is prolonged by deliberately false allegations of fact. Mere prolongation without more will not ordinarily justify an award of indemnity costs: cf Wentworth v Rogers [No 5] (1986) 6 NSWLR 534 at 542; Degman Pty Ltd (In Liq) v Wright[ No 2] [1983] 2 NSWLR 354."

127.The Tribunal would, of course, be entitled to take a view as to the costs that in its judgment had been deliberately wasted. In doing so it would have to weigh the effect of any order it made both in terms of proportion in relation to the time involved in relation to the issues and the penalty element that was appropriate in relation to time that had been culpably wasted. That would be a matter which the Tribunal would be in the best position to judge. Nevertheless, in my view there are serious causes for concern about the order for costs made by the Tribunal.

128.In the first place the Tribunal was not even given a "ball park" figure of the likely bill of costs. It would seem difficult to imagine how it could exercise its discretion as to the choice between indemnity costs or a reasonable contribution without knowing the likely effect of its order.

129.In the second place the element of the costs attributable to the hire of the venues is likely to have been very substantial in itself. Mr Ma had no choice as to the selection of the venue nor was he consulted as to whether he agreed that expensive locations were appropriate. This is a matter which the Tribunal should have considered before ordering him to provide an indemnity for such luxury.

Hon Le Pichon JA :

130.I agree with the judgments of Stone J and Rogers VP.

Representation:

Mr William Allan & Miss Lorinda Lau, instructed by Messrs Yeung & Chan, for the Appellant

Mr Ashley Burns, instructed by Messrs Richards Butler, for the Respondent