A Solicitor v. The Law Society of Hong Kong

CACV000279A/1998

CACV 279/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 279 OF 1998

(ON APPEAL FROM THE SOLICITORS DISCIPLINARY TRIBUNAL)

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Coram: Hon Godfrey VP, Rogers JA and Ribeiro JA in Court

Date of Hearing: 8 June 2000

Date of Judgment: 8 June 2000

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J U D G M E N T

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Hon Godfrey VP (giving the judgment of the court) :

Introduction

1. This is an application for leave to appeal to the Court of Final Appeal from a decision of this court in a case involving disciplinary proceedings against a solicitor. The application for leave to appeal has turned on three points, most ably developed by Mr Clive Grossman SC, on behalf of the solicitor.

The first point

2. The first point raises the question whether section 13(1) of the Legal Practitioners Ordinance, Cap. 159, is a barrier to an appeal from this court to the Court of Final Appeal.

3. Section 13(1) provides, so far as is material, that :-

"...an appeal against any order made by a Solicitors Disciplinary Tribunal shall lie to the Court of Appeal ... and the decision of the Court of Appeal on any such appeal shall be final."

4. This application for leave to appeal to the Court of Final Appeal does seem, on the face of it, to fall foul of the provision of section 13(1). We accept that the point raised may fairly be described as an important point. However, we are of the opinion that the point would be best left to be dealt with in a case in which there is a substantive issue which this court considers fit for consideration by the Court of Final Appeal. We do not think this is that case. The Court of Final Appeal should be left to decide for itself whether it wishes to consider the point in the present case. We are not therefore ourselves disposed to give leave to appeal to the Court of Final Appeal in order to enable it to consider this point.

The second point

5. The second point concerns some observations, made by a member of this court in the course of giving judgment in the solicitor's appeal, upon the propriety of allowing solicitors to act for both parties in certain conveyancing matters. Those observations reflected the background against which the solicitor's appeal fell to be considered, but gave rise to nothing which was the subject of any decision of this court. Although the subject of those observations may be said to be of general or public importance, it would not, in these circumstances, be appropriate for us to give leave to the solicitor to appeal to the Court of Final Appeal simply for a further consideration by the court of that subject.

6. We are not therefore disposed to give leave to appeal to the Court of Final Appeal in connection with this point, either.

The third point

7. The third point is whether the Council of the Law Society, in exercising its power to prescribe the form of statutory declaration under rule 5C(3)(a) of the Solicitors' Practice Rules, exceeded its power by limiting the scope of the legislation under which it was acting. As to this point, this court answered the question in the negative. That decision was, of course, limited to the facts of this particular case. What is now sought to be argued before the Court of Final Appeal is not that narrow point but a general point; whether any delegated power can be exercised not only so as to implement but also so as to limit the scope of the power itself.

8. We are unable to follow this. The general point can only be answered in the negative. But, in this case, it simply does not arise anyway. It would not be appropriate for this court to refer this general point for the consideration of the Court of Final Appeal.

Result

9. For these reasons, we are of the opinion that there is nothing here sufficient to warrant our granting the leave sought. We must accordingly refuse this application, with costs.

Representation:

Mr Clive Grossman, SC and Mr Maurice Ng, instructed by Messrs Clarke & Kong (assigned by DLA) for the Appellant

Mr Anthony Ismail, instructed by Messrs P.C. Woo & Co., for the Respondent