A Solicitor v. The Law Society of Hong Kong
Read the full judgment text of CACV 302/2002 on BabelCite. This Court of Appeal judgment was delivered on 18 February 2004.
1. This is an appeal by a solicitor against the Ruling of the Solicitors Disciplinary Tribunal ("The Tribunal") made on 26 March 2002 and the Order that it made on 27 June 2002. The Ruling made findings that the appellant was guilty of a number of complaints launched by the Law Society of Hong Kong against him. By its Order of 27 June 2002, the Tribunal imposed penalties and censures on the appellant for the complaints that it found had been proven and ordered that the costs of the proceedings b
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CACV000302/2002 CACV 302/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 302 OF 2002 (ON APPEAL FROM THE FINDINGS OF THE SOLICITORS DISCIPLINARY TRIBUNAL DATED THE 26TH DAY OF MARCH 2002 AND ORDER AND FINDINGS OF THE SOLICITORS DISCIPLINARY TRIBUNAL DATED THE 27TH DAY OF JUNE 2002) ____________________________
____________________________ Coram: Hon Woo VP, Cheung JA and Burrell J Dates of Hearing: 12 December 2002, 13 and 14 January 2004 Date of Judgment: 18 February 2004 _______________ J U D G M E N T _______________ Hon Woo VP: Introduction 1.This is an appeal by a solicitor against the Ruling of the Solicitors Disciplinary Tribunal ("The Tribunal") made on 26 March 2002 and the Order that it made on 27 June 2002. The Ruling made findings that the appellant was guilty of a number of complaints launched by the Law Society of Hong Kong against him. By its Order of 27 June 2002, the Tribunal imposed penalties and censures on the appellant for the complaints that it found had been proven and ordered that the costs of the proceedings be borne by the appellant on a full indemnity basis. Title of appeal 2.In this appeal, the Tribunal was named as the 1st Respondent whereas the Law Society the 2nd Respondent. Section 13(2) of the Legal Practitioners Ordinance, Cap 159 ("LPO") provides that, in any appeal against any order made by a Solicitors Disciplinary Tribunal, the Law Society shall be the respondent. At the hearing, with the consent of the parties, we ordered the name of the Tribunal to be struck out from being a respondent in this appeal. Facts of the complaints found proven 3.The complaints were directed at the conduct of the appellant when he and his firm of which he was the sole proprietor were handling judicial review proceedings, HCAL 47/97, for Mr Akram. Mr Akram's application was to seek the quashing of a deportation order dated 22 December 1995 made against him by the Secretary for Security. Ms Carol Fung of counsel was retained by the appellant's firm for conducting the proceedings for Mr Akram. On 5 May 1998, leave was granted by Yeung J (as he then was) to Mr Akram to apply for judicial review, and it was ordered that a Notice of Motion for judicial review was to be filed within 14 days. However, there was delay in the filing of the Notice of Motion and as a result Mr Akram was arrested and put into custody at Victoria Prison. The complaints related to how the appellant handled the necessary steps of the case for Mr Akram. 4.The particulars and factual basis of the complaints made against the appellant that were found proven are as follows:
5.Complaint A was for breach of Rules 2(c), (e) and (f) of the Solicitors' Practice Rules, which provide as follows:
6.Complaint B was for breach of Principle 6.01 of the Hong Kong Solicitors' Guide to Professional Conduct ("the Guide"), which reads as follows:
7.Complaint C was for breach of Principles 13.08 and 13.09 of the Guide, which are as follows:
8.The Tribunal found that the facts under para 4(1) above were not sufficient to establish that the appellant was in breach of Rule 2(f) of the Solicitors' Practice Rules, and it also dismissed a complaint for the appellant's failure to advise Mr Akram to apply for legal aid, which was complaint B(vi). Penalties and costs 9.Apart from censuring the applicant for each of the proven complaints the Tribunal ordered him to pay penalties totalling $175,000 to the general revenue, comprising $100,000 as penalty for complaints A(i) and B(i), $25,000 for complaints A(ii) and B(ii) and $50,000 for complaints B(v) and C(i). Apart from a censure, no penalty was imposed on complaints A(iii) and B(iii), and A(iv), B(iv) and C(ii). The Tribunal also ordered the appellant to pay the costs of the proceedings on a full indemnity basis. Grounds of appeal 10.On behalf of the appellant, a number of grounds of appeal have been raised. Mr Allan addressed us on all the grounds save those in various aspects of costs on which Mr Johannes Chan SC focused. Reversal of burden of proof - ground 1 11.Ground 1 contends that the Tribunal reversed the burden of proof onto the appellant. The statements made by the Tribunal that are relied on by Mr Allan as a plank to launch this attack are as follows:
12.Mr Allan referred us to Fu Kin Chi v The Secretary for Justice (1998) 1 HKC 411 and submitted that it is the appellant's right to elect not to give evidence. At p 419D of the report, Li CJ stated:
Mr Allan argued that the Tribunal ought to have held that no adverse inference could be drawn from the fact of the appellant electing not to give evidence; the appellant was entitled to contest the case without giving evidence as it was his fundamental right to test the evidence of the main witness Mr Akram. Doubtless, the appellant has a right to remain silent and not to incriminate himself, and he, as anyone else, is entitled to test the evidence of the case against him. The statement in (a) (under para 11 above) clearly demonstrates that the Tribunal well recognised the right not to give evidence. What the Tribunal expressed was that they could have been helped in making their decision if the appellant had given evidence. The statement in (b) does not have the effect, as argued by Mr Allan, of reversing the burden of proof or any semblance of it. Nor does it affect the appellant's right to test the evidence of the case against him. It was made when the Tribunal was dealing with costs. The Tribunal merely stated that had there been admission of the complaints referred to in statement (b), then costs could have been saved. It was of the view that there was no real defence to those complaints as a basis for making the order for costs as it did. It cannot fairly be said that the Tribunal had drawn adverse inference against the appellant from his silence in making the findings of fact in its Ruling of 26 March 2002. 13.In this regard, it is instructive to the observations of Lord Hoffmann NPJ in Li Defan & Anr v HKSAR [2002] 1 HKLRD 527, where the defendant had paid a large sum of money to a bank officer and had given a "mixed statement" to the ICAC. The prosecution had no direct evidence as to why the money had been paid. The defendant did not give evidence at the trial. At p 540, Lord Hoffmann said:
14.In our view, the rule applies similarly, if not with more force, to a case of disciplinary inquiry as in a criminal case. The appellant offered explanations by way of his letter dated 2 June 1999 addressed to the Law Society and his affirmation dated 20 December 1999, but he chose not to give evidence so as to avoid being cross-examined. Immediately following the last sentence of statement (a) cited above, the Tribunal continued:
The evidence against the appellant was already very strong and his electing not to testify would, if necessary, in the circumstances of this case entitle the Tribunal to draw stronger inferences from that evidence against him. Even that would not be a reversal of the burden of proof as contended by Mr Allan. 15.Ground 1 has no merit. Challenge on facts - grounds 2, 3, 6 and 8 16.Grounds 2, 3, 6 and 8 all relate to facts, although some of them are worded as the Tribunal had erred in law. Before dealing with each of these grounds specifically, it is important to bear in mind that the functions and powers of an appellate court on findings of fact made by a tribunal or a trial court are very limited. 17.The law regarding appeals against decisions of questions of fact is well settled. The principles can be found in para 59/1/48 of Hong Kong Civil Procedure, 2004, Vol 1 and a large number of English and Hong Kong cases, including The Julia (1860) 14 Moo. PC 210 at 235 per Lord Kingsdown, SS Hontestroom v SS Sangaporack [1927] AC 37 at 47 per Lord Sumner, and Benmax v Austin Motor Co Ltd [1995] AC 370 at 375 per Lord Reid; Lobo v Kripalani [1988] 2 HKLRD 325 at 327J per Godfrey JA, Carrian Holdings Limited (In liquidation) v Crestflame Estates Limited & Ors, CACV 205/1993 (30 Aug 1994, unreported) at pp 16-17 per Power VP, Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 657, at 663D, per Godfrey JA, Shiek Shin Jiu v Mak Shiu Kei, Johnny and Anr, CACV 174/1997 (13 April 1999, unreported) at p 4K-P per Godfrey JA, and Chung Fai Engineering Co v Maxwell Engineering Co Ltd, CACV 981/2000 (15 June 2001, unreported) at para 32 per Mayo VP. 18.The principles and the rationale were recently reiterated in Ting Kwok Keung v Tam Dick Yuen & Ors [2002] 1 HKC 601, where Bokhary PJ said at 613E:
19.The principles laid down in the above authorities can be summarised as follows:
20.Ground 2 contends that the Tribunal was wrong in law in holding that complaints A(ii) and B(ii) had been established. Mr Allan referred us to the letter dated 29 June 1998 from the appellant's solicitors' firm to the Department of Justice stating that
Mr Allan submitted that the letter was the only evidence in regard to the complaints and contended that the Tribunal erred in finding that the appellant "has not given any proper excuse for his attempt to withdraw". He referred to the contents of the appellant's letter dated 2 June 1999 to the Law Society and his affirmation made on 20 December 1999, which were the two documents that had been admitted as authentic before the Tribunal containing the appellant's own version of the facts and explanations in respect of all the subjects of the complaints. Mr Allan complained that the Tribunal did not consider properly or at all the appellant's inability to obtain proper instructions from Mr Akram contained in those two documents. The crux of the appellant's case, as shown in the said letter and affirmation, was that his office had tried to get Mr Akram to come to the office so that clear instructions could be taken from him for proceeding with the judicial review application the firm was handling for him. However, Mr Akram did not come up to the office until 2 July 1998 when he merely left $10,000 and told the office to proceed with the application. 21.The Tribunal had considered the appellant's case, as shown in the appellant's letter and affirmation, which can be encapsulated in the following:
The Tribunal rejected the explanation since it did not amount to any proper excuse for the appellant's attempt to withdraw from acting for Mr Akram. In its Ruling, the Tribunal said:
22.The basis for the Tribunal saying that it was unnecessary for Mr Akram to give any instructions to the appellant before the Notice of Motion was proceeded with was that it had accepted the evidence of Ms Carol Fung of counsel (retained by the appellant's firm to act for Mr Akram) who testified that the filing of the Notice of Motion required no input from Mr Akram. 23.I consider that the Tribunal's finding in this regard was well supported by the evidence before it. It cannot be said that the Tribunal had not considered properly the defence or explanations given by the appellant in making the finding. Indeed, if Mr Akram had been told, apparently on the telephone, to come up to the appellant's office, he could have simply been asked if he wished the firm to proceed with his application by filing a Notice of Motion. Why should he have been invited to come to the office if he was simply to be asked if he wished to proceed? No explanation was given in the letter and the affirmation and the appellant did not give evidence. Mr Allan now raised the point that clear instructions would have to be taken from a client and he submitted that it would have been necessary for the client to be warned of the implication as to costs (which might entail upon the judicial review being unsuccessful) when he was required to give instructions whether to file the Notice of Motion. It can be seen that the instructions to proceed that was alleged to have been required were simple and brief, and the so-called advice on costs was similarly so, which could all have been dealt with on the telephone. The so-called advice on costs was never mentioned to the Tribunal during the whole course of the inquiry, and it was, in my view, just an afterthought. Moreover, while Mr Akram could be contacted by Mr Chan of the appellant's firm, there was no evidence that notice was given to Mr Akram that the firm would withdraw from acting for him if he continued to fail to come to the office. It is obvious that the Tribunal had rejected the appellant's explanations, and I consider, properly so. 24.Ground 3 contends that the Tribunal was inconsistent in finding that complaints A(iii) and B(iii) had been proved because of the following findings of fact that it made:
25.The Affirmation of Mr Akram affirmed on 24 August 1998 stated on the face of the jurat:
But the documentary evidence and admission of the appellant showed that he never visited Victoria Prison that day and that he had signed the Affirmation in his office and it was taken to the prison by his clerk, Mr Chiu. 26.It is argued that the Tribunal ought to have held that the appellant had done his best under difficult circumstances to act in the best interests of Mr Akram. The explanations given by the appellant were that Mr Akram was detained in Victoria Prison and the Affirmation had been prepared for Mr Akram to affirm. However, the appellant was engaged in handling a criminal case and was too busy to attend the prison to have Mr Akram affirm it before him. He therefore signed the administering portion of the jurat first for his clerk Mr Chiu to visit Mr Akram and get him affirm the Affirmation. He did this because the Affirmation was urgently required for extension of time for the judicial review proceedings to proceed. 27.It was obvious that the Tribunal accepted that the appellant might have been operating under the wish of expediting the step to be taken by Mr Akram. This is reflected by the Tribunal imposing a censure for this offence without any penalty. But the fact, which was never denied by the appellant, remains that the Affirmation was improperly affirmed and it contained a false statement that the appellant had administered the Affirmation at the prison. Ground 3 fails. 28.Ground 6 complains that the Tribunal's finding that the appellant did not take proper steps to ensure that Mr Akram understood the contents of the Affirmation was inconsistent with its findings that Mr Akram was not a "particularly satisfactory witness", showing "a poor memory and was vague about events". This matter, however, hinges on the extent of Mr Akram's knowledge of the Punti dialect. Mr Allan contended that the Tribunal should have accepted the evidence of Mr Chiu, the clerk who testified to have translated the Affirmation to Mr Akram in the prison, that Mr Akram could speak and understand Punti. As said before, this is a matter of weight that is within the ambit of the Tribunal. I shall return to this aspect below. 29.Ground 8 challenges the Tribunal's finding that the appellant failed to file the Notice of Motion in the judicial review proceedings for Mr Akram within the time ordered by Yeung J (as he then was) or at all (complaints A(i) and B(i)). The challenge is based on the explanations given by the appellant in his letter of 2 June 1999 and his affirmation. What is said before relating to question of facts applies to this ground, which has no merit. Case not put to witness - ground 7 30.Ground 7 is connected with ground 6, because it challenges the Tribunal's finding that Mr Chiu was an unsatisfactory witness. This ground is put on the basis of the well-known principle relating to the conduct of a cross-examination as enunciated in Browne v Dunn (1893) 6 R 67, HL, that if it is intended to suggest that a witness is not speaking the truth upon a particular point, his attention must be directed to the fact by cross-examination showing that that imputation is intended to be made, so that he may have an opportunity of making any explanation which is open to him, unless it is otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of his story, or the story is of an incredible and romancing character. 31.Mr Chiu gave evidence of his getting the Affirmation (which was in English) affirmed by Mr Akram in Victoria Prison on 24 August 1999. He said that he was instructed by the appellant to do so. The Affirmation had already been signed by the appellant as the administering person. Mr Chiu said Mr Akram's Punti was very good and he completely understood Mr Chiu's translation of the contents in Punti before affirming the Affirmation. During cross-examination, Mr Chiu was questioned whether the appellant had instructed him to get an interpreter to translate the Affirmation to Mr Akram, which he denied. This question was based on the contents of the appellant's letter of 2 June 1999 which stated:
32.Mr Chiu was then asked about the word "explained", instead of the normal word "interpreted", having been used twice in two clauses of the Affirmation in relation to the contents of the Affirmation being "explained" to Mr Akram by him. Mr Chiu said the word "explained" might have been a "typing error". It can therefore be said that the implication that the Affirmation was not interpreted but only explained to Mr Akram had been drawn to the notice of Mr Chiu. 33.Regarding the knowledge of Punti on the part of Mr Akram, it is plain from the transcript of the cross-examination of Mr Chiu that nothing was put to contradict his testimony that Mr Akram was very good at Punti and he completely understood Mr Chiu's translation in Punti of the contents of the Affirmation. Mr Allan drew our attention to the part of the transcript that he had made the point now contended known to the Tribunal and Mrs Pryor, the solicitor for the Law Society, at the close of Mr Chiu's cross-examination:
34.Despite the reminder, Mrs Pryor, for the Law Society before the Tribunal, did not take the opportunity to ask for permission to put to Mr Chiu that his testimony regarding Mr Akram's knowledge of the Punti dialect was not to be believed, or that he had never explained or interpreted the contents of the Affirmation to Mr Akram. While this was accepted by Mr Westbrook SC, for the respondent before us, he drew our attention to Archbold 2002 para 8-116. The same paragraph of Archbold 2004 states:
35.In Lovelock, the "raised eyebrow" approach was adopted by the Court of Appeal (Criminal Division) to hold that it was not incumbent on the prosecution to explicitly challenge a defence witness's evidence. In the report of the case, the basis for this approach was not apparent, but in the commentary to the report, there is the following note:
36.The "raised eyebrow" approach is not dissimilar to the observation of Lord Halsbury in Browne v Dunn at p 79 of the report as an exception to the rule:
37.The commentary in Lovelock submits, and I think correctly, that
38.Mr Westbrook stressed that it is not an inflexible rule that should be applied in every case. I agree that one should examine the circumstances of the particular case to see how justice lies. Mr Westbrook, very fairly, did not take the stance that the evidence of Mr Chiu in this respect was of an incredible or romancing character, but he doubted if it had been put to Mr Chiu that the evidence was not believed Mr Chiu would be able to give any explanation which might have altered the Tribunal's view of the evidence. But here, one enters into the realm of speculation on what, if any, explanation Mr Chiu would have proffered and how the Tribunal would have reacted to it. I can think of a number of explanations that Mr Chiu could have given, but it would be idle to go into speculation. I consider that it would not be fair for the Tribunal to have simply found Mr Chiu's evidence unsatisfactory to brush aside his testimony that Mr Akram completely understood the contents of the Affirmation as translated or explained to him by Mr Chiu in Punti, while this evidence was not clearly or by any implication contradicted in cross-examination, despite the reminder made by Mr Allan at the close of cross-examination. Mr Chiu was not given any notice that his evidence on this aspect was denied and he had no opportunity to explain the basis for his belief, understanding or knowledge of Mr Akram's standard of Punti. 39.The particulars of the complaints B(v) and C(i) were that the appellant failed to take necessary and proper steps to ensure that Mr Akram knew or understood the contents of the Affirmation and, in particular, to ensure that the contents of the Affirmation were truly, distinctly and audibly explained to Mr Akram prior to his affirmation at Victoria Prison, and the appellant failed to ascertain if Mr Akram knew that he was about to affirm to the truth of the contents of the Affirmation. The Tribunal's finding that these complaints were proved was partly based on the evidence of Mr Akram's limited ability to understand English. That was related to the Affirmation being in English, and that evidence was not refuted. However, relating to Punti, the Tribunal relied on the record of the criminal proceedings in English before a magistrate in 1997 where an Urdu interpreter was used to explain matters to Mr Akram, an affirmation of Mr Akram dated 23 June 1997 prepared by the appellant that was translated to Mr Akram in Urdu at Victoria Prison, the appellant's statement in his letter of 2 June 1999 that he asked Mr Chiu to arrange interpretation in the prison, and the document showing the Commissioner of the Correctional Services' 1997 (which was in fact 1995) opinion that Mr Akram lacked fluency in Cantonese. All these items of documentary evidence could have been used to contradict Mr Chiu, but they were not. While the Tribunal was entitled to reject the evidence of Mr Chiu on this matter, I do not think it is proper for it to have done so when no notice was given to him that he was not believed and no opportunity was given to him to proffer any or any further explanation in support of his testimony. It might be suggested that little significance should be placed on this rule of Browne v Dunn because it could very simply be complied with by putting to the witness that what he has said is untrue. But one must not forget that the rationale of the rule is to ensure fairness to the witness and not to rule out the possibility that such a statement when put to him might be met with responses providing facts that strengthen the evidence already given or even prove the story told beyond any reasonable doubt. On this basis, I am of the view that the finding in support of complaints B(v) and C(i) should not be allowed to stand. 40.Moreover, it appears that it was after Mr Allan's warning against the solicitor for the Law Society not putting her case that was unheeded that he told the Tribunal that he had no re-examination. Mr Allan was obviously relying on the rule in Browne v Dunn, and correctly so. It would be unfair to Mr Allan in his conduct of the proceedings before the Tribunal with the consequence of causing unfairness to the appellant if he were not vindicated. Duplicity - grounds 4 and 5 41.Grounds 4 and 5 can be dealt with together because in substance they raise the point that complaints B(i), (ii), (iii) and (iv), for breaches of Principle 6.01 of the Guide, were based on the same particulars as for complaints A(i), (ii), (iii) and (iv) that were for breaches of Rules 2(c) and (e) of the Solicitors' Practice Rules. It is argued that the complaint sheet in respect of the said complaints was bad due to duplicity, and that the Tribunal was wrong in law in holding that the particulars of the said complaints were not bad for duplicity. 42.Indeed, the Tribunal made it clear that the same facts as set out in para 4(1), (2), (3) and (4) above were at issue and that the appellant's conduct amounted to breaches of Rules 2(c) and (e) of the Solicitors' Practice Rules, and similarly to breaches of Principle 6.01 of the Guide. However, the contention that the two sets of complaints were bad for duplicity is misconceived. Para 1-135 of Archbold 2004 clearly states:
43.Here, Mr Allan's contention is not that more than one charge was contained in one complaint, but that the same conduct complained of had been repeated in more than one complaint, ie, the allegation is one of duplication of complaints not duplicity, which is quite a different matter. The two sets of complaints distinguished the essential differences between them: the items of complaint under complaint A were for breaches of statutory requirements contained in the Solicitors' Practice Rules whereas the items of complaint under complaint B were for breaches of the Guide. There is no substance in these two grounds. Procedural irregularity - grounds 9 and 10 44.Ground 9 challenges the Tribunal's invitation to the parties to address it on the seriousness of the complaints after it had given its Ruling which contained its findings. 45.The contention seems to run as follows. The appellant was entitled to know at the beginning of the case the seriousness of the complaints against him before the rulings and findings of guilt made by the Tribunal, not after. It is argued that the submissions on seriousness of the complaints might have had a bearing on the standard of proof, and as such, they should be made at the beginning of the hearing before the Tribunal, and not after it had made the rulings and findings. Mr Allan cited several authorities, but those authorities are on the requirement of natural justice that a person is not to be condemned unless he has been given an opportunity of defending himself, or the accused person has a right to know the case which is made against him, and he should be given an opportunity of stating his answers to the charges. In my judgment, those authorities do not help the appellant. The appellant knew the exact nature of the complaints against him as early as when he wrote the letter of 2 June 1999. He was represented by counsel at the hearing before the Tribunal, and his counsel addressed the Tribunal on the standard of proof. The Tribunal rightly held that the standard required was the civil standard although for a complaint of a serious character, the standard required would be commensurately higher. The appellant knew thoroughly well what complaints he had to meet, he had full opportunity to defend himself, he chose to rely on the contents of his letter and affirmation and the evidence of his witnesses, but he chose not to testify. 46.There is no substance in ground 9 at all. 47.Ground 10 alleges a material irregularity that is premised on the fact that although the Law Society had already stated to the Tribunal that it was not going to comment on any specific appropriate penalty, it did address the Tribunal on the issue of costs while the Tribunal had ruled that the penalties were to include costs. Mr Allan also prays in aid that the Law Society was unable to state to the Tribunal what the amount of the costs was. 48.It is quite clear from the transcript of the proceedings that there was a misunderstanding on the part of Mrs Pryor of the Tribunal's view on costs being part of the penalty. She considered, contrary to the Tribunal's expressed view, that costs were not included under penalty. Eventually, the Tribunal allowed Mrs Pryor to address it on costs. The Chairman said:
49.Mr Allan has not been able to submit any authorities to support his contention that it was prejudicial and unfair to the appellant for the Tribunal to have heard Mrs Pryor on costs, either as part of the penalties, or at all. On the other hand, Mr Westbrook refers us to Attorney-General's Reference No 7 of 1997 (Robert Fearon) [1998] 1 Cr App R 268, where Lord Bingham CJ said at p 272:
50.I consider that the observation of Lord Bingham applies equally well to proceedings before a solicitors disciplinary tribunal, whose membership consists of solicitors and sometimes a layperson who may not be too familiar with the kind of penalties normally imposed for the complaints proven before them. In such circumstances, the Tribunal was well justified to seek assistance from counsel for the Law Society as to the penalties to be imposed. Moreover, in view of the misunderstanding and confusion referred to above, I do not consider that the Tribunal was acting unfairly or improperly to have heard Mrs Pryor on costs, even as part of the penalties. Costs not made known to the Tribunal 51.Mr Allan complains that Mrs Pryor was unable to make known the amount of costs to the Tribunal. He refers us to the judgments of Rogers VP and Le Pichon JA in Au Wing Lun, William v The Disciplinary Tribunal, The Law Society of Hong Kong, CACV 4154 of 2001 (9 September 2002, unreported) in support of this point and for ground 11 below. Rogers VP said:
52.The Vice President further said:
53.Le Pichon JA stated:
54.The point made by Mr Allan that Mrs Pryor was not able to inform the Tribunal of the amount of costs or any estimate, despite the observation of Rogers VP, in my view does not amount to a material irregularity in the procedure before the Tribunal. In actual fact, while Mrs Pryor did not have the figures at hand at first, the Tribunal asked both parties to make written submissions on costs. The estimated costs were later disclosed in Mrs Pryor's written submissions and Mr Allan had full opportunity to deal with them. The Tribunal ruled on the subject about a month later. Ground 10 fails. The costs order - ground 11 55.This appears to be the main thrust of the appeal against costs, rather than ground 10 that has been dealt with above. Apart from the censures against the appellant, the Tribunal imposed monetary penalties on him that came to a total of $175,000, but the costs involved (on a full indemnity basis) that the Tribunal ordered the appellant to pay to the general revenue amount to about $1.2 million before taxation, over six times of the penalties. 56.The powers of the Solicitors Disciplinary Tribunal ("SDT") are prescribed by section 10 of the LPO, which include the power to inquire into and investigate the conduct of any person in respect of which the SDT was appointed, striking off a solicitor from the roll, suspending him from practice and censuring him. The SDT also has the power to make the following orders as its think fit:
57.Originally at the first hearing of this matter on 12 December 2002, Mr Allan on behalf of the appellant relied on the judgment of Rogers V-P and Le Pichon JA cited above to submit that the order for costs on a full indemnity basis as ordered by the Tribunal was wrong in principle, in that at least one complaint was found not substantiated. Mr Allan also submitted that such large amount of costs could be said as inhibiting or impairing the appellant's basic right to defend himself. This submission of his involves the consideration of whether section 10(2)(e) of the LPO ("s 10(2)(e)") that confers power on the SDT to order full indemnity costs is constitutional in light of the Basic Law and the Bill of Rights. Constitutionality of s 10(2)(e) 58.The ground of appeal states that the full indemnity costs order imposed pursuant to s 10(2)(e) contravened the appellant's fundamental and/or basic human rights including his rights to livelihood. We considered this a very important issue that had not been fully argued at the first hearing before us on 12 December 2002. As a result we invited both parties as well as an amicus curiae to address us further on the subject. 59.Mr Ambrose Ho SC is the amicus whereas the appellant has now retained Mr Johannes Chan SC to lead Mr Allan to address us on this issue. Mr Westbrook SC, for the respondent, whilst making his own submissions, also shares Mr Ho's views on the constitutionality issues. 60.Mr Chan submits that, to the extent that s 10(2)(e) confers an unfettered discretion to make a costs order of such magnitude that disproportionately restricts or impairs a person's right of access to the SDT and his right to fair hearing before the SDT, s 10(2)(e) is inconsistent with Articles 35 and 39 of the Basic Law of the Hong Kong Special Administrative Region ("HKSAR") and Article 10 of the Bill of Rights, and to such extent s 10(2)(e) is unconstitutional and of no effect. However, it has become clear that Mr Chan is not contending that s 10(2)(e) is unconstitutional as a statutory provision that ought to be struck down, but rather that the exercise by the SDT of the powers on costs conferred by the provision was unconstitutional for being inconsistent with the Basic Law and the Bill of Rights. 61.Mr Chan submits that alternatively, s 10(2)(e) should be construed in a manner consistent with the Basic Law and the Bill of Rights so that the power under s 10(2)(e) can only be exercised within constitutional constraints. A substantial costs order would have the inhibiting effect of pressurising a defendant not to defend himself before the SDT. The court and the SDT have to balance the aim to be achieved by the costs order and its inhibitive effect on the constitutional right of access to courts and tribunals and the right to a fair hearing so as to ensure that the costs order is operated only as a proportionate restriction on those rights. 62.Mr Chan further submits that in the alternative, the power under s 10(2)(e) should, as a matter of common law and in the absence of any contrary intention, be exercised consistently with the state's international treaty obligations, including Article 14 of the International Covenant on Civil and Political Rights ("ICCPR"). Or alternatively, the court, on appeal from the SDT, is entitled to take into account international treaty obligations and to ensure that the SDT's decision is consistent with such obligations. 63.Last but not least, Mr Chan submits that the right of access to court is well recognized under the common law. Neither Mr Ho nor Mr Westbrook gainsays this. The common law 64.In R v Lord Chancellor, ex parte Witham [1998] QB 575, at 585C-586G, having observed that the common law right of access to court was no less extensive than the right under the European Convention, Laws J held that the Supreme Court Fees (Amendment) Order 1996 that provided a minimum fee for issuing writs and removed the exemption of litigants in receipt of income to pay court fees was ultra vires and constituted an unjustifiable restriction of the right, which was described as a "constitutional right" that is "near to an absolute right". 65.I consider that under the common law, the right of access to court includes the right of access to a tribunal such as the SDT when it exercises its disciplinary jurisdiction in a quasi-judicial manner over solicitors and other persons with the power to impose penalty and make costs orders that have the effect of seriously affecting a solicitor's pocket and even jeopardising his right to practise and his livelihood. The upshot is, therefore, that the exercise by the SDT of the power conferred on it by s 10(2)(e) should be subject to the common law right of access to court, and it is unnecessary to decide whether the right is also protected by Article 35 of the Basic Law or the Bill of Rights or the ICCPR. Nevertheless, in deference to counsel's submissions on these instruments, I shall deal with the points made briefly. The Basic Law 66.The relevant provisions of the Basic Law are Articles 8, 18, 35 and 39 which read as follows:
67.Based on the provisions of Articles 8 and 18 of the Basic Law, Mr Chan submits, and I have no doubt correctly, that the LPO, which was enacted before 30 June 1997, falls within the meaning of laws previously enforced in Hong Kong and it shall be adopted as the laws of the HKSAR "except for any that contravene" the Basic Law. 68.Since Article 35 of the Basic Law provides that Hong Kong residents should have the right of access to the courts, if s 10(2)(e) disproportionately restricts or impairs such right of access, it is inconsistent with Article 35. Mr Chan draws our attention to A Solicitor v The Law Society of Hong Kong, ex parte The Secretary for Justice, FACV No 7 of 2003 (19 Dec 2003, unreported), where Bokhary PJ at para 45 described access to the courts as an "arterial right" to stress the significance of this right. 69.The bone of contention is whether the term "access to the courts" in Article 35 includes a tribunal such as the SDT. Mr Chan submits that given a broad and purposive construction that is appropriate to a constitutional provision, the term should include access to those tribunals that exercise a judicial function and whose decision is determinative of the right of a person, such as a right to continue his practice as a professional member. On the other hand, Mr Ho submits that for a tribunal to be included in the ambit of Article 35, it must exercise an adjudicative power that belongs to the judicial organs of the state. He submits that the SDT should only be regarded as exercising a judicial function if the SDT could be regarded either as an institution exercising powers and duties delegated by the courts (in other words "as agent of the courts") or having succeeded (as "successor") to the powers and duties originally exercised by the courts. He submits that the SDT would only qualify as a "court" under Article 35 of the Basic Law if the nature of its jurisdiction can be shown to be "judicial" as opposed to "extra-judicial/private or domestic". 70.Mr Ho leads us through the history of the relevant legislation to demonstrate that the SDT is neither an agent nor a successor of the court. Solicitors, as officers of the court, have always been subject to the supervisory jurisdiction of the superior courts of record. The court's common law power to strike the names of solicitors off the roll has been repeatedly affirmed by successive statutes. Before 1964, the only procedure available in Hong Kong for taking disciplinary action against solicitors was to apply direct to the Full Court (the predecessor of the Court of Appeal) to strike the name of a solicitor off the roll or to require a solicitor to answer allegations (see for example, Re a solicitor (1936) 28 HKLR 28). 71.Ordinance No. 16 of 1964 introduced for the first time a disciplinary procedure for solicitors which operated outside the courts by establishing the Disciplinary Committee. Appeals from the decisions of the Disciplinary Committee lay to the Full Court. Significantly, the establishment of the Disciplinary Committee did not affect the court's disciplinary jurisdiction over solicitors which remained exercisable by direct application to the Court. The retention of the procedure of applying direct to the Court to strike off a solicitor's name from the roll after the establishment of the Disciplinary Committee precludes any argument that the Disciplinary Committee had "succeeded" to powers of the courts. While it may be argued that in establishing the Disciplinary Committee, the legislature had intended to "delegate" to the new body some of the functions hitherto exercised exclusively by the courts, Mr Ho submits that a better views is that the legislature had intended to set up an "alternative procedure" for disciplining solicitors and that the Disciplinary Committee derived its powers from statute and not as an agent of the courts. 72.The Disciplinary Committee subsequently became the SDT under the amendments introduced by Ordinance No. 61 of 1992. By section 10 of the same ordinance, section 14 of Ordinance No. 16 of 1964 was repealed. Mr Ho submits that section 14 of Ordinance No. 16 of 1964 did no more than to prescribe the procedure to be followed upon an application direct to the Court to strike off the name of a solicitor from the roll. The repeal of section 14 did not have the effect of abdicating the court's jurisdiction over solicitors, who remain amenable to the court's jurisdiction as officers of the court. This is borne out by the fact that section 3(2) and (3) of Ordinance No. 16 of 1964 has never been repealed. Hence the position of the SDT is exactly the same as its predecessor, the Disciplinary Committee. 73.Mr Ho also compares of the history of the legislation that led to the establishment of the Barristers Disciplinary Tribunal and draws the conclusion that the legislature had clearly intended that the SDT and the BDT to derive their powers from the statute alone and not as "agent" or "successor" to the courts. He therefore submits that the function and jurisdiction exercised by the SDT (and the BDT) cannot properly be regarded as "judicial". Hence, so Mr Ho submits, the appellant's argument for the application of Article 35 of the Basic Law on the basis of the SDT discharging a judicial function cannot stand. He also draws support from section 10 of the LPO whereby the SDT is given the power to impose a fine up to $500,000, which is a new statutory power which the courts have never had. 74.I am inclined to accept Mr Ho's submission that the SDT is not a "court" in the term "access to the courts" in Article 35 of the Basic Law. This proposition can also find support from the Court of Appeal's decision in Tse Wai Chun Paul v Solicitors Disciplinary Tribunal [2002] 4 HKC 1 that the SDT is not a "court of the classic kind", referred to below. Moreover, I am also inclined to the view that the exclusion of the word "tribunal" from Article 35 of the Basic Law was deliberate when that word appears in Article 14(1) of the ICCPR and in Article 10 of the Hong Kong Bill of Rights Ordinance, Cap 383 ("HKBORO"), both of which deal with the same subject matter, especially when the ICCPR is specifically referred to in Article 39 of the Basic Law. 75.However, Mr Chan refers us to the recent decision in Dr Ip Kay Lo, Vincent v The Medical Council of Hong Kong (No 2) [2003] 3 HKC 579 (28 July 2003), which dealt with the refusal by the Medical Council of an application for an adjournment made by the doctor in disciplinary proceedings before the Council, for the purpose of enabling him to obtain legal representation. This Court, differently constituted, considered the applicability of the right of "choice of lawyers ... for representation in the courts" in Article 35 of the Basic Law to those proceedings before the Council. Cheung JA said:
76.Although Cheung JA had intimated that he understandably did not have assistance of counsel on the topic and therefore one could regard his decision as per incuriam, his view, based on a very liberal and purposive approach to interpretation, on the applicability of Article 35 of the Basic Law to statutory disciplinary tribunals was clear and forceful. While Yuen JA did not express a view on the subject, Burrell J agreed with both her and Cheung JA. I feel myself bound by the decision. It follows that the right of access to court enshrined in Article 35 of the Basic Law applied to the SDT in the exercise of its power relating to costs under s 10(2)(e) of the LPO. The ICCPR 77.Mr Chan submits that Article 39 of the Basic Law further confers an entrenched status on the ICCPR as applied to Hong Kong. Article 35 of the Basic Law itself can also be regarded as an application of Article 14 of the ICCPR and should therefore be construed consistently with the ICCPR. 78.Article 14(1) of the ICCPR provides:
79.Save in one aspect to which I shall return later, I do not think it necessary to consider Article 14(1) of the ICCPR. The provision of Article 39 of the Basic Law that the ICCPR "as applied to Hong Kong" shall remain in force and shall be implemented through the laws of the HKSAR is only referable to those provisions of the ICCPR as applied to Hong Kong. The provisions as applied to Hong Kong have been incorporated into the laws of Hong Kong by the HKBORO, the short title of which states:
80.Article 10 of the HKBORO is identical in terms to the provision of Article 14(1) of the ICCPR. It reads:
Thus, for present purposes, it is only necessary to see whether Article 10 of the HKBORO, as opposed to Article 14(1) of the ICCPR, applies to the issues now raised before us. 81.Pausing here, it is pertinent to mention that the right of access to the courts is inherent to the right to a fair hearing protected by Article 10 of the HKBORO: Golder v United Kingdom (1975) 1 EHRR 524, at 536. HKBORO - is SDT a public authority? 82.Two provisions of the HKBORO are, in my view, pertinent to this appeal, namely sections 6 and 7. Section 6 provides as follows:
83.Section 7 provides as follows:
84.While Mr Chan argues that HKBORO binds the SDT as a public authority within the ambit of section 7 of HKBORO, Mr Ho takes the position that it is difficult to be categorical on this point. 85.The term "public authority" is not defined in the HKBORO or the Interpretation and General Clauses Ordinance, Cap 1. 86.Mr Chan submits that as the purpose of the HKBORO is to incorporate the ICCPR as applied to Hong Kong into domestic law, the HKBORO should receive a construction, in so far as its language permits, that gives effect to the international treaty obligations. Therefore, in construing the scope of the application of the HKBORO, and in particular, the meaning of "public authority", it is instructive to consider the obligations and responsibilities of the state under the ICCPR. He submits, therefore, that the state responsibility under international law are not confined to acts by the state but extends, in certain circumstances, to the acts of bodies either than the formal state organs as long as there is sufficient state involvement (or lack of involvement) that is sometimes known as the horizontal effect of treaty obligation. 87.He refers us to cases such as BdB v Netherlands, Communication No. 273/1989, UN document A/44/40, p 286 (where the Human Rights Committee held that the Dutch Industrial Insurance Board for Health and for Mental and Social Interest to which the Netherlands Government had delegated some of its state functions, could be attributable to the state), Casado Coca v Spain (1994) 18 EHRR 1 (where the European Court of Human Rights held that the Barcelona Bar Council was a public authority), Le Compte v Belgium (1982) 4 EHRR 1 (where the European Court held that the Belgian ordre des medecins was part of the state), Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 (where the European Court held that although an individual teacher, in exercising the power to use corporal punishment, was not exercising a power delegated to him by the state than a power vested in him by the common law, the state was still responsible for the act because it had assumed responsibility for formulating general education policy and because discipline was an integral, even an indispensable part of any education system), and Foster v British Gas PLC [1991] 2 AC 306 (where the House of Lords held that the British Gas Corporation was a state so that its retirement policy could be challenged by the applicant's placing reliance on an EEC directive). 88.Mr Chan therefore submits that the term "state" should be construed broadly to cover not only the classic legislative, executive and judicial branches of the government, but may include other bodies either discharging a public function or being subject to governmental control. He submits that the scope of "Government" and "public authorities" in the HKBORO should be construed in line with the state responsibility under the ICCPR. 89.Our attention has also been drawn to some Hong Kong authorities dealing with the term "public authorities" in section 7(1) of the HKBORO. 90.In Hong Kong Polytechnic University and others v Next Magazine Ltd and Another (1996) 6 HKPLR 117, Keith J, as he then was, decided that the Hong Kong Polytechnic University was a public authority within the meaning of section 7(1) of the HKBORO. At p 122I, he said:
91.Keith J concluded (at p 124C):
92.On the other hand, in Tse Wai Chun Paul v Solicitors Disciplinary Tribunal, HCAL 636/2001 (27 August 2001, unreported), Hartmann J, having referred to the Next Magazine case, came to the conclusion that he was not persuaded that the SDT can properly be called a public authority in the terms of the HKBORO. The judge had taken into consideration on the one hand that the SDT has a clear public interest to perform in ensuring the proper conduct of the legal profession, that the legislature is aware of that interest and empowers the administration to give financial support to the SDT in the discharge of its statutory obligations, that the SDT has jurisdiction not only over the private individuals who mutually agreed in entering the profession to abide by a code of conduct but over employees of solicitors and foreign lawyers: conveyancing clerks and accountants, messengers and the like, that the SDT receives direct financial support from the public purse for its work, that the SDT is conferred power to impose financial penalties not exceeding $500,000 which are to be paid into the general revenue, and that the SDT is empowered to punish for contempt, and on the other hand that the SDT is a body created by statute to monitor the conduct of a single profession in Hong Kong, and concluded that it was not a public authority within the meaning of section 7(1) of the HKBORO. 93.There was an appeal from Hartmann J's judgment, reported in [2002] 4 HKC 11, in which the Court of Appeal held that by its nature being disciplinary or administrative, the SDT it is not a "court of the classic kind". In her judgment, to which Rogers V-P and Sakhrani J agreed, Le Pichon JA, when referring to X v United Kingdom (1981) 4 EHRR 188, stated (page 11A):
For that reason, the Court of Appeal affirmed the judgment of Hartmann J that section 9B(4) of the LPO did not contravene either Article 14 of the ICCPR or Article 10 of the Bill of Rights. However Le Pichon JA also stated, at p 14D:
94.While Mr Chan points to a number of matters that support his submission that the SDT is a public authority within the meaning of section 7(1) of the HKBORO, Mr Ho counters that none of these matters are determinative of the issue. The facts that the SDT is established by statute and its members, including lay members, are appointed by the Chief Justice do not shed any lights on the issue whether it is a public authority because many private bodies are also so established and consist of such members. While the jurisdiction of the SDT over employees of solicitors and of foreign lawyers may be indicative of its jurisdiction being wider than the normal jurisdiction of other domestic tribunals, this alone cannot be decisive that it is a public authority. Even though the SDT enjoys a number of powers and public funding which are not enjoyed by disciplinary bodies of other professions other than the BDT, these factors are again not determinative. The power to punish for contempt does not necessarily point to the SDT's discharging judicial functions as it may have been given to the SDT on the assumption that those who constituted the SDT were likely to be of a standing where they could be eligible to be appointed judges and thus would be able to know and understand the law and practice in relation to contempt and it would be safe to entrust them with power to commit (see Tse Wai Chun Paul on appeal, at 12G-H per Le Pichon JA). The same could be said of the power to summon witnesses and to impose financial penalties. Public funding cannot be conclusive as to whether an organization is a public authority: government funding is often given to private enterprises (Tse Wai Chun Paul at first instance, HCAL 636/2001, paragraph 61). Public funding may be explained by the recognition that the discipline of solicitors would contribute towards the quality of the administration of justice and hence of particular value to the public. The payment of fines to the general revenue as opposed to the Law Society may be explained by the desire to avoid possible conflict of interest and to treat the fines as a "mirror arrangement" for the public funding of the SDT. Moreover, it would be difficult to justify singling out the SDT, which is but a professional disciplinary body, such as other professional disciplinary bodies generally exercising a domestic jurisdiction, for special classification. 95.On the other hand, Mr Chan submits that there is a treaty obligation on the part of the state party to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the ICCPR and to ensure a determination of their rights by competent judicial, administrative or legislative authorities: Articles 2(1) and (3) of the ICCPR. The scope of "public authority" determines the frontier of the state, and its interpretation should be commensurate with jurisprudence on state responsibility under the international human rights treaty regime. He points out that division between the rigid vertical application of the Bill of Rights (obligations only imposed on the state and its derivative organs) and its more liberal horizontal application (the state should be responsible for a violation by private individuals) can be bridged by making the Bill of Rights relevant even in litigation involving private individuals, and "public authority" should be construed in this light. 96.Mr Chan asks us to adopt the test laid down by Keith J in the Next Magazine case to decide whether the SDT is a public authority within the meaning of section 7(1) of the HKBORO. Apart from the nature and constitution of the body, the way in which it is run, its functions, the measure of governmental control or monitoring of its performance, and its public accountability, I think one should also consider its powers and the effect of their exercise on the public in order to decide if it is such a public authority. The SDT is a statutory tribunal with members consisting of solicitors and foreign lawyers and lay persons appointed by the Chief Justice having the jurisdiction and duty to investigate into the conduct of solicitors and foreign lawyers and their employees. It is independent of the Law Society that may be described as a domestic or private body. Its aim is obviously to ensure the quality of professionals who are an integral part of the administration of justice in Hong Kong, and its jurisdiction is coercive and does not rest on the consent of the parties subject to its jurisdiction. Thus it can be said to be a part of the machinery of the administration of justice. It makes determinations which are decisive of the civil rights and obligations of the persons within its jurisdiction, which may deprive a solicitor of the right to practise and his employee of the right to be employed in a solicitor's firm. The solicitor's right to livelihood may thus be affected, so may such right of innocent persons under his employ. It may impose fines up to $500,000. It may punish for contempt. It has at its disposition a full range of government officials, including the police and gaolers, to enforce its decisions. The procedure of hearing before the SDT follows closely that before a court: an adversarial process with a right to legal representation. The orders it makes are subject to appeal to the Court of Appeal, which is a sort of governmental monitor or control. All necessary and reasonable expenses incurred for disciplinary proceedings, not recoverable or recovered from the persons subject to them are funded by the government and all the penalties imposed by it on such persons are payable to the general revenue. All these point to the fact that it is a public authority. On the other hand, the only basis for it not to qualify as a public authority is that it is a domestic tribunal exercising power and control over persons including mostly its professional members, and that as such it should not be differently treated if other domestic tribunals are not considered to be public authorities. 97.Mr Ho takes the position that all the above factors pointing to the SDT being a public authority are not conclusive and that he cannot be categorical. He submits that it is a matter for policy decision. Mr Chan, argues, however, that there is and can be no policy reason or objection why the SDT should not be a public authority subject to the Bill of Rights constraints. I agree. All the above factors point to one and the same direction that the SDT is a public authority, and the mere fact that it is a domestic tribunal is not sufficient to persuade me to the contrary. I therefore come to the conclusion that the SDT is a public authority within the meaning of section 7(1) of the HKBORO. 98.There are, however, two decisions of the Court of Appeal that may pose as a hurdle for my above ruling. The first is the statement of Le Pichon JA in Tse Wai Chun Paul on appeal referred to in para 93 above. But that statement was unnecessary for the Court's decision and was therefore obiter and is not binding upon us. 99.The other authority is Tam Hing-yee v Wu Tai-wai [1992] 1 HKLR 185, in which the Court of Appeal held that the HKBORO did not apply to inter-citizen litigation. The difficulty created by Tam Ying-yee is that even if the SDT were held by this Court to be a public authority, it would not resolve the question whether the HKBORO could be applied to the proceedings before it because the parties to the proceedings are "private persons". This will be more conveniently dealt with below. The Law Society as opposed to the SDT 100.Mr Ho asks us to draw a distinction between the SDT and the Law Society in that the SDT is the tribunal and not the parties before it, ie, the Law Society and the solicitor charged. Reliance is placed on Hong Kong Bar Association v Anthony Chua (1994) 4 HKPLR 637 in which the BDT held that the Hong Kong Bar Association was not a public authority under the HKBORO. It follows that the Law Society, being a professional domestic body similar to the BDT, is not a public authority within the meaning of section 7 of the HKBORO. This is not challenged by Mr Chan. As the Law Society is not a public authority, so Mr Ho submits, on the basis of Tam Hing-yee, Article 10 of the HKBORO is not applicable to the proceedings between the Law Society and the appellant before the Tribunal, because one is a domestic, as opposed to public, body and the other is a private person. 101.In Tam Hing-yee, the Court of Appeal was dealing with the question whether section 52E(1)(a) of the District Court Ordinance, empowering the District Court to make an order to prohibit a judgment debtor from leaving Hong Kong is inconsistent with the HKBORO so that it was treated as being repealed (pursuant to the then section 3 of the HKBORO). While accepting that the HKBORO, being in the nature of a constitution, must be given "a generous interpretation" or "a generous and purposive construction", Sir Derek Cons VP, delivering the judgment of the Court, ruled that section 7 of the HKBORO was not subject to section 3 thereof, and stated at p 189(16) that
102.While Tam Hing-yee is a decision that apparently binds on us, Mr Chan directs our attention to the fact that the ruling had been overruled by the Bill of Rights (Amendment) Ordinance 1997, which came into effect on 30 June 1997. Section 3 of the HKBORO was amended to introduce the following subsection:
103.As a result, it is submitted, the ruling in Tam Hing-yee was no longer the "law previously in force in Hong Kong" and was not adopted as the law of the HKSAR under Articles 8 and 18 of the Basic Law. Although the Bill of Rights (Amendment) Ordinance 1997 was suspended on 18 July 1997 and subsequently repealed on 28 February 1998 by the Provisional Legislative Council, by virtue of section 23(a) and (b) of the Interpretation and General Clauses Ordinance, Cap 1, the repeal of section 3 of HKBORO as amended does not "revive anything not in force or existing at the time at which the repeal takes effect". In other words, the repeal of the amended section 3 does not "affect the previous operation of" the amended provisions. Accordingly, this Court is not bound by the ruling in Tam Hing-yee. 104.Notwithstanding, it can be argued that the ruling in Tam Hing-yee was not an interpretation of the then section 3 of the HKBORO, but was rather a construction of section 7 of the HKBORO. As such, the amendment to section 3 in June 1997 did not repeal the ruling in the context of the construction of section 7 of the HKBORO. Even if it did, there is no avoiding of this Court being bound by the ruling in the context of the proper construction of section 7 of the HKBORO, because the application of the HKBORO to legal relations between private persons introduced by the amendment to section 3 of the HKBORO, which amendment should be viewed as widening the scope of section 7, was repealed and section 7 has remained intact. I am therefore inclined to the view that this Court is bound by Tam Hing-yee. 105.However, Mr Chan draws support from Cheung Ng Sheong Steven v Eastweek Publishers Ltd (1995) 5 HKPLR 428, where the Court of Appeal, at pp 436D-437F per Nazareth VP and 451H-I per Mayo JA, considered a jury's excessive award of damages for defamation as posing a risk of its constituting an impediment to the principle of freedom of opinion and expression enshrined in Article 19 of the ICCPR that is identical to Article 16 of the HKBORO. The Court reached its decision regardless of the case before it being a dispute between two private individuals. After referring to those freedoms and the English decision in Rantzen v Mirror Group Newspapers Ltd [1994] QB 670 at 692, Mayo JA said succinctly at 451H:
106.Although Nazareth VP recognized, at p 436G, that the HKBORO "binds only the government, public authorities and persons acting on behalf of them" (section 7 of HKBORO) and therefore the considerations in Rantzen did not apply in cases between private individuals, he considered that the court could rely on Article 19 of the ICCPR (in terms identical to Article 16 of the HKBORO) in scrutinizing the jury's assessment of the damages. He said at 437E:
107.It follows that even if we are precluded by Tam Hing-yee to apply the HKBORO to inter-citizen litigations, such as the present proceedings, Cheung Ng Sheong Steven opens a back door through which we are enabled to apply Article 14(1) of the ICCPR (identical to Article 10 of the HKBORO) to the instant case. 108.It is to be noted that the word "tribunal" is expressly included in section 6 of HKBORO. While no definition of this word can, however, be found in HKBORO or the Interpretation and General Clauses Ordinance, I am of the view that the SDT, at least when exercising a quasi-judicial function in its disciplinary proceedings, must be a tribunal that is within the meaning of section 6. The SDT as such a tribunal must have regard and give effect to the provisions of the HKBORO to avoid any violation or threatened violation of the relevant Bill of Rights. 109.For the above reasons, I hold that the HKBORO applies to and binds the SDT when it deals with disciplinary proceedings before it in the exercise of its powers under s 10(2)(e), which should be exercised consistently with Article 10 of the HKBORO. The exercise by the SDT of the power to make costs orders should not unnecessarily, unreasonably and disproportionately restrict or impair the right of the litigant to access the SDT or to defend himself before the SDT. 110.Mr Chan emphasises that the SDT's order made under s 10(2)(e) has an inhibitive effect in that the possibility of the indemnity costs order against a solicitor may inhibit him from defending a complaint against him. This is not necessarily so, because as Mr Chan has accepted, the SDT has three options to pick from under s 10(2)(e): (1) not to make any order for costs; (2) to order costs on an indemnity basis; and (3) to adopt an equitable "middle course" and to assess a contribution towards the costs of the inquiry and any prior investigation. 111.I am not persuaded that in the instance case the mere power conferred on the SDT to order costs on a full indemnity basis inhibits the appellant from accessing the Tribunal or defending complaints against him before the Tribunal. Indeed, until very recently there had been no evidence adduced by the appellant to even state that he was so inhibited. 112.Moreover, insofar as the costs ordered against the losing party by the SDT are on a party and party basis, Mr Ho submits that no challenge can be made that the costs order is not proportional vis-ร -vis the right of access. Mr Ho refers to X v Sweden (1979) 17 DR 74 and Miloslavsky v UK (1995) 20 EHRR 442 in each of which security for costs (normally worked on a party and party basis) was held not to be in breach of the right of access to court, to prove his point. Mr Chan concedes that the proposition is correct. Construction of s 10(2)(e) 113.Before examining the manner in which the discretion in ordering full indemnity costs ought to be exercised, it is necessary to decide on the proper construction of s 10(2)(e). All counsel before us have addressed us on this topic. 114.For its closer examination, s 10(2)(e) is repeated below:
115.Mr Westbrook contends that there is no inherent power for the SDT to order costs or costs on any basis. S 10(2)(e) provides the necessary statutory power to the SDT to order costs on a full indemnity basis. He argues that s 10(2) gives power to the SDT in three ways: first, to order costs to be taxed by a High Court Master; second, to order costs to be taxed on a full indemnity basis; and third, to order reasonable contribution towards those costs taxed on a full indemnity basis. Full indemnity is, therefore, upon proper construction of the provision, the only basis of costs order that the SDT is empowered to make, or alternatively it can order a reasonable contribution towards such costs on that same basis. This construction will justify the Law Society, as a party to disciplinary proceedings before the SDT, and sometimes the SDT itself describing the full indemnity costs order as the "practice" or "usual order". Mr Westbrook refers us to Lau Wong Chan (a firm) v Famous Investment Co Ltd & Ors [1991] HKLR 115 at 121C that indemnity costs would usually apply to serious contempt cases, which are a special or peculiar kind of proceedings, and submits that solicitors disciplinary proceedings are also a peculiar kind so that awards of costs on a full indemnity basis on proven complaints against a solicitor is usual. 116.Mr Ho differs, and Mr Chan adopts Mr Ho's construction of the provision. Mr Ho traces the history of how the current s 10(2)(e) came about. Briefly, section 10 of Ordinance No 6 of 1845 (Supreme Court) confirmed the Supreme Court's power to remove and strike off solicitors. Section 30 of Ordinance No 3 of 1871 (Barristers, Attornies, and Public Notaries) repeated that power of the Supreme Court. Section 33(1) of the Legal Practitioners Ordinance, No 37 of 1948, Cap 159, again reiterated that power of the Supreme Court, but section 33(2) gave further power to the Court to refer the matter relating to the removal or striking off solicitors to the Committee established under the Ordinance for investigation and inquiry. Section 33(3) provided that where the Law Society had exercised its right of audience over the matter, the Court might award to the Society reasonable legal costs. Ordinance 16 of 1964, which was the last ordinance before its present format, established the Disciplinary Committee and section 10(2)(e) thereof conferred power on the Committee "to make such order as it thinks fit", including
117.Mr Ho submits that the power to award costs is not inherent in inferior courts and tribunals and must be given by statute (see Walton v McBride (1995) 36 NSWLR 440, 447, per Kirby P, as applied by Rogers VP in A Solicitor v The Law Society of Hong Kong/The Solicitors Disciplinary Tribunal, CACV 221 of 2003 (11 Nov 2003, unreported), at paras 122-123). Mr Ho proceeds to compare the wording of the former and present s 10(2)(e), and submits that the current provision gives further power to the SDT in three ways, (a) to order taxation of costs by a taxing Master of the High Court, (b) to order costs on a full indemnity basis, and (c) to order reasonable contribution of an amount of the costs of the proceedings. He submits that the power in (c) should properly be construed as a lump sum order for reasonable contribution towards the costs of the proceedings, and those costs are not necessarily to be on an indemnity basis, whilst the power in (b) to order a full indemnity basis includes the power to order costs on a lesser or lower basis, such as the party and party basis. He seeks support from the reasonable contribution being by an "amount", which does not include a lesser basis than a full indemnity basis. He also submits that according to the history of the legislation, the 1964 version had already given power to the Disciplinary Committee to award costs or such sum as a reasonable contribution towards costs. The added power given by the current provision is, apart from taxation, costs on a full indemnity basis, which must necessarily include costs on lesser bases which the SDT's predecessor had already been empowered to order. It would be unreasonable to construe the current s 10(2)(e) as depriving the SDT of such power which it already had to make costs orders on lesser bases. 118.Mr Chan submits that Mr Ho's construction is further justified by the words "the power to make such order as it thinks fit" in the body of s 10(2), which connote that the SDT has a wide discretion to make costs orders up to the extent of a full indemnity basis that necessarily includes costs orders on a lesser basis. 119.The observation of Stone J in A Solicitor CACV 221 of 2003 at para 113 that "... indemnity basis (which in my view encompasses the power to award costs on the more restricted party and party basis)" lends support to Mr Ho's interpretation of s 10(2). 120.I am persuaded that the proper construction of s 10(2)(e) is that as submitted by Mr Ho and Mr Chan. 121.Moreover, Mr Westbrook's construction can be said to be a design to support the belief held by the Law Society and SDT that costs on a full indemnity basis is the usual practice. There is not only a ring of artificiality about it, but its operation in awarding costs would also be clumsy and bring unnecessary undesirable consequences. Mr Westbrook submits that the reasonable contribution ordered by a SDT can be an amount or it can be worked from another basis less than the full indemnity basis although it has no power to order costs on that lesser basis. If, for example, the SDT considers it reasonable to order costs on a party and party basis, it can ask the Law Society or the solicitor to submit for its information an accurate estimate of the costs involved. With that information, the SDT could work out how much contribution the unsuccessful party should bear by ordering a proportion of the estimated costs on a full indemnity basis or a lump sum to reflect that proportion. This operation in accordance with Mr Westbrook's construction is awkward, to say the least. First, in every disciplinary proceeding save in very simple and exceptional cases, the Law Society would be compelled to prepare a reasonably accurate bill of costs for the SDT to consider ordering an "amount" for reasonable contribution or ordering an appropriate proportion. If the SDT were to consider a party and party basis order being appropriate, it had to work from a full indemnity basis and order a proportion to reflect the appropriate basis. Secondly, where a proportion was ordered, there must be taxation and the taxing Master must tax on a full indemnity basis first and then the person ordered to pay would have to pay a proportion of that. The steps to be taken are not only awkward but would also involve an increase of costs for the preparation of the estimated bill as an almost inevitable exercise and for the taxation. I reject Mr Westbrook's construction. How the discretionary power under s 10(2)(e) is to be exercised 122.S 10(2)(e) confers a discretionary power the exercise of which is subject to appeal to the Court of Appeal (section 13 of the LPO). The exercise of such discretion is based on principles which must take into account the intent of the provisions themselves conferring such powers on the SDT, the circumstances of the case, including the subject matter and the gravity of the complaint which is found to be substantiated, and the conduct of the proceedings before it by the parties, etc. This exercise of the power is similar to the exercise of the court's discretion in making orders for costs. There are five bases of taxation available to the courts, namely, party and party, common fund, trustee, solicitor and own client, and indemnity: see generally paras 62/App/5 to 62/App/11 of the High Court Civil Procedure 2004, Vol 1, pp 926-927. Para 62/App/12 of the same volume contains a brief summary of the relevant considerations for ordering indemnity costs. The SDT can follow the same principles involved but the factors for it to order indemnity basis costs are not necessarily identical to those that the courts consider. In view of my judgment that s 10(2)(e) must be applied consistently with the right of access to court, be it under the common law, Article 10 of the HKBORO or Article 35 of the Basic Law, that right must also be considered when the SDT makes a full indemnity costs order under s 10(2)(e). It is wrong for the SDT or the respondent in this appeal to describe such an order as the "usual order". A balancing exercise will be required and the balance is on the one hand the purpose to be achieved by imposing an indemnity costs order and on the other hand the impact such an order will have on the constitutional rights of the appellant. 123.I agree with Mr Ho that disciplinary proceedings are sui generis and any comparison with criminal proceedings has to be approached with caution. I come to the conclusion that the principle of not awarding costs against an accused unless the way that the defence was conducted amounted to abuse of process of the court should not apply to disciplinary proceedings. 124.In response to counsel's arguments, I have also examined the effect of s 25 of the LPO which provides that all necessary and reasonable expenses that the Law Society has incurred for the investigation leading to an inquiry before the SDT and for the inquiry can be recovered from the general revenue. In this respect, while the order for costs imposed by the SDT must necessarily be compensatory in its main purpose as between the parties before it, the Law Society is expressly allowed to recoup all necessary and reasonable expense from the general revenue if it does not or cannot recoup the entirely of its costs and expenses from the solicitor who is ordered to pay. This seems to put the exercise of the costs discretion by the SDT in a slightly different light from that in normal civil litigation where the parties have no recourse to the presumably unlimited resources of the general revenue. Having said that, I am not inclined to the view that because the general revenue is available to the Law Society, the SDT should exercise its costs discretion in any way different from that for normal civil litigation as between a professional body and its member, save in circumstances such as the impecuniosity of the solicitor concerned or where an indemnity costs order would have the undesired effect of making him bankrupt or financially unsound to remain a solicitor. As distinct from normal civil litigation, the gravity or seriousness of the complaints and the gravity of those that are proven against the person subject to the inquiry should also be a relevant consideration for the SDT to take into account. There are other factors, described below, that should also have a bearing. 125.Mr Chan submits that an award of an indemnity costs order should be the exception, and should only be made when it is just and reasonable to do so. In my judgment, this must be right. He further submits that in exercising its powers under s 10(2)(e) the SDT should consider the following matters:
Relationship between costs and penalty 126.I accept all the above matters are proper considerations for the SDT when exercising its powers under s 10(2)(e), save that I have reservation with item (4). Mr Chan relies heavily on the fact that the statutory power of the SDT to impose a penalty is limited to $500,000, whereas a costs order on a full indemnity basis, as that in the present case, involved a sum very much higher than the penalty imposed, and to the extent of at least doubling the maximum statutorily allowed penalty. He refers us to R v Jones (1988) Cr App R(S) 95, where the trial court ordered a fine of ๏ฟก100, the payment of compensation of ๏ฟก115, and prosecution costs in the sum of ๏ฟก583. In setting aside the costs order, Turner J observed:
127.Mr Chan argues that it would defeat the intention of the legislature to set a maximum penalty if a defendant in a disciplinary tribunal may face a substantially disproportionate order for costs. The prospect of facing such dire financial consequences will put strong pressure on a potential defendant not to defend the charges at all, and hence compromise his right of access to court or right to a fair hearing. 128.It is also pertinent to note the observation of Le Pichon JA in Au Wing Lun, William, CACV 4154 of 2001:
129.However, as regards the relationship between costs and penalty, I accept the submissions of Mr Westbrook and Mr Ho in unison that the English Divisional Court in Cozens v Hobbs [1999] COD 24 at page 26 aptly sums up the position:
130.In my judgment, while penalty and costs are not logically related, consideration should normally be given to their combined effect on the person who is subjected to the burden of paying both in connection with his financial capability and the appropriateness of the amounts. Other points relating to costs 131.Mr Chan submits that the Tribunal is obliged to inquire into the appellant's means before imposing an indemnity costs order. I do not think that this suggested obligation should apply as a rule in all cases. It should mainly depend on the amount of costs involved. If the costs are of such an amount that members of the solicitors' profession, including members of the SDT, can reasonably expect the person found guilty of a disciplinary offence would have little difficulty to pay, taking account of his standing and the general reputation as to the success or otherwise of his practice, then it is not incumbent upon the SDT to make any inquiry as to his ability to pay. On the other hand, if the amount involved is large by any standard and the person to bear the costs does not have a number of years of successful practice behind him (whether proved by evidence or known to the members of the SDT by way of general reputation), then it is at least advisable for the SDT to inquire of him if he is able to pay the costs, apart from the penalty that may have been imposed on him. Otherwise, the SDT may have to consider the possibility of bankrupting him and the effect that bankruptcy may have on his prospect of continuing to practise as a solicitor. Failing to make such a consideration may be construed as a contradiction as the SDT wishes to strike him off the roll but does not in fact do so by way of a striking off penalty. 132.It is also submitted that the appellant should not be put in a situation of double jeopardy, having to pay a heavy fine and then a huge costs order on top. Mr Chan also relies on the judgment on Dubin JA in the Canadian case of Re WD Latimer Co Ltd v Bray 60 R. (2d) 125, at 135, where the Judge said:
133.While I agree with Mr Chan that there should be no double penalty, I am not persuaded that the costs order in the instant case affects the livelihood of the appellant as a solicitor. As Mr Westbrook has pointed out, despite the Tribunal allowing the appellant to put before the Tribunal material concerning his financial position, the matter was not taken up further. In the circumstances, I am of the view that Mr Chan is ill supported in his submission that the appellant's livelihood would be affected by the order for costs. 134.I am also of the view that another aspect for the consideration of the SDT in awarding costs on an indemnity basis is the fact that a solicitor as opposed to a layman should normally be more aware of the significant weight that may be placed on his conduct of the proceedings in the consideration of the exercise of the discretion. The reasons for indemnity costs 135.The Tribunal gave reasons for the indemnity costs order that it imposed:
136.In the present case, while the representative of the Law Society submitted that an indemnity costs order was the "usual order", the fact that the Tribunal gave the above reasons seemed to indicate that it did not accept that submission, although the Tribunal had at one stage apparently considered penalty to include costs (see what the Chairman said as cited in para 47 above). It is therefore necessary for this Court to enter into a review exercise to the extent of judging whether the Tribunal was justified to make the indemnity costs order against the appellant. 137.Relating to the amount of costs and the costs order imposed by the Tribunal, Mr Westbrook relies on Hartmann J's judgment in Au Wing Lun William v The Law Society of Hong Kong HCAL 1942/2001 where the Judge said that indemnity costs order was not, in essence, punitive, but was "intended to do no more than indemnify the Law Society against loss." 138.While Mr Westbrook accepts the passages cited above regarding costs from the judgments of Rogers VP and Le Pichon JA in Au Wing Lun, William, CACV 4154 of 2001, he directs our attention to the reasoning of the Tribunal in making the indemnity costs order against the appellant, summarised as follows:
139.Mr Westbrook further submits that the Tribunal would know how much time was spent on just one out of the 12 charges and whether any significant time and costs were expended on it. Costs are for the discretion of the Tribunal, which discretion was recognised by Rogers VP. While I accept that the question of costs is entirely at the discretion of the Tribunal, as a power conferred on it by s 10(2)(e), I consider that its reason for imposing an indemnity costs order against the appellant that it regarded the complaint which was not proven as warranting investigation is unsound and is against the spirit of the rulings of Rogers VP and Le Pichon JA cited above. The reasoning in (d) above is of doubtful validity against a test of its applicability, eg, to a case where a lengthy investigation that was initiated by an apparently credible complaint that has turned out to be unsubstantiated: there is no basis whatever to impose any costs order on the person complained of. In my view, a solicitor who faces a complaint against him before a tribunal should normally not be mulcted in costs where the complaint is not made out. The complaint warranting investigation should not be a proper basis for awarding costs against the solicitor, unless as Rogers VP said, he "had raised issues or made allegations improperly or unreasonably." I consider that where costs have been incurred for the investigation and inquiry of an unsubstantiated complaint, no matter how meritorious it was to engage in the investigation and inquiry, that should properly be a situation covered by the general revenue under s 25 of the LPO. The Law Society can seek reimbursement of such costs as a necessary expenditure, and unless there are exceptional circumstances warranting otherwise it would not be reasonable for the SDT to pass the burden onto the person who has been cleared of the complaint. 140.Costs can always be apportioned. In this regard, it is pertinent to note the observation of Le Pichon JA in her judgment:
141.In this case, the Tribunal made the order for costs without the benefit of the said judgment, and could not therefore have taken heed of the observations of Roger VP and Le Pichon JA. 142.Regarding whether costs on a full indemnity basis should have been ordered, Mr Westbrook relies on Au Wing Lun William, HACL 1942/2001 and stresses that by the Tribunal has a duty imposed upon it by the Ordinance to make inquiries and as such its inquiry proceedings should be viewed differently from normal civil litigation in respect of costs. He draws assistance from the wording of s 10(2)(e), which specifically provides for the power to make orders for costs on a full indemnity basis before mentioning reasonable contribution towards those costs. He also distinguishes such disciplinary proceedings from normal civil proceedings in that the former are not taken for personal benefit. These contentions have already been dealt with. As I said before, the practice of treating a full indemnity costs order in cases of proven complaints as an "usual" order is, in my judgment, wrong. Such a practice would have the effect of inhibiting a bona fide defence and compromising the right of the person complained of to access to the SDT. Save for those to which I have expressed dissent, I consider the other submissions of Mr Westbrook correct, and they are proper considerations for the Tribunal's exercise of its discretion on costs, but a major part of the effect of the operation of the SDT for the public benefit should be considered as offset by the Law Society's ability to have resort to the general revenue pursuant to s 25 of the LPO. 143.Turning to the decision of the Tribunal, I consider that there is ample material in support of the Tribunal's view that time and thus costs had been wasted by the appellant in his not admitting complaints to which there was no real defence. The blatant examples of which are the facts set out in para 4(3) and (4) above forming the basis of respectively complaints A(iii) and B(iii) and complaints A(iv), B(iv) and C(ii), which regardless of explanations that could be proffered by the appellant (on oath or otherwise), were clearly borne out by the Affirmation of Mr Akram dated 24 August 1998 and, more significantly, the appellant's own admissions in his letter of 2 June 1999 and his affirmation of 20 December 1999 that he did not attend the prison on that day. Any possible explanations could only amount to mitigation and not a defence. The excuses now proffered by the appellant that he had a right to have the complaints proven are lame excuses that resulted in extra time and costs being incurred before the Tribunal. His status as a solicitor as opposed to a layman is also relevant to the consideration of the reasonableness of his conduct of the proceedings in this regard. 144.On the other hand, I am not at all certain as to whether the Tribunal had taken into account only the proper considerations for making the indemnity costs order against the appellant, especially in view of the wrong views taken by it on the various aspect relating to costs mentioned above. Conclusions 145.As I hold in para 39 above, complaints B(v) and C(i) should have been discharged. Before us, therefore, out of eleven complaints found by the Tribunal to have been made out, I would discharge two of them. In the circumstances, out of the twelve complaints originally laid, the Law Society was successful in proving nine. 146.The full indemnity costs order provided for in s 10(2)(e) of the LPO should not be a usual order. The normal principles for imposing an indemnity costs order in civil litigation should apply, save that heed must be taken not to inhibit the involved person's right of access to the SDT, under the common law, the Basic Law or the HKBORO, and consideration can be made of the gravity of the complaints laid and proven. 147.As I am not certain whether the Tribunal had taken into account only the relevant factors for making the indemnity costs order, I would remit the question of costs back to the Tribunal for its consideration, taking into account this judgment. 148.I would for obvious reasons remind future SDTs to state, albeit not necessarily in detail, the reasons for it to impose a full indemnity costs order. Costs of this appeal 149.Regarding the costs of the appeal, in the hope of avoiding wasting time and costs, I propose to make an order nisi. 150.At the commencement of the hearing before us, there was an application made by the appellant to add a ground of appeal. That was based on the statement of the Clerk to the Tribunal made by him in a letter that he had spent three hours on the drafting of the Ruling. Close to the time when the summons was taken out, the Clerk wrote a letter to clarify that in fact what he did was to check the Ruling drafted by the Tribunal very carefully for typographical mistakes, wrong references etc, but he played no part in the drafting. Mr Allan told us that he had not received this explanatory letter when he prepared the summons and the additional ground. Two affidavits, one from the Clerk and the other from the Chairman of the Tribunal were prepared and filed after the summons had been taken out. We read them de bene esse. We dismissed the summons, for the additional ground was based merely on a suspicion which had been cleared up by the Clerk's subsequent letter and further cleared up by the affidavits. We reserved the costs. I think that while it was proper for the additional ground as well as the summons to be prepared and filed, there was no justification for Mr Allan to have proceeded with the application before us at the hearing. I would make an order that the costs of the summons and the affidavits be borne by the respondent, but the costs of the portion of the time of the hearing for our disposal of the summons on 12 December 2002 be borne by the appellant. The basis is party and party. 151.The appellant is successful in appealing two out of the eleven complaints. Although his success is partial, he was compelled to launch the appeal even if he felt aggrieved by only those two complaints, for the appeal procedure was the only available avenue for him to air his grievance and obtain a remedy. However, he has failed on the remaining nine complaints. Relating to the costs issues, he has succeeded in persuading me that the right of access under the common law, the Basic Law and the HKBORO applies to disciplinary proceedings before the SDT, and his challenge to the indemnity costs order has resulted in my remitting the matter for a re-consideration by the Tribunal. I would make an order nisi that apart from the costs relating to the disposal of the summons referred to above, the appellant have two-thirds of the costs of this appeal, on a party and party basis. 152.I wish to record our gratitude to counsel for their tremendous effort in dealing with the constitutionality points, and in particular to Mr Ho, who has so graciously consented to be the amicus to assist us. Hon Cheung JA: 153.I agree with the judgment of Woo VP on the merits of the appeal and the orders he proposed to make. 154.As important questions have been raised on the application of the Basic Law, Hong Kong Bill of Rights Ordinance ("HKBORO") and International Covenant on Civil and Political Rights ("ICCPR"), I will give a separate judgment on this topic. Construction of section 10(2)(e) 155.It is apparent that in the past when the Solicitors Disciplinary Tribunal ("the Tribunal") made a costs order against a solicitor who had been found guilty of disciplinary offences, it would invariably order that the costs is to be paid on an indemnity basis. This can be seen from the appeal cases that came before this Court and from the published reports of the Tribunal. Indeed in the present case the solicitor acting for the Law Society had submitted before the Tribunal that this type of order was the "usual order". 156.It is therefore necessary to examine the ambit of section 10(2)(e) of the Legal Practitioners Ordinance ("the Ordinance"). 157.Counsel for the Law Society, Mr Westbrook SC, argued that when the Tribunal imposes a costs order, section 10(2)(e) requires it to be on an indemnity basis. However, he further argued that the Tribunal can still exercise its discretion in such a way so that in the end the solicitor will in effect only be required to pay costs on a party to party basis. Such a discretion is allowed under the final part of section 10(2)(e) which enables the Tribunal to order payment of an amount that it considers to be a reasonable contribution towards those costs. Indemnity costs not mandatory 158.I am unable to accept the argument. Section 10(2) empowers the Tribunal "to make such order as it thinks fit and any such order may, in particular, include provision for all or any of the following matters". These matters include section 10(2)(e) which provides that:
159.The words used in section 10(2) such as "as it thinks fit", "may" and "include" clearly point towards an exercise of discretion on costs which is not fettered by a mandatory requirement that such an order must be on an indemnity basis. While subsection (e) itself may give the impression of a mandatory requirement, this impression is dispelled if the legislative history of the Ordinance and the legal principle on the power of a tribunal to order costs are considered. Legislative history 160.Section 10 of Ordinance No. 6 of 1845 conferred the power on the then Supreme Court of Hong Kong to admit, remove and strike off solicitors. 161.The express power to remove a lawyer by the Supreme Court was further provided for in Ordinance No. 3 of 1871. 162.Section 33 of the Legal Practitioners Ordinance of 1948 (Ordinance No. 37 of 1948) further empowered the Supreme Court to delegate its power to a committee to inquire into the conducts of a solicitor. The Supreme Court had the power to award the Law Society reasonable costs and expenses it had incurred in such an inquiry. 163.Section 9(1) of the Legal Practitioners Ordinance of 1964 (Ordinance No. 16 of 1964) set up a Disciplinary Committee to inquire into the conduct of a solicitor. Section 10(2)(e) enabled this Committee "to make such order as it thinks fit and any such order may, in particular, include provisions for any or any of the following matters:
164.The current version of the Ordinance expressly provides for the costs order to be taxed on an indemnity basis. In my view this does no more than to confer an express power on the Tribunal to make orders on such a basis. It does not mean that the Tribunal is compelled to make such an order in every case. A tribunal is not a superior court of record 165.This express power is necessary because the Tribunal is created by statute. It is not a superior court of record which has the inherent jurisdiction to order costs including costs on an indemnity basis. 166.This distinction is fully examined by Kirby P in Walton v McBride (1995) 36 NSWLR 440. In another decision of this Court (Rogers VP, Le Pichon JA and Stone J) in A Solicitor v The Law Society of Hong Kong (CACV 221 of 2003) it was held that the power to order costs on an indemnity basis encompasses the power to award costs on the more restricted party and party basis. 167.I would respectfully adopt the same approach. If the Tribunal considers that the usual costs order must be on an indemnity basis because of section 10(2)(e) then such a view is clearly wrong. Contribution 168.The Tribunal has the express power to make a contribution order against the solicitor. This power will not assist the Law Society in its argument that an indemnity costs order is mandatory. The power to make contribution covers the situation of the solicitor being ordered to pay a certain percentage of the costs such as when only some of the charges are proved against him. Or this may include a fixed sum order where in some simple cases the costs involved are not really in dispute. Basic Law 169.If section 10(2)(e) requires the Tribunal to impose a mandatory indemnity costs order whenever costs are awarded against the solicitor (which is not the case here), then the constitutionality of this provision comes into issue. Such a provision in my view is unconstitutional because it impinges on the fundamental right of access to the courts guaranteed by Article 35 of the Basic Law. 170.In any event the exercise of the discretion to impose an indemnity costs must be such that it must not impair the access provision of Article 35. 171.I had in Dr Ip Kay Lo, Vincent v The Medical Council of Hong Kong [2003] 3 HKC 579 held that the word 'courts' in Article 35 is not confined to the courts in the traditional sense such as the High Court and other courts in Hong Kong but includes tribunals such as the disciplinary tribunal of the Medical Council. 172.The basis of my decision was that the Basic Law is an instrument which sets out fundamental principles rather than detailed provisions like an ordinary statute. One would not expect the Basic Law to give a detailed definition of courts and tribunals. The use of tribunals is so prevalent in Hong Kong that it will need a strong case to justify the exclusion of tribunals from coming under the general word "courts". I maintain the same view in this case. Nature of a tribunal under Article 35 173.That the word "courts" in Article 35 includes tribunals is accepted by the amicus, Mr Ambrose Ho SC. Mr Westbrook SC has not submitted any contrary argument. 174.It is not necessary to elaborate further on this issue. It is sufficient to recognize that Article 35 is one of the provisions of the Basic Law under the heading of "Fundamental Rights and Duties of the Residents". In construing these rights it is in my view permissible and relevant to take into account the provisions dealing with fundamental rights in international covenants which are binding on Hong Kong such as the ICCPR. The principles on human values are universal in nature and the protection of human rights is based on the rule of law. This Court (Nazareth VP, Liu and Mayo JJA) in Cheung Ng Sheong Steven v Eastweek Publisher Ltd and Another (1995) 5 HKPLR 428 recognized that our law should be developed by taking into consideration the international treaty obligations imposed on Hong Kong. 175.Article 14 of ICCPR guarantees a right of fair hearing before courts and tribunals. It is not confined to "courts" only. This right obviously includes the right of access to courts and tribunals. Hence it would be artificial to the extreme to confine the 'courts' in Article 35 to those in the traditional sense. Judicial function 176.For the purpose of Article 35, a tribunal must exercise judicial function. This is also accepted by Mr Ho. 177.In my view a tribunal will fall within Article 35 if it exercises a judicial function and its jurisdiction is not private or consensual. The exercise of judicial function clearly means that it will make determinations affecting the rights of the parties before it and such determination will be made on the basis of the rules of law and following proceedings conducted in a prescribed manner. This definition will exclude those organizations such as private members clubs whose decisions may also affect the "rights" of its members in matters such as the removal of membership. 178.See also the discussion on the meaning of tribunal under the European Convention on Human Rights by Grosz Beatson and Duffy in their work entitled Human Rights : The 1998 Act and The European Convention (2000) page 240 and also Wade and Forsyth, Administration Law (8th Ed) pp. 40-41. 179.In this case the Tribunal is set up by statute. Its powers include imposing on a solicitor financial penalty, suspension or removal from practice. It is inconceivable that the Tribunal does not come into the ambit of a court or tribunal envisaged by Article 35. How is the right of access to be exercised? 180.The Court of Final Appeal per Bokhary PJ in the recent case of A Solicitor v. The Law Society of Hong Kong (FACV No 7 of 2003) stated that
181.The common law itself recognizes the existence of such a right : R v Lord Chancellor Ex p Witham [1998] QB 575. Practicable consideration 182.The right of access has to be effective in order to ensure the fundamental rights of a fair hearing are to be properly exercised (Golder v United Kingdom (1975) 1 EHRR 524). In deciding whether this right has been infringed a practical approach has to be adopted. 183.Prohibitively high fees required for lodging a claim in court is an example of how the right of access to the courts can be restricted : Kreuz v Poland [2001] ECHR 28249/95. Another example is where a heavy financial consequence is imposed on a litigant upon exercising the right. Such a consequence may in practicable terms deter a litigant from exercising his right of access to the court : Luedicke, Belkacem and Koc v Federal Republic of Germany (1978) 2 EHRR 149. In that case the defendants in a criminal trial who were not familiar with the German language, were ordered to pay for the costs of interpretation following their conviction. The European Court of Human Rights held that such an order infringed the right of a fair trial. 184.On the other hand, the European Court of Human Rights in Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442 held that an order for security for costs of an appeal, which was to ensure that the respondent would not be faced with an irrecoverable bill for legal costs if the appellant was not successful in the appeal, did not infringe the right of access to courts. See also X v Sweden (1979) 17 DR 74. Balance to be struck 185.In each case a balance has to be struck. It is not argued by Mr Johannes Chan SC, counsel for the appellant, that payment of costs infringes the right of access to courts. The contention is on the indemnity aspect. Civil cases 186.In civil cases party and party costs is the norm. Indemnity costs is imposed in the rare and exceptional cases where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties : Lau Wong & Chan v Famous Investment Co Ltd [1991] 1 HKLR 115, Choy Yee Chun (the representative of the Estate of Chan Pui Yiu) v Bond Star Development Ltd [1997] HKLRD 1327 and Walton v McBride. 187.The rationale for imposing an indemnity costs order only in rare and exceptional cases is the consideration that it would impose a practicable difficulty for a litigant to access to court. Marshall JA of the Newfoundland Court of Appeal in Canada observed in Newfoundland Association of Provincial Court Judges v Newfoundland (2000) 191 DLR (4th) 225 at para 733 that :
Criminal cases 188.In criminal cases the Costs in Criminal Cases Ordinance (Cap 492) empowers the court to impose a costs order against a defendant who has been found guilty of a criminal offence. 189.Such an order must be exercised judicially and is imposed only in special circumstances such as the defendant intentionally delaying the case or insisting on the prosecution proving unimportant facts or undeniable facts. The court must also consider the financial condition of the defendant before deciding to impose the costs order : HKSAR v. Chan Kwok Wah [1999] 1 HKC 697 per Chan CJHC (as he then was). 190.The rationale is again such an order impinges upon the defendant's constitutional right of access to the court and entitlement to a fair trial. Disciplinary proceeding 191.A disciplinary proceeding is neither a civil nor a criminal case. It is hybrid in nature. 192.The Tribunal is not required to apply the criminal standard of proof but at the same time the standard of proof must be commensurate with the gravity of the charge. The more serious the charge, the higher is the standard of proof. Further the orders that can be imposed by the Tribunal such as financial penalty, suspension and removal from practice are clearly punitive in nature. 193.However, the approach taken by the courts towards costs orders in both civil and criminal cases must be applicable to that of a disciplinary proceeding. It must be in rare and exceptional circumstances that an indemnity costs order should be made. The circumstances must necessarily entail reprehensible, scandalous or outrageous conduct on the part of one of the parties. Access to court is deterred 194.If the indemnity costs order is assumed to be mandatory, either because of a misreading of section 10(2)(e) or because the Tribunal would as a matter of routine exercise the discretion in making such an order, it would infringe and is inconsistent with Article 35 because in practical terms it has the effect of deterring a party from exercising the right of access to the courts. 195.It makes no difference that such an order is imposed at the end of a proceeding because the consideration of the financial consequence of defending oneself in disciplinary proceedings may deter a party from exercising this fundamental right of access to the courts. 196.While the Law Society is entitled to recover the costs of the proceeding, to require an indemnity costs order to be imposed in every case is clearly disproportionate to this legitimate aim. It goes beyond the normal party and party basis of taxation which already strikes a balance between the conflicting interests of a party having the right of access to courts and a winning party being compensated for its legal expenses. It also ignores totally the additional conditions before an indemnity costs order would be imposed. Bill of Rights Ordinance 197.Article 10 of the HKBORO provides that a person faced with a criminal charge or involved in a suit of law which affects his rights and obligations is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. 198.As pointed out earlier this provision must be considered together with the access to court provision under the Basic Law. Section 7 199.The only issue under this topic is whether the HKBORO is applicable at all because of section 7 which states that the HKBORO binds only
Public Authority 200.I agree with Woo VP's analysis that the Tribunal is a public authority and hence the HKBORO is engaged between the Tribunal and the appellant. 201.However, Mr Ho argued that this is not sufficient for the purpose of section 7. The parties to the proceedings before the Tribunal were the Law Society and the appellant. The Law Society is present at the inquiry to prosecute the disciplinary charges. It is not suggested that the Law Society is a public authority. 202.The Council of the Law Society referred the complaint to the Tribunal Convenor ("the Convenor") of the Solicitors Disciplinary Tribunal Panel. The Convenor then appointed members to the Tribunal to conduct the inquiry. In view of the unique nature of a disciplinary proceeding, it may not be strictly accurate to describe the Law Society as a party to the proceeding or that the proceeding is concerned simply between the Law Society and the appellant, like parties in a civil suit. 203.However, even if the Law Society can be so treated, a more fundamental question is whether a person's fundamental right of access to courts and fair trial is dependent on the status of the other party as a public authority? On first principles this should not be the case. If the wording of section 7 is capable of being construed both in favour and against such an interpretation, then in my view it should be construed in a way in order to give effect to the application of the HKBORO. Tam Hing Yee 204.In Tam Hing Yee v Wu Tai Wai [1992] 1 HKLR 185, the plaintiff obtained judgment in default of defence on a money claim against the defendant. He then applied for a prohibition order under section 52E(1)(a) of the District Court Ordinance to restrict the defendant from leaving Hong Kong. HH Judge Downey refused to grant the order on the ground that section 52E(1)(a) was inconsistent with the right of freedom of movement provision under Article 8 of the HKBORO. 205.On appeal, this Court (Sir Derek Cons VP, Clough and Macdougall JJA) held that the HKBORO was not engaged because of section 7. The dispute in question was an "inter citizen dispute". Amendments to the Hong Kong Bill of Rights Ordinance 206.On the eve of the formation of Hong Kong Special Administrative Region ("HKSAR"), the Hong Kong Bill of Rights (Amendment) Ordinance 1997 came into effect. The amendment provided that
207.The purpose of the amendment clearly was to reverse the effect of Tam Hing Yee. The amendment came into effect on 30 June 1997. From that date onwards Tam Hing Yee would no longer be applicable because the application of the HKBORO is not excluded in litigation between private persons. If a similar situation like that in Tam Hing Yee should come to the court on 30 June 1997, the defendant obviously cannot invoke Tam Hing Yee to prevent the court from even considering the HKBORO. 208.It follows that when the HKSAR came into existence on 1 July 1997, Tam Hing Yee was no longer part of the law previously in Hong Kong and was not adopted as the law of the HKSAR under Articles 8 and 18 of the Basic Law. Since it is no longer part of the law of Hong Kong as from 1st July 1997 the case is no longer binding on this Court and this Court if free to look at the matter afresh. 209.The amendment was subsequently repealed on 28 February 1998 by the Provisional Legislative Council, under the Hong Kong Bill of Rights (Amendment) Ordinance 1998. By reason of section 23 of the Interpretation and General Clauses Ordinance, the repeal of the amendment, however, does not revive anything not in force or existing at the time at which the repeal takes place. This means Tam Hing Yee is still not part of the law of Hong Kong. The Canadian approach 210.As to the difficult question relating to section 7, the Canadian approach is instructive. Section 32(1) of the Canadian Charter of Rights ("the Charter") provides that
211.This is very much like the provision of section 7 although the two sections used different words such as "binds" and "applies". Hogg in Constitutional Law of Canada, 4th Ed, pages 835-861 discussed the ambit of section 32. I will summarise the position as follows :
The proper consideration 212.Hence in deciding whether section 7 applies in this case the status of the parties is only one factor to be considered. In my view the HKBORO will be engaged if the dispute is concerned with a legislation which is promulgated by the government through the legislative branch which also comes into within the definition of a public authority. After all section 3 clearly requires all pre-existing legislation to be construed consistent with the Bill of Rights. 213.Further, if the Tribunal, even in the adjudication of disputes of private individuals, makes an order pursuant to a statute, such an order is equally subject to the application of the HKBORO because the Tribunal is a public authority and is bound by the HKBORO. 214.In my view this is a more comprehensive interpretation of section 7. The fact that "individuals" is not mentioned in section 7 does not mean that the HKBORO is not applicable. Section 7 does not preclude the application of the HKBORO to the decision of the Tribunal which is a public authority on a matter of costs based on the Ordinance. For the reasons given in the discussion of the Basic Law which is equally applicable to the consideration of the HKBORO, I find that a mandatory indemnity costs order is further inconsistent with the latter. ICCPR 215.I would further agree with Woo VP's view on the application of the ICCPR. The present case 216.In this case it is apparent from the reasons given by the Tribunal that the indemnity costs order was imposed on the assumption that such an order was the norm. The mere fact that the charges (with the exception of one) had been proved against the appellant would not justify such an order. In imposing such an order it overlooked the fact that the appellant was acquitted of one of its charge. From the approach taken by the Tribunal, one can say that it had ignored the principle that it is only in rare and exceptional circumstances that an indemnity costs would be imposed. The fact that the appellant had not pleaded to the charges subsequently proven does not by itself justify the making of an indemnity costs order. 217.It is not clear why the conducts of the appellant came within the reprehensible, scandalous or outrageous test. Although the Tribunal had given the appellant an opportunity to disclose his financial position, the starting point must be that the grounds for such an order must be in existence before the order can be made. 218.I too would set aside the costs order and remit it back to the Tribunal for it to reconsider whether the indemnity costs order should be imposed, bearing in mind the proper test that this Court has decided upon. Appreciation 219.Finally I would also express my gratitude to the very able assistance we received from counsel in this case, in particular, I would thank Mr. Ho who appeared on a pro-bono basis. Hon Burrell J: 220.I have had the advantage of reading the judgments of Woo VP and Cheung JA. I agree with all the final conclusions and orders made therein in relation to this appeal save for two matters with which I shall deal briefly. 221.Firstly, in relation to the submissions made on the constitutionality issue of the indemnity costs order, the learned Vice-President concluded at paragraph 65 as follows:
222.What follows in relation to the Basic Law, Bill of Rights and the ICCPR is therefore obiter dicta. There is one issue therein upon which I have formed a different opinion. 223.In paragraph 97 the learned Vice-President states "I therefore come to the conclusion that the SDT is a public authority within the meaning of s 7(1) of the HKBORO." I do not share this view. Between paragraphs 82 and 97 the judgment sets out the competing factors both in support of and against the submission that the SDT be construed as a "public authority". It is unnecessary to repeat them all. 224.It is sufficient for my purposes to express my agreement with the reasoning of Hartmann J in Tse Wai Chun Paul v. Solicitors Disciplinary Tribunal, HCAL636/2001, which is summarized in paragraph 92 of this judgment. Of that reasoning Le Pichon JA, in the Court of Appeal, said "I am not persuaded that the judge's reasoning that the Tribunal is not a 'public authority' was wrong in any respect." 225.Put shortly, unlike the learned Vice-President, I am persuaded that those factors which point towards and suggest that the SDT is not a public authority are compelling. In my judgment, they demonstrate the correctness of the proposition that it is not a public authority and they outweigh the competing factors. The SDT is a statutory tribunal created for the purpose of exercising control over the conduct of the members of the Law Society and those who carry out the legal business of solicitors and their partnerships in Hong Kong. With that in mind and bearing in mind the factors referred to above the SDT does not sit well, in my judgment, within the category of bodies, namely "The Government and all public authorities" to which s 7(1)(a) of the Ordinance refers. 226.Secondly, on the question of the correctness of the costs order actually made by the Tribunal, namely the indemnity costs order, I would not remit it to the Tribunal for reconsideration. I would leave it undisturbed. 227.I agree with the observations made by Woo VP at paragraphs 143 and 146 of his judgment. However, for my own part, I consider there to be insufficient grounds for interfering with the discretion exercised by the Tribunal. The seriousness of the case was not, in reality, diluted by the charges which were not proven and the Tribunal gave reasons, which in my view were sufficient, why it ordered costs on an indemnity basis. The indemnity costs order was a mark of the Disciplinary Tribunal's disapproval which, in my judgment, was warranted in this case. 228.For the sake of completeness, as for the costs of this appeal, my order nisi would be that the appellant do have one-third of the costs on a party and party basis. 229.Subject to these two issues and the consequences which flow from them, I agree with all other matters dealt with by Woo VP and have nothing further to add. Hon Woo VP: 230.We are unanimous in holding that complaints B(v) and C(i) be discharged and that there be an order nisi that the costs of and incidental to the appellant's summons be dealt with in the way as set out in para 150. By a majority, we make the following orders:
Representation: Mr Johannes Chan SC (only on 13 and 14 January 2004) and Mr William Allan, instructed by Messrs Anthony Y L Au & Co, for the Appellant. Mr Simon Westbrook SC, instructed by Messrs Herbert Smith, for the Respondent. Mr Ambrose Ho SC (on 13 and 14 January 2004), amicus curiae. |
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