The Council of the Law Society of Hong Kong v. Tang Ming Fai Joseph Previously Practicing As Joseph Tang & Co (An Intervened Firm)

HCMP 227/2020

[2020] HKCFI 2992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 227 OF 2020

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D E C I S I O N

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An application to review the court’s order

1.Chui and Lau are the intervention agents appointed by the plaintiff to replace the previous intervention agents, to intervene in the practice of Joseph Tang and Co (“JTC”), a law firm.

2.By an originating summons, Chui and Lau sought the following orders pursuant to section 7(11) and (12) of Schedule 2 to the Legal Practitioners Ordinance Cap 159 (“the Hong Kong provisions”):

(1)     That the files of JTC and Mei Leong, Lam and Co (“MLLC”, of which JTC was the cessation agent) seized by the plaintiff (excluding the files with original title deeds and documents other than duplicate sale and purchase agreement or sub-sale and purchase agreement for sale or sub-sale of properties, original tenancy agreement or lease having expired for more than 7 years and sealed copy or a copy court pleadings) be destroyed:

(a)     Conveyancing files closed for more than 15 years;

(b)     General files closed for more than 7 years;

(c)     Tenancy files with tenancy agreement expired for more than 7 years; and

(d)     Criminal files closed for more than 4 years.

(2)     After the destruction of the files in paragraph (1), the remaining files of JTC and MLLC seized by the plaintiff be destroyed on a rolling basis as and when they satisfy the criteria in paragraph (1) (“the rolling destruction order”);

(3)     The following documents of JTC and MLLC seized by the plaintiff be destroyed:

(a)     isolated loose papers not put in any files;

(b)     files register books; and

(c)     accounting documents and office records, like vouchers, cheque books, accounts, bank statements, receipts, ledgers, fee notes and employers’ returns.

3.This court granted items (1) and (3) but declined to grant the rolling destruction order as no authority has been shown that the supervisory function of the court should be removed in such a broad brush manner.

4.Before the order was sealed, the plaintiff took out the present summons asking the Court to review its order and grant the rolling destruction order.

Legal principles

5.The Hong Kong provisions provide as follows:

“7(11) Without prejudice to the provisions of Part IIA of this Ordinance and this Schedule, the Council may apply to the Court of First Instance for an order as to the disposal or destruction of any documents in its possession by virtue of this section or section 8.

(12)   On an application under subsection (8) or (11), the Court may make such order as it thinks fit.”

6.So long as an order has not been sealed, a judge on the application of a party or on his own motion has the power to review it although such discretion must be exercised judicially and not capriciously: Hong Kong Civil Procedure 2020, Vol 1, §42/1/19.

7.It is undesirable for a court to be asked to reconsider an earlier decision unless there are exceptional circumstances or strong reasons for doing so.  Examples of strong reasons include a plain mistake on the part of the court, a failure of the parties to draw to the court’s attention a fact or a point of law that was plainly relevant, or discovery of new facts subsequent to the judgments being given.  These examples are not exhaustive.  See Sun Jianqiang v Trans-Island Limousine Service Ltd [2004] 1 HKC 533, at §§24-33, in particular §28.

Application of the legal principles

8.In the present case, Chui and Lau had failed to draw to the court’s attention a relevant authority.  In Re the Law Society (Solicitors Regulation Authority) [2015] EWHC 166 (Ch), the Law Society in England applied for, amongst others, destruction of non-original documents seized from 885 firms in intervention under paragraphs 9(10) and 9(11) of Part II of Schedule 1 of the Solicitors Act 1974 (“the UK provisions”), which were in identical terms with the Hong Kong provisions.  Deputy Judge Ian Purvis QC ruled that the application for a rolling destruction order should be allowed (at §43).

9.The English court alluded to the possibility that if the order was limited to approval of destruction of documents where at least 7 years have passed since the date of intervention, it would mean that immediately another backlog of documents which should be destroyed but were not covered by a court order would start to build up (at §46).

10.The learned deputy judge did not see why the order had to be limited in that way.  Even on the narrowest meaning of the powers of the court under the UK provisions, an order may be made in relation to any documents in the possession of the Solicitors Regulation Authority (“SRA”) at the date of the order.

11.By making an order which was not limited to the documents now ready for destruction, but extending to all documents presently in the possession of the SRA, the court would permit an immediate destruction of the backlog of documents which has built up over the last 7 years and then permit a rolling destruction of documents as in when the destruction fell due under the Law Society’s policy for the next 7 years.

12.Having considered the authority and the evidence, there was nothing to show a difference in circumstances in Hong Kong and UK which would warrant a difference in treatment of the papers seized by the plaintiff and its UK counterpart.  I am satisfied that I have the power to make a rolling destruction order and I so order.

13.The plaintiff did not ask for costs and I make no order as to costs.

14.I take this opportunity to remind practitioners that it is not appropriate to cite court orders in other cases as authorities.  In the present case, those orders cited were made in chambers and were not reportable.  In addition, they did not contain the reasons for the making of the orders.

Mr Lau Wing Keung of Chui & Lau, for the plaintiff

The defendant was not represented and did not appear