A Solicitor v. Law Society of Hong Kong
Read the full judgment text of CACV 8/1998 on BabelCite. This Court of Appeal judgment was delivered on 24 February 1998 before Nazareth V-P, Wong J, Sears J.
Civil procedure – appeal – extension of time to set down – factors – delay – reasons – merits – prejudice – solicitor – professional misconduct – suspension – no prospects of success – appeal struck out – costs. The appellant solicitor was found guilty by the Solicitors Disciplinary Tribunal of 10 complaints including misuse of client funds, failure to deliver accountant's reports, and other breaches of professional rules. He was suspended for 3 years and required to practise under supervision. He appealed but failed to set down the appeal in time. The Law Society applied to strike out the appeal; the appellant applied for an extension of time. The Court of Appeal, applying the four factors for extension of time (length of delay, reasons, chances of success, prejudice), found no merit in the appeal against findings or orders. The court noted that the appellant admitted the facts, that the Tribunal was well placed to assess sanctions, and that deferring suspension prejudiced the public. The court dismissed the appellant's application, granted the respondent's application, and struck out the appeal with costs.
Legal issues: Extension of time to set down appeal
Outcome: The appellant's application for extension of time to set down the appeal was dismissed; the respondent's application to strike out the appeal was granted; the appeal was struck out.
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CACV000008/1998 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL 1998, No. 8
------------------------------------- Coram: Hon Nazareth, V.-P., Wong and Sears, JJ. Date of Hearing: 24 February 1998 Date of Judgment: 24 February 1998 Date of Handing Down Reasons: 4 March 1998 ------------------------------------- REASONS FOR JUDGMENT ------------------------------------- Nazareth, V.-P. (giving the judgment of the Court) : 1. Two applications came before the court. The first by the respondent, the Law Society, made under O59 r14(1) of the High Court Rules to strike out the appeal for failure to set down in time. The second by the appellant for leave under O3 r5 and O59 r14 to set down the appeal out of time. Having heard counsel, we dismissed the appellant's application, granted the respondent's application and struck out the appeal. We also gave the respondent its costs in respect of both applications. We now give our reasons. 2. The appellant is a solicitor. The Law Society took proceedings against him before a Tribunal under the Legal Practitioners Ordinance (Cap. 159) on 22 and 23 September 1997 in respect of some 12 complaints. He was found guilty in respect of 10 of the 12 complaints essentially upon facts he admitted in most, and facts and the complaints he admitted in others. The complaints related to failure to deliver accountant's reports required under s.8(1) of Cap. 159, making payments on behalf of clients in excess of money held on account of the clients in breach of rules 7 and 8 of the Solicitors Accounts Rules, failing to answer correspondence promptly in breach of section 6.04 of the Hong Kong Solicitors Guide to Professional Conduct, failure to ensure cheques in settlement of fees were honoured in contravention of principle 13.02 of that Guide, failure to state his name and the name of counsel on documents in contravention of rule 5D of the Solicitors Practitioners Rules, failure to properly supervise the office of his firm in breach of rule 4A of the Solicitors Practice Rules, failure to honour professional undertaking given on behalf of his firm contrary to principle 14.01 of the Guide and failure to bill a client in accordance with the scale of costs prescribed by rule 3 of the Solicitors (General) Costs Rules. In addition, there was complaint No. 8, of which the Tribunal took the most serious view, which charged that without authority, he utilised his client's money to partially settle personal liability in breach of rules 7 and 8 of the Solicitors Accounts Rules. 3. The Tribunal imposed orders that the respondent be suspended from practice for a period of three years in total and thereafter be required to practise only as an assistant solicitor for a period of not less than two years under the supervision of an experienced solicitor of not less than five years standing. 4. The findings were pronounced on 14 November 1997 and the orders of suspension and supervision on 19 December. On 9 January 1998, the very last day within which that was to be done, the appellant filed a notice of appeal against the finding and the orders of suspension. However, he failed to set down the appeal within time and on 4 February 1998 the Law Society took out its summons to strike out the appeal for failure to set down the appeal. On 23 February 1998 the appellant in turn took out his summons for leave to be granted to set down his appeal notwithstanding that the time limit to do so had expired. 5. The appellant in his affidavit accompanying his summons simply mentioned the following matters. First, the time limit for setting down the appeal expired on 17 January 1998. On 23 January 1998 in response to a letter from the solicitors acting for the Law Society he wrote, stating that he intended to set down the appeal shortly after the Chinese New Year holidays. He submitted that the delay, though inexcusable, was not unduly lengthy. Second, he stated that the delay was because the appeal covered eight findings and seven orders or sentences and he wanted to take a bit more time considering the same before he set the appeal down. Third, he added that he honestly believed that he had a good chance of succeeding in part at least and that no irreparable prejudice would be brought to the respondent if leave was granted to him. 6. It is of course in the discretion of the court to grant or refuse an extension of time. The factors normally taken into account in deciding whether to grant an extension of time are:
7. It is convenient to deal first with the merits of the appeal. For the appellant, Mr Simon Westbrook who has not been concerned with the matter before and appears to have been briefed very late, has said all that possibly can be said for the appellant. As regards the appeal against the findings, he has not been able to present anything whatsoever of substance other than to say that while admissions may have been made as to the facts, those do not necessarily amount to the relevant complaints being established. There is nothing in that point. Given the admission of the facts we cannot see how the Tribunal could have failed to reach their findings that the complaints had been established. Mr Westbrook rightly focused more upon the orders of suspension and supervision. However even here, all he was really able to submit was that the suspension was "unnecessarily harsh". As to that, it has long been recognised that domestic tribunals of the present sort are peculiarly well placed to assess the matters that bear upon the sanctions they impose. There is nothing here to indicate that the orders made were wrong in principle or in any other way. The Tribunal cannot be said to have been wrong in taking a serious view of the breakdown of accounting, financial and indeed general management of the applicant's practice and above all of his use of client's funds for his own personal purposes. It was clearly entitled to impose long terms of suspension and supervision not only for the purpose of deterrence but also to protect the public who have every right to expect at least acceptable standards of practice and probity, the more so from officers of the court as this solicitor was. There is clearly no merit whatsoever in his grounds of appeal and no prospects of success. 8. We turn then to the degree of prejudice to the respondent. Notwithstanding what the appellant contends, his suspension had to be deferred pending his appeal, and in consequence he has remained in practice over the last three years since investigations began into his conduct, which dates to an even earlier period. There can be no doubt about the prejudicial nature of his continuing in practice, a situation which he appears to be disposed to prolong as much as possible. 9. Reviewing the four factors mentioned, although the length of delay is not great, no satisfactory reasons had been given for it. The chances of the appeal succeeding as we have said are virtually non-existent and there is clearly prejudice. Nor, are we impressed with suggestions that the setting down of the appeal is a formality of no real significance; the significance here is that it is an obstacle to a date of hearing being fixed and so the appeal being taken on to a conclusion. 10. We accordingly had no hesitation in rejecting the applicant's application for an extension of time within which to set down the appeal. Conversely, the respondent's application clearly succeeded, and the appellant's appeal had to be struck out.
Representation: Mr S. Westbrook (M/s Oswald Wong & Chan) for the Appellant/Respondent Mr Ashley Burns (M/s Deacons, Graham & James) for the Respondent/Applicant |