A Solicitor v. The Law Society of Hong Kong
Read the full judgment text of CACV 84/1995 on BabelCite. This Court of Appeal judgment was delivered on 12 June 1996.
1. The appellant is a solicitor, the sole proprietor of the firm J. Fang & Co. On 6 March 1995 a Solicitors Disciplinary Tribunal, upon the conclusion of disciplinary proceedings brought against him by the Law Society, found him guilty of professional misconduct in respect of a total of 84 complaints. Various penalties were imposed. It is common-ground that the order imposing those penalties cannot stand because the appellant was not given an opportunity to advance matters in mitigation followin
Cited by 8 cases
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IN THE COURT OF APPEAL 1995, No. 84 Headnote Findings of professional misconduct by Solicitors Disciplinary Tribunal - Appeal to Court of Appeal under s13(1) Legal Practitioners Ordinance, Cap 159. Court of Appeal held: Having regard (1) to the unsatisfactory way in which the proceedings were conducted (2) the tribunal's failure to deal with the real issues (3) the lack of findings of material fact and (4) the equivocal nature of the findings of misconduct, all the findings must be quashed. Observations of Court of Appeal on:
IN THE COURT OF APPEAL 1995, No. 84
--------------------------------------------------- Coram: Hon Litton, V.-P., Bokhary and Liu, JJ.A. in Court Date of hearing: 2, 3, 10, 15, 24 May 1996 Date of handing down judgment: 12 June 1996 ---------------------- J U D G M E N T ---------------------- Litton, V.-P., giving the judgment of the Court: Introduction 1. The appellant is a solicitor, the sole proprietor of the firm J. Fang & Co. On 6 March 1995 a Solicitors Disciplinary Tribunal, upon the conclusion of disciplinary proceedings brought against him by the Law Society, found him guilty of professional misconduct in respect of a total of 84 complaints. Various penalties were imposed. It is common-ground that the order imposing those penalties cannot stand because the appellant was not given an opportunity to advance matters in mitigation following the tribunal's findings of guilt on the 84 complaints. To that extent at any rate the Law Society accepts that there was a material irregularity in the course of the proceedings. It is the appellant's case that the inquiry was not only flawed in that respect: it was fundamentally flawed by reason of (i) other procedural irregularities and (ii) errors in the tribunal's findings of guilt in relation to specific charges; it is the appellant's case that the tribunal's findings of misconduct on the 84 complaints must be quashed or alternatively reversed, pursuant to s13(1) of the Legal Practitioners Ordinance, Cap 159. The complaints 2. The appellant originally faced 119 complaints before the tribunal. These had come from 33 firms of solicitors and 12 members of the public. They all related to conveyancing transactions handled by the appellant's firm between the years 1988 and 1993. In relation to the 84 complaints on which findings of professional misconduct were made, there were a total of 43 conveyancing transactions involved. In the majority of them the appellant's firm acted as solicitors for the vendor or sub-vendor; in some cases the firm acted as solicitors for the mortgagor or purchaser, and in one case as solicitors for the mortgagee. The transactions were by no means straight-forward. The bulk of the complaints - though not all - fell into three categories: (i) breach of undertaking, (ii) failure to deal promptly with correspondence from other solicitors and (iii) failure to "give any or any sufficient and satisfactory answer to the Law Society's enquiries". History of proceedings 3. On 15 October 1993 Mr R.A. Harrod, the Law Society's Director of Compliance, made an affidavit setting out the matters of complaint for the Council's consideration. In this affidavit Mr Harrod did no more than to state the effect of the correspondence in the Law Society's files, relating to the conveyancing transactions involved, and the conclusions which might reasonably be drawn from a reading of such correspondence. Mr Harrod had no personal knowledge of any of the transactions; his oath, given as maker of the affidavit, added nothing to the contents of the letters themselves. The letters were not exhibited to the affidavit. 4. The Council, pursuant to Rule 4 of the Solicitors Disciplinary Tribunal Proceedings Rules Cap 159, after considering Mr Harrod's affidavit, transmitted the material to the Tribunal Convenor who then convened the tribunal, consisting of two solicitors and a lay person, to hear the complaints. 8 December 1993 5. The first hearing took place on 8 December 1993 at which Mr Harrod, the applicant, was represented by a solicitor but the appellant (the respondent in those proceedings) was unrepresented. The proceedings commenced with a statement by the chairman that on the basis of Mr Harrod's affidavit of 15 October 1993 alone - without, apparently, having considered the correspondence referred to in the affidavit - the tribunal had decided that a prima facie case of professional misconduct had been shown against the appellant. 6. The tribunal then proceeded to give directions for the further conduct of the inquiry. 7. But, because it was then discovered that there had been previous proceedings which were aborted, no directions were in fact given and the matter was adjourned. In the meanwhile Mr Harrod made a second affidavit setting out further complaints, including 31 of failure to deal promptly with correspondence from other solicitors. This brought in, by reference, a huge volume of correspondence. 24 February 1994 8. The tribunal reconvened on 24 February 1994 when the chairman stated that the tribunal had considered the additional complaints made in Mr Harrod's second affidavit and had decided that "those complaints disclosed a case to answer". The tribunal proceeded to give directions for mutual discovery and for mutual notices to admit documents and facts. The appellant was ordered to file within 28 days an affidavit in response to Mr Harrod's affidavits and to "detail the current status of the matters complained of and what actions (had) been taken in that regard". 9. Mr Harrod was ordered to file an affidavit in reply within 28 days, the affidavits to stand as evidence-in-chief. The tribunal appointed 11 May 1994 as the day for hearing the complaints. 10. Pausing here to consider what was in the tribunal's mind, the situation must surely be this: On the basis of Mr Harrod's two affidavits, the tribunal was satisfied that there was a prima facie case of professional misconduct against the appellant on the 119 complaints; the appellant had a "case to answer"; if he wished to answer that case by evidence, he was to do so by lodging an affidavit within 28 days. It must logically follow from this order that if the appellant chose not to serve notices to admit facts and documents and not to lodge an affidavit, he had, in effect, elected not to adduce evidence at the hearing. 11 May 1994 11. On 11 May 1994 the prosecutor opened the proceedings by stating that the applicant had complied with the directions of 24 February but the appellant had not done anything in accordance with those directions. The prosecutor then stated:
12. The prosecutor then referred to Rule 36 of the Solicitors Disciplinary Tribunal Proceedings Rules: All the documents set out in the notice to admit documents were deemed to have been admitted: the applicant relied upon those documents in substantiation of his case. The prosecutor then added: "Sir, as I have said, since there are no contradictory evidence being supplied by the respondent, all the facts have been proved by way of the 1st and 2nd affidavits of Mr Harrod and by way of the documents having been supplied. So relying upon that I submit that all the charges, altogether totalling [119], have been proved." Logically, if the tribunal was intending to adhere to the procedure previously laid down, the prosecutor had, at that point, closed his case. 13. This was not how things were perceived. Upon the conclusion of the prosecutor's opening statement, the appellant was invited to "respond". What exactly he was supposed to respond to is not clear: unless it was, in effect, to make his final submissions, since he had chosen not to adduce any evidence. In the course of a long and rambling speech the appellant made a number of significant points:
14. Eventually, the hearing was adjourned, but only after the tribunal had issued fresh directions, with fresh time limits, along the lines of the directions made on 24 February 1994. In effect, the appellant was given a fresh opportunity to make his defence. 2 August 1994 15. The tribunal reconvened on 2 August 1994. The prosecutor opened the proceedings by stating that he had heard nothing from the appellant since the last hearing but was ready to proceed to "prove" the case against him. 16. So the prosecutor opened the applicant's case (in effect for the second time) by reading out a long written statement. Paragraphs 13 - 16 of the statement are relevant:
17. The prosecutor then took the tribunal through a number of specific complaints:
18. The prosecutor then referred the tribunal to the general question of a solicitor's duties; previous cases of professional misconduct dealt with by other tribunals were cited. 19. In closing his case, the prosecutor said this:
20. It was at this point that things went seriously wrong. The appellant, not having adduced any evidence, as he had been given the opportunity (twice) to do, should have been invited to make his final submissions on the case as presented by the applicant. This did not take place. Instead, there was a long exchange between the chairman and the appellant concerning his position. It began with a statement by the appellant as follows:
21. The chairman then asked:
22. It is not clear why, at that stage, the appellant was being asked if he admitted the complaints: It should have been apparent from the appellant's statement on 11 May that he was not admitting the complaints: If he had admitted the complaints, there was no need for the prosecutor to prove his case as he had purported to do. 23. By his reply it became clear that whilst the appellant was, in very general terms, prepared to admit the primary facts averred in the complaints (other than Nos. 47, 49 and 72), he was not admitting that proof of those facts amounted to professional misconduct. 24. There then followed a long rambling discussion about missing documents: In particular, a letter of 29 February 1992 which the prosecutor had failed to disclose. This was a letter in which the appellant complained to the President of the Law Society concerning the system of completion by undertakings. This then led to lengthy statements by the appellant as to how "during the hey-days of 1989 - 1991" out of every hundred cases of conveyancing, 99 cases would result in some breach of undertaking. The appellant detailed the difficulties of the small firms being let down by banks, clerks etc. 25. It is unnecessary to set out the unstructured debate between the chairman and the appellant. The chairman was, doubtless, trying his best to understand the nature of the appellant's defence, presented in a highly garbled fashion. However, in terms of a disciplined conduct of the enquiry, it would have been better if the appellant had simply been left to make his submissions uninterrupted by interventions from the tribunal - however well-intentioned those might have been. 26. There was, at one stage, a long debate between the chairman and the appellant as to who, in a one-man firm, should carry responsibility for breaches of undertaking. An example of this debate is as follows:
27. Pausing here, it is disturbing to note the total rejection by the chairman of the point the appellant was advancing, categorising it as "completely irrelevant". He was simply trying to make the point that the charges of professional misconduct were directed at him personally. 28. The tribunal was entitled of course to expect high professional standards from solicitors generally; but at the end of the day the appellant must be found personally culpable in some respects before he could be convicted as charged. There is a distinction between civil liability as the proprietor of a one-man firm, and professional misconduct. The chairman appears, from the passage cited above, to have lost sight of this point. His earlier suggestion that "in a firm 80 partners" all would be responsible is valid of course in terms of civil liability, but it would be absurd to suggest that all 80 partners could be found guilty of professional misconduct. The blurring of this distinction, a theme throughout the proceedings, was never corrected by the prosecutor. 29. Following the debate between the chairman and the appellant as summarised above, there ensued a long discussion of complaint No. 47, covering over 20 pages of transcript. 30. After complaint No. 47 was seemingly dealt with, there then followed another long debate concerning the system of completion by undertakings. The following is an example:
31. In the course of this debate, the lay member of the tribunal intervened and this went on until the end of that session when the hearing was adjourned to 4 August 1994. 4 August 1994 32. The hearing on 4 August 1994 began with the chairman expressing his concern over the fact that an averment of fact in complaint No. 47 seemed plainly wrong. There, the appellant had acted for a bank mortgagee, and complaint No. 47 accused him of failure to register the assignment and mortgage in time. The averment in that complaint, that the appellant did not register those documents until April 1991, was wrong by nearly a year. The memorials produced by the appellant showed that they had been registered on 1 May 1990. The chairman asked whether there were similar errors in relation to complaints No. 74 and 80 (which also dealt with the late registration of title deeds) and asked for a corrective affidavit to be lodged. 33. That problem having been disposed of, the tribunal then adopted a curious procedure. The appellant was sworn as a witness: thereby, in effect, nullifying the orders of 24 February and 11 May that evidence from the appellant should be by affidavit. 34. Over the next 25 pages of the transcript the appellant dealt, essentially, again with complaint No. 47. The appellant then produced a photocopy of a hand-written letter from him to the Law Society dated 12 October 1992 (exhibit JF2) which had not been previously included in the bundles prepared for the hearing. Curiously, the appellant made little of that letter at that stage, but in the outcome it had a profound effect. In exhibit JF2 he gave explanations in relation to a substantial number of transactions and this resulted in his being eventually found not guilty on 15 out of the 119 complaints. 35. After a short adjournment on the morning of 4 August 1994 the hearing resumed when the appellant then dealt with complaint No. 49 - an allegation that he had prepared a grossly irregular deed of assignment, or, alternatively, "allowing or failing to take adequate measures to prevent [his] employee from preparing a grossly irregular deed of assignment for his client's execution". His explanation (which covered another 20 pages of transcript) was to the effect that the transaction was handled by a solicitor Mr Kelvin Ng without his knowledge and when he discovered the irregularity he took appropriate steps to remedy the position. In the outcome, his explanation was accepted by the tribunal and this resulted in his being eventually acquitted on complaints No. 49, 50 and 51. 36. In the afternoon of 4 August 1994 the hearing resumed with a long rambling statement concerning conveyancing practice in Hong Kong generally. Eventually the lay member of the tribunal intervened:
37. The appellant then, on the tribunal's invitation, dealt specifically with complaint No. 1 and pointed out the fact that no draft undertaking had been submitted by the purchaser's solicitors before the balance of the purchase price was sent on the day fixed for completion: by that time, the appellant had no alternative but to accept the terms of the undertaking thus imposed, including the time limit of 17 days to produce the title documents. The explanation given by the appellant (covering numerous pages of transcript) was along these lines:
38. In the course of his "evidence" (which at times was more in the nature of a debate with members of the tribunal) the appellant put before the tribunal two documents from the Law Society dated respectively 15 February 1993 (exhibit JF4) and 27 July 1993 (exhibit JF3) as follows:
39. The appellant was asked to explain the relevance of introducing exhibits JF3 and JF4 which resulted in further lengthy statements which must have tested the patience of the tribunal to breaking point. Before the hearing on 4 August ended, the appellant was asked to make a schedule relating to the breaches of undertaking, to show what the "current status" was relating to those undertakings. The appellant's reply (at 5/0675) was as follows:
40. Shortly thereafter the hearing was adjourned. 8 August 1994 41. The hearing on the afternoon of 8 August 1994 began with a request by the appellant for a transcript of the proceedings up to that point. This, if granted, would have meant an adjournment. The chairman indicated the tribunal's willingness to adjourn, and accede to the appellant's request, provided that the rest of the appellant's evidence should be in the form of an affidavit, to which the appellant agreed. There was, however, a lengthy discussion as to the contents of that affidavit. The appellant was asked if by searching his records, he would be able to ascertain if the undertakings had since been complied with. The chairman said (at 2/0688):
42. The transcript then reads:
43. Eventually the tribunal made an order as follows:
The terms of the order are:
19 August 1994 44. When the hearing resumed on 19 August 1994 the appellant raised two matters:
45. The matter having been raised, the appellant then "tendered himself for cross-examination". 46. The offer was not taken up but the appellant was invited by the chairman to make submissions. This covered pages 2/0700 to 2/0753 in the transcript. Then there was this exchange:
47. After a few more pages the following exchange took place:
48. The prosecutor was given leave to file an affidavit "in response" and to cross-examine the appellant on his evidence both oral and by affidavit. 49. The appellant was then asked if he had finished his submissions and he replied "I think so". The hearing that afternoon was adjourned. 23 August 1994 50. The hearing resumed on the afternoon of 23 August 1994 when the chairman dealt with the appellant's complaint of apparent bias. The matter was not resolved. Before the hearing was further adjourned, the chairman addressing his remarks to the prosecutor stated:
51. The prosecutor's response was as follows:
On this basis the hearing was adjourned. 1 December 1994 52. At this hearing the prosecution was represented by counsel Ms Maria Yuen who dealt exclusively with the question of apparent bias. This covered over 70 pages of transcript and resulted in the appellant's allegation being rejected; he was ordered to pay the Law Society's costs on a full indemnity basis. 14 December 1994 53. The chairman opened the hearing by saying:
54. Mr Ngai, resiling from the position previously adopted by Mr Yiu (who had indicated willingness to exhibit all the relevant files), stood firm on the Tribunal Proceedings Rules and the orders previously made by the tribunal: He took the stance that as the applicant had disclosed all the documents on which he intended to rely (invoking in effect Rule 9 of the Tribunal Proceedings Rules), it was for the appellant to rebut the case as presented. 55. This then led to another lengthy exchange between the appellant and the tribunal of which the following is a small excerpt:
56. Pausing here, it is worth observing that the first hearing of the tribunal commenced a year before (on 8 December 1993) and the appellant had appeared repeatedly before the tribunal. What the appellant was saying - though not in a clear and structured fashion - was that there could well have been letters in the Law Society's possession - similar to the letter of 12 October 1992 exhibit JF2 - showing that he had responded to other enquiries from the Law Society, thereby indicating his innocence on other complaints. And he was also telling the tribunal that as he did not personally handle all correspondence from other firms of solicitors, the failure to answer those letters could not in every case be laid at his door: He was, of course, responsible ultimately for all his staff, being the sole proprietor of his firm, but professional misconduct in consequence of such failure was another matter. So he was insisting on the applicant strictly proving his case. But the tribunal had by this time lost patience with him. The point that there might be material in the possession of the Law Society relevant to his defence simply got lost in the dialogue which ensued. The waters were muddied further by the appellant making two applications to the tribunal which were quite frivolous: (i) An application to the tribunal to "review" its ruling made on 1 December, which was declined; (ii) an application to the tribunal that they should discharge themselves from further hearing the complaints. This too was dismissed. 57. At about 4.40pm the appellant was invited to make his final submissions. The appellant asked for time to "put up a sort of written submission" but this was refused. He was asked to address the tribunal immediately. Not surprisingly, the appellant was caught off-guard since, originally, the hearing on 14 December was intended merely for the tribunal to give directions concerning the further disclosure of material by the Law Society. 58. The appellant said:
59. There was a further exchange between the chairman and the appellant and eventually he was given 5 minutes to prepare his submissions. 60. The tribunal adjourned briefly and heard the appellant, whose further submissions occupies over 20 pages of transcript. 61. Thus, the enquiry came to an end. Has there been a proper enquiry? 62. The problem which afflicted these proceedings from the outset was the sheer number of complaints, some of them going back to the year 1988. The breaches of undertaking formed the core of the complaints; but the circumstances of the breaches, and the way the appellant's firm dealt with them (or failed to deal with them) differed from case to case. The 119 complaints can be broken down into the following:
63. Before the question of procedural unfairness can be properly determined, the relevant issues must first be identified. Breach of undertaking 64. Turning first of all to the complaints of breach of undertaking, Ms Yuen makes the following points: Completion by undertakings relieves solicitors from the obligation to deliver the executed assignment and title documents and to perform other tasks such as the apportionment of rates and expenses on the day fixed for completion; the solicitor for the vendor would know at the requisition stage what documents might be needed on the day fixed for completion; he would also know three working days in advance whether the purchaser was calling for formal completion; so the undertakings "imposed" on the solicitor at the last minute should come as no surprise; the time limits (17 days, 21 days etc for completion) are well-known to practitioners. Thus, a breach of undertaking is prima facie misconduct. 65. In an ideal world, breaches of undertakings in conveyancing matters would be rare. But the tribunal clearly did not take the view that the mere fact of breach necessarily amounted to professional misconduct: if they had, they would not have acquitted the appellant of Complaint No. 31. There the appellant's firm acted as solicitors for the vendor; the title deeds should have been sent to the purchasers' solicitors by 17 April 1990, but the undertaking was not fully discharged until 20 August 1991, after repeated requests by the purchasers' solicitors, ending with a formal complaint to the Law Society. The tribunal nevertheless found the appellant not guilty of professional misconduct because the appellant had taken steps to deal with the purchaser's solicitor's complaint: that is, he had "contacted [the solicitor] personally and apologised to him for his firm's tardiness" and had asked that solicitor to liaise with him for any follow-up which was required. 66. Likewise in relation to complaint No. 47. There, the appellant's firm as solicitors for the purchaser had given an undertaking to Messrs Li and Cheung to settle the apportionment account when received. It was received on 28 February 1990 but the firm delayed in honouring the undertaking for nearly a year. It was eventually settled on 4 January 1991, but only after repeated requests by Messrs Li and Cheung and a complaint to the Law Society. The tribunal considered the complaint "a minor and insignificant matter" and made "no finding" in relation to that complaint. 67. What this clearly demonstrates is that, in considering the matter, the tribunal felt it necessary to look at the breach and its consequence in the round; it was not a case where a finding of professional misconduct could be made from the mere fact of breach. 68. This approach is entirely consistent with the Law Society's policy for dealing with complaints of breaches of undertaking by solicitors. It was to encourage the "cordial resolution" of disputes, thus saving "the time and expense of referrals to the Law Society" (see the circular of 27 July 1993 referred to earlier): it was not to treat the breaches of undertaking as per se professional misconduct. 69. This view is reinforced when one considers the successive annual reports of the Law Society. For example, in the report for 1991 there is the following: 43% of all complaints related to breaches of undertaking, and 71% of those arose from conveyancing. But in relation to the seven disciplinary committees appointed in 1991, none was for breach of undertaking in a conveyancing matter. This could not have happened if a strict view had been taken of breaches of undertaking. In the 1992 report there is the following statement:
70. In the 1993 report, there is a reference to the reduction of allegations of breach of undertaking, as a result of the "success of the conciliation scheme". 71. It is clear from this material that solicitors as a body did not regard breaches of undertaking in conveyancing matters as per se professional misconduct. And when such events arose, as they did frequently, the governing body encouraged settlement between the solicitors themselves. It did not treat each case as prima facie misconduct, fit to be dealt with by a disciplinary tribunal. 72. The tribunal's finding on complaint No. 31, in effect, established the benchmark for judging the other cases. Plainly, the tribunal cannot properly set different thresholds for different breaches of the same undertaking. The tribunal is entitled to expect solicitors to maintain high professional standards, but in making findings of professional misconduct it must be consistent in this regard. What this means is that the tribunal was required, in relation to the other 30 conveyancing transactions in which there were also breaches of undertakings, to subject them to the same scrutiny as they did with complaint No. 31. Without such scrutiny, it would not have been possible to conclude whether the appellant was guilty of misconduct or not. And, as regards the standards of professional conduct, the tribunal plainly cannot be out of line with the views of the governing body of the Law Society, and with the majority of members themselves. 73. Moreover, as is clear from the circular dated 27 July 1993 (Ex JF4) the questions such as "was the partner at the firm aware of the breach", "what efforts did he make to resolve the situation" etc, were plainly relevant to the consideration of guilt. This underlines once again the distinction between civil liability and professional misconduct. Failure to give "any or any sufficient and satisfactory answer" 74. The formal complaints lodged against the appellant alleged that, in relation to each breach of undertaking, he failed to give "any or any sufficient and satisfactory answer to the Law Society's enquiry". 75. As can be seen, the complaint makes an allegation in the alternative. There is a considerable difference between a solicitor's failure to give any answer to the Law Society's enquiry and the case where he fails to give any sufficient and satisfactory answer. If the former were the case, professional misconduct would be easily established. But if the latter were the case, the tribunal would have to examine the nature and quality of the reply before it could safely convict. Given the way the proceedings were conducted, did this take place? 76. Since the tribunal was, upon the conclusion of the hearings, constrained to deal with 119 complaints, to have set out their findings in detail would have been an almost impossible task. So, by necessity, their findings had to be terse to the extreme. As such, this cannot be criticised: so long as the findings of fact are sufficient to justify the conclusions of guilt. We will, later on in this judgment, examine in greater detail some of those findings, but this general observation can at this stage be made: the meagreness of the tribunal's findings has rendered the task for this court even more difficult. Ms Yuen, counsel for the Law Society, has invited us to infer certain findings which would justify the tribunal's conclusions. This cannot be right. Having regard to the manner in which the proceedings were conducted, such an approach would only be justified if the evidence in that regard tended all one way. 77. Another general point should be made. As mentioned earlier, the production by the appellant of a copy of his letter of 12 October 1992 in the course of the hearing resulted in 10 of the complaints of failing to give satisfactory answers to the Law Society being eventually dismissed. It is disturbing to know that the original of this letter has throughout been in the Law Society's possession, undisclosed. Whilst technically the Law Society was not at fault - Rule 9 of the Tribunal Proceedings Rules only requires each party to furnish a list of documents on which he intends to rely - it heightens the possibility that there may be other letters (or notes of telephone conversations) exculpating the appellant in other cases as well. 78. It is clear that when the appellant has told the Law Society that efforts were being made to resolve the matter with the solicitors on the other side, this is deemed a sufficient explanation by the tribunal: Hence the dismissal of complaints No. 32, 38, 46, 62, 71, 73, 75, 81 and 85. And yet, similar explanations given in relation to complaints No. 4, 30, 36 and 57 did not result in those charges being dismissed. Ms Yuen suggests that the relevant letters might simply have been overlooked by the tribunal. This is disturbing. 79. In relation to complaint No. 28 the appellant has recently found a copy of a letter from him in response to the Law Society's enquiry. It is a letter dated 4 January 1991 in which he stated:
80. Ms Yuen asks us not to receive such letter into evidence on "Ladd v. Marshall principles": referring to Ladd v. Marshall [1954] 1 WLR 1489 governing the exercise of discretion under Order 59 r10(2). This submission is surprising. The Law Society is not in hostile litigation with the appellant. If further evidence casts doubt on the soundness of a particular complaint it is difficult to see why this court should refuse to receive it - unless the failure to adduce the evidence is on account of trickiness or conduct of that kind on the part of the appellant. Here, the fault (which led the appellant into trouble in the first place) is gross inefficiency and bad office management. There has been no attempt to over-reach. The letter of 4 January 1991, if produced before the tribunal, would probably have led to an acquittal of complaint No. 28. Failure to deal promptly with correspondence from other solicitors 81. Here, the professional misconduct, if such be the case, must be focussed upon the appellant's failure: hence the relevance of such questions as "was the partner at the firm aware of the breach", etc. 82. The tribunal was of course entitled to infer from the circumstances of a case that, given the nature of the complaint from the other solicitor, the appellant must have been told of the problem by his staff. What the tribunal was not entitled to do was to convict without any reference to the correspondence, as if there had been a blanket admission of every statement of primary fact in the 119 charges. Admissions of fact 83. We have given this matter our most anxious consideration. The appellant seemed at one time to have been saying that he admitted all the statements of fact except in complaints No. 47, 49 and 57. But that was in fact not so, upon a careful scrutiny of the whole of the transcript; nor was it so understood by the chairman. An extract from the transcript of the hearing on 14 December (the last day) is relevant:
84. Repeatedly, the appellant said he required the applicant to prove his case - and, in his vehemence, even called in aid the Bill of Rights. The tribunal could not, in the end, have understood him to have made clear and unequivocal admissions of fact. What did fair enquiry entail? 85. Plainly, the tribunal was obliged to resolve the true issues, before it could properly convict. 86. The broad question then is whether the proceedings were conducted in such a manner as to enable the real issues to emerge, and for them to be fairly resolved. A more basic point 87. Mr Michael Thomas QC, Counsel for the appellant, says that there is a more basic point. Quite apart from failing to deal with the real issues, there was in fact a denial of due process; procedurally, the enquiry was so flawed that we do not even need to go on to examine the evidence, to see how the tribunal made their findings of guilt; however strong the evidence may seem on individual charges, if there had been a denial of due process, the findings must as a matter of law be quashed in their totality. He relies upon the statement of principle by Lord Bridge in Lloyd v. McMahon [1987] AC 625 at 702:
Prima facie case 88. The first point Mr Thomas takes is this: Before a complaint can properly proceed to a hearing, Rule 8(1) of the Solicitors Disciplinary Tribunal Proceedings Rules requires that a "prima facie case is shown": that is, shown upon the face of the affidavit lodged in accordance with Rule 3. Rule 8(1) states:
89. The affidavits in this case were made by Mr Harrod who knew nothing of the matters in the complaint. Some of these complaints, by the time the tribunal commenced its hearings in December 1993, were plainly stale. Mr Thomas makes two submissions:
90. If either of these points be valid, Mr Thomas submits that the findings of misconduct must be quashed in their entirety; there is no need to look further and consider the evidence as a whole. 91. We cannot accept these submissions. As to (i), Rule 8(1) is clear enough. The tribunal's duty was to entertain the application made under Rule 3 and to consider if a prima facie case was shown. Normally, before a complaint is submitted to the Tribunal Convenor under Rule 4, the Council would have heard from the solicitor concerned. Rule 6(1) then provides:
92. Rule 8(1) is the obverse of Rule 6(1). Just as the application may be dismissed without hearing the applicant, so the tribunal can fix a day for the hearing without first inviting the solicitor to respond. 93. As to (ii), Mr Thomas' submissions take too narrow a view of Rule 8(1). Whatever might have been the position prior to the first hearing, the fact is that the notice to admit documents was served and the documents were properly brought before the tribunal when the hearings began. This is, however, far from saying that a finding of professional misconduct was necessarily justified. Due process 94. Mr Thomas makes the further additional points. He says, having regard to:
95. We regret to say that there is considerable strength is these submissions. The tribunal should have realised, after the appellant had outlined his case on 11 May, that the prosecutor's "shot-gun approach" was oppressive; from the sheer number of complaints alone the tribunal should have realized that it was well-nigh impossible to deal with the individual cases with care; the details of each conveyancing transaction must necessarily be examined, if fairness was to be achieved. The tribunal should have taken charge of the proceedings by the exercise of proper case management; they could for instance have adopted the appellant's suggestion that some of the charges be selected for hearing "so that he could put his points across". Once the tribunal decided to play to the prosecutor's tune, a balanced and careful enquiry into the 119 complaints was severely compromised. 96. On the other hand, this court should avoid any semblance of requiring the adoption of the standards and processes of a criminal trial by disciplinary tribunals of this kind. Essentially this is a case of a solicitor being tried by his peers, where many assumptions of fact could safely be made. The solicitor-members of the tribunal could be expected to have detailed knowledge of conveyancing in Hong Kong and its difficulties. 97. Having weighed Mr Thomas' points with anxiety we have come to the conclusion that strong though they are, they alone cannot suffice; this court cannot simply declare, in effect, that the proceedings are a nullity, without at any rate examining closely how the conclusions of guilt on the 84 complaints were reached. The basis of the tribunal's findings 98. The applicant had made no enquiries of any of the complainants before the proceedings were launched. If he had, he might well have been met with the statement: "We have settled this matter with John Fang & Co. years ago". It is quite possible therefore that most if not all of the earliest complaints had effectively been dealt with one way or another before the inquiry began. The appellant so asserted in his testimony before the tribunal. 99. In these circumstances, any proper conduct of the enquiry necessarily involved an investigation into the individual circumstances of each case. The extent to which this took place is highly questionable. The prosecutor relied on Mr Harrod's two affidavits and on the fact that, under Rule 36(1) of the Tribunal Proceedings Rules, the authenticity of all the documents was deemed admitted. The correspondence - deemed authentic under Rule 36(1) - went back, in the earlier cases, many years. The affidavits made no attempt to state the position as at the time they were sworn. As can be seen from the transcript of the hearing on 4 August 1994 the appellant was asked to make a schedule showing the "current status" of the various breaches of undertaking, but the appellant explained his difficulties and said he would try. The matter was then simply left in the air. 100. As regards the failure to deal with correspondence, if this had been a case where the appellant had simply ignored letters from his professional colleagues and the Law Society, the prosecutor's blanket approach might have been justified. Further, his approach was not entirely consistent. In opening the case on 2 August 1994 the prosecutor said:
101. If this were accurate, a finding of professional misconduct would be easy to make. But this statement is palpably wrong, and later passages in the opening statement shows that this was not a stance the prosecutor felt able to maintain. The appellant's own conduct in the enquiry 102. The appellant's own conduct at the inquiry was unwise. It is quite possible that he simply felt overwhelmed by the sheer weight of the complaints. Nevertheless, his inability, or unwillingness, to deal with the individual complaints clearly aggravated the tribunal's own difficulties. It will be recalled that as late as 8 August 1994 (some time after the applicant's case had closed) a question arose as to whether there should be an adjournment to enable the appellant to seek access to his files which had been packed away and sent to the New Territories. A matter like this should never have emerged at this late stage. It should have been dealt with at the preliminary hearings. The appellant told the tribunal that he might be able to retrieve some of the files and would be able to say, in some cases, whether the undertakings had been complied with. The tribunal acceded to the appellant's application to adjourn but gave him less than 4 days to file a further affidavit. Nothing suggests that the appellant availed himself of the opportunity to gain access to his files. The further affidavit which was lodged simply made broad statements, and no further mention was made of those missing files. 103. Looking at the matter in the round, there is no doubt that the appellant had contributed materially to the unsatisfactory way in which the proceedings took place. Tribunal's finding on breaches of undertaking 104. Counsel for the Law Society categorised complaints No. 1 and 3 as "extreme cases" of breaches of undertaking. 105. It would be convenient to take complaint No. 1 first, but, to make sense of it, complaint No. 1A (relating to the appellant's failure to respond to correspondence from the purchasers' solicitors) and complaint No. 2 (alleging failure to "give any or any sufficient and satisfactory answer to the applicant's enquiry" in respect of the breach of undertaking in complaint No. 1) must also be referred to. 106. The tribunal's finding on complaint No. 1 is as follows:
107. It must be assumed that the tribunal, in making the finding of misconduct in complaint No. 1, had reference to the letters from the purchasers' solicitors Messrs Charles Yeung Clement Lam & Co. as set out in complaint No. 1A. Here, we immediately come up against a difficulty. The tribunal's finding on complaint No. 1A is equivocal. The tribunal, after having set out a number of letters from that firm spanning the period 29 September 1989 to 14 November 1990 found:
108. This is a mere repetition of the complaint itself and says very little as a finding of fact. 109. Being unable to determine from the tribunal's statement what precisely was the failure as found in complaint No. 1A, we turn to the letters themselves, copied in Bundle 3. We see that the letters from the purchaser's solicitors were, at the beginning, marked for the attention of either a Mr Chan Kwok On or a Miss Wong in the appellant's firm. They were not marked for the appellant's personal attention. The letters exhibited by the prosecutor are one-sided, and contain no correspondence from Messrs J. Fang & Co. But it is clear from reading those letters that the respective firms of solicitors were in constant contact with each other: either by letter or by phone. For example, it can be seen from the letter of 7 October 1989 (to which, it is alleged, there was no reply) that a reply was given on 12 October. In Messrs Charles Yeung Clement Lam & Co.'s letter of 12 February 1990 there is a reference to "your letter to us dated 22 November 1989" and in a letter dated 11 July 1990 there is reference to "your letter of 10 May 1990". By 14 November 1990 the purchaser's solicitors had lost patience and gave a further five days to comply, otherwise the matter would be reported to the Law Society. Finally, on 10 December 1990, the solicitors lodged their complaint with the Law Society, when there were still four documents out of 15 outstanding. 110. Ms Yuen, in her submissions, said there were "11 reminders from Charles Yeung Clement Lam & Co. over the course of more than 1 year from October 1989 and November 1990 when the undertaking remained unhonoured". This is not an accurate categorisation of those letters. They were not all "reminders". The letters provide evidence, to some extent, of dialogue between the solicitors and attempts to resolve problems. 111. In making their findings on complaint No. 1, the tribunal simply repeated the averments in the complaint itself: to the extent of finding that the appellant had "failed and/or refused" to send the documents to Messrs Charles Yeung Clement Lam & Co. There is a difference between a failure and a refusal to send the documents, in terms of culpability. If a solicitor refuses to send documents, he is wilfully frustrating the scheme for completion by undertakings; if he has merely failed, then in terms of professional misconduct the extent of the failure must be evaluated. How, then, has the appellant transgressed, to the extent of committing professional misconduct - apart from the fact that by the time of the complaint (10 December 1990) four documents out of 15 had still not been delivered to the purchaser's solicitors by his firm? The finding on complaint No. 1 is silent. 112. Ms Maria Yuen, for the Law Society, argues thus: The breach of undertaking is undoubted; once a prima facie case is established, it is for the appellant to show what steps were taken to remedy the breach, since the facts are peculiarly within his own knowledge; in the absence of an explanation from the appellant, the tribunal was entitled to find professional misconduct established. Ms Yuen points out the fact that on 8 August 1994 the appellant was given an opportunity to locate his files (said to have been packed away in the New Territories) and, though the time given to him was short for that purpose, when the hearing resumed on 19 August the appellant did not tell the tribunal whether he had located the files and if so what had been revealed. The tribunal is therefore entitled to draw an inference adverse to the appellant. 113. These are powerful submissions. It is clear from the transcript of the proceedings - particularly what occurred on 8 August 1994 - that the chairman considered it relevant to find out whether the undertakings were eventually met. If they were, the appellant might have been acquitted in relation to complaint No. 1- as he was in relation to complaint No. 31. There was evidence before the tribunal from the appellant, for what it was worth, that as far as he knew, at the time of the proceedings, "all the things complained of in these matters" had been complied with: see transcript of 8 August 1994. The tribunal never expressly rejected this or said it was inherently improbable. 114. The inherent probabilities were not all one way: some were in the appellant's favour. Was it really the case that an undertaking given in September 1989 had still not been complied with when Mr Harrod lodged his affidavit? If the facts had been viewed in the round, as they should have been, the tribunal might well have concluded that complaint No. 1 was not sufficiently proved. 115. Having reached this point, we cannot see how the tribunal's finding of guilt on complaint No. 1 can properly stand. There are simply not sufficient findings of fact to justify the conclusion of guilt. This is quite apart from the further point made by Mr Thomas: that it must be shown that, in relation to the averments in complaint No. 1, the appellant was personally culpable: not simply that he failed to have an office system such that when problems of this kind arose, they would be brought to his personal attention. Complaints No. 9, 13, 15, 17, 25, 33, 37, 39, 41, 61, 70, 76, 84 116. The appellant was found guilty on the above 13 complaints of breaches of undertaking, but the related complaint of failure to give any or any sufficient and satisfactory answer to the Law Society's enquiries were dismissed. 117. Mr Thomas submits that it is a logical absurdity to find in effect that there was no explanation or excuse for breach of undertaking, and therefore the appellant was guilty on those complaints, and yet in respect of the related charge of failing to give a satisfactory explanation to the Law Society for such breach, the appellant was acquitted. He therefore submits as a matter of law that the findings of misconduct on these charges must be quashed. 118. We would not go as far as that. There is in our view no question of law involved. But the points raised certainly suggest that we should look at the findings of misconduct with particular care. 119. Take, for example, complaint No. 13 which relates to a transaction in which the appellant's firm were solicitors for the mortgagor. The corresponding charge of failing to give a satisfactory answer to the Law Society's enquiry is complaint No. 14. The mortgage loan was sent to the firm on 27 June 1991 subject to an undertaking to send all title deeds including the release of a legal mortgage to the mortgagee's solicitors within 21 days. It is averred in complaint No. 13A that the mortgagee's solicitors sent a reminder to the appellant on 10 September 1991 and he failed promptly to deal with correspondence from that firm. However, the tribunal dismissed complaint No. 13A and likewise complaint No. 14 on the ground that the appellant may have given a sufficient and satisfactory explanation in relation to the mortgagee's solicitor's complaint. 120. These being the findings relating to that mortgage transaction, and bearing in mind the proper approach to the complaint of breach of undertaking generally, it is difficult to see how the finding of professional misconduct in relation to complaint No. 13 can stand: unless the tribunal, in relation to this complaint, lowered considerably the threshold of guilt so that the failure to meet the undertaking within 21 days was enough by itself to constitute misconduct. Nothing in the nature of those undertakings justify such an approach. 121. Take another instance: complaint No. 33 where the firm acted as solicitors for the mortgagor in purchasing a flat (with a carparking space) in Seaview Garden Tuen Mun. The firm received the mortgage loan on 13 August 1990 subject to an undertaking to send all title deed to the mortgagee's solicitors within 21 days (by 2 September 1990). They were late by about 1 month: the documents were not completely sent until 8 October 1990, 6 days after those solicitors had complained to the Law Society. On 5 December 1990 the Law Society (presumably being unaware that the matter had in the meanwhile been settled) wrote to the appellant asking him to identify the handling solicitor and the clerk of the case. The appellant failed to answer and reminders were sent on 21 December 1990, 30 July 1991, 9 September 1991 and finally on 7 October 1991. A year later, on 12 October 1992, the appellant gave his explanation as follows:
122. The tribunal acquitted the appellant of complaint No. 34 (failure to answer the Law Society's enquiry), presumably accepting the appellant's statement that the mortgagee's solicitors had received everything: and perhaps that he had already written to the Law Society "eons ago". 123. In the light of all this, the basis for finding the appellant guilty on complaint No. 33 is obscure: unless the sending of the documents late by about 1 month alone constitutes professional misconduct. 124. The analysis in relation to complaints No. 13 and 33 is equally appropriate in relation to all the other remaining 11 complaints dealt with under this heading. The tribunal's approach in each instance was virtually identical. Findings of guilt on the 31 complaints of breach of undertaking 125. Having reached this point, the conclusion we have reached this that none of the findings of professional misconduct on breach of undertaking can properly stand. The findings on the following complaints must accordingly be quashed: No. 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 33, 35, 37, 39, 41, 43, 61, 63, 66, 68, 70, 76, 78, 82, 84 and 86. Complaint No. 72 126. The tribunal's finding in relation to complaint No. 72 is as follows:
127. In relation to this matter, the tribunal also found on complaint No. 73 that when the Law Society wrote to the appellant asking for his explanation, he replied the next day, by a letter of 15 April 1993: an explanation which justified his acquittal on complaint No. 73. Does this necessarily mean that the finding of guilt on complaint No. 72 is flawed, as Mr Thomas contends? 128. Turning to complaint No. 72, the position quite simply was this: The completion took place on 24 August 1990. Accordingly, the assignment should have borne that date. In fact, it was dated and registered in the Land Office nearly a year later (20 July 1991), causing the Inland Revenue Department to send to the vendor a property tax demand for that period, when clearly the vendor had ceased to have any liability. This was a very serious matter. 129. The reply to the Law Society's enquiry, dated 15 April 1993, was as follows:
130. The "copy letter dated 19th and 30th March 1993 addressed to the captioned complainant and Inland Revenue Department" were not produced. Nevertheless, the tribunal was entitled to take this letter as a sufficient reply to the Law Society's enquiry and acquit the appellant of complaint No. 73. But did this absolve him in any way of misconduct in relation to complaint No. 72? 131. As can be seen, the finding merely repeated the complaint which, in effect, was that the appellant had personally post-dated the title deed or alternatively allowed his employee to a post-dated title deed or alternatively failed to take adequate measures to prevent his employee from doing so. 132. This is a sliding scale of culpability. The tribunal was, of course, entitled to find the appellant guilty on the lowest scale, namely, that he had failed to take adequate measures to prevent his employee from preparing the post-dated assignment. But was that the basis upon which the tribunal convicted? 133. Ms Yuen on behalf of the Law Society submits thus: There is clear evidence on the appellant's own admission that his firm had post-dated the assignment some 11 months after the date of completion; the appellant did not produce any contrary evidence; there was therefore sufficient evidence for the tribunal to find him guilty. This is all well and good, as far as it goes. The problem is: What was the nature of the appellant's culpability? Was it because he had allowed his employee to prepare a post-dated title deed, or alternatively had failed to take adequate measures to prevent his employee doing this? The tribunal, in its finding, merely repeated the averment in the complaint without stating the basis of its finding. 134. The tribunal is, of course, entitled to take a strict view of a solicitor's professional duty, to the extent of finding him guilty of professional misconduct for having inadequate office systems and failing to take measures to prevent employees from injurious actions such as post-dating title deeds. But was this the basis of the finding of guilt in complaint No. 72? 135. As can be seen from the transcript of the proceedings, the appellant had repeatedly raised the question of personal responsibility. At the hearing of 2 August 1994 he said at one point:
136. Then the chairman intervened and asked the appellant whether he was denying that as sole proprietor of his firm he was not responsible. 137. Plainly, this is not grappling with the appellant's point, which was quite simply that there is a distinction between his civil liability as the sole proprietor of his firm and professional misconduct. Injurious acts, such as the post-dating of assignments, will result in his incurring civil liability: but did it necessarily connote professional misconduct on his part? 138. The tribunal simply brushed side the question. The result is that in relation to complaint No. 72 the appellant could have been found guilty on three alternative bases:
139. This is not a proper finding. The conviction on complaint No. 72 cannot stand. Complaint No. 74 140. The tribunal's finding on this complaint states:
141. In the related complaint No. 75, where the allegation was that the appellant had failed to give a satisfactory answer to the Law Society's enquiry in respect of his conduct in complaint No. 74, the tribunal found the appellant not guilty. This was on account of his response to the Law Society dated 13 May 1993 which reads:
As can be seen, the firm's conduct of this matter was deplorable. The appellant was the solicitor in charge of the file which was handled by his clerk Eric Chan. The tribunal's finding was that the delay for over 2 1/2 years in registering the title deed was "either a deliberate act or a grossly negligent act and is regarded deplorable and inexcusable in the profession". 142. Once again, this is an equivocal finding. If a solicitor should deliberately withhold the stamping and registration of an assignment for a lengthy period (and, having received the money for the stamp duty from the client is earning interest on that sum in the meanwhile) this is clearly a deplorable act. If, however, it is a case where the handling clerk had somehow overlooked the matter (because the file got mislaid) and the matter went to sleep for some years, is this a grossly negligent act on the part of the solicitor? 143. Clearly, on the tribunal's findings, there was some delay on the appellant's part in responding to Messrs Raymond Ho & Koo's enquiry of 29 October 1992. It needed two reminders to jolt the appellant into replying on 18 November 1992. But the finding of misconduct in complaint No. 74 was not focussed upon that. It was focussed upon the fact of delay for over 2 1/2 years in registering the deed. As to this, the foundation for the finding of misconduct is obscure. Is the tribunal saying this: no principal of a solicitor's firm should ever have allowed a situation like that to arise? 144. In our judgment, the finding of misconduct on complaint No. 74 is too uncertain to stand. Complaint No. 80 145. The tribunal's finding on this complaint states:
146. In the related complaint No. 81, where the allegation was that the appellant had failed to give a satisfactory answer to the Law Society's enquiry in respect of his conduct in complaint No. 80, the tribunal found the appellant not guilty. This was on account of the response given by the appellant which reads:
147. Assuming the contents of the letter of 3 August 1993 to be truthful (and nothing suggests that it is not) it is difficult to see how the delay in registering the title deeds was a deliberate act on the appellant's part. Once again, the explanation provided by the appellant to the Law Society discloses a chaotic state of affairs in his office. Can it be inferred by the tribunal's finding of guilt that it was, in effect, saying this: the person ultimately in charge in the firm must take professional responsibility when something like this happens, irrespective of whether he was aware of the circumstances or not at the time? 148. In our judgment, the tribunal's finding of guilt on complaint No. 80 is too uncertain to be allowed to stand. Findings of guilt on 26 complaints of failing to give satisfactory answer to the Law Society 149. It would be convenient first of all to deal with complaints No. 2, 4, 6, 8, 28, 30 and 36 where the finding was that, in response to the Law Society's enquiry, the appellant replied "on 5 December 1991 ... that he was not prepared to make any explanation." 150. This is a reference to his letter of 5 December 1991 which reads:
151. Plainly, the appellant did give answers to the Law Society's enquiry. Whether they constituted a "sufficient and satisfactory answer" is another matter. The tribunal blindly accepted the prosecutor's categorisation of the letter of 5 December 1991 as one where "he was not prepared to make any explanation". Looking at that letter as a whole and considering the dialogue he was conducting with the Law Society at that time, is this a case where the appellant gave no explanation? The tribunal never looked at it that way. It is not possible to say that if the tribunal had properly considered the matter they would necessarily have found the appellant guilty of professional misconduct. 152. This view is reinforced when one considers some of the other charges on which the appellant was acquitted. Take for instance complaint No. 32 where the facts were these: On 8 November 1990 the Law Society wrote to the firm asking for an explanation concerning a complaint lodged by Messrs Edmond H.C. Wong & Co. who alleged that the firm had been in breach of its undertaking for over 6 months. On 1 July 1991 the appellant responded to the Law Society's enquiry as follows:
153. This was regarded by the tribunal as a sufficient and satisfactory answer, and he was acquitted on complaint No. 32. 154. Likewise, in relation to a similar enquiry from the Law Society in complaint No. 38 the appellant replied by his letter dated 17 August 1992 as follows:
155. As can be seen, the tribunal did not erect a particular high threshold before being satisfied on complaint No. 38 that the answer was sufficient and satisfactory. 156. In the light of this, it is difficult to see how the reply of 5 December 1991, when read as a whole, can be said to be insufficient and unsatisfactory. 157. In relation to complaints No. 4, 30 and 36 there is the additional point that there were later letters written by the appellant which were simply missed by the tribunal: perhaps not surprisingly, given the mountain of papers before them. The same point is valid in relation to complaint No. 37 where a letter dated 12 October 1992 giving an explanation was likewise missed by the tribunal. 158. The point can be further tested by a detailed consideration of complaint No. 2, where the tribunal's finding is as follows:
159. Once again, all that the tribunal did was to repeat the complaint virtually verbatim. 160. The finding refers to a letter of 14 November 1991 from the Law Society which, after referring to 8 complaints, from various sources, said:
161. The appellant replied by his letter of 5 December 1991 as set out earlier in this judgment. 162. As can be seen, far from simply saying that he was not prepared to make any explanation, the appellant did in fact give a response. In relation to the 8 complaints dealt with in this letter (which included Messrs Charles Yeung Clement Lam & Co, the complainant in complaint No. 1) the appellant said that he had personally "liaised with the complainant", apologised for the "fault/default complained of" and had "established good communication to remedy the fault": explanations which, in relation to complaints No. 31 and No. 32, seemed sufficient to justify acquittals. 163. In opening his case to the tribunal, the prosecutor read out the letter of 5 December 1991 and he said (at 2/0451):
This is inaccurate and incomplete. 164. By the tribunal's finding in complaint No. 2, one would be justified in assuming that, with the appellant's supposed refusal to "make any explanation", that was the end of the dialogue between the Law Society and the appellant on that matter. But this is not so. The appellant in fact wrote further on the same day disclosing the name of the handling solicitor and the clerk concerned in relation to the 8 complaints. Plainly, the prosecutor was factually wrong in this regard. It is questionable whether the tribunal read that letter at all, in finding the appellant guilty of misconduct. 165. In the light of these matters, it is difficult to see how the finding of guilt on complaint No. 2 can properly stand. Findings of guilt on 23 complaints of failing to deal promptly with correspondence from other solicitors 166. The tribunal simply made proforma findings on these complaints, following the averments as charged. The finding on complaint No. 1A is an example. It reads:
167. As mentioned earlier in this judgment, to categorise all the letters as "reminder letters" is misleading. 168. Moreover, it is quite clear that the respective firms of solicitors left correspondence of this kind to be handled generally by conveyancing clerks. Very few letters were marked for the personal attention of the appellant. The tribunal appears to have made no distinction between the appellant's failure to deal with correspondence and his employees' failure. In this regard, an examination of complaint No. 19A is instructive. The tribunal's finding on complaint No. 19A reads:
169. As can be seen, the tribunal categorised the letter of 8 October 1991 as a "reminder letter". It was nothing of the kind. It referred to a letter dated 26 September 1991 from the firm and dealt with the verification of a signature on the assignment. The matter was then apparently taken up by the firm's Mr Chan and the corresponding solicitor's Mr Lawrence Lam. By the letter of 12 October 1991 those solicitors sent to the firm a cheque for $29,200 for stamping purposes. The matter then seems to have gone to sleep and by a letter dated 29 October 1991 marked for the personal attention of the appellant he was asked to state the "latest position relating to the stamping of the assignment". This was followed up by a reminder, also marked for the appellant's personal attention, dated 7 November 1991. The solicitors then complained to the Law Society on 3 December 1991. 170. It was certainly open to the tribunal to find that the appellant had failed to deal promptly with the letters of 29 October 1991 and 7 November 1991 and, on that basis, to find him guilty of professional misconduct. 171. But that is not the tribunal's finding. It simply adopted uncritically the prosecutor's "shot-gun" approach, and found him guilty of failing to give "any or any prompt reply" to all the letters, starting with the one dated 29 June 1991. This is plainly unfounded upon the facts. 172. Having reached this point, we are driven to the conclusion that none of the findings on the 23 complaints under this heading can properly stand. Conclusion 173. It is quite clear from the material before the court that during the years 1988-1993 the conditions inside Messrs J. Fang & Co. were chaotic. The firm's standards of efficiency were extremely low. It probably took on far more work than it could properly handle. Documents, sometimes entire files, were missing. Deadlines were not met. Correspondence was not dealt with. It is not surprising that the Law Society received so many complaints concerning the firm. 174. Unfortunately, the tribunal, in enquiring into the complaints, did not learn from the mistakes of that firm. In turn, it took on board more work than it could handle. It got swamped. 175. It would be tempting to try to pick through the material before the court to see whether, putting the case for the applicant at its lowest, any of the findings of guilt can properly stand. We have attempted this exercise and, at times, have almost persuaded ourselves that we have succeeded. But this is not the right approach. This court cannot properly take on the functions of the tribunal. Moreover, in the circumstances of this case, it is impossible to identify what was the lowest threshold the tribunal had adopted. It is simply impossible to conclude: Even taking that as the threshold, the evidence points inevitably to the appellant's guilt. 176. In our judgment, having regard (1) to the unsatisfactory way in which the proceedings were conducted (2) the tribunal's failure to deal with the real issues (3) the singular lack of findings of material fact and (4) the equivocal nature of the tribunal's findings of guilt, the only proper order is that the findings of misconduct on all 84 charges must be quashed. We discharge the order of 6 March 1995 and all the orders for costs made against the appellant in the course of the hearing.
Representation: Mr Michael Thomas, QC & Mr Stewart Wong (M/S Peter Wong & Co.) for the Appellant Ms Maria Yuen (M/S P.C. Woo & Co.) for the Respondent |
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