The Law Society of Hong Kong v. Sham Yick Chun Gary and Others
Read the full judgment text of CACV 189/2023 on BabelCite. This Court of Appeal judgment was delivered on 22 July 2025.
1. This is an appeal from the determination (“ Determination ”) of the Solicitors Disciplinary Tribunal (“ Tribunal ”) [1] dated 13 March 2023 and the decision on sentencing and costs (“ Decision ”) dated 2 June 2023. For ease of reference, the terms and expressions in the Determination will be adopted.
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CACV 189 /2023 [2025] HKCA 676 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 189 OF 2023 (ON APPEAL FROM THE DETERMINATION AND DECISION ON SENTENCING AND COSTS OF ________________________
________________________ BETWEEN
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________________________ J U D G M E N T ________________________ Hon Kwan VP (giving the Judgment of the Court): 1.This is an appeal from the determination (“Determination”) of the Solicitors Disciplinary Tribunal (“Tribunal”)[1] dated 13 March 2023 and the decision on sentencing and costs (“Decision”) dated 2 June 2023. For ease of reference, the terms and expressions in the Determination will be adopted. 2.The Tribunal found the complaints proved against each of the five respondents, who brought this appeal. The complaints, the findings and the sanction 3.Sham Yick Chun Gary (“R1”) was the sole proprietor of Messrs Sham & Co, Solicitors, a firm which has since been closed (“Closed Firm”). The Closed Firm commenced practice on 18 February 2013 at premises in Wing On House Central (“Wing On Premises”). 4.Tse Chun Wai, Chow Cheuk Hei and Ku Sze To (“R2”, “R3” and “R4” respectively) were clerks employed by the Closed Firm since around 18 February 2013. Before that, they were employed by Messrs Joseph Leung & Associates (“JLA”). R2 and R3 were founder members and directors of a company named Accident Assistance Association Limited (“AAAL”). AAAL rented the Wing On Premises until it terminated its tenancy on 5 February 2013, when the Closed Firm became the new tenant. 5.Chan Kam Tak (“R5”) was employed by JLA as an assistant solicitor prior to 13 March 2013. He was employed by the Closed Firm as a consultant since around 25 March 2013. 6.The 24-page complaint sheet filed by the Law Society sets out the five complaints, one against each of the respondents. In gist, the allegations of each complaint are as follows:
7.The complainant in this matter is Deputy High Court Judge Seagroatt, whose involvement in the civil proceedings concerning JLA and the respondents will be mentioned later. The Law Society also received separate complaints from Joseph Leung Kwok Kin (“Mr Leung”) on behalf of three clients of JLA[5]. 8.After a three-day trial in May 2022, the Tribunal handed down the Determination by which it found: (1) R1 was in breach of Rules 2(a), (b) and (d) of SPR and Principles 2.03 and 5.11 of the Guide; (2) R2, R3 and R4 committed disgraceful, dishonourable or discreditable conduct within section 2(2) of the LPO; and (3) R5 was in breach of Rules 2(a), (b) and (d) of SPR. 9.By the Decision, the following penalty was imposed on the respondents:
10.The Tribunal ordered R1 to R5 to pay the following costs: (1) costs and disbursements of the investigation by the Law Society assessed at $298,000; (2) costs of the clerk of the Tribunal assessed at $75,300; and (3) costs of the prosecutor in the proceedings, inclusive of all costs reserved, to be taxed by a Master of the High Court on a full indemnity basis if not agreed. Relevant background 11.The relevant background matters may first be stated as follows. 12.On 18 February 2013 (the day the Closed Firm commenced business), JLA received more than 80 letters from the Closed Firm claiming that the relevant clients of JLA had instructed the Closed Firm to represent them, and asking JLA to transfer the files to the Closed Form. Each of the letters enclosed a document purportedly signed by the relevant client stating that he or she had decided to terminate JLA’s representation. Further letters from the Closed Firm were received by JLA since 18 February 2013, and notices of change of solicitors were received by JLA from the Closed Firm in a number of cases. It is not in dispute that at least 54 clients of JLA moved to the Closed Firm from around February 2013 to March 2013. 13.Clients have the right to choose their legal representation and it is not unusual for them to change solicitors when the solicitor and/or staff who had been handling their cases moved to another firm. The complaints concerned whether the respondents had carried out a premeditated and concerted scheme to transfer a number of JLA’s clients to a new firm under their control without the consent of JLA, and much worse, without the clients’ consent. 14.The main allegations of the Law Society on the concerted scheme[7] are that R2, R3 and R4 met with at least 93 clients of JLA at, inter alia, the Wing On Premises, between December 2012 and March 2013, and requested those clients to sign certain documents, including blank paper, representing that the documents were authorisations to obtain medical reports. Further,
15.JLA brought a civil claim against the five respondents in HCA 1250/2013 (“High Court Action”) and on 10 July 2013 issued a summons for interlocutory injunction seeking, inter alia, to restrain the respondents from acting for persons who were clients of JLA between March 2005 and March 2013 and approached by any of the respondents when the information of such clients was in the possession or under the control of any of the respondents. Mr Leung made an affirmation dated 9 July 2013 (“Leung’s Aff in HCA”) in support of the application, and exhibited the statements made by nine clients of JLA[8] confirming the matters mentioned in the foregoing paragraph that subsequently formed the main allegations of the Law Society in the disciplinary proceedings (“Main Allegations”). 16.The summons came before DHCJ Seagroatt on 12 July 2013. Upon hearing counsel on both sides, he adjourned the application to the summons judge to a date in August 2013 and granted an interim injunction (“Injunction”) against the respondents which, inter alia, restrained them and the Closed Firm from using various types of information concerning clients of JLA, accepting instructions to act for persons who were clients of JLA between March 2005 and March 2013 and approached by any of the respondents when the information of such clients was in the possession or under the control of any of the respondents, and ordered the respondents to disclose on affirmation certain information concerning those clients. 17.Subsequent to the Injunction, the respondents filed affirmations to disclose and deliver information. On 6 August 2013, Mimmie Chan J made an order by consent in the High Court Action which allowed the respondents to send letters and copies of the Injunction to the clients to explain that the respondents were prohibited from acting for them. 18.From August to September 2013, 30 of the clients applied for variation of the Injunction to the effect that the Closed Firm could act for them. The application was heard by Deputy High Court Judge Leung Chun Man on 22 November 2013. DCHJ Leung handed down his judgment on 10 April 2014 allowing the Closed Firm to continue to act for 25 of the former clients of JLA[9]. 19.In December 2013, JLA initiated contempt proceedings against the respondents in HCMP 3334/2013, alleging that the respondents had breached provisions in the Injunction preventing them from acting for persons who were clients of JLA between March 2005 and March 2013 and requiring them to deliver up documentation containing information concerning persons who were JLA’s clients during that period. The contempt proceedings, which were defended by the respondents, culminated in a hearing before DHCJ Seagroatt on 25 November 2014. The parties had by then agreed terms of settlement and the judge made an order by consent pursuant to the settlement staying all further proceedings in the contempt proceedings, with costs to be paid by the respondents to JLA on an indemnity basis. At the close of the proceedings, the judge made comments criticising the respondents for the “lack of professional conduct”, “verging on dishonesty and certainly demonstrating greed”. The judge made complaints to the Law Society against the respondents on 27 November 2014 and 8 December 2014. The disciplinary proceedings 20.On 3 October 2019, the Law Society issued the present disciplinary complaint against the respondents and filed in support Tung 1st Aff, made by its Director of Compliance. Ms Tung produced as exhibit to her affidavit Leung’s Aff in HCA, which in turn included the documents Mr Leung had exhibited such as the statements made by the ten clients of JLA. Ms Tung has no personal knowledge of the facts pertaining to the accusations and her evidence is mainly hearsay. Tung 1st Aff was the only affidavit filed by the Law Society in support of its case at that stage. 21.On 31 August 2010, the respondents applied for permanent stay of the disciplinary proceedings on the ground of the long delay in bringing the prosecution, contending that a fair trial would not be possible because of the fading memories of witnesses, and citing prejudice to the respondents of having the matter hanging over their heads for so long. In opposing the application, the prosecutor Mr Richard Hudson, informed the Tribunal at the hearing on 3 September 2020 that the Law Society would only rely on Tung 1st Aff and would not be calling any of the clients whose statements were exhibited to Leung’s Aff in HCA. He confirmed to the Tribunal that “the Law Society in fact do not have any witnesses”, so there was no question of recollection of evidence by any witness due to the delay. The chairman of the Tribunal indicated that he did not think the Law Society “has confirmed no witnesses will be called”, and it would not be “appropriate to ask the Law Society to confirm whether or not they may call other witnesses if there would be a substantive hearing”. 22.On 16 October 2020, the Tribunal handed down its decision dismissing the respondents’ application for permanent stay[10]. 23.On 20 April 2021, the Law Society’s solicitors (Messrs Deacons) wrote to the respondents’ solicitors (John W Wong & Co; “JWW”) proposing directions for the future conduct of the disciplinary proceedings, which included the following:
24.A copy of the letter of Deacons was provided to the clerk to the Tribunal, who directed JWW to respond to the proposed directions. JWW wrote to the clerk to the Tribunal on 10 May 2021 asserting that “the only way” to prove the serious allegations against the respondents was “to call those persons who allegedly had a meeting with one or more of the Respondents” and stating that “Any application to adduce such evidence by way of hearsay would be strongly opposed and it would be extremely unfair and unjust to convict any of the Respondents of such serious allegations based on hearsay evidence.” JWW sought an order directing the Law Society to serve “(a) a list of witnesses that the Law Society proposes to call in the disciplinary proceedings, and (b) a copy of the witness statements of such witnesses, within 14 days.” 25.The Tribunal gave these directions on 11 May 2021 (“May 2021 Directions”):
26.Pursuant to the above, the respondents served the affirmations in opposition of Or Fo Chung (“Mr Or”) dated 25 May 2021 (in which he adopted his affirmation in the High Court Action filed on 11 September 2013) and the affirmation of R5 dated 22 June 2021 denying for himself and R1 to R4 the Main Allegations and all the allegations in the statements made by the clients exhibited to Tung 1st Aff. The Law Society served in reply the 2nd affidavit of Ms Tung dated 20 July 2021 (“Tung 2nd Aff”) and Mr Leung’s affirmation dated 9 August 2021 (“Leung’s Aff”). In Leung’s Aff, he exhibited statements made by another 12 former clients of JLA that were not used in the injunction application in July 2013[11] and the statements made to the police by three former clients[12]. 27.The respondents objected to the 12 clients’ statements exhibited to Leung’s Aff, contending that they should not be regarded as evidence in reply to the affirmations in opposition. The Tribunal overruled the objection, but gave leave to the respondents to serve evidence in response. The respondents did not do so. 28.On 24 August 2021, the Law Society confirmed that they would be calling only two witnesses, Ms Tung and Mr Leung. 29.The substantive hearing of the disciplinary proceedings took place from 3 to 5 May 2022. 30.In the opening submissions of Mr Hudson, he mentioned that the Tribunal would hear evidence from Ms Tung, Mr Leung, R5 and Mr Or, the four persons who had provided affidavits or affirmations pursuant to the May 2021 Directions. He referred to the 22 client statements exhibited to Tung 1st Aff and Leung’s Aff and summarised their contents in a schedule to his submissions, which he characterised as “damning” evidence against the respondents. 31.The hearsay nature of the clients’ statements was raised in the opening submissions of Mr Ronald Tang, who appeared for the respondents throughout. He referred to the letter of JWW to the Tribunal dated 10 May 2021 and pointed out that the respondents had objected to “all forms of hearsay evidence sought to be used by the Law Society and that the Law Society must prove their case by calling witnesses”. He maintained his objection to the use of any hearsay evidence to establish what allegedly happened in the meetings of R2 and R3 with clients, which neither Ms Tung nor Mr Leung had attended. 32.Notwithstanding this strong objection, no application was made to the Tribunal by the Law Society or by the respondents in the course of the hearing on the admission or exclusion of the hearsay evidence. The issue of whether to admit the hearsay evidence was left unresolved[13]. This is plainly unsatisfactory, on all sides, including the Tribunal. The affidavits and affirmation of Ms Tung and Mr Leung were produced by the prosecutor and treated as their evidence in chief, including those parts which referred to the contents of the statements of 22 clients and the clients’ statements exhibited to affidavits or affirmations. 33.The parties returned to the issue of hearsay evidence in their closing submissions. 34.In Mr Hudson’s closing, he made the point that it would appear from Mr Tang’s opening and cross-examination of the Law Society’s witnesses that the respondents took the view they could not be found liable for the complaints on the basis that the evidence against them is hearsay. He submitted that this is misconceived as this ignores the “primary evidence” given by Mr Leung, that the weight of the evidence was sufficient to satisfy the test of preponderance of probability[14] as there was “ample evidence” that the respondents acted in concert and no less than 22 clients gave statements showing that they had been duped by the respondents. 35.Mr Tang’s closing submissions again emphasised that neither Ms Tung nor Mr Leung was able to prove the Main Allegations as neither had attended the meetings in which the alleged misrepresentations were made. He referred to Rule 14 of the Solicitors Disciplinary Tribunal Proceedings Rules, Cap 159C (“SDTPR”) which provides as follows:
36.He contended that despite Rule 14 and the clear directions in the May 2021 Directions, the Law Society had not served any affidavit or affirmation of any of the clients whose statements were exhibited and none of them had been called to give evidence. No suggestion was made that any of the 22 clients was not in Hong Kong, or was unable to make an affirmation, or unable to give evidence in person. He submitted that the Law Society cannot ignore the requirements of Rule 14 and the May 2021 Directions by simply exhibiting the clients’ statements to Tung 1st Aff and Leung’s Aff, thus sabotaging the respondents’ opportunity to cross-examine the persons who allegedly made serious allegations against them. He argued that as none of the hearsay statements is admissible in evidence, the Law Society has adduced no evidence to prove any of the serious allegations and the complaints should be dismissed. 37.In Mr Hudson’s reply submissions, he contended that the issue of hearsay evidence has been addressed in his closing submissions as summarised above. As for Rule 14, he submitted that this provides that the Tribunal “may”, not shall, act upon evidence given by affidavit and this provision does not exclude reliance on “other evidence”. He submitted that “there is nothing to prevent the Tribunal considering the statements made by the former clients to Mr Leung when reaching its decision in these proceedings.” The Determination 38.In the Determination, the Tribunal did not deal with Mr Tang’s objections to hearsay evidence expressly, despite those objections forming a crucial part of the respondents’ opposition. It did not even record the fact that the respondents had objected to the admissibility of the 21 clients’ statements. No mention was made of Rule 14 or Mr Tang’s take on the May 2021 Directions. In finding the complaints proved, the Tribunal had taken into consideration and relied on the statements of 21 clients[15] notwithstanding its awareness that this is hearsay evidence[16], but the reason for overruling the hearsay objection was not stated expressly in the Determination, unless one takes this as implicit acceptance of Mr Hudson’s submissions. 39.After analysing the evidence at §§24 to 33 of the Determination, the Tribunal found the complaints proved for the reasons given in §§34 to 40. Mr Tang contended before us that the clients’ statements constituted the only evidence to prove the serious allegations. Mr Ling contended there is other supporting evidence apart from the clients’ statements. Irrespective of whether there were other grounds for finding the complaints or part of them proved, in view of the nature of the Main Allegations, it cannot be gainsaid that the contents of the clients’ statements did play an important or material part in the conviction. 40.The Tribunal has this to say in §34 regarding the statements of the 21 clients:
This appeal 41.Mr Tang advanced two main grounds in the respondents’ supplemental notice of appeal: the inadmissibility of the 21 clients’ statements which is hearsay evidence, and the unreliability of those clients’ statements. For reasons which will become apparent, we will focus on Mr Tang’s submissions that the Tribunal erred in admitting and relying on hearsay evidence. Admissibility of hearsay evidence in solicitors disciplinary proceedings 42.In gist, Mr Tang’s contentions on the admissibility of hearsay evidence in the present context may be stated as follows:
43.On behalf of the Law Society, Mr C W Ling submitted in reply that Rule 14 does not debar the Tribunal from admitting hearsay evidence in solicitors disciplinary proceedings. His submission is along these lines:
44.In reply, Mr Tang made these points:
Analysis 45.Adducing evidence by an affidavit on the material facts supporting a complaint is commonly used in solicitors disciplinary proceedings[26]. Provision has been made for this in Rule 14. Where the deponent is the Director of Compliance or one of the other officers of the Law Society, who is not expected to have personal knowledge of the facts pertaining to the allegations in the complaint, the affidavit evidence would be hearsay in nature. 46.We do not read Rule 14 and/or the May 2021 Directions as prescribing or deciding that the evidence of witnesses is to be received only by affidavit and no other method. Mr Tang appears to be skirting the issue in submitting that there is no need to decide whether Rule 14 is permissive or mandatory. We agree with Mr Ling that Rule 14 is permissive. On a fair reading of the May 2021 Directions, it cannot be suggested that the Tribunal had decided that all evidence in the proceedings must be received on affidavit without exception. There may be situations where it is not possible or reasonably practicable to obtain an affidavit from a person who had previously provided evidence by other means (such as a statement), making the procedure in Rule 14 inapplicable. The situations envisaged are where there is genuine inability to provide evidence on affidavit, unlike those instances where a party is seeking to avoid or disregard the directions of the court to have a deponent attend for cross-examination, as in the cases cited by Mr Tang. His submission that the admission of affidavit evidence should be governed by Rule 14 and section 47 does not prevail over Rule 14 is not to the point. 47.To overcome the kind of genuine inability mentioned above, resort may be had to the provisions governing hearsay evidence. Hearsay evidence may be admitted in the disciplinary proceedings. Rule 35 provides that the Evidence Ordinance shall apply to proceedings before the Tribunal, in the same manner as it applies in relation to civil proceedings. Needless to say, the parties must have regard to the provisions in Part IV in seeking to admit or exclude hearsay evidence. 48.The problem here is that neither side had regard to the provisions in Part IV, and the Tribunal had not applied its mind as to the basis on which hearsay evidence should be admitted, which could have a bearing on estimating the weight that should be given to the hearsay evidence under sections 49(1) and (2), see Chan Wai Yee v Kwong Wai Piu [2022] HKCA 346 at §§18.2, 31.1. Whilst R5 has deposed to the information he received from R3 on the difficulty of asking some of the clients who had provided statements to be the respondents’ witnesses and only Mr Or agreed to be their witness[27], there is no information from the Law Society in this regard on the 22 clients who had provided statements to JLA. It is not known whether it would have been “reasonable and practicable” for the Law Society to have produced as witness any of the clients. 49.The Law Society did not serve notice to the respondents pursuant to section 47A(2) on the hearsay evidence it intended to adduce, “as is reasonable and practicable in the circumstances for the purpose of enabling … them to deal with any matters arising from its being hearsay”. Even though no rules have been prescribed under section 47A(1) for this purpose (in contrast to the English position), as stated by Lam J (as he then was) in Cheung Wei Man Vivien v Centaline Property Agency Ltd & Ors at §14: “As a matter of common sense and good case preparation and management, hearsay notice should be given well in advance to forewarn the other party so that if necessary, application could be made by him under Order 38 rule 21 for such witness to be called for cross-examination.” Although the Tribunal has power under section 47A(4) to admit the hearsay evidence where there is failure to give notice, this power may not be properly exercised without full information why notice to adduce hearsay evidence was not served. 50.We do not think the responsibility rests solely with the Law Society. The respondents have just as much an interest in this in seeking to exclude the hearsay evidence. Neither side sought directions from the Tribunal under section 47(1) to admit or exclude the hearsay evidence. The respondents did not seek directions under section 48 and Order 38 rule 21(1) to call the 21 clients for cross-examination on their statements as if they had been called by the Law Society and as if the hearsay evidence were their evidence in chief. 51.The Law Society has urged upon us that the admission of the hearsay evidence would not render the convictions unfair. The respondents have advocated the contrary position that the admission of hearsay evidence had deprived them of a fair trial. The prior question that must be resolved is whether the hearsay evidence should be admitted. Due to the procedural irregularities mentioned above, the issue of the admissibility of the hearsay evidence, which played a significant part in the convictions, has not been considered by the Tribunal, properly or at all. As relevant information has not been made available, this court is not in a position to decide whether the hearsay evidence should be admitted or excluded. 52.The appeal of the respondents should be allowed on the basis that the Tribunal has failed to consider whether the hearsay evidence should be admitted and, if admitted, the weight (if any) that should properly be placed on the hearsay evidence with regard to the considerations set out in sections 49(1) and (2). 53.In light of the above conclusion, it is not necessary and not appropriate to deal with the other ground of appeal being the unreliability of the clients’ statements, particularly in view of the order we would make to dispose of the appeal. Disposition 54.The respondents seek a dismissal of the complaints in the event that the appeal is allowed and oppose an order remitting the complaints to be heard by a differently constituted tribunal. Mr Tang submitted that a fair trial is not possible, praying in aid the considerations he had urged upon the Tribunal when he sought permanent stay of the proceedings on the ground of long delay in the institution of proceedings[28]. He stressed that the delay of over ten years makes it impossible for justice to be done due to the “sheer frailty of human memory”. He argued there must be balancing of the public interest. Whilst the community should be protected against the misconduct and abuses of professionals and their staff, this must be balanced against the interest of justice in that proceedings must not be brought in circumstances that are oppressive and an abuse of process. 55.We have weighed the competing considerations of public interest. We think it is appropriate in all the circumstances that the complaints should be remitted to a differently constituted tribunal. The issue of admissibility of the hearsay evidence has yet to be properly resolved. The newly constituted tribunal may admit or exclude the hearsay evidence and impose conditions for admitting the evidence. We should not pre-empt its decision on this. The respondents may renew their application for permanent stay of proceedings depending on the order and directions made by the tribunal on the hearsay evidence. We do not think this is oppressive or prejudicial to the respondents. 56.Accordingly, we allow the respondents’ appeal, set aside the Determination and the Decision, and order that the complaints be remitted to be heard by a differently constituted Solicitors Disciplinary Tribunal. Costs 57.There is no dispute that costs of the appeal should follow the event. We order the Law Society to pay the respondents’ costs of this appeal. 58.We make an order nisi as regards the costs below. The costs ordered in the Decision are made up of three items: (1) costs and disbursements of the investigation by the Law Society assessed at $298,000; (2) costs of the clerk of the Tribunal assessed at $75,300; and (3) costs of the prosecutor in the proceedings, inclusive of all costs reserved, to be taxed by a Master of the High Court on a full indemnity basis if not agreed. 59.As we are of the view that both sides should take some blame and have played a part in not having the issue on hearsay properly dealt with by the Tribunal, we think it is appropriate to make no order as to costs on items (2) and (3). As for item (1), we think it is appropriate to reserve this to the newly constituted tribunal for an appropriate order to be made depending on the outcome of the re-trial. There will be an order nisi in the above terms.
Mr C W Ling, instructed by Deacons, for the Applicant (Respondent) Mr Ronald Tang, instructed by John W Wong & Co, for the Respondents (Appellants) [1] Chaired by Mr Law Wing Chung Vincent, with Mr Nicholas Bodnar-Horvath and Dr Lam Chi Yan as members. [2] Rules 2(a), (b) and (d) of SPR provide:
[3] Principles 2.03 and 5.11 of the Guide provide:
[4] Section 2(2) of LPO provides:
[5] Wong Chik Hung (on 15 March 2013, against R2 and R3), Chan Bing Kwan (on 4 October 2013, against R2, R3 and R5) and Wong King Pui (on 24 October 2013, against R1 and R3). Wong Chik Hung’s complaint was withdrawn on 5 July 2013 and he lodged a complaint to the Law Society against Mr Leung instead on 11 July 2013. Chan Bing Kwan withdrew his complaint on 22 October 2013. As for Wong King Pui’s complaint, an Investigation Committee of the Law Society resolved on 11 July 2018 there was insufficient evidence and informed R1 and R3 there will be no further action. [6] §16(3) of the Decision mentioned “employment of the 5th Respondent”, this would appear to be a clerical error. [7] See complaint sheet, §§4, 8, 9, 10, 19, 23, 33, 37, 45, 49, 59, 62, 63, 64; affidavit of Tung Margot Yin Ka (“Ms Tung”) dated 3 October 2019 (“Tung 1st Aff”), §§12, 13, 17, 19, 20; affirmation of Mr Leung dated 9 August 2021 (“Leung’s Aff”), §§17, 22, 26, 28; opening submissions of prosecutor for the Law Society at the disciplinary hearing dated 19 April 2022, §§6 to 11; Determination, §§25 to 27. [8] The names of these nine clients and a summary of the relevant contents of their statements are set out in the Determination at §30. Three of the statements were undated, the rest bore dates in February 2013 and March 2013. In addition, Mr Leung exhibited a statement dated 26 February 2013 of a tenth client as an example of clients who had signed letters purportedly terminating JLA’s retainer but had never intended to do so, see Determination at §§31, 32. [9] Five of the former clients of JLA had withdrawn their application to vary the Injunction. [10] The respondents appealed against the dismissal of their application for permanent stay in CACV 595/2020. They informed the Law Society by letter dated 19 April 2021 that with counsel advice, they would not proceed with this appeal. [11] The names of these 12 clients and a summary of the relevant contents of their statements are set out in the Determination at §33. These statements bore dates in February and March 2013. Mr Leung did not mention why these 12 statements were not exhibited earlier. [12] The three clients who provided statements to the police were among the 22 clients whose statements have been exhibited to Leung’s Aff in HCA and Leung’s Aff. [13] Section 47(2) of the Evidence Ordinance, Cap 8 (which provides that the court may determine whether or not to exclude evidence on the ground it is hearsay … at the conclusion of the proceedings) does not prescribe that the court must leave the question of admissibility of hearsay evidence to the end of the trial. It only provides that the court may do so. See Cheung Wei Man Vivien & Anr v Centaline Property Agency Ltd & Ors, HCA 286/2000, 25 September 2003, Lam J, at §18. [14] Citing Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117 at §§113 to 116, as per the test propounded in Re H & Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586D to G. [15] Determination, §§30, 33 [16] Determination, §§9, 15 [17] Citing R v Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 QB 456 at 488B to F, per Diplock LJ; Re Lo Wing Tong [1990] 1 HKLR 325 at 329F to 330J, per Cons VP. [18] [2011] EWHC 1585 (Admin), at §108, per Stadlen J, with the concurrence of Law LJ. [19] Equivalent to Article 11(2)(e) of the Hong Kong Bill of Rights, Cap 383 (“BOR”). [20] Equivalent to Article 11(1) of BOR. [21] Determination, §§35, 36, 38, 39 [22] Cheung Wei Man Vivien & Anr v Centaline Property Agency Ltd & Ors at §12 [23] Section 47(4) provides: “The provisions of sections 48 to 51 shall not apply in relation to hearsay evidence admissible apart from this section, notwithstanding it may also be admissible by virtue of this section.” [24] High Fashion Garments Co Ltd v Ng Siu Tong & Ors [2004] 1 HKLRD 928 at §§15, 16; Cheung Wei Man Vivien v Centaline Property Agency Ltd & Ors at §8. [25] Section 55B(1) provides: “Nothing in this Part affects any powers of the court to exclude evidence on grounds other than that it is hearsay.” [26] Determination, §2 [27] Affirmation of R5 dated 22 June 2021, §15 [28] He cited a case of the Court of Appeal of New South Wales on stay of disciplinary proceedings due to long delay amounting to abuse of process, Herron v McGregor & Ors (1986) 28 A Crim R 79 at 86. |
Cases cited in this judgment