Abc v. Law Society of Hong Kong
Read the full judgment text of HCAL 1215/2023 on BabelCite. This High Court CFI judgment was delivered on 19 September 2025.
1. It would be no surprise if a person who makes a complaint about a solicitor, which complaint is taken up and prosecuted, might feel aggrieved if he (the complainant) is then in effect excluded from participation or even knowledge about the prosecution process. It might well give rise to the sense of frustration and injustice, of the sort which has triggered and which permeates these proceedings.
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HCAL 1215/2023 [2025] HKCFI 4151 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1215 OF 2023 ________________________
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___________________ J U D G M E N T ___________________ A. Introduction 1.It would be no surprise if a person who makes a complaint about a solicitor, which complaint is taken up and prosecuted, might feel aggrieved if he (the complainant) is then in effect excluded from participation or even knowledge about the prosecution process. It might well give rise to the sense of frustration and injustice, of the sort which has triggered and which permeates these proceedings. 2.In 2019, the Applicant made a complaint to the Law Society against DEF, a Hong Kong solicitor, for representing his mother (“Mother”) from 2010 to 2015 while she lacked mental capacity. After years of not knowing whether the Law Society did anything with the complaint, the Applicant sought help from the Chief Judge of the High Court (“CJHC”) pursuant to the Legal Practitioners Ordinance Cap 159 (“LPO”) to compel the matter to be referred to the Solicitors Disciplinary Tribunal (“SDT”). 3.The Applicant, of course, was eager to see DEF disciplined for what he alleges is grave misconduct. So when the Law Society told him that he was not a “party” to the proceedings before the SDT on 18 April 2023 (“Decision”) – and thus, he could not (amongst other things) inspect relevant documents (including those submitted by DEF) and would be shut out from the confidential SDT proceedings – the Applicant was understandably aggrieved. So he brings the current proceedings to challenge the Decision. 4.On 18 July 2023, I made an anonymity order in these proceedings on an ex parte basis. On 3 January 2024, I dismissed the Law Society’s summons to set aside the anonymity order, and I reserved the issue of costs to be dealt together with at the conclusion of the rolled-up hearing (see below), for which I had already given directions. 5.At the rolled-up hearing, the Applicant was represented by Mr John Hui and Mr Kevin Lau of Counsel, and the Putative Respondent Law Society was represented by Mr Abraham Chan SC, leading Mr John Cheung of Counsel. I excused the Putative Interested Party from attendance. At the end of the hearing, I reserved my decision. 6.This is my Judgment. B. The Legal Framework for Disciplinary Complaints 7.It is useful first to introduce the legal framework for handling complaints made against solicitors alleging professional misconduct (such as the Complaint). 8.In this regard, I accept that the legislative framework reflects broader public interest in the proper regulation of the solicitors’ profession, and provides for a structure of self-regulation administered by the profession – the regulation of lawyers by lawyers. Therefore, it might be said that the systemic focus relates to ensuring the integrity of the profession as a whole. 9.There are two ways through which the SDT might become aware of a matter of professional misconduct.
10.This is reflected in Chapter 15 ‘Complaints and Discipline’ of The Hong Kong Solicitors’ Guide to Professional Conduct, which identifies that investigation procedures are usually initiated by a written complaint (in a Complaint Form), but that the Standing Committee on Compliance can also investigate matters of its own motion. It also points out that details of the investigation procedure can be found in “Notes to Parties to a Complaint” (“Notes”), being guidance notes published by the Law Society from time to time. 11.This is also reflected in rule 3 of the Solicitors Disciplinary Tribunal Rules Cap 159C (“SDT Rules”), which provides (emphasis added):
12.The Law Society provides guidance to a private complainant via its Notes, which guidance pertains to the time between (1) the receipt of the complaint by the Law Society, and (2) the potential submission of the matter to the Tribunal Convenor of the SDT Panel. 13.The following matters may also be relevant, as can be found in the Notes:
14.The Law Society’s function during this time is to compile information. 15.Pertinently, if the Law Society is satisfied there is a prima facie case of professional misconduct after receiving the complaint, the Law Society will seek an explanation from the respondent (the solicitor against whom the complaint has been made). As the Notes make clear, a complainant will then have the opportunity to comment on the respondent’s explanation. These explanations – along with other information – will then be compiled into a report for the consideration of an Investigation Committee of the Law Society (paragraphs 5(v)-(vii)). On the strength of this report, the Law Society will then see if the matter should proceed to the SDT Panel. 16.Of course, the Law Society could – for a variety of reasons, good or bad – fail to submit a complaint to the Tribunal Convenor of the SDT Panel. That is where section 9A(2) of the LPO comes in, which provides (emphasis added):
17.As section 9A(2) makes clear, this back-up mechanism only comes into play if a “complaint is made to the Council”. In other words, it only applies if there was a rule 3(1) complaint to begin with. 18.After the Law Society refers a matter of professional misconduct to him under section 9A of the LPO, the Tribunal Convenor of the SDT Panel will then appoint from the Panel 2 solicitors and one lay person to constitute the SDT: see section 9B(1) of the LPO. 19.Section 9B(3) of the LPO provides that the Council of the Law Society may be represented at proceedings before the Tribunal (which seems to suggest that right to be represented even if not otherwise a “party” to those proceedings). Section 9B(4) provides that the Tribunal shall sit in camera in the places and at the times it directs. 20.Section 10 of the LPO provides for the powers of a SDT, whose main power is to enquire into and investigate the conduct of any person in respect of which it was appointed. Section 11 provides for the ancillary powers of a SDT. Section 12 provides for the findings and orders that can be made by a SDT. 21.Section 13 of the LPO relates to potential appeals against any order made by a SDT. An appeal lies to the Court of Appeal, and in any appeal made by the person whose conduct was the subject of the inquiry the Law Society shall be the respondent. Where the Council, with leave of the Court of Appeal, appeal is an order of a SDT, the Society shall be the appellant and the person whose conduct was the subject of the inquiry shall be the respondent. 22.The various procedural rules which govern proceedings under the SDT (i.e. after a complaint is submitted to the Panel of the SDT and an SDT is constituted) are set out in the SDT Rules. 23.Who is a “party” under the SDT Rules seems to be determined by Rule 7, titled “Parties”. It provides as follows (emphasis added):
24.Being a “party” gives that person other rights and obligations under the SDT Rules. Reference for present purposes should be made to rules 8, 10, 11, 12, 13, 14, 15, 17, 25 and 30. Though I can summarize their apparent effect below, those provisions in full are as follows:
25.Hence, amongst other things, the SDT Rules provide a set of rights to a “party to the proceedings”.
C. Factual Narrative C.1 The Singapore Proceedings 26.The Mother is a wealthy Singaporean who inherited substantial wealth. Unfortunately, in late 2010, the Applicant’s younger sister (“Sister”), together with her husband, abruptly cut the Applicant’s and others’ access to the Mother and removed the Mother from Singapore to Hong Kong. Such was the state of affairs until 2015. During this time, the Mother purportedly signed several documents that were not in her best financial interests. These suspicious transactions included the establishment of a trust and the transfer of substantial assets to DBS Bank, which were of no discernible benefit to the Mother. 27.Litigation concerning the Mother’s mental capacity pursuant to the Singapore Mental Capacity Act (“MCA”) commenced in early 2011. These proceedings were commenced by the Mother’s two sisters (and supported by the Applicant, amongst others). 28.On 11 December 2012, the Singapore District Court found that the Mother suffered from severe memory impairment, lacked capacity to make decisions concerning her property and affairs, and suffered from confabulations and delusions. The District Court also concluded that the Mother did not have capacity to instruct solicitors, understand documents and applications, or manage her property and affairs (“SGDC Judgment”). 29.The SGDC Judgment was overturned by the Singapore High Court on 1 October 2013, primarily because the High Court thought that the District Court lacked jurisdiction to hear the application under the MCA. 30.However, by judgment dated 19 May 2015 (“SGCA Judgment”), the Singapore Court of Appeal overturned the High Court’s judgment. It was further found by the Court of Appeal that (1) there was ample evidence that it was “evident” that the Mother had suffered from deterioration of memory since 2005, which was contemporaneously documented by (amongst others) several bankers, (2) the Mother was impaired or disturbed in the functioning of her mind, which in turn caused a significant decline in her memory and an observable deterioration in her executive functions, including and especially her ability to understand information or weigh countervailing considerations against one another, (3) she lacked mental capacity at least from late 2010, (4) she was acting under the undue influence of the Sister and her husband, and (5) she was unable to act independently, even with assistance from professional advisors after access to her family was cut off. 31.At a further hearing on 24 November 2015, the Singapore Court of Appeal appointed 3 professional Deputies – including the Mother’s sisters – and an independent legal advisor for the Deputies (“Singapore Advisor”) – in late 2015 and early 2016. 32.During this period when the Mother lacked mental capacity, DEF acted for the Mother in Hong Kong. 33.When the Applicant (and other members of the family) tried to see her, DEF (via his previous law firm) issued letters on 21 December 2010 and 5 January 2011 to the Applicant. Collectively, they accused the Applicant of harassing the Mother. They even demanded a “non-molestation” undertaking from him, and further threatened to sue the Applicant for injunctive relief. 34.DEF also continued to represent and advise the Mother, and render legal services despite the SDC Judgment, which should have put him on notice of the Mother’s incapacity. 35.The Mother made no less than 9 affidavits in the Singapore proceedings, some in support of the interlocutory applications. DEF purportedly explained these affidavits to her and arranged for them to be notarised in Hong Kong. But as the Singapore Court of Appeal found, the Mother could not remember signing any of her affidavits or making any interlocutory applications. Worse still, the Court found that the Mother could not remember documents shown to her just 20 to 35 minutes earlier. 36.DEF purported to communicate with the Mother via her email account (“Email Account”). But since the Mother was at the material times an elderly widow in her late 70s, and she was unlikely to be able to type, let alone operate a computer or communicate by email, there was always a very grave possibility that it was not the Mother who was using the Email Account. Indeed, as the SGDC Judgment states, the Email Account was actually created by the Applicant’s sister, who impersonated the Mother by preparing, sending, and receiving emails on the Mother’s account. C.2 The Complaint 37.On 30 August 2019, the Applicant (and not the Law Society itself) made a complaint against DEF (“Complaint”). 38.The Complaint accused DEF of breaching various provisions of the Hong Kong Solicitors’ Guide to Professional Conduct (“Guide”), including Principles 5.01, 5.04, 5.07, 5.15, 7.01, 7.02, and the Solicitors’ Practice Rules Cap 159 (“SPR”). Most relevantly:
C.3 Post-Complaint Exchanges 39.On 16 September 2019, the Law Society acknowledged receipt of the Complaint. 40.On 12 December 2019, an Investigation Counsel (of the Investigation Committee) of the Conduct Section of the Law Society, Ms Wendy Youh, sent another letter to the Applicant ("12 December 2019 Letter"), which read as follows:
41.At this juncture, it should be remarked that the Applicant was not an “opposing party” in the Singapore proceedings, albeit he supported the application under the MCA. Rather, he was a witness in proceedings that were commenced for the benefit of the Mother. 42.Further, the Law Society seemed to suggest that the reason why the Applicant would not be informed of progress was because legal professional privilege (“LPP”) attached between the Mother and DEF, and/or there were (unspecified) conflicts of interest. 43.On 19 December 2019, the Applicant responded as follows (“19 December 2019 Letter”): (1) he thanked the Law Society for taking up the matter and commencing “its own” investigation on the Complaint, (2) he appreciated there might be potential issues of LPP and conflict of interest as regards the Complaint, (3) though he was “technically” an opposing party, the proceedings were really brought in the Mother’s best interests, and (4) following the Singapore Court’s decisions, the Deputies were entitled to decide “whether and to what extent, legal professional privilege and/or any potential conflict of interest are to be waived, concerning the Law Society’s investigation on the complaint”. Thus, he asked the Law Society to direct queries and correspondence to the Singapore Advisor. 44.More significantly, in the same Letter, he stated as follows:
45.On 17 January 2020, the Applicant sent the Law Society another letter (“17 January 2020 Letter”). In essence, the Applicant told the Law Society that (1) the Law Society of Singapore was ordered to convene a new disciplinary tribunal to investigate and hear a complaint against an eminent Singapore lawyer who had also acted for the Mother when she lacked mental capacity, (2) he had made a similar complaint against DEF (i.e. the Complaint), (3) the Complaint was a matter of great public importance, and (4) it should “thoroughly and promptly [investigate] my complaint against the Respondent” (i.e. DEF), and to keep the Deputies and himself fully informed of the status and outcome of the Law Society’s investigations, as a matter of fairness and transparency. 46.It is also important to remark that at this point, the Applicant obviously still thought that he was the complainant. 47.On 19 March 2020, Ms Youh of the Law Society responded as follows (“19 March 2020 Letter”):
48.From this letter, it is plain that the Law Society also recognised that the complainant was still the Applicant. I do not think the reference to the fact that the Law Society would “consider and deal with the matter” would have signified anything other than that it would address the Complaint as made under rule 3(1). It also did not respond to the Applicant’s request that he be updated as to the status of the investigation. 49.Thus, on 24 April 2020, the Applicant sent two letters marked for the attention of the Standing Committee on Compliance of the Law Society. In these two letters ("24 April 2020 Letters"), the Applicant stated that:
50.Perhaps rather confusingly, on 28 April 2020, Ms Youh of the Law Society then sent the following letter to the Applicant (“28 April 2020 Letter”). The relevant portions are as follows.
51.The Law Society sent a further holding letter on 22 May 2020 to the Applicant in respect of his query as to whether the Complaint had yet been relayed to DEF. 52.On 22 May 2020, the Applicant sent a further letter explaining why LPP could be waived, or alternatively, did not apply (“22 May 2020 Letter”).
53.In the same letter, the Applicant disclosed various (but not the full set of) written communications from 2011 to 2015 between (amongst others) the Mother and DEF. He also told the Law Society that he came into possession of these communications after (1) the Deputies disclosed them to the Applicant’s Singaporean solicitors, when the Deputies filed an urgent action in Singapore in April 2016 to set aside a purported will made by the Mother in 2011, and (2) the Mother disclosed these communications to him in mid-June 2015, after she was able to escape from her “enforced isolation”. In such situations, the Applicant contended, such disclosure by the Deputies and the Mother herself constituted waivers of any LPP in such communications between DEF and the Mother. 54.On 8 June 2020, Ms Youh sent a response to the Applicant on behalf of the Law Society (“8 June 2020 Letter”), telling him that (1) given the Mother was not the complainant and owing to the “confidential nature of our investigation”, the Applicant may seek a waiver of LPP if he so wished, (2) all his “representations” would be included in the report to the Investigation Committee, (3) but he had to make all his representations on or before 22 June 2020. 55.On 12 June 2020, the Applicant told the Law Society (“12 June 2020 Letter”) that he would contact the Singaporean Advisor on the issue of waiver of any LPP in respect of communications between the Mother and DEF, which concerned the subject of his complaint and the Law Society’s investigation. He also stressed that LPP should not prevent the Law Society from investigating DEF’s conduct. But save for these two things, he had “no further representations in this matter” and looked forward to the Investigation Committee’s conclusions. 56.Clearly out of an abundance of caution, the Applicant sent the Law Society the following, so that the investigation could proceed smoothly:
57.On 18 September 2020, DEF sent a letter to the Law Society (“DEF Email”), which responded to the Waiver Email and Written Authorisation. Amongst other things:
58.On 21 October 2020, the Applicant made his representations in response to the DEF Email, the contents of which were very similar to the 24 April 2020 and 22 May 2020 Letters in relation to LPP. Further, the Applicant noted that the DEF’s continued refusal to accept that the Mother lacked capacity in instructing him (and his firm) was “extraordinary”. 59.The Applicant wrote further letters on 18 December 2020, 29 January 2021, and 3 February 2021. These letters drew (or should have drawn) the Law Society’s attention to how the Singaporean Court of Appeal ordered the Law Society of Singapore to act on the complaint made against the Mother’s Singaporean lawyers at the time she lacked mental capacity. 60.On 16 March 2021 – after some further exchange between the Applicant and the Law Society – the latter informed the Applicant that a report had been placed before an Investigation Committee, in line with paragraph 5(vii) of the Notes. 61.On 13 July 2021, the Applicant was informed of the Investigation Committee’s decision after it perused the investigation report by Mr Chan Tat Hin Pierre, the Chairman of the Standing Committee on Compliance (“13 July 2021 Letter”).
62.Again, at this juncture, it may be important to note that the Law Society no longer regarded matters of privilege or conflicts of interest as reasons not to inform the Applicant of “progress or result” of the investigation. This, of course, is consistent with the 28 April 2020 Letter, where the Law Society seemed to distance itself from the 12 December 2019 Letter which provided that it would not inform the Applicant of the progress of the Complaint / investigation against DEF precisely because of matters of LPP / conflicts of interest. 63.On 19 July 2021, the Applicant wrote to the Law Society again (“19 July 2021 Letter”). Amongst other things:
64.In the premises, the Applicant also asked the Investigation Committee to give all its reasons for not keeping the Applicant ‘in the loop’. However, the Law Society declined to give further reasons on 26 July 2021, as it was not “performing a judicial function”. It only asked whether the Applicant would wish for the Standing Committee on Compliance of the Law Society to review that decision. The Applicant took up this option on 28 July 2021. 65.However, on 25 November 2021, the Standing Committee upheld the Investigation Committee’s decision not to inform the Applicant of progress or result of the investigation (“25 November 2021 Letter”). 66.On 2 December 2021, the Applicant expressed regret at the Standing Committee’s decision (“2 December 2021 Letter”). The Letter further contained the following.
67.On 7 December 2021, Mr Christopher KK Yu, the Chairman of the Standing Committee on Compliance, wrote on behalf of the Law Society to the Applicant (“7 December 2021 Letter”). It relevantly provided as follows (emphasis added):
C.4 The CJHC Application 68.The Applicant did exactly that on 17 January 2022 (“CJHC Application”) under section 9A(2) of the LPO. On 18 January 2022, the CJHC directed the Law Society to state (1) whether it objects to the application by the Applicant, and (2) the reasons of the objection on or before 25 January 2022 69.On 24 January 2022, the Law Society sent a response to the CJHC. The relevant provisions are as follows:
70.On 26 January 2022, the CJHC granted the CJHC Application. The Law Society also indicated, in reply, that it would appoint a Prosecutor to handle the matter and draft the relevant documents, and it would obtain all “potentially relevant information” before submitting the complaint to the Tribunal Convenor. To obtain such relevant information, the Law Society sought a time extension until 9 March 2022 for the submission of the complaint. 71.In his letter to the CJHC (copying the Law Society), the Applicant particularly welcomed the Law Society’s comments that the Tribunal should have “all potentially relevant information” before it, which would include the Applicant’s comments on DEF’s explanation as to why he did not commit professional misconduct. 72.In these circumstances, the CJHC granted the application for time extension. 73.However, after the Applicant wrote to the Law Society asking for DEF’s explanations on why he did not commit misconduct, such that all relevant information could be placed before the Tribunal, the Law Society refused. This was because:
C.5 Events after the submission of the Complaint 74.On 22 March 2022 and 8 April 2022, the Applicant sent letters to both the Law Society and Mr Keith Brandt, the Tribunal Convenor asking for the names of (1) the Prosecutor appointed by the Law Society, and (2) the two solicitors and one lay person who would constitute the Tribunal and who would inquire into and investigate the Complaint. This was for two main purposes: (1) to ensure there would be no conflict of interest, actual or potential (given that the Applicant and DEF are senior members of their professions), (2) the Applicant wished to prepare a witness statement, give oral evidence, and be cross-examined before the Panel and assist with the fact-finding process – and to expedite matters, he wished to directly liaise with the Prosecutor concerning the relevant arrangements. 75.On 13 April 2022 (“13 April 2022 Letter”), however:
76.Given the Law Society’s stance, the Applicant did not further substantively engage with it anymore. He only asked – in a letter dated 19 April 2022 – that the Prosecutor be forwarded his letter dated 22 March 2022 (if he had not received it already). 77.A year later, there was still no “update”. As he explained in his evidence, the Applicant thought that by then the Prosecutor would have had ample time to familiarise himself or herself with the Complaint and relevant papers, but the Applicant was concerned that no one had approached him to request any further information or materials ought to be a witness. He was at a loss as to how the Prosecutor could properly present the Complaint to the SDT Panel without calling him or any factual witness with first-hand knowledge. Thus, on 17 March 2023, the Applicant sent a further letter to the Law Society (“17 March 2023 Letter”). In this Letter:
78.On 18 April 2023, the Law Society sent a response (“18 April 2023 Letter”). This is also the “Decision”.
79.On 19 May 2023, the Applicant pushed back on the notion that he was not a party to the SDT Proceedings, in light of rules 3(1) and 3(2) of the SDTR. This contention, of course, is central to the current judicial review proceedings and will be explored later on. In the same letter, the Applicant also attached an Order made by the Singapore Court dated 29 November 2022 that the Applicant was to have conduct of “closely related disciplinary proceedings” against the Singapore lawyer who acted for the Mother during the material periods. 80.On 2 June 2023, the Law Society sent a letter to the Applicant (“2 June 2023 Letter”). For the first time, it provided the following relevant contentions:
81.This Letter further provided that according to the authorities, a private complainant has no right to see privileged documents, and a complainant’s “rights and obligations” are not involved in proceedings before the SDT. Rather, those proceedings are not to determine the complainant’s own rights and obligations, but to determine the alleged misconduct of solicitors. 82.In his evidence, the Applicant drew the contrast between the approach to the disciplinary proceedings in Singapore, where the Applicant has conduct of them, and the approach in Hong Kong. As he put it, the Law Society’s and Prosecutor’s stance in Hong Kong towards him comprises “three nos: no enquiries, no communication, and no coordination with closely related Singapore disciplinary proceedings”. 83.However, it is fair to note that shortly before the hearing – and well after commencement of these proceedings – the Court was informed (by letter copied to the Applicant) that: the SDT Proceedings had not yet been concluded; the parties had filed their respective evidence and were currently in the process of agreeing to statements of agreed facts and disputed facts; and that the Law Society and the Prosecutor had decided that it would not be necessary to approach the Applicant and ask for his assistance “at this time”. D. Grounds of Review 84.Against this backdrop, and by his Form 86, the Applicant advances two grounds of review against the Decision.
85.In these circumstances, the Applicant seeks (inter alia) the following relief:
86.The Law Society, of course, contends that the grounds of review are not made out. It also contends that the present judicial review is very late, such that the challenge should be dismissed in its entirety. I will deal with the latter contention first. E. Delay 87.The Law Society contends that it had “took over the complaint” as early as in the 12 December 2019 Letter (i.e. the Complaint went from one made under rule 3(1) to one under rule 3(2)). This decision – it is said – plainly refused to recognise “the Applicant’s status as a party” to the SDT proceedings, appoint him (or allow him to appoint someone else) as prosecutor, and disclose the responses or materials submitted by DEF. 88.In such circumstances, the application is thus outside the time limit stipulated under Order 53, rule 4(1) of the Rules of the High Court Cap 4A. The challenge should only proceed if time is extended. It is necessary to consider (1) the length of the delay, (2) the explanation for the delay, (3) the merits of the substantive application, (4) questions of prejudice, and (5) whether there are questions of general public importance: see AW v Director of Immigration [2016] 2 HKC 393 at §37. 89.However, I do not agree that the Law Society made a decision on 12 December 2019 which refused to recognise the Applicant’s status as a party in the SDT Proceedings (which is the crux of the present judicial review). Amongst other things, and as alluded to above, Mr Yu of the Standing Committee of the Law Society recommended the Applicant to take out the CJHC Application, such that the Applicant’s matter (“your matter”) could be pursued, on 7 December 2021. In other words, the Law Society plainly recognised that even after 12 December 2021, the Complaint was brought by someone other than the Law Society. Further, I do not think the Law Society’s evidence is correct when it suggests that the disciplinary proceedings were not commenced pursuant to an application made under Rule 3(1) of the SDT Rules but an application made under Rule 3(2), pursuant to the directions made by the Chief Judge. Indeed, if the Complaint was ‘converted’ from one made under rule 3(1) into one made under rule 3(2), that was after the CJHC Application, at the very earliest. 90.The first time that the Law Society made clear that in its eyes the Applicant was not the “complainant” anymore was in the 13 April 2022 Letter. So, it can be said that the Applicant should have appreciated that the Law Society made a decision not to recognise the Applicant as a “party” to the proceedings as from then. The Form 86 was issued a year after the 13 April 2022 Letter, so there is some force in the Law Society’s argument that the current proceedings were commenced late. 91.Nonetheless, even assuming the proceedings are late, I extend time for the present judicial review for the following reasons. 92.First, I think that the current judicial review is of considerable public importance. At its core, it concerns what rights an aggrieved complainant may enjoy in proceedings against a solicitor accused of professional misconduct under the SDT Rules. It also concerns the ambit of the decisions in Delhaise v A Solicitor (unreported, CACV 147/2004, 8 June 2005) (“Delhaise (CA)”) and Delhaise v Law Society of Hong Kong (unreported, HCAL 143/2007, 29 July 2008) (“Delhaise(CFI)”). While finality in the administration of justice is an important factor, it is outweighed in the present case. 93.Second, the Law Society does not claim any prejudice that it itself would suffer if time were to be extended. In sharp contradistinction, the Applicant may suffer grave prejudice – particularly when this concerns a family matter – if he was ultimately not able to have any sort of input in the SDT Proceedings, or if he was deprived of the exercise of his statutory rights when he should not have been. 94.Third, as I indicate below, the judicial review is of strong merit. That may be why the Law Society did not seem to explain in the 13 April 2022 Letter why the Applicant was no longer a complainant. 95.I turn to Ground 1 now. F. Ground 1 F.1 Is the Applicant a “party”? 96.The crux of the judicial review is simple: is the Applicant a “party” to the SDT Proceedings? If so, is he entitled to the catalogue of statutory rights under the SDT Rules? 97.There can be no dispute as to the principles of statutory construction, and they do not need to be rehearsed at any great length. It is an iterative and dynamic process. The proper starting point is to look at the relevant words, having regard to their context and purpose, taken in the widest sense and including other provisions of the statute and the existing state of the law. The object of the exercise is to ascertain the legislative intent of the language used in the statute. 98.Giving a statutory provision a purposive interpretation, however, does not permit the Court to distort or even ignore the plain meaning of the text, or to construe the statute in whatever manner achieves a result which the Court may consider desirable. That is not permissible. Purposive construction means only that statutory provisions are to be interpreted to give effect to the intention of the legislature, to be ascertained by a proper application of the interpretative process. 99.I also accept that the relevant provisions of the framework need to be read holistically, with the view of achieving an interpretation which has coherence and consistency. 100.Bearing those principles in mind, prima facie the Applicant is a party to the SDT proceedings. The Complaint was made by the Applicant to the Law Society. In other words, the Applicant is a complainant under rule 3(1) of the SDT Rules. Rule 7 clearly states that “in the case of the application under rule 3(1), the applicant”, together with the accused/respondent solicitor, will be parties. 101.As canvassed above, a party to the SDT Proceedings has various rights under the SDT Rules. 102.Addressing the Law Society’s evidence, it is said that where the complainant is not the client of the solicitor, or where the complaint might involve issues such as LPP or conflict of interest, the Law Society’s usual approach is to treat the “complainant” as an “informant”, and to take up the complaint in place of the “informant” as the “complainant”, so that the Law Society can conduct investigation into the complaint matters against the respondent. It is said the Law Society has a working manual in relation to these matters, which is amended from time to time, but there is no formal policy as such. Hence, whilst generally speaking a “complainant” would be given the opportunity to comment on the respondent’s explanation, that does not apply to an “informant”. 103.Mr Chan submits that despite the Applicant’s “nominal status” as a party under rule 7, the Applicant is still not entitled to the various rights as a party. 104.First, Mr Chan relies on Delhaise (CFI), which applies Delhaise (CA). On the strength of these two authorities, he submits I am bound by authority to conclude otherwise. It is thus useful to traverse the two authorities, which have the same background, in some detail.
105.In these premises, I cannot agree with Mr Chan’s submission that the Applicant is not a “party” under rule 7 of the SDT Rules by virtue of the two authorities above.
106.Second, Mr Chan submits that the referral to the Tribunal Convenor, after the CJHC’s directions, was made pursuant to rule 3(2) of the SDT Rules. It did so by way of a signed application and detailed affidavit sworn by a person appointed by the Council of the Law Society. It was this application that was accepted by the SDT. The Applicant did not protest at the time. Thus, according to rule 7, the “party” is the Law Society, and not the Applicant. This, apparently, is the Law Society’s “established practice”. 107.I reject that submission. I do not think the Law Society is allowed to do that on proper interpretation of the SDT Rules.
108.Insofar as the Law Society contends that it converted the Complaint from one being made under rule 3(1) to that under rule 3(2) as early as 12 December 2019 by “taking over” the Complaint, I see no mechanism in the SDT Rules and/or the LPO which allows that – except for the reference in rule 25 of the SDT Rules. There is also no documentary evidence of any policy which allows the Law Society to do so. That is also evidently not what happened in this case, as the Law Society suggested that the Applicant could make the CJHC Application. In any event, I doubt the materials provided by the Law Society to the SDT did not include the materials provided by the Applicant with his Complaint and which were added to by him thereafter. 109.Third, Mr Chan suggests that on a purposive interpretation, the Legislature could not have intended for someone like the Applicant to have procedural rights. This is because, he says:
110.I see some force in those submissions. The problem is that they fly in the face of the clear wording of the SDT Rules. If Mr Chan is correct, rule 7 should only limit the status of “party” to the particular respondent “in the case of a rule 3(1) application”, given that it is said that he is the only person whose substantive rights could be affected. But that is not what the rule says: the applicant (i.e. the complainant) is also given the status of a “party”, presumably with at least some attendant rights. 111.I am also not sure that it is entirely correct that a private complainant can be treated as having no interest (at all) in the outcome of SDT proceedings, even if the focus of those proceedings is to determine whether the respondent has or has not been guilty of professional misconduct. One of the purposes of such disciplinary proceedings is to ensure and uphold the appropriate professional standards, in the public interest. It might be thought that the private complainant is at least a representative of the public in bringing the particular complaint, and very often one whose interests may have been directly affected by the conduct of which he or she makes complaint. 112.Fourth, Mr Chan submits that it would not be right in the circumstances to give certain rights to the Applicant – most significantly, that of access to the materials submitted by DEF (which is covered by rule 10), as there are acute problems of LPP and conflict. 113.I do not think that logic holds. It essentially asks that the clear wording of the SDT Rules be again ignored. 114.Further, Solicitor v Law Society of Hong Kong (2006) 9 HKCFAR 175 shows how questions of privilege can be adequately tackled without depriving the Applicant of his status as a “party” under rule 7 of the SDT Rules. As Bokhary PJ said, what the SDT can do if DEF successfully asserts privilege over certain documents is to make directions under rules 9 or 32, so that the Applicant cannot access those documents (§23). 115.Further still, I do not think there are acute issues of conflict or LPP in the present situation.
116.I thus hold that the Applicant is a party to the SDT Proceedings, and he has rights under rules 8, 10, 12, 14, 15, 17, and 30. 117.I also think that there were some grave missteps during the time between (1) the Law Society’s receipt of the Complaint, and (2) before it referred the matter to the Tribunal Convenor. It seems to me quite straightforward that the Applicant should have been allowed to comment on DEF’s explanation, particularly when (as I have found) the concerns over LPP and conflicts of interest were not substantial. 118.It is also difficult to understand why it could ever be thought appropriate for the Applicant not even to be kept informed of the status and progress of the Complaint and the subsequent directed SDT proceedings. In this regard, analogous reference might be made to the Prosecution Code which (at §§14.4 and 14.5) emphasises that victims are amongst other things entitled to have their role in the proceedings fully explained and to be consulted during the course of proceedings about actions being taken, to be kept informed of the progress of the case, and to have their views considered by prosecutors and investigators. In any event, it seems to me that simple courtesy would dictate that the Applicant should at least have been and be kept properly informed of the status and progress of matters, which was and is perfectly possible notwithstanding any concerns about confidentiality. 119.The problem in part is a failure of communication, and as often happens with such a failure of communication it was almost bound to generate a sense of suspicion, or even distrust. That was, to say the least, both unfortunate and easily avoidable. F.2 Can the Applicant appoint his own counsel as prosecutor? 120.But even if the Applicant is a “party” and has a right to representation under rule 12, it does not necessarily mean that he is entitled to appoint independent Counsel or solicitors to replace the current Prosecutor. 121.I heard comparatively little argument on the ambit of rule 12. However, as a starting point, I see great force in Mr Chan’s submission that the particular relief sought – namely that the Applicant (and presumably other similar complainants) should have the legal right to appoint their own Counsel and solicitors to take over the prosecution from the Law Society and its prosecutor, that is to take away from the prime regulator a significant role in the process of regulation – has potentially enormous overall implications. 122.Mr Chan also invites consideration of the question whether, even assuming for present purposes it is right that this case involved a rule 3(1) complaint, that sensibly leads to the desired end point giving such an applicant the legal right to be the prosecutor or to take over the prosecution in place of the Law Society. 123.On the other hand, there is perhaps some force in what Mr Hui says, that there are only two parties to a rule 3(1) application sent before the SDT, and if one of them is the solicitor the subject of the inquiry, the other must be the prosecutor. That is the default situation, he says. However, that overlooks the power in the primary legislation for the Council to be present and represented at every SDT hearing. It seems to me to be unlikely that the Council (as the regulator) would be there with only some kind of observer status. 124.In any event, on balance, I do not think the Applicant can appoint his own Counsel as prosecutor.
125.I have already noted that under section 9B(3) of the LPO – the primary legislation – the Council may be represented at proceedings before the Tribunal. This seems to me to be consistent with the aim of and the ability for the Council to be represented in every case, likely for the purposes of itself pursuing the prosecution of the complaint. 126.I keep in mind that rule 11 of the SDT Rules deals with what might happen on the failure of any party to appear at the hearing. Amongst other things, the rule states expressly that, in the absence of the applicant, the SDT may in their discretion dismiss the application without a hearing. But that seems to me to say little more than that if a person who initiates the proceedings appears not want to carry them through, then the SDT may choose to dismiss the application without the necessity of the hearing – in circumstances where the rules do not allow withdrawal once a SDT is set up. Rule 13 also deals with the possibility of re-hearing after an earlier failure to appear. 127.I also think that section 13 of the LPO is also more consistent with my interpretation that the applicant’s right as a party to representation under rule 12 does not necessarily entitle that person to instruct the Prosecutor. Section 13 deals with appeals, and it provides that an appeal against any order made by a SDT shall lie to the Court of Appeal. Subsections 13(2) and (2A) identify that the appellant and respondent to such an appeal shall be the solicitor the subject of the inquiry and the Council (and no one else). That seems to me to identify that the protagonists on the appeal should reflect the protagonists before the SDT. Indeed, if the applicant was empowered to be or instruct the Prosecutor, it is difficult to see why the applicant would not be a party to any appeal. 128.Though perhaps slightly less clear, rule 25 of the SDT Rules identifies that the Council has the power to decide to undertake the prosecution of an application on behalf of the original applicant. That is what is said to have occurred in this case, and to be the ordinary practice. Rule 25 at least suggests that there is no legal entitlement to an original applicant to be the prosecutor of his application. 129.To complete the picture, I do not think Delhaise is relevant to the analysis. To my mind, all that Delhaise was saying was that the applicant there was not entitled to prosecute the complaint because the proper procedure where the Law Society refuses to take up the prosecution of the respondent solicitor, despite the CJHC’s submission under section 9A(2) of the LPO, is to “inquire into and investigate the matter” without the assistance of a prosecutor pursuant to section 9B(1A) of the LPO: see Delhaise (CA) at §16; Delhaise (CFI) at §38. Those remarks are clearly inapposite here, as the Law Society did not refuse to take up the prosecution of DEF in the present case. G. Ground 2 130.Since I have found that the Applicant is entitled (amongst other things) to rights to inspect documents under the SDT Rules, I do not think it is necessary for me to consider whether the Applicant should be given copies of the materials submitted to the Law Society, whether or not they were given to it by DEF. 131.The only thing left to consider is whether I should order the Law Society to direct the Prosecutor to (1) allow the Applicant to comment on the materials submitted by DEF and take those comments into account, and (2) consider whether to call the Applicant as a witness in the SDT Proceedings, failing which to provide adequate reasons to the Applicant for the said decision. 132.Mr Hui makes the forceful submission that it is “mind-boggling” that the Applicant has still not been called as a witness or that he has not even been asked for comment – given that without the Applicant, it “begs the question of how the Prosecutor could properly and effectively prosecute the disciplinary charges”. He also asserts that the Prosecutor simply cannot proceed without the Applicant’s involvement, as DEF’s factual case and representations specifically will not be challenged without utilising the Applicant’s “personal knowledge of material information”. 133.Mr Hui further points to various portions of the Prosecution Code, which obliges the Prosecutor to “assist the court to arrive at the truth”, to “see that all available legal proof of the facts is presented”, and “seek to have relevant and credible evidence placed fully and intelligibly before the court” (§§3.1, 3.2, 3.5(a)). Plainly, he submits, none of these obligations have been discharged. As such, these omissions are unreasonable, involve breaches of the Tameside duty, or breached the Applicant’s legitimate explanation that the “standards required of prosecutors” would be abided by. 134.But both as a matter of law and fact, I do not think that the Prosecutor’s omissions are really any of those things. 135.It is not entirely surprising that the Prosecutor has not sought further information from the Applicant. I do not wish to prejudge anything – and nothing I say in the Judgment should be seen as commentary on or seeking in any way to influence anyone’s view of the merits of the Complaint – but there seems to be ample material (a lot of which has been provided by the Applicant himself, including the SGDC Judgment, the SGCA Judgment) which suggests the Prosecutor might form the view that he has more than enough to go on, perhaps even for the purpose of rebutting DEF’s factual case (whatever it may be). 136.My conclusion is further fortified by the following well-established principles.
137.Of course, if it is not unreasonable for the Prosecutor not to have sought the Applicant’s involvement in the SDT Proceedings, then it cannot be said that the standards expected of prosecutors were not observed, thus breaching the Applicant’s legitimate expectation in the process. 138.To complete the picture, I do not think the Notes help the Applicant here. As I have explained, although there is a reference to the need for a complainant to act as a witness if the matter is sent to a SDT, the Notes mainly govern the period (1) after receipt of the Complaint by the Law Society but before the matter is submitted to the SDT, and not (2) after the SDT Proceedings have begun. 139.On the other hand, I do think it worthy of comment that the Applicant has been kept completely in the dark, and has not even had the courtesy of contact from the Prosecutor, let alone any explanation as to why the Applicant’s assistance might be regarded as unnecessary. Whether as a matter of professional courtesy or otherwise, I cannot see that such form of contact would be anything other than appropriate. Further, as I think the Applicant has sought to explain in some way, the Prosecutor might be in the Rumsfeldian position of not knowing what he does not know. Surely at least exploring matters with the Applicant would make sense. 140.Lastly, I expressly record that there is no reason to think that the Applicant – who may feel strongly about the Complaint – would act in anything other than an appropriate, measured and (if relevant) professional way if he was contacted by those whom it might reasonably be expected he would be contacted. The content and the tone of the Applicant’s earlier correspondence seems to me to make that abundantly clear. When there has been a prior failure, it is never too late to seek to re-establish the appropriate connection and communication. H. Result 141.I thus grant the Applicant’s judicial review, quash the Decision, and declare that the Applicant is a party to the SDT Proceedings, and he has rights under rules 8, 10, 12, 14, 15, 17, and 30 of the SDT Rules. I decline to grant the other relief sought. 142.As to costs, I make the following orders.
Mr John Hui and Mr Kevin Lau, instructed by Robertsons, for the Applicant Mr Abraham Chan SC, leading Mr John Cheung, instructed by Howse Williams, for the Putative Respondent | ||||||||||||||||||||||||||||||||
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