Tse Wai Chun Paul v. Solicitors Disciplinary Tribunal

HCAL000636/2001

HCAL636/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 636 OF 2001

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Coram: Hon Hartmann J in Court

Dates of Hearing: 13 and 16 July 2001

Date of Handing Down Judgment: 27August 2001

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J U D G M E N T

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INTRODUCTION

1.The applicant in these proceedings is a solicitor who has practised as such in Hong Kong since about 1992. He is a partner in a firm which calls itself Messrs Paul W. Tse. In February of this year, the Solicitors Disciplinary Tribunal ('the Tribunal') commenced an inquiry into certain aspects of the applicant's professional conduct. The inquiry was instituted as a result of complaints made by the Council of the Law Society to the effect that the applicant had publicized and promoted both himself and his firm in ways that offended the Solicitors Practice Rules.

2.The Tribunal is a statutory body constituted in terms of the Legal Practitioners Ordinance, Cap. 159 ('the Ordinance'). Section 9B of the Ordinance directs that, when an inquiry into the conduct of a Hong Kong solicitor takes place, the Tribunal shall consist of three persons : two Hong Kong solicitors, one of whom shall act as chairman, and one lay person. All three are chosen from a panel appointed by the Chief Justice. Such was the constitution of the Tribunal in the applicant's inquiry.

3.As to the manner in which the Tribunal shall conduct its inquiries, section 9B(4) of the Ordinance directs that :

"The Tribunal shall sit in camera in the places and at the times it directs."

4.At an early stage of the inquiry, the applicant (who was at that time representing himself) made an application for the inquiry to be made public. The application was refused. In this regard, the transcript of the proceedings records the Tribunal making a ruling in the following terms :

".... Mr Tse has applied for leave to admit two unspecified and changeable members of the press to attend the rest of these hearings as observers. Having carefully considered the parties' submissions, we do not think that we have the power to allow the application. Even if we had, which we doubt, we are not convinced that this application should be granted."

5.It is in respect of that ruling, namely, the denial to him of a public hearing, that the applicant brings his application for judicial review. Expressed broadly, it is his contention that section 9B(4), to the extent that it compels the Tribunal to conduct its hearings in camera, is inconsistent with the Basic Law.

6.The importance of the right to a public hearing by a competent, independent and impartial tribunal established by law has been affirmed by the United Nations Human Rights Committee. In its general comments published in a document dated 19 May 1989 it said that the provisions of Article 14(1) of the ICCPR applied to all courts and tribunals whether ordinary or specialized. It went on to say :

" The publicity of hearings is an important safeguard in the interest of the individual and of society at large. At the same time article 14, paragraph 1, acknowledges that courts have the power to exclude all or part of the public for reasons spelt out in that paragraph. It should be noted that, apart from such exceptional circumstances, the Committee considers that a hearing must be open to the public in general, including members of the press, and must not, for instance, be limited only to a particular category of persons. It should be noted that, even in cases in which the public is excluded from the trial, the judgement must, with certain strictly defined exceptions, be made public."

7.As Lord Woolf MR said in R. v. Legal Aid Board, ex parte Kaim Todner [1999] QB 966 (at 977) : "Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it."

8.Section 10 of the Ordinance empowers the Tribunal to impose a wide range of penalties on solicitors who are found culpable. These penalties range from striking a solicitor off the role of solicitors so that he or she can no longer practise to the less draconian penalties of a fine or censure. Section 10 makes it manifest, therefore, that the Tribunal possesses the power to profoundly influence the professional careers of persons appearing before it.

9.During the course of his submissions, Mr Dykes, leading counsel for the applicant, pointed to the fact that the Tribunal is the only disciplinary body constituted by statute in Hong Kong which is required to conduct all its proceedings in camera. Disciplinary bodies concerned with the professional conduct of other professions - inter alia, accountants, architects, dentists, medical practitioners, engineers, surveyors, nurses and midwives - are vested by the appropriate statute with a discretion whether to admit or exclude members of the public. In particular, Mr Dykes pointed to the provisions governing the Barristers Disciplinary Tribunal which are also contained in the Ordinance; more particularly to section 35B(2) which reads :

" A Barristers Disciplinary Tribunal is required to hold its proceedings in camera, except when the barrister whose conduct is being inquired into requests that the proceedings be open to the public."

10.Quite why the Tribunal, in investigating the conduct of solicitors, stands alone in being required, without discretion, to exclude the public from its hearings, is not clear. In R. v. Legal Aid Board, ex parte Kaim Todner (supra), Lord Woolf made it clear that, in the opinion of the Court of Appeal, there was no good reason why solicitors should receive such singular treatment. In an unambiguous statement (at 975 and 976) he said :

" There can be no justification for singling out the legal profession for special treatment. The inference that they should be singled out should not be drawn from Ord. 106, r. 12. The Order certainly presupposes that solicitors in disciplinary appeals to the High Court should not be identified in the title to the proceedings. However this is probably a remnant from earlier times when the disciplinary proceedings were themselves in private which is no longer the position. The situation in relation to other professions, e.g. doctors and dentists appealing to the Privy Council, is that in general they are not granted any anonymity. In my view, the Rules of the Supreme Court should now be amended to bring the position of solicitors in line with that general practice."

11.It is to be noted that Order 106, rule 12 of our Rules of the High Court has the same wording as Order 106, rule 12 of the Rules of the Supreme Court to which Lord Woolf has made reference, the Hong Kong order reading :

" (1) The notice of the originating motion by which an appeal is brought must be entitled in the matter of a solicitor, or, as the case may be, a solicitor's clerk, without naming him, and in the matter of the Ordinance." [my emphasis]

12.Mr Yue, leading counsel for the Law Society of Hong Kong on behalf of the respondent, that is, the Tribunal, has argued that this application is not concerned with 'the merits' of section 9B(4), either in isolation or in comparison with other disciplinary bodies constituted by statute. This application, he said, is concerned solely with what I will call the integrity of the section in constitutional terms.

13.I agree that the primary issue is the constitutional integrity of the section. If the section is found to be consistent with the Basic Law then the matter goes no further. However, if it is found to be inconsistent, then, it appears to me that the section does not automatically fall away as being of no effect. Although the matter was not argued, in my judgment it would still be open to the Tribunal to show that the requirement to hold all of its hearings in camera is justified. To do so, 'cogent and persuasive' reasons would have to be given. See R. v. Sin Yau-ming [1992] 1 HKCLR 127. Such reasons would have to demonstrate : first, that the restriction is demonstrably necessary (for example, because of the unique obligations owed by solicitors to their clients); second, that it is rational in the sense that it is not arbitrary or unfair and, third, that the restriction is no more than necessary to accomplish its legitimate aim : in other words that the restriction is a proportionate response to a demonstrated need. For an exposition of these three considerations, see Association of Expatriate Civil Servants of Hong Kong v. Secretary for the Civil Service (1996) 6 HKPLR 333 (at 351/352).

14.But, as I have said, the matter of justification in the event of section 9B(4) being found to be inconsistent with the Basic Law was not argued before me. It is therefore not for me to speculate why solicitors in Hong Kong receive such singular treatment. Nor in the circumstances is it for me to look to what Mr Yue has called 'the merits' of the section.

THE CONSTITUTIONAL CONTEXT

15.The Basic Law, Hong Kong's primary document of constitution, came into effect upon the change of sovereignty on 1 July 1997. Article 8 of the Basic Law reads :

" The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region." [my emphasis]

16.The Ordinance was itself promulgated in 1964 and was therefore in force on 1 July 1997. As such, all of the provisions of the Ordinance are maintained except those that are found to contravene the Basic Law.

17.The applicant contends that section 9B(4) of the Ordinance, in compelling the Tribunal's hearings to be in camera, contravenes Article 39 of the Basic Law. This article reads :

" The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article."

18.The International Covenant on Civil and Political Rights ('the ICCPR') has been given its domestic voice in Hong Kong; that is, it has been implemented through our laws, in the form of the Bill of Rights Ordinance, Cap. 383 ('the Bill of Rights').

19.Article 14(1) of the ICCPR has been restated in Article 10 of the Bill of Rights. Both those articles provide that persons whose rights and obligations in law are to be determined by a tribunal shall be entitled to a 'fair and public' hearing. In this regard, Article 10 of the Bill of Rights reads :

" All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (order public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children." [my emphasis]

20.Although there are alternative avenues of approach (for example, by having recourse to section 6 of the Bill of Rights), as I understand it, the applicant contends that, in so far as section 9B(4) of the Ordinance offends Article 14(1) of the ICCPR and Article 10 of the Bill of Rights, it is inconsistent with the Basic Law and is therefore of no effect.

PRELIMINARY ISSUES

21.In the course of his submissions, Mr Yue raised two preliminary matters, each of which, he argued, prevented the applicant from obtaining a determination of the substantive issue defined in the previous paragraph. The first of these matters relates to what may loosely be called the jurisdiction of this Court to allow the application for judicial review when there exists an alternative route for seeking a remedy by way of appeal. The second issue relates to whether the Tribunal is, in any event, bound by the obligations laid down in the Bill of Rights and/or the ICCPR, the Tribunal not being a 'public authority'.

(a) Whether judicial review is an appropriate remedy

22.Mr Yue submitted that where, as in the present case, there exists an alternative route for seeking a remedy; that is, by way of appeal, then that route must first be taken. In this regard, the fundamental principle upon which Mr Yue relied has been succinctly stated by Lord Scarman in R. v. Inland Revenue Commissioners, ex parte Preston [1985] AC 835 (at 852) :

" My fourth proposition is that a remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision. ...."

23.Section 13(1) of the Ordinance does provide for an appeal procedure from decisions of the Tribunal. Indeed, it seems that the applicant originally chose to proceed by way of appeal but then, on advice, abandoned his appeal in favour of this application for judicial review. Section 13(1) reads :

" Subject to section 12(6), an appeal against any order made by a Solicitors Disciplinary Tribunal shall lie to the Court of Appeal and the provisions of Order 59 of the Rules of the High Court shall apply to every such appeal ...."

24.Section 13(1) further directs that the decision of the Court of Appeal shall be final.

25.It is Mr Yue's submission that in this case no exceptional circumstances exist to justify avoiding the procedure mandated by section 13(1) of the Ordinance. As he expressed it, the legislature has seen fit to designate the Court of Appeal as the judicial body to oversee the procedures and decisions of the Tribunal and it is to that body, therefore, that this challenge should have been directed. Mr Yue noted that in any event, should there be an appeal from this Court, such an appeal will lie to the Court of Appeal.

26.Although the subject is, academically at least, a controversial one, it is clear that in recent years the courts of England and Wales and Hong Kong have increasingly adhered to the principle that the collateral procedure of judicial review is not to be employed when alternative and entirely appropriate remedies exist by way of appeal. In this regard, for example, in the matter of Ng Pak Min v. HKSAR, HCAL No.70 of 1999, in refusing an application for leave to apply for judicial review, Stock J (as he then was) said :

" Judicial review is supposed to be an avenue of last resort, and it will only be in the most exceptional circumstances that a court would stop criminal proceedings in limine ...."

27.But while recent jurisprudence has sought actively to curtail a proliferation of judicial review applications where structured avenues of appeal are in place, it has always been recognized that this Court's supervisory jurisdiction over administrative tribunals to ensure the integrity of their procedures is in no way undermined or excluded in appropriate circumstances. The difficulty, of course, lies in determining the appropriate circumstances.

28.In R. v. Inland Revenue Commissioners, ex parte Preston (supra), Lord Templeton, in supporting Lord Scarman's principle that only rarely will courts allow judicial review to be used to attack an appealable decision, nevertheless prefaced this with the qualification (at 862) that "judicial review is available where a decision-making authority exceeds it powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers".

29.Lord Templeton went on to cite an earlier decision of the House of Lords; namely, R. v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, in which Lord Diplock stated (at 637) :

"judicial review is available only as a remedy for conduct of a public officer or authority which is ultra vires or unlawful, but not for acts done lawfully in the exercise of an administrative discretion which are complained of only as being unfair or unwise ...."

30.Clearly, an application for judicial review should not be entertained when, in effect, the court is being asked to substitute its view of the substance or merits of the dispute for that of the administrative tribunal. But in the present case there is no factual issue to be resolved; indeed, the professional conduct of the applicant, that being the dispute before the Tribunal, is of no relevance to this application.

31.Nor, in my judgment, can it be said that the alleged error of law made by the Tribunal of which the applicant complains is integral to (or even linked to) the substance or merits of the dispute before the Tribunal and therefore a matter which properly should be resolved on appeal. The issue of law here is not in any way dependent on the facts of the applicant's conduct.

32.If this application is entertained, what is required is the resolution of a legal issue which not only affects this applicant but which has far-reaching implications for all future persons whose professional conduct is made the subject of a Tribunal inquiry. It may therefore be said that the wider public interest, not merely the specific interests of the applicant, are to be determined. This is not to suggest in any way that an 'advisory' declaration is being sought. The applicant seeks a ruling as to the fundamental lawfulness of the Tribunal's proceedings, these being proceedings which directly affect, he says, his fundamental rights enshrined in the ICCPR and the Bill of Rights. But it will follow that a determination of the issue by this Court will have wider implications for both the solicitors' profession and the public whose interests (manifestly) the legislature has sought to protect in the promulgation of the Ordinance.

33.In a recent judgment concerning the appropriateness of interrupting criminal proceedings in the magistracy to bring an application for judicial review (Chow Shun Chiu v. HKSAR, HCAL No.763 of 2001), I spoke of this Court's discretionary jurisdiction in the following terms :

" The long-established supervisory jurisdiction of this court will, of course, be used when the need arises to ensure the integrity of proceedings in the magistrates courts; that is, when matters go to the fundamental legality of the process, where, for example, it is alleged that the courts are acting without jurisdiction, that an abuse of power is being perpetrated or that the proceedings constitute a breach of natural justice."

34.In the present case, I am satisfied that the applicant's complaint relates to what I have in that earlier judgment described broadly as the 'integrity of proceedings'. What is challenged by the applicant is the fundamental lawfulness of the proceedings to which he is subject. In adhering to a statutory constraint which offends the Basic Law and is therefore of no force or effect, argues the applicant, the Tribunal has exceeded its jurisdiction.

35.Further to his submissions on the application of jurisprudential principles, Mr Dykes argued that the ruling of the Tribunal under challenge is clearly an interlocutory challenge. As such, he submitted, it was doubtful that a right of appeal lay at this time to the Court of Appeal. It runs counter to long-established legal policy, he said, to confer interlocutory rights of appeal to the Court of Appeal against non-determinative decisions of domestic tribunals when the emphasis in cases of this kind (i.e. disciplinary hearings in respect of professional bodies) is always on the speedy determination of the substantive matters. Interlocutory appeals, he said, 'get in the way' of this objective. Invariably, therefore, a right of appeal would only lie in respect of final orders that determine the merits of the issues in contention; in this instance, the disciplinary charges against the applicant.

36.In support of his submissions, Mr Dykes said that the starting point for interpreting the extent of rights of appeal from inferior tribunals to the Court of appeal (or the Court of First Instance acting as an appellate court) is that they will only relate to final orders unless there is a clear intention to the contrary appearing in the relevant statute. In respect of the Ordinance, he said, there is no clear 'intention' to the contrary. In support of his submissions, Mr Dykes relied on R. v. Yeung Wai Hung [1990] 2 HKC 86. This was, however, a case which turned upon a true construction of section 105 of the Magistrates Ordinance, Cap. 227, and therefore, in my view, is of very limited direct assistance in respect of the suggested long-established policy.

37.As to the provisions of the Ordinance concerning appeals to the Court of Appeal, section 13(1) directs that an appeal shall lie against 'any order' made by the Tribunal. That is a broad expression but section 12(1) which relates to such orders says :

"An order made by a Solicitors Disciplinary Tribunal shall include a statement of its findings in relation to the facts of the case and shall be signed by the chairman or by a member authorized by the Tribunal."

38.Section 12(2) requires any such order to be filed with the Registrar and, in addition, for a note of that order to be entered on the role of solicitors in connection with the solicitor who is the subject of the order.

39.Section 10(2) of the Ordinance employs the word 'order' when it says :

" On completing an inquiry and investigation into the conduct of a solicitor or solicitor corporation and on being satisfied that the conduct of the solicitor or corporation so warrants, a Solicitors Disciplinary Tribunal can make any of the following orders-

(a) an order striking the name of the solicitor from the roll of solicitors, or cancelling the approval of the corporation under section 7C;

(b) an order suspending the solicitor from practice, or suspending the approval of the corporation under section 7C for such period as the Tribunal thinks fit;

(c) an order imposing conditions on the practice of the solicitor or corporation that are to have effect for a specified period of not more than 3 years;

...." [my emphasis]

40.In light of these provisions, it does appear to me that section 13(1), which allows for an appeal against 'any order' of the Tribunal, must mean any order made under section 10(2); that is, a final order determining culpability and imposing a sanction. Section 12(1) which directs that 'an order' of the Tribunal shall include a statement of findings in relation to the facts of the case would certainly appear to indicate that the intention of the law makers was that the orders of the Tribunal from which an appeal could be made would not be orders made in the course of the proceedings but orders which, because they required a statement of factual findings, would be orders related to the final determination of the issues.

41.I believe Mr Dykes also makes a good point when he says that it would not be appropriate, if orders of the Tribunal were to include interlocutory orders related to the conduct of the proceedings, to require in terms of section 12(2) that such orders be filed with the Registrar and entered on the role of solicitors.

42.In the circumstances, I am persuaded that the Ordinance does not provide for interlocutory appeals to the Court of Appeal. That being the case, if the applicant is forced to wait for a final determination of the disciplinary proceedings before he can challenge their fundamental lawfulness, the harm will already have been done and cannot, if that is the sole issue on appeal, be effectively redressed. The logic, I think, is clear. If the applicant contests only the nature of the proceedings in that they were held in camera but otherwise has no challenge, where lies the purpose in vitiating those otherwise uncontentious proceedings and having them heard again, solely so that this time the public will be allowed entry? Yes, the principle may be made but at what delay and at what cost?

43.In the result, both in principle and on a construction of sections 10, 12 and 13 of the Ordinance, I am satisfied that this challenge to the lawfulness of the Tribunal's proceedings has properly been brought to this Court.

(b) Is the Tribunal a public authority?

44.It was Mr Yue's contention that the Tribunal is not a 'public authority' as that term is employed in section 7 of the Bill of Rights. Accordingly, the Tribunal is not subject to the obligations imposed by Article 10 of the Bill.

45.Section 7(1) of the Bill of Rights reads as follows :

"This Ordinance binds only-

(a) the Government and all public authorities; and

(b) any person acting on behalf of the Government or a public authority."

46.In respect of Article 14(1) of the ICCPR, Mr Yue argued that it was for the legislature to decide to what extent the provisions of the Convention should be extended to Hong Kong. Hence the language of Article 39, the first paragraph of which reads :

" The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region." [my emphasis]

47.The Bill of Rights, said Mr Yue, is the application of the provisions of the ICCPR into our law and the means by which the provisions of the Convention are implemented through our laws. It would therefore amount to a contradiction in terms to suggest that only Government and public authorities are bound in our law by the Bill of Rights but that in our law the ICCPR has a broader reach and binds private institutions.

48.During the course of submissions it was not disputed that the Tribunal, in exercising certain of its statutory powers, was performing a public function and, as such, is amenable to judicial review. See, for example, R. v. Bar Council, ex parte Percival [1991] 1 QB 212, in which Watkins LJ, giving the judgment of the Divisional Court, said (at 228) :

".... The General Council, which is an autonomous and wholly separate organisation from the Council of the Inns of Court, is fulfilling the role of a prosecutor exercising discretion in the sifting and assessment of complaints and empowered by its rules, when certain conditions are fulfilled, to prosecute that complaint before the disciplinary tribunal as an adjudicating body exercising powers delegated by the judges. The [Professional Conduct Committee] to whom those functions are delegated must carry them out in accordance with its own rules. Consequently, its acts and omissions can, in our view, be challenged by way of judicial review."

See also R. v. Solicitors Disciplinary Tribunal, ex parte L (unreported : 18 February 2000), a decision of the Court of Appeal in which it was decided that a decision of the English disciplinary tribunal (similarly constituted to the Hong Kong Tribunal) was amenable to judicial review in respect of whether its hearing should or should not be in camera.

49.But the fact that a body may fulfill certain public functions, while an indicator, does not of itself elevate that body to the status of a public authority.

50.The question of whether the Tribunal is or is not a public authority in terms of the Ordinance is not an easy one. The term 'public authority' is not defined in the Ordinance nor is it defined in the Interpretation and General Clauses Ordinance, Cap. 1. Nor does the ICCPR itself, the fountainhead of our domestic legislation, provide any assistance.

51.I note that the Human Rights Act 1998 specifically provides that a public authority shall include 'a court or tribunal' (section 6). But that statute was promulgated well after our Ordinance and, in incorporating the European Convention into domestic British law, reflects the will of Parliament which may be very different from the intention of our own legislature at the time it passed the Ordinance into law.

52.There is, of course, ample authority to the effect that the Bill of Rights, as a constitutional document protecting fundamental rights, must be given a generous and purposive construction. See, for example, Tam Hing Yee v. Wu Tai Tai (1991) 1 HKPLR 261. But, of course, a purposive construction may only be applied when the purpose has been ascertained. In that regard, I confess to sharing the difficulties expressed by Keith J (as he then was) in Hong Kong Polytechnic University v. Next Magazine Ltd (1996) 6 HKPLR 117 in which he said :

".... Since I cannot discern what the phrase 'public authority' in s 7(1) was intended to cover, I cannot apply a purposive construction to it."

53.Halsbury's Laws of England defines a public authority in the following terms :

".... Broadly speaking, a public authority may be described as a person or administrative body entrusted with functions to perform for the benefit of the public and not for private profit. Not every such person or body is expressly defined as a public authority or body, and the meaning of a public authority or body may vary according to the statutory context. ...."

54.In Hong Kong Polytechnic University v. Next Magazine (supra), Keith J expanded on that definition :

".... In my view, for a body to be a public authority within the meaning of s 7(1) of the Bill of Rights Ordinance, it is not sufficient for it to be entrusted with functions to perform for the benefit of the public and not for private profit: there must be something in its nature or constitution, or in the way in which it is run, apart from its functions, which brings it into the public domain. It is unnecessary for me to identify what that might be: it may take the form of public funding, of a measure of governmental control or monitoring of its performance, or some form of public accountability. But something which brings it into the public domain there must be."

55.Keith J in that passage echoes the words of Donaldson MR in R. v. Panel on Take-Overs and Mergers, ex parte Datafin Plc [1987] QB 815 (at 838E) in which the Master of the Rolls, in respect of whether or not a public function is being exercised, said that no single factor could be determinative; what must be identified, however, is some 'public element' :

"In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction."

56.With no one factor being determinative and with the need to view the nature of the Tribunal 'in the round', I confess that I find it difficult to come to a finding that the Tribunal, a body created to monitor the conduct of a single profession in Hong Kong, is a public authority. There is, of course, a clear public interest in ensuring the proper conduct of the legal profession. The powers given to the Tribunal indicate that the legislature is aware of that interest and empowers the Executive to give financial support to the Tribunal in the discharge of its statutory obligations. But, while the rendering of financial support is clearly a matter of importance, I do not consider it, taken on its own, to be determinative.

57.In this regard, Mr Yue referred me to a decision of the Hong Kong Barristers Disciplinary Tribunal (Hong Kong Bar Association v. Chua, 15 September 1994), the headnote of which reads (in part) :

"The Hong Kong Bar Association is a self-governing professional association made up of private individuals who mutually agree to abide by the Code of Conduct as governing their professional conduct and etiquette in the form existing from time to time. The fact that the Bar Association has statutory recognition and is entrusted with statutory powers in relation to disciplinary matters does not make the dispute any less of an inter-citizen dispute. Nor is the mere fact that there is an element of public interest in the promulgation of any part of the Bar's Code sufficient to equate the Hong Kong Bar Association to that of a public authority or a body in the performance of any public function."

58.But, as Mr Dykes emphasized, the Tribunal has jurisdiction not only over private individuals who mutually agree in entering the profession to abide by a code of conduct but over employees of solicitors and foreign lawyers : conveyancing clerks and accountants, messengers and the like. These are not persons who have entered into any sort of covenant. They represent a section of the broader public, albeit within the sphere of legal employment.

59.Mr Dykes pointed to the powers of the Tribunal contained in section 11 of the Ordinance, that is, all such powers as are vested in the Court of First Instance, including the power to punish for contempt by ordering imprisonment.

60.As I have earlier indicated, Mr Dykes said that the Tribunal, unusually, receives direct financial support from the public purse for its work. In this regard, section 25(1) of the Ordinance reads :

" (1) The expenses incurred by-

(a) a Solicitors Disciplinary Tribunal; and

(b) the Society, in connection with proceedings before a Solicitors Disciplinary Tribunal and any appeal under section 13,

may be paid to the Society out of general revenue upon a certificate issued by the Secretary for Justice."

This section, I believe, is to be read in conjunction with sub-sections 10(2)(c) and (l) which enable the Tribunal to impose financial penalties not exceeding $500,000 which are to be paid into the general revenue.

61.The fact that the legislature has seen fit to provide financial support to the Tribunal is, as I have said, a matter of central materiality in deciding whether, in its nature or constitution, the Tribunal has been brought into the public domain. But government funding is often given to private enterprises. It remains, therefore, for me to look at the Tribunal 'in the round'. I accept the force of the submissions made by Mr Dykes that the Tribunal's jurisdiction extends to all those who choose to make their living in that field of endeavour reserved to solicitors : professionals and non-professionals alike; that it can send people to jail for contempt : solicitors and non-solicitors; that it receives funding from the public purse and can order fines payable into that purse. Clearly, it has been delegated by the legislature to carry out certain public functions, making it susceptible at least to review by this Court. But that being said, I am not persuaded that these matters, taken individually or together, bring the Tribunal sufficiently into the public domain or imbue it with such a public character that it can properly be called a public authority in terms of the Ordinance. However, in the event that I am wrong in that regard, I move on to consider the substance of the application.

ENTITLEMENT TO A PUBLIC HEARING : THE SCOPE OF THE PROTECTION

62.The right to a public hearing provided for in Article 14(1) of the ICCPR and Article 10 of the Bill of Rights is a right which accrues to an individual in 'the determination of any criminal charge against him' or in the determination of 'his rights and obligations in a suit at law'. The language is broad. It anticipates that the determination of a criminal charge or the determination of civil rights and obligations may involve a number of hearings by different tribunals; for example, a preliminary hearing, the trial itself and then one or more review or appeal hearings.

63.Article 6(1) of the 1950 European Convention on Human Rights is worded in almost identical language. The relevant portion of the article reads :

" In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...."

64.In interpreting Article 6(1), the European Court of Human Rights has developed a body of jurisprudence to the effect that, where successive bodies are provided to determine a criminal charge or civil rights and obligations, the Convention does not require that each of these bodies should meet the standards set in the article. Indeed, the court has recognised that there may be occasions where :

".... The prior intervention of administrative, professional or judicial bodies not satisfying all of those requirements may be justified in the interests of flexibility and efficiency."

(Le Compte, Van Leuven & De Meyere v. Belgium (1981) 4 EHRR 1)

65.What, however, Article 6(1) of the Convention demands as a minimum requirement is that :

".... either the jurisdictional organs themselves comply with the requirements of art 6(1) or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of art 6(1)."

(Albert & Le Compte v. Belgium (1983) 5 EHRR 533)

66.In interpreting Article 10 of the Bill of Rights - its wording, as I have said, being almost identical to Article 6(1) of the Convention - our Court of Appeal has borrowed from the jurisprudence of the European Court. There are a number of examples.

67.In R. v. Lift Contractors' Disciplinary Board, ex parte Otis Elevator Co. (HK) Ltd (1995) 5 HKPLR, Otis Elevator, on an application to this Court for judicial review, claimed that by its constitution the Disciplinary Board was not an independent and impartial body and thereby offended Article 10 of the Bill of Rights. The matter was taken to the Court of Appeal, the headnote to its judgment reading :

" (2) Where a statute provides for different bodies to deal successively with disciplinary complaints against professional persons, art 10 of Bill of Rights does not require that each of those bodies should meet the standard set forth in that article. It suffices that either the jurisdictional organs themselves comply with the requirements of art 10, or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of art 10. Albert and Le Compte v Belgium (1985) 5 EHRR 533 followed.

(3) The expression 'tribunal' in art 10 of the Bill of Rights is not confined to bodies such as the disciplinary board established under s 11E(1) of the Lift and Escalators (Safety ) Ordinance, but is broad enough to encompass courts of law or appellate courts, if those come within the scheme by which the individual's rights and obligations are ultimately to be judged.

(4) Any person aggrieved by an order of the Disciplinary Board has, under s 11I, a general right of appeal to the High Court which may confirm, reverse or vary the order of the Board. Such an appeal is by way of re-hearing, and the court has power to receive further evidence on questions of fact, orally or by affidavit. The existence of such an appeal will cure whatever defect there may be in the proceedings before the Disciplinary Board."

68.In the later decision of Ma Wan Farming Ltd v. Chief Executive in Council and another [1998] 2 HKC 190, Liu JA said (at 202) :

" .... Article 10 does not demand that the procedure which determines civil rights should meet its requirements at all stages. It is enough to receive a fair trial at any one stage: '... the Convention calls at least for one of the following systems: either the jurisdictional organs themselves comply with the requirements of art 6.1, or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of art 6.1.' ...."

69.What must be considered, therefore, is what Mr Yue has described as the 'statutory scheme' within which a criminal charge or civil rights and obligations in a suit at law are determined. In other words, as I see it, what is to be considered is the whole process which leads to the final resolution of the matter. Assuming that the trial hearing or inquiry at first instance does not comply with the demands of Article 14(1) of the ICCPR or Article 10 of the Bill of Rights, what must then be determined is whether there is sufficient subsequent judicial control to ensure that the final determination does accord. But what is deemed to be sufficient? In R. v. Lift Contractors' Disciplinary Board, ex parte Otis Elevator Co. (HK) Ltd (supra), Litton VP (at 88), in drawing from the jurisprudence of the Strasbourg authorities said :

".... even if the disciplinary tribunal established under s 11E(1) of the Ordinance fails to meet the requirements of art 10 by itself, s 11I saves the scheme from Bill inconsistency; as the appeal is by way of re-hearing, the High Court has ample powers of control." [my emphasis]

70.That does not, in my view, mean that there must be a full re-hearing in the sense of a fresh trial taking place. What is required is that the body to whom an application for review or an appeal may be made has full jurisdiction to review the legality of the decisions made earlier in the process and of the procedure followed. In this regard, assistance may be obtained from the recent House of Lords decision in R (Alconbury Developments Ltd ) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389. At issue was whether the powers of the Secretary of State in respect of certain town planning and transport legislation were incompatible with the provisions of Article 6(1) of the Convention. In a unanimous decision, the House of Lords held that, although the Secretary was not an independent and impartial tribunal, as his decisions were subject to the scrutiny of the courts by way of judicial review, that was sufficient to ensure compatibility with the Convention. Lord Slynn (at 1406) said :

".... the question, as the European court has shown, is whether there is a sufficient judicial control to ensure a determination by an independent and impartial tribunal subsequently. The judgments to which I have referred do not require that this should constitute a rehearing on an application by an appeal on the merits. It would be surprising if it had required this in view of the difference of function between the minister exercising his statutory powers, for the policy of which he is answerable to the legislature and ultimately to the electorate, and the court. What is required on the part of the latter is that there should be a sufficient review of the legality of the decisions and of the procedures followed. ...."

He continued (also at 1406) :

" It has long been established that if the Secretary of State misinterprets the legislation under which he purports to act, or if he takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the court may set his decision aside. Even if he fails to follow necessary procedural steps-failing to give notice of a hearing or to allow an opportunity for evidence to be called or cross-examined, or for representations to be made or to take any step which fairness and natural justice requires-the court may interfere. The legality of the decision and the procedural steps must be subject to sufficient judicial control. But none of the judgments before the European Court of Human Rights requires that the court should have 'full jurisdiction' to review policy or the overall merits of a planning decision. ...."

Lord Hoffman (at 1416) said :

" The reference to 'full jurisdiction' has been frequently cited in subsequent cases and sometimes relied upon in argument as if it were authority for saying that a policy decision affecting civil rights by an administrator who does not comply with article 6(1) has to be reviewable on its merits by an independent and impartial tribunal. It was certainly so relied upon by counsel for the respondents in these appeals. But subsequent European authority shows that 'full jurisdiction' does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires." [my emphasis]

71.As earlier indicated, section 13(1) of the Ordinance provides for an appeal against any order made by the Tribunal, that appeal lying to the Court of Appeal. Section 13(1) further provides that the provisions of Order 59 of the Rules of the High Court shall apply to any such appeal. In the circumstances, I believe it is evident that the Court of Appeal has full jurisdiction to deal with a decision of the Tribunal as in each instance the nature of that decision requires.

72.It should further be said that this Court too - as this present application bears witness - has the power to review the legality of both the Tribunal's decisions and the procedures adopted by it.

BUT DOES AN APPEAL FROM THE TRIBUNAL TO THE COURT OF APPEAL CONSTITUTE A SUFFICIENT PUBLIC HEARING?

73.Mr Dykes contended that the essence of a public hearing is one which ensures that the public will know in advance that on a certain date an identifiable person will engage in the determination of his or her civil rights and obligations in a suit at law before a known tribunal. As he expressed it, only in this way can the public make 'meaningful' use of the right of access to such a hearing. Accordingly, if the hearing at first instance, because of statutory constraint, has been held in camera, the appeal hearing, in order substantively to be curative of the defect at first instance, must ensure that its public hearing will be one which allows the public to make meaningful use of its right of access. A hearing which in some way lessens this right will be only partially curative and will not comply with the requirements of Article 10 of the Bill of Rights and/or Article 14(1) of the ICCPR.

74.Order 106, rule 12 of the High Court Rules, said Mr Dykes, demands anonymity of the appellant in each and every appeal. As a result, with the identity of the appellant withheld, the public is unable to make meaningful use of its right of access.

75.Order 106, rule 12 (already been cited in paragraph 11 of this judgment) directs that the notice of originating motion by which an appeal is brought must not name the solicitor who appeals but should state only that it is in the matter of a solicitor who appeals in terms of the Ordinance. There is no suggestion, however, that the omission of the name reduces the right of the public to witness the hearing and to report fully on it. Indeed, an open hearing is contemplated by the Ordinance. Section 13(4) of the Ordinance reads :

" The hearing of every appeal under this section shall be in open court unless, and to the extent to which, the Court of Appeal may otherwise direct."

76.In the Law of the European Convention on Human Rights by Harris, O'Boyle and Warbrick, the authors say the following at page 218 :

"Article 6(1) provides that 'everyone is entitled to a .... public hearing'. The purpose of this guarantee is to 'protect litigants from the administration of justice in secret with no public scrutiny', thereby contributing also to the maintenance of confidence in the courts. The presence of the press is particularly important in this latter regard. Article 6(1) does not, however, require that the press be informed of a hearing or that a case be listed for the information of the press or the public generally: it is sufficient that they are not excluded. ...."

77.In Y. v. United Kingdom (1979 : number 8512/79) the European Commission on Human Rights said :

" The Commission has first considered the allegation that the hearing before the Court of Appeal was not 'public'. It considers, however, that, although the case might have been unlisted as stated by the applicant, the hearing was clearly 'public' in the sense of Article 6 (1) of the Convention. It appears from the applicant's own submissions that members of the public were in fact allowed into the courtroom. Moreover, the applicant has in no way shown that the judicial authorities tried to exclude the press from the hearing ...."

78.Appeals from the Tribunal to the Court of Appeal are not 'unlisted'. Public notice is duly posted. This notice states the date, time and venue and also describes the essential nature of the appeal, namely, that it concerns a solicitor appealing in terms of the Ordinance. Nor, unless the Court of Appeal otherwise directs, is the press in any way prevented form reporting details of the appeal, such details to include the name of the appellant. Section 5 of the Judicial Proceedings (Regulation of Reports) Ordinance, Cap. 287 does not relate to an appeal hearing under the Ordinance and render any reporting of it a contempt of court.

79.In the circumstances, it would seem to me that the public is given what Mr Dykes describes as 'meaningful' access to appeal hearings. The hearings are publicized (only the name is not), the public may attend and all details, including the name of the appellant, may be reported. As Mr Yue commented, an appellant who seeks public scrutiny may publicize the hearing himself, giving his name out to the public.

80.I have no hesitation in accepting the submission put forward by Mr Dykes that the concealment of the identity of the parties to a suit may offend the principles of open justice. But each and every case will depend on its own circumstances. When an appeal is made from the Tribunal to the Court of Appeal, the only anonymity is to be found in the title of the notice of originating motion and, from that, the public notice. Everything else is known in advance including the nature of the proceedings. The hearing itself is, however, fully open and, as I have said, the name of the appellant may be reported both before and after the hearing with no sanction for contempt. That form of proceeding, I am satisfied, complies with the obligations imposed by Article 10 of the Bill of Rights and Article 14(1) of the ICCPR.

IS THE TRIBUNAL A 'COURT OF THE CLASSIC KIND'?

81.The proceedings of some courts, said Mr Dykes, essentially those courts which may be called 'courts of the classic kind', are required to comply with Article 10 of the Bill of Rights and/or Article 14(1) of the ICCPR and if they fail to do so that defect cannot be remedied at a later stage by way of appeal or review. The Tribunal, in the submission of Mr Dykes, is a court of the classic kind. Accordingly, its failure to fully meet the requirements of Article 10 of the Bill of Rights and/or Article 14(1) of the ICCPR cannot be remedied at a later stage on appeal.

82.In support of his submission, Mr Dykes has relied on a number of judgments of the European Court; more particularly, De Cubber v. Belgium (1984) 7 EHHR 236, where (at 248) the court said :

" The thrust of the plea summarised above is that the proceedings before the Oudenaarde court [a criminal court] fell outside the ambit of Article 6(1). At first sight, this plea contains an element of paradox. Article 6(1) concerns primarily courts of first instance; it does not require the existence of courts of further instance. It is true that its fundamental guarantees, including impartiality, must also be provided by any courts of appeal or courts of cassation which a Contracting State may have chosen to set up. However, even when this is the case it does not follow that the lower courts do not have to provide the required guarantees. Such a result would be at variance with the intention underlying the creation of several levels of courts, namely to reinforce the protection afforded to litigants." [my emphasis]

The court continued :

" Furthermore, the case law relied on by the Government [of Belgium] has to be viewed in its proper context. The judgments of 23 June 1981, 10 February 1983 and 21 February 1984 concerned litigation which was classified by the domestic law of the respondent State not as civil or criminal but as disciplinary or administrative; these judgments related to bodies which, within the national system, were not regarded as courts of the classic kind, for the reason that they were not integrated within the standard judicial machinery of the country. The Court would not have held Article 6(1) applicable had it not been for the 'autonomy' of the concepts of 'civil rights and obligations' and 'criminal charge'. In the present case, on the other hand, what was involved was a trial which not only the Convention but also Belgian law classified as criminal; the Oudenaarde criminal court was neither an administrative nor professional authority, nor a jurisdictional organ of a professional association, but a proper court in both the formal and the substantive meaning of the term. ...."

83.In the later case of Findlay v. United Kingdom (1997) 24 EHHR 221, the proceedings in question being a court martial, the European Court said (at para. 79) :

"Nor could the defects referred to above be corrected by any subsequent review proceedings. Since the applicant's hearing was concerned with serious charges classified as 'criminal' under both domestic and Convention law, he was entitled to a first instance tribunal which fully met the requirement of Article 6(1)."

84.De Cubber v. Belgium concerned proceedings in a criminal court of first instance; Findlay v. United Kingdom concerned proceedings in a military court with powers to impose criminal sanctions : imprisonment and the like. Both of the courts under review can properly be called courts of the classic kind because, as was said in De Cubber, they are 'integrated within the standard judicial machinery of the country'. Indeed, the European Court in De Cubber specifically contrasted the criminal court with 'disciplinary or administrative' bodies which it did not consider to be courts of the classic kind.

85.The Tribunal, argued Mr Dykes, satisfies the criteria for a court of the classic kind. It has been given the powers of the Court of First Instance in order properly to exercise its functions and, by reason of the rights of appeal that lie from its decisions, it has been integrated into Hong Kong's standard judicial machinery. Further, it exercises jurisdiction over persons who are not qualified solicitors but only employees.

86.It is a beguiling argument but I am firmly of the view that the Tribunal, despite its enhanced powers, remains a disciplinary tribunal, no different in its essential nature from many other disciplinary tribunals that operate within a statutory framework in Hong Kong in order to regulate the conduct of a particular profession or calling. It is true that employees of solicitors and foreign lawyers are also subject to the jurisdiction of the Tribunal. But nobody is compelled to take up work in that field and, once employed and integrated into the ethical discipline of the profession, the possibility of review by the Tribunal is an incident of employment. That is to be contrasted, in my view, with courts in respect of which there is no voluntary submission to their jurisdiction.

87.The description of a court of law (that is, a court of judicature) by Lord Scarman in Attorney-General v. BBC [1981] AC 303 in my view makes manifest the difference between what in this present context is called a court of the classic kind and a body which is responsible for disciplinary and/or administrative matters such as the Tribunal. In holding that a local valuation court established for rating purposes was not a court of law and was not an inferior court for the purposes of the Rules of the Supreme Court, Order 52, rule 1, Lord Scarman said (at 359-360) :

" .... I would identify a court in (or 'of') law, i.e. a court of judicature, as a body established by law to exercise, either generally or subject to defined limits, the judicial power of the state. In this context judicial power is to be contrasted with legislative and executive (i.e. administrative) power. If the body under review is established for a purely legislative or administrative purpose, it is part of the legislative or administrative system of the state, even though it has to perform duties which are judicial in character. Though the ubiquitous presence of the state makes itself felt in all sorts of situations never envisaged when our law was in its formative stage, the judicial power of the state exercised through judges appointed by the state remains an independent, and recognizably separate, function of government. Unless a body exercising judicial functions can be demonstrated to be part of this judicial system, it is not, in my judgment, a court of law."

88.The fact that a body, such as the Tribunal, is given powers preserved originally for courts does not - of itself - in my view change the nature of that body. Today a great many tribunals and boards (to a greater or lesser extent) have powers to compel the presence of witnesses and the like; they also have powers to put in chain proceedings for punishing contempt, if only by reporting the matter to the police. These bodies no doubt exercise certain judicial functions and must certainly act 'judicially'. But I do not believe that they are thus transformed into courts of the classic kind. In General Medical Council v. BBC [1998] 1 WLR 1573 (CA), the Court of Appeal found that the Professional Conduct Committee of the General Medical Council was not a court within the meaning of the Contempt of Court Act 1981. In so doing, Stuart-Smith LJ said (at 1580) :

"Mr. Henderson emphasised the importance which Lord Scarman attached to purpose, and he also emphasised the distinction drawn by all their Lordships between judicial and administrative functions. He submitted, correctly, that the P.C.C. of the G.M.C. has to adjudicate in a formal and judicial manner on very serious issues which are of public importance and may also have the gravest effect on the reputation and career of an accused medical practitioner. Mr. Henderson was correct in submitting that the P.C.C. is exercising a sort of judicial power but in our judgment it is not the judicial power of the state which is being exercised. In Attorney-General v. British Broadcasting Corporation [supra], the valuation court was part of the state's machinery of government, but an administrative part, and that explains the emphasis which the House of Lords placed on the distinction between judicial and administrative functions or purposes. In this case, by contrast, the P.C.C. is a statutory committee of a professional body specifically incorporated by statute. It exercises a function which is recognizably a judicial function, and does so in the public interest. It acts in accordance with detailed procedural rules which have close similarities to those followed in courts of law. Nevertheless it is not part of the judicial system of the state. Instead it is exercising (albeit with statutory sanction) the self-regulatory power and duty of the medical profession to monitor and maintain standards of professional conduct. ...." [my emphasis]

89.In my view, that dicta is entirely apposite to the present case. Whatever the differences in statutory powers, the Tribunal fulfills essentially the same role as the English Professional Conduct Committee. As such, the Tribunal is not part of the standard judicial machinery of the Hong Kong Special Administrative Region; it is not therefore a court of the classic kind as defined in De Cubber v. Belgium (supra).

CONCLUSION

90.For the reasons given in this judgment, I am satisfied that the application must fail. The statutory constraint placed on the Tribunal to hold its enquiries in camera is not, in my judgment, inconsistent with the Basic Law. It does not offend Article 10 of the Bill of Rights. The application must therefore be dismissed. There will be an order nisi awarding costs to the respondent, that order to be made final within 30 days of the date of this judgment unless an earlier application is made to argue the matter of costs.

Representation:

Mr Philip Dykes, S.C., leading Mr Hectar Pun, instructed by Messrs Paul W. Tse, for the Applicant

Mr Benjamin Yu, S.C., leading Mr Johannes Chan, instructed by Messrs Lo, Wong & Tsui, for the Law Society of Hong Kong on behalf of the Respondent

Remarks:
Appeal by the Applicant to the Court of Appeal. Appeal dismissed. Please refer to Appeal Judgment of CACV003174A/2001.