Au Wing Lun William v. The Solicitors Disciplinary Tribunal and Another

HCAL001942/2001

HCAL1942/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.1942 OF 2001

-------------------

--------------------

Coram: Hon Hartmann J in Court

Date of Hearing: 12 and 15 December 2001

Date of Handing Down Judgment: 20 December 2001

----------------------

J U D G M E N T

----------------------

INTRODUCTION

1.The applicant in these proceedings for judicial review is a solicitor. He is the sole principal in a firm called William Au & Company.

2.In January 2001, the Solicitors Disciplinary Tribunal ('the Tribunal'), a statutory body constituted in terms of the Legal Practitioners Ordinance, Cap. 159 ('the Ordinance'), conducted an inquiry into the professional conduct of the applicant and a clerk by the name of Chan Cheuk Yeung who at all material times was in the applicant's employ. The inquiry was instituted as a result of complaints submitted to the Tribunal by the Council of the Law Society, there being four complaints in all : three concerning the professional conduct of the applicant, one concerning the conduct of the clerk, Mr Chan.

3.On 28 January 2000, the Tribunal determined that two of the three complaints made against the applicant had been substantiated. It further determined that the single complaint made against the clerk had been substantiated.

4.In the result, the applicant was censured in respect of the two substantiated complaints and ordered to pay fines of $35,000 and $30,000. The clerk, Mr Chan, was also censured and it was ordered that he be prohibited from being employed by any solicitor or foreign lawyer (as that term is understood in the Ordinance) for a period of one year. In respect of costs, the Tribunal made the following order :

"The 1st Respondent [the applicant] and the 2nd Respondent [the clerk] do pay all costs of and occasioned by these proceedings including all prior inquiries and investigations in relation to all Complaints filed against them, on a full indemnity basis, to be taxed by a Master of the Supreme Court if not agreed." [my emphasis]

5.As I have said, of the three complaints made against the applicant, the Tribunal found only two to be substantiated. The first complaint (formally described as Complaint A) was found not to be proved and was dismissed. I am told that the applicant effectively conceded culpability in respect of the third complaint made against him (Complaint C) and is not therefore aggrieved by the determination of the Tribunal in that regard. The applicant, however, is aggrieved by the Tribunal's determination in respect of the second complaint made against him (Complaint B) and is further aggrieved at the order for costs on a full indemnity basis made against him and his clerk. Accordingly, the applicant has sought the following relief :

"(a) an Order of Certiorari quashing the Decision/Findings and Order of the Solicitors Disciplinary Tribunal dated the 28th January 2000 in respect of Complaint B and the fine of HK$35,000.00 imposed by the Solicitors Disciplinary Tribunal in respect of that complaint,

(b) a n Order of Certiorari quashing the Decision/Findings and order of the Solicitors Disciplinary Tribunal dated the 28th January 2000 ordering the Applicant (the 1st Respondent) inter alia to pay all the costs of, and occasioned by the proceedings, including all prior enquiries and investigations in relation to all complaints filed against him on a full indemnity basis to be taxed by a Master of the High Court if not agreed."

THE BACKGROUND

6.In or about June 1997, the applicant's firm, William Au & Company, was instructed to represent the interests of a gentleman named Fateh Muhammad. At that time Mr Muhammad was detained in prison pending the resolution of deportation proceedings against him. Original instructions were given to Mr Chan, the applicant's clerk. Indeed, there is no suggestion that Mr Muhammad ever met the applicant. It is clear, however, that the firm, and not Mr Chan personally, agreed to represent Mr Muhammad. There is correspondence to this effect which includes a formal agreement of representation dated 19 July 1997.

7.Mr Muhammad had a property in Hong Kong which was mortgaged to a local bank. He failed to honour his obligations under the mortgage and legal action was instituted against him by the bank. In due course judgment was obtained and in execution of that judgment Mr Muhammad's property was sold at auction. It appears that Mr Muhammad did not contest the action instituted against him. He was concerned, however, that his property had been sold at auction materially below value and it was in that regard that he sought the services of the applicant's firm. It appears that Mr Muhammad arranged for a number of payments to be made on account to the applicant's firm to meet costs and disbursements.

8.To further Mr Muhammad's case, it was necessary to obtain an independent valuation of the property. Mr Muhammad said that in November 1997 he arranged payment to the applicant's firm of an amount of $3,500 for the purpose of obtaining a surveyor's valuation report. According to Mr Muhammad, Mr Chan informed him that he could obtain a valuation from a company known as Chung Sen Surveyors Limited for that sum. As a result, the required sum was paid in cash direct to Mr Chan.

9.As time passed, Mr Muhammad became concerned that very little was being done by the applicant's firm on his behalf. In January 1998 he sent a letter of complaint to the Law Society. The Law Society investigated the matter, the result being the placing of four complaints before the Tribunal for determination.

10.The Tribunal's inquiry took place over several days in January 2000. The applicant was represented by counsel at that inquiry.

THE COMPLAINTS

11.To better understand the applicant's challenges to the decisions of the Tribunal, it is necessary to refer, in broad terms at least, to the matters in issue before the Tribunal.

Complaint A

12.This complaint was to the effect that the applicant breached Rules 2(c) and (e) of the Solicitors' Practice Rules in that he failed with due expediency to carry out his client's instructions. As earlier indicated, this complaint was found by the Tribunal not to be proved and was dismissed.

Compliant B

13.The substance of this complaint was that the applicant breached Rule 3 of the Solicitors' Accounts Rules. The breach took place in respect of the sum of $3,500 paid to Mr Chan, the applicant's clerk, to enable him to obtain a valuation from Chung Sen Surveyors Limited.

14.A version of events placed before the Tribunal concerning this $3,500 was to the effect that Mr Chan had not recorded the receipt of the funds in the accounting records of the firm but had instead paid those funds direct to Chung Sen Surveyors Limited. Later it was discovered that the surveyors had a conflict of interest and could not carry out the valuation. Accordingly, in April 1998 - after the Law Society had commenced its investigations into Mr Muhammad's complaint - Mr Chan received a refund from the surveyors of $3,000; the balance of $500 being kept for preliminary work done.

15.It appears that Mr Chan attempted to pay this $3,000 - or at least a sum of $3,000 - to the applicant on the basis that it was money due to Mr Muhammad and should be credited to his account. The applicant, however, suspicious as to the true provenance of these funds, refused to accept them from his clerk. The money was not paid into the client's account nor in any way secured in another account. In the result, it appears that more than a year elapsed before Mr Muhammad received his refund, the money coming to him eventually through another firm of solicitors.

16.Complaint B, as formulated by the Law Society, alleged therefore that the applicant, as the responsible solicitor, breached Rule 3 in that :

"(1) the amount of HK$3,500 of the client's money was received but not paid into a client account; and

(2) the amount of HK$3,000 of the client's money was received from Chung Sen Surveyors Ltd. as a refund on or about 28th April 1998 but was not paid into a client account."

Complaint C

17.This complaint was to the effect that the applicant breached the Law Society's Circulars concerning visits to persons in custody by allowing Mr Chan to make those visits when he was not authorized to do so. As I have said earlier, the applicant effectively accepted the merit of this complaint; the issue was not contested.

THE STANDARD OF PROOF

18.In giving its decision in respect of Complaint B, the Tribunal concluded by saying :

" Mrs. Pryor [the prosecutor] referred us to Principal 2.03 of the Hong Kong Solicitors' Guide to Professional Conduct which states : -

' A sole practitioner and each partner is prima facie responsible for the acts and omissions of his firm and this extends to the acts or omissions of his partners and staff.'

Mr. Mitchell-Heggs [counsel for the applicant] submitted that the 1st Respondent had by his evidence rebutted the presumption. Having full regard to all the evidence adduced before us and what was said on the 1st Respondent's behalf, we do not agree that this is the case and therefore we find that Complaint B has been proved." [my emphasis]

19.The standard of proof adopted by the Tribunal is not there stated nor is mentioned elsewhere in the Tribunal's decision. Mr Allan, on behalf of the applicant, has submitted that the failure (if it be one) of the Tribunal to specifically state the standard of proof adopted by it is such a fundamental breach of the rules of procedural fairness that it must vitiate the Tribunal's findings.

20.Mr Allan has emphasised that the Tribunal is not a body composed entirely of professional lawyers who may be expected to know the appropriate standard to apply. The Tribunal consists of two solicitors and one lay person. It is therefore fundamental, he has argued, that the Tribunal, in giving its reasons, must make an unambiguous statement as to the standard of proof it has applied.

21.It appears, however, that at the commencement of the inquiry, without demure from the applicant's counsel, the suggested appropriate standard of proof was brought to the attention of the Tribunal. The solicitor appointed as prosecuting counsel, said the following in her written opening address :

"The burden of proof is on The Law Society of Hong Kong who brings these proceedings against these two Respondents. The standard of proof is one that is appropriate to and commensurate with the gravity of the complaint:

'As for the standard of proof required, clearly it was not that of proof beyond reasonable doubt. This was not even a case of allegations of conduct of the nature of a criminal offence nor was so high a standard required as to be virtually the same. The standard embodied by a balance of probability enables a tribunal to apply that which is commensurate with the gravity of the complaint. Per Nazareth VP A Solicitor -v- Law Society of Hong Kong [1996] 1 HKC 256.' "

22.In my judgment, those unchallenged recommendations to the Tribunal cannot be faulted. The standard of proof to be adopted by a disciplinary tribunal is one that is commensurate with the gravity of the complaint. When criminal conduct or conduct involving serious moral turpitude is alleged then proof beyond reasonable doubt should no doubt be adopted. But in a case such as the applicant's, where nothing more was alleged than a failure to adhere to certain rules of professional conduct, a standard embodied by a balance of probabilities - a civil standard -will suffice. It must be taken therefore that the Tribunal, in determining the issues, adopted the standard recommended by counsel.

23.Returning to the dicta of Nazareth VP in A Solicitor v. Law Society of Hong Kong quoted by the prosecutor in her opening address to the Tribunal, it seems to me that the words of the Vice President fully answer Mr Allan's complaints in the present case :

" Mr Yau turns next to the standard of proof, complaining that the tribunal did not state what standards it had applied. The prosecution, he says, made it plain that it did not allege dishonesty and contended for a burden lower than beyond reasonable doubt, simply a balance of probability. ....

As for the standard of proof required, clearly it was not that of proof beyond reasonable doubt. This was not even a case of allegations of conduct of the nature of a criminal offence nor was so high a standard required as to be virtually the same. The standard embodied by a balance of probability enables a tribunal to apply that which is commensurate with the gravity of the complaint. See, for example, Dr Lai King Shing v Medical Council of Hong Kong [1996] 1 HKC 24 decided by this court only last month. The conduct that is the subject of the complaint here is far from conduct that would be a criminal offence. There is no reason to suppose here that the tribunal applied any standard other than what is commensurate." [my emphasis]

24.Interestingly, as I understood Mr Allan's argument, he did not contend that in the present case a standard other than a civil standard should have been adopted. His complaint was solely that the standard was not stated.

25.The law, I think, is clear in holding that there may be occasions when it is necessary for a disciplinary body such as the Tribunal to make it clear what standard of proof it will adopt or has adopted. This may arise, for example, when the appropriate standard is contested and a ruling is required. It may also arise when, in the interests of fairness, the standard demands to be stated. In this regard, see, for example, in In re a Solicitor [1992] 2 WLR 552 in which Lord Lane CJ said (at page 562) :

"It seems to us, if we may respectfully say so, that it is no altogether helpful if the burden of proof is left somewhere undefined between the criminal and the civil standards. We conclude that at least in cases such as the present, where what is alleged is tantamount to a criminal offence, the tribunal should apply the criminal standard of proof, that is to say proof to the point where they feel sure that the charges are proved or, put in another way, proof beyond reasonable doubt. ...."

26.But while, depending on the circumstances of each case, natural justice may require a disciplinary body to say something of the standard of proof or to so conduct itself as to make it plain that it is aware of the required standard, there is no requirement placed on such a body in each and every instance to state the standard. The rules of fairness decree no such litany. Nor, in my judgment, should they. What is required has been set out in the Privy Council decision of Mahon v. Air New Zealand [1984] AC 808 per Lord Diplock at page 820 :

"The first rule is that the person making a finding ... must base his decision upon evidence that has some probative value in the sense described below ...

The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice. What is required by the first rule is that the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory."

27.Technical rules of evidence applicable to civil or criminal litigation, therefore, form no part of the rules of fairness in disciplinary hearings.

28.But even if in the present case the failure to state the standard of proof did amount to a procedural irregularity (and I am satisfied it did not), it has never been suggested that, if, it had been stated, the Tribunal's decision would have been any different. Mr Allan has not complained of substantive prejudice; in essence he has complained of a lack of form. But there can be no such thing as a technical breach of the rules of fairness. In this regard, the principle was stated by Bingham LJ in R. v. Chief Constable of the Thames Valley Police ex parte Cotton [1990] 1 RLR 344 (at page 351) :

"I would readily accept the view expressed by Lord Denning MR and Cumming-Bruce LJ in George v Secretary of State for the Environment [1979] 77 LGR 689 at pp.695 and 699 that there can be no such thing as a technical breach of natural justice. That is because, to my mind, a procedure must in all the circumstances of a given case be either fair or unfair. Since (always assuming the absence of a prescribed statutory procedure) the court is concerned with matters of substance and not mere form, a procedure cannot be unfair in a purely technical sense. There is no third category embracing procedures which are unfair to the subject of the decision as a matter of technicality but not substance.

Judges of high authority have held that the subject of a decision who has been denied a right to be heard cannot complain of a breach of natural justice (or unfairness) unless he can show that the decision might have been different if he had been heard." [my emphasis]

INDEMNITY COSTS

29.The applicant's second challenge to the decisions of the Tribunal relates to the order made against him and his clerk, Mr Chan, that they pay costs on a full indemnity basis, the costs to be taxed if not agreed. Mr Allan, on behalf of the applicant, has made a number of criticisms of this order. But essentially, as I understood him, the central thrust of his submissions was that the award, being a punitive award, was, in all the circumstances, Wednesbury unreasonable.

30.Mr Allan was, of course, aware of the need to pitch his submissions at the highest end of the scale, namely, that the Tribunal's order was perverse or irrational and an order which no reasonable tribunal could make. But, with respect, it seemed to me that he was at all times essentially attacking the merits of the Tribunal's decision not the legality of it. Whatever the hyperbole used, the submissions were all to the effect that the order was wrong in principle or was disproportionate to the moral culpability of the applicant. That being the case, in my judgment, this was not a matter that should properly be determined by way of judicial review but rather by way of appeal.

31.Section 13(1) of the Ordinance provides for an avenue of appeal from "any order" of the Tribunal. It 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 (Cap.4 sub. leg.) shall apply to every such appeal save that the time for serving notice of motion of appeal shall be 21 days from the date of the decision and not 6 weeks as provided in the said Order and the decision of the Court of Appeal on any such appeal shall be final."

32.Section 10(2) of the Ordinance gives to the Tribunal, upon the completion of its inquiries, the power to make various orders. These orders include payment of costs on a full indemnity basis. In this regard, section 10(2) reads :

" Subject to the provisions of this Ordinance, on completion of its inquiry and investigation, a Solicitors Disciplinary Tribunal shall have power to make such order as it thinks fit and any such order may, in particular, include provision for all or any of the following matters-

(a) striking off the roll of solicitors the name of the solicitor to whom the inquiry or investigation relates;

(b) suspending that solicitor from practice for such period as the Solicitors Disciplinary Tribunal shall think fit;

.....

(c) payment by that solicitor of a penalty not exceeding $500,000 which shall be paid into the general revenue;

(d) censure of that solicitor or, if the inquiry or investigation relates to a solicitor's employee or trainee solicitor, of such employee or trainee solicitor;

(e) payment by any party of the costs of and incidental to the proceedings of the Tribunal and the costs of any prior inquiry or investigation in relation to the matters before the Tribunal, to be taxed by a Master of the High Court on a full indemnity basis, or payment of an amount that the Tribunal considers is a reasonable contribution towards those costs." [my emphasis]

33.Clearly, therefore, an award of costs on a full indemnity basis is an order that the Tribunal had jurisdiction to make and is an order subject to appeal to the Court of Appeal.

34.It appears, however, that the applicant has chosen not to take the matter to appeal but has instead opted for this collateral procedure of review. In the notice of application for leave to apply for judicial review, the following has been stated :

" The Applicant does not want to pursue the appeal procedure under the rules because the appeal procedures do not contemplate re-opening procedures and do not contemplate re-opening the case on the facts. The Applicant should have a fair hearing first before using his right of appeal."

35.But, with respect, the order for payment of costs does not go to the fairness of the inquiry but to the correctness of a determination made by the Tribunal at the conclusion of the inquiry. In the circumstances I cannot see how the applicant can make a unilateral choice to by-pass the appeal procedure laid down by the legislature.

36.Appreciating his difficulties in this regard, Mr Allan shifted his challenge to argue that the applicant had been denied the opportunity to be heard on the question of costs and that the denial amounted to a fundamental breach of the rules of procedural fairness : before a party is to be prejudiced by such an order he should be allowed to be heard. But without going further into the matter, it was subsequently revealed that the applicant had, in fact, been given full opportunity to be heard. As the hearing had to be adjourned, Mr Westbrook, for the respondents, was able to take the prudent step of obtaining a transcript of the relevant portion of the proceedings. Inter alia, the transcript reveals the following :

"Tribunal : ... it would be helpful if you'd submit on the question of costs. Are you in any disagreement as to the costs?

Prosecutor : There has been absolutely no discussion between us at all. I am sure you are aware of the potential orders in relation to costs, your discretion is at Order 10(e). It is suggested that either you make an order on a full indemnity basis, to be taxed if not agreed, or you fix an amount.

Tribunal : Yes, that would be the usual order unless there is some objection.

Prosecutor : Correct. And I have no doubt these matters normally follow the event, if you like, and it [the Law Society] succeeded on three and not on one.

....

Tribunal : So you'll be asking for costs in the usual manner?

Prosecutor : In the usual manner. It's going to be incredibly difficult trying to sort out percentages. I thought I should just simply make that point. You may feel that despite the fact that I have failed on that Complaint there are elements of it which actually means I should have my costs."

37.The transcript goes on to reveal that the applicant's counsel then proceeded to make a number of detailed submissions on the question of costs, concluding by saying :

"On the question of costs, I am instructed that we can't argue against the suggestion that it should be done on the usual basis."

38.The transcript shows therefore that counsel's argument before this Court, in no way forewarned in his written submissions, was based on a fundamental misunderstanding of what, in fact, had occurred. Yet that argument delayed the court and was material to the hearing being carried over to a second day. With respect, counsel must be careful not to launch upon new grounds of argument until the factual basis for the argument has been confirmed. Otherwise there is a real danger that the court will be misled. That, I think, is fundamental to the duties of any advocate.

39.With the "fairness" factor gone, counsel returned to the argument that the order for costs was wrong in principle and/or wrong in the circumstances of this case. But that, as I have said, is a matter for the Court of Appeal, not this Court. The principle has been enunciated in R. v. Inland Revenue Commissioners ex parte Preston [1985] AC 835 in which Lord Scarman said (at page 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 ...... 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 ......"

40.In short, the process of judicial review should not be allowed to supplant the normal statutory appeal procedure, not unless there are shown to be exceptional circumstances. As Lord Jauncey said in the more recent decision of Harley Development Inc. v. Commissioner of Inland Revenue [1996] 1 WLR 727 (at 735/736) :

" That then is the true principle applicable in these cases, namely, that the statutory machinery is exclusive machinery for an appeal from a notice of assessment. There is normally no other. However, I do not say there are no cases in which, exceptionally, a challenge by way of judicial review or otherwise ...... would be possible. There may be cases where, for example, there has been some abuse of power or unfairness, which would justify the intervention of the court: see for example Reg. v. Inland Commissioners Ex parte Preston [1985] A.C. 835. But that is exceptional."

41.In the present case, of course, the applicant has made a deliberate decision not to appeal but to proceed by way of judicial review. A decision of that kind has been subject to criticism. In Judith Jay Sakala v. Secretary of State for the Home Department [1994] Imm. AR 227 (at 231) Sir Thomas Bingham MR commented :

"...... it does seem to me to be an abuse of process in principle for [a claimant], having allowed a time-limit [for an appeal] to expire, then to seek to challenge by judicial review that which should have been challenged by way of appeal."

That would apply at least, he said, where there was "what has to be regarded as a deliberate decision, not to appeal". I concur with those observations.

42.Do exceptional circumstances exist in the present case in respect of the order for indemnity costs? No such circumstances have been proposed. Accordingly, I am satisfied that this Court should not allow the collateral process of judicial review to be used to attack the Tribunal's determination on costs.

43.On the basis that the claimant, in proceeding to judicial review, has elected to impugn the legality of the Tribunal's determination rather than its merits, is there any ground for suggesting that the award of costs was unlawful? I can find none.

44.On a plain reading of section 10(2)(e) of the Ordinance, I believe it is clear that, in determining costs, the Tribunal has three options open to it. First, it may elect to make no order for costs. Second, it may elect to order that a person found liable should indemnify the Law Society against its losses by paying costs on an indemnity basis, those costs to be taxed if not agreed. Third, it may elect to take an equitable 'middle course' and to assess a contribution towards the costs of the inquiry and any prior investigation. In this latter instance, costs may be assessed on a fixed sum basis (for example, $100,000) or as a percentage of the indemnity costs which are to be taxed if not agreed (for example, 25% of those costs).

45.Patently though power does vest in the Tribunal to award costs on a full indemnity basis. It therefore lies within the discretion of the Tribunal to decide whether, in each case before it, that power should be exercised or not.

46.Is there then any ground for suggesting that the exercise of the discretion was in the present case, unlawful? Again, I can find no such ground. The Tribunal listened to submissions from counsel representing the parties. It was entitled to consider all relevant circumstances in the exercise of its discretion and there can be no suggestion it did not. There is nothing on the face of it to suggest that the exercise of discretion was unlawful in the sense that it constituted an abuse of the Tribunal's power or was in any lesser sense perverse.

47.As Mr Westbrook for the respondents has said, the Law Society has been given the responsibility by statute to investigate complaints concerning the conduct of its members. When it carries out an investigation and refers a matter for determination by the Tribunal, it is not therefore involving itself in private party and party litigation : it is, as a professional body, doing no more than fulfilling a statutory obligation. I agree with Mr Westbrook that the legislature, in imposing that obligation, also made provision for the society to be fully indemnified against loss.

48.Contrary to the applicant's contention that indemnity costs are in essence punitive and must, notwithstanding the circumstances, always be seen as condign punishment for profligate conduct, I am satisfied that, in terms of the Ordinance, indemnity costs are intended to do no more than fully indemnity the Law Society against loss. Indemnity costs, as the Ordinance directs, are subject to taxation. The Law Society and its officers are therefore, in the public good, given licence to be thorough not profligate. As for the nature of indemnity costs, see, for example, the observations of Godfrey JA in Sung Foo Kee Ltd v. Pak Lik Company, Civil Appeal No.68 of 1996 :

" The whole point of an award of costs is to afford an indemnity to the party incurring them : see Gundry v. Salisbury [1910] 1 KB 645. But to protect the paying party those costs have to be taxed. Since April 1986, the judge, in England and Wales, has had power to direct such a taxation to proceed either on the standard basis, or on the indemnity basis. On a taxation of costs on the standard basis there is to be allowed a reasonable amount in respect of all costs reasonably incurred and any doubts as to whether the costs were reasonably incurred or were reasonable in amount are to be resolved in favour of the paying party (this is equivalent to the common fund basis here). On a taxation on the indemnity basis all costs are to be allowed except insofar as they are of an unreasonable amount or have been unreasonably incurred and any doubts which the taxing master may have as to whether the costs were reasonably received or were reasonable in amount are to be resolved in favour of the receiving party ..."

49.For completeness, it should be said that the applicant challenged the Tribunal's order that the costs were to be paid by himself and his clerk, Mr Chan. It may well be that the order should have been more precise; the extent of the applicant's liability in terms of that order may be a matter for argument before another body. Suffice to say that such a challenge is to the merits of the order. It is not, therefore, a matter for judicial review.

COMPLAINT B - THE CHALLENGE TO THE TRIBUNAL'S DECISION

50.The applicant made a number of challenges to the determination of the Tribunal in respect of Complaint B. Upon examination, it was clear however that they were all challenges to the merits of the determination not its lawfulness.

51.In my view, a number of the challenges, whatever their nature, had no substance. For example, it was said by the applicant that, in respect of Complaint B, the prosecution "had not proved nor was there any or any independent evidence given or called" to show that the $3,000 offered to the applicant by his clerk was a refund from Chung Sen Surveyors Limited. But prior to the Tribunal's inquiry the applicant had himself, through his then solicitors, admitted that the $3,000 received by his clerk was a refund from those surveyors. This is contained in admitted facts which read :

"That an amount of $3,000 received by Mr Chan as a refund of monies from Chung Sen Surveyors Ltd. was not paid into the accounts of William Au & Co."

52.The applicant's challenges, as stated, were all founded on the basis that the Tribunal "erred" in its decision or "misconstrued" evidence or that there was "insufficient" evidence upon which it could reach its decision. But, as I have said, the Ordinance has laid down an appeal procedure for challenges of this kind and it is not for this court to condone the intentional by-passing of that procedure unless exceptional circumstances exist. In this case, there are no such circumstances.

53.In an earlier judgment concerned with rulings made in the magistracy (Chow Shun Chiu v. HKSAR, HCAL No.263 of 2001), I made observations which I believe apply equally in the present case in respect of the determinations of the Tribunal :

" 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. But in the present case, I am satisfied that no such claim is in substance being made. It would be wrong, I believe, for this court, in practice, to allow itself to become a collateral court of appeal."

CONCLUSIONS

54.For the reasons given, I am satisfied that this application for judicial review must fail. It is dismissed.

55.As for costs, I am satisfied that costs must be awarded to the respondents. Mr Westbrook has indicated that, if costs are awarded in favour of the respondents, he may seek leave to argue that they should be awarded on an indemnity basis. He should be allowed to make his arguments. There will therefore be an order nisi awarding costs to the respondents on a party and party basis, that order to be made final 60 days after the date of handing down of this judgment unless application is made earlier to argue the matter.

Representation:

Mr William Allan, instructed by Messrs Anthony Y.L. Au & Co., for the Applicant

Mr Simon Westbrook, SC, instructed by Messrs Herbert Smith, for the 1st and 2nd Respondents

Remarks:
Appeal by Applicant to Court of Appeal. Appeal dismissed. Please refer to Appeal Judgment of CACV004154/2001.