Au Wing Lun William v. The Law Society of Hong Kong

Case No.HCMP 1378/2001

Court

High Court CFI

Date18 Jul 2001

Judge—

Case Document

100%Judiciary

HCMP001378/2001

HCMP 1378/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDING NO. 1378 OF 2001

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IN THE MATTER of AU WING LUN, WILLIAM, a solicitor

and

IN THE MATTER of the Legal Practitioners Ordinance, Cap. 159

IN THE MATTER of the Findings of the Solicitors of Disciplinary Tribunal dated the 29^th March 2000 and the Order of the Solicitors Disciplinary Tribunal also dated the 29^th March 2000 made against Au Wing Lun, William, a Solicitor.

BETWEEN
	AU WING LUN, WILLIAM	Applicant
	AND
	THE LAW SOCIETY OF HONG KONG	Respondent

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Coram: Hon Woo JA in Chambers

Dated of hearing: 6 June and 12 July 2001

Date of handing down of judgment: 18 July 2001

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JUDGMENT

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Hon Woo JA:

Introduction

By an inter partes summons dated 12 March 2001, Mr Au Wing Lun, William applies to this court, pursuant to Order 59 rule 15 and Order 3 rule 5 of the Rules of the High Court, for extension of time to appeal against the findings and order made by the Solicitors Disciplinary Tribunal ("the Tribunal") on 29 March 2001.

2.There used to be a dispute as to whether the Tribunal should be the proper respondent in this application. Section 13(2) of the Legal Practitioners Ordinance, Cap 159 ("the Ordinance") provides that, in any appeal against any order made by a Solicitors Disciplinary Tribunal, the Law Society shall be the respondent. At the hearing on 6 June 2001, on the application of the intended appellant ("Mr Au"), I allowed amendments to the summons so as to make the proper party to appear as the intended respondent and I also made certain directions for the conduct of these proceedings.

3.It is well established that there are the following factors for this Court to consider regarding an application to seek leave to appeal out of time:

	(1)	the length of the delay;
	(2)	the reasons for the delay;
	(3)	the chances of the appeal succeeding if time for appealing is extended; and
	(4)	the degree of prejudice to the proposed respondent.

See para 59/4/14 of the Hong Kong Civil Procedure 2001.

Length of delay

4.The subject of the proposed appeal is the findings and order made by the Tribunal on 29 March 2000. The application for leave to appeal was made by the summons dated 12 March 2001. According to s 13(1) of the Ordinance, the period within which an appeal may be lodged is 21 days, and that would have expired on 19 April 2000. The period of delay is therefore about 11 months, from the expiration of the deadline for appeal to the date of the summons.

Explanations for delay

5.In his first affirmation made on 10 March 2001, Mr Au set out his explanations for the delay. He said after the decision of the Tribunal on 29 March 2000, he felt aggrieved as he did not agree with the Tribunal's findings and decision. He believed that the tribunal had erred in making its findings against him. His reasons for the delay can be summarised as follows:

	(a)	he had the deepest wish not to antagonize the Law Society if at all possible;
	(b)	he was hoping that the case would rest there and he tried to accept the decision;
	(c)	considering the amount of the penalty imposed by the Tribunal, the further costs to be incurred to proceed to an appeal, the mental stress that he would face and the vicissitudes of litigation, he was in fact undecided as to whether or not to lodge an appeal;
	(d)	the matter before the Tribunal resulted from a referral by the Court of Appeal; he feared an appeal might possibly antagonize the Court of Appeal, although he believed that the Court of Appeal's referral was due to a misunderstanding and failure to see the whole picture;
	(e)	the person, Mr Lai Wai ("Mr Lai"), who complained against his conduct, had made unfounded allegations against him in the proceedings before the Court of Appeal, but Mr Lai did not even appear at the disciplinary hearing;
	(f)	after much consideration and reflection on the Tribunal's decision, he felt a very strong sense of grievance and decided to appeal against the decision in the middle of November 2000, whereupon he informed the Law Society of his intention to appeal out of time;
	(g)	the counsel representing him at the disciplinary hearing advised him that he should ask another counsel to take up the appeal, and as there were a large amount of bundles and documents including the full transcript of the disciplinary hearing, he needed time to examine them to form an opinion that there was no supporting evidence and no proper reasons for the Tribunal to make its findings and decision; and
	(h)	he was presented with the bill of costs in respect of the disciplinary hearing which he was ordered to bear on an indemnity basis in the middle of October 2000, nearly six and a half months after the order was made by the Tribunal, and that he was shocked to see that the costs came to almost $1 million; he feels that the penalty together with the costs imposed by the Tribunal are totally unfair and disproportionate to the charges of which he was found guilty by the Tribunal.

6.I look at the explanations from the point of view that they are given by a solicitor of 22 years' standing. This perspective is of course different from that applicable to a layman who is untrained in the law and legal procedure. In the Tribunal's written findings and order of 29 March 2000, it is clearly stated:

"That the filing of this order be suspended for a period of TWENTY-ONE (21) days from but excluding the date hereof pursuant to Rule 16, Solicitors Disciplinary Tribunal Proceedings Rules and, if Notice of Motion of Appeal is filed within such period, then the filing be suspended until termination or abandonment of such Appeal."

The period of 21 days is following the time for appeal prescribed by s 13(1) of the Ordinance. It is plain that Mr Au knew that he had 21 days to appeal against the findings and order of the Tribunal. It was due to his indecisiveness that he did not lodge his appeal within the 21 days. He said that he was aggrieved and he did not agree with the reasons given by the Tribunal in reaching its decision and there was no evidence to support the findings of the Tribunal. He also feared that an appeal might antagonize the Law Society of which he is a member and also the Court of Appeal. He, as a solicitor of long standing, should have appreciated that what should operate utmost and foremost in legal proceedings is fairness and justice. If he has been feeling that he was not fairly or justly treated, he should have appealed, although by doing so he might have antagonized his brothers and colleagues in the Law Society. His feelings that he might antagonize the Court of Appeal are totally unjustified and unfounded. Again he, as a solicitor of long standing, should have known that the Court would decide upon any appeal on its own merits and evidence. There is no possibility that the Court of Appeal will be antagonized by his appeal. If his appeal is well founded it will be allowed, and vice versa. This suggestion of Mr Au, from the mouth of a long-standing solicitor, brings disrespect and disrepute to the law in which he practises. It is unwarranted and senseless. He should also have appreciated that the time limits for taking legal steps are to be observed and any failure to comply will be costly and may well debar him from appealing. Having examined the reasons in items (a) to (f) above, I do not consider that they are reasonable explanations for the long delay between 20 April and mid-October 2000.

7.For the purposes of this application, I shall accept what Mr Au says about his being shocked by the costs that he was asked to bear, to the extent of nearly $1 million. His wish to appeal against the Tribunal's decision might therefore have been rekindled by his being notified in the middle of October 2000 of the amount of costs. The Tribunal ordered him to pay penalties of respectively $100,000, $30,000 and $5,000 for the three charges of which he was found guilty, totalling $135,000. As compared with these penalties, the costs of almost $1 million might be considered as hefty. On the other hand, he knew the extent of such costs in the middle of October 2000, and it had taken him about a month to make up his mind to appeal and inform the Law Society accordingly in mid-November 2000. The papers that are necessary for the preparation of an appeal against the Tribunal's decision have mostly been exhibited to the affidavit of Ms Pryor, who was the solicitor appointed by the Law Society in the conduct of the disciplinary proceedings. They come to about 600 pages. Although the counsel acting for Mr Au in the disciplinary proceedings advised Mr Au to get another counsel to conduct the proposed appeal, I am of the view that taking all matters into account in this case, not more than 6 weeks would suffice, on any generous reckoning, for getting another counsel and for him or her to provide Mr Au with an advice as to an appeal and to prepare the papers accordingly. There is no valid explanation given for a delay of over 2 months in between mid-November 2000 and March 2001 for the lodging of this application. All in all, I am not persuaded that there are reasonable explanations for the long delay in lodging this application.

Prejudice

8.However, as Mr Miller, for the Law Society, has fairly accepted, this is not hostile litigation. I have no doubt that the Law Society will not oppose to the application purely based on unexplained long delay unless that causes prejudice to them, if there are arguable grounds for its member, Mr Au, to justify his appeal. Indeed, the prejudice deposed to by Ms Pryor in her affidavit has never been particularised. It can only be said to be a prejudice caused by a delayed finality of the disciplinary proceedings and no further.

Merits of the proposed appeal

9.I turn to examine the merits of the proposed appeal.

10.The charges laid against Mr Au and one of his clerks, Mr Chiu, arose from a referral by the Court of Appeal as mentioned in the Court of Appeal's judgment dated 18 September 1998 in CACC No 50/1998. That was an application for leave to appeal by Mr Lai against convictions of two charges by District Judge Kilgour, namely, burglary and resisting a police officer in the execution of his duty. The grounds of appeal of Mr Lai focussed on the conduct of his defence by Mr Au and Mr Chiu on his behalf in the District Court criminal proceedings. After referring to the testimonies of Mr Au and Mr Chiu and the transcript of the District Court proceedings, the Court of Appeal concluded in its judgment as follows:

	"We are satisfied that no proper instructions were ever taken from the applicant [Mr Lai]; that the instructions that were given were never fully canvassed by Mr. Au in cross-examination; that the applicant was never given proper advice as to whether or not he should give evidence. Indeed he was never given any advice at all in this regard by his defending solicitor.
	The defence accorded the applicant by Mr. Au was, we have no hesitation in saying, characterized by flagrant incompetence. He left matters to his clerk which were clearly his duty to undertake. He failed to ensure that full instructions were taken from the applicant and was, because of this, never in a position fully to put the defence.
	At the end of the day the only issue in the trial was one of credibility. Were the prosecution witnesses to be believed or was sufficient doubt cast upon their evidence to warrant an acquittal. The only realistic hope of success for the applicant lay in his giving evidence. He should have been told this. Not only was he not told this but he was given thoroughly incompetent advice by the clerk and no advice at all by his defending solicitor. The clerk seems to have decided from the very outset that the applicant should not give evidence and to have so advised regardless of the realities of the trial.
	As the applicant was never accorded a proper defence this appeal must be allowed.
	Finally, we state that we are far from satisfied that we have been told the truth either by Mr. Au or by his clerk as to the position as regards the fees. Neither witness appeared to us to be frank in this regard. We direct that the record of these proceedings be sent to the Law Society."

11.Before the Tribunal, there were four charges laid against Mr Au and two charges laid against Mr Chiu. Those against Mr Au were complaints A, B, C and D, and those against Mr Chiu were complaints E and G, complaint F against Mr Chiu having been withdrawn.

12.The allegations in complaint A made against Mr Au were almost identical to those made in complaint E against Mr Chiu. The allegations made in complaint C against Mr Au were almost identical to those made in complaint G against Mr Chiu. The Tribunal found complaints A and C proved as against Mr Au, but considering the standard required of a clerk in the position of Mr Chiu, found him not guilty of complaints E and G. In addition, the Tribunal found complaint B against Mr Au proved. Complaint D was discharged.

13.Complaint A is for breaches of Rules 2(c), (d), (e) and (f) of the Solicitors' Practice Rules, in that Mr Au

	(1)	failed to take any or any proper instructions from his client;
	(2)	failed properly to canvas those instructions which were taken from his client by his clerk with the witnesses called by the prosecution;
	(3)	failed to give any or any proper advice to his client as to whether or not to give evidence in his defence; and
	(4)	in all the circumstances, failed to accord his client a proper defence.

14.The Tribunal's finding that complaint A was proved was based on the following admissions which are not disputed by the parties before me to have been made by Mr Au before the Tribunal, namely:

	(a)	he admitted that he failed to ensure the client's instructions were reduced into writing and he did not obtain instructions from the client as to the client's plea in mitigation in the event of a conviction;
	(b)	he admitted that he knew that the client had been assaulted by the police during arrest, but he did not take any further instructions on such assault;
	(c)	he admitted that in his conduct of the District Court proceedings, he did not put to any of the police witnesses that there were two Pakistani watchmen at the scene of arrest who had stated that the client was not the burglar;
	(d)	he admitted that he had instructions that the police had planted a white glove on the client and the client had been assaulted by the police during arrest, but due to his misunderstanding and inexperience, he omitted to put such instructions to any of the police witnesses during crossexamination;
	(e)	he admitted that he had sought instructions from the client as to the reason for the client's presence at the place of arrest at 3 o'clock in the morning but the client did not answer him, and he also admitted that it might be due to some oversight that he did not tell the above matter to the Court of Appeal in CACC No 50/1998;
	(f)	he admitted that he did not advise the client to give evidence or not to give evidence;
	(g)	he admitted that he did not tell the Court of Appeal that he had advised the client as to whether or not to give evidence because he was being harassed before the Court of Appeal; and
	(h)	he admitted that although he knew that the client's complaint to the Complaints Against the Police Office ("the CAPO"), he took no steps to obtain a copy of the client's statement to the CAPO and a medical report from the Yan Chai Hospital in respect of the injury sustained by the client during arrest.

15.As a result, the Tribunal found that allegations (1), (2) and (3) of complaint A proven. In view of the admissions made in respect of those three allegations, the Tribunal found in all the circumstances that the advice given by Mr Au to the client, if any, would not have been proper. The Tribunal therefore found that allegation (4) of complaint A proven.

16.Complaint B is for breach of Rules 2(d) and (f) of the Solicitors' Practice Rules in that on 31 August 1998, Mr Au gave false or alternatively misleading evidence in sworn testimony to the Court of Appeal in CACC No 50/1998 concerning the fees received by or owing to his firm in relation to the criminal proceedings before the District Court. The finding of the Tribunal was based on the transcript of Mr Au's testimony before the Court of Appeal in CACC No 50/1998 which showed that he gave different versions to the Court of Appeal about the fees received by or owing to his firm in relation to the District Court case. The Tribunal formed the view that Mr Au did deliberately, though not dishonestly, give misleading, though not false, evidence to the Court of Appeal at the relevant moment.

17.Complaint C is for breaches of Rule 5D of the Solicitors' Practice Rules in that Mr Au failed within 7 days from receiving instructions from his client or at all, to confirm by letter to his client: the instructions given by the client, the services to be provided by the firm, the name of the solicitor in charge of the matter, and the fee to be charged or an estimate of such fees, and failed to secure the written and signed agreement of his client to those terms; in that he failed at the end of the trial or at all to deliver an account to his client, signed by himself personally, including the required information; and in that he failed to issue a receipt for the money received from or on behalf of his client. The last mentioned allegation was not proven. Apart from that, the evidence relied on by the Tribunal to satisfy itself that complaint C had been committed was based on the admissions made by Mr Au in the disciplinary proceedings. Both parties before me do not dispute this. Mr Au admitted that save in respect of a bail application, he did not confirm by letter to the client in respect of the client's defence in the District Court Case the following information: the instructions given by the client, the services to be provided by the firm, the name of the solicitor in charge of the matter, and the fee to be charged or an estimate of such fee. Further, he also admitted that he did not secure the written and signed agreement of the client to the above terms. Mr Au's explanation that he had asked Mr Chiu, his clerk, to prepare such a letter and secure such an agreement but Mr Chiu failed to do so, did not amount to a defence, because it exposed the lack of supervision by Mr Au on Mr Chiu. Mr Au also admitted that did not deliver an account to the client including the information required by Rule 5D(c) of the Solicitors' Practice Rules, at the end of the trial or at all. The Tribunal also did not accept Mr Au's defence that there was a guarantor to pay the fee and the client refused to sign any such letter.

Grounds of appeal

18.There are three grounds of appeal set out in the proposed Notice of Appeal exhibited to the 1^st affirmation of Mr Au in support of this application before me. All the three grounds are based on the fact that Mr Lai, the client, was not present at the disciplinary hearing and did not give evidence. That, according to the first ground of appeal, is the basis for saying that the Tribunal erred in law in ruling that the absence of Mr Lai would not prevent Mr Au from having a fair hearing. In the second ground of appeal, it is alleged that the Tribunal erred in law in finding that in the absence of Mr Lai, Mr Au was able to have a fair hearing, and that the Tribunal failed to have any sufficient regard or consideration for the principles and rules of natural justice when refusing to grant a stay of proceedings. The third ground of appeal is that the Tribunal erroneously found the breaches of Rules 2(c), (d), (e) and (f) of the Solicitors' Practice Rules to have been proven against Mr Au without the actual evidence from Mr Lai.

Absence of Mr Lai

19.As said before, the evidence accepted by the Tribunal in finding complaints A, B and C proven against Mr Au was from his own admissions before the Tribunal and his testimony before the Court of Appeal in CACC No 50/1998. Indeed, the finding of gross incompetence in the conduct of Mr Lai's case by Mr Au and his clerk made by the Court of Appeal in the passage cited above from its judgment was also based on the testimonies of Mr Au and Mr Chiu before the Court of Appeal. In my view, there seems to be no sounder basis for a finding than an accused person's own admissions. Mr Lai in the criminal appeal case did not give evidence before the Court of Appeal save by way of an affirmation containing his complaints, nor did he give evidence at the hearings before the Tribunal. Indeed, he was not even present at the Tribunal which, albeit with the assistance of the police, had failed to have a subpoena issued by it served on him. In respect of the three original grounds of appeal, Mr Lai's evidence against Mr Au was, in my judgment, totally unnecessary in view of the admissions made by Mr Au to the complaints.

20.As to the alleged unfairness to Mr Au while the Tribunal conducted the inquiry in the absence of Mr Lai, it is to be noted that both Ms Pryor and Mr Lunn SC, who represented the Law Society at the disciplinary hearing at one stage or another, made known expressly to the Tribunal and Mr Au that they were not relying on the affirmation made by Mr Lai in CACC No 50/1998 to prove their case against Mr Au. No reliance was placed by the Tribunal on Mr Lai's affirmation evidence in making its findings against Mr Au. In the circumstances, I fail to see how the disciplinary proceedings could be said to be unfair to Mr Au even though Mr Lai was absent.

Privilege against self-incrimination

21.By Mr Allan's Skeleton Submissions, however, further matters have been raised that deal with another angle. In a word, it is alleged that there were breaches of Mr Au's privilege against self-incrimination. The factual basis appears from the 2^nd affirmation of Mr Au filed on 22 June 2001 in these proceedings is as follows:

(1)	(2)The Court of Appeal compelled Mr Au to give evidence in the criminal appeal proceedings.
(2)	The Tribunal on 24 May 1999 ordered affidavit evidence to be filed by the parties, including Mr Au. He was faced with the intimidation by the Chairman of the Tribunal, by stating repeatedly that it had the power to investigate, that if he did not file affirmation and give evidence, there would be no contradictory evidence on his part and he would be convicted of all charges. He was therefore oppressed and had no choice but to give evidence involuntarily and against his will.
(3)	Neither the Court of Appeal nor the Tribunal had ever warned him that he had a common law right of privilege against self-incrimination.

22.It is undisputed that Mr Au was compelled by an order of the Court of Appeal in CACC No 50/1998 to file an affirmation in response to the complaints against him raised by Mr Lai in respect of his (Mr Au's) conduct of the District Court proceedings. Mr Au was further ordered to appear before the Court of Appeal to be cross-examined on oath about the contents of his affirmation and the complaints launched by Mr Lai against him. The order was presumably made by the Court pursuant to its powers under s 83V of the Criminal Procedure Ordinance, Cap 221, and it does not seem to be at all arguable that this order was but lawfully made.

23.Mr Au complains that he was not represented at the Court of Appeal and he had no choice but to go into the witness box and be cross-examined. The cross-examination conducted both by counsel for Mr Lai (the applicant for leave to appeal against conviction) and the Court was hostile. He was not warned that his testimony might be used against him in any proceedings. In the course of his testimony before that Court he made certain statements about the fees relating to the criminal case he conducted for Mr Lai in the District Court, which were the subject of complaint B against him before the Tribunal. As it turned out, the Tribunal used the admissions he made on oath before the Court in finding complaint B proven. The Tribunal did not accept his explanations he gave to it and found him guilty of Complaint B. It is plain that Complaint B was not a complaint that was raised by Mr Lai, but rather arose from a reference by the Court of Appeal. It was based on Mr Au's evidence given before the Court relating to the fees received by or owing to his firm relating to the District Court proceedings. It is contended that the compulsion to testify before the Court of Appeal was against Mr Au's privilege against self-incrimination, although Mr Alan has eventually conceded that he cannot rely on this privilege regarding the proceedings in CACC No 50/1998 (see paragraph 33 below).

24.It is necessary to ask two questions. First, whether it was lawful for the Court of Appeal to order Mr Au to testify before it. The Court was empowered by s 83V of the Criminal Procedure Ordinance to order persons to attend and give evidence. As such, there was nothing improper for Mr Au to be compelled to testify before the Court, and he cannot complain about the fact that he was so compelled. The second question is while he was testifying before the Court, whether he enjoyed a privilege against self-incrimination. It is undeniable that the privilege exists at common law. In Fu Kin Chi v The Secretary for Justice [1998] 1 HKC 411 at 419D, Li CJ made the following statement about the common law on the privilege before he dealt with the abrogation of that privilege by statute:

"At common law, a person has the privilege from being compelled to answer questions, the answers to which might tend to expose him to any punishment or penalty (including disciplinary one) and this privilege is capable of application in non-judicial proceedings. That this is the position at common law was accepted by Mr Robert Tang SC who appeared for the respondent and was clearly established ..."

25.Mr Miller argues that the statement about the common law position regarding exposure to penalty under disciplinary proceedings was obiter. He relies on Cross & Tapper on Evidence, 9^th Ed, p 428, at which the learned editor stated:

"Nor will exposure to other unpleasant consequences be enough, such as rendering the witness liable to ... professional disciplinary proceedings [citing Re Fang and College of Physicians and Surgeons of Alberta (1985) 25 DLR (4^th) 632 in support]."

26.Various inroads into the privilege have been made by statutes in other common law jurisdictions. However, in Hong Kong, it does not appear to be very clear as to whether the privilege has been abrogated to such an extent as to disallow Mr Au relying on it to refuse to answer questions put to him in the Court of Appeal. The Evidence Ordinance, Cap 8 has general application to proceedings in Hong Kong, and that includes the proceedings before the Court of Appeal. The Ordinance is expressly applicable to the proceedings before the Tribunal by virtue of the provisions of s 35 of the Solicitors Disciplinary Proceedings Rules. S 65 of the Ordinance provides for a limitation of the privilege, as follows:

"(1) The right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty-

(a)

shall apply only as regards criminal offences under the law of Hong Kong and penalties provided for by such law,..."

27.While s 65 is silent regarding the position in criminal proceedings, s 10 of the Ordinance fills the lacuna. S 10 provides:

"Nothing in this Ordinance shall render any person who is any criminal proceedings is charged with an indictable offence or any offence punishable on summary conviction compellable to give evidence for or against himself, or shall render any person in any proceedings compllable to answer any question tending to criminate himself."

28.In criminal proceedings, therefore, it is clear that the privilege under the common law has remained unaltered. The only question that concerns the intending appeal is whether the privilege is limited to questions the answers to which "would tend to expose" the questioned person "to proceedings for an offence or for the recovery of a penalty" "as regards criminal offences under the law of Hong Kong and penalties provided for by such law" as provided in s 65 which only applies to proceedings other than criminal proceedings. There are a number of questions relating to whether these statutory provisions operate for or against Mr Au regarding his now claimed privilege while he had given evidence in the Court of Appeal. While I accept that the statement of the common law position made by the Chief Justice in Fu Kin Chi cited above is obiter, I am not disposed to rule that it is not reasonably arguable that the privilege applies to exposure to disciplinary proceedings. I say that on at least three grounds, namely, first, the utterance of the Chief Justice (albeit obiter); secondly, s 10 makes it clear that for criminal proceedings (and CACC No 50/1998 is a criminal appeal), the privilege applies without the limitation imposed by s 65; and thirdly, even if s 65 of the Evidence Ordinance applies, the privilege relating to "penalty" "provided by the law of Hong Kong" may encompass the penalties that the Tribunal is empowered to impose under s 10(2)(c) of the Legal Practitioners Ordinance which provides that the Tribunal shall have power to make such order as it thinks fit including "payment by" the solicitors subject to its inquiry "of a penalty not exceeding $500,000".

29.However, Mr Miller in his Skeleton Arguments submits that even if the privilege was available to Mr Au before the Court of Appeal, that does not help him now because he cannot:

(a)		complain that he was not warned by the Court of Appeal that he was not obliged to answer incriminating questions;
(b)		complain that he was ignorant of his rights; or
(c)		claim the privilege retrospectively in respect of the answers he had already provided as a witness to incriminating questions.

Mr Miller relies on a number of authorities in support. I think it suffices simply to refer to R v Coote [1873] LR 4PC 599, an appeal to the Privy Council from Canada. The issue to be decided in that case was whether or not depositions sworn to by a person in a fire inquiry before any charge or accusation had been made against him, without being cautioned that what he so deposed might be given in evidence against him in subsequent criminal proceedings were admissible evidence against him in such subsequent proceedings. After citing various English authorities on the subject, Sir Robert Collier, delivering the judgment of the Privy Council, summarised the law at p 607 as follows:

	"From these cases, to which others might be added, it results, in their Lordships' opinion, that the depositions on Oath of a Witness legally taken are evidence against him, should he be subsequently tried on a criminal charge, except so much of them as consist of answers to questions to which he has objected as tending to criminate him, but which he has been improperly compelled to answer. The exception depends upon the principal 'nemo tenetur seipsum accusare,' but does not apply to answers given without objection, which are to be deemed voluntary.
	The Chief Justice [of Canada] indeed suggests, that Coote may have been ignorant of the law enabling him to decline to answer criminating questions, and that if he had been acquainted with it he might have withheld some of the answers which he gave. As a matter of fact, it would appear that Coote was acquainted with so much of the law; but be this as it may, it is obvious, that to institute an inquiry in each case as to the extent of the Prisoner's knowledge of law, and to speculate whether, if he had known more, he would or would not have refused to answer certain questions, would be to involve a plain rule in endless confusion. Their Lordships see no reason to introduce, with reference to this subject, an exception to the rule, recognised as essential to the administration of the Criminal Law, 'Ignorantia juris non excusat.'"

30.Unless Mr Au can establish that he had been improperly compelled to answer any question despite his objection and his reliance on the privilege against self-incrimination before the Court of Appeal, he cannot now rely on this privilege to assert the Tribunal had received his testimony before the Court unfairly to his detriment. From the transcript of the proceedings before the Court of Appeal, it is clear that while Mr Au was not warned of the privilege, he himself did not raise any objection to any of the questions asked of him. His answers are, therefore, to be treated as having been given by him voluntarily, whether he had appreciated that he could rely on the privilege or not. I am not persuaded that his raising the privilege now accords him an arguable ground of appeal.

31.Mr Allan shifts to argue that the testimony of Mr Au in CACC No 50/1998 should not have been admitted by the Tribunal. He relies on the following statement in Phipson on Evidence, 14^th Ed, p 541:

"Evidence which has been revealed as a result of legal proceedings is not available for use by the litigants or third parties for the purposes of other proceedings."

He also refers me to the cases cited on pp 541-543 of Phipson for support. However, those cases dealt with the lack of right of parties to a civil action or non-parties to make use of evidence obtained through discovery in the action in other proceedings. The main rationale for the rule is that there is an implied undertaking by a party to such an action not to use a document disclosed as a result of discovery for any purpose other than in that action. These cases have no relevance to the situation in the instant case.

32.Moreover, before the Tribunal, he and his counsel Mr Mitchell-Heggs never raised any objection to the admissibility of his testimony in the Court of Appeal as evidence before the Tribunal. I am not persuaded that there is any arguable point that he can raise now as to such admissibility.

33.Returning to the privilege against self-incrimination, it seems to me futile to allow Mr Au to raise this matter as a ground of appeal. His testimony before the Court of Appeal was taken lawfully. Complaint B before the Tribunal was a consequence of such testimony. Just like a case of perjury the subject matter of which is the testimony given by the person accused of the offence in former proceedings being false, there is no excuse for him to say that he was compelled to give the testimony in issue. He cannot complain that as he was compelled to testify, he had to give false testimony. Similarly, in the present case Mr Au cannot complain that he gave different versions about the fees to the Court of Appeal. The answers that he gave to the questions put to him on the fees could not amount to tending to expose him to any penalty, if each one of those answers is to be considered separately. It was the combination of those answers which were conflicting that gave rise to complaint B and supported the proof of complaint B before the Tribunal. Despite my invitation, Mr Allan has not been able to point to any single question put to Mr Au in CACC No 50/1998 the answer to which would tend to incriminate Mr Au; and it was such inability that led to Mr Allan conceding that he did not rely on the privilege regarding the Court of Appeal proceedings. It follows that even if Mr Au had objected to any one of those questions as criminating, he would not have succeeded.

34.Mr Au may be entitled to claim the privilege against self-incrimination in the proceedings before the Tribunal either under s 65 or s 10 of the Evidence Ordinance. However, this is irrelevant because his intended appeal does not concern the using of his evidence in the Tribunal hearing against him in any other proceedings.

Right to remain silent

35.Mr Allan also argues that Mr Au's right to remain silent had been breached by the Tribunal. He complains that the Chairman of the Tribunal had on various occasions stated that it was making investigation. He draws my attention to p 380 of the Appeal Bundle which is p 15 of the transcript of the proceedings before the Tribunal on 30 November 1999 and highlights the following passages to demonstrate that Mr Au's right to remain silent had been breached by the Tribunal:

	"Chairman: I think the Tribunal would also want to have the experience of the demeanour of the respondents in the evidence. So I would not allow the affidavit to be used as evidence and so perhaps you would call your client to give evidence."
	"Chairman: No, I was going to refuse the application and I would ask you to call your client to give evidence in the normal case. Mr Lunn has rightly pointed out that there was an order for the Respondents to file affidavits to reply. I can understand your position because your clients wished to make an application to stay, but then that is a tactics which your client is entitled, but he also has to bear the consequence and I think the consequence is that he has to give evidence. That is the ruling of the Tribunal."

36.It is idle to complain about the Tribunal stating that it was making investigation or it had the power to investigate because it was merely stating the obvious. S 9B of the Legal Practitioners Ordinance provides:

"(1) On receipt of a submission under section 8A(3) or 9A in respect of a person who is, or was at the relevant time, a solicitor, a trainee solicitor or an employee of a solicitor the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel shall appoint from the Panel 2 solicitors and one lay person to constitute a Solicitors Disciplinary Tribunal to inquire into and investigate the matter."

37.The utterances by the Chairman of the Tribunal have to be understood in their context. The Tribunal had on 24 May 1999 ordered affidavit evidence to be filed by the parties. Mr Au and his co-respondent Mr Chiu did not comply with that order because, as their counsel Mr Mitchell-Heggs made known to the Tribunal, they required Mr Lai to come to the Tribunal to give evidence. As a result, the Tribunal itself issued a subpoena to Mr Lai. Mr Lai could not be located. Mr Mitchell-Heggs made an application to stay the proceedings but failed. Then Mr Lunn, for the Law Society, started to present its case. He expressly stated that the Law Society's case did not rely on the affirmation of Mr Lai filed with the Court of Appeal, but was rather based on the testimony of Mr Au before that Court. No objection was taken by Mr Mitchell-Heggs that the testimony was inadmissible as evidence before the Tribunal, nor can the objection, in my view, be taken. Mr Lunn presented the case for the Law Society and close the case. Mr Mitchell-Heggs then applied to file affidavit evidence on the basis that it was a written form of in-chief evidence. It was in the course of hearing that application that the Chairman made those statements. When understood in the proper context, what the Chairman was saying was not that Mr Au must give viva voce evidence. It was Mr Mitchell-Heggs who applied for affidavit evidence to be filed despite the non-compliance with the 24 May order. It is plain that the application was made so that Mr Au could give his evidence on affidavit as his evidence in chief and in order to save time. That was voluntary and was in no sense by compulsion. Mr Mitchell-Heggs then argued that he was merely seeking leave to file affidavits out of time and the Chairman allowed his application. Mr Mitchell-Heggs also made known that he was "certainly going to call" his clients. I do not consider that there is any arguable basis for complaint that Mr Au's right to remain silent had been breached. It is plain that Mr Mitchell-Heggs, his counsel, decided that he would give affidavit evidence and avail himself for cross-examination. In view of this evidence, Mr Allan's complaint that Mr Au's right to remain silent was breached has no leg to stand on.

38.In paragraph 12 of Mr Au's 2^th affirmation before me, he said:

"Both myself and Mr Chiu were faced at the said hearing on 29th November 1999 with the intimidation by the President that if we did not file affirmation and give evidence, there would be no contradictory evidence on my part and we would be convicted of all charges."

Despite my invitation, Mr Allan has not been able to show me any passage in the transcript of the proceedings of the Tribunal that bears out this allegation of intimation by the Chairman of the Tribunal. Mr Allan is only able to say that Mr Au had that impression before the Tribunal. Indeed, it may well be true that if Mr Au did not give evidence, by affidavit or otherwise, before the Tribunal, he would have deprived himself of an opportunity to explain the testimony that he gave in CACC No 50/1998. It may also well be the case that because of his testimony in the Court of Appeal consisting of various admissions that he felt compelled to give evidence before the Tribunal. It appears that Mr Mitchell-Heggs took one or both of these views because it was Mr Mitchell-Heggs who applied to file affidavit evidence of Mr Au to be treated as Mr Au's evidence in chief in order to save time, which application was acceded to by the Tribunal. It does not appear that any other option was open to Mr Au. However, that does not mean that he was oppressed or he gave his evidence against his will. He was represented by counsel and he elected to give evidence, by affidavit and subject to cross-examination. That must have been caused by the testimony he had given before the Court of Appeal, which without explanation would be sufficient for the Tribunal finding him guilty of one or more of the charges he faced. Looking at all the circumstances of the proceedings before the Tribunal, I cannot find that Mr Au's right to remain silent was at all infringed. In the end, the Tribunal found him guilty of complaints A and C based on the admissions made in his own evidence before it.

39.Mr Miller seems to rely on s 11 of the Legal Practitioners Ordinance and s 14 of the Solicitors Disciplinary Tribunal Proceedings Rules to argue that the rules of evidence applicable to proceedings before the Tribunal entitle the Tribunal to obtain affidavit evidence from Mr Au and also to compel him to be cross-examined on oath. Thus, the admissions made by Mr Au before the Tribunal were properly and lawfully extracted and could be used as the basis for the findings against him. At the present stage, however, I am not persuaded that the said statutory provisions concerning the rules of evidence before the Tribunal are so clear and unambiguous as to exclude the right to remain silent. Notwithstanding, this does not affect my views expressed in the preceding paragraphs.

Conclusion

40.For the above reasons, I have come to the view that the intended appeal is not arguable and it would only be a waste of time, effort and cost for all concerned to allow the appeal to be launched after such a long lapse of time without any satisfactory explanation. The application must be refused.

Costs

41.I make an order nisi that costs of this application be borne by Mr Au.

	(K H Woo)
	Justice of Appeal

Representation:

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

Mr Dan Miller, instructed by Messrs Herbert Smith, for the respondent.

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