Tse Wai Chun Paul v. Solicitors Disciplinary Tribunal and Another

FAMV000046/2002

FAMV No. 46 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 46 OF 2002 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 3174 OF 2001)

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Appeal Committee:Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ

Date of Hearing:13 February 2003

Date of Determination:13 February 2003

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D E T E R M I N A T I O N

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Chief Justice Li:

1.This is the determination of the Appeal Committee.

2.The applicant is a solicitor. In February 2001, the Solicitors Disciplinary Tribunal ("the Tribunal") commenced an inquiry into certain aspects of his professional conduct. At an early stage of the inquiry, the applicant applied for the inquiry to be made public. The Tribunal ruled that it had no power to allow the application and that even if it had, it was not convinced that the application should be granted.

3.The Tribunal's ruling that it had no power was based on s.9B(4) of the Legal Practitioners Ordinance which provides :

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

The critical issue in these proceedings is the constitutionality of this provision.

4.At first instance, Hartmann J ruled against the applicant. The judge held that the Tribunal was not a public authority so that the Bill of Rights was not engaged. Even if it were, he held there was no breach of art. 10 of the Bill. In so holding, the judge applied the principle summarised in Tehrani v. United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2001] IRLR 208. That is, although the Tribunal does not itself comply with art. 10, there would be no breach if the Tribunal is subject to control by a court that has full jurisdiction and complies with the requirements of art. 10. The judge held that the Court of Appeal has full jurisdiction to deal with a decision of the Tribunal on appeal and that Court complies with the requirements of art. 10, notwithstanding the anonymity in the title of the notice of originating motion as a result of Order 106, r.12. Further, the judge held that the Tribunal was not a court of a classic kind. In essence, it is a disciplinary tribunal that operates within a statutory framework to regulate the conduct of a profession. If it were a court of a classic kind, it would itself have to comply with art. 10 notwithstanding the jurisdiction of the Court of Appeal.

5.The applicant's appeal to the Court of Appeal was dismissed. The Court of Appeal concluded that the Tribunal was not a court of a classic kind and that the principle summarised in Tehrani applied. By applying that principle, the Court held that having regard to the jurisdiction of the Court of Appeal on appeal from the Tribunal, there was no breach of art. 10. Notwithstanding the requirement in Order 106, r.12(1) that the applicant not be named in the originating notice of motion, there is meaningful access by the public.

6.The applicant's application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal.

7.On this application for leave, Mr Dykes SC has said all that could be said in support of the application. Having considered the materials and the submissions, we are of the view that there is no reasonable prospect of the Court of Final Appeal coming to a different result from the courts below. Accordingly, we dismiss the application with costs.

Representation:

Mr Philip Dykes, SC and Mr Hectar Pun (instructed by Messrs Paul W. Tse) for the applicant

1st respondent and his representative do not appear

Mr Johannes Chan (instructed by Messrs Lo, Wong & Tsui) for the 2nd respondent