The Law Society of Hong Kong v. A Solicitor

HCMP001441/1982

Solicitors. The Courts' jurisdiction to strike off the roil or to suspend pursuant to Section 14 of the Legal Practitioners Ordinance (Cap. 159) at the instance of the Law Society of Hong Kong will only in the rarest instances be exercised. Application by the Society dismissed.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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Coram: Hon. Kempster, J.

Date: 28 December 1982

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JUDGMENT

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1. I have adjourned this matter into open Court at the invitation of Counsel far the parties.

2. By Section 12 of the Supreme Court Ordinance, Cap. 4, the civil jurisdiction of this Court is expressed to be analogous to that exercised by any of the divisions of the High Court of Justice in England. Historically the English High Court has exercised a disciplinary jurisdiction over solicitors and attorneys in cases of professional misconduct; a jurisdiction which derives from the solicitor's position as an officer of the Court on whose rolls his name is entered. In so far as a solicitor is guilty of personal turpitude the Court can strike his name off the rolls or suspend him. But by the Solicitors Act of 1888 a special disciplinary body of the Law Society was set up to inquire into complaints of personal professional misconduct by solicitors and, where appropriate, to report to the Court which could then exercise the jurisdiction over its officers already described. By the Solicitors Act of 1919 the disciplinary body was itself given power to strike off the roll or to suspend albeit the original and historic jurisdiction of the Court was expressly preserved. This has been the pattern of successive Solicitors Acts ever since. In Re a Solicitor⁽1) at p 466 Lord Hewart, CJ observed that the object of the legislation was "to make the great profession of solicitors masters in their own house". Today the original disciplinary powers of the English Court are preserved by Sections 47 (1) and 50(2) of the Act of 1974. Section 51 lays down the procedure but its wording suggests that the draftsman raid not contemplate that an application to strike off or to suspend would be made by the Law Society itself. Indeed, in the course of his speech in Myers v. Elman ⁽²⁾ at p 318 Lord Wright observed

"Whether the Court would now entertain an application to strike a solicitor off the roll or to suspend him instead of leaving tire matter to the Disciplinary Committee (now the Solicitors Disciplinary Tribunal) may be doubted."

More recently, in R & T Thew v. Reeves⁽³⁾ at p i371 Lord Denning, M.R., considering the punitive power to strike off or suspend, stated that "the punitive jurisdiction of the Court itself is now rarely, if ever exercised. It is left to the Solicitors Disciplinary Tribunal".

3. The statutory position in Hong Kong has developed on similar lines; the earlier relevant Ordinances, howsoever reported, being no more than declaratory of the Court's inherent and, in a derivative sense, historic jurisdiction. Meanwhile the Hong Kong Law Society was founded in 1854. In 1948 the Court was given a discretion to refer the conduct of a solicitor to the Committee of the Hong Kong Law Society for enquiry and report before dealing with the matter and that Committee was given power to initiate such inquiry and then to invoke the jurisdiction of the Court on complaint or of its own motion. The present pattern, equivalent to that prevailing in England, was established by the Ordinance of 1964, Cap. 159. By Sections 9 and 10 provision is made for a Disciplinary Panel of the Hong Kong Law Society itself to strike off or to suspend. By Section 11 that Committee or Panel is given many of the interlocutory powers of this Court. Subject to the provision of the Ordinance the historic jurisdiction is preserved by Section 3(2) and (3). Section 14 is couched in very similar terms to Section 51 of the 1974 Act and an application thereunder by the Hong Kong Law Society appears no more to be contemplated than an equivalent application by the Law Society in England. Mr. Leung, who appears for the Hong Kong Law Society and for whose research I am grateful, has been unable to give me particulars of any case since the Ordinance of 1964 took effect when (Z) 1940 AC 282 the Court has acceded to such an application as is before me. Nonetheless the Law Society of Hong Kong row seeks to invoke the Court's original jurisdiction under Section 14 to strike the name of a solicitor from the rolls on grounds of professional misconduct; grounds, I should add, which are contested.

4. In the circumstances Mr. Miu, for the defendant, makes the preliminary submission that it is inappropriate for the Hong Kong law Society directly to invoke the undoubted jurisdiction of the Court. Applying the persuasive English authorities already mentioned to analogous circumstances and construing the 1964 legislation as required by Section 19 of the Interpretation and General Clauses Ordinance (Cap. 1), I am satisfied that the Hong Kong legislature meant the solicitors in Hong Kong to be masters in their own house. In any event it is inherently fitting that contentious issues involving a professional man should be considered by a responsible domestic tribunal to which adequate powers have been entrusted and I hope it is not in truth the attitude of the Society, as suggested to me on the 23rd of December, that the responsibilities and privileges granted by the Ordinance are too inconvenient, too time-consuming and too cumbersome willingly to be accepted and discharged. Further, I accept neither that the procedures for which Sections 9, 10, 11, 12, 18 and 26A of the Ordinance provide involve "sweeping the matter under the carpet" nor that many members of the Disciplinary Panel might be less or might appear to be less than impartial. It may be that in some circumstances the Hong Kong Law Society could properly invoke the original jurisdiction of the Court under Section 14. To my mind this is not such a case and it would not be an appropriate exercise of the Court's discretion to entertain and hear the present application - which is dismissed.

(1)    1934 2 KB 463

(2)    1940 AC 282

(3)    1982 3 WLR 869

Representation:

Mr. Frankie Leung (Deacons) for plaintiff

Mr. M.C. Miu (S.H. Leung & Co.) for defendant