A Solicitor v. Law Society of Hong Kong

FAMV000020/2000

FAMV No. 20 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 20 OF 2000 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 279 OF 1998)

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Appeal Committee: Chief Justice Li, Mr Justice Litton PJ Mr Justice Bokhary PJ

Date of Hearing: 25 July 2000

Date of Determination: 25 July 2000

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

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Mr Justice Bokhary PJ:

1. This is an application for leave to appeal to the Court of Final Appeal against a decision of the Court of Appeal affirming orders made by the Solicitors Disciplinary Tribunal.

2. The applicant is a solicitor who had been brought before the Tribunal. On 23 June 1998 he admitted seven disciplinary complaints and the facts on which they were based.

3. Each of the seven complaints was of acting for both a vendor and a purchaser on a sale or other disposition of land for value, contrary to rule 5C(1) of the Solicitors' Practice Rules, Cap. 159. The seven complaints spanned the period from 6 March to 24 August 1992.

4. The facts are as summarised by Mortimer VP giving a judgment with which Godfrey and Rogers JJA agreed, being as follows:

"Yanley Investment Ltd (Yanley) was a developer of the building in Cameron Road, Tsimshatsui, which did not require the consent of the Registrar General. Before the development was complete, Yanley sold the whole interest in the development, land and buildings to Grand Right Limited. The purchase was to be completed 14 days after the issue of the Occupation Permit. Grand Right became the confirmor-developer and the appellant acted for both Grand Right as vendor and the purchasers of the uncompleted units in the building.

In this way Grand Right was 'confirmor' purchasing from the registered owner, Yanley, with a view to joining in the assignment of the units to the new purchasers on completion of the development by Yanley. Grand Right, therefore, was responsible for the division of the development into units by way of allocating undivided shares, and the drawing up of the sales agreements, the deed of mutual covenant, and the management agreement."

5. When the applicant admitted the complaints and those facts, he was represented by Senior Counsel. The Tribunal adjourned to decide what orders to make. But on 10 July 1998, before the Tribunal had decided what orders to make, the applicant wrote to it saying that he was reconsidering his position.

6. On 24 September 1998 he applied to the Tribunal to permit him to withdraw his admission of the complaints, although not his admissions of the facts on which they were based.

7. But this was refused. On 4 November 1998 the Tribunal gave its decision. By that decision the Tribunal made the orders which the applicant unsuccessfully challenged before the Court of Appeal and now hopes to challenge before the Court of Final Appeal. These orders are as follows. The applicant was not permitted to withdraw his admission of the complaints. Instead the complaints were found proved on his admission of them. He was fined $7,000 on each complaint, censured and ordered to pay costs.

8. It was on 7 July 1999 that the Court of Appeal dismissed the applicant's appeal and affirmed those orders. But it was not until 17 December 1999 that the applicant filed his application seeking the Court of Appeal's leave to appeal to the Court of Final Appeal. On 8 June 2000 the Court of Appeal refused such leave. On 22 June 2000 the applicant took out the leave application now before this Committee.

9. Section 13(1) of the Legal Practitioners Ordinance, Cap. 159 provides that:

"... an appeal against any order made by a Solicitors Disciplinary Tribunal shall lie to the Court of Appeal ... and the decision of the Court of Appeal on any such appeal shall be final."

Whether this precludes an appeal to the Court of Final Appeal is the first question which the applicant wishes to canvass before the Court of Final Appeal.

10. But first we have to see whether, assuming that an appeal to the Court of Final Appeal is possible, this is a case for granting leave to appeal to the Court of Final Appeal. That was the approach adopted by the Court of Appeal when entertaining the applicant's bid for such leave at its hands. And it is obviously the right approach.

11. The other questions which the applicant wishes to canvass before the Court of Final Appeal are set out thus in his written leave application before us:

"2. Whether the Council of the Law Society in exercising its powers under rule 5C(3)(a) & (b) Solicitors' Practice Rules to prescribe forms of statutory declaration to be made where a solicitor proposes to represent both vendor and purchaser in a transaction involving an interest in an uncompleted development, acted unlawfully by restricting the liberty or right (created by rule 5C(3)) of joint representation by purporting to exclude the liberty or right from application where there is an intermediate confirmor.

3. Whether the form of statutory declaration specified by the Council of the Law Society and approved by the Chief Justice pursuant to power under rule 5C(3)(a) Solicitors' Practice Rules is of any force or effect in law or is in any way binding on a solicitor notwithstanding the failure to publish the same in the Gazette pursuant to section 28(2) of the Interpretation and General Clauses Ordinance, Cap. 1;"

12. As to question 2, it is important to bear in mind that the prescribed statutory declaration is a requirement of the exemption in rule 5C(3) from the prohibition against joint representation in rule 5C(1). The Court of Appeal held:

" Far from being repugnant to the rule ... the statutory declaration provides a necessary protection for the purchaser within the intention of the body of the rule. The intention is that the exemption should be limited in a manner acceptable to the Law Society as the governing body of the profession and approved by the Chief Justice. The appellant was unable to comply with the rule so as to bring himself within the exception. He was clearly in breach."

In our view, the Court of Appeal was plainly right.

13. As to question 3, the Solicitor Practice Rules are subsidiary legislation and have been gazetted. In our view, the point that the statutory declaration specified by the Council and approved by the Chief Justice pursuant to rule 5C(1) of those Rules constituted further subsidiary legislation and should itself have been gazetted is plainly bad. We should mention that this point was not raised before the Court of Appeal either in the appeal or on the application for leave to appeal.

14. In the circumstances, the applicant has not made out a case for granting leave, assuming that an appeal is not precluded by section 13(1) of the Legal Practitioners Ordinance. It is therefore not necessary to deal with the question whether an appeal is precluded by that provision.

15. Accordingly, the application for leave to appeal is dismissed with costs.

Representation:

Mr Clive Grossman SC and Mr Maurice Ng (instructed by Messrs Clarke & Kong and assigned by Director of Legal Aid) for the applicant

Mr Anthony Ismail (instructed by Messrs P C Woo & Co) for the respondent