A Solicitor v. The Law Society of Hong Kong

CACV 302/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 302 OF 2002

(ON APPEAL FROM THE FINDINGS OF THE SOLICITORS DISCIPLINARY TRIBUNAL
DATED THE 26^TH DAY OF MARCH 2002 AND ORDER AND FINDINGS OF
THE SOLICITORS DISCIPLINARY TRIBUNAL
 DATED THE 27^TH DAY OF JUNE 2002)

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BETWEEN

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Before : Hon Woo VP, Cheung JA and Burrell J in Court

Date of Hearing : 4 November 2004

Date of Judgment : 4 November 2004

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J U D G M E N T

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Hon Woo VP:

1.This is an application by summons dated 3 March 2004 by the respondent to vary the costs order nisi made by us in our judgment dated 18 February 2004. 

2.The subject order nisi was “that the appellant to have two-thirds of the costs of the appeal”.  The appellant’s appeal was against the Ruling of the Solicitors Disciplinary Tribunal (“The Tribunal”) made on 26 March 2002 and the Order that it made on 27 June 2002.  The Ruling made findings that the appellant was guilty of 11 complaints brought by the Law Society of Hong Kong against him.  By the Order of 27 June 2002, the Tribunal imposed penalties and censures on the appellant for the 11 substantiated complaints, and ordered that the costs of the proceedings be borne by the appellant on a full indemnity basis.  The total amount of the penalties imposed was $175,000. 

3.There was no appeal against the penalties.  The appealfocussed on challenging the findings made by the Tribunal and the propriety of its ordering the appellant to pay costs on a full indemnity basis, amounting to about $1.2 million, to the general revenue.

4.By our judgment dated 18 February 2004, we discharged two of the complaints found substantiated by the Tribunal and as a result, the penalty of $50,000 imposed for these two complaints was implicitly set aside. 

5.Due to the importance of the constitutionality of the order for costs on a full indemnity basis, the appellant briefed Mr Johannes Chan SC to lead Mr Allan to address the court on the relevant issues.  This Court also invited Mr Ambrose Ho SC to appear as amicus curiae to assist us in our consideration of these important issues.  In the result, we held that the powers of the Tribunal to order full indemnity costs must be exercised so as not to inhibit persons charged before the Tribunal from accessing it and defending themselves.  By a majority, we ordered that the question of costs of the proceedings before the Tribunal be remitted back to it for its further consideration in the light of our judgment.

6.At the hearing before us, which took three days on 12 December 2002, 13 and 14 January 2004, about one day was devoted to arguments on the findings by the Tribunal that the appellant was guilty of the 11 complaints.  The rest of the time was taken up on the important issues relating to the propriety of the order for indemnity costs.  Most of the authorities cited to this Court related to those issues.  Indeed, out of the 89-page judgment given by the three members of this Court, about 5 pages were devoted to background, 14 pages to the unsuccessful challenges to 9 of the 11 complaints, 5 pages to the setting aside of 2 of the 11 complaints and 65 pages to matters relating to costs.  In the end, we made a number of rulings on the questions concerning costs and dispelled the wrong idea of treating an indemnity costs order as the “usual” order.

7.Bearing in mind that the appellant was successful in having 2 of the 11 complaints set aside, and the amount of time spent on the appeal on the important issues relating to costs on which the appellant had been substantially successful, two members of this Court considered that it was proper for the appellant to get two-thirds of the costs of the appeal.

8.Mr Westbrook SC, on behalf of the respondent, attempts to liken the effect of this appeal as the appellant having won on his claim and the respondent having won on its counterclaim.  This, in my view, is an inapt analogy.  The appeal was the only appropriate step open to the appellant to take, in order to seek a remedy against any decision of the Tribunal that he considered as wrong or unjustified.  His action to take the appeal was justified by having the guilty verdict of 2 of the complaints set aside and the order of indemnity costs to be reconsidered.  While he did not succeed on all the points and arguments that were raised on his behalf, he had substantially succeeded on his appeal.

9.I am not persuaded by Mr Westbrook that the costs order that we made should in any way be varied.  In the circumstances, I would dismiss the application with costs.

Hon Cheung JA:

10.I agree.

Hon Burrell J:

11.I agree.

Hon Woo VP:

12.Today’s application is separate from the appeal, and the two-thirds costs order of the appeal does not apply to the costs order made today.

Mr Johannes Chan SC and Mr William Allan, instructed by Messrs Anthony Y L Au & Co, for the Appellant

Mr Simon Westbrook SC, instructed by Messrs Herbert Smith, for the Respondent