A Solicitor v. The Law Society of Hong Kong

cacv 246/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 246 of 2004

(on appeal from the findings and order of
the solicitors disciplinary tribunal dated 26 july 2004)

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BETWEEN

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Before: Hon Rogers VP, Le Pichon JA and Sakhrani J in Court

Date of Hearing: 28 June 2005

Date of Judgment: 28 June 2005

Date of Handing Down Reasons for Judgment: 5 July 2005

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This was an application for leave to appeal to the Court of Final Appeal under the provisions of section 22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484.  At the conclusion of the hearing of this application leave to appeal was refused with reasons to be given in writing.

2.The background and the history of this matter is set out in the Reasons for Judgment handed down on 9 June 2005.  On this application Mr Dykes SC who appeared on behalf of the appellant, sought leave to appeal to the Court of Final Appeal on two grounds.

3.The first ground concerned legal professional privilege.  There were two questions framed:

“	1.	Whether section 8B(2) of the Legal Practitioners Ordinance (Cap. 159), with a very low triggering threshold, constitutes a proportionate restriction on legal professional privilege, a constitutionally protected human right and a fundamental condition on which the administration of justice as a whole rests, and is therefore consistent with Articles 35 and 39 of the Basic Law?
	2.	Alternatively, whether the exercise of the power to demand for inspection of documents of the Appellant pursuant to section 8B(2) of the Legal Practitioners Ordinance by the Law Society in the circumstances of the case contravenes Articles 35 and 39 of the Basic Law?”

4.These issues have been considered fully in the Reasons for Judgment and there is no point in repeating what was said there other than to emphasise that this court appreciated fully the importance of legal professional privilege and it did not, in any way, under estimate the significance of it.  In those circumstances this court did not consider that it was appropriate to grant leave to appeal.  Although legal professional privilege is of the highest importance in the conduct of the law, this court considers that the questions sought to be raised have to be given a clear and simple answer.

5.The other point sought to be raised on this application was as to whether the clerk had written the decision of the Solicitors’ Disciplinary Tribunal.  This point had never been raised in the proceedings before.  The factual basis upon which it was sought to be raised was tenuous in the extreme.  Mr Carolan, who appeared on behalf of the respondent, stated in open court that since the matter had been raised it had been fully investigated by those instructing him and there was no factual substance in the suggestion that the party had written the Tribunal’s decision.

Hon Le Pichon JA:

6.I agree.

Hon Sakhrani J:

7.I also agree.

Mr Philip J Dykes SC and Mr Stanley Ma, instructed by Messrs Solomon C. Chong & Co., for the Appellant/Applicant

Mr Paul Carolan, instructed by Messrs Boase, Cohen & Collins, for the Respondent/Respondent