Au Wing Lun, William v. The Solicitors Disciplinary Tribunal and Another

CACV 226/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 226 OF 2002

(ON APPEAL FROM HCAL NO. 3475 OF 2001)

----------------------

BETWEEN

--------------------

Before : Hon Stock JA and Stone J in Court

Date of Hearing : 9 December 2005

Date of Judgment : 9 December 2005

----------------------

J U D G M E N T

---------------------

Hon Stock JA:

1.This is an appeal against the refusal by Chung J to grant leave to apply for judicial review.

2.The first appellant, Mr Au, is a solicitor and the second, Mr Chiu, a solicitor’s clerk in the same firm.  The origins of the matter lie in an appeal against conviction of a defendant who was Mr Au’s client.  That defendant had been convicted in the District Court and his appeal was determined on 18 September 1998 by the Court of Appeal, whocharacterised the defence accorded to him by Mr Au as flagrantly incompetent.  He had altogether abandoned his professional duties; had left everything to the clerk; and had failed to accord his client a proper defence.  This conduct was referred by the Court of Appeal to the Law Society and on 29 March 2000, the Solicitors Disciplinary Tribunal made a series of findings adverse to Mr Au, although they discharged the allegations made against Mr Chiu.  Mr Au was censured by that Tribunal, and ordered to pay various financial penalties; in relation to costs, an order was made that the costs of and incidental to the disciplinary proceedings be paid by Mr Au on an indemnity basis, if not agreed.  In relation to Mr Chiu, there was no order as to costs.

3.One year later, that is to say in March 2001, Mr Au issued a summons seeking leave to file a notice of appeal out of time against the decision of the Tribunal.  The statutory period for seeking leave is 21 days.  Those acting for the appellant have not thought fit to place before us, amidst the ill-indexed bundles, the 2001 Notice of Application for leave.  It seems to have been an appeal against the findings of the Tribunal which had made reference to the order as to costs.

4.We have the judgment of Woo JA (as he then was) in that appeal.  In seeking to explain the delay that had accrued before launching that appeal, Mr Au paraded a host of reasons before that Court, including a wish not to antagonise the Law Society, the mental stress posed by litigation, indecision as to whether to appeal, the fear ofantagonising the Court of Appeal, and much else besides; this from a solicitor of 22 years standing.  Woo JA was not persuaded that any of these reasons was acceptable, but he nonetheless went on to consider the merits of the proposed appeal, decided that they were without foundation, and on 18 July 2001 handed down his judgment dismissing the application, and condemning Mr Au in costs.

5.In November 2001, more than four months after the dismissal of the application for leave to appeal and two weeks before the original date set for taxation of the Tribunal’s costs order, and one year and eight months after that order, Mr Au and Mr Chiu gave notice of application for leave to apply for judicial review of the costs orders made on 29 March 2000.  This was hardly a prompt application.  In seeking to explain this particular delay, there is in the Notice of Application the suggestion that Mr Au first wished to appeal out of time “against the orders, findings and the penalty imposed by the Disciplinary Tribunal”.  As to the delay after the judgment handed down by Woo JA, he prayed in aid another complaint by the Law Society against him to which he had had to devote attention.  Furthermore, he was reluctant to pursue the grievance in relation to the costs order.

6.The application for leave was heard on 26 February 2002 and a decision handed down on 26 April 2002.  The application was refused by Chung J, and this appeal is from that refusal.

7.It has been noted thus far that the origins of this entire matter of disciplinary proceedings rested on allegations of incompetence; allegations that, in respect of Mr Au, were evidently well founded.  One might have hoped, against that background, that care would have been taken in the presentation of this particular appeal but, regretfully, we have to say that such a hope has been forlorn:

(1)  The organisation and indexing of the appeal bundles placed before us are hopeless.  We have seen much better from litigants in person.

(2)  There are well over 500 pages in the appeal bundles.  There is no core bundle.

(3)  The Notice of Application for leave to apply for judicial review does not include that part of the Notice that sets out the grounds of the application.

(4)  The appellants’ bundles, such as they are, do not include the notice of appeal lodged in the appeal before Woo JA.

(5)  The appellants’ bundle does not include the notice of appeal lodged in this appeal.

(6)  The appellants’ bundle does not include the amended notice of appeal in this appeal.

(7)  The notice of appeal was filed on 6 May 2002.  No steps to prosecute the appeal were taken for well over three years.  There is no written explanation before us in any form that accounts for that delay – not a single sentence – trying to explain it; this in an appeal against a refusal to grant leave to apply for judicial review, where one of the grounds of that refusal itself was delay.  Mr Allan says today that the delay is to be accounted for because there have since been developments in the law which enure to the benefit of his clients.  But when the oddity of that argument is suggested by this Court, he says instead that the delay lies at the door of the court, because the court itself took no steps to fix a date.  Yet the fact is that no application for a date has been made and no steps whatsoever taken by or on behalf of the appellants to bring the case on. 

(8)  The amended notice of appeal seeks substantive relief, not merely the grant of leave.  In other words, although this is only an appeal from the refusal of leave, this Court is asked to quash the Tribunal’s decision as to costs.  Mr Allan has clarified that today.  What he asks is that this Court, as presently constituted, should grant leave and his expectation is that a full Court of Appeal then would hear the judicial review itself, this as a preferable practical proposition, he says, to going back to the judge at first instance.  But not only that.  This Court also is asked to set aside the Tribunal’s decisions as to the solicitor’s conduct, even though those decisions are not the subject of the application for leave to apply for judicial review.  This all illustrates a profound lack of understanding of judicial review.

(9)  Neither the grounds of appeal nor the written arguments placed before us by counsel touch upon the preliminary points in respect of which points leave was refused.

(10) Counsel’s skeleton argument makes references to documents without any intimation as to where in the bundles they might be found.  This includes, by way of mere example, reference to what is suggested to be “a key document” with no hint as to whether the document is in the bundles and, if so, where; similarly with a bill of costs upon which there is launched, in detail, anitemised attack.  Mr Allan explains this by saying that when he settled the skeleton argument he had no bundles before him.  He adds that he prepared the skeleton argument only this past weekend.  Yet the argument bears last week’s date.

(11) Counsel’s skeleton argument asserts that substantive findings made by the Disciplinary Tribunal were made in breach of the rules of natural justice, and constituted great and substantial breaches of Mr Au’s constitutional rights.  Yet these contentions were addressed and determined upon the appeal before Woo JA.  How counsel can begin to think it appropriate to revive the self-same matters upon judicial review – let alone when the application for judicial review does not challenge these findings – is beyond our comprehension.

8.Chung J refused leave on a number of bases:

(1)  that the Tribunal’s costs orders were expressly referred to in the Notice of Appeal against the Tribunal’s liability determinations, and were thereby intended to be, and could readily have been, raised and argued.  There was no good reason for not doing so, and it was not open to these appellants to challenge the costs issue upon judicial review.  The point is perhaps more appropriately encapsulated in a judgment by Yuen JA in Au Wing Lun, William v the Solicitors Disciplinary Tribunal, CACV 4154 of 2001, 9 September 2002, unreported, in which she said at paragraph 75:

“Where there is an appeal process clearly provided by statute, it would only be in rare cases, where the Appellant can show exceptional circumstances, such as abuse of power or unfairness, that a collateral challenge by way of judicial review would be allowed.”

(2)  that the reasons advanced for the delay in seeking leave to appeal for judicial review were unsatisfactory and the application for leave ought to be refused on the ground of delay alone; and

(3)  that the merits of the complaints against the costs orders, which Chung J had addressed despite finding against the appellants on the preliminary points to which I have referred, were against the appellants.

9.Mr Allan seeks now to re-open the merits of the matter, and we have indicated to him that we do not intend to be taken down that route.  He has first to overcome the finding of Chung J that judicial review represented an entirely inappropriate avenue since in effect it constituted an appeal in respect of proceedings that already had been determined by the Court of Appeal; and that, in any event, leave should not be granted given the delay for which there was no reasonable explanation – delay profoundly compounded since that appeal by a truly extraordinary further delay of over three years in prosecuting this appeal.  He has not begun to surmount these hurdles and I would dismiss this appeal.

Hon Stone J:

10.For my part I entirely agree with the judgment of Stock JA. 

11.In my judgment this was an egregious and opportunistic attempt to resuscitate a notice of appeal that was filed some 3½ years ago.  No steps whatever appear to have been taken for over 3 years to prosecute this appeal.  It is the more surprising that no explanation has ever been tendered to this Court as to the reasons for this quite extraordinary delay.  In my view this matter alone is sufficient to dismiss this appeal without more.  Exorbitant and unexplained delay of this nature is equivalent to an abandonment of the appeal within the broad ambit of which I otherwise can discern no merit whatever. 

12.I too would dismiss this appeal.

Hon Stock JA:

13.This appeal is accordingly dismissed.  We shall hear counsel as to costs.

Costs

14.Mr Westbrook has applied for costs of this appeal and that application has been opposed.  We are satisfied that there is a discretion to award costs in these circumstances; where, for example, there is a legitimate interest in the putative respondent ensuring that the full picture is before the court, and where the putative respondent has, as is the position in this case, been of material assistance to the court.  In the circumstances, we have decided to order the appellants to pay the putative respondents their costs of this appeal on a party and party basis, to be taxed if not agreed.

Mr William Allan instructed by M/S Simon Chan & Co. for Appellants

Mr Simon Westbrook, SC instructed by M/S Herbert Smith for the 2^nd Respondent The Law Society