A Solicitor v. The Law Society of Hong Kong
Read the full judgment text of CACV 107/2005 on BabelCite. This Court of Appeal judgment was delivered on 7 July 2006.
1. The present appeal, brought pursuant to section 13 of the Legal Practitioners Ordinance, Cap.159 (“the LPO”), is from a number of findings made by a Solicitors Disciplinary Tribunal (“the Tribunal”). The findings were adverse to the solicitor involved. The appeal raises important points of principle, both generally and also specifically with regard to solicitors. The general points of principle relate to the applicable standard of proof in disciplinary tribunals and to the principle of the
Cites 11 cases
|
CACV107/2005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 107 OF 2005 (ON APPEAL FROM THE ORDER OF THE SOLICITORS DISCIPLINARY ______________________ BETWEEN
______________________ Before: Hon Ma CJHC, Stock & Tang JJA in Court Dates of Hearing: 23, 24 February and 16 March 2006 Date of Handing Down Judgment: 7 July 2006 ______________ J U D G M E N T ______________ Hon Ma CJHC : 1.The present appeal, brought pursuant to section 13 of the Legal Practitioners Ordinance, Cap.159 (“the LPO”), is from a number of findings made by a Solicitors Disciplinary Tribunal (“the Tribunal”). The findings were adverse to the solicitor involved. The appeal raises important points of principle, both generally and also specifically with regard to solicitors. The general points of principle relate to the applicable standard of proof in disciplinary tribunals and to the principle of the binding nature of previous Court of Appeal decisions. The important points of principle regarding solicitors include the applicable approach of the Court of Appeal when hearing appeals from the Solicitors Disciplinary Tribunal (“the SDT”) and the issue of advertising. These and other issues I shall presently identify. 2.I will in this judgment refer to the Appellant solicitor simply as “the Solicitor” and the Respondent, the Law Society of Hong Kong, as “the Law Society”. The Complaints against the Solicitor and the relevant statutory and other provisions 3.Eight Complaints were brought against the Solicitor by the Law Society under four broad heads, these being : -
4.As can be seen by these heads, the complaints against the Solicitor centred around allegations of practice promotion (in other words, advertising), conduct unbefitting and conduct which brought the solicitors’ profession into disrepute. As will be seen below, the constant theme that ran through them was the allegation that the Solicitor had engaged in unacceptable and excessive forms of advertising. 5.It is here convenient to set out some relevant provisions of the LPO and the Hong Kong Solicitors’ Guide to Professional Conduct (“the Guide to Professional Conduct”), both of which contain provisions governing the conduct of solicitors and which are germane to the complaints we have to consider : -
6.Many of the obligations contained in the Ordinance and the Guide to Professional Conduct (which on analysis are essentially based on the general principles stated in the Ordinance) are overlapping. It is important to bear this in mind when one comes to consider the Complaints that the Solicitor faced in the present case. 7.All eight Complaints were found proved by the Tribunal and in respect of each one, the Solicitor has appealed. It is therefore necessary to go into some detail as to what the complaints were. 8.Complaint 1
9.Complaint 2
10.Complaint 3
11.Complaint 4
12.Complaint 5
13.Complaint 6
14.Complaint 7
15.Complaint 8
16.I shall return to these Complaints in dealing with the merits of the appeal. The hearing before the Tribunal 17.Disciplinary proceedings commenced against the Solicitor on 29 June 1999. The Complaint Sheet was amended several times, the final version of it being the Second Re-Amended Complaint Sheet. The hearing before the Tribunal (chaired by Ms Margaret Kam with two members, Mr Albert da Rosa (another solicitor) and Mrs Elim Lau (the lay member)). 18.The hearing of the Complaints took place over the course of some 17 days from February 2001 through to December 2003. As the Statement of Findings of the Tribunal records, the hearing was adjourned several times for various reasons. This included an adjournment to allow the Solicitor to apply for judicial review against the Tribunal’s decision not to allow the hearing to be conducted in public. The hearing for the application for judicial review was heard in July 2001 and was dismissed. An appeal to the Court of Appeal was likewise dismissed in September 2002. An application for leave to appeal to the Court of Final Appeal was dismissed in February 2003. 19.Although the last sitting of the Tribunal was in December 2003, further written submissions were made by the parties, the last of which was in April 2004. In all, there were no less than 25 sittings of the Tribunal to hear the Complaints against the Solicitor. 20.The sitting that took place on 10 June 2003 is of some note. Originally, that hearing had been convened to deal with an application by the Law Society to have certain letters written by solicitors to the Law Society admitted into evidence. The application was resisted by the Solicitor. In the course of this hearing, the Tribunal invited counsel to make submissions on the standard of proof to be applied by the Tribunal and the applicable rules of procedure consequent on this. In a written Ruling dated 25 June 2003, the Tribunal said this : -
21.I have drawn attention to this Ruling on the standard of proof in view of the ground of appeal that the Tribunal had applied the wrong standard of proof. 22.Following the substantive hearing of the Complaints, in a Statement of Findings dated 30 September 2004, as I have earlier said, the Tribunal found all eight Complaints proved, leaving the question of penalties to be determined at a later stage. After further hearings in October and December 2004, the Tribunal in a document headed Reasons and Order, made the following orders regarding penalties : -
The grounds of appeal 23.The Solicitor appealed to this court by a Notice of Appeal dated 29 March 2005. This was re-amended on 24 February 2006. The appeal was against both the findings and the penalties imposed. We are not for the time being concerned with the penalty aspect of the appeal. At the hearing, it was ordered that this aspect, if it remain relevant, would be dealt with at a later stage subsequent to this judgment. 24.The grounds of appeal in respect of the findings of the Tribunal that the Complaints were proved can be summarized as follows : -
25.It is convenient to deal first with the issue of the standard of proof, then with the individual Complaints and lastly, the freedom of expression. The various issues that arise, some of which I have identified in the previous paragraphs, can conveniently be dealt with when addressing the individual Complaints. The Standard of Proof 26.As we have seen (paragraph 20 above), the Tribunal did not adopt the criminal standard of proof or one that was so close to it as to make no practical difference. Mr Gerard McCoy SC (for the Solicitor) submitted that the applicable standard of proof in disciplinary proceedings such as the present was the criminal standard; alternatively that the Tribunal should have applied a standard within the civil standard so close to the criminal standard as to make no practical difference. There are therefore two separate aspects to be determined : first, whether as a matter of principle, the applicable standard in solicitors disciplinary proceedings is the criminal standard; secondly, if the first submission is not accepted, whether on the facts of the present case, the Tribunal ought nevertheless to have applied a standard within the civil standard akin to proof beyond a reasonable doubt. 27.I first deal with the point whether as a matter of principle, the requisite standard of proof in solicitors disciplinary hearings is the criminal standard of proof. In doing so, I shall also touch on the issue whether this court is bound by its previous decisions. 28.Mr McCoy relies principally on the decision of the Privy Council (in an appeal from Trinidad and Tobago) in Campbell v Hamlet [2005] 3 All ER 1116. The case was concerned with an attorney who was found by the Attorneys-at-Law Disciplinary Committee of Trinidad and Tobago to have “bilked” his client : it was alleged that the attorney had been given $29,400 to purchase some land but had neither conveyed the land nor returned the money. The attorney (the appellant in the appeal) denied any wrongdoing : his case was that he never owned the relevant plots of land and no money was given to him. 29.In delivering the judgment of the Board, Lord Brown of Eaton-Under-Heywood said at 1121 (paragraph 16) : -
30.In arriving at this conclusion, the reasoning appears to have been as follows : -
31.The statement in Brown that all disciplinary proceedings “concerning the legal profession” should attract the criminal standard of proof finds support in the judgment of the New Zealand Court of Appeal in F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774, at 796 (paragraph 94) in an obiter passage in the judgment of William Young J and in the judgment of Cheung JA (in another obiter passage) in Dr Lau Koon Leung v Medical Council of Hong Kong, unreported, CACV250/2004, 14 March 2006 at paragraph 44(3). 32.If correct, this statement of principle has wide repercussions to what has been the prevailing law in Hong Kong. A close analysis is therefore required of this issue. Ultimately though, I am firmly of the view that the statement of principle in Brown ought not to be followed. 33.One starts with the statutory scheme governing the disciplinary proceedings in relation to solicitors, this being contained in the LPO and the Solicitors Disciplinary Tribunal Proceedings Rules, Cap.159C (“the SDT Rules”). Nothing is said in them about the standard of proof to be applied in such proceedings. Without going into an in-depth analysis of every provision, it is perhaps fair to say that the Ordinance and the Rules contain provisions that are borrowed from both civil and criminal proceedings. For example, Rules 3(1) and 14 of the SDT Rules provide for affidavit evidence to be used in the proceedings. Rule 31 states that service may be effected personally or by service at a solicitor’s place of business or abode or even the last known place of business or abode. Rule 32 provides that where it considers just to do so, the Tribunal may dispense with any requirement in the Rules. All these are suggestive that the proceedings are civil in nature. On the other hand, some of the penalties that may be imposed consequent upon a finding of guilt finds some similarity with criminal penalty, such as the imposition of fines : - see section 10 of the principal Ordinance. Rule 35 of the Rules introduces the same provisions contained in the Evidence Ordinance, Cap.8 as apply in relation to both civil and criminal proceedings. 34.However, it seems to me clear (and the statutory scheme would not indicate otherwise) that solicitors disciplinary proceedings are civil in nature. This has certainly hitherto been the assumption and it is significant that no authority anywhere that I am aware of, suggests otherwise. Even in Campbell, there was no inkling in the judgment of the Privy Council that disciplinary proceedings are criminal in nature. This strongly suggests by itself that the correct standard of proof in disciplinary proceedings, in the absence of express provisions must be the balance of probabilities. 35.Next, I turn to the authorities. It is clear in my judgment that in Hong Kong law, it is well – and long – established that the standard of proof to be applied in all disciplinary proceedings (including solicitors disciplinary proceedings) is the civil one : -
36.The cases just discussed make good the point that the standard of proof to be applied in all disciplinary proceedings is the civil standard, adopting the ‘flexible’ or ‘commensurate’ approach. These are among many cases decided over the years that have applied this test. 37.In my judgment, there being a number of Court of Appeal decisions on the very point, this court is bound to follow them and is not entitled to make a departure to follow Campbell. In Dr Lau Koon Leung (see paragraph 31 above), Cheung JA preferred the approach of the Privy Council in Campbell, but this was in an obiter passage which was not expressly agreed by the other two members of the court. 38.Mr McCoy relied on the judgment of Yuen JA in Dr Lau Koon Leung in support of the submission that this court could, notwithstanding the principle that it is bound to follow previous decisions of the court, follow Campbell. It is I think important to analyse just what was decided in Dr Lau Koon Leung. There, one of the issues was whether the Court of Appeal was bound to follow the approach commended in Julius Libman v General Medical Council [1972] AC 217, an authority that had long been followed in Hong Kong by the Court of Appeal. In Libman, the Privy Council had decided that where there was an appeal from a disciplinary tribunal, a finding or order of that tribunal could not be overturned on appeal unless it could be shown that something was clearly wrong (a) in the conduct of the trial or (b) in the legal principles applied or (c) unless it could be shown that the findings of the tribunal were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread. This test has, as I have said, been consistently applied in Hong Kong. However, two recent decisions of the Privy Council (Ghosh v General Medical Council [2001] 1 WLR 1915 and Preiss v General Dental Council [2001] 1 WLR 1926) appeared to signal a less stringent approach. It was determined in those decisions that the applicable approach was one in which an appellate court, while according the appropriate measure of respect for the decision of the professional disciplinary committee appealed from, will not however defer to such committee’s decision more than was warranted in the circumstances : - see Ghosh at 1923D-H (paragraph 35) per Lord Millett and Preiss at 1935G-1936B (paragraph 27) per Lord Cooke of Thorndon. This development or elaboration of the Libman approach was explained on the basis that the role of the Privy Council in disciplinary appeals was an appellate, and not a supervisory, one : - see Ghosh at 1923C. As we shall see below when I discuss the approach of this court in determining the validity of the Tribunal’s findings under each of the eight Complaints, the function of this court is likewise appellate : - see section 13(1) of the LPO. In my view, the effect of Ghosh and Preiss on the Libman approach was really to clarify that the proper appellate approach to appeals from disciplinary tribunals was essentially to adopt the same approach as the Court of Appeal in appeals from the Court of First Instance : - cf Dr Wu Hin Ting at 381I (paragraph 41). 39.It is in this context that the relevant part of Yuen JA’s judgment must be seen. In Dr Lau Koon Leung, she said at paragraph 62 : -
40.In my view, this passage requires some explanation. Essentially, two reasons are given in support of the conclusion that a previous decision of the Court of Appeal may be departed from : -
41.As indicated just now, the second reason has no application in the present case. Nor, I think, does the first. I do not accept that the Campbell approach (proof beyond a reasonable doubt in disciplinary proceedings) is anything but a radical departure and reversal of previous decisions of this court. In my view, the system of the binding nature of Court of Appeal decisions, determine decisively the issue of the applicable standard of proof in the present case. This system is of course well-known but bears repetition, namely that the Court of Appeal is bound by principles established by its previous decisions (being of course the rationes decidendi of those previous cases) unless any of the three exceptions identified in Young v Bristol Aeroplane Company Limited [1944] KB 718, at 729-30, apply (conflicting previous decisions, decisions which are inconsistent with decisions of the Court of Final Appeal and previous decisions made per incuriam). The exception that Yuen JA referred to (that is, where the development of the law is involved in the sense identified in paragraph 40(1) above) is on analysis not an exception at all since what is involved is not a reversal or departure, but merely a clarification or elaboration of existing law. The principles of Young v Bristol Aeroplane have for a long time been established in Hong Kong : - see Ng Yuen-shiu v Attorney General [1981] HKLR 352, at 370. Even where a Court of Appeal regards a previous decision as wrong, it is bound unless one of the three exceptions apply : - see the decision of this court in Cheung Lai Wah & Others v The Director of Immigration [1998] 1 HKLRD 772, at 779H-J. 42.It was also suggested by Mr McCoy that where a previous decision of the Court of Appeal was itself based on an authority that has been subsequently overturned, that this becomes another reason for a later court not to follow that previous decision. In the context of the present case, he pointed out that the previous decisions of the court relied essentially on Bhandari which the Privy Council in Brown effectively overturned. I do not accept this argument : -
43.In any event, the applicable standard of proof in disciplinary proceedings and specifically in relation to the SDT, is now so well established that any radical departure from it, quite apart from the system of binding precedent to which I have alluded, can only be made by the Court of Final Appeal. 44.I should finally add in this discussion that even if I had been free to depart from previous decisions of this court, I would not have done so. In my view, I believe the principles on the standard of proof enunciated in the very many cases that exist in this area, among them those I have set out in paragraph 35 above, meet the requirements of justice in all matters before disciplinary tribunals. The principle that the applicable standard of proof is the civil one of balance of probabilities recognizes these proceedings to be civil proceedings in nature, not criminal. The long line of cases in Hong Kong, to which I have referred, find considerable support from cases in other jurisdictions. Some of these I have already made reference to : - Tarnesby, Khawaja and McAllister (see paragraphs 35(1) and (2) above). In Khawaja, the House of Lords dealt with the correct standard to be applied in the case of immigration officers, this question arising in the course of judicial review proceedings. The speech of Lord Scarman in particular contains important insights into this issue : -
45.The approach hitherto adopted in Hong Kong (the flexible civil standard) is one that is consistent with principle and authority, and one that can be practically applied. I see no reason to change it. I recognize of course the attraction of simply having a single standard in disciplinary proceedings, namely beyond a reasonable doubt but this is not one that in my view can ultimately be justified either as a matter of principle or on the authorities. There is also no necessity for it since the civil standard is adequate to meet the requirements of justice in any given case. 46.I would finally make the following points in this discussion : -
47.Accordingly, in relation to the first point of principle, I am of the view that the applicable standard of proof in solicitors’ disciplinary proceedings is the civil standard. I readily accept the superficial attraction of an approach such as that suggested in Campbell and I imagine that in many cases, the degree of proof will not be critical in the decision of the tribunal concerned. However, on principle and authority, I would decline the Campbell approach. It is not in any event clear whether that case was intended to mark a radical difference in approach for disciplinary tribunals as a whole. I suspect not, as there was virtually no analysis in that case of the position of tribunals other than those for the legal profession. Here, as pointed above, Lord Brown of Eaton-Under-Heywood was strongly influenced by the position of barristers (namely that it was expressly stipulated that the standard of proof was beyond a reasonable doubt). For SDT proceedings as a whole, I cannot help but think that if it had been intended that the criminal standard should be applied, this would have been expressly spelt out in the LPO. 48.I now address the second point : whether in the present case, the Tribunal ought nevertheless to have applied a standard within the civil standard so close to criminal standard as not to make any difference. 49.In my view, the Tribunal applied the correct test in stating the degree of proof that it required in relation to the Complaints. I have already set out the nature of each of the Complaints, most of which concentrate on the question of advertising. It has not been suggested that any criminal offence was involved in any of the allegations made against the Solicitor. And while the consequences of the Tribunal’s findings against the Solicitor were serious, as I have said earlier, the Tribunal would have been right to have considered this only one factor going to an assessment of the seriousness of the allegations (not that when it decided on the question of the appropriate degrees of proof, it could know exactly what the consequences of a finding of guilt would be). In my view, the Tribunal must have considered the Complaints made against the Solicitor as being serious : while charges of advertising may generally be regarded as perhaps not really belonging to a serious category, yet in the present case, it was obviously treated as constituting serious complaints. The Tribunal of course also had to consider the complaints made against the Solicitors based on conduct unbefitting and bring the profession into disrepute. For myself, I am not of the view that the Tribunal has erred in its approach at all in adopting the civil standard but with a higher degree of probability commensurate with the gravity of the Complaints. The allegations, while admittedly serious, were not however such as to warrant the application of the criminal standard. 50.I should perhaps add this. Even if the criminal standard of proof were to be applied in relation to the Complaints, in my judgment, this would make no difference to the result of this appeal. 51.Before dealing with the Complaints individually, I would like next to deal briefly with the question of the approach of this court as an appellate body for tribunals such as the SDT. The approach of the Court of Appeal in appeals from the SDT 52.I have already in a different context touched on the Libman approach as applied in Hong Kong (see paragraphs 38 and 40(1) above) and concluded that the test was clarified and developed by cases like Ghosh and Preiss. These cases recognize the fact that in an appeal from the SDT, the function of the Court of Appeal is an appellate (rather than a reviewing) one. This means that in its approach, while the Court of Appeal will of course accord the proper measure of respect to the Tribunal appealed from, it will not do so more than is warranted in the circumstances. As I have said earlier, this approach is similar to the approach of this court on appeal from the Court of First Instance or the District Court 53.That this approach is the appropriate one certainly as far as the SDT is concerned can also be seen by the fact that the courts do have a supervisory role for solicitors. Solicitors are officers of the court (see section 3(2) of the LPO) and as such, are subject to some degree of supervision by the courts. The courts do not of course have any original jurisdiction as far as discipline is concerned, but in an appeal from the SDT (see section 13(1) of the LPO), the Court of Appeal must not be too over reliant on the views and conclusions of the SDT. Obviously where questions of law (such as the proper construction of Ordinances or of the Guide to Professional Conduct) are concerned, the court will make up its own mind. Where mixed questions of law and fact are involved, the court is entitled to examine closely the cogency of a SDT’s reasoning. The court should, however, always accord a proper measure of respect to the views of the SDT. This is particularly so in matters involving ethics and the proper conduct expected of solicitors. 54.With this approach in mind, I now deal with each of the Complaints. Complaint 1 55.The essence of this Complaint was that, contrary to paragraph 6(b) of the Code, the Solicitor had, in the course of promoting his practice, made adverse remarks or cast aspersions against fellow solicitors. The particulars of this charge, being remarks attributed to him in newspapers and magazine articles, have been outlined in paragraph 8 above. 56.In its Statement of Findings, the Tribunal was first satisfied that the articles in the Ming Pao Daily News on 12 October 1997 and Next Magazine on 17 July 1998 were for the Solicitor’s practice promotion. Next, the Tribunal was satisfied that the Solicitor did make the adverse remarks attributed to him in those articles (in the case of the remarks made by his girlfriend, it was said that she was his spokesperson), even though he had denied making them. In this latter context, the Tribunal made reference to paragraph 5 of the Code (see paragraph 5(5) above). The Tribunal said this : -
57.One of Mr McCoy’s arguments that permeated throughout his submissions on the Complaints was that the Tribunal had not only misapplied paragraph 5 of the Code, but in any event erred in referring to a breach of it in the first place. He pointed out that the Solicitor was not charged with a breach of paragraph 5 and this is indeed the case. 58.In my judgment, the Tribunal’s findings on this Complaint cannot be sustained : -
Complaint 2 59.Mr Duncan made it clear to us at the outset of his submissions that he did not seek to support the findings of the Tribunal in respect of this Complaint. Nothing more therefore needs to be said in relation to it. Complaint 3 60.Paragraph 6(h) of the Code (see paragraph 5(5) above) requires any practice promotion not to be intrusive, offensive or otherwise inappropriate. Regard must be had to the medium or frequency of approach. 61.The gravamen of this Complaint lay quite clearly in the fact that the Solicitor embarked on a deliberate and extensive advertising campaign to promote his practice that was regarded by the Law Society as simply excessive, and therefore intrusive, offensive and inappropriate. In the Statement of Findings, reference was made to “a massive and well planned publicity campaign” and “a massive publicity scheme for practice promotion”. A large number of instances is particularized under this Complaint and the Law Society relied on the cumulative effect of all of them : - see paragraph 10(3) above. The Tribunal agreed. 62.In my judgment, the Tribunal was clearly entitled to arrive at the conclusion they reached on this Complaint : -
63.As I have indicated, this Complaint made reference to the same articles as those relevant to Complaints 1 and 2. However, the gravamen of Complaint 3 differed from the other two Complaints : in Complaint 3, the emphasis was on the sustained and excessive advertising campaign of the Solicitor and its cumulative effect. 64.I would perhaps at this point also deal with another argument raised by Mr McCoy based on the hearsay nature of newspaper articles. He referred in this context to the decision of Godfrey J in Jademan (Holdings) Ltd v Francis, Leung Pak-to and Others [1989] 2 HKLR 151, at 158 where the judge warned against reliance on newspaper articles as evidence. Much of course depends the use that is sought to be made of the articles. In the present case, apart from the contents of the written articles, the photographs have to be considered. As for the articles themselves, I have referred to the admission made by the Solicitor (albeit limited) : - see paragraph 58(3)(a) above. 65.The Tribunal’s findings on this Complaint are accordingly upheld. Admittedly, reference was again made by the Tribunal to paragraph 5 of the Code but only to make the point that these means of practice promotion (the advertising in newspapers, on public light buses and in the MTR, and the interviews) were deliberate and intentional acts on the Solicitor’s part to promote himself. This was justified in the circumstances even without any reference to paragraph 5. Complaint 4 66.The particulars of this Complaint, which charged the Solicitor with bringing the profession into disrepute, are the same as those used to support Complaints 1, 2 and 3. In other words, the Complaint is in three parts and can as a matter of analysis, be no different than the three earlier Complaints, only that a different charge is made (being the charge that the Solicitor has brought the profession into disrepute). 67.The Tribunal’s reasoning in sustaining this Complaint is admittedly oddly worded. For example, it is said that this Complaint involved the same particulars as Complaint 3. So it did but it also involved the particulars for Complaints 1 and 2 as well. Overall, however, it is tolerably clear that the Tribunal saw this Complaint as being no more than a different head under which the Solicitor could be charged using the same particulars as the three earlier Complaints. The Tribunal had of course found all three Complaints to have been proved. 68.In my view, although Complaints 1 and 2 cannot now be sustained, there remains Complaint 3 which can. In these circumstances, the same analysis and reasoning can be employed for this Complaint as for Complaint 3 in establishing that by its conduct, the Solicitor has brought the profession into disrepute. 69.Mr McCoy submitted that where, as in the present case, the findings of the Tribunal on any of the earlier Complaints could not be sustained, it had to follow that Complaint 4 must be dismissed since this Complaint, as earlier stated, relied on the same particulars as three earlier Complaints. He relies for this proposition on Hossack v The General Dental Council, Privy Council Appeal No. 80 of 1996, 16 April 1997, where at paragraph 19, the point seems to have been made (by Lord Lloyd of Berwick in the Privy Council) that where one part of the findings of the Tribunal below could be upheld, then the whole determination would have to be quashed. This point was left open in John Roylance v General Medical Council (No.2) [2000] 1 AC 311, at 329H. 70.In my view, the role of the appellate court is not so restrictive. It may well be that in many cases, the failure to substantiate a part or parts of the findings of the court or tribunal below will result in the whole determination being quashed. In some cases, the appellate court could also remit the matter for a rehearing (where this is possible). However, there must be many cases where the appellate court can comfortably uphold the decision on any one issue, notwithstanding the failure to justify one part or parts of the findings that made up that decision in the court or tribunal below. In my judgment, Hossack is not an authority for the general proposition submitted by Mr McCoy. In that case, it was clear on the facts why the Privy Council came to the view it did, but, as I have said, this is but one of the options open to an appellate court depending on the justice of the situation that it faces. In the case of Complaint 4, one can confidently divide it into three parts and then see whether the charge can be made out in respect of each part. In my view, notwithstanding the elimination of those particulars that relate to Complaints 1 and 2, those supporting Complaint 3 can sustain a finding that paragraph 6(m) of the Code has been breached. 71.For the above reasons, this Complaint is upheld. Complaint 5 72.This Complaint was brought under paragraph 6(m) of the Code which requires any practice promotion not to be “inappropriate having regard to the best interests of the public”. The particulars in support of this Complaint were the same particulars that supported Complaints 1 to 4 (like Complaint 4, it utilized the same particulars as previous Complaints), only that a breach of a different provision was alleged. 73.Mr McCoy submitted on a general note that paragraph 6(m) was too vague and relies on the following passage in Wilkinson and Sandor : The Professional Conduct of Lawyers in Hong Kong at paragraph 453 : -
74.In my view, this provision means no more than that regard has to be paid to the public interest in the context of practice promotion. In many ways, the Code as well as the Guide to Professional Conduct have both to be seen with regard to the public interest. Here, the general observations made by this court in The Law Society of Hong Kong v A Solicitor, unreported, CACV 280/2003, 25 November 2004 are pertinent. Nevertheless, for my part, it is difficult to see how the reference to “inappropriate” conduct in practice promotion differs from paragraph 6(h) of the Code (which also uses the word “inappropriate”). However, paragraph 6(m) does introduce the concept of the public interest and there is, in my view, nothing objectionable in that. It is a wide term but one that is commonly used. 75.Adopting the same reasoning as in the case of Complaint 4, I am satisfied that the Tribunal’s findings here can be sustained. Without doubt, those facts that established Complaint 3 similarly demonstrate just how inappropriate his conduct was. It is not in the public interest for a solicitor to promote himself in such blatant terms and with the frequency that the Solicitor did in the present case. Complaint 6 76.This Complaint was one of conduct unbefitting of a solicitor. There was a fundamental objection to this Complaint raised by Mr McCoy arguing that this was not a specific written provision anywhere to be found in the Ordinance or the Guide to Professional Conduct. There was also the submission that the provision was too vague. I cannot agree with these submissions. As Mr Duncan points out, nothing requires a SDT to deal only with specific provisions to be found in the Ordinance or the Guide. Moreover, the charge of conduct unbefitting is one that has been in regular use in many jurisdiction for a long time, including of course Hong Kong. It is a term which by now is one that is readily understandable. It is certainly dealt with in the usual textbooks : - see for example, Cordery on Solicitors (9th ed) at paragraphs 1408, 1410, 1411-20; Halsbury’s Laws of Hong Kong Vol.17(2) 2004 Reissue at paragraph 240.081. 77.Another preliminary objection was that in considering what was essentially indecent conduct, the Tribunal did not have the jurisdiction to consider this aspect. It was said only the Obscene Articles Tribunal did. There is nothing in the point. The allegation that the Tribunal was required to determine was the charge of conduct unbefitting and it was in this context that it had to consider the Solicitor’s conduct. It did not have to determine whether as a matter of some other law, the Solicitor’s behaviour was indecent. 78.I now move on to the substance of this Complaint. I have already set out above the relevant facts that found this Complaint, and the three features that have to be borne in mind : - see paragraph 13(3) above. The Complaint is concerned only with the fact that the Solicitor posed nude or semi-nude : -
79.For a solicitor to pose in this way which would not cause much surprise if found in magazines of a more adult nature, is in my view shocking. A solicitor is a member of an honourable profession, an officer of the court and one of the three bodies (together with the courts and barristers) primarily responsible for the administration of justice. The public’s perception of a solicitor is exactly these terms. To see a person pose in this way may well be distasteful to right thinking members of the public. To see a solicitor do this would, I daresay, arouse much more negative reaction. 80.The Tribunal concluded that this was conduct unbecoming of a solicitor and I fully endorse this view. 81.It was submitted that all the Solicitor was doing was to celebrate an important event (his 40th birthday) and that this was referable only to his private, and not professional, life. This is not accurate factually. The relevant articles brought home the fact that the Solicitor was a solicitor : the plaque, his talking about the Law Society in the interviews reported in the articles. This was all the more so when one looks at these incidents in the context of the previous practice promotion undertaken by the Solicitor. 82.Even if it could be said that only the Solicitor’s private life was involved, he chose to make it as public as possible. The photographs were posed for journalists, not some sort of snapshots taken covertly. As The Law Society of Hong Kong v A Solicitor, CACV 280/2003, determined, the fact that a solicitor’s private life may be involved does not render it immune from scrutiny. 83.For the above reasons, the Tribunal’s findings on Complaint 6 are sustained. Complaint 7 84.This Complaint was made under Principle 1.02 of the Guide to Professional Conduct and Rule 2 of the Solicitors’ Practice Rules. It contains as particulars additional facts beyond the posing nude or semi-nude (which constitute Complaint 6). The additional facts related to the extensive interviews given by the Solicitor and his appearance on television subsequent to the posing. The three features I have identified in paragraph 13(3) above were expressly mentioned in the particulars to this Complaint. 85.The subsequent conduct of the Solicitor consisted of the following : -
86.There is no doubt that by his actions, the Solicitor brought the professional into disrepute. Not only did the Solicitor pose nude or semi-nude knowing obviously that the photographs would be published in very popular magazines, he perpetuated this by giving interviews about it (at which he tried to justify this behaviour as well as expressing views on a number of other matters) and appearing on TV. This was in my view simply unacceptable conduct on the part of a solicitor. 87.In my judgment, the Tribunal was entirely justified in arriving at their views. 88.Mr McCoy did submit that it was not clear from the Tribunal’s findings whether it found the Complaint proved under paragraph 1.02 of the Guide to Professional Conduct or Rule 2 of the Solicitors’ Practice Rules (the latter requiring that the relevant activity is carried out “in the course of practicing as a solicitor”). In the end, it may not matter whether Rule 2 is caught since paragraph 1.02 certainly is. However, by reason of the matters dealt with in relation to Complaint 8, I incline to the view that the charge under Rule 2 is also justified. Complaint 8 89.Factually, this Complaint relied on the same particulars as for Complaints 6 and 7. However, the gist of this Complaint lay in the allegation that the posing and the subsequent conduct of the Solicitor were all done for the purposes of publicity and practice promotion. The Complaint was brought under paragraphs 6(h), (l) and (m) of the Code. 90.In my view, the Tribunal’s conclusion that the Complaint was proved, is also justified. The conduct of the Solicitor as particularized under this Complaint arose in circumstances where, as I have elsewhere emphasized, the Solicitor had already embarked on a massive advertising campaign and had been successful in doing so as he was very well-known to the general public. I am far from persuaded that the conduct complained of was purely a private matter. There were constant references to law both in the posed photographs as well as in the interviews the Solicitor gave which led to the accompanying and subsequent articles. The Solicitor’s behaviour was blatant and it is clear that in the circumstances in which it was carried out, done with a view to practice promotion. The image that the Solicitor wanted presumably to create in the public’s mind was one of a spirited lawyer with a unique, energetic and unorthodox way of doing things. It is not for me (nor is it relevant) to say whether he has succeeded but all this was done to promote his practice. It was, in my view, undignified, excessive, improper and totally unacceptable from the point of the conduct expected of a solicitor. 91.The Tribunal’s findings on this Complaint are accordingly upheld. The freedom of expression 92.Present throughout Mr McCoy’s submissions has been an emphasis on the Solicitor’s freedom of expression guaranteed under the Basic Law and the Bill of Rights. In the course of his submissions, Mr McCoy referred to this freedom in the context of the right to advertise. This aspect was briefly touched upon by this court in an earlier appeal involving the Solicitor : - see The Law Society of Hong Kong v A Solicitor, CACV 280/2003, at paragraph 26 (referring to Casado Coca v Spain (1994) 18 EHRR 1, a decision of the European Court of Human Rights). Mr McCoy referred us to Stambuk v Germany (2003) 37 EHRR 42 845 for the proposition that professional advertising can be acceptable and is consistent with the freedom of expression. I agree as far as the general statement is concerned but rules such as that contained in the Code mark what are the acceptable and necessary limits to this. In the present case, for those Complaints which I have found can be sustained, there is no question but that the Solicitor’s conduct has been unacceptable. I stress the important role that solicitors have in the administration of justice in Hong Kong. Practice promotion or advertising has an important part to enable the public to be better informed. There are, however, limits to this. Those limits found in the Code (which was on the whole drafted by solicitors with their profession in mind) provide a comprehensible and clear guide. It was at one stage submitted that the relevant provisions with which this appeal are concerned were too vague in arbitrary. I do not agree. The words used may be admittedly wide but not to the extent of being too vague and therefore unenforceable. They provide the necessary flexibility to deal with the very many different situations that practice promotion may sometimes bring about. Conclusion 93.For the above reasons, I would therefore allow the Solicitor’s appeal but only to the extent that the Tribunal’s conclusions on Complaints 1 and 2 are set aside. The conclusions on Complaints 3 to 8 are upheld. Hon Stock JA : The standard of proof 94.The standard of proof in civil cases is proof on a balance of probabilities, and in criminal cases it is proof beyond a reasonable doubt. Disciplinary proceedings are not criminal proceedings; they are civil proceedings. What therefore we are asked to do is to extend the standard historically restricted to criminal cases to a civil case, and then to one category of civil case only, namely to disciplinary cases concerning the legal profession, and to do so in the absence of allegations of criminal conduct and in the absence, too, of any legislation or professional regulation that requires that standard. We are asked thereby to depart from established principle in this jurisdiction. I see no proper basis for doing so; nor do I see that in failing to do so, justice in individual disciplinary cases is thereby liable to be impaired. In any event, the practical implication of this issue in the present case is limited for, save in relation to the question whether the solicitor caused or permitted the publication of derogatory remarks about other solicitors, the precedent facts upon which the tribunal’s findings of professional misconduct were made - the giving of interviews, the mass publicity campaign, the posing for photographs in the nude or semi-nude – were not in issue; and where the facts were common ground, the only live issue was whether such conduct was a breach of a set rule, professionally inappropriate, or was otherwise conduct unbecoming a solicitor, an issue that is a matter of judgment, as to which the question for this Court is only whether the conclusion of the tribunal was or was not tenable. 95.The trigger in this appeal for the suggestion that we should now depart from our previous decisions which confirmed the applicability of the civil standard, flexible however to address what it was that was alleged in each case and to accommodate the potential consequences of an adverse finding, is the decision of the Court of Appeal in England in Campbell. When a digression from a long-established path has been hewn, so as to carve a new approach for legal professional disciplinary proceedings, one is bound to look for rationale and to consider as well, absent some special rationale, the ramifications of the new path. It is suggested that the decision in Campbell was not influenced by the fact that the Bar Code of Conduct in England required application of the criminal standard, for the case was a case from Trinidad and Tobago; and further, that the strong statement in the judgment of the Court of Appeal that their Lordships there entertained no doubt but that the criminal standard of proof was to be applied in all disciplinary proceedings, was so categorical as to gainsay that suggested rationale. I respectfully disagree. There is nothing in the judgment to indicate one way or the other what rules prevailed in Trinidad and Tobago and it is not without significance that in its analysis the Court relied heavily upon the decision in Re A Solicitor [1992] 2 All E R 335, analysed at paragraphs [20] and [21] of the Campbell judgment and there is specific reference in paragraph [21] to the fact that:
96.In this suggestion that Campbell must be read as influenced by the relevant Bar Code, I derive some support from two sources. In the discussion in Cross & Tapper on Evidence, 10th ed., of the standard of proof in civil cases, especially those in which serious allegations are made and where the consequences may be grave, the authors emphasize, at p 171, that there are but two standards of proof ‘though allowance must be made for the fact that some occurrences are antecedently more probable than others, and the consequences of some decision are more serious than others’; an echo of the point made by Lord Nicholls in Re H, to which I shall shortly turn. There follows a review of some of the leading and well known authorities such as Bater v Bater [1951] P 35 in which, at pp 36-37 Denning LJ, as he then was, spoke of the degrees of proof within the same standard requiring ‘a degree of probability commensurate with the occasion’. Then, referring to Khawaja v Secretary of State [1984] AC 74, the authors say this:
We will shortly see the outcome of that reconsideration, an event of some considerable significance. But the present point is footnote 281 from the Cross & Tapper passage just cited; and that footnote reads:
97.The point is more directly addressed in the 15th edition of Phipson on Evidence, para. 4-37:
98.Re H was a case of care proceedings in which the central allegation was that a child had been the victim of sexual abuse by a man with whom her mother was living. This was a grave allegation indeed as were the potential consequences, not only to the man but, of course, to the child, of a finding either way. A central question was the appropriate standard of proof. The key passages are those in the speech of Lord Nicholls at pp 586-587:
99.I fail to see why the same approach should not be adopted in the case of professional disciplinary proceedings, absent a requirement in the rules to a contrary effect. It is said that the consequences of professional disciplinary proceedings may be grave. So they may, though the range of allegations and the range of consequences are wide; and so may be the consequences to individuals in a host of other non-criminal cases that do not involve professional discipline. If it is the seriousness of the allegation and of potential consequence that dictates the standard of proof then, one must ask, by what token do we apply, as we are invited to apply, a higher standard of proof to a case such as the present (which involves no allegation of criminal or quasi-criminal conduct), yet not apply it in a case in which a man is accused of the gravest conduct against a child, or in a case where a judgment may result in financial ruin? Of course it must be accepted that the very bringing of professional disciplinary proceedings is in itself a serious matter. That is why it has been said that:
Re Schumiatcher and Law Society of Saskatchewan 60 DLR (2d) 318, at 328. 100.In my judgment, the suggested move, if adopted, towards extending the criminal standard of proof to legal professional disciplinary cases would serve only to blur a well established distinction and would do so for no sound reason. I say ‘for no sound reason’ because I cannot see that in practice it is necessary to do so. I cannot see that an appreciation of the rationale and approach suggested by Lord Nicholls will do other than protect the legitimate interests of the accused solicitor. That rationale and approach has subsequently been commended by Lord Hoffman in Secretary of State for the Home Department v Rehman [2003] 1 AC 153. In that case, the Home Secretary made a deportation order on the ground that it would be conducive to the public good in the interests of national security. It was there held that what was conducive to the public good within the relevant statutory provision was, on its face, a matter for the Home Secretary's executive discretion and that whilst precedent facts upon which he relied should be proved upon the ordinary civil standard, a balance of probabilities, there was required no particular standard of proof in the formation of his executive assessment as to whether deportation was conducive to the public good. In relation to the standard of proof Lord Hoffmann said, at pp 193–194:
101.Neither is the correlation between inherent improbabilities and the cogency of evidence to prove them a new approach or revelation. In Australia, the standard of proof in disciplinary proceedings has followed that set in a non-disciplinary case: Briginshaw v Briginshaw [1938] 60 CLR 336 (expressly applied in legal professional disciplinary proceedings in, for example, Prothonotary of the Supreme Court of New South Wales v McCaffery 2004 NSWCA 470, 7 December 2004, unreported, para 43). In Briginshaw, Dixon J, as he then was, said, at pp 361-362, as to the civil standard, that:
102.What this all amounts to is that in civil cases, of which professional disciplinary proceedings are an example, the standard of proof is, in the absence of regulation to the contrary, proof on the balance of probabilities, and that is the standard even though the fact of the allegation is a serious matter and even though the consequence may be serious. But what is of real significance is the quality of the evidence required to establish the complaint; and no tribunal engaged upon adjudicating a complaint against a professional person that may affect that person’s standing in the profession or even worse, his membership of the profession, is likely to act on other than cogent and clear evidence. In Neat Holdings v Karajan Holdings (1992) 67 ALJR 170, at 170-171, the High Court of Australia in an action in which deceit was alleged, said this:
103.I do not in the circumstances agree that the incorrect standard of proof was required by the tribunal in this case or that the tribunal sought evidence other than cogent evidence by which it could be satisfied that the allegations were made out. The only live issue of precedent fact was whether the solicitor had or had not made disparaging remarks to the press; and there was a solid basis, so it seems to me, upon which the tribunal was entitled to be entirely satisfied that he had. Woods and trees 104.Before turning to the grounds of appeal in relation to the specific complaints and findings, it is necessary to say something about the nature of the wide-ranging attack advanced on the appellant’s behalf against the charges, or complaints as they are called, as well as on the reasoning of the tribunal as expressed in its Statement of Findings. Whilst I accept that in drafting the charges, the draftsman engaged in a degree of overkill, in the sense that he or she was over-anxious to omit nothing and whilst I agree that some of the reasoning of the tribunal may have been expressed more clearly, there is a danger in exercises of this kind not only of losing sight of the wood for the trees, but also, in the dust that is thrown about in every conceivable part of the yard, of forgetting the nature of the exercise that we are asked to review. A solicitors disciplinary body is a domestic tribunal set up under a self-regulating scheme comprised of experienced lawyers and laymen, and dealing with solicitors; that is to say dealing with highly articulate educated people. The steps leading up to such proceedings will normally be prolonged, with initial inquiries and an exchange of correspondence in the course of which it should become entirely clear to the solicitor exactly what it is that he is required to answer. Detailed, perhaps over-detailed, though the complaints were, the essence of them was clear enough and I am satisfied that the solicitor at all material times during the hearings themselves knew full well what was alleged against him. When one reads his correspondence as well as a transcript of some of his submissions, he comes across as one would expect: articulate and in command of his case. So, for example – and these are but two examples in the same vein – when it is submitted to us, as it was, that where one particular of a complaint asserted that posing in the nude was ‘considered as being bad which is unbefitting a solicitor’, the word ‘bad’ was impermissibly vague, and when criticism is made that the phrase in Complaint 8 “You acted in contrary to paragraph 6(h)…” is faulty because the word ‘in’ is otiose, one has to ask whether all sense of reality has gone. This was not an indictment in a criminal cause, and what was alleged was that the solicitor held interviews in which he promoted his firm by disparaging comparisons with others; that he engaged in a massive self-promoting publicity campaign that was way beyond anything that a reasonable solicitor would consider other than excessive; and that he posed in the nude in his professional capacity and that that was unacceptable. That is what this case was about; and that is what everyone knew it was about. Many of the points taken before us and before the tribunal were, in my judgment, mere distraction. 105.It will always be possible to point to language that could have been more precisely phrased or to reasoning that, to the experienced judgment writer, appears disjointed. But the charges are not to be examined as if they were a statutory instrument nor the reasons dissected for scholastic niceties. The question that has to be asked is whether a complaint is clear enough to enable it to be answered – remembering that the person who is required to understand it is not an ill-educated individual who knows nothing about the law or about the regulations he is said to have breached, but is rather someone who is expected to be familiar with those regulations and to have enough skill to ask for particulars if he considers himself disadvantaged – and whether the reasoning is clear enough to be understood and, if so, whether it hangs together and is adequately supported by the evidence. Always within the boundaries of fairness, the approach should be one of common sense and reality. 106.There is a further fundamental point that needs to be made and that is that whilst there is no carte blanche given, those best placed to say what is or what is not acceptable to the profession and what conduct falls below the acceptable, is the profession itself; and in the absence of a flaw in the proceedings such as to undermine their fairness, or of a demonstrable flaw in the standard set or in the reasoning leading to the conclusion, the appellate tribunal ought in my judgment to be slow to second-guess that conclusion. In this particular case, proceedings dragged on for a considerable time and there is no reason to suggest that the tribunal spent their time other than conscientiously. Whether there is demonstrable error is a matter to which I next turn. Complaint 1: Adverse remarks about other solicitors. 107.The complaint here was that the solicitor ‘promoted [his] practice or permitted [his] practice to be publicized or otherwise promoted contrary to Rule 2AA of the Solicitors Practice Rules.’ That was Charge A, and under that rubric there was a specific charge (Complaint 1) that: ‘You acted contrary to paragraph 6(b) of the Code by which practice promotion should not contain an adverse remark or implication concerning any other solicitor, in particular in any comparison of services, practice or fees.’ 108.So the charge was that he himself promoted his practice in this particular unacceptable way or, if he did not, that he permitted his practice to be publicised in this particular way. Two incidents were relied upon, a report of the interview of October 1997 in Ming Pao Daily News and a report on 17 July 1998 in Next magazine. 109.It was argued before us that by relying upon the newspaper reports, hearsay evidence was wrongly admitted; that the tribunal erred in that it required the solicitor himself to establish his innocence; that paragraph 5 of the Practice Promotion Code (that requires a solicitor who becomes aware of improper practice promotion to do something about it) was void for vagueness; that in any event since the solicitor himself did not think the ‘alleged practice promotion was improper … he was under no obligation to act under paragraph 5 of the Code’; and that paragraph 5 did not specify the point at which the duty to take corrective steps arose. 110.In my judgment, in relation to Complaint 1, the tribunal was sufficiently clear in its finding, and in its route to that finding. The worry has been expressed whether it found the solicitor guilty of a breach of paragraph 5 of the Code, with which breach he was not charged, rather than of paragraph 6 with which he was charged and that, if contrary to that suggestion, it was a paragraph 6 finding, it was not a permissible one because he was not cross-examined as to his assertion that he was mis-reported. 111.There is no argument advanced that had the solicitor himself attacked other solicitors in the way reported and had he prompted the newspaper articles with those attacks, that that would not have constituted impermissible practice promotion. It is said, however, that it was impermissible to rely on newspaper articles as evidence of what in fact the solicitor said to the journalists. Had there been no other evidence supporting the assertions in the articles themselves that he had made the remarks attributed to him, the contention would be a good one. The question which we have to address – and which the tribunal had to address – was whether the evidence did establish that he had made the disparaging remarks about the conduct of other solicitors and had done so knowing they would be published. In this regard, the Solicitor's Practice Promotion Code, of which, it can reasonably be assumed, this solicitor was well aware – he was at the time engaged in substantial practice promotion, even asking the Law Society’s advice about it at one stage – provides an evidential aid, that if promotional activity reveals itself, there is a presumption that the solicitor wished it so and caused it. 112.So what happened in this case? What happened was not some isolated incident of a report by one journalist with a particular theme, never repeated. There was a string of reports – each by a different journalist; several of which carried the same disparaging theme; and each attributing that theme to this solicitor. The fact of these interviews was never in issue. So, what we see and read is an interview with Ming Pao in October 1997 in which a central theme suggests comments by this applicant disparaging other solicitors. Despite the solicitor’s denial that he made the comments attributed to him, what is noticeably absent is precisely the type of reaction one would expect of a solicitor in such circumstances had he not made the comments. What one would then expect, surely – if not an insistence addressed to the newspapers concerned of a withdrawal (the solicitor’s case has always been that such an insistence would have been futile); and even if not a letter written to the publications concerned merely pointing out the error so that it is not in future repeated – is, at least, a letter of his own motion to the Law Society to make it clear that he had made no such remarks. Yet no such letter was written; no telephone call made; nothing at all. The matter goes further than that, for when the Law Society wrote to him in November 1997 drawing his attention to the first article, what was his reply? His reply was a request for further and better particulars of the material that was found to be objectionable. What stares one in the face is the fact that there was not a hint in his reply that he had made no such remarks. There followed further correspondence over the next few months, and it was not until five months later that he made his first denial of making remarks of the kind suggested. By contrast, when on 2 April 1998 a complaint was made in relation to an article in the Hong Kong Economic Times of 27 March 1998, that suggested that Ms Pak, the solicitor’s friend, had compared the firm’s fees in divorce cases to Legal Aid charges, the solicitor’s reply was that the article contained a misquote, a reply that came within a week. On 17 July 1998, there appeared the article in Next Magazine referring to lawyers as vampires and bloodsuckers, comments which the solicitor is said at the interview to have approved. Here again, the solicitor ultimately asserted that he had no prior knowledge of, let alone control over, the contents of that article. He said this in a letter dated 23 September 1998, yet had taken no steps to have the suggested misquotes corrected, nor of his own motion to draw the suggested fact that he had been misquoted to the attention of the Law Society. He was also asked about an article in the Hong Kong Daily News dated 20 July 1998 in which were attributed to him remarks about other lawyers. As to this, he again ultimately contended that he himself did not make any adverse remarks as there alleged. Yet again, there is no evidence of any attempt by him to have that suggested misquotation corrected or to draw it to the attention of the Law Society before they raised it. Other articles were drawn to his attention and in respect of each one of them he said he had no knowledge about them. The tribunal, in the context of this history, did not believe his denials; and I take the view that – even without the benefit of the presumption in paragraph 5 – that conclusion accords with common sense. What other reasonable inference was there to draw? The fact that the solicitor was not cross-examined is not fatal to the tribunal’s conclusion. The tribunal was not bound to treat a bare denial as conclusive and where the inherent probabilities all pointed the other way, they were entitled to come to the conclusion they in fact reached. 113.It is said that the conclusion they reached is itself unclear – whether on the one hand they found him guilty of making these adverse remarks or whether, on the other, they found him guilty of a breach of paragraph 5 of the Code in not using his best endeavours to have the remarks rectified or withdrawn. I think it clear enough what it is the tribunal found. They did not believe him. They said so in terms: “… the Tribunal does not accept or believe the respondent’s claim that he did not in the interview with Madam Poon compare his fixed fees charges with the fees charged by the other solicitors or criticise his peers for being greedy for money and forgetting that they should serve the public.” (para 64 Findings). As I read the reasons, they go on to point to the indicia of culpability, which indicia include the fact that he took no action, even after letters were written to him by the Law Society. In its specific list of findings commencing on page 28 of the Statement of Findings, the tribunal spells out the very charge that it is there addressing – not a complaint under paragraph 5 of the code, but a complaint under paragraph 6(b). It is clear to me that paragraph 5 of the Code was used in support of the finding of guilt of Complaint 1 in the presumption which it provides. Paragraph 5 is expressly mentioned in relation to that presumption. It is clear too from the subsequent reasons for their disciplinary orders that the tribunal found that the solicitor himself had made the adverse remarks about his fellow professional colleagues (see paragraph 20 thereof). 114.In relation to Complaint 1, I would dismiss the appeal. Complaint 2 115.The appeal against complaint number 2 is not opposed and accordingly is to be allowed. Complaints 3-5: The publicity campaign 116.Complaint 3 is directed at what is said to have been a massive publicity campaign by the appellant. He is said to have breached paragraph 6(h) of the Practice Promotion Code which prohibits promotion that is intrusive offensive or otherwise inappropriate “having regard, among other things, to the manner, medium or frequency of approach, or surrounding circumstances.” (Emphasis added). 117.The starting point of the Solicitors Practice Rules is that there should be no publicity, save in circumstances expressly permitted: see Solicitor's Practice Rules, rule 2AA. The tenor that the conditions provided by the Practice Promotion Rules seeks to set is as one would expect. It is a tenor that underscores responsibility to the public and the maintenance of respect for, and the dignity of, the profession; fundamental concepts to which I must return when addressing some of the submissions in relation to the complaints concerning nudity. It seems clear enough to me that one effect of rule 6(h) is to say that the manner and frequency of approach may become such as to be over the top or, as a modern expression vividly puts it, “in your face”. In a place as geographically confined and crowded as Hong Kong, the regular plastering of large advertisements on buses and in mass transit railway stations or carriages is, in my judgment, precisely the type of advertisement that the practice promotion intended to prohibit. Mr Duncan SC, for the respondent Society, referred to the campaign of the applicant in the period following the opening of his firm, as a massive self-adulation exercise. That is hard-hitting, but if it is a fair description, then so be it. And if it is a fair description, can it realistically be suggested that such conduct is permitted by the Code? I think not. The tribunal clearly thought not, and unless they were clearly wrong – which I do not think they were – we should not interfere. 118.I agree that, save in relation to the article that mentioned condoms, the use of the word “offensive” in these charges was inappropriate. That is because, in my judgment, that word is intended to relate to matters of taste which was not, in my opinion, the true gravamen of the complaint. The gravamen of the complaint, as everyone at the hearing must have appreciated, was the fact of the massive publicity campaign and its form. There were regular interviews provided to newspapers and magazines; posing for photographs in the course of these interviews when it would have been known and intended that the photographs would be published; and the splashing of advertisements on buses – many of them – and at railway stations. What, so it seems to me, the tribunal did in its assessment of this complaint was to look at the global effect of the appellant’s conduct. They referred (at paragraph 88 of the Findings) to a “massive and well-planned publicity campaign taken by the respondent to promote himself and the firm. One does not simply just look at individual incident or single publication in isolation, but at all the incidents: the placing of advertisements on public light buses and at MTR stations which advertisements were produced in the applicant’s bundle.” The tribunal further thought it inappropriate and intrusive for the appellant, at the time his firm was opening and in direct connection with that opening, so to conduct himself as to cause large coloured photographs of himself to appear in the press. This was indeed a massive publicity campaign in celebrity style. I agree with the tribunal that that is inappropriate, and I agree that that breached the Code. 119.It is said that some of the particulars alleged in support of Complaint 3 were directed not at the fact of a massive campaign but, rather, at the contents of some of the interviews in which, it was alleged, disparaging remarks were made of other practitioners. I have already provided my view that the tribunal was justified in finding that the appellant had made remarks along the lines suggested but even if that were not so, I do not think that a failure to prove those specific particulars would make any difference at all to the gravamen of the findings; and the gravamen of the findings is clear enough. 120.I agree that the daily small newspaper advertisements were not in themselves or in combination such as to breach the Code but again, this, I respectfully suggest, misses the overall picture at which the charge and the findings were directed. 121.I would dismiss the appeal in relation to Complaint 3. 122.Complaints 4 and 5 add nothing to Complaints 1 and 3. They seem to be an amalgam of them. Given my conclusions as to those charges, I do not see a sufficient foundation for disturbing the tribunal’s adverse conclusions in relation to those complaints. Posing nude 123.Complaint 6 alleges that by posing nude or semi-nude for various publications, the appellant engaged in conduct unbefitting of a solicitor. Some of the submissions made in relation to this complaint need to be addressed quite specifically because they impinge not only on this case but on others. 124.The suggestion was made that the charge of conduct unbefitting a solicitor was not available for consideration by the tribunal for it was not conduct specifically proscribed by the Rules. Then it was said that if there is a restriction on conduct of the kind covered by this complaint, the prohibition is unlawful for it restricts freedom of expression and the restriction is not one necessary for respect of the rights and reputations of others. There needs, so the argument goes, to be room for the eccentric, the unwelcome and the provocative, and that the standard imposed on professional conduct should not be staid and colourless. It is said in the written submissions that ‘arguably, the actions of the appellant were so far removed from the public image of a solicitor that there was in fact no risk that his actions would reflect on the reputations or rights of any other solicitor.’ Then it was said that posing as he did, semi-nude, the solicitor was engaged in an act in his private capacity. 125.The suggestion that there is no disciplinary offence of conduct unbefitting a solicitor because the statutory rules must be treated as exclusive is a suggestion that holds no water. The contrary is long established by abundant authority. So, for example, in Myers v Elman [1940] AC 282 it was said, at pp 288-289, that:
The point is directly addressed in Cordery on Solicitors, Vol I, para [1410], and there is no basis for holding that the position is different in Hong Kong:
126.The suggestion that prohibition of this solicitor’s form of expression, whereby , so it is said, he was seeking to foster awareness of legal rights, infringes a right guaranteed by the Basic Law is equally untenable. The point was decided in The Law Society of Hong Kong v A Solicitor [the same solicitor, for much the same form of expression] CACV 280 of 2003, 25 November 2004, unreported. No-one sought to prohibit him from expressing himself or from making whatever point he wanted to make. The objection was to the form of expression which, in more senses than one, was seen as naked exhibitionism; a form that would undoubtedly be viewed by many right thinking members of the profession as well as by many members of the public as distasteful. In asking oneself whether a form of restriction is or is not reasonable, context is everything. And the context here is that an officer of the court and a member of an honourable profession, in the conduct and image of which profession the public must have respect, who has widely advertised himself as a member of that profession, has posed in the nude intending that his pictures be published for mass distribution. The contention that he was acting in his purely private capacity is palpably untenable. This was a man running a publicity campaign as a solicitor; and the placard in front of his otherwise naked self was carried in the course of that campaign and was a message about law and legal rights. The suggestion that a prohibition against that form of expression in that context is an unreasonable restriction on a member of the legal profession is in my judgment an extraordinary submission, and I reject it. 127.The plea to tolerance of eccentricity is, in the context of this case and the question of acceptable professional conduct, but a smokescreen. Some may say that such conduct smacks of buffoonery and that one makes too much of it by taking a strict line. But I do not think it a question of a strict line. I think it is a question of how a solicitor behaves in his capacity as a solicitor, and that the standard to be set is one for the profession itself to set, and that the standard applied by this tribunal was well within the boundaries of common sense. By setting its boundaries, the profession not only controls the professional conduct of its members, but it announces to the public what are the standards by which the profession expects itself to be judged in the public mind. It is a question of public respect and confidence, and I do not accept the belittling – belittling that was inherent in the submissions made – of the suggestion that the profession is and must be one imbued with the attribute of dignity. True it is that public toleration for unusual forms of conduct changes with the times, so that what was unacceptable behaviour in public decades ago may now be viewed with bemusement or indifference. But what is immutable is the need for confidence in the administration of justice; and confidence is a complex animal that depends in large measure on respect, which in turn depends to a material extent on perception. The fact that times change does not, to my mind, mean that the profession is no longer an honourable profession that has a need to command respect, respect as between members of the profession themselves and between the profession and the public too. And it is primarily for the profession to set its own standards, and to judge whether a fellow member in the conduct of his profession has fallen below them such as to risk bringing the profession into disrepute. Those who join the profession subscribe, by the very act of joining, to the rules of the profession, and each one who joins knows full well, I have no doubt, that in the conduct of their public role there are lines beyond which conduct will not be acceptable to the profession’s guardians or to the public. I dare say as well that young men and women in the throes of choosing a career assess the respect and image that a particular profession carries in the public imagination, and I venture to suggest that they do not assess the image of solicitors to be tawdry. And that is the view that this tribunal took of this solicitor’s conduct, that it was tawdry exhibitionism; and in that assessment I will not say that they were wrong. 128.This insistence that certain professional standards are abiding, not to be wilted by the mock that they are old fashioned, has been voiced elsewhere:
129.I do not, with respect, agree that the reference in paragraph 105 of the Statement of Findings to disparaging remarks about his peers made, or could have made, any difference to the tribunal’s findings on Complaint 6. The findings in relation to Complaint 6 are dealt with in paragraphs 98 to 108 inclusive. Paragraph 98 correctly specifies what the charge is, namely, that the solicitor had engaged in conduct unbecoming a solicitor ‘by posing nude or semi-nude for the cover stories’. Paragraph 99 records the fact that the solicitor did not deny posing for these photographs; and the following three paragraphs contain recitations of legal principle. Paragraph 103 speaks of standard form responses secured by the solicitor on the question, and on the question only, of the photographs. Paragraph 104 stipulates the criteria for “professional conduct unbefitting”. Quite what prompted the comment in paragraph 105 about “defaming his professional peers practice in advancement of his” I have no idea and I agree that it is an odd reference indeed. But it is veritably buried by the constant thrust of all the paragraphs dealing with Complaint 6, to be found again in paragraph 105 itself, namely, concentration on “posing nude or semi-nude for photographs and in one covering his lower parts with the template ‘Legal Rights are Inborn’”. Paragraph 106 refers to the question whether the conduct under complaint was or was not “inexcusable and deplorable”, words more germane to conduct such as posing in the nude, than to defaming the practices of colleagues. And, finally, and of central significance, are the terms of the concluding paragraph, paragraph 108:
It seems clear enough to me that the finding of conduct unbefitting was directed at posing nude or semi-nude, and at the fact that that act was carried out in his capacity as a solicitor. I am satisfied that the odd reference to defamation of professional peers is neither here nor there, and I would dismiss the appeal against the finding in relation to Complaint 6. It is, in my judgment, not only a finding that cannot be demonstrated to have been clearly wrong, but was a finding that was clearly right. 130.I respectfully agree with my lord, Tang JA that it would have defied common sense for the tribunal to have dismissed either Complaints 7 or 8; and that, accordingly, the appeal lodged against the tribunal's findings in relation to those complaints must be dismissed. Conclusion 131.It follows, in summary, that I would dismiss all the appeals, save in relation to Complaint 2. Hon Tang JA : Introduction 132.The solicitor was found guilty of 8 complaints on 30 September 2004. 133.On 15 March 2005, he was censured and suspended for a total of 21 months in relation to complaints 1, 3 to 8 inclusive. In addition, he was fined $50,000 in relation to complaint 2. He was ordered to pay 2/3 of the costs of the Law Society of Hong Kong (“the Law Society”). 134.It was further ordered that if the solicitor should resume his practice thereafter:
135.Thus, there is also a severe limitation on the solicitor’s ability to resume his practice as a solicitor. 136.On appeal, the Law Society conceded complaint 2. The 7 remaining complaints fell within 2 periods of time. Complaint 1 to 5 fell between October 1997 and July 1998 and concerned the publicity surrounding the commencement of the solicitor’s practice. Complaint 6 to 8 fell within January 1999 and February 1999 and arose out of the solicitor posing nude or semi-nude for the cover stories for the Next Magazine, Issue No. 463 dated 22 January 1999, and in the Sudden Weekly, Issue No. 183 dated 30 January 1999, and the subsequent publicity. Standard of Proof 137.On 25 June 2003, the Solicitors Disciplinary Tribunal (“SDT”) ruled that it should:
It also ruled that the civil rules of evidence and order of speeches should apply. 138.Mr McCoy SC, counsel for the solicitor, submitted that the SDT had adopted the wrong standard of proof. 139.Mr McCoy submitted that having regard to Campbell v Hamlet [2005] 3 All ER 1116, a recent decision of the Privy Council on appeal from Trinidad and Tobago, the criminal standard of proof was to be applied in all disciplinary proceedings concerning the legal profession. There, Lord Brown of Eaton-under-Heywood in delivering the judgment of the board said:
140.In Campbell, the complaint was that the complainant:
141.Lord Brown went on to say:
142.Lord Brown referred to cases where the courts had applied the criminal standard of proof or one indistinguishable therefrom in civil cases. In B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 which concerned the making of a sex offender order under section 2 of the Crime and Disorder Act 1998, which was categorized as a civil, not a criminal proceeding, Lord Bingham said at para. 31:
143.In Gough v Chief Constable of the Derbyshire Constabulary [2002] QB 1213, in connection with the making of a banning order under the Football Spectators Act 1989, the Court of Appeal held that the magistrates should apply:
144.In R (on the application of McCann) v Crown Court at Manchester, Clingham v Kensington & Chelsea Royal London BC [2003] 1 AC 787, in connection with the making of anti-social behaviour order under section 1 of the Crime and Disorder Act 1998 which was held to be civil proceedings, Lord Steyn agreed with what Lord Bingham said in B’s case about:
And concluded:
145.Lord Brown then went on to deal with the case which he regarded as perhaps more directly in point, namely, the decision of the Divisional Court in In Re A Solicitor [1993] QB 69 and he said at paras. 20 and 21:
146.Mr McCoy submitted we should follow Campbell and hold that the SDT should have applied the criminal standard of proof. 147.Mr Duncan SC, who appeared for the Law Society, disagreed. He submitted that Campbell might have been influenced by the fact that in England, the Bar’s Code of Conduct required the application of the criminal standard of proof. I disagree. Campbell was an appeal from Trinidad and Tobago. Moreover, the categorical nature of the statement in para. 16 of the judgment quoted in para. 139 above does not support Mr Duncan’s submission. 148.He also submitted that this court is bound by its previous decisions beginning with A G v Tsui Kwok Leung [1991] 1 HKLR 40, where this court decided in favour of the Bhandari v Advocates Committee [1956] 1 WLR 1442 (a decision of the Privy Council) line of authorities which, as will be seen, are to the effect that the flexible civil standard should be applied. 149.In Dr Lai King Shing v The Medical Council of Hong Kong [1996] 1 HKC 24, Keith J (as he then was) said with the agreement of Nazareth VP and Liu JA:
150.Liu JA added:
151.In A Solicitor v The Law Society of Hong Kong [1997] HKLRD 63, where a prominent solicitor was censured and fined $100,000 for 2 out of 4 complaints:
152.Nazareth VP said with the agreement of Chan J at page 69:
153.An important case on the subject is Tse Lo Hong v Attorney General [1995] 3 HKC 428. There, the appellant, a detective sergeant, faced 2 charges, one of which was of indecent assault. Litton VP (as he then was) said:
154.Bokhary JA (as he then was) in a separate judgment said:
155.It is quite clear from the foregoing that, the approach which this court has adopted is that:
And in a case where the allegation was the criminal offence of indecent assault:
per Keith J in Dr Lai King Shing at page 27-28. 156.But how is seriousness or gravity to be measured? 157.It seems to be the generally accepted view that where what is alleged amounted to a criminal offence, the criminal standard or one indistinguishable from it (for brevity sake I will refer to them as the criminal standard) should be adopted. Mr Duncan submitted that is because criminal offences involve the liberty of the subject. But disciplinary proceedings do not affect the liberty of the subject in that sense. Allegations of criminal conduct cannot turn non-criminal proceedings into criminal proceedings. It may be that allegations of criminal conduct are regarded as of themselves sufficiently serious to justify the criminal standard because of the likelihood of serious professional consequences or damage to one’s professional or personal reputation. If that is so, that would support the view that the seriousness of the consequence may of itself be sufficient to require a similar standard of proof. That the seriousness of the consequence is relevant in deciding the seriousness of the compliant is just plain common sense. 158.There is support for this view in the dictum of Keith J quoted in para. 149 above. Lord Brown in Campbell, also spoke of:
159.Some criminal offences may carry a less serious consequence than an allegation of serious professional misconduct. One example which comes to mind in the case of solicitors is an offence of drink driving (serious though it is) when compared with a failure to pay clients’ money into a separate account even when no financial loss resulted from it. 160.Mr Duncan submitted that requiring the SDT to have regard to the possible consequence is unworkable. He submitted the SDT could not be asked to prejudge the issue. In this case, when the ruling on the standard of proof was made the SDT had not completed the hearing, and it was not in a position to say how dire the consequences might be. 161.Moreover, Mr Duncan submitted the SDT might turn out to be wrong so far as the consequences were concerned. So that even if one could regard suspension for a lengthy period as sufficiently serious to require the criminal standard, the sentence might turn out to be too harsh and be reduced or overturned on appeal. 162.But, it seems to me, the difficulties highlighted by Mr Duncan, support the adoption of a fixed standard of proof, rather than a flexible one. And as the quotation from Lord Steyn at para. 144 explained:
That should apply to disciplinary tribunals too. 163.Take the present case: the complaints were found proved long before the sentences were decided. So what standard of proof, how much more than mere balance of probabilities, should the SDT have required? Should that depend on what they believe the sentence might be? If the SDT had adopted too low a standard having regard to its subsequent sentence, then what should they do? Furthermore, should they be required in relation to each complaint to state what was the actual standard of proof required so that one could decide whether they had applied the correct standard? 164.I believe the only satisfactory approach is to adopt the approach of the Privy Council in Campbell and say that in all the disciplinary proceedings, the standard is proof beyond reasonable doubt. 165.In a recent decision of the Court of Appeal in New Zealand, F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774, where the complaints were held by The Medical Practitioners Disciplinary Tribunal to be not so serious as to amount to professional misconduct but:
166.In that context, William Young J said at para. 94:
167.In Dr Lau Koon Leung, para. 44(3) Cheung JA said:
168.I would respectfully agree. If we are free to depart from our previous decisions, I would hold that the criminal standard should apply to disciplinary proceedings concerning lawyers. 169.Mr McCoy submitted we are free to depart from our previous decisions. 170.In Dr Lau Koon Leung the appellant had been convicted of 47 offences punishable with imprisonment relating to his failure to keep proper record of dangerous drugs. 171.Dr Lau pleaded guilty to a charge under section 21(1):
172.He was ordered to be removed from the General Register for a period of nine months. He appealed against the penalty. The critical issue in that appeal is the correct approach to an appeal from the Medical Council. 173.As appeared from the judgment of Cheung JA there were at least 7 decisions of this court where the Libman approach (Libman v General Medical Council [1972] AC 217), was expressly applied, the last being Dr Wu Hin Ting v Medical Council of Hong Kong [2004] 2 HKC 367. 174.However, Yuen JA decided, with the agreement of Lam J, that she was free to depart from previous decisions of this court and explained why:
175.That is because, as a result of Ghosh v General Medical Council [2001] 1 WLR 1915 and Preiss v General Dental Council [2001] 1 WLR 1926 (both decisions of the Privy Council) the Libman approach:
176.I believe we have a similar situation here. It is clear that, hitherto, this court has adopted the flexible civil standard for disciplinary proceedings because of the influence of Bhandari. 177.Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718 is authority that this court is bound to follow previous decisions of its own. One exception (the second exception) is that:
at 729 per Lord Greene MR delivering the judgment of the court. Prior to 1 July 1997, we would have been obliged to follow Campbell. Our previous decisions which followed Bhandari would have been overruled. However, after 1 July 1997, we are no longer bound by a decision of the Privy Council. Though they are of high persuasive authority, the second exception no longer applies to them. 178.In Worcester Works Finance Ltd v Cooden Engineering Co Ltd [1972] 1 QB 210 at 217F, Lord Denning MR said:
179.There, he was dealing with the meaning of the words “continues in possession” under section 25(1) of the Sale of Goods Act 1893. The decision of the Privy Council (Lord Reid, Lord Hodson, Lord Pearce, Lord Upjohn and Lord Wilberforce) referred to was Pacific Motor Auctions Proprietary Ltd v Motor Credits (Hire Finance) Ltd [1965] AC 867 where on identical Australian legislation the Privy Council overruled the High Court of Australia and disapproved of Eastern Distributors Ltd v Goldring (Murphy, Third Party) [1957] 2 QB 600 CA, a decision of the English Court of Appeal which was otherwise binding on the Court of Appeal in Worcester Works Finance Ltd. With respect, Lord Denning’s view is attractive. Given the composition of the Privy Council, it would be pedantic to insist that the decision of the Privy Council was not binding on the Court of Appeal and did not fall within the second exception. 180.However, having regard to the emphatic approval given to Young v Bristol Aeroplane Co Ltd by the House of Lords in Davis v Johnson [1979] AC 264, that the only exceptions are to be found Young v Bristol Aeroplane Co Ltd itself, it is doubtful whether the further exception identified by Lord Denning represents the position in England, although Worcester Works Finance Ltd was not referred to in Davis v Johnson. The reason for the strictness of the stare decisis rule was explained by Lord Diplock at 327, quoting the words of Scarman LJ (as he then was) in Farrell v Alexander [1976] QB 345 at 371:
181.Those comments were cited by Lord Diplock at 326, and included this important passage:
182.However, the situation I face is unusual. I am not asked to depart from our previous decisions on the basis that they were wrong but that the basis upon which they were decided have been overtaken. Nor would stability, consistency or predictability be at risk if I were to follow the approach adopted by Yuen JA and Lam J in Dr Lau Koon Leung. Of course, having regard to The Solicitor v The Law Society of Hong Kong and Secretary for Justice [2003] 6 HKCFAR 570, the appeal to this court is not final. Thus, it could be said that it is unnecessary and undesirable for this court to deviate from the strict rule of Young v Bristol Aeroplane Co Ltd. But to force the parties to the extra expense of an appeal, when there is no real risk that stability, consistency or predictability would be compromised is also undesirable. Moreover, this further exception to the rule in Young v Bristol Aeroplane Co Ltd may be relevant in other contexts where the parties might find the costs of an appeal to the Court of Final Appeal ruinous. Further, I note, that in re Spectrum Plus Ltd (in liquidation) [2005] 2AC 680 at 737, Baroness Hale of Richmond left open the possibility that a further exception might exist or be developed along the lines of Worcester Works Finance Ltd. 183.For the above reasons, though with hesitation, I have come to the conclusion that we are free to depart from our previous decision on the very limited basis, namely, that our previous decisions were based on Bhandari which has been expressly departed from by the Privy Council. 184.I note that in Pirie v The Bar Council [2001] 4 HKC 190 at 204H, where the Bar Council accepted that the criminal standard of proof was applicable, Le Pichon JA said in relation to criminal rules of evidence that:
185.I believe the need for certainty applies to the standard of proof too. I regard a flexible standard of proof to be unsatisfactory. I would hold that the criminal standard of proof is applicable to disciplinary proceedings by the Law Society. 186.Of course, whatever the standard required, the approach of Lord Nicholls in Re H as explained by the Chief Judge in Dr Wu Hin Ting v Medical Council of Hong Kong [2004] 2 HKC 367 at page 378 para. 29(3) is relevant, namely:
187.In my opinion, there should only be two standards. One requiring proof on a balance of probabilities, and the other proof beyond reasonable doubt. On proof on a balance of probabilities, the court or tribunal can act, if satisfied, that an allegation is more likely than not to be true. If proof beyond reasonable doubt is required, the court or tribunal cannot act unless it is sure that the allegation is true. 188.But whichever standard is applicable, the nature of the allegation might require more or less cogent evidence before one could accept it as proved. Careless driving is more common than murder, thus in a civil or criminal trial, it is more readily proved than murder. Even so, careless driving in a civil case has to be proved on a balance of probabilities, and proved beyond reasonable doubt in a criminal trial. 189.Murder, if it should be an issue in a civil case, has only to be proved on a balance of probabilities. But since murder is so much less likely than carelessly driving, no doubt, the court would require cogent evidence before it can be satisfied even on a balance of probabilities that murder had taken place. 190.Normally, in civil proceedings, proof on a balance of probabilities is required, and in criminal proceedings, proof beyond reasonable doubt. But the standard of proof does not solely depend on the nature of the proceedings. As shown, the courts have in certain civil proceedings require a standard of proof which is indistinguishable from the criminal standard. I believe in disciplinary proceedings the standard to be applied should be the same standard. 191.I now turn to consider the alternative submission advanced by Mr McCoy. 192.Mr McCoy submitted that even if we are not free to depart from our previous decisions, having regard to the seriousness of the charges, the SDT should have adopted a standard of proof which is so close to the criminal standard as to be indistinguishable from it, again in short, the criminal standard. Having regard to the long period of suspension in this case and the severe limitation on his ability to resume practice, I agree that complaints which carried such consequences should be proved beyond reasonable doubt. It would be illogical to confine this higher standard for allegations of criminal conduct. As I have said, the reason for adopting the criminal standard when criminal conduct is alleged must be the consequence of the allegation being established rather than the mere fact that the alleged conduct is criminal. If the likely serious consequence is the reason for the higher standard, it is difficult to see why similar serious consequences arising out of allegations of serious but not criminal complaints should not require the same high standard of proof. The complaints 193.Now I turn to consider the complaints. 194.It will be convenient to deal with the complaints separately as follows:
195.Mr Duncan has accepted that if proof beyond reasonable doubt is required, then complaints 1, 4 and 5 must go. I agree. 196.However, in my opinion, even if the standard is not proof beyond reasonable doubt, complaints 1, 4 and 5 cannot be supported. 197.Complaint 1 concerned an alleged breach of para. 6(b) of the Code, whereas complaints 4 and 5 concern paras. 6(l) and 6(m) of the Code respectively. 198.Para. 6 of the Code provides as follows:
199.Para. 5 of the Code is relevant to complaint 1 and provides as follows:
Complaint 1 200.“Complaint 1:
201.Complaint 1 depends on whether the adverse remarks had been correctly attributed to the solicitor. The solicitor has denied it. In the case of the article in the Ming Pao Daily, he was supported by the reporter, Ms Poon. 202.This is what the solicitor said in para. 11 of his affirmation:
There was no application to cross-examine the solicitor. 203.Ms Poon in her letter of 21 March 1998 said, for example:
204.This is how the SDT dealt with the matter:
205.It is not clear whether the SDT found proved, on whatever standard of proof they considered appropriate, that the solicitor made the adverse remarks, the subject of complaint 1. It seems that the SDT might have proceeded on the basis that because the solicitor:
they could rely on the para. 5 of the Code and found the solicitor guilty of complaint 1. If so, they were wrong. The SDT should have dealt with the evidence of the solicitor and Ms Poon and explained why despite the absence of any application to cross-examine the solicitor or to require Ms Poon to give evidence, the SDT should nevertheless conclude that the solicitor’s denial was not to be believed, if that was indeed their view. 206.That might have been their view because earlier, under the heading of “Respondent’s Explanations”, this is what the SDT said:
207.This is a highly unsatisfactory passage. There was no explanation why the SDT did not accept or believe the solicitor’s evidence. Nor was there any attempt to deal with Ms Poon’s explanation. It is possible that since the paragraph concluded by a reference to the solicitor’s failure to discharge the presumption:
that their rejection or disbelief of the solicitor’s explanation was based on their view that the solicitor had not used his best endeavours under para. 5. 208.SDT returned to para. 5 later:
209.The solicitor was not charged with failure to use his best endeavours. 210.In any event, I do not believe the SDT was entitled to hold that he had failed to use his best endeavours without giving him an opportunity to deal with that allegation first. 211.Moreover, even if the solicitor had not used his best endeavours and that he could be found guilty of that, that is a different charge from complaint 1. 212.For the above reasons, I would allow the appeal against complaint 1. Complaints 4 and 5 213.Mr Duncan has rightly conceded that complaints 4 and 5 also depended on the adverse comments relied on in those complaints (which included those which were the subject of complaint 1) being correctly attributed to the solicitor. So I would also allow the appeal against complaints 4 and 5. Complaint 3 214.Mr Duncan submitted that complaint 3 is not affected by complaints 1, 4 and 5. 215.Complaint 3 is as follows:
216.Mr Duncan submitted that the gravamen of complaint 3 is not the contents of the practice promotion but their scale and manner. That, however, is not entirely correct, since paras. (12) and (13) complained of the contents of the articles referred to therein. But putting that to one side, I would begin by an examination of para. 6(h) of the Code, which provided that practice promotion shall not:
217.This is what the SDT found:
218.So it appears that the SDT had regard “to the manner, medium and frequency of approach, and to the surrounding circumstances” when it found that the practice promotion was intrusive, offensive and inappropriate. 219.Dealing with the matters covered by para. (10)(d) of the complaint, I am bound to say that I cannot regard such advertisements as capable of being intrusive, offensive or inappropriate. These are advertisements, less than 2-inch square in size, placed in the named newspapers. There are 4 variations. See para. 59 of Statement of Findings. The variations are minor, I would quote the longest version:
The SDT has not explained why they could be regarded as intrusive, offensive, or inappropriate. The SDT in para. 60(i) referred to “enquiries and complaints” which the Law Society had received but seemed to have placed no weight on them. Quite rightly so, for the complaints seemed mostly to be based on the fact that the advertised fees were too low, or that fees should not have been quoted at all, or that the solicitor was touting for business by cutting fees and so on. 220.I do not believe any reasonable tribunal would find them to be intrusive, offensive or inappropriate. The SDT did not deal with these advertisements separately from the rest of the complaint. Had they done so I am sure they would have come to the same view. They regarded them together with the other practice promotion and found that in totality they were intrusive, offensive and inappropriate. I believe they should not have taken these advertisements into considerations at all, because they could add no weight. And insofar as the SDT thought that they might, they erred. 221.As for (10)(f) advertisements in MTR, and (14) advertisements in MTR and public light buses, I find it difficult to understand how they could be regarded as “intrusive, offensive and inappropriate”. They seemed to contain similar information, together with a photograph of the solicitor and his qualifications. No reason was given by the SDT. I believe had they considered them separately the SDT would not have found them to be exceptionable. I believe no reasonable SDT would have done so. 222.Also, as noted, in para. 89 of the Statement of Findings, it was the manner, medium or frequency of approach, and the surrounding circumstances which led the SDT to conclude that they were intrusive, offensive or otherwise inappropriate. I do not understand why the manner of approach, namely, advertising in newspapers, MTR and public light buses could be described as offensive at all. It is unsatisfactory that the SDT has not explained in what way they regarded these advertisements as intrusive having regard to the frequency or the manner of their approach. What the surrounding circumstances were is also unclear. 223.The rest of complaint 3 relates to the newspaper or magazine articles. So far as paras. (12) and (13) are concerned, the solicitor has denied that he had compared fees or:
224.The SDT has failed to resolve the factual issue whether these remarks were correctly attributed to the solicitor. So the findings at paras. 90 and 91 cannot stand. 225.The SDT went on to say:
226.This again relied on para. 5 of the Code and is unsatisfactory for the same reasons I gave in relation to complaints 1, 4 and 5. 227.I do not believe I can ignore the newspaper advertisements, the public light buses and MTR advertisements, the particulars in (12) and (13) and find that complaint 3 has been proved to the requisite standard. 228.The limited role of this court on appeal from the SDT has been emphasised by this court in The Law Society of Hong Kong v A Solicitor, CACV 280/2003, unreported 25 November 2004, at para. 77 by Ma CJHC where he agreed with Bokhary JA’s words in A Solicitor v The Law Society of Hong Kong, Civil Appeal No. 2 of 1993 (7 May 1993, unreported):
229.The court, for good reasons, defers to the judgment of the SDT. But this is meant for the mutual benefit of the Law Society and the solicitor. The solicitor is entitled to be tried by such a tribunal. I am unable to say that a reasonable tribunal who have properly directed themselves would undoubtedly have found the solicitor guilty. I cannot say that a reasonable tribunal could not have found the remaining practice promotion to be in offensive or non-intrusive. Since the SDT felt it appropriate to deal with all the matters complained of in its totality, I am not prepared to assume that they would necessarily have come to the same conclusion, had they realised that some of the materials they relied on should be excluded. That being the case I would also allow the appeal in relation to complaint 3. Complaint 6 230.Complaint 6 is as follows:
231.This should be a relatively straightforward complaint. 232.However, at the conclusion of para. 105 of the Statement of Findings, following a quotation from Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. The SDT said:
233.Earlier the SDT said at the beginning of para. 105:
234.But as the head notes in the report of Allinson showed:
235.In relation to such evidence Lord Esher MR said at 761:
236.Thus, in context, I believe the SDT was referring to the disparaging remarks or comparison of fees which were the subject of the earlier charges. But they did not form part of complaint 6. 237.Having regard to the strong language used by the SDT I do not think I can disregard this passage. I cannot say that the SDT would nevertheless have concluded that the solicitor was guilty of conduct unbefitting, which is a more serious charge than, say, in appropriate conduct. So I would also allow the appeal in relation to complaint 6. Complaints 7 and 8 238.I turn to consider complaints 7 and 8:
239.In complaint 8, the same particulars as those in complaint 7 were relied on. 240.Mr Duncan submitted that these complaints relate to the solicitor’s publicity blitz and do not depend on the contents of such publicity apart from the undisputed fact that the solicitor did pose nude or semi-nude. I agree. Complaint 7 241.Complaint 7 concerned Principle 1.02 of the Hong Kong Solicitors’ Guide to Professional Conduct (“the Guide”) or rule 2 of the Solicitors’ Practice Rule (“the Rule”), whereas complaint 8 concerned paras. 6(h), 6(l) or 6(m) of the Code. 242.Principle 1.02 provides as follows:
243.Rule 2 of the Rule provides as follows:
244.Rule 2 requires that the conduct complained of shall be:
whereas Principle 1.02 of the Guide covered a solicitor’s conduct:
245.The gist of complaint 7 is that the solicitor had not conducted himself:
246.In other words, the conduct was inappropriate because it was conduct which was likely to bring the profession into dispute. As such, complaint 7 is not unclear or embarrassing. 247.The SDT dealt with complaint 7 briefly. 248.The SDT concluded that by posing nude or semi-nude as well as the follow up publicity particularised in (50)(a) to (h), the solicitor:
249.There was no express finding that the conduct was:
250.However when dealing with complaint 8 which concerned the same factual particulars, the SDT held that the conduct was practice promotion. Para. 114. I agree. 251.I do not think that the fact that the SDT had not applied the criminal standard of proof or one indistinguishable therefrom should affect the outcome of this complaint. In Campbell, Lord Brown, after saying that the correct criminal standard of proof had been applied, went on to add:
252.Here, too, I believe it would defy common sense to dismiss this complaint. I would dismiss the appeal against complaint 7. Complaint 8 253.The solicitor posed nude or semi-nude for the Next Magazine and Sudden Weekly. That was followed by interviews of the solicitor by the press or other media which resulted in the further publicity identified in (50)(a) to (h). It is to be noted that in the particulars of complaint, it was alleged that the solicitor:
254.However, para. 6 of the Code did not expressly require that the practice promotion must be performed “in the course of practising as a solicitor”. 255.Could they be regarded as practice promotion? In para. 114 of the Statement of Findings the SDT concluded that they were practice promotion. I regard the finding to be fully justified. 256.He was charged under paras. 6(h), 6(l) and 6(m) of the Code in the alternative. The SDT found that the solicitor has breached each of those sub-paragraphs. 257.In para. 114, the SDT held:
258.It is difficult to understand why the SDT felt it necessary to refer to para. 5 of the Code. The solicitor has not denied posing nude or semi-nude. Nor that he had given the interviews which led to the further publicity complained off. 259.That being the case, I do not believe the reference to para. 5 of the Code affected the SDT’s conclusion that the solicitor was responsible for such publicity and that the publicity from the nude or semi-nude photographs and the subsequent interview were practice promotion. It is unfortunate that it was thought appropriate to include in this complaint, the elements of paras. 6(h), (l) or (m) in the alternative, but overall I do not believe the solicitor was prejudiced. In any event, I do not believe complaint 8 adds to complaint 7. 260.I would also dismiss the appeal in relation to complaint 8. Freedom of Expression 261.Mr McCoy sought to justify the solicitor’s conduct under the banner of the freedom of expression. I am in complete agreement with para. 92 of the Chief Judge’s judgment. Freedom of expression is not an answer to any of the complaints. 262.It follows that I would allow the appeal in relation to complaints 1, 2, 3, 4, 5 and 6 and dismiss the appeal in relation to complaints 7 and 8. Hon Ma CJHC : 263.It will be seen from the above that the members of this court have reached somewhat different conclusions. The result is that, as far as the findings made by the Tribunal are concerned, the appeal is allowed to the extent that : -
The findings on Complaints 3 to 8 are upheld (Complaints 3 to 6 by a majority, Complaints 7 to 8 unanimously). 264.We will now hear the parties on costs and on any directions that may be sought before resuming the appeal regarding the issue of the penalties imposed on the Solicitor.
Mr Gerard McCoy SC, Mr Richard Zimmern & Ms Kristeen Lau, instructed by Messrs Paul W Tse for the Appellant Mr Peter Duncan SC & Mr Alfred Fung, instructed by Messrs Haldanes for the Respondent |
Cases cited in this judgment
Further hearings and rulings under CACV 107/2005