A Solicitor v. The Law Society of Hong Kong

CACV 107/2005

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 TRIBUNAL DATED 15 MARCH 2005
AGAINST A SOLICITOR)

______________________

BETWEEN

______________________

Before : Hon Ma CJHC, Tang VP & Stock JA in Court

Date of Hearing :  26 April 2007

Date of Handing Down Judgment  :  18 May 2007

______________

J U D G M E N T

______________

Hon Ma CJHC :

1.On 7 July 2006, judgment was handed down in an appeal brought by the Appellant under section 13 of the Legal Practitioners Ordinance, Cap.159 (“the LPO”) against findings made by the Solicitors Disciplinary Tribunal (“the SDT”) whereby eight Complaints of professional misconduct against the Appellant were established to the Tribunal’s satisfaction.  This court decided that the appeal should be allowed in relation to two of the eight Complaints.  There are now before us for determination three matters : -

(1)        The question of the correctness of the penalties that the SDT had imposed on the Appellant, this issue having been left open in the appeal pending our determination on whether the Tribunal’s conclusion on the eight Complaints could stand.

(2)        The costs of the appeal and of the proceedings before the SDT.

(3)        The application made by the Appellant for leave to appeal to the Court of Final Appeal against our earlier decision on the Complaints (the Notice of Motion applying for leave was dated 24 July 2006).

2.As in the previous judgment, I will refer to the Appellant as “the Solicitor” and the Respondent as “the Law Society”.  This judgment should be read in conjunction with our previous one.

The penalties to be imposed on the Solicitor

3.The eight Complaints made against the Solicitor can be broadly classified into two groups :

(1)        Those dealing with various aspects of the Solicitor’s practice promotion over the period between October 1997 and July 1998 during which he was found to have embarked on an extensive advertising campaign and adopted such practices that were regarded as unacceptable.  (Complaints 1 to 5).

(2)        Those Complaints that focused on the Solicitor’s activities over January and February 1999 in which he had posed nude or semi-nude for the press, and had given interviews and made television appearances following this, all to promote himself and his practice.  (Complaints 6 to 8).

4.Having found each Complaint established in a Statement of Findings dated 30 September 2004, the Tribunal then heard the parties on the question of penalties.  Having done so, it made the following order (contained in its Reasons and Order dated 15 March 2005) : -

“Order

28. The Tribunal therefore makes the following order against the Respondent :

a. That the Respondent be censured;

b. That in relation to Complaint 1, the Respondent be suspended from practising as a solicitor for a period of 6 months;

c. That in relation to Complaint 2, the Respondent be fined HK$50,000;

d. That in relation to Complaint 3, the Respondent be suspended from practising as a solicitor for a period of 9 months;

e. That in relation to Complaint 4, the Respondent be suspended from practising as a solicitor for a period of 9 months;

f. That in relation to Complaint 5, the Respondent be suspended from practising as a solicitor for a period of 9 months;

g. That in relation to Complaint 6, the Respondent be suspended from practising as a solicitor for a period of 9 months;

h. That in relation to Complaint 7, the Respondent be suspended from practising as a solicitor for a period of 12 months;

i. That in relation to Complaint 8, the Respondent be suspended from practising as a solicitor for a period of 12 months;

j. That the periods of suspension in relation to Complaints 1, 3, 4 and 5 are to run concurrently;

k. That the periods of suspension in relation to Complaints 6, 7 and 8 are to run concurrently;

l. If the Respondent is to resume practice after the suspension, for the first two years of his resumed practice, the Respondent is prohibited from practicing as a sole proprietor and if he shall practise in partnership or be employed, his other partner(s) and employer shall at least be one other solicitor with at least 15 years’ actual practice experience;

m. That the Respondent bears and pays two-third of the costs of the Applicant in these proceedings, such costs to be taxed, if not agreed, on a party-and-party basis; and

n. That the Respondent bears and pays for the costs of the Applicant in its investigation and the costs of the Clerk.”

5.We have allowed the appeal insofar as Complaints 1 and 2 are concerned; only Complaints 3 to 8 therefore remain.  If the penalties imposed by the Tribunal were to remain for these Complaints, the effect, save as to costs (which is dealt with below), would be as follows : -

(1) The Solicitor would be censured.

(2) The Solicitor would be suspended for a total period of 21 months (it is clear that the Tribunal intended to impose two consecutive periods of suspension of 9 months (for Complaints 3 to 5) and 12 months (for Complaints 6 to 8) and although the Solicitor originally argued that the Tribunal did not order the periods of suspension to be made consecutive to one another, this point was not really pursued before us nor, I might add, was it a valid argument anyway).

(3) If the Solicitor were to resume practice after the suspension, he would be prohibited from practicing as a sole proprietor for the first two years and if he were to enter into partnership or be employed, his partner or partners, or employer (as the case may be) would have to possess at least 15 years’ experience in practice.

6.The Solicitor appealed against the penalties that were imposed.  As I have said earlier, this aspect was left to be resolved after our decision on the appeal against the Complaints.  Following our judgment, the Solicitor has continued with the appeal on penalties.

7.In considering the question of the appropriate penalties or sanction to be imposed following the establishment of a complaint made against a solicitor, a Solicitors Disciplinary Tribunal should first consider the appropriate penalty for the individual complaint, any relevant mitigation regarding such complaint and, where a series of penalties are involved, the appropriateness of the resulting overall impact, making such adjustment to the end result as will be suitable.

8.A number of short points can first be made : -

(1) The penalties for Complaints 1 and 2 must in any event be set aside in view of our earlier decision.

(2) One of the penalties imposed by the Tribunal was that the Solicitor be censured.  No arguments were raised regarding this penalty and that order will therefore remain.

9.I consider first the appropriateness of orders for suspension that were made in relation to Complaints 3 to 8.  Here, as mentioned above, the Tribunal imposed periods of suspension of 9 months for each of Complaints 3 to 5, 9 months for Complaint 6 and 12 months apiece for Complaints 7 to 8.  I will then deal with the order that was made regarding the restrictions that were imposed on the Solicitor following the periods of suspension (see sub-paragraph (l) of the Tribunal’s order set out in paragraph 4 above).

10.In relation to the periods of suspension, it is important to identify the factors that influenced the Tribunal.  Here, it is clear from the Tribunal’s Reasons that the following matters assumed considerable weight : -

(1) The Tribunal first made reference to (and found assistance in) the case of Allinson v General Council of Medical Education and Registration [1894] 1 QB 750.  That was a case in which a doctor had published a number of advertisements in newspapers in which he criticized fellow doctors with a view to persuading readers to consult him instead.  This conduct was found by the regulatory body (the General Council of Medical Education and Registration) as amounting to “infamous conduct” and he was ordered to be struck off.  The Tribunal in the present case regarded that authority as being relevant on its facts and in context, this could only mean the aspect of the Solicitor having disparaged his fellow solicitors (the specific subject matter of Complaint 1).  This point was emphasized in paragraph 22 of the Reasons and Order as well.  I should add here that as far as the Tribunal was concerned, this aspect appears to have been relevant only to Complaints 1, 3, 4 and 5.

(2) Next, the SDT was of the view that the Solicitor had been dishonest.  The Tribunal said this at paragraph 13 of the Reasons and Order : -

“13. Although the Respondent’s conduct in question may not have been ‘dishonest’ in a narrow or literal sense, they were done for personal gain and tantamount to ‘dishonesty’ in the sense suggested by Briggs C.J. in Re a Solicitor’s Clerk [1978] HKLR 160 and in any event dishonourable.”

(3) The Tribunal’s view of dishonesty was said to have been based on Re A Solicitor’s Clerk [1978] HKLR 160, where at 162, Briggs CJ (in a dissenting judgment) said : -

“Various cases were brought to our attention.  In the case of In re A Solicitor (1976) 120 Sol. J. 353 Lord Widgery said : -

‘There are four basic penalties for professional misconduct by a solicitor; reprimand, fine, suspension and striking off.  The great divide came between fine and suspension.  Suspension and striking off could well mean professional disaster.  As the solicitor had not been dishonest, he had not reached the stage where he ought to be suspended and, accordingly, a fine of £250 would be substituted for the tribunal’s order.’.

This is not a very full report but in my view it shows that what His Lordship meant by ‘dishonesty’ was doing an act for personal gain.  It is, strictly speaking, ‘dishonest’ to tell a lie.  But I do not think that such conduct should result in a sentence of suspension.  To impose a penalty of suspension in such a case would, in my view, be wrong in principle.  Suspension should only be used when a client of the firm has been prejudiced, where there has been misapplication of funds or in such like cases.”

(4) The Tribunal’s conclusion that the Solicitor’s conduct was dishonest appears to have permeated through all the Complaints.

(5) As a fallback (as the passage recorded in sub-paragraph (2) above demonstrates), the Tribunal also said that in any event, the Solicitor’s conduct was “dishonourable”.

11.In determining that suspension was the appropriate penalty for Complaints 1 and 3 to 8, the Tribunal referred to a number of previous cases of this court (namely A Solicitor v The Law Society of Hong Kong, unreported, CACV 2/1993, 7 May 1993 and A Solicitor v The Law Society of Hong Kong, unreported, CACV 11/2003, 25 September 2003) in which it was held that a serious view had to be taken of any dishonest or dishonourable conduct and that where a solicitor’s integrity, probity or trustworthiness fell below requisite standards, suspension would be an appropriate penalty.

12.Accordingly, the Tribunal imposed the suspension orders for the Complaints I have earlier set out.  In arriving at its decision, the Tribunal took into account the submissions on mitigation made by the Solicitor.  It also purported to apply the totality principle and this was put in the following terms in paragraph 19 of the Reasons and Order : -

“19.   In determining the length of the suspension periods, the Tribunal has taken into account the principles of totality.  Had it not been for the Respondent’s good record of voluntary community service and other mitigating factors advanced by his Counsel in his favour, the Tribunal would have been minded to deal with the Respondent more severely.”

13.Overall, the SDT took a very serious view of the Solicitor’s conduct.  In paragraph 18 of the Reasons and Order, it said this : -

“18.    The eight Complaints here constitute, in the opinion of the Tribunal, very serious professional misconduct.  The Tribunal considers that the Respondent’s various misconduct under the Complaints were disgraceful and not only ridiculed the Respondent himself but also seriously and adversely affected the reputation of the legal profession.  Quite apart from sentences imposed in other cases, to show the Tribunal’s disapproval of the Respondent’s misconduct, and as a warning of the consequences and deterrent to others and to restore public confidence in the profession, the Tribunal has decided that the professional misconduct of the Respondent under all but one of the Complaints calls for the sanction of suspension rather than a fine.”

14.In relation to the specific Complaints which remain relevant in this appeal, the SDT viewed them in the following way : -

(1) Complaints 3 to 5 were seen by the Tribunal as a “selfish and inconsiderate promotion” of the Solicitor and his firm.  Mention was made not only of the frequency of the promotion but also of the interviews in which the Solicitor had allegedly disparaged other solicitors.

(2) As for Complaints 6 to 8, the Tribunal said that the Solicitor had ridiculed the profession as well as himself.  It regarded the Solicitor as having brought the profession into disrepute and all this had demonstrated his “lack of integrity and probity”.

15.With regard to the post-suspension order, the Tribunal said only this by way of justification : -

26. If the Respondent is to resume his practice after the suspension period, the Tribunal considers that he should practise under the supervision of at least an experienced member of the legal profession, his senior, so that he may be well-guided in professional conduct.”

16.These, therefore, were the Tribunal’s reasons on penalty.  I have dealt with them at some length because in an appeal from a decision of the SDT on penalties, the approach of the Court of Appeal has always been one of caution.  The starting point must be that the disciplinary tribunal of the professional body is in a far better position to decide on penalty than the court simply because it has the feel and sense of its members when it comes to weighing up the seriousness of any given conduct and the level of any penalty.  That said, the court will, where the circumstances dictate, disturb the decision of a professional disciplinary tribunal even in relation to penalty.  For example, if a tribunal has acted under an error of law or the penalty is obviously inappropriate or excessive, the court will then be obliged to disturb the decision.  In practical terms, in order to disturb the penalties imposed by a disciplinary tribunal, it must be shown that the decision was obviously or plainly wrong.  It is not enough simply for the court to take a different view, however forceful that view may be.

17.In the present case, however, I am of the view that this court should disturb the SDT’s findings on penalty.  My reasons are as follows : -

(1) As seen above, the Tribunal imposed a 6-month suspension in relation to Complaint 1 that was made concurrent with the 12-month suspension for Complaints 3 to 5.  It is clear therefore that the Tribunal regarded there was an overlap between these Complaints.  I have already referred to the fact that account was taken in sentencing of the aspect of the disparagement of fellow solicitors (see paragraph 10(1) above).  The reference to Allinson and linking this with the 12 October 1997 article (in Ming Pao Daily News) and the 17 July 1998 article (in Next Magazine) demonstrates in my view that the Tribunal regarded this feature as being relevant not only to Complaint 1, but also Complaints 3 to 5.  Further, Complaints 4 and 5 referred specifically to Complaint 1 in their Particulars of Complaint.

(2) Accordingly, as there existed very much an element of Complaint 1 in Complaints 3 to 5 and that Complaint has now to be discounted (in view of our earlier decision), the penalties for Complaints 3 to 5 must accordingly be adjusted on this ground alone.

(3) The Tribunal was wrong to have regarded the Solicitor’s conduct as being dishonest.  As stated above, the Tribunal’s view was coloured by its analysis of what Briggs CJ said in Re A Solicitor’s Clerk (see paragraph 10(3) above).  The Tribunal thought that what the Chief Justice meant was to equate any conduct carried out with a view to personal gain as being conduct that was tantamount to dishonesty.  I think this was an erroneous view.  All that Briggs CJ meant was that in order to classify conduct as being truly dishonest, there had to be an element of personal gain as well (in other words there had to be not only dishonest conduct but also an element of personal gain).  This is clear from the context of that case which involved a solicitor’s clerk having dishonestly represented to the prison authorities that the firm (in which he was employed) was acting for a prisoner when this was not the case.  His motive was to enable him and his wife to visit her brother who was in prison.  The Chief Justice, who was in the minority in the Court of Appeal, did not regard such conduct as amounting to dishonesty for the purposes of imposing the penalty of suspension, since, presumably, no personal gain was involved (the clerk’s firm had not been prejudiced and there was no misappropriation of client’s funds).  While Briggs CJ thought that only a fine and censure were appropriate, Huggins and Pickering JJA took a far more serious view : a period of suspension of 6 months was thought to be appropriate.

(4) I agree that dishonourable conduct, without an element of dishonesty, may well left suspension.  Indeed some forms of dishonourable conduct may be worthy of greater censure than some forms of dishonesty.  But the fact is that this was not a case of dishonesty and in so far as that error has been made, we must assume in the Solicitor’s favour that that finding impacted to some degree on the Tribunal’s approach to penalty.  So some adjustment should be made for that reason alone.  It is unnecessary to put a figure on it, because at the end of the day the question is one of the nature and total impact of the punishment imposed.

(5) The question has not been an easy one and views may respectfully differ, but in the event we have been able to reach a broad consensus.  On the one hand, it is recognized that the Solicitor’s conduct was markedly inappropriate for any solicitor and that there is displayed no contrition and one is bound to believe that to this day he does not think he has done anything professionally wrong.  That being so, no-one could reasonably quarrel with suspension for a significant period.  On the other hand, given that the Tribunal decided that the punishment should be suspension and no more, one has to take a realistic view of the effect of suspension for a lengthy period, for the longer the suspension the more difficult it is to re-establish practice; and in the case of suspension of, say, 12 months, it will be longer than that before this Solicitor is back on his feet as a practitioner.  Taking that fact into account, as well in this case as the very significant costs implication of the Tribunal proceedings to the Solicitor (the Law Society’s costs for the proceedings before the SDT are estimated at $4.1 million, the costs of the Clerk to the Tribunal are said to be about $1.1 million and the investigation costs of the Law Society are pitched at $140,000) and the various adjustments I have already identified, the view ultimately reached by us (see below) is that a period of suspension of 12 months is sufficiently condign in this case.

(6) I now move on to the post-suspension condition that was imposed to the effect that the Solicitor should not for a period of two years be permitted to practice as a sole proprietor and that if he were to enter into a partnership or be employed, his partner or partners or his employer would have to be a solicitor of at least 15 years’ standing.  The Tribunal’s justification for this has already been set out above (see paragraph 15).  Such orders have in the past been made.  The jurisdiction to make such orders is found in section 10(2)(ba) of the LPO.  Before the introduction of that provision in 1992, there was no power to impose such a condition : - see A Solicitor v Law Society of Hong Kong [1996] 3 HKC 98.  In that case, Liu JA said that the conditions that may be made under section 10(2)(ba) could be “highly detrimental to [a solicitor’s] practice”.  With respect, I agree.  For the Solicitor in the present case, I would think that the condition that was imposed would be highly detrimental.  The options open to him to resume practice would be significantly reduced.  While obviously this is a consequence that a solicitor would have to put up with if such a condition were to be imposed, the question is really whether it is justified in the circumstances.  It is perhaps appropriate where a solicitor is inexperienced and therefore in need of guidance.  It may be appropriate also where a solicitor has been shown that he cannot be trusted to practice on his own when dealing with, say, clients’ monies.  An order such as the present may be justified therefore to protect clients and third parties.  However, it is somewhat difficult to see why such an order is necessary in the present case.  The Solicitor is experienced; he was called to the Hong Kong Bar in 1985 and became a solicitor in 1992.  Though his conduct has in my view been appalling, no clients or third parties were involved : he has hurt his profession and himself, but no one else.  One would assume that the Solicitor has learnt from these proceedings and their outcome.  It is difficult to see what a monitoring solicitor would be able to point out that is now not obvious to the Solicitor.  The nature of the condemned conduct is such that any repetition would at once be known to the Law Society and the consequences would be swift and obvious.  I do not think that a post-suspension such as that imposed by the Tribunal is in these circumstances justified or necessary.  Any guidance he may need can be given by the Law Society and if he were to continue not to heed or seek proper advice, he will just have to bear the consequences himself.

18.Given the conclusion that the SDT has erred in the present case, it then becomes open for this court to look at the question of penalties afresh.  In the present case, in summary, I am of the view that the following penalties should be imposed : -

(1) The Solicitor be censured.

(2) On Complaints 3 to 5, the Solicitor should be suspended from practice for a period of 6 months but the suspension should run concurrently.

(3) On Complaints 6 to 8, the Solicitor should be suspended from practice for a period of 12 months for each Complaint, but the suspensions are to run concurrently as well.

(4) The total period of suspension should be 12 months.

19.My reasons are as follows (see also paragraph 17 above) : -

(1) As can be seen from the earlier judgment of this court, the Solicitor’s conduct was excessive, disgraceful, dishonourable and simply unacceptable.  It can be regarded as being in the very serious category.  However, since one can reasonably envisage worse situations (such as dishonesty involving the appropriation of funds or dishonesty in dealings as an officer of the court), I feel that a suspension, rather than an order striking off the Solicitor, is appropriate.

(2) For Complaints 3 to 5, once the element of the disparagement of fellow solicitors is taken away, one is left simply with the massive and excessive advertising campaign that was embarked upon by the Solicitor.  This, by itself, was very serious and certainly merits a suspension being imposed.  In the circumstances, I am of the view that suspensions of 6 months are appropriate for each Complaint here.  Given their similarity and the theme that runs through them, the suspension should run concurrently.

(3) For Complaints 6 to 8 which involved the aspect of the Solicitor having posed nude or semi-nude, a much more serious view must be taken, for here he was not only promoting himself and his practice, he was doing so in the most vulgar and provocative way possible.  His conduct was, quite frankly, outrageous and went far beyond acceptable standards.  The Tribunal, although it has erred in those respects set out above, was, however in my view, correct in imposing suspensions of 12 months for the Complaints.  Like the Tribunal, I am also of the view that the three suspensions should be made concurrent.

(4) The Tribunal was of the view that the suspensions for the two sets of Complaints should be made consecutive to each other.  Mr Duncan has urged us to adopt the same approach.  He points to the difference when the subject matter of the Complaints were committed : the first set took place between October 1997 and July 1998 while the second set took place over the course of January and February 1999.  Next, he highlights the very significant added feature in Complaints 6 to 8 of the nudity.  Finally, he referred to the context of the second set of Complaints : they were committed at the time when the Solicitor could not have been under any mistake about how the Law Society regarded his advertising activities (they had afterall been in lengthy correspondence with each other).  For the Solicitor, I suppose it could be argued that there was a common theme that ran through all the Complaints, namely, that it was all done for the purpose of publicity and advertising.

(5) I see the force of Mr Duncan’s submissions that the two sets of Complaints ought to be treated separately and as a matter of principle, it can quite readily be understood just why the Tribunal made the suspensions consecutive.  However, it is important to bear in mind the question of totality when deciding on the matter.  A period of 12-month suspension overall meets, I feel, the justice of the situation (see paragraphs 17(4) and (5)).  This is a hefty penalty when one considers the obvious adverse impact on the Solicitor’s practice.  It is all the more so once one adds to that the costs that he will have to pay.

(6) It is, in my view for the reasons earlier stated, inappropriate to attach any conditions dealing with the Solicitor’s practice subsequent to his suspension and I would not so order.

20.In arriving at the penalties just mentioned, I have taken into account the same mitigating factors that the Tribunal had taken into account.

21.I should also mention two other arguments that Mr Gerard McCoy SC (for the Solicitor) raised.  First, he pointed to the length of time it had taken for the SDT to dispose of the matter.  Secondly, he claimed that the Solicitor had been prejudiced by two matters, namely (a) the fact that from 15 to 30 March 2005, the Tribunal had failed to inform the Solicitor of its order for suspension (thus breaching rule 15 of the Solicitors Disciplinary Tribunal Proceedings Rules, Cap.159C), thus depriving him of the opportunity for two weeks to apply for a suspension of the filing of the Tribunal’s ruling, pursuant to rule 16 of the Rules; (b) subsequent to our earlier judgment, the Registrar of the High Court mistakenly published in the Gazette on 14 July 2006, the fact that the Solicitor was to be suspended, although this was withdrawn the next day.  The effect of those matters was that the Solicitor had already undergone two (albeit short) periods of suspension.

22.In my judgment, none of these arguments has force.  The time it took the SDT to deal with the Complaints was accounted for at least in part by the Solicitor appealing (unsuccessfully) against certain decisions of the Tribunal.  The delay factor is a factor neither in favour of the Solicitor nor against him.  As for the prejudice alleged by the Solicitor, none was shown.  He did not seek to adduce any evidence regarding this.  The relevant periods in this context are so short that any prejudice cannot readily be assumed to have existed.  Nevertheless, I should perhaps add that the two periods of suspension ought to count towards the total suspension to be served by the Solicitor.

23.For the above reasons, I would allow the appeal regarding penalties and substitute for the order made by the SDT, the penalties referred to in paragraph 18 above.

The costs of the appeal and of the proceedings before the SDT

24.Two aspects have to be dealt with : first, the costs of the appeal and of the proceedings before the SDT as far as what may be called the liability issue (the issue as to whether the Complaints made against the Solicitor could be sustained) and secondly, the costs in relation to the penalty phase.

25.The Tribunal ordered that the Solicitor had to pay two-thirds of the Law Society’s costs on a party and party basis (in relation of both liability and penalties).  In addition, the Solicitor had to pay the costs of investigation of the Law Society and also the costs of the Clerk to the Tribunal.

26.In my view, the allowing of the appeal against liability in part (our earlier judgment) should be reflected in the order for costs both here and before the SDT.  While the Law Society has largely succeeded, it has not succeeded on every aspect.  I would accordingly order that the Solicitor pay to the Law Society in relation to the liability issues, three-quarters of the costs of the appeal, such costs to be taxed if not agreed.  In relation to the costs of the proceedings before the SDT, I would order that the Solicitor do pay to the Law Society, three-fifths of the costs, such costs again to be taxed if not agreed.  The orders made regarding the costs of investigation and of the Clerk to the Tribunal, will remain.

27.As for the costs of the appeal dealing with penalties, I am of the view that the Solicitor has on the whole succeeded and needed to come to this court in order to get a reduction.  In these circumstances, I would make an order nisi that the Law Society should pay to the Solicitor the costs of this part of the appeal, such costs to be taxed if not agreed.  As far as the penalty phase of the proceedings before the SDT are concerned, I would make an order nisi that the Solicitors should pay to the Law Society three-fifths of such costs.  The penalty phase was really just a part of the overall proceedings before the Tribunal.

Application for leave to appeal to the Court of Final Appeal

28.The Notice of Motion dated 24 July 2006 taken out by the Solicitor deals with our earlier judgment on liability.  Leave is sought under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap.484 on the ground that the appeal would involve questions of great general or public importance.

29.These questions are identified in the Notice of Motion : -

“Standard of Proof

1. Whether as a matter of principle and/or law, the requisite standard of proof in solicitor’s disciplinary hearings, is the criminal standard of proof?

2. If not the criminal standard of proof, whether the Solicitor’s Disciplinary Tribunal nevertheless ought to have applied a standard within the flexible civil standard akin to proof beyond reasonable doubt?

Binding Nature of Previous Judgments: Stare Decisis

3. Is the Court of Appeal bound by its own decision(s) when that previous decision(s) was influenced or itself bound by a Privy Council decision(s), which has since been either overtaken and/or developed and/or departed from?”

30.I agree that the questions in the appeal are of great general or public importance.  Mr Duncan did not suggest otherwise and in effect took a neutral stance.

31.I would therefore for my part grant leave to the Solicitor to appeal to the Court of Final Appeal from our earlier decision based on the said questions.  I would also make an order nisi on the conditions for leave that the Solicitor is to, within 3 months of the date of the order giving conditional leave, provide security for the appeal in the sum of $400,000 and that the appeal be prosecuted with due expedition.  There will also be an order nisi that there be a stay of execution of the order as to penalties (paragraph 18 above) pending the determination of such appeal or until further order (I make an order nisi because although Mr McCoy had asked for a stay at the conclusion of the arguments before us, we did not hear Mr Duncan on this).  I would also make a costs order nisi that the costs of this application be costs in the appeal.

32.The parties will be at liberty to apply to vary the various orders nisi as well as to apply for any further directions.

Hon Tang VP :

33.I agree.

Hon Stock JA :

34.I agree.

Hon Ma CJHC :

35.In view of the above, the following orders are made.

36.The appeal on penalties

(1)        The appeal is allowed.

(2)        The SDT’s order on penalties is set aside and there be substituted the following order : -

(a)         The Solicitor be censured.

(b)       On Complaints 3 to 5, the Solicitor should be suspended from practice for a period of 6 months but the suspension should run concurrently.

(c)        On Complaints 6 to 8, the Solicitor should be suspended from practice for a period of 12 months for each Complaint, but the suspensions are to run concurrently as well.

(d)       The total period of suspension should be 12 months.

37.Costs

(1)        On the costs of the liability issue : -

(a)         The Solicitor is to pay to the Law Society three-quarters of the costs of the appeal relating to this issue, such costs to be taxed if not agreed.

(b)       The Solicitor is to pay to the Law Society three-fifths of the costs relating to this issue in the proceedings before the SDT, such costs to be taxed if not agreed.  The Solicitor is also to pay the investigation costs of the Law Society and the costs of the Clerk to the SDT relating to this issue.

(2)        On the costs of the penalties issue, I would make an order nisi that : -

(a)         The Law Society is to pay to the Solicitor the costs of the appeal relating to this issue, such costs to be taxed if not agreed.

(b)       The Solicitor is to pay to the Law Society three-fifths of the costs relating to this issue in the proceedings before the SDT, such costs to be taxed if not agreed.  For the avoidance of doubt, the Solicitor is also to pay the investigation costs of the Law Society and the costs of the Clerk to the SDT relating to this issue.

38.Application for leave to appeal to the Court of Final Appeal

(1)        Leave to appeal to the Court of Final Appeal is granted to the Solicitor on the basis that the following questions of great general or public importance are involved : -

“Standard of Proof

1.        Whether as a matter of principle and/or law, the requisite standard of proof in solicitor’s disciplinary hearings, is the criminal standard of proof?

2.        If not the criminal standard of proof, whether the Solicitor’s Disciplinary Tribunal nevertheless ought to have applied a standard within the flexible civil standard akin to proof beyond reasonable doubt?

Binding Nature of Previous Judgments: Stare Decisis

3.        Is the Court of Appeal bound by its own decision(s) when that previous decision(s) was influenced or itself bound by a Privy Council decision(s), which has since been either overtaken and/or developed and/or departed from?”

(2)        The following orders nisi are also made : -

(a)         Leave to appeal is granted on the condition that the Solicitor is to provide within 3 months of this order security for the appeal in the sum of $400,000 and that the appeal be prosecuted with due expedition;

(b)       There be a stay of execution of the penalties imposed on the Solicitor pending the determination of such appeal or until further order;

(c)        The costs of this application be costs in the appeal.

(3)        The parties have liberty to apply.

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 K C Fung, instructed by Messrs Haldanes for the Respondent