Philippe Frederic Delhaise v. The Law Society of Hong Kong and Another

HCAL 143/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 143 OF 2007

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BETWEEN

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Before: Hon A Cheung J in Court

Date of Hearing: 22 July 2008

Date of Judgment: 29 July 2008

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J U D G M E N T

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Introduction

1.This is a rather unfortunate case.

2.The history of the matter went back 20 years.  In 1988, the applicant was involved in a divorce petition.  An ex parte injunction was obtained by his then wife through her solicitors against him.  It was subsequently discharged by reason of material non-disclosure.  The solicitors were ordered to bear the costs of the proceedings.

3.In January 1989, the applicant filed a complaint with the Law Society against the solicitors involved for misconduct in so obtaining the ex parte injunction.  It was followed by protracted correspondence between the parties concerned and there were also unsuccessful proceedings by the applicant against the solicitors and others concerned.  The Law Society through its sub-committees made investigation and eventually the Council of the Law Society came to the view that no misconduct was involved.  It therefore decided not to submit the matter to the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel for further handling of the complaint.

4.Dissatisfied with the decision of the Council, the applicant complained the matter to the Chief Justice of the Court of Final Appeal, who, after considering the complaint, decided to submit the matter to the Tribunal Convenor for disposal, pursuant to the then section 9A(2) of the Legal Practitioners Ordinance (Cap 159) (the function of the Chief Justice has now been taken over by the Chief Judge of the High Court pursuant to an amendment made in 2002: Ordinance No 23 of 2002, section 103).

5.That was September 1999, more than 10 years after the complaint was first lodged with the Law Society.

6.The Tribunal Convenor duly constituted a Solicitors Disciplinary Tribunal to inquire into and investigate the complaint.  However, notwithstanding the Chief Justice’s submission of the matter to the TribunalConvenor, the Council, after discussion, decided that the Law Society should not take up the prosecution of the complaint before the Tribunal.  The Council stood by the earlier decisions of its sub-committees that no viable prima facie case of misconduct had been made out.  The Council took the view that “the applicant would have to proceed in person” at the hearing before the Tribunal.

7.It was in those peculiar circumstances that the applicant appeared in person before the Tribunal and, with the permission if not “encouragement” of the Tribunal, prosecuted his own complaint against the solicitors before the Tribunal.

8.On 30 April 2004, the Tribunal dismissed the disciplinary proceedings.  The Tribunal further ordered the applicant to pay the costs of the solicitors with a certificate for senior and junior counsel as well as the costs of the Tribunal.

9.The applicant appealed to the Court of Appeal.  Apart from the solicitors who were made the 1^st respondent, the Law Society was named the 2^nd respondent to the appeal.  The Law Society raised preliminary points with the Court of Appeal regarding whether the applicant had any right of appeal from the decision of the Tribunal to the Court of Appeal, and whether leave was in any event required.  Questions were also raised regarding whether the proceedings should be held in camera.

10.The Court of Appeal, comprising Rogers V-P, Le Pichon JA and Gall J, dealt with those preliminary matters in camera on 20 April 2005.  In a nutshell, the Court of Appeal took the view that the applicant should never have been asked or allowed to prosecute the complaint before the Tribunal.

11.More importantly, the Court held that he had no right of appeal to the Court of Appeal.  Only the solicitors and the Law Society had the right of appeal: section 13(1), (2) and (2A) of the Legal Practitioners Ordinance.  The Court therefore had no jurisdiction to hear the purported appeal of the applicant and dismissed it.  Furthermore, since the Court took the view that the applicant ought never to have been permitted to act as prosecutor before the Tribunal, which was an “erroneous approach”, the order of costs against the applicant as the unsuccessful prosecutor in the matter could not stand.  The Court therefore set aside the costs order against the applicant.

12.This episode in the Court of Appeal did not, as one might have hoped, turn out to be the last chapter in this long running saga.  After the Court of Appeal judgment, which was handed down on 20 April 2005, the applicant went back before the Tribunal asking for reimbursement, on an indemnity basis, for all his costs arising from his complaint, in particular his costs of the proceedings before the Tribunal and that before the Court of Appeal.  That demand was refused by the Tribunal, effectively on the ground that it was now functus officio.

Application for judicial review

13.Dissatisfied with the Tribunal’s refusal to reimburse him for his costs, the applicant commenced the present proceedings on 7 December 2007, asking for leave to apply for judicial review of the Tribunal’s refusal.  The Tribunal was named as the putative respondent.

14.The matter went before Hartmann J, who granted the applicant leave to apply for judicial review after an oral hearing that was held on 3 January 2008.  Besides the original challenge and grounds set out in the form 86A, his Lordship also granted leave for the applicant to join the Law Society as an additional respondent and to seek a declaration to the effect that,

“by obliging him to be the prosecutor in a matter referred to by the Chief Justice, the Society acted in a manner that was inconsistent with his rights under art 10 of the Bill of Rights and art 39 of the Basic Law.” (para 12 of Hartmann J’s Ruling dated 3 January 2008)

15.The notice of motion was accordingly filed by the applicant on that amended basis.

16.There are, therefore, essentially two matters before the Court.  First, infringement of the applicant’s article 10 rights.  Secondly, reimbursement for the applicant’s costs against either the Law Society or the Tribunal (or both).

Article 10 of the Hong Kong Bill of Rights

17.As I understand it, the applicant, who appears in person, argues that by refusing to take up the prosecution of the complaint before the Tribunal, despite the Chief Justice’s submission of the matter to the Tribunal Convenor for disposal, the Law Society has effectively obliged him to act as prosecutor at the hearing before the Tribunal.  The hearing before the Tribunal was not open to the public.  Normally, this would not involve any infringement of article 10 of the Hong Kong Bill of Rights (which is constitutionally entrenched by article 39 of the Basic Law), even though the article provides that in the determination of “his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal”.  This is because there is a right of appeal to the Court of Appeal under section 13 of the Legal Practitioners Ordinance, and the hearing of the appeal by the Court of Appeal, which has full jurisdiction to deal with it by way of a rehearing, is in open court: section 13(4).  This is the so-called Tehrani principle (Tehrani v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2001] IRLR 208), which has been applied by the Court of Appeal in Tse Wai Chun v Solicitors Disciplinary Tribunal [2002] 3 HKLRD 712.  However, the applicant contends, since he, as the complainant and prosecutor at the hearing before the Tribunal, does not enjoy any right of appeal to the Court of Appeal, the Tehrani principle does not apply, so far as he is concerned.  In those circumstances, there has been a breach of the requirement of article 10 for a public hearing, the hearing before the Tribunal having been held in camera pursuant to section 9B(4) of the Legal Practitioners Ordinance.

Discussion on article 10

18.I do not accept the argument.  I do not accept that article 10 is engaged at all insofar as the applicant is concerned.  Article 10 provides for the determination of a person’s “rights and obligations in a suit at law … at a fair and public hearing”.  The crucial issue is whether the Tribunal hearing was a hearing to determine the applicant’s own “rights and obligations in a suit at law”.

19.I fully accept that the proceedings before the Tribunal were proceedings to determine the rights and obligations of the solicitors involved, thus triggering the operation of article 10 so far as those solicitors were concerned.  The Court of Appeal in Tse Wai Chun was in agreement with the solicitor involved in that case to that extent.

20.However, the applicant was only a complainant or victim of the alleged misconduct of the solicitors in question.  His “rights and obligations” were not involved in the proceedings before the Tribunal.  The proceedings before the Tribunal (“the suit at law”) were not to determine the applicant’s own rights and obligations.  The “suit at law” was to determine the alleged misconduct of the solicitors.

21.If the Law Society had been involved in the proceedings before the Tribunal as prosecutor, the Law Society could be said to have been involved in a “suit at law” to determine the Society’s “rights and obligations” – for quite plainly, the Society has statutory rights and obligations under the Legal Practitioners Ordinance and its subsidiary legislation over the practice and conduct of its own members. 

22.However, as I said, the applicant was only a complainant or victim in the alleged misconduct of the solicitors.  I agree that as a matter of fact, he played the role of a prosecutor at the actual hearing before the Tribunal.  But that fact cannot alter the proper legal analysis of the situation.  According to the Court of Appeal, that course (ie his prosecuting the complaint) was legally erroneous, so much so that the Court of Appeal set aside, of its own motion, the costs order made by the Tribunal against the applicant, the basis of which order was that the applicant was the unsuccessful prosecutor at the hearing before the Tribunal.  This is what Rogers V-P said:

“16.   In my view the Tribunal was in error in allowing the applicant to act as prosecutor.  If the Law Society or the Council, despite the submission of the complaint by the Chief Justice did not consider it right to bring the prosecution, the Tribunal should have considered the matter and made its own inquiry.  Whilst it allowed the applicant to act as prosecutor that did not constitute the applicant the Council of the Law Society.  In those circumstances the applicant has no right of appeal to this court.  Since this is a matter of jurisdiction, the court had no alternative but to refuse to entertain the appeal on merits.

17.    This court however discharged the order of costs below.  It had been made on the basis that the applicant was the prosecutor in the matter and, as already explained, that was an erroneous approach.  Even on the basis that the applicant was a party to the inquiry by the Tribunal it would appear that it would have been wrong for the applicant to have been ordered to pay costs in view of the fact that the matter had been submitted to the Tribunal by the Chief Justice under his powers under section 9A(2) of the Ordinance and the solicitors themselves had conceded there had been an error.”

23.For present purposes, I am prepared to assume that if a person is required or permitted by law to act as a prosecutor in proceedings, it is arguable that his “rights and obligations” are involved in “a suit at law” in those proceedings, and those rights and obligations are therefore required to be determined at a “fair and public hearing” (subject to the Tehrani principle).  However, the same cannot be said of the applicant’s purported and erroneous prosecution of the proceedings before the Tribunal, as per the Court of Appeal’s decision.  In those circumstances, the fact that he actually purported to prosecute the proceedings does not turn them into proceedings for the determination of his own rights and obligations.

24.The applicant then contends that he was nonetheless a “party” to the proceedings before the Tribunal, by reason of rule 7 of the Solicitors Disciplinary Tribunal Proceedings Rules (Cap 159C).  Rule 7 has to be read together with rule 3.  Both rules have been explained and commented upon by the Court of Appeal:

“10.   Rule 3(1) provides for the submission of an application to consider a complaint to the Law Society by an applicant.  That application must be in writing and supported by an affidavit.  Sub-rule (2) speaks of an application being made by the Law Society, in which circumstances the Secretary General may sign the application and swear the affidavit.  Thus rule 3 provides for two different circumstances.  In sub-rule (1) it is speaking of an application by a third party to the Law Society and unless something further is done the Tribunal does not become involved, but in sub-role (2), whilst the word “application” is used, itis not an application by the Law Society but it must be referring to a submission of a complaint to the Tribunal Convenor.

11.    The matter becomes slightly confused in rule 7 which reads:

“In the case of an application under rule 3(1), the applicant and the respondent shall be parties, and in the case of an application under rule 3(2), the Society and the respondent shall be parties.”

As already observed the application under rule 3(1) is an application to the Law Society to consider a complaint and it does not in itself trigger an inquiry by the Tribunal whereas, presumably, if “application” as used in rule 3(2) of the Rules is to be read as the submission of a complaint to the Tribunal Convenor then the Law Society would necessarily be a party and the machinery of an inquiry would be put in motion.

12.    What would appear to be the result is that where the Chief Judge (or previously the Chief Justice) submits a complaint to the Tribunal Convenor, the Council is required to submit all documents which have been received by the Law Society pursuant to rule 3(1).  It would therefore seem that possibly the applicant does become a party by virtue of rule 7.”

25.It should be noted that besides rule 7, there are other rules, such as rule 10 (inspection of documents), rules 11 and 13 (appearance at hearing), rule 12 (representation) and rule 14 (evidence), which set out what a party may or has to do in the proceedings before the Tribunal.  Furthermore, rule 25 provides that:

“The Solicitors Disciplinary Tribunal may at any stage of proceedings against a respondent refer the case or any aspect thereof to the Council and may adjourn the proceedings pending the consideration thereof by the Council so that the Council may, if it so decides, take such further proceedings under rule 3 against the respondent or undertake on behalf of the original applicant the prosecution of his application.”

26.All this, on the face of it, would seem to suggest that where a complainant like the applicant is made a party to the proceedings before the Tribunal, in a case where the Society does not make an application under rule 3(2) to the Tribunal Convenor, there are, apparently, procedural rights and obligations on the part of the complainant/applicant as a party to the proceedings.

27.But all this must be read subject to the Court of Appeal’s interpretation of the rules.  First, all the Court of Appeal says is that “possibly the applicant does become a party by virtue of rule 7” (para 12).  And more importantly, that notwithstanding, the Court of Appeal is clearly of the view that the applicant does not and is not entitled to act as prosecutor in the proceedings – and this is so irrespective of whether the applicant is, technically, a party to the proceedings.  And this is the position so much so that it is fundamentally wrong to order costs against the applicant when the complaint against the solicitors is dismissed.  The Court of Appeal, as noted, has actually set aside the costs order of the Tribunal, despite its holding that the appeal lodged by the applicant is incompetent and the Court has no jurisdiction to hear it.  And, also, this has been done notwithstanding that section 10(2)(e) of the Legal Practitioners Ordinance empowers the Tribunal to order payment “by any party” of the costs of the proceedings of the Tribunal.  In other words, even if the applicant were to be considered a “party” to the proceedings before the Tribunal by virtue of rule 7, the Court of Appeal has taken the view that it was fundamentally wrong for the Tribunal to award costs against the applicant.

28.In my view, whether the applicant’s own “rights and obligations” were involved in the proceedings before the Tribunal, thus triggering the operation of article 10, must be looked at substantially.  What matters not is label – whether he is called an applicant, complainant, victim or “party” to the proceedings.  What counts is what he can do in the proceedings and how the outcome of the proceedings would, as a matter of law, affect him.

29.In my view, given the Court of Appeal’s interpretation of the rules, the answer is straightforward.  In the proceedings before the Tribunal, the applicant’s role, as a matter of law, could not go beyond that of a complainant or victim of the alleged misconduct.  He might have to give evidence before the Tribunal and submit statements.  But, apart from that, he did not play the role of a prosecutor.

30.In terms of the outcome of the proceedings, it could not affect him at all as a matter of law.  As the Court of Appeal has also held, he was not, as a matter of law, exposed to any costs order against him.

31.In those circumstances, I take the view that substantially, labelling the applicant a “party” to the proceedings before the Tribunal does not bring his case within article 10.

32.Finally, I note that section 10(2)(bb) of the Legal Practitioners Ordinance gives the Tribunal jurisdiction to order payment by the solicitor under complaint to the complainant of an amount not exceeding the amount paid to the solicitor by way of fees and disbursements in relation to the complainant’s matters in dispute – in the event the complaint against the solicitor is substantiated.

33.In my view, that does not render the proceedings in question proceedings for the determination of the complainant’s own rights and obligations.  The fact that the solicitor under complaint may be ordered by the Tribunal to pay compensation to him as the complainant does not by itself mean that the proceedings are for the determination of the complainant’s own rights and obligations.  The fact that, by way of analogy, a criminal court could order, on some appropriate occasions, a convicted person to pay criminal compensation to a crime victim does not turn the victim into a party to the criminal proceedings.

34.In any event, on the facts of the present case, section 10(2)(bb) simply does not apply because it only applies, by definition, to a complainant who has paid fees and disbursements to the solicitor under complaint (in other words, the complaint would have to be, in most cases, directed against one’s own solicitor).  It simply was not the case in the present case.  Therefore, even on the facts, the applicant’s own rights and obligations were not involved in the proceedings before the Tribunal.

35.It should be noted that this application for judicial review is not concerned with the Council of the Law Society’s decision not to take up the prosecution of the complaint, after the matter had been submitted by the Chief Justice to the Tribunal Convenor for disposal and the consequential setting up of the Tribunal to inquire into and investigate the complaint against the solicitors, on grounds such as Wednesbury unreasonableness or bias.  The present application for judicial review involves a very specific complaint, namely, that by deciding not to take up the prosecution in such circumstances, the Society was effectively “obliging him to be the prosecutor” before the Tribunal, and thus acting in a manner that was inconsistent with the applicant’s rights under article 10.

36.Since I have decided that article 10 is simply not engaged in the type of situations involved in the present case, there is no question of the Law Society acting contrary to article 10, and the whole foundation for the application for judicial review fails.  The Court need not concern itself with whether the decision of the Law Society not to take up the prosecution could be challenged on any other public law grounds – leave to do so was never sought or given on such basis.  Indeed the Law Society was not named as a putative respondent in the form 86A.

37.In those circumstances, the applicant’s general complaints against the Law Society’s refusal to take up the prosecution despite the submission of the matter by the Chief Justice to the Tribunal Convenor is quite irrelevant to the issues before the Court, and I do not propose to deal with them here.

38.For the sake of completeness, I should point out that as presently framed, the declaratory relief sought by the applicant is, in any event, problematic.  As has been pointed out by the Court of Appeal (para 16), in the event of the Law Society not taking up the prosecution despite the Chief Judge/Chief Justice’s submission of the complaint to the Tribunal Convenor, it is for the Tribunal to consider the matter and make its own inquiry.  After all, section 9B(1A) of the Legal Practitioners Ordinance which provides for the Tribunal’s function to “inquire into and investigate” the complaint does not say that that must be done with the assistance of a prosecutor.  The complainant is simply not entitled, let alone “obliged”, to prosecute the complaint in such event. 

39.There is therefore no basis for saying that in the present case, the applicant was “obliged by” the Law Society to take up the prosecution before the Tribunal in a manner that was inconsistent with his article 10 rights.

40.However, I have not sought to dispose of the applicant’s argument under article 10 on that basis.  On final analysis, the applicant’s contention does not depend on whether he was forced to act as a prosecutor before the Tribunal or should have played a lesser role of that of a passive “party”.  If the true nature of the proceedings before the Tribunal were to determine (amongst other things) the “rights and obligations” of the applicant, then his rights under article 10 would have been infringed for want of a public hearing with no right of appeal to an open court.  This would have been so regardless of what role he was as a matter of law entitled to play in the proceedings.

41.Viewed in that light, everything turns on whether his article 10 rights are engaged at all – the crucial issue I have identified at the beginning of this part of my judgment.

Costs

42.Moving on to the second matter, namely, costs, insofar as it is sought by way of damages that is parasitic on the applicant’s claim for declaratory relief based on infringement of article 10, it must fail following my rejection of his case on article 10.

43.Insofar as it is based on some other public wrong, the first thing to do is to identify the wrong, if any.  Unfortunately, the applicant has not been able to do so. 

44.If it could be said that the Tribunal could and ought to have made a costs order in the applicant’s favour but did not do so, it might amount to a reviewable wrong and the Tribunal could be made to do what it ought to have done. 

45.However, in the present context, against whom could such a costs order be made? 

46.The applicant has in his notice of motion pointed his finger at the Law Society and the Tribunal itself.  But this is a non-starter.  The jurisdiction and power of the Tribunal to award costs of the proceedings before it is governed solely by statute.  Section 10(2)(e) of the Legal Practitioners Ordinance empowers, and only empowers, the Tribunal to order payment “by any party” of costs of the proceedings.  As the Law Society has refused to take up the prosecution, it was not a party to the proceedings before the Tribunal.  The Tribunal therefore had no jurisdiction to order costs against the Law Society in favour of anybody (including the applicant). 

47.As for the Tribunal itself, it was not a “party” to the proceedings, and the Tribunal had no power to award costs against itself in favour of anybody, including the applicant.

48.As for the costs before the Court of Appeal, quite apart from anything else, that was a matter for the Court of Appeal, not the Tribunal.

49.Finally, insofar as the members of the Tribunal are concerned, they are immune from suit for any act done or omitted to be done in the execution of their duties as such members: section 11(3) of the Legal Practitioners Ordinance.  Any such suit would not be a public law matter either.

50.In the circumstances, I fail to see any viable basis for the applicant’s claim for costs against either the Law Society or the Tribunal.

Outcome

51.In conclusion, the present application for judicial review must be dismissed.  I so order. 

52.Having heard, on a provisional basis, the parties’ submission on costs, I take the view that costs should follow the event.  I order that the costs of these proceedings, including all costs previously reserved, be paid by the applicant to the 1^st respondent, to be taxed if not agreed.  With no disrespect to counsel, I am not minded to grant a certificate for two counsel.

The applicant, appearing in person

Mr Philip Dykes SC and Ms Ann TY Lui, instructed by Boase, Cohen & Collins, for the 1^st respondent

The 2^nd respondent, in person, absent