Read the full judgment text of CACV 000011/2003 on BabelCite. This Court of Appeal judgment was delivered on 25 September 2003 before Woo JA, Cheung JA, Burrell J.
Civil appeal – professional discipline – solicitor – Solicitors Disciplinary Tribunal – four disciplinary complaints – complaint (1) accepting instructions to witness a Chinese document the solicitor could not adequately read, witnessing it, and indicating to the partner that money could be released from the firm's trust account contrary to the firm's stakeholder obligations; complaint (2) witnessing execution of a signature not made in the solicitor's presence; complaints (3) and (4) breach of rule 7 of the Solicitors' Accounts Rules and rule 2 of the Solicitors' Practice Rules arising from payment of stakeholder monies without authority of CERMA – agreement dated 1 December 1996 to amend two letters of credit in favour of CERMA S.R.L. – firm was a party to the agreement – US$200,000 processing fee received by firm – HK$1.4 million plus further sums released to China Sheen before CERMA confirmed receipt of the amendment – CERMA recovered the US$200,000 from the firm – whether Tribunal applied correct standard of proof – civil standard with higher degree of probability for more serious allegations applies; express recitation not required if standard applied in substance – first complaint upheld on all three limbs: incompetence in accepting instructions and witnessing a document not understood; signing agreement on behalf of the firm; and by her conduct indicating to the partner that release of money was appropriate when conditions under the agreement were not fulfilled – second complaint upheld: witnessing execution of a signature not made in her presence is not a proper standard of work and compromises the reputation of the profession – third and fourth complaints quashed: complaints depended on appellant being a partner of the firm so that she could be said to have 'permitted' the release of money; the Tribunal failed to resolve the conflict of evidence between the appellant (who said she was a consultant) and the partner (who said there was an oral partnership) and reliance on holding out as a partner was insufficient where actual partnership was denied – penalty: two-year suspension for first complaint manifestly excessive in the absence of dishonesty and personal benefit, reduced to one-year suspension with corresponding one-year prohibition on practising as sole proprietor, partner or manager; fine of HK$30,000 for second complaint undisturbed – appeal allowed in part – costs reserved pending Court of Appeal decision in CACV 302/2002.
Legal issues: Standard of proof in disciplinary proceedings · First Complaint - competence and indication to release trust money · Second Complaint - witnessing execution not in presence · Third and Fourth Complaints - whether appellant was a partner · Penalty - whether two-year suspension was excessive
Outcome: Appeal allowed in part. First complaint upheld with reduced penalty of one-year suspension; second complaint upheld with HK$30,000 fine; third and fourth complaints quashed and penalties set aside.
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