Re A Solicitor

CACV001218/2001

CACV 1218/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1218 OF 2001

(ON APPEAL FROM THE SOLICITORS DISCIPLINARY TRIBUNAL)

Coram: Hon Rogers VP, Le Pichon and Yuen JJA in Court

Date of Hearing and Judgment: 17 September 2002

Date of Reasons for Judgment: 30 September 2002

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REASONS FOR JUDGMENT

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Hon Yuen JA (giving the Reasons for Judgment of the Court):

1.This is an appeal from an order of a Solicitors Disciplinary Tribunal made on 23 May 2001 whereby the Appellant was suspended from practice for 6 months, 9 months and 9 months respectively in relation to three complaints, the periods of suspension to be concurrent.

2.The complaints as amended were that:

(1) The Appellant had breached Rule 3(1) of the Solicitors' Accounts Rules by failing to pay client's money into a client's account, the money having been paid into his firm's office account;

(2) The Appellant had breached Rule 7(1) of the Solicitors' Accounts Rules by transferring a sum from a client account into the office account without first seeking the client's approval or giving notification to the client;

(3) The Appellant had breached Rule 10 of the Solicitors' Accounts Rules in that he had failed to enter in a client account record or client ledger

(a) the sum referred to in complaint (1); and

(b) a bill of costs and certain payments received in relation to another client and another file.

3.Before the Solicitors Disciplinary Tribunal, the Appellant admitted all the complaints.

4.Before doing so, the Appellant had made an affirmation for the purposes of mitigation. The contents of the affirmation caused the Disciplinary Tribunal some concern as it appeared that the admissions might be equivocal.

5.When this concern was raised, the Appellant withdrew the affirmation.

6.In the course of mitigation however, similar matters were raised by counsel for the Appellant (not counsel appearing before this court) in an effort to suggest that these offences were only minor or technical breaches.

7.The matters raised in mitigation were apparently not disputed by the solicitor prosecuting for the Law Society.

8.In relation to complaint (1), it was said that the money in question was paid for legal services rendered to the client by the Appellant's previous firm, and therefore it could not be client's money as he (the Appellant) was entitled to it.

9.In relation to complaint (2), it was said that the money was in reimbursement of disbursements made by the firm on behalf of the client, not payment of solicitors' costs, and therefore the client's approval or prior notification was not required.

10.In relation to complaint (3), it was said that in relation to (a) the money was not client's money, and therefore the Appellant was not required to enter it in the client account record or ledger; in relation to (b), the bill of costs need not in any event be entered in the client account record or ledger, and the payments were received, not for payment of solicitors' costs, but in repayment of personal debts.

11.The Disciplinary Tribunal did not however consider the question whether to invite the Appellant to change his plea in the light of some or all of these assertions.

12.In this appeal, the Appellant submits that his admissions were misguided in light of the matters raised in mitigation.

13.Mr Burns who appears for the Law Society in this court, but who did not appear before the Tribunal, accepts that the principles applicable to appeals in criminal proceedings apply to appeals against the findings and orders of a disciplinary tribunal. He accepts that the Appellant's admissions were equivocal in the light of the matters raised in mitigation and he does not seek in this court to support the Tribunal's order.

14.It had been suggested by Mr Harris, who appears for the Appellant, that the procedure set out in 59/1/20 of Hong Kong Civil Procedure 2002 could apply such that the appeal could be allowed by consent. In the light of the serious nature of these allegations, we did not consider that allowing this appeal by consent could be done by way of a paper application only. We would also note that whilst it is Mr Burns' position that all the charges were the subject of an equivocal plea, Mr Harris' position is that only part of complaint (3) was the subject of an equivocal plea as he says that in relation to complaint (3)(b), the offence has simply not been made out in law. Be that as it may, complaint (3) comprises one charge only, there was only one plea to that charge, and one penalty given in relation to that charge, even though it would appear that complaint (3)(b) dealt with a different bill and a different client from complaint (3)(a). In view of the fact that there was only one charge, the issue of equivocal plea affects all the contents of that charge.

15.Accordingly we allowed the appeal, quashed the findings and order of the Disciplinary Tribunal on the three complaints and remitted the three complaints to the Solicitors Disciplinary Tribunal for a fresh determination.

Representation:

Mr Paul Harris, instructed by Messrs Clarke & Kong, for the Appellant

Mr Ashley Burns, instructed by Messrs Boase, Cohen & Collins, for the Respondent