Re A Solicitor's Clerk
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CACV000016/1978
RE A SOLICITOR'S CLERK Coram: Briggs, C.J., Huggins & Pickering, JJ. A. Date of Judgment: 10th May, 1978. ----------------- JUDGMENT ----------------- 1. This is an appeal from a decision of the Disciplinary Committee of the Law Society constituted under the provisions of the Legal Practitioners Ordinance. By an order dated February 17th, 1978, the Committee ordered that no solicitor may employ the appellant for the period of 18 months. The appellant was also ordered to pay the costs of the applicant, the Law Society. 2. The appellant at the material time was the chief clerk, described as an "executive clerk" in a well-known firm of solicitors. The appellant has a brother who was a convicted prisoner incarcerated at the Victoria Reception Centre. Without the authority or knowledge of his principle, the appellant addressed a letter to the Superintendent of that Centre requesting that he and a named woman might be permitted to interview the prisoner "for instructions". The named woman is the wife of the prisoner. The appellant described himself properly as the "Chief Clerk" of his firm and the woman wrongly as the secretary of that firm. In fact, she was a typist in the firm working on a part-time basis. 3. The appellant's firm had not been instructed by the prisoner or on his behalf. The appellant and the prisoner's wife would, as relatives, have been able to visit the prisoner at those times which are set aside for visits from the members of the families of prisoners. But at such times the area provided for interviews is very crowded. On the other hand, a proper interview room is provided when a person is visited by his solicitor or solicitor's cherk. And there are proper facilities for taking instructions. It was this that prompted the appellant to make the request he did. Though the Committee was told that the prisoner had asked the appellant to visit him concerning a possible appeal against his conviction and an application for bail, the appellant did plead guilty to the offence. 4. It was, course, quite wrong of the appellant to act as he did, to make use of his position to get what he wanted and in doing so, not to comply with the regulations governing visits to prisoners. It is important that the Commissioner of Prisons can rely on the professional integrity of all the members of the legal profession however humble. And that when a request is made for an interview with a prisoner for instruction that such a request is genuine. 5. The appellant is a man of 39 years with three children. He has other family commitments owing to the imprisonment of his brother. The sentence imposed is extremely severe since it means that the appellant will be deprived of his livelihood for a period of eighteen months. 6. Mr. Jackson-Lipkin, for the appellant, urged that this was not a serious offence. He pointed out that the appellant had freely confessed his fault. He has been employed as a solicitor's clerk for eighteen years and in his present position for ten years. And he has an unblemished reputation. There has been no gain to the appellant nor can his conduct be considered dishonest as that term is usually employed. There is also the fact that the appellant was visiting a prisoner who was a brother with that brother's wife. Finally, his firm has indicated that they are prepared to re-employ the appellant for "indoor work" with the firm only when they are permitted to do so. 7. The powers of the Disciplinary Committee are to be found in section 10(2) of the Legal Practitioners Ordinance. I will not set them out but they are extensive. The Committee in this case acted under section 10(2) (g) which reads as follows:-
8. Mr. Andrew Li, who appeared for the Law Society, conceded that the Committee has power under section 10(2) of the Ordinance to censure or to fine a solicitor's clerk for an offence where they consider that an appropriate penalty. 9. Various cases were brought to our attention. In the case of In re A Solicitor(1) Lord Widgery said:-
10. 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 he firm has been prejudiced, where there has been misapplication of funds or in such like cases. 11. Part of the headnote in the case of In re A Solicitor's Clerk(2) reads as follows:-
12. The Full Court reduced the period of three years to six months. That was a very serious case. In the present case there was no interference or attempted interference with the process of the courts. And it cannot be said that to procure a visit to a brother, who is a prisoner, out of hours, and in more comfortable conditions, can be anything like as serious as attempting to bribe an official of the court. 13. Mr. Andrew Li for the Law Society made the point that this Court should only interfere if we are satisfied that the Committee was manifestly wrong, either wrong in principle or that the penalty imposed was manifestly excessive. He said that it has been generally accepted that a Court of appeal will be very slow to interfere with the exercise of a Disciplinary Committee of its powers for the very good reason that a professional body is best qualified to decide the appropriate sentence. (In re A Solicitor(3) and McCoan v. General Medical Council(4)). The court should only interfere in an "extremely clear" case is how it has been expressed in more than one case. 14. In my view, this is such a case. I think that the sentence was wrong in principle. I would quash the sentence and substitute an order of censure and a fine of $500: the order as to costs in the proceedings before the Committee to stand: but no order as to costs in this court.
Representation: Jackson-Lipkin, Q.C. & Stevenson (Sousae & Hoosen) for appellant A. Li (Deacons) for respondent (1) (1976) 120 Sols.J. 353. (2) (1966) H.K.L.R. 99. (3) (1975) 119 Sols.J. 744. (4) (1964) 1 W.L.R. 1107.
RE A SOLICITOR'S CLERK Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 10th May 1978. ----------------- JUDGMENT ----------------- Huggins, J.A.: 15. I take it as well established that we should not interfere with a penalty imposed by a Disciplinary Committee of a professional body unless satisfied that it is "wrong and unjustified": McCoan v General Medical Council 1964 1 W.L.R. 1107, followed in Hong Kong in In re a Solicitor's Clerk 1966 H.K.L.R.99. 16. The first question we have to decide is whether any sentence of suspension was wrong and unjustified in the present case. Hogan, C.J., delivering the judgment of the Full Court in Re a Solicitor (1956) 40 H.K.L.R. 186, said at p.189:
That was consonant with the later English decision in In re a Solicitor (1976) 120 Sol. J. 353, where it was said that "the great divide" came between fine and suspension and that as in that case the solicitor had not been dishonest "he had not reached the stage where he ought to be suspended". Whatever may be said by way of mitigation, it seems to me beyond question that the Appellant has been guilty of dishonest conduct: taking advantage of his privileged position he wrote a letter containing three deliberate falsehoods. Prima facie, therefore, this was a case where the Committee was justified in resorting to suspension. 17. It is urged that the mitigating circumstances were such as nevertheless to render a sentence of suspension unreasonably harsh. The falsehoods were told to gain something other than a financial benefit. Whilst I am aware of the preoccupation of a large part of the population of Hong Kong with financial benefits, I cannot accept that they are the only matter of importance. The fact is that the Appellant sought a benefit for himself and for another member of his family which they would not, to their knowledge, have been granted but for the falsehoods. The fact that one of the falsehoods was not far from the truth - in that the prisoner's wife was an employee of the firm of solicitors, though not a secretary - is of only minor significance. The relationship of the Appellant and of the wife to the prisoner they sought to visit does, perhaps, raise a measure of sympathy for them, but their object was, by deceit and abuse of their employers authority, to gain access to a convicted prisoner in one of Her Majesty's prisons under circumstances of diminished security. That I regard as the gravamen of the offence. It was not the act of a young and immature clerk but of the Senior Clerk of the firm, whose position required rather that he should set an example to his juniors. For my part I am quite unable to say that the Committee was wrong to impose a sentence of suspension. Although I can conceive that they might have taken a different view, the discretion was theirs and I think there was ample ground upon which they could decide as they did. 18. I come then to consider the period of the suspension and here I do not find the Committee to be on such firm ground. Undoubtedly the period of eighteen months was longer than that imposed in other cases in the past and, even allowing for the possibility that some of the previous sentences have been lenient, I find it hard to think that so long a period of suspension was called for in all the circumstances of this case. In my judgment justice would be done if the period were reduced to one of six months. 10th May 1978. Representation:
IN RE A SOLICITOR'S CLERK Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 10th May, 1978. ----------------- JUDGMENT ----------------- Pickering, J.A.: 19. Essentially, what this appellant did was to obtain for himself and for his brother's wife, his brother being a convicted prisoner held at Victoria Remand Centre, an interview with his brother under more comfortable circumstances than are ordinarily available to the visiting relatives of prisoners. He achieved this by writing lies to the prison authorities. 20. The advantage which he obtained for himself, his brother and his sister-in-law was of no great moment. What was distinctly objectionable, and would be sufficient to alarm every solicitor's firm to which the facts were known, was the manner of the obtaining which was to employ his principal's notepaper to convey the impression that his principal had instructions to act for his brother. The use of professional notepaper for purposes unconnected with those of the firm may legitimately raise a shudder throughout any profession; for whilst the use made of the notepaper on this occasion was relatively innocuous, the next such unauthorised employment, whether by this appellant or anybody else, might well be for far more sinister purposes. Professional firms are entitled to be protected from the misuse of their styles and titles and of the assurance of professional responsibility which should go with them. 21. In this case the professional association concerned rightly took a serious view of the misrepresentation involved - and it was the misrepresentation rather than the relatively trivial benefit gained which was of importance. 22. Having said that I would agree that suspension for eighteen months was excessive and I would allow the appeal and reduce that period to one of six months whilst making no order as to the costs of the appeal. Representation: M.H. Jackson-Lipkin, Q.C. & J.G. Stevenson (Sousae & Hoosen) for appellant Andrew Li (Deacons) for respondent |
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