THE LAW SOCIETY OF HONG KONG v. JIM YIU MING AND ANOTHER

CAMP 366/2023

[2024] HKCA 740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 366 OF 2023

(ON AN INTENDED APPEAL FROM AN ORDER MADE BY THE SOLICITORS DISCIPLINARY TRIBUNAL DATED 14^TH NOVEMBER 2023)

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J U D G M E N T

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Hon Chu VP (giving the judgment of the Court):

Introduction

1.  There are before this Court two applications made by the applicant (“Law Society”)  on 6 December 2023:

(1)  An application for leave to appeal the decision of the Solicitors Disciplinary Tribunal (“SDT”)  made on 14 November 2023, and if leave is granted, an extension of the time for the filing of the notice of appeal (“1^st Application”).

(2)  An application for extension of time to make the 1^st Application (“2^nd Application’).

2.  The applications are opposed by the respondents.  Having considered the papers and submissions, we consider it is appropriate to deal with the applications on paper without an oral hearing, pursuant to Order 59 rules 2A(5)(a)  and 14A(1)  of the Rules of the High Court, Cap. 4A.

2^nd Application: Extension of time to apply for leave to appeal

3.  We deal firstly with the 2^nd Application.  This application was prompted by an incident on 5 December 2023 when the filing clerk of the solicitors for the Law Society attempted to file the leave to appeal application at the Appeals Registry.  The incident was described in the affidavit of GRA Haley and the affirmation of WM Yiu.  It is not necessary to delve into the details as the incident is of no material consequence.  It suffices to say that there were some exchanges between the filing clerk and the registry counter staff on whether the intended filing was within time, and the filing clerk eventually left without doing the filing.

4.  The following provisions are relevant to the consideration of the 2^nd Application:

(1)  Legal Practitioners Ordinance Cap. 159 (“LPO”)

(1.1)  Section 13(2A)  requires the Law Society to obtain the leave of the Court of Appeal if it wishes to appeal an order of the SDT:

“The Council may, with leave of the Court of Appeal, appeal an order of a Solicitors Disciplinary Tribunal under subsection (1), in which case the Society shall be the appellant and the person whose conduct was the subject of the inquiry by the Solicitors Disciplinary Tribunal shall be the respondent.”

(1.2)  Section 13(1)  provides that appeals against any order of the SDT lie to the Court of Appeal, and that Order 59 of the Rules of the High Court (“RHC”)  shall apply to such appeals except that the time for appealing shall be 21 days (instead of 28 days as provided under Order 59)  from the date of the decision:

“Subject to section 12(6), an appeal against any order made by a Solicitors Disciplinary Tribunal shall lie to the Court of Appeal and the provisions of Order 59 of the Rules of the High Court shall apply to every such appeal save that the time for serving notice of motion of appeal shall be 21 days from the date of the decision and not 28 days as provided in the said Order.”

(2)  Order 59 of RHC

(2.1)  Order 59 rule 2A deals with the procedures for leave to appeal applications in the Court of Appeal including an application should be made by summons accompanied by a statement of the reasons for the application etc.  No time limit for making the application is mentioned.

(2.2)  Order 59 rule 2B(1)  requires an application for leave to appeal to be made within 14 days to the Court which made the judgment or order in the first instance:

“Subject to paragraph (4)  and any other enactment, an application for leave to appeal against—

(a)  an interlocutory judgment or order of the Court;

(b)  a judgment or order of the Court specified in section 14(3)(e)  or (f)  of the Ordinance; or

(c)  any other judgment or order of the Court against which an appeal may be made with leave of the Court or the Court of Appeal,

may only be made to the Court in the first instance within 14 days from the date of the judgment or order.”

(2.3)  Order 59 rule 2B(3)  further provides that a renewed application to the Court of Appeal for leave to appeal shall be made within 14 days from the date of refusal by the Court below:

“Where the Court refuses the application, a further application for leave to appeal may be made to the Court of Appeal within 14 days from the date of the refusal.”

(2.4)  Order 59 rule 4(c)  provides that the time for appeal to the Court of Appeal is 28 days (except those appeals covered by rule 4(a)  and (b)).

5.  The Law Society may only appeal against an order of SDT with leave of the Court of Appeal: section 13(2A)  LPO.  The 21-day time limit provided in section 13(1)  of LPO deals with the filing of a notice of motion to appeal an order of the SDT. It does not concern or apply to a leave to appeal application.

6.  The application that the Law Society sought to file on 5 December 2023 (and also in the present case under the 1^st Application)  is an application for leave to appeal, and if leave is given, an extension of time if by the time the CA grants leave the 21 days’ appeal period provided for in section 13(1)  LPO has expired.  The application is not subject to the 21-day time limit under section 13(1)  of LPO.

7.  As to the 14-day time limit for a leave to appeal application prescribed by Order 59 rule 2B(1)  of RHC, it concerns a judgment or order of “the Court” and the time within which such an application has to be made to “the Court in the first instance”.  This rule has no application to a leave to appeal application made under section 13(2A)  of LPO because: (1)  “the Court” referred to in Order 59 rule 2B(1)  means the Court of First Instance: Order 1 rule 4(2)  of RHC; and (2)  section 13(2A)  of LPO mandates that leave to appeal is to be granted by the Court of Appeal, there is thus no need and no occasion to first make the leave application to the court which makes the order/judgment to be appealed.

8.  There is no provision in either the LPO, Order 59 or other provisions in the RHC or the High Court Ordinance that touches on the time limit for making an application to the Court of Appeal for leave to appeal against an order of SDT.

9.  In conclusion, while the present application for leave to appeal was made on the 22^nd day after SDT’s Decision, we do not think a time extension for making the application is required.

1^st Application: Leave to appeal the SDT’s decision

10.  As to the 1^st Application, the disciplinary proceedings leading to the decision of the SDT relate to a firm of solicitors which was intervened by the Law Society in June 2019.  The two respondents were the only partners of the firm.  The 1^st respondent was the one with the main responsibility and control of the firm.  The 2^nd respondent resigned shortly before the intervention.

7.  The two respondents pleaded guilty to 20 disciplinary charges relating to breaches/failures in the management of the firm’s accounts and handling of client’s money.  They covered the period from March 2017 to June 2019.  The underlying matter is a series of misappropriation of client’s money by an accounts clerk of the firm.  The total amount involved is approximately HK$673 million.

8.  The sentences imposed by the SDT are a combination of: (i)  payment of a fine for each of the charges; (ii)  a censure; and (iii)  a two-year restriction on practice.  In the case of the 1^st respondent, the fines range from HKS3,000 to HKS30,000, totalling HK$309,000.  As for the 2^nd respondent, the fines range from HK$1,000 to HK$10,000 and the total is HK$103,000. 

9.  The respondents have appealed the sentences in CACV 397/2023. 

10.  In these proceedings, the Law Society seeks leave to appeal the sentences principally on the ground that they are manifestly inadequate and do not reflect the gravity of the breaches and failures of duties on the respondents’ part.  It is argued that a period of suspension should have been imposed.

11.  We are of the view that it is reasonably arguable that the sentences imposed by the SDT against the two respondents are inadequate.  We will grant leave to the Law Society to appeal the order of the SDT and will extend the time for the service and filing of the notice of appeal.  

Conclusion

12.  Accordingly, we make the following orders:

(1)  Leave to the Law Society to appeal the order of the SDT made on 14 November 2023.

(2)  The time for the Law Society to serve and file the notice of appeal be extended to 14 days from the date of this order.

(3)  The Law Society’s appeal be heard together with CACV 397/2023.

(4)  The costs of the 1^st Application be in the cause of the Law Society’s appeal.

(5)  No order is made on the 2^nd Application.