KEUNG KIN WAH v. THE LAW SOCIETY OF HONG KONG

HCAL 113/2021

[2021] HKCFI 3273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 113 OF 2021

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JUDGMENT

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INTRODUCTION

1.  In this application for judicial review, the Applicant seeks to challenge the refusal of the Law Society of Hong Kong (“the Law Society”) by its committees to give reasons for the decisions of the Investigation Committee (“the IC”) and the Standing Committee on Compliance (“the SCC”) dismissing the complaint made by Australian Medic-Care Company Limited (“AMC”) against Wilkinson & Grist (“the Firm”) and its former partner, Ms Choi Ching Yee Anne (“Ms Choi”).

BACKGROUND

2.  The present application arises out of the Applicant’s long running history of grievances against Messrs Piper Alderman (“Piper Alderman”), a law firm in Australia.  The Applicant is a director and the majority shareholder (66%) of AMC, which was the plaintiff in an action brought against Hamilton Pharmaceutical Pty Ltd (“Hamilton”) for breach of a distribution agreement in the Federal Court of Australia (“the Australian Proceedings”).  Piper Alderman, retained through the Firm in Hong Kong, advised and subsequently acted as the solicitors on record for AMC and the Applicant in the Australian Proceedings during the period from 2006 to 2009.

3.  A brief summary of the background facts which led to the Applicant’s complaints against Piper Alderman can be found in the judgment of the Supreme Court of South Australia in Keung v Abbott & Another [2017] SASCFC 58, at §§17-23, as follows:

“[17] At all relevant times the respondents were lawyers with the firm Piper Alderman. In 2006, Piper Alderman received instruction from Wilkinson & Grist, a law firm in Hong Kong. Wilkinson & Grist acted for Australian Medic-Care Company Ltd (AMC). At all relevant times the appellant was a director and shareholder of AMC. Initially, Wilkinson & Grist instructed Piper Alderman to advise whether conduct engaged in by an Australian company, Hamilton Pharmaceutical Pty Ltd (Hamilton), was in breach of a distribution agreement between AMC and Hamilton. In February 2007, AMC commenced proceedings against Hamilton in the Federal Court (the Federal Court proceedings). Piper Alderman were the solicitors on record and engaged senior and junior counsel. Piper Alderman continued to be retained by Wilkinson & Grist until April 2009. From that time Piper Alderman was retained by and acted for the appellant and AMC directly.

[18] Hamilton filed a cross-claim against AMC and the appellant, alleging breach of confidence. The appellant unsuccessfully applied that the cross-claim against him be heard separately from the Federal Court proceedings.

[19] Judgment was delivered in the Federal Court proceedings and cross-claim on 30 October 2009.AMC was successful against Hamilton and received nominal damages for Hamilton’s breach of the distribution agreement. Hamilton’s cross-claim for breach of confidence was successful against AMC but unsuccessful against the appellant. AMC was ordered to account to Hamilton for its profits. Cost orders were made on 14 December 2009

[20] Piper Alderman ceased to act for AMC and the appellant on 16 February 2010. At that time Piper Alderman had outstanding fees of approximately $85,000 and it sought to recover those fees from AMC and the appellant in the Supreme Court. A provisional adjudication was part heard on 14 August 2012 and the dispute was then resolved in September 2012 before the provisional adjudication was due to resume.

[21] After Piper Alderman ceased to act, the appellant made complaints to the Legal Practitioners Conduct Board (the Board) about the conduct of the respondents, and also about senior and junior counsel engaged in the Federal Court proceedings.

[22] The appellant’s complaints were the subject of numerous correspondence and documents dated between about 24 June 2010 and 15 April 2014, to which the respondents replied during an investigation conducted by the Board, which later, after the Act was amended, became the Commissioner.

[23] During the course of the investigation, the Board instructed the law firm, Cosoff Cudmore Knox (CCK), to investigate the appellant’s complaints on behalf of the Board. All of the complaints made by the appellant were investigated by CCK. Subsequently the Board informed the appellant that with regard to all his complaints except one (complaint 17) the Board found no unsatisfactory or unprofessional conduct on the part of either practitioner. On 20 November 2014 the Commissioner as the statutory successor to the Board informed the appellant that with regard to complaint 17 and the other complaints of alleged overcharging he found no unsatisfactory or unprofessional conduct on the part of either practitioner.”

4.  The Applicant’s complaints against Piper Alderman can broadly be grouped into 5 counts:

(1)  provoking a cross-claim by Hamilton in the Australian Proceedings by disclosing a formula for the production of a skin cream said to belong to AMC with a view to running up unnecessary costs;

(2)  persistently lying about the availability of senior counsel retained to act for AMC;

(3)  lying during the investigation of their conduct by a law firm appointed by the Legal Practitioners Conduct Board to investigate the Applicant’s complaints against them;

(4)  failing to facilitate a settlement offer made by Hamilton for mercenary reasons, namely, to frustrate a possible settlement available to AMC; and

(5)  overcharging.

5.  For the purpose of this judgment, it is not necessary to go into further details about those complaints, or the proceedings in Australia relating thereto, suffice it to mention that:

(1)  By November 2017, all the Applicant’s complaints against Piper Alderman were rejected by the Legal Practitioners Conduct Board/Legal Profession Conduct Commissioner (the statutory successor to the former).

(2)  The Applicant’s subsequent charges brought against Piper Alderman before the Legal Practitioners Disciplinary Tribunal were eventually held to be out of time and dismissed (Keung v Abbott & Another [2017] SASCFC 58; and Keung v Abbott & Another [No 2] [2019] SASCFC 39).

6.  By letters dated 19 January 2016 and 7 March 2016 and a Complaint Form dated 7 April 2017, the Applicant, on behalf of AMC, lodged a complaint (“the Complaint”) with the Law Society against the Firm and Ms Choi, alleging professional misconduct on the part of Ms Choi for (i) failing to advise the Applicant to sign a letter of engagement with Piper Alderman, (ii) failing to properly supervise Piper Alderman, (iii) settling Piper Alderman’s outstanding fees in December 2011 (“the Outstanding Fees”) without informing the Applicant of the contents of a deed of settlement, and (iv) not assisting the Applicant with the complaints against Piper Alderman.

7.  The Firm responded to the Complaint by a letter to the Law Society dated 10 June 2016, stating that the Complaint was frivolous, vexatious and totally without merit.  In summary, the Firm’s position was as follows:

(1)  The Firm denied having assumed any supervisory role over Piper Alderman.  AMC had full control over the Australian Proceedings and was in direct communication with Piper Alderman.

(2)  AMC failed to settle the Outstanding Fees which led to Piper Alderman commencing proceedings against the Firm in 2010.  The Firm was at liberty to settle the claim by Piper Alderman against it.  The settlement was on a without prejudice basis and did not affect the Applicant/AMC’s legal position.

(3)  It was without basis and unwarranted for the Applicant/AMC to extend his grievances against Piper Alderman to Ms Choi/the Firm despite their limited role.

(4)  The Firm was under no duty, and considered that it would have been inappropriate for it, to be involved in the actions by the Applicant against Piper Alderman.  The Applicant had been told and clarified many times about the Firm’s position and had been advised to obtain independent legal advice.

(5)  The Applicant/AMC’s allegation that the Firm, by signing the letter of engagement directly with Piper Alderman, gave the latter an opportunity to charge lavishly and get double guarantee of payment was unsupported by evidence and wholly imaginary.

(6)  The letter of engagement had been approved by the Applicant/AMC, and the signing of the letter of engagement for and on behalf of AMC could not constitute misconduct on their part.

(7)  The relevant authorities in Australia had already found no misconduct on the part of Piper Alderman, including the allegation of overcharging.

8.  The Applicant made a written reply to the Firm’s response on 27 June 2016.  There was further correspondence passing between the Applicant/Law Society and the Firm/Law Society which it is not necessary to set out in this judgment, save to mention that in a letter to the Law Society dated 30 April 2018, the Firm confirmed that it had not demanded the Applicant/AMC for payment of any settlement sum with Piper Alderman.

9.  The Conduct Section of the Law Society’s Compliance Department (“the Conduct Section”) investigated the Complaint and prepared an internal investigation report for consideration by the IC.  On 8 April 2019, the Director of Compliance of the Law Society wrote to the parties to inform them that the IC had considered the matter and resolved as follows (“the IC Decision”):

“On the basis of the information before the Investigation Committee, the complaints of Australian Medic-Care Co. Ltd. against Ms. Choi Ching Yee Anne (‘Ms Choi’), formerly of Messrs. Wilkinson & Grist (‘the Firm’) were not substantiated and no case of professional conduct can be found against Ms Choi.”

10.  On 11 April 2019, the Applicant asked the Law Society for “a report or copy of the reasons showing why the Complaints … were not substantiated to conclude a case of professional misconduct or even unsatisfactory conduct.  Since they were so obvious misconduct in the eyes of the layman, I, or probably the public, would like to know the criteria used by the Law Society in the determination of unprofessional conduct in these types of complaints before considering taking further legal actions or Judicial Review”.

11.  The Law Society replied on 18 April 2019 and declined to provide the report or reasons sought by the Applicant.  The Law Society drew the Applicant’s attention to paragraph 4(x) and 7(iii) of the “Notes to Parties to the Complaint” (which I shall further describe below) that “reports to an Investigation Committee and the Standing Committee on Compliance will not be disclosed” and that Investigation Committees “are not performing a judicial function (on this basis, no reason will be given for their decisions).”  The Law Society also informed the Applicant that if he was not satisfied with the IC Decision, he could seek a review of the decision by referring the matter to the SCC.

12.  On 2 May 2019, the Applicant on behalf of AMC applied to the SCC for a review of the IC Decision, with grounds of review being set out in a 3-page document.  At the end of that document, the Applicant stated that he hoped the Law Society would supply reasons for their decision in the review.

13.  By letter dated 18 June 2019, the Law Society reiterated to the Applicant that “Investigation Committees are not performing a judicial function and so no reason would be given for its decision.  That being said, we will draw your request to the Standing Committee on Compliance for its consideration”.

14.  There was further correspondence passing between the Applicant/Law Society and the Firm/Law Society which it is not necessary to set out in this judgment.  Eventually, by a letter dated 30 July 2020, the Chairman of the SCC wrote to the parties to inform them that the SCC had considered and reviewed the matter and resolved as follows (“the SCC Decision”):

“Having carefully considered all relevant matters, the decision of the Investigation Committee be upheld.”

15.  By letter dated 24 August 2020 to the President of the Law Society, the Applicant requested the Law Society to provide the report of the investigation compiled by the Law Society or give reasons for its decision, suspecting that “the lawyer in charge of the investigation is covering up the misconduct”, alleging that the denial of misconduct on the part of Ms Choi was “actually corruption which should be reported to the ICAC or the Attorney General”, and threatening to apply for judicial review if “the reasons are not convincing or partiality is suspected”.  Pausing here, the Applicant’s reference to the “Attorney General” was, presumably, intended to be a reference to the “Secretary for Justice”.

16.  The Law Society replied on 27 August 2020 stating that “the Investigation Report is an internal document of the Law Society which will not be disclosed to the parties to a complaint”.

17.  Between 28 August 2020 and 10 December 2020, the Applicant persisted with his request for reasons for the SCC Decision, but his requests were refused by the Law Society.  In particular:

(1)  In a letter dated 18 September 2020, the Law Society stated that the review of the IC Decision sought by the Applicant had been concluded on 30 July 2020 by the SCC which upheld the IC Decision.  The Law Society also drew the Applicant’s attention to s 9A(2) of the Legal Practitioner Ordinance, Cap 159 (“the Ordinance”), which I shall come back to later in this judgment.

(2)  In a letter dated 29 September 2020, in relation to the Applicant’s query on s 9A(2), the Law Society informed the Applicant that it would not refer his case to the Tribunal Convenor of the Solicitors Disciplinary Tribunal (“the Tribunal Convenor”).

(3)  By a letter dated 16 October 2020, the Law Society stated that it was not required to give formal reasons for referring or not referring a matter to the Tribunal Convenor.

(4)  By letters dated 12 November 2020 and 10 December 2020, the Law Society denied the allegations raised by the Applicant against it, including possible “corruption” involving “abuse of public office” which might entail “criminality if the matter is brought to the Attorney General or ICAC or members of the Legislative Council for enquiry”.

18.  In what follows, unless the context indicates otherwise, references to “Section” or “s” shall be to the Ordinance.

APPLICATION FOR JUDICIAL REVIEW

19.  On 1 February 2021, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Law Society’s decisions to refuse to give reasons for the IC Decision and SCC Decision.  In the Form 86, the Applicant sought the following relief:

(1)  an order to compel the Law Society to give reasons for (i) the IC Decision and SCC Decision, and (ii) not referring the Complaint to the Tribunal Convenor;

(2)  an order that the Complaint be remitted to the Tribunal Convenor for further investigation and determination; and

(3)  an oral hearing if leave to apply for judicial review is not granted on paper.

20.  As mentioned in the Form 86 (§1 of relief) and elaborated in the “Applicant’s statement of the grounds on which relief is sought” dated 23 February 2021, the Applicant’s ground of judicial review is that the Law Society’s refusal to give reasons for the IC/SCC Decisions is irrational and/or unreasonable and/or contrary to natural justice.

21.  On 25 February 2021, this court directed a rolled-up hearing of the application for leave to apply for judicial review and, if leave to apply for judicial review was granted, the substantive application for judicial review.  The rolled up hearing took place on 14 September 2021.  The Applicant appeared in person, while Mr Vishal Melwani (Solicitor Advocate) appeared on behalf of the Law Society.

22.  The Law Society opposes the leave/substantive applications on the following grounds[1]:

(1)  The leave application was made more than 3 months after the Applicant knew that no reasons for the IC Decision/SCC Decision would be given.

(2)  The Applicant has not referred the Complaint to the Chief Judge under s 9A(2) despite remaining entitled to do so.

(3)  Given (i) the historic nature of the Complaint, (ii) the delay in bringing the Complaint, and (iii) Ms Choi’s retirement in 2014, there is no public utility in further considering the Complaint.

(4)  Requiring detailed reasons from the IC or SCC would impose a disproportionate administrative and practical burden.

(5)  The Applicant has not suffered any prejudice due to the alleged failure of the IC or SCC to give reasons.

(6)  The IC Decision and SCC Decision were not irrational.

THE LAW SOCIETY’S COMPLAINT HANDLING PROCEDURES

23.  The Law Society is the professional and regulatory body for solicitors in Hong Kong.  One of the aims of the Law Society is to ensure that solicitors comply with all relevant laws, codes, regulations, practice directions and professional conduct obligations[2].

(i)      Consideration of complaints by the Law Society

24.  Over the years, the Law Society has developed a set of procedures for handling complaints against solicitors.  The procedures are summarized in a document titled “Notes to Parties to a Complaint” published on the Law Society’s website, the relevant provisions of which state as follows:

“1 The Role of the Conduct Section of The Law Society of Hong Kong (‘The Law Society’) is to:

(i) investigate complaints of professional misconduct against

(a) a solicitors’ firm or a foreign firm;

(b) a solicitor or a registered foreign lawyer; or

…

(ii) facilitate the adjudication of complaints by an Investigation Committee and the Standing Committee on Compliance.

4 Complainant should:

(iv) send the Complaint Form together with copies of all relevant documents to the Conduct Section …;

(x) note that reports to an Investigation Committee and the Standing Committee on Compliance will not be disclosed.

5 Upon receipt of a complaint

(i) based on the information and documents provided by the complainant, the Conduct Section will conduct relevant searches from the public registry (if applicable) and review the relevant rules (if any), principles (if any), circulars (if any), policies (if any) and guidelines (if any) governing professional conduct in order to decide whether the complaint involves a prima facie case of professional misconduct and the appropriate way to handle the complaint;

(ii) if a complaint involves an assessment of costs or a negligence claim or a criminal allegation or a request for legal advice or a complaint against a barrister, a Notary Public, Legal Aid Counsel, Duty Lawyer, China Appointed Attesting Officer etc, the Conduct Section may, in appropriate cases, advise the complainant to refer the complaint to the relevant authority or organization or government body for their investigation and/or handling, and inform the Complainant to refer the matter back to The Law Society if there is pertinent observation from the above bodies upon conclusion of their investigation or decision. In some cases, The Law Society may refer the complaint to the relevant authority organization or government body for their investigation;

(iii) if a complaint does not reveal a prima facie case of professional misconduct but the complainant is not satisfied with the services provided by the respondent, the Conduct Section may, if applicable, advise the parties to resolve the complaints amicably between themselves. Where the parties succeeded in resolving the disputes amongst themselves, the complaint file can be closed without reference to an Investigation Committee. The Standing Committee on Compliance will be informed of the files closed in this way although it may, at its own discretion, call for more information and require an investigation to be conducted;

(iv) if a complainant is not satisfied with The Law Society’s reply (as referred to paragraph 5(ii) above) or he cannot resolve the dispute with the respondent (as in paragraph 5(iii) above), and insists on The Law Society investigating the complaint, the Conduct Section may obtain background information about the complaint from the respondent in order to maintain the independence and impartiality of its investigatory role. Subject to the respondent’s reply (if any), a report will be prepared to an Investigation Committee to decide whether the investigation should be proceeded or no action will be taken by The Law Society;

(v) if the complaint reveals a prima facie case of professional misconduct, the Conduct Section will write to the respondent and send him a copy of the completed Complaint Form together with copies of all documents provided by the complainant (if any) and seek an explanation from the respondent;

(vi) a complainant will be given the opportunity to comment upon the respondent’s explanation. If additional information or allegation is contained or raised in the complainant’s written comments, the respondent will be given an opportunity to make representations. Further correspondence may ensure that sufficient information is gathered;

(vii) from the gathered information and documents, a report will be prepared for consideration by an Investigation Committee;

(viii) sanctions, which can be imposed by The Law Society, are the issue of a letter of regret or a letter of disapproval to respondents;

(ix) in appropriate cases, the Standing Committee on Compliance will refer a matter to the Convenor of the Solicitors Disciplinary Tribunal with a view to appointing a Solicitors Disciplinary Tribunal (‘Tribunal’). A Tribunal has the power (inter alia) to order payment of fines or to censure, suspend or strike a solicitor’s name off the roll.

7 Investigation Committees

(i) are ad-hoc committees of the Standing Committee on Compliance;

(ii) are made up of practising solicitors and are not members of the Law Society Secretariat;

(iii) are not performing a judicial function (on this basis, no reason will be given for their decisions);

(iv) consider reports submitted to them by the Conduct Section together with the Complaint Form and all relevant documents and information provided by the parties;

(v) consider and decide on complaints.

8 Standing Committee on Compliance

(i) its powers are delegated by the Council of The Law Society;

(ii) is made up of practising solicitors who are not members of the Law Society Secretariat;

(iv) considers of its own motion or upon recommendations from an Investigation Committee for submission of matters to the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel;

(vi) oversees the work and considers all requests for review of decisions of the Investigation Committees.

9 Review

Either party to a complaint may seek a review of the decision of an Investigation Committee by referring the matter to the Standing Committee on Compliance.”

25.  The aforesaid procedures of the Law Society for handling complaints against solicitors are self-explanatory.  For the purpose of the present discussion, I should add these:

(1)  Each IC is made up of 3 persons who are selected on ad hoc basis from members of the SCC according to their experience, specialism and language skills.  At any given time, there may be a number of different ICs considering different complaints and reports prepared by the Conduct Section.  As a matter of policy, the Law Society does not disclose the identities of the members of an IC to the public or to the parties to a complaint.

(2)  The SCC is one of the six Standing Committees of the Law Society and comprises 19 practising solicitors (9 Council members and 10 non-Council members).

(3)  When reviewing an IC decision, the SCC considers the matter afresh and determines whether, in its view, there is a case of professional misconduct on the part of the respondent and what action should be taken.

(ii)     Referral to the Tribunal Convenor

26.  Under s 9(1), the Chief Justice shall appoint a Solicitors Disciplinary Tribunal Panel consisting of not more than 120 practising solicitors of at least 10 years’ standing, not more than 10 foreign lawyers and not more than 60 lay persons who are not connected in any way with the practice of law.  Under s 9(4), the Chief Justice shall appoint a solicitor as the Tribunal Convenor.

27.  If the SCC considers that there is sufficient evidence of professional misconduct which should be inquired into or investigated, the relevant complaint would be submitted to the Tribunal Convenor pursuant to s 9A(1), which states as follows:

“Where the Council considers that the conduct of a person who is, or was at the relevant time, a solicitor, a foreign lawyer, a trainee solicitor or an employee of a solicitor or foreign lawyer should be inquired into or investigated as a result of a complaint being made to it or otherwise, the Council shall submit the matter to the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel.”

28.  After a complaint has been submitted to the Tribunal Convenor, the disciplinary procedures which follow are prescribed in ss 9-13A, and the Solicitors Disciplinary Tribunal Proceedings Rules, Cap 159C.

(iii)    Referral by the Chief Judge

29.  If the SCC decides not to submit a complaint to the Tribunal Convenor, any party who is dissatisfied with the SCC’s decision may apply to the Chief Judge for the complaint to be referred to the Tribunal Convenor under s 9A(2), which states as follows:

“Where a complaint is made to the Council and the Council does not submit a matter to the Tribunal Convenor under subsection (1) within 6 months after receiving the complaint the Chief Judge may, on application by any person or on his own initiative, submit the matter to the Tribunal Convenor if he considers that the Council ought to have done so.”[3]

ALTERNATIVE REMEDIES

30.  It is well established that, generally speaking, an applicant for judicial review must first exhaust alternative remedies before seeking judicial review.  It is only in “extraordinary or highly exceptional circumstances” that the court will allow a departure from this general rule (Stock Exchange of Hong Kong v New World Development (2006) 9 HKCFAR 234, at §115).

31.  As rightly submitted by Mr Melwani, an application to the Chief Judge for a referral of the Complaint to the Tribunal Convenor is an alternative remedy open to the Applicant in the present case.  Although the Applicant’s complaint in the present application for judicial review is the failure of the Law Society to give reasons for the IC Decision/SCC Decision, it is obvious that the Applicant’s ultimate objective is not merely to obtain the reasons for those decisions, but to pursue the Complaint against Ms Choi and the Firm.

32.  The Applicant argues that the Law Society did not inform him at all of the availability of redress to the Chief Judge[4].  However, the provision of s 9A(2) was expressly drawn to the Applicant’s attention by the Law Society on 18 September 2020 (see §17(2) above).  Indeed, the Applicant himself made reference to s 9A(2) in his letter to the Law Society dated 22 September 2020.

33.  The Applicant also argues that he requires the reasons to support his further action to refer the Complaint to the Chief Judge. It would appear, however, from the general language of s 9A(2) that the exercise of the power by the Chief Judge to submit a complaint to the Tribunal Convenor is not in any way constrained by the decision of the SCC.  The Chief Judge is not sitting as an appeal court from the decision of the SCC[5], or confined to a review of the SCC’s decision based on judicial review grounds.  He is entitled to consider the matter afresh, and may request for such assistance from the complainant and/or the Law Society, whether on facts and/or on law, as he may consider necessary for a proper consideration of the application.  I do not consider that the Applicant requires the reasons for the SCC Decision before he can make an application to the Chief Judge under s 9A(2).

34.  There are no exceptional circumstances which would justify the Applicant’s failure to exhaust the alternative remedy under s 9A(2) prior to seeking leave to apply for judicial review.  On this ground alone, I would refuse to grant leave to apply for judicial review.

DELAY

35.  Under Order 53, r 4(1) of the Rules of the High Court, Cap 4A, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

36.  In this case, the Law Society’s refusal to provide reasons for the IC Decision was conveyed to the Applicant on 18 April 2019, and the SCC Decision on 27 August 2020 or, at the latest, on 10 October 2020.  The application for leave to apply for judicial review was not made until 1 February 2021.  In respect of the IC Decision, the Applicant’s delay in making the application was more than 18 months, and in respect of SCC Decision more than 2 months or, at least, 3 weeks.

37.  Where there has been delay in applying for leave to apply for judicial review, the court’s approach in deciding whether to grant an extension of time is well established (see AW v Director of Immigration [2016] 2 HKC 393).  The court should take into account the following non-exhaustive list of factors: (i) length of delay, (ii) explanation for the delay, (iii) merits of the substantive application, (iv) prejudice, and (v) whether any questions of general public importance are raised in the application.

Length of delay

38.  The Applicant’s delay in seeking to review the Law Society’s refusal to provide reasons for the IC Decision (of more than 18 months) is plainly a very long one.  The delay in seeking to review the Law Society’s refusal to provide reasons for the IC Decision (more than 2 months or, at least, 3 weeks) is also a substantial one.

Explanation for the delay

39.  The Applicant has not provided any good explanation for the delay.  He contends that there was no delay because the last letter from the Law Society refusing to provide reasons for the SCC Decision was dated 10 December 2020[6].  However, the fact that the Applicant continued to request the Law Society to give reasons for the SCC Decision after the Law Society’s letter of 10 October 2020, and the Law Society continued to maintain its refusal (including by letter dated 10 December 2020), does not operate to extend the time for making an application for leave to apply for judicial review of the Law Society’s refusal to give reasons for the SCC Decision (see The Incorporated Owners of Tak Fan Lau v The Building Authority [2021] HKCFI 902, at §29).

Merits of substantive application

40.  For the purpose of determining whether an extension of time to apply for leave to apply for judicial review should be granted, it is not necessary for the court to reach a final view on the merits of the substantive application.  All that is required is for the court to form a provisional view on the merits.

41.  As this court pointed out in Wong Wing Wah v Collector of Stamp Revenue [2021] HKCFI 11, at §21, in the context of an out-of-time application for leave to apply for judicial review, it is not sufficient for the applicant to demonstrate merely that the intended application for judicial review is reasonably arguable and has a realistic prospect of success.  That would be the minimum threshold which any applicant for leave to apply for judicial review has to overcome.  It is not, however, possible to lay down a precise standard or threshold in relation to the merits of an intended application for judicial review which an applicant must satisfy or pass before he may be granted an extension of time to apply for leave to apply for judicial review.  The court should look at the matter holistically, and take into account, amongst other things, the nature of the challenge, the questions raised, as well as the length of/explanation for the delay.

42.  The common law has not yet been developed to a position where there is a general duty on the part of an administrative body or tribunal to give reasons for its decision (see Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279, at 289J-299D).  However, the circumstances of a case may imply a duty to give reasons as a matter of fairness and openness (see Dr Ip Kay Lo Vincent v Medical Council of Hong Kong [1998] 4 HKC 257, at 267H-268I; Marta Stefan v General Medical Council [1999] 1 WLR 1293, at 1300F-1301C).  In this case, the Law Society seems to have adopted a blanket approach of refusing to give reasons for decisions made by the IC and SCC.  I do not find many of the reasons given by the Law Society for such blanket approach to be convincing.

(1)  Mr Melwani argues that the IC and SCC are not performing a judicial function, but only carry out investigative functions[7].  I fail to see, however, why the fact that these committees are not performing a judicial function should lead to a general conclusion that they do not have to give reasons for their decisions.  They plainly carry out important functions of significance not only to the respondent solicitors but also to the complainants.  Where the IC or SCC finds the existence of a prima facie case of professional conduct and the matter is referred to the Tribunal Convenor for further action, I can well see why it may not be appropriate for reasons to be given in order not to affect the future decision of the Solicitors Disciplinary Tribunal.  On the other hand, where the IC or SCC finds against the existence of a prima facie case of professional conduct and the matter is not referred to the Tribunal Convenor, the same consideration does not apply.  Whether reasons should be given in such a case must then depend on the facts and circumstances of that case.

(2)  Mr Melwani next argues that requiring reasons to be given by the IC and SCC would impose an unreasonable administrative burden and cause substantial delay[8]. It is pointed out that the IC considers approximately 342 complaints per year while the SCC (which comprises 19 volunteer members) meets 12 times per year and considers an average of 179 (conduct and compliance) agenda items each year.  However, the duty to give reasons for a decision is not an onerous one (Dr Ip Kay Lo Vincent, at 270D-E per Rogers JA).  It has repeatedly been pointed out by the courts that reasons for an administrative decision can be brief and do not have to address every single issue (see, for example, Oriental Daily Publisher Ltd, at 868B-F).  It is part of a solicitor’s everyday job to analyse issues of fact and/or law and write advices on matters which require decisions to be made.  Amongst professionals, one would have thought lawyers should find it least burdensome or onerous to write up proper reasons for decisions.  Having, one assumes, considered a complaint properly and with care, I fail to see why it would be difficult, or disproportionately time consuming, for either the IC or SCC to reduce their reasons for a decision into writing.

(3)  Mr Melwani next argues that the IC (3 members) and SCC (19 members) make their decisions collectively by resolution, and requiring collective reasons to be agreed would be highly impractical[9].  The fact that a decision is made collectively by a committee is common in many different disciplinary processes in Hong Kong, but that has never been suggested to be a good reason for not requiring reasons to be given by those disciplinary committees for their decisions (and quite rightly so).  I also do not see why it would be “highly impractical” for collective reasons to be agreed.  In reality, a committee which makes a decision on a collective basis would assign a member (or advisor) to prepare draft reasons for circulation and comment by the rest of the members.  I am not convinced that, in the vast majority of cases, it would not be possible for the committee to agree on a final form of the reasons for decision.  In the odd cases where agreement cannot be reached, I see no reason why the “concurring” member(s) (but for different reasons) or “dissenting” member(s) of the committee may not give separate reasons for the decision.

(4)  Lastly, Mr Melwani says that it is unreasonable to require the SCC (or IC) to explain why a claim is unsubstantiated, given that these complaints are often due to an absence of evidence[10].  This submission is an assertion without substance.  Tribunals (and courts) often give written reasons to explain why a complaint or claim is unsubstantiated due to lack of evidence.  I see nothing inherently unreasonable to require such reasons to be given.

43.  On the other hand, I accept the Law Society’s submission that the IC may generally not be required to give reasons for its decisions since they are subject to review de novo by the SCC[11].  It is less clear whether the same reasoning can apply to the SCC, bearing in mind that an application to the Chief Judge to refer a complaint to the Tribunal Convenor under s 9A(2) is a separate and independent process from the Law Society’s internal complaint handling process.  The answer to this question depends, to an extent, on whether the Chief Judge is required or expected to give reasons for its decisions in such applications.  Since I have not heard full submissions on whether the Chief Judge is under any duty to give reasons for his decisions under s 9A(2) and, as earlier mentioned, it is not necessary to reach a final view on the substantive merits of the intended application for judicial review when considering the question of time extension, I do not propose to deal with this matter any further.

44.  Overall, subject to the aforesaid objection (which I have upheld) that the Applicant has failed to exhaust alternative remedy, I consider the Applicant’s intended judicial review of the Law Society’s refusal to give reasons for the SCC Decision to be reasonably arguable, and has a realistic prospect of success.  The merits of the intended application are not, however, so strong that they should automatically override the other factors for determining whether an extension of time should be granted in this case.

Prejudice

45.  I do not consider prejudice to be an important factor in the present case.  It has not been demonstrated by the Law Society that it would suffer any substantial prejudice or hardship, or it would be detrimental to its good administration of the complaint process, should the court grant an extension of time to the Applicant to apply for leave to apply for judicial review in this case.  On the other hand, as earlier noted, the Applicant is not left without remedy should the court refuse to grant an extension of time, since he is still able to apply to the Chief Judge to refer the Complaint to the Tribunal Convenor under s 9A(2).

Questions of general public importance

46.  The question of whether the SCC ought to give reasons for its decisions is, I accept, a question of some general importance. However, I do not consider this to be an appropriate case for this question to be resolved, not least because the court has not had the benefit of considering full legal submissions from the Applicant, who is acting in person in these proceedings.  In theory, the court could appoint an amicus curiae to assist on this issue.  However, since the court has come to the view that the application for leave to apply for judicial review should be refused due to the Applicant’s failure to exhaust alternative remedy, it would not, I consider, be justifiable to appoint an amicus curiae to deal with what, in the end, would be a hypothetical issue.

47.  Balancing all relevant factors, I am not prepared to extend time for the Applicant to make the present application for leave to apply for judicial review.

48.  In passing, I should mention that I do not accept the Law Society’s submission that the application for leave to apply for judicial review and/or the substantive application for judicial review should be refused because there is no public utility in further considering the Complaint[12]. It is, however, not necessary to dwell on this issue, or the Law Society’s further submission that the Applicant has not suffered any prejudice due to the failure of the Law Society to give reasons for the IC/SCC Decisions, having come to the conclusion that leave to apply for judicial review should be refused.

DISPOSITION

49.  The application for leave to apply for judicial review is dismissed.

50.  The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at paragraph 17), and do not have to be repeated here.  I consider that the Applicant should pay the costs of the Law Society in this case, because (i) the Law Society filed evidence and attended the inter-partes rolled-up hearing pursuant to the court’s directions, and has provided substantial and helpful assistance to the court; (ii) the Applicant has failed to exhaust alternative remedy, and (iii) the Applicant has substantially delayed in making the present application.  I make an order that the Applicant shall pay the Law Society’s costs of this application, including the costs of the hearing on 14 September 2021 and all reserved costs (if any).

51.  I have considered the Law Society’s Statement of Costs dated 14 September 2021, and the Applicant’s Submissions on Costs dated 21 September 2021.  The costs claimed by the Law Society, in the total amount of HK$818,420, seems to me to be excessive.  Leaving aside Mr Melwani’s acceptance that there should be a reduction of the costs of attending the hearing on 14 September 2021, which lasted for about 2 hours (although it was scheduled for a full day hearing), the total time spent on preparation of documents (147.2 hours, equivalent to 18.4 working days assuming 8 hours of work per day, amongst 3 fee earners) and the total time spent on preparation for the hearing (46.7 hours, equivalent to about 5.8 working days assuming 8 hours of work per day, amongst 2 fee earners) are, I consider grossly excessive.  In relation to the time spent on preparation for the hearing, save in exceptional circumstances, a solicitor advocate (like a barrister appearing without a junior) may generally be expected to prepare for the hearing himself/herself.  The cost of preparation for the hearing should be assessed based on the reasonable daily (or hourly) rate of a reasonably competent solicitor advocate and the time reasonably required for a proper preparation of the hearing.  I leave for future consideration whether the same or similar approach should be applied in the assessment of counsel’s brief fee.  In the present case, I consider that a thorough preparation for the hearing, including drafting skeleton submissions, should not have taken more than 3 days (at the highest).  The facts and the law in this case are not complicated, and the papers are not voluminous (the hearing bundles consist of 1 bundle of court documents and 2 bundles of exhibits).  I summarily assess the Law Society’s costs at HK$400,000.

[1] See §12 of the Skeleton Argument of the Law Society of Hong Kong dated 8 September 2021.

[2] See §18 of the Affidavit of Tung Margot Yin Ka, Director of the Compliance Department of the Law Society, filed on 20 May 2021.

[3] This power of referral was exercised by the Chief Justice (whose function was taken over by the Chief Judge in 2002) in Philippe Frederic Delhaise v The Law Society of Hong Kong, HCAL 143/2007 (unreported, 29 July 2008), §4.

[4] See §12 of the Applicant’s Skeleton Submissions dated 2 September 2021.

[5] A duty to give reasons may more readily been implied where a person charged with a disciplinary offence has a right of appeal (see Tong Pon-wah v Hong Kong Society of Accountants [1998] 3 HKC 82, at 94B-C, per Godfrey JA).

[6] See §25 of the Applicant’s Skeleton Submissions.

[7] See §26.1 of the Skeleton Argument of the Law Society.

[8] See §26.2 of the Skeleton Argument of the Law Society.

[9] See §26.3 of the Skeleton Argument of the Law Society.

[10] See §26.7 of the Skeleton Argument of the Law Society.

[11] See §26.4 of the Skeleton Argument of the Law Society.

[12] See Section B of the Skeleton Argument of the Law Society.