A SOLICITOR v. THE LAW SOCIETY OF HONG KONG

Civil Appeal No. 172 of 1995

Headnote

Appeal from the Solicitors Disciplinary Tribunal:

(1) Application to admit fresh evidence solely on credit refused. The second test in Ladd v Marshall is to be applied strictly to fresh evidence on credit. Necessary to show that faced with the new evidence on credit the Tribunal could not reasonably have acted on the impugned witness' evidence. Braddock v Tillotson's Newspapers Ld [1950] 1 KB 47 followed.

(2) Section 10(2)(ba) of Legal Practitioners Ordinance, Cap 159 which came into force on 30 April 1993 is not retrospective. A Solicitor v the Law Society of Hong Kong [1995] 2 HKC 541 was not decided per incuriam, is binding on this Court and cannot be distinguished.

(3) Importance of stare decisis for the certainty of the law.

IN THE COURT OF APPEAL

1995, No. 172
(Civil)

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J U D G M E N T

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Mortimer, J.A.:

1. On 10 July 1995 the Solicitors Disciplinary Tribunal found the appellant guilty of two charges of conduct unbefitting a solicitor. They were charges 2 and 4. Charge 2 reads:

"that [he was] guilty of conduct unbefitting a solicitor in that during the period April 1988 to April 1991, he disregarded, or seriously neglected, his professional duty to Miss Cecilia Young in failing to proceed with the divorce petition which he presented to the Court on behalf of [that lady] in April 1988;"

The 4th charge reads:

"that [he was] guilty of conduct unbefitting a solicitor in that, in about January 1991, he lied to Mrs. Pang that application for bail by her husband, Mr. Pang Chi Chuen, who had been convicted in the District Court of obtaining property by deception and whom he acted for, would be heard on 29th January 1991 and Mr. Pang's appeal against such conviction would be heard on 11th February 1991."

2. On 13 July the Tribunal ordered that on the 2nd charge the appellant should be censored. He should pay a fine of $100,000 and that he should return to Miss Cecilia Young the $2,000 paid by her. In respect of the 4th charge it was ordered that he be suspended from practice for 12 months and after the suspension period, that he should practice only in employment as a solicitor, and not as a partner or sole proprietor for a period of 18 months, and that he should pay a fine of $100,000. There were consequential orders for costs and a stay pending this appeal.

The appeal

3. He appeals against the finding of guilty on the 4th charge. Failing which, he appeals against the penalties imposed. He also appeals against the sentence on the 2nd charge.

The background

4. On the 4th charge, the facts in outline leading to the offence were that a Mr Pang was convicted in District Court in 2 November 1990 of obtaining property by deception. He was sentenced to 18 months imprisonment. He was dissatisfied with the solicitor who had represented him but not with counsel. He asked his wife to find another solicitor to represent him on appeal and undertake it. Through her husband's employer, a Mr Lo, the wife made contact with the appellant. A meeting was arranged with her husband's counsel on 12 November to take advice about an appeal. This advice was given in English. Conflicts later arose about how much of counsel's advice was translated to Mrs Pang and how much in any event she understood. The appellant's case was that counsel advised that there were no grounds for appeal against either conviction or sentence. But it is not in dispute that thereafter on 15 November, a wholly misconceived application for a review of the case was undertaken by the appellant in an application to the District Court - nor apparently is it in dispute that both Mrs Pang and the appellant erroneously understood that the time for appealing against the conviction was 14 days.

5. On 11 December, the District Court informed the appellant that it had no power to review. But by this time the time for the lodging of Mr Pang's appeal had passed.

6. There is no doubt, however, that Mrs Pang's determination to pursue an appeal on her husband's behalf never wavered. Her account of her dealings with the appellant and the account given by the appellant himself wholly differed. She describes extraordinary behaviour and advice from the solicitor in considerable circumstantial detail. He denies much of this. Eventually she sought other advice and, having been unable to contact the appellant by phone, went to see him to ask about the progress of the case. When she did so, she was told that a bail application on behalf of her husband would be heard on 29 January 1991 and his appeal against conviction would be heard on 11 February 1991. She asked the appellant to write down those dates in case she forgot them. In evidence, she produced - a note admittedly from the appellant's professional notepad - in Chinese characters which she said was written by the appellant. All this the appellant flatly denies. As Mrs Pang discovered when she checked with the Supreme Court Registry no such dates were reserved. The charge relates only to the lies spoken and recorded on that note.

7. The appellant's case was that Mrs Pang's evidence was a pack of lies designed to establish good grounds for her husband to obtain leave to appeal against his convictions out of time. It is a matter of record that a full account of the facts relating to the charge was on affidavit in those proceedings - eventually put before the Disciplinary Tribunal - at the very latest by June 1991.

8. As a matter of interest, on the same basis, Mr Pang obtained leave to appeal out of time and after some delay, his conviction and sentence were quashed. The appellant was not reported to the Law Society by the Pangs but by this Court when it heard Mr Pang's appeal.

Applications to admit further evidence

9. At the outset of this hearing, we heard two applications by Mr Gilbert Rodway QC (for the appellant) for leave to admit further evidence. We refused both for which I now give reasons.

10. The first was to admit the evidence of Mr Lo, Mr Pang's former employer. He was not called at the hearing. He was in Thailand. His evidence would relate solely to Mrs Pang's credibility. Mainly but not exclusively, it would, if believed, contradict Mrs Pang's account of the conference with counsel and the interpretation of this to her and therefore her understanding of it. The aim is to damage her credibility on this part of her evidence so as to make her evidence on the facts of the charge less acceptable. The three tests formulated in Ladd v Marshall [1954] 1 WLR 1489 for leave to introduce evidence on appeal are well known. Here, it was submitted, that they are met.

11. I turn to the first test. This evidence would have been available at the beginning if the whereabouts of Mr Lo in Thailand had been known or discovered. Could this evidence have been obtained by reasonable diligence? The appellant says that he tried to find this witness by making phone calls on numbers on Mr Lo's visiting card but he was unable to contact the witness. He discovered the business which he had been conducting had closed and he was not at that number. There, his inquiries substantially ended. He did nothing more. Yet, there were obvious avenues of inquiry through Mr and Mrs Pang. If he had been reluctant to contact them direct - although he does not say in his affidavit that this was the position - he could have contacted them through the Law Society and obtained their assistance.

12. For my part, I would refuse this application on this ground. It seems to me that this evidence could have been obtained by reasonable diligence. But in any event, the application fails also on much clearer grounds.

13. When the evidence sought to be admitted goes to credit only, the threshold in the second test in Ladd v Marshall is much more strict than in other cases. It is necessary to show, not only that the evidence would have an important influence on the result, but that faced with this evidence, the Tribunal could not reasonably have acted upon Mrs Pang's evidence on the facts of the charge so as to convict. See Braddock v Tillotson's Newspapers Ld [1950] 1 KB 47. With reference to the admission of fresh evidence going to credit, Tucker LJ said at p.53:

"If, however, this court is to depart from its invariable practice of confining such evidence to the relevant issues and is to admit fresh evidence directed solely to credit, I am of the opinion that such a course would, if ever, only be justified where the evidence is of such a nature and the circumstances of the case are such that no reasonable jury could be expected to act upon the evidence of the witness whose character had been called in question. It would, in my view, be wrong for this court to admit fresh evidence directed solely to credit, merely because there is a possibility or merely a reasonable probability, that such evidence would result in a different verdict."

14. I am conscious that this amounts to a rule that fresh evidence on credit will only be admitted if it is conclusive of the appeal in the appellant's favour. I am satisfied that this will be the usual case, but I should add, that I would not rule out the admission of fresh evidence on credit in a wholly exceptional case where the evidence came so near to being conclusive that justice would require a new trial to be ordered. That should be left for future consideration by the court.

15. Returning to this case, it is impossible to say what effect if any the evidence would have had upon the result of this trial or what view the Tribunal would have taken had this evidence been available. The evidence does not come near to demonstrating that, in the light of it, no reasonable Tribunal could have acted upon Mrs Pang's evidence.

16. These are my reasons for refusing the first application.

17. By a second application, the appellant seeks to put in a document. It is the written opinion of counsel who is said to have given advice orally on 12 November 1990. The written opinion is dated 6 May 1991. No reference is made in it to the conference or the oral advice given earlier. Evidence from this counsel about the conference and the oral advice he tendered would have been admissible in these proceedings. His written advice of the 6 May 1991 is not admissible. This application, it seemed to me, was one which had to fail on that basis. It was misconceived.

The issues on appeal

18. I turn to the appeal itself. In doing so, I mean no discourtesy by dealing with the issues briefly. Mr Rodway has put before us all that could be advanced on the appellant's behalf with commendable firmness. But he faced a difficult task.

19. He takes three points:

(1) He says that Mrs Pang's evidence was so inherently improbable, and at times she prevaricated so much, that no reasonable tribunal could have accepted her evidence against that of the appellant. Therefore, the verdict of the Tribunal was perverse.

(2) He submits that it is incumbent upon the Tribunal to give reasons. The reasons given were inadequate because they failed to evaluate fully Mrs Pang's and the appellant's evidence. Particularly when it did not accept all of her evidence but only believed her "on the whole", and when it did not believe the appellant "in relation to the charge".

(3) Finally and importantly - Mr Rodway submits that the Tribunal did not apply the correct standard of proof because it said in its findings that the charge had been proved "to the satisfaction of the Tribunal".

The first submission

20. As to the first ground, Mr Rodway helpfully took us through some of the evidence. Mrs Pang undoubtedly described bizarre, strange and incompetent behaviour on the appellant's part. At times, it also appears in the transcript that she did not answer in a straightforward way - she may even have avoided or dodged some questions. The appellant's evidence on the transcript appears unremarkable. But Mrs Pang's evidence was supported by the contemporaneous note, if it was accepted.

21. This is not a case where the finding of the Tribunal is invalidated by some uncontroversial piece of evidence which demonstrates that its finding was wrong, nor is there any indication that it failed to accept its advantage of hearing, seeing and evaluating the witnesses. This is an advantage which this Court does not have. A re-trial of the issues of fact on a transcript, or an assessment of a witness on a transcript, is fraught with danger. It must never be undertaken unless it is clearly necessary and is shown that the finding of the Tribunal was wrong or perverse by evidence or other means. This is not shown in this case.

22. For my part, I would reject this ground although it has to be considered with the other grounds. I do not neglect to do so.

The second submission

23. The reasons given by the Tribunal were short. They read:

"The charge against the Respondent was not in relation to his general handling of the case or his general conduct in relation thereto but in respect of a particular incident when he lied to Mrs Pang. On the whole the Tribunal believed the evidence of Mrs Pang in particular in relation to the document in evidence (exhibit P3 Bundle page 70) which is a small piece of note paper which, as the Respondent admitted, appeared to have come from one of his note pads containing a clear statement in Chinese 'the date of appeal 11th February 1991 and application for bail 29th January 1991 to 2.30' as written by the Respondent. The Tribunal did not believe the evidence of the Respondent given in relation to the charge."

For the purposes of this case it is accepted that brief reasons were required. Reasons were given. They were brief. In a nutshell they were that on the facts of the charge the Tribunal accepted Mrs Pang and rejected the appellant, making particular reference to the contemporaneous document. It suffices to say, that when given by a disciplinary body with professional members, the reasons were short, to the point and adequate. They are not open to criticism in spite of the seriousness of the charge.

The third submission

24. I turn finally to the submission on the standard of proof. There is no indication in the reasons that the wrong standard was applied. I cannot accept this professional tribunal applied anything but the proper standard of proof. There is no dispute as to the standard. It does not require repetition either here or in the Tribunal's reasons. In another context, it has been said by this Court that a professional judge does not have to spell out trite propositions of law each time he sets out his reasons for his decision. For my part, I echo that. The same applies to this disciplinary body.

25. I would dismiss the appeal against the finding of guilt on the 2nd charge.

The Law Society's submission that s.10(2)(ba) is retrospective

26. It is conceded by Mr Thong that the "fines" imposed were over the statutory maximum in force at the time of the offences. Section 10 of the Legal Practitioners Ordinance, Cap 159 was amended by No. 61 of 1992 on 9 July 1992. The amendments did not come into effect until 30 April 1993, after the commission of these offences. At the time of the offences, the maximum financial penalty which could be imposed under s.10(2)(c) was $50,000. This was increased by the amendment to $500,000.

27. I will return to that point when I come to deal with the sentences themselves.

28. At the same time the powers of the Tribunal were amended in other respects - in particular by the new sub-section (ba) which reads:

"10(2) ... a Solicitors Disciplinary Tribunal shall have power to make such order as it thinks fit and any such order may, in particular, include provision for all or any of the following matters -

(a) ...

(b) ...

(ba) permitting the solicitor to continue practice, but subject to conditions which may be imposed for up to 3 years;"

The power was extended to permit a solicitor to continue practice but subject to conditions which could be imposed for up to 3 years. In A Solicitor v the Law Society of Hong Kong [1995] 2 HKC 541 this Court decided that this provision in s.10(2)(ba) as well as the amended provision in s.10(2)(c) were retrospective in their effect and that for offences which occurred before the amendments came into force, the Tribunal had no powers under them.

29. In spite of that, Mr Thong seeks to argue that the decision was per incuriam. The reason he advances is that on the question of interpretation of the legislation and whether it was intended to have retrospective effect, L'Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1993] 3 WLR 266 in the English Court of Appeal was cited, whereas by that time that decision had been reversed by the House of Lords and reported in 1994 2 WLR 39. This report became available shortly after 7 January 1994 and long before A Solicitor v the Law Society of Hong Kong (above) was heard. The reasons why the House of Lords decision was not cited to the Court are unknown and, for my part, I say no more about it.

30. Mr Thong argues that because that House of Lords decision was not cited, the earlier decision of this Court was per incuriam. However, two members of the earlier court, who I have the good fortune to sit with today, made it absolutely clear in their reasons that even if the House of Lords decision had been cited, it would have made no difference to their conclusion. Indeed, the reasoning they then adopted is entirely consistent with the speech of Lord Mustill in the House of Lords. For my part, I am satisfied, therefore, that the earlier decision of this Court was not per incuriam -although I confess that I would have been attracted by the argument that the provision under s.10(2)(ba), which grants power to permit a solicitor to continue practice subject to conditions, could be construed as an ameliorating power. That is as an alternative to ordering suspension seen from the point of the view of a guilty solicitor. It is open, therefore, to the interpretation that it was intended to have retrospective effect on the basis that far from being unfair to the solicitor, it was a fair provision which enabled the Tribunal to permit a solicitor to continue in practice in circumstances where otherwise he may have been suspended.

31. However, having come to this conclusion, the principle of stare decisis is so important for the certainty of the law, that I would hold that this Court is bound by its earlier decision and I am satisfied that it cannot be distinguished.

32. It follows that the appeal against sentence must be approached on the basis that the Tribunal did not have power to impose a condition on the appellant under s.10(2)(ba) and that the maximum financial penalty was $50,000.

The appeal against "sentence"

33. Turning to the charges themselves, obviously charge 2 is less serious than charge 4. Charge 4, it seems to me, is a very serious charge although no monetary gain was involved. I am satisfied that there was no obvious motive save perhaps to cover erroneous decisions and to hide inaction for which the solicitor was responsible. But lying, even for these purposes, by a professional adviser who is trusted by those who must rely on his advice for assistance is very serious. Fortunately in this particular case, serious injustice was avoided but that in itself was a matter of chance. It may have caused injustice but it did not. So far as this type of order is concerned, as this Court has said on many previous occasions, it will not interfere unless the penalty imposed is wholly disproportionate to the offence or obviously unjust or quite out of kilter with the usual penalties imposed. The Law Society is charged with governing the affairs of the profession and those who sit on this Tribunal are in a much better position to assess the penalty than this Court.

34. We are invited to impose a fine which is 20% of the maximum, on the basis that that is what the Tribunal did in imposing the $100,000. With respect, this arithmetic approach to a maximum is incorrect. A court must seek to assess a penalty which does justice within its powers.

35. Trying to do this as best as I can, I would propose that the fine on charge 2 be reduced from $100,000 to $30,000 but otherwise the order should stand. So far as charge 4 is concerned, I would remove the condition imposed under s.10(2)(ba) and reduce the fine from $100,000 to $35,000 - a very small fine in the particular circumstances. No proper grounds have been advanced upon which we can interfere with the suspension which I recognise is a very severe punishment but one which was imposed by the Tribunal and which in all the circumstances we cannot say was wrong. In those circumstances I would propose the penalties are varied accordingly.

Godfrey JA:

36. Before 1992, the penal powers of a Solicitors Disciplinary Tribunal under the Legal Practitioners Ordinance, Cap.159 included a power to strike a solicitor off the roll of solicitors and a power to suspend the solicitor from practice for such a period as the Tribunal should think fit : see s.10(2)(a) and (b).

37. In 1992, an amendment to the Ordinance conferred upon such a Tribunal a power to permit the solicitor to continue practice, but subject to conditions which might be imposed for up to 3 years : see the new s.10(2)(ba).

38. Is this new power different in nature from the other penal powers provided for in the Ordinance? The new power is a beneficent power, enabling a course of lesser gravity to be taken, in relation to the solicitor, than either striking him off the roll or suspending him from practice. If it had been argued by the Law Society in A solicitor v. The Law Society of Hong Kong [1995] 2 HKC 541 that the new power was, therefore, not a penal power at all (as it has been argued today) I might have expressed myself differently from the way in which I did express myself in my judgment in that case. But it was not so argued and it does not matter anyway, since the court in that case clearly regarded the new power as a penal power. In order to preserve what Mortimer, J.A. has called elsewhere the "integrity" of our system, we must treat that case as binding upon us in determining this appeal.

39. There was placed before us in that case only the decision of the Court of Appeal in the L'Office Cherifien case to which Mortimer, J.A. has referred. But that does not matter either. Although the approach of the Court of Appeal to the problem before it was not adopted by the House of Lords (Lord Mustill plainly thought that all that needed to be done was simply to refer to one's sense of fairness and common-sense in deciding whether the intention of the legislature had been that a new statutory provision should take effect retrospectively or not) this court did in fact approach the matter in the way indicated by Lord Mustill (see, in particular, the judgment of Liu, J.A.). Further, although the case was overruled in the House of Lords, it was overruled only on the particular facts of that case. Their Lordships (unlike the Court of Appeal) were of the opinion that the new power was one which the legislature would have intended to have retrospective effect, i.e., applicable to acts or omissions which had taken place before it came into force, and not prospective effect only.

40. For these reasons, I agree with Mortimer, J.A. that we cannot accept the argument advanced by the Law Society as to the authority of the case of A solicitor v. The Law Society of Hong Kong (above). I agree with him on the rest of this appeal too and there is nothing further I would wish to add.

Liu, J.A.:

41. For the reasons given by my Lord Mortimer, J.A., I agree with the conclusions he has reached and the orders he proposes to make. I merely wish to make an observation or two on the House of Lords case.

42. In a Solicitor v. Law Society of Hong Kong, [1995] 2 HKC 541, counsel for the Law Society submitted that even before the introduction of the new paragraph (ba), the Solicitors Disciplinary Tribunal which was then enabled by s.10(2) of the Legal Practitioners Ordinance "to make such order as it (thought) fit", had been vested with the power to order the same conditions for allowing a solicitor to continue to practise. To me, the language of s.10(2) seemed less than clear to bring about the contended effect of counsel. It seemed also unclear whether the new paragraph (ba) was intended to have retrospective effect. In that appeal, the case of L'Office Cherifien Des Phosphates and Another v. Yamashita Shinnihon Steamship Co. Ltd., [1994] 1 A.C. 486 as decided in their Lordships' House was not cited to this court, differently constituted. For the fine arguments adumbrated before us, the thitherto complacency of members of the Law Society in accepting the imposed conditions, the arguably open-ended language of s.10(2) and more particularly, the judicial focus on legislative hesitance about altering the law applicable to past events and transactions in a manner which is unfair to those concerned in them, my conclusion in the other appeal was thought best supported by what seemed to me to be the unfairness in exposing the solicitor to the serious sanction of a doubtful law. In my endeavours, I chose to apply a test close to that formulated by Lord Mustill in Cherifien v. Yamashita when he said that "the basis of the rule is no more than simple fairness, which ought to be the basis of every legal rule." See Cherifien v. Yamashita, supra. p. 524 A/B. Indeed, in his speech Lord Mustill advised that it was all "a single indivisible question" comprising varying factors, different in different cases, which is to be decided by "no more than common sense" and "to be answered largely as a matter of impression". p. 525 H & B/C.

43. The harsh conditions exactable from a solicitor under paragraph (ba) are highly detrimental to his practice. The greater the hardship or unfairness inflicted by reference to the suggested degree of retrospectivity, "the more it is to be expected that (our legislature) will make it clear if that is intended". See Secretary of State for Social Security v. Turnicliffe [1991] 2 AER 712 at p. 724 f/g, per Staughton L.J., as cited with approval by Lord Mustill in Cherifien v. Yamashita, supra. p. 525 E - F. Paragraph (ba) confers a new power which is not a derivative of the existing power to strike off or to suspend in paragraphs (a) and (b). On any view, the adverse effect of the imposition of these paragraph (ba) conditions on the "practical value and nature of the (appellant's) right" to practise freely is such that the unfairness of taking away that right by a provision which came into force after the event, can only be justified by a very clear intention of retrospectivity which I am unable to find in s.10(2)(ba). What I said in the other appeal does not seem to be inconsistent with Lord Mustill's rationale in Cherifien v. Yamashita. For the reasons I have given, s.10(2) can take the matter no further. The Solicitors Disciplinary Tribunal has no power to impose the conditions.