A SOLICITOR v. THE LAW SOCIETY OF HONG KONG

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J U D G M E N T

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Chief Justice Li :

1.   I agree with the judgment of Mr Justice Bokhary PJ.  The standard of proof for disciplinary proceedings in Hong Kong should be the civil standard.  The proper approach to its application is explained in his judgment.

2.   This appeal raises the question of the extent to which the Court of Appeal may depart from its previous decisions.  That Court occupies a central position in our judicial system.  The question of the extent of its freedom to depart from its previous decisions is an important question relating to the operation of the doctrine of stare decisis[1] which is part of the wider doctrine of precedent[2].

3.   In granting leave to appeal, the Court of Appeal formulated the specific question whether it is :

“bound by its own decision(s) when that previous decision(s) was influenced or itself bound by a Privy Council decision(s), which has since been either overtaken and/or developed and/or departed from?”

4.   The question concerning the rule of stare decisis arose in the Court of Appeal in relation to the issue of the applicable standard of proof in solicitors disciplinary proceedings.  The Chief Judge held that the Court of Appeal was bound to apply the civil standard by its previous decisions pursuant to the rule in Young v. Bristol Aeroplane [1944] KB 718 which has been adopted in Hong Kong (para. 41).  He also held that even if he were free to depart from them, he would not have done so (para. 44).  Stock JA accepted the civil standard without any discussion of the rule of stare decisis.  Tang JA (as he then was) held in favour of the criminal standard of proof.  He concluded with some hesitation that the Court of Appeal was free to depart from its previous decisions as they had been based on the Privy Council decision in Bhandari v. Advocates Committee[1956] 1 WLR 1442 which has been departed from by the Privy Council in Campbell v. Hamlet [2005] 3 All ER 1116 (para. 183).

5.   The rule of stare decisis in relation to the Court of Appeal must be considered in the context of the judicial system as a whole.  Before discussing that rule, it is appropriate to address two aspects of the judicial system.  First, the binding effect of decisions of the Judicial Committee of the Privy Council (“the Privy Council”) in Hong Kong both before and after 1 July 1997.  Secondly, the position of the Court of Final Appeal, which replaced the Privy Council as Hong Kong’s final appellate court on 1 July 1997, as regards departure from previous decisions.

Privy Council decisions on Hong Kong appeals

6.   Prior to 1 July 1997, the Privy Council was the final appellate court of Hong Kong. It also functioned as the final appellate court for many other jurisdictions.  In the course of the second half of the 20th century, its role as a final appellate court gradually diminished as a growing number of jurisdictions established their own final appellate courts to replace the Privy Council.  In addition to its role as a final appellate court, the Privy Council was for many years also the appellate court for appeals from disciplinary tribunals for various professions in England and Wales.  Since 2003, except for one profession, the High Court has replaced the Privy Council for dealing with such appeals.

7.   As a matter of principle, the doctrine of precedent only operates as between courts within an hierarchy in the same judicial system.  Thus, under the doctrine, the decision of a final appellate court is binding on the intermediate court of appeal and the lower courts in the same system.  Before 1 July 1997, when the Privy Council entertained an appeal from Hong Kong, it was functioning solely as the final appellate court in and as part of the Hong Kong judicial system.  Its decisions on appeals from Hong Kong were therefore binding on the Court of Appeal and the lower courts in Hong Kong before 1 July 1997. 

8.   The Basic Law enshrines the theme of continuity of the legal system.  Article 8 of the Basic Law[3] provides that the laws previously in force in Hong Kong shall be maintained except for any that contravene the Basic Law and subject to any amendment by the legislature.  This is reinforced by Article 18(1)[4].  By virtue of these articles, the body of jurisprudence represented by Privy Council decisions on appeal from Hong Kong continues to be binding in Hong Kong after the Basic Law came into effect on 1 July 1997.  

Privy Council decisions on non-Hong Kong appeals

9.   The position of Privy Council decisions, which were not made on appeals from Hong Kong, is however entirely different.  When sitting as the final appellate court of another jurisdiction or as the appellate court from a professional disciplinary tribunal, the Privy Council was not functioning as a Hong Kong court as part of our judicial system but was discharging its responsibility as a court in a different regime.  There was no relationship between the Privy Council when so operating and the Hong Kong courts.  In principle, its decisions on non-Hong Kong appeals were not binding on the courts in Hong Kong under the doctrine of precedent prior to 1 July 1997.

10.  This conclusion is supported by the view expressed by the Privy Council on an appeal from Hong Kong in de Lasala v. de Lasala [1980] AC 546.  Its judgment considered the persuasive effect of decisions of the House of Lords in Hong Kong (see para. 15 below).  In the course of its judgment, the Privy Council stated that its decisions on appeals from Hong Kong are binding on all Hong Kong courts (at 558 A-B).  Although it was not directly focusing on the effect in the Hong Kong courts of decisions of the Privy Council on non-Hong Kong appeals, this statement should be regarded as authoritative[5].  

11.  In Fatuma Binti Mohamed Bin Salim Bakhshuwen v. Mohamed Bin Salim Bakhshuwen [1952] AC 1, the Privy Council was dealing with an appeal from the Court of Appeal for Eastern Africa concerning a question of Mohamedan law.  It was not suggested that Mohamedan law in East Africa on the material question was different from that in India.  The Privy Council held that its previous decisions on the relevant question on Mohamedan law on appeals from India were binding on the Court of Appeal for Eastern Africa (at 14).  Whatever be the correctness of the decision regarding Mohamedan law in East Africa, having regard to the conclusion reached above in relation to Hong Kong, Bakhshuwen cannot be regarded as applying to render Privy Council decisions on non-Hong Kong appeals binding on the Hong Kong courts before 1 July 1997[6].

12.  A number of statements can be found in judgments of the Court of Appeal and the lower courts in Hong Kong that decisions of the Privy Council were binding on them prior to 1 July 1997, without distinguishing between decisions on appeal from Hong Kong and other decisions.  These statements should be read as confined to Privy Council decisions on appeal from Hong Kong.

13.  Some judgments have gone further and have stated expressly that Privy Council decisions, including those given on non-Hong Kong appeals, were binding on the courts in Hong Kong before 1 July 1997.  See for example, R v. Lee Yuk-wah [1985] HKLR 193 at 195H (Kempster JA) and 199A (Barker JA).  And in the present case, Tang JA stated that prior to 1 July 1997, the Court of Appeal would have been obliged to follow the Privy Council decision in Campbell v. Hamlet (at para. 177).  Having regard to the conclusion reached above on the status of Privy Council decisions on non-Hong Kong appeals under the doctrine of precedent, such statements must be regarded as incorrect.

14.  Before 1 July 1997, Privy Council decisions on non-Hong Kong appeals were only persuasive authority.  But except where local circumstances were material[7], their persuasive authority was so great that the courts in Hong Kong virtually invariably followed them before 1 July 1997.  The reason was that, unless there were real grounds for distinction, it was unrealistic to expect the Privy Council to take a different view on a Hong Kong appeal from that taken in its earlier decision on a non-Hong Kong appeal, especially where that earlier decision was not an old one.  It may be that some of the Hong Kong judicial statements referred to above intended to refer to this realistic position.  But to speak of  Privy Council decisions on non-Hong Kong appeals as binding in Hong Kong is incorrect and confuses their great persuasive force with what should properly be regarded as binding under the doctrine of precedent.

House of Lords

15.  Before 1 July 1997, decisions of the House of Lords stood in a similar position to decisions of the Privy Council on non-Hong Kong appeals. Although they were only persuasive, their authority was very great unless the decision was in a field where local circumstances made it appropriate for Hong Kong to develop along different lines.  The House of Lords and the Privy Council essentially share a common membership.  Unless local circumstances were material, the Privy Council on an appeal from Hong Kong was unlikely to diverge from a decision its members had reached in a different capacity in the House of Lords.  See de Lasala at 558A-C and Tai Hing Cotton Mill Ltd  v. Liu Chong Hing Bank [1986] 1 AC 80 at 108B-G.  Indeed, where the House of Lords decision concerned the interpretation of recent English legislation which had been adopted in Hong Kong, the Privy Council stated in de Lasala that although the House of Lords decision was persuasive as a matter of juristic theory, it has the same practical effect as if it was strictly binding (at 558 C-F).

Overseas jurisprudence after 1 July 1997

16.  After 1 July 1997, in the new constitutional order, it is of the greatest importance that the courts in Hong Kong should continue to derive assistance from overseas jurisprudence.  This includes the decisions of final appellate courts in various common law jurisdictions as well as decisions of supra-national courts, such as the European Court of Human Rights.  Compared to many common law jurisdictions, Hong Kong is a relatively small jurisdiction.  It is of great benefit to the Hong Kong courts to examine comparative jurisprudence in seeking the appropriate solution for the problems which come before them.  This is underlined in the Basic Law itself.  Article 84 expressly provides that the courts in Hong Kong may refer to precedents of other common law jurisdictions.

17.  After 1 July 1997, as the Privy Council is no longer Hong Kong’s final appellate court, the realistic considerations relating to decisions of the Privy Council and the House of Lords, which prevailed before that date as discussed above (see paras 14 and 15), are no longer relevant.  Bearing in mind that historically, Hong Kong’s legal system originated from the British legal system, decisions of the Privy Council and the House of Lords should of course be treated with great respect.  Their persuasive effect would depend on all relevant circumstances, including in particular, the nature of the issue and the similarity of any relevant statutory or constitutional provision.  At the end of the day, the courts in Hong Kong must decide for themselves what is appropriate for our own jurisdiction.  The present appeal provides an example in which, whilst according the decision of the Privy Council in Campbell v. Hamlet due respect, this Court is not persuaded to follow the same approach.  The question whether the English approach, which has so far been adopted in Hong Kong on the extent to which the intermediate Court of Appeal is bound by its previous decisions, should continue to apply will shortly be examined.

The Court of Final Appeal

18.  As from 1 July 1997, with the Court of Final Appeal as Hong Kong’s final appellate court, its decisions are of course binding on the Court of Appeal and lower courts.  As the final court at the apex of Hong Kong’s judicial hierarchy, this Court may depart from previous Privy Council decisions on appeal from Hong Kong and this Court’s own previous decisions.  This is consistent with the approach adopted by final appellate courts in numerous common law jurisdictions as well as by the Privy Council itself as a final appellate court.

19.  The doctrine of precedent is a fundamental feature of our legal system based on the common law.  It gives the necessary degree of certainty to the law and provides reasonable predictability and consistency to its application.  Such certainty, predictability and consistency provide the foundation for the conduct of activities and the conclusion of business and commercial transactions.  But at the same time, a rigid and inflexible adherence by this Court to the previous precedents of Privy Council decisions on appeal from Hong Kong and its own decisions may unduly inhibit the proper development of the law and may cause injustice in individual cases.  The great strength of the common law lies in its capacity to develop to meet the changing needs and circumstances of the society in which it functions.

20.  Recognising the importance of these considerations, this Court will approach the exercise of its power to depart from any previous decision of the Privy Council on appeal from Hong Kong or any previous decision of the Court with great circumspection.  In this connection, the risks of disturbing existing rights would have to be borne in mind.  It is a power which will be exercised most sparingly.

The Court of Appeal

21.  The Court of Appeal was established in 1976.  Prior to its creation, a Full Court consisting of first instance judges was constituted to hear appeals.  Apart from the Chief Judge of the High Court, the Court of Appeal at present consists of nine Justices of Appeal.  Further, a judge of the Court of First Instance may on the request of the Chief Justice sit as an additional judge of the Court of Appeal.  See s.5(2) of the High Court Ordinance, Cap. 4.  In practice, this often occurs.  The Court of Appeal must be constituted by an uneven number of judges being not less than three.  See s.34B(2).  It usually sits in divisions each consisting of three judges.  There have been very rare occasions where, having regard to the public importance of the issue, it was constituted by five judges.  The Court of Appeal may be constituted by two judges for dealing with limited matters, including interlocutory appeals.  See s.34B(4).

Adoption of Young v. Bristol Aeroplane

22.  In Ng Yuen-shiu v. Attorney General [1981] HKLR 352, the Court of Appeal decided to adopt the law laid down by the English Court of Appeal in Young v. Bristol Aeroplane[8] regarding the circumstances in which it may depart from its previous decisions in civil cases[9]. 

23.  By the time Ng Yuen-shiu was decided, the rule in Young v. Bristol Aeroplane had been re-affirmed by the House of Lords in Davis v. Johnson [1979] AC 264.  Lord Diplock observed that in civil matters, the law on this question has been clear and unassailable since Young v.  Bristol Aeroplane and that the rule laid down in that case should be re-affirmed “expressly, unequivocably and unanimously” (at 323H and 328D)[10].  Further, the Privy Council had approved the Young v. Bristol Aeroplane rule in relation to the Court of Appeal of the West Indies Associated States Supreme Court in Attorney-General v. Reynolds [1980] AC 637 at 660B-F.  In deciding to adopt the rule, the Court of Appeal in Ng Yuen-shiu took into account the decisions in Davis v. Johnson and Attorney-General v. Reynolds.

24.          After 1 July 1997, the Court of Appeal confirmed that the rule continues to apply in Hong Kong.  Cheung Lai Wah v. The Director of Immigration [1998] 1 HKLRD 772 at 779H-I, 782J-783C and 787B.

The rule as it has been applied in Hong Kong

25.  The rule in Young v. Bristol Aeroplane as it has been applied in Hong Kong should be stated as follows : The Court of Appeal is bound to follow its own previous decisions subject to the following exceptions :

(1)     It is entitled and bound to decide which of two conflicting decisions of its own it will follow. (“the first exception”)

(2)     It is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a subsequent decision of the Privy Council on appeal from Hong Kong or of the Court of Final Appeal. (“the second exception”)

(3)     It is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam. (“the third exception” or “the per incuriam exception”)

Of course, under the doctrine of precedent, it is only the ratio decidendi[11] of a previous decision which is binding.

26.  Regarding the second exception, two matters should be noted.  First, the word “subsequent” does not appear in Lord Greene MR’s summary (at 729) towards the end of his judgment or the headnote.  But his judgment had earlier referred to “a subsequent decision of the House of Lords” (at 725) and this was plainly what was intended.  This was also made clear by Lord Greene in Williams v. Glasbrook Brothers Ltd [1947] 2 All ER 884 at 885A[12].  Secondly, in Cheung Lai Wah, Nazareth VP had referred to a decision of the Court of Final Appeal and “pre July 1997 the Privy Council” (at 783B).  As had been concluded above, only decisions of the Privy Council on appeals from Hong Kong are binding on the Court of Appeal.

The question

27.  The question in this appeal is whether the rule in Young v. Bristol Aeroplane should continue to apply to Hong Kong in civil cases.  It should be emphasised that the Court is not concerned with the position in criminal cases in the present appeal. 

The first and second exceptions

28.  In Young v. Bristol Aeroplane, Lord Greene stated that two of the three exceptions were only apparent exceptions (at 729).  He was referring to the first and second exceptions.  In these two classes of cases, he observed that “it is beyond question that the previous decision is open to examination” (at 726). 

29.  In the first exception, where there are two previous conflicting decisions of the Court of Appeal, plainly, those decisions cannot both be binding.  The Court of Appeal is therefore free to choose which decision to follow.  The rule that it is bound to follow its previous decisions cannot apply.

30.  In the second exception, where the Court of Appeal reaches the view that its previous decision, though not expressly overruled, cannot stand with a subsequent decision of the final appellate court, it is bound to refuse to follow its previous decision.  In this instance, the rule that it is bound to follow its previous decisions also cannot apply.  The previous decision cannot be regarded as binding since it is inconsistent with the subsequent decision of the final appellate court which, under the doctrine of precedent, is binding on the Court of Appeal.

The per incuriam exception

31.  The third exception that the Court of Appeal is not bound to follow a previous decision if it is satisfied that it was given per incuriam (through want of care) represents the only real exception to the rule that the Court of Appeal is bound to follow its previous decisions.  The phrase “per incuriam” on its own does not give much guidance as to what may be included in this exception.

32.  In Morelle Ld. v. Wakeling [1955] 2 QB 379 at 406, Sir Raymond Evershed MR[13] stated :

“As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned : so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.”

He went on to note that this definition is not necessarily exhaustive but that cases not within the general rule which can properly be held to have been decided per incuriam must be of the rarest occurrence.  That the exception cannot be exhaustively defined had been recognised in Young v. Bristol Aeroplane (at 729).  In Morelle, it was held that the previous decision was not decided per incuriam.  No statutory provisionor binding authority had been overlooked.  Further, it cannot be regarded as a per incuriam decision on other grounds as it was :

“impossible to fasten upon any part of the decision under consideration or upon any step in the reasoning upon which the judgments were based and to say of it : ‘Here was a manifest slip or error.’”

33.  In England, there have been a number of decisions of the Court of Appeal in recent years which have developed the scope of the per incuriam exception.  In these cases, the previous decision was not affected by the overlooking of an inconsistent statutory provision or a binding authority.  It is unnecessary to examine these decisions in detail.  But three observations should be made. 

34.  First, the tests which have been applied in deciding whether the previous decision may be departed from have included the following : whether the previous decision involved a manifest slip or error[14]; whether it was manifestly wrong[15]; whether it was “outdated, unjust and incontestably wrong”[16]; whether it involved reasoning which did not bear analysis[17].

35.  Secondly, as Neuberger LJ (as he then was) observed in Tan v. Sitkowski[18], the effect of recent English decisions :

“is that the circumstances in which a decision may be treated as being per incuriam may have become somewhat more generous and flexible than might have been perceived as being 50 years ago.”

This has resulted in a dilution of the stare decisis rule in the Court of Appeal[19].  In Wellcome Trust Ltd v. Hamad [1998] QB 638 at 657D-E, the failure to appreciate the significance of certain words in a statutory provision, the acceptance of what was considered to be a fallacious argument and the overlooking of authorities in which certain principles were contained were held to be sufficient to render the previous decision per incuriam.

36.  Thirdly, the view has been expressed that departure from a previous decision on the test that it was manifestly wrong or that it involved a manifest slip or error should be treated as an exceptional residual category of cases which are not strictly per incuriam[20].  Indeed, Lord Neuberger has observed extra-judicially[21] that the effect of recent English decisions is that :

“It is almost as if there is a fourth category, namely that the Court of Appeal is now no longer bound by earlier decisions if it thinks they are wrong.”

37.  The authorities in Hong Kong have not expanded the per incuriam exception in the same way as the English authorities.  Where the previous decision did not involve overlooking an inconsistent statutory provision or a binding authority, the Court of Appeal has adopted the test of manifest slip or error test in considering whether it may depart from its previous decision.  See Ho Po Chu v. Tung Chee Wah [2006] 3 HKLRD 553 and Bowardley Enterprises Ltd  v. Millennium Group Ltd  [2006] 4 HKC 329.

Other jurisdictions

38.  In Australia, Canada and New Zealand, the Young v. Bristol Aeroplane rule has not been adopted[22].  The intermediate courts in these jurisdictions have stated that they may depart from their previous decisions but would only do so in exceptional circumstances.  Various tests have been used, including plainly wrong, clearly erroneous, manifestly wrong.  Some courts have not identified a test as such but would take all relevant factors into account.  Compared to the position in Australia, Canada and New Zealand, the English rule represents a restrictive approach.

Treatment of the first and second exceptions

39.  As discussed above, the first and second exceptions are not on analysis real exceptions to the rule that the Court of Appeal is bound by its previous decisions.  To treat them as exceptions, when they are not in substance exceptions, serves no useful purpose and is not appropriate.  Accordingly, they should no longer be regarded as exceptions in Hong Kong. 

40.  The situation in which the Court of Appeal is faced with conflicting decisions of its own does not require any further discussion.  As to the situation in which a previous decision is inconsistent with a subsequent decision of the final appellate court, two points should be made.  First, the test of inconsistency is a stringent one.  There must be a closeness of subject matter and a clear inconsistency of approach.  There had to be shown the enunciation by the final appellate court of a clear principle which was plainly inconsistent with the approach in the previous Court of Appeal decision.  R (Johnson) v. Havering London Borough Council [2007] 2 WLR 1097 at 1116D-H and R (F(Mongolia)) v. Asylum and Immigration Tribunal [2007] 1 WLR 2523 at 2529H-2530A.  Secondly, the situation is similar to that which arises where subsequent to the Court of Appeal’s decision, a constitutional or a statutory provision is enacted which is inconsistent with the decision.  Being inconsistent, it overrides the previous decision.

The critical question

41.  With the treatment of the situations contemplated by the first and second exceptions not as exceptions, the critical question is whether the Court of Appeal should continue to retain the per incuriam exception or whether it should be substituted by a different exception.

42.  As discussed above when considering the question of the Court of Final Appeal’s freedom to depart from previous decisions of the Privy Council on appeal from Hong Kong and its own decisions (para. 19), certainty in the law and predictability and consistency in its application are of great importance.  They provide the foundation for the orderly conduct of commercial, business and other activities.  When disputes arise, they provide the basis for the negotiation and conclusion of compromises to settle them.  On the other hand, too rigid and inflexible an adherence to precedents may impede the proper development of the law and may cause injustice in particular cases.  There is thus a tension between the need for certainty, predictability and consistency and the need for adaptability, flexibility and justice.  A proper balance has to be struck between these conflicting demands.

43.  Plainly, an absolute rule that the Court of Appeal can never depart from its previous decisions would be inappropriate.  Indeed, this may lead to the Court of Appeal seeking to distinguish its previous decisions on insufficient grounds which would be unsatisfactory.  Equally, complete flexibility would be misplaced.  This is especially so, as the Court of Appeal sits in divisions and differently constituted divisions may reach divergent views on the same issue.  The real question is the degree of flexibility which is suitable for the Court of Appeal as an intermediate appellate court in Hong Kong. 

44.  In considering the degree of flexibility, the extent of availability of an appeal to the Court of Final Appeal is an important consideration.   Since the establishment of this Court on 1 July 1997, much greater use has been made of it, compared to the Privy Council as Hong Kong’s final appellate court before the resumption of the exercise of sovereignty[23].  But it has to be recognised that most appeals to the Court of Appeal end there and do not proceed to the Court of Final Appeal.  There is only a limited category of cases which enjoy a right of appeal and leave has to be obtained in other cases.  An appeal may not be pursued for a number of reasons.  The party concerned may not wish to spend the necessary time and effort and may not be able or willing to undertake the risks and afford the costs involved.  Further, the exigencies of the situation may practically preclude an appeal.  And the parties may compromise their dispute.   

The rule to be adopted

45.  Balancing the competing and conflicting demands referred to above, the rule that should be adopted for the Court of Appeal in place of the rule in Young v. Bristol Aeroplane is that it is bound by its previous decisions but it may depart from a previous decision where it is satisfied that it is plainly wrong. 

Plainly wrong

46.  Where the arguments whether the previous decision is wrong are finely balanced, the Court of Appeal’s mere preference for the view that it is wrong would plainly be insufficient to justify departure from it.  Even where the Court of Appeal is satisfied that the arguments against its previous decision are more substantial and cogent than the contrary arguments in its favour, this would still be insufficient.  It is only where the Court of Appeal is convinced that the contentions against its previous decision are so compelling that it can be demonstrated to be plainly wrong that the test is satisfied.

47.  Obviously, previous decisions reached in ignorance of an inconsistent statutory provision or a binding authority satisfy the plainly wrong test.  Further, decisions which satisfy the manifest slip or error yardstick, which the Court of Appeal has applied in the past also satisfy the plainly wrong test.  But the category of decisions which are plainly wrong is not limited to these instances.  The reasoning of a decision may be so seriously flawed that it should be regarded as plainly wrong.

48.  In examining whether a previous decision is plainly wrong, the Court of Appeal is not confined to a consideration of the matters as they stood at the time the previous decision was made.  It may take subsequent developments into account.  These include subsequent legal developments, including the enactment of relevant constitutional or statutory provisions and the development in jurisprudence in Hong Kong or elsewhere.  What is contemplated here is that subsequent developments on the constitutional, statutory or case-law fronts in the relevant area of the law or related areas may have so substantially impaired the previous decision that it should now be regarded as plainly wrong.  This situation is different from that which has already been discussed where a previous decision of the Court of Appeal is inconsistent with and overridden by a subsequent constitutional or statutory provision or a subsequent decision of the Court of Final Appeal (see para. 40 above). 

49.  A conclusion by the Court of Appeal, that its previous decision is plainly wrong, does not finally resolve the question whether it should depart from it.  The court should take all circumstances into account, before deciding whether to take that course.  Such circumstances include the nature of the issue involved, the length of time for which the previous decision has stood, the extent of its application, whether the issue is likely to be before the Court of Final Appeal or the Legislature, whether the matter is best left to this Court or the Legislature, and whether and the extent to which failure to depart from it would occasion injustice in the case in question and similar cases.  Where the Court of Appeal is satisfied that its previous decision on a question of statutory interpretation is plainly wrong in failing to ascertain the true intent of the Legislature, it may be more prepared to depart from its previous decision, having regard to the courts’ responsibility to give effect to the legislative intent. 

50.  The Court of Appeal would undoubtedly approach the matter with great caution, having regard to the great importance of the doctrine of stare decisis.   The possible ramifications of disturbing the basis on which property, commercial and other transactions have been entered into and rights have been acquired would have to be borne in mind.  It must be emphasised that the plainly wrong test sets a high hurdle.  The departure from a previous decision in accordance with this test should be wholly exceptional and should only occur very rarely.

51.  Applying the plainly wrong test in the present case, the Court of Appeal would not have been justified in departing from its previous decisions establishing the civil standard of proof for solicitors disciplinary proceedings.  Those decisions cannot be considered to be wrong, let alone plainly wrong.  Indeed, the civil standard for disciplinary proceedings is the correct one.

The formulated question

52.  As has been noted, in granting leave to appeal, the Court of Appeal posed the question whether it is :

“bound by its own decision(s) when that previous decision(s) was influenced or itself bound by a Privy Council decision(s), which has since been either overtaken and/or developed and/or departed from?”

The point that only Privy Council decisions on appeal from Hong Kong were binding before 1 July 1997 and that they continue to be binding after 1 July 1997 must be reiterated.  In the light of the conclusions in this judgment, the answer to this question is that the Court of Appeal is bound by its previous decision unless it concludes, after an examination of legal developments, including subsequent comparative jurisprudence, that its earlier decision should now be regarded as plainly wrong.

The appellate court’s role in disciplinary appeals

53.  As concluded by Mr Justice Bokhary PJ in his judgment, the Court of Appeal in dealing with an appeal from a disciplinary tribunal should adopt the wider approach applied by the Privy Council in Ghosh v. General Medical Council [2001] 1 WLR 1915 and Preiss v. General Dental Council [2001] 1 WLR 1926 instead of the previous restrictive approach laid down by the Privy Council in Libman v. General Medical Council [1972] AC 217. 

54.  On this question, the Court of Appeal faced conflicting decisions of its own.  Older decisions had adopted the restrictive approach in Libman.  But in Dr Lau Koon Leung v. Medical Council of Hong Kong [2006] 3 HKC 274, the Court of Appeal had departed from its earlier decisions and had adopted instead the later wider approach in Ghosh and Preiss.  Faced with these conflicting decisions of its own, the Court of Appeal in the present case was entitled in principle to choose to follow its previous decision in Dr Lau Koon Leung.  As concluded above, this choice was the correct one.

55.  It is a different question whether in its earlier decision in Dr Lau Koon Leung, the Court of Appeal was entitled to depart from its previous decisions.  The majority (Yuen JA and Lam J) correctly held that the rule in Young v. Bristol Aeroplane which then applied was engaged.  But it considered that departure from its previous decisions was justified as they had been influenced by Libman which has since been overtaken by Ghosh and Preiss, especially as the statute provides that the decision of the Court of Appeal on appeal from the Medical Council is final[24].

56.  The question whether the Court of Appeal in Dr Lau Koon Leung could have regarded its previous decisions based on Libman as plainly wrong, taking into account the subsequent developments in Ghosh and Preiss, is an academic question.

Composition of the Court of Appeal

57.  The Court of Appeal usually sits in three-judge divisions.  It should be noted that matters before a two-judge court are argued as fully as before a three-judge court.  Decisions of a two-judge court, such as on an interlocutory appeal, have the same authority as a three-judge court[25].

58.  A five-judge court does not have any greater power than a three-judge court.  See Young v. Bristol Aeroplane at 725.  The decision of the Court of Appeal in Secretary for Justice v. Wong Sau Fong [1998] 2 HKLRD 254 that only a five-judge court has the power to depart from a decision of a three-judge court is incorrect.  But in a case where the departure from previous decisions is likely to arise, it may be appropriate, depending the nature of the issue, for the Court of Appeal to adopt the most exceptional course of constituting a court with five judges.  Although a five-judge court has no greater power, its decision, especially if it is unanimous, may carry greater weight.  And the risk of another decision taking a different view may be minimised.

Costs

59.  The appellant’s appeal should be dismissed.  As to costs, it must be borne in mind that, although the question concerning the operation of the doctrine of stare decisis in relation to the Court of Appeal is directly raised in this appeal, how it is answered would not affect the result of the appeal.  Irrespective of the extent to which the Court of Appeal may depart from its previous decisions on the standard of proof to be applied, this Court is not bound by those decisions.  However, it is plainly in the public interest that the Court should take this opportunity to consider and decide the stare decisis question in relation to the Court of Appeal.  In the circumstances, an order nisi should be made that the appellant should be liable for only 50% of the respondent’s costs of this appeal.  The order nisi shall become absolute within 21 days unless either party lodges written submissions within that period seeking a different order.

Mr Justice Bokhary PJ :

60.  Precedent has been dealt with by the Chief Justice with whose judgment I am in entire agreement.  So my own judgment is directed to the other issues which have been raised in this appeal.  Of these, the first is the standard of proof in disciplinary proceedings.  On this issue, I draw no distinction between such proceedings against members of, on the one hand, professions (eg the law and medicine) and, on the other hand, services (eg the fire service and the police).

Two standards of proof

61.  Only two standards of proof are known to our law.  One is proof beyond reasonable doubt and the other proof on a preponderance of probability.  The strength of the evidence needed to establish such a preponderance depends on the seriousness and therefore inherent improbability of the allegation to be proved.

62.  A criminal charge must be proved beyond reasonable doubt.  A civil claim, on the other hand, is to be proved on a preponderance of probability.

63.  Sometimes an allegation of grave or even criminal conduct is made in a civil case.  In such instances, it was common at one time for the courts to speak in terms of a degree of probability proportionate to or commensurate with the seriousness of the allegation.  References to a “degree of probability” are to be found in, for example, the English Court of Appeal cases of Bater v. Bater [1951] P 35 at p.37 and Hornal v. Neuberger Products Ltd [1957] 1 QB 247 at p.266.  Further examples are to be found in the House of Lords cases of Blyth v. Blyth (No.2) [1966] AC 643 at p.669 and R v. Home Secretary, ex parte Khawaja [1984] AC 74 at p.114.  As will appear from the more recent authorities to which I will come in due course, it is misleading to speak of “a degree of probability”.

The more serious the more improbable and the stronger the evidence needed

64.  I come now to Lord Nicholls of Birkenhead’s analysis in Re H & Others (Minors) (Sexual Abuse : Standard of Proof) [1996] AC 563.  In that case a man had been charged with the rape of one of the daughters of the woman with whom he was living.  He was acquitted.  Then the local authority applied for care orders in respect of three other daughters of that woman.  The only evidence tendered in support of that application related to the facts alleged by the prosecution at the rape trial which had resulted in acquittal.  In the result, the County Court judge did not find the allegations of sexual abuse proved, and he dismissed the local authority’s application.  Such refusal was affirmed by a 2 to 1 majority in the English Court of Appeal and then a 3 to 2 majority in the House of Lords.

65.  In a speech with which Lord Goff of Chieveley and Lord Mustill agreed, Lord Nicholls said this at p.586 D–G:

“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step­father is usually less likely to have repeatedly raped and had non­consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.”

That, as Lord Nicholls pointed out at p.587C-E, goes to the “in-built flexibility” of proof on a preponderance of probability, not the creation of a new standard.

66.  Among the judicial statements on the point cited by Lord Nicholls in Re H is the one made in the Chancery Division by Ungoed-Thomas J in Re Dellow’s Will Trusts [1964] 1 WLR 451 at p.455.  This is that “[t]he more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it”.  In that case it was found, with that in mind but nevertheless on a balance of probability, that a wife had feloniously killed her husband.

67.  The circumstances there were such as to prompt Ungoed-Thomas J to describe the case (at p.455) as one “for compassion rather than condemnation”.  But even where the murder alleged is one of a most heinous character, proof of it in a civil case would still be on a balance of probability.  As to this, I would draw attention to the decision of the High Court of Australia in Helton v. Allen (1940) 63 CLR 691. 

68.  The facts of that case may be taken from the part of the headnote in which the following appears at p.691 :

“A testatrix died of strychnine poisoning, and the person who by her last will was appointed executor and constituted residuary devisee and legatee was tried upon indictment for her murder. He was acquitted. Notwith­standing his acquittal proceedings were brought by one of her next of kin for the purpose of establishing that in fact he did unlawfully kill the testatrix and on that ground was disabled from occupying the office of executor or taking under the will. The question was tried with a jury. The evidence in support of the issue was entirely circumstantial. The judge in the course of a charge to the jury adverse to the defendant emphasized the difference between the standards of proof upon a criminal charge and upon a civil issue and laid weight on the slightness of the preponderance of probability upon which they might find that he poisoned the testatrix.  After deliberating upon their verdict for some time the jury sought a further direction upon the ‘point about probabilities’.  The judge gave a further direction, which amounted to an instruction to find homicide if they considered there was any greater probability favouring that conclusion. The jury found that the defendant unlawfully killed the testatrix.

What the High Court of Australia held may be taken from the part of the headnote in which the following appears at pp 691-692 :

Held (1) that the circumstantial evidence was sufficient to support such a finding; (2) by Dixon, Evatt and McTiernan JJ. (Starke J. expressing no concluded opinion), that the defendant’s acquittal did not prevent the applica­tion of the rule of public policy excluding from the office of executor and from benefits under a will a person who unlawfully killed a testator and did not operate to conclude the issue of the defendant's innocence or guilt and was not even admissible as an evidentiary fact upon that issue; but (3) that there had been a mistrial because, though the standard of persuasion required in support of an indictment did not apply, nevertheless the effect of the judge’s direction and further direction would be to lead the jury (a) to disregard the gravity of the issue and to lose sight of the consideration that reasonable satisfaction is not independent of the nature of the fact to be proved so that  the graver the allegation the greater should be the strictness of proof demanded, and (b) to think that they should make a mere comparison of the probabilities of guilt with those of innocence rather than to consider whether they were really satisfied that the defendant did kill the testatrix.”

69.  In the Scottish case of Mullan v. Anderson 1933 SLT 835 a widow and her children brought an action claiming damages against a man who, on a verdict of not proven, had been acquitted of murdering her husband.  The Court of Session, sitting as a bench of five judges, held that such a claim was to be proved on the civil standard.  As Lord Morison stressed at p.842E, the

“view that any civil case, including this one, must be determined on a balance of probabilities does not ignore the obvious fact that it is more difficult to prove, according to the required standard, an allegation of murder or serious crime, because it is inherently unlikely that a normal person will commit such a crime”.

70.  This is a convenient stage at which to mention New York v. Heirs of Phillips, dec’d [1939] 3 All ER 952.  It was a civil case involving an allegation of conspiracy to defraud.  Delivering the advice of the Privy Council, Lord Atkin said this at p.955 F-G:

“The only complaint made of [the trial judge’s] judgment in point of law is that he laid down that there was heavy onus on the plaintiffs and that it was necessary for them to prove their case as clearly as they would have to prove it in a criminal proceeding.  Their Lordships consider this criticism to be ill-founded.  The proposition of the judge has been laid down time and again in the courts of this country: and it appears to be just and in strict accordance with the law.”

An explanation of that passage was offered by Dixon J (as he then was), Evatt J and McTiernan J in their joint judgment in Helton v. Allen.  There they said at p.714 that Lord Atkin “may have had in mind the exactness of the proofs rather than the standard of persuasion or certainty”.  That would accord with Lord Nicholls’s approach in Re H.

71.  Still on the jurisprudence of the High Court of Australia, I would refer to a statement by Dixon J in Briginshaw v. Briginshaw (1938) 60 CLR 336.  He said at p.362 that “[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal”.  This statement by Dixon J, particularly in its reference to “the inherent unlikelihood of an occurrence of a given description”, is in line with the explanation of Heirs of Phillips which he was later party to offering in Helton v. Allen.  Like that explanation, it accords with Lord Nicholls’s approach in Re H.

That approach adopted by this Court

72.  That approach was adopted by this Court in Aktieselskabet Dansk Skibsfinansiering v. Brothers (2000) 3 HKCFAR 70, a civil case involving an allegation of fraud.  At p.78F-G Lord Hoffmann NPJ, in a judgment with which the other members of the Court agreed, summarised the approach thus :

“… the court is not looking for a higher degree of probability.  It is only that the more inherently improbable the act in question, the more compelling will be the evidence needed to satisfy the court on a preponderance of probability.”

Two more decisions of this Court should be mentioned in this connection.  One is HKSAR v. Lee Ming Tee, the Securities and Futures Commission intervening (2003) 6 HKCFAR 336.  The other is Nina Kung v. Wong Din Shin (2005) 8 HKCFAR 387.

73.  Lee Ming Tee’s case involved a very serious allegation made by the defence against senior officers of the Securities and Futures Commission.  It was that they had deliberately and improperly terminated an investigation into a person’s conduct in a share placement.  The defence’s suggestion was that those officers had done that in order to avoid the need to make a disclosure which might have compromised that person’s standing as an expert witness in a criminal trial.  Finding that allegation proved, the trial judge stayed the prosecution.  This Court lifted the stay.  At p.362C-D Sir Anthony Mason NPJ, in a judgment with which the other members of the Court agreed, cited Re H.  He did so on his way to overturning the trial judge’s finding that the allegation made by the defence had been proved.

74.  Nina Kung’s case concerned a will.  It was alleged that a wife had forged her husband’s will and conspired to utter a forged will.  The trial judge found the allegation proved.  His finding was supported by the majority in the Court of Appeal.  But it was unanimously overturned by this Court.  Mr Justice Ribeiro PJ said (at p.441F-G) that Re H operated to impose “a standard of cogency”.  And Lord Scott of Foscote NPJ said (at p.560I) that Re H “stresses the need to concentrate on the inherent probability or improbability of … the serious allegation being true”.  Those statements are, it may be mentioned, in harmony with a statement made in the High Court of Australia some years before Re H.  I have in mind a statement to be found in the joint judgment of Mason CJ and Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v. Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at p.171A.  This is that “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”.

75.  I cannot recall what I thought about it when, some 40 years ago, I first came across this passage in Kenny’s Outlines of Criminal Law, 18th ed. (1962) at pp 501-502 :

“The progressive raising of the standard of proof, as the gravity of the accusation to be proved increases, is illustrated in an extract from Lord Brougham’s speech in defence of Queen Caroline : ‘The evidence before us’; he said, ‘is inadequate even to prove a debt – impotent to deprive of a civil right – ridiculous for convicting of the pettiest offence – scandalous if brought forward to support a charge of any grave character – monstrous if to ruin the honour of an English Queen.”

What strikes me about it now is this.  While the learned editor refers to “a progressive raising of the standard of proof”, Lord Brougham was actually talking about the strength (or rather the lack of strength) of the evidence.  Whatever the nature of the case, it is always necessary for the tribunal of fact to ask itself : what are the crucial issues and what is the important evidence on them?  This is, I think, powerfully brought out by what is said in Stephen’s History of the Criminal Law of England, vol.1, 1996 Routledge/Thoemmes Press reprint of the 1883 ed. at p.455 on the role of a judge when summing up to a jury.  It is there said that “[t]he act of stating for the jury the questions which they have to answer and of stating the evidence bearing on those questions and showing in what respects it is important generally goes a considerable way towards suggesting an answer to them, and if a judge does not do as much at least as this he does almost nothing”.

76.  Next I would refer to Dingwall v. J Wharton (Shipping) Ltd [1961] 2 Lloyd’s Rep.213, an appeal to the House of Lords from Scotland.  It was argued that long delay in making claim or commencing proceedings gave rise to a standard of proof higher than a balance of probability.  Rejecting that argument, Lord Tucker said at p.216 col.2 that the only consequence of such delay was that the trial judge “will scrutinize the evidence with extra care, and in some cases with a degree of suspicion”.

77.  There are, it is true, exceptions to the general rule that the standard to which facts in issue have to be proved in non-criminal cases is no more than a preponderance of probability.  In Re H at p.586B-C Lord Nicholls gave contempt applications as one example of such exceptions.  The making of anti-social behaviour orders is, as one sees from the decision of House of Lords in R(McCann) v. Manchester Crown Court [2003] 1 AC 787, another such exception.  And we have been shown this statement in the High Court of Australia by Hayne J in Chief Executive Officer of Customs v. Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at pp198-199:

“There are proceedings with both civil and criminal characteristics: for example, proceedings for a civil penalty under companies and trade practices legislation.  The purposes of those proceedings include purposes of deterrence, and the consequences can be large and punishing.”

Contempt is of course punishable by imprisonment.  So is breach of an anti-social behaviour order.  And as to what Hayne J said in the Labrador Liquor case, it should be noted that it was said in the context of proceedings in which convictions for customs offences were sought.  At p.205 Hayne J (in whose judgment Gleeson CJ and McHugh J concurred) said that “[i]f no conviction is sought, but other relief is (as, for example, a declaration that the defendant contravened identified provisions of the relevant Act coupled with orders for payment of monetary penalties), it must be strongly arguable that, in proceedings conducted according to civil procedures, proof to the civil standard will suffice”.

78.  At this stage, I would mention three decisions of the English Court of Appeal : (i) B v. Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340; (ii) Gough v. Chief Constable of Derbyshire Constabulary [2002] QB 1213; and (iii) R(N) v. Mental Health Review Tribunal [2006] QB 468.  B’s case concerned the making of sex offender orders under the Crime and Disorder Act 1998.  Gough’s case concerned the making of banning orders under the Football Spectators Act 1989.  And N’s case concerned applications for the discharge of patients detained under hospital orders.  None of those matters was treated as an exception to the general rule that the criminal standard of proof applies only to proving the commission of a crime.  To each the civil standard was applied.

79.  It may well be that allegations of conduct such as arson or scuttling once formed but no longer form an exception to the general rule that the standard to which facts in issue have to be proved in non-criminal case is no more than a preponderance of probability.  As appears at p.254 of the report of Hornal’s case, Denning LJ (as he then was) intervened in the course of the argument to observe that “[a] case of scuttling is like the cases alleging arson; the charge ought to be proved beyond reasonable doubt because it is so grave”.  And in The “Gold Sky” [1972] 2 Lloyd’s Rep. 187 Mocatta J proceeded (as one sees at p.217 col.1) on the basis that scuttling had to be proved beyond reasonable doubt.  That observation by Denning LJ and that decision of Mocatta J’s was cited by Cons JA (as he then was) in Tai Hing Cotton Mill v. Liu Chong Hing Bank [1984] HKLR 95 in which the Court of Appeal affirmed the trial judge’s application of the civil standard to allegations of the forgery of cheques.  At p.113G Cons JA said that “[t]here may be special considerations with regard to marine insurance claims where scuttling is alleged”.

80.  But in The “Ikarian Reefer” [1995] 1 Lloyd’s Rep.455 at p.459 cols 1 to 2, the English Court of Appeal (by a judgment which Stuart-Smith LJ delivered but had been contributed to by the other two lord justices) said this :

“… if perils of the seas was the only insured peril relied upon, it would be strictly unnecessary to determine whether the insurers had proved that the grounding was deliberate: the claim would fail in any event.  But the present case is more complicated, by reason of the subsequent operation of another insured peril, fire, upon which the shipowners also rely, and so it becomes necessary, or at least desirable, to consider whether, if not accidental, the grounding is proved to have been caused deliberately, as the insurers allege.

On this issue, the burden of proof rests unequivocally on the insurers, and the degree or standard of proof which the law requires makes the burden heavier than that which rests upon the shipowners.  Although the same ‘balance of probabilities’ test applies, the standard of proof required is commensurate with the gravity of the allegation made; and no more serious allegation can be made against the master of a ship, a trained and experienced professional who was responsible for its safety and for the lives and welfare of its crew. The Court therefore must take account of the likelihood or otherwise of the master of this vessel intending deliberately to run his vessel aground (per Lord Justice Mustill in TheFiliatra Legacy, [1991] 2Lloyd's Rep. 337 at pp 365-366).

We do not find it necessary to pursue the question, which may be no more than semantic, whether the burden of proof so described by reference to the balance of probabilities is different in practice from the criminal standard of ‘beyond reasonable doubt’ and if so by how much.  The burden of proof is not discharged, in our judgment, if the evidence fails to exclude a substantial, as opposed to a fanciful or remote possibility that the loss was accidental.  But we bear in mind that, on the authorities, the burden which rests upon the insurers is derived from the civil, not the criminal standard, and that its nature is as described above.”

81.Turning from marine insurance to life insurance, I would refer to the Canadian case of Mutual Life Assurance Co. of Canada v. Aubin [1979] 2 SCR 298.  There a man died of injuries sustained when the car which he was driving collided with the parapet of a bridge.  An insurance policy on his life provided for additional compensation in the event of accidental death.  His widow claimed such additional compensation.  The insurers resisted the claim.  They alleged that the deceased was driving with a higher alcohol content in his blood than that allowed by the criminal code.  In other words, they alleged criminal conduct on his part.  And they relied on a clause which excluded compensation for any loss attributable directly or indirect, in whole or in part, to a criminal offence.  The Supreme Court of Canada held that the case being a civil one, the standard to which the insurers had to prove the criminal conduct which they alleged was that of a balance of probability.  (As it happened, they failed on the evidence to prove it even on that standard.)

82.  It is to be noted that in B’s case Lord Bingham of Cornhill CJ (as he then was) said at p.354A that in a serious case the difference between the civil and criminal standards “is, in truth, largely illusory”.  And in Gough’s case Lord Phillips of Worth Matravers MR (as he then was) said at p.1243A that justices asked to make a sex offender order would “apply an exacting standard of proof that will, in practice, be hard to distinguish from the criminal standard”.

83.  This brings me to how Lord Steyn put it in McCann’s case at p.812D-F where he said this:

“Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply.  However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary: [Re H at p.586D-H].  For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard.  The Court of Appeal said that would usually be the right course to adopt.  Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable.  I do not disagree with any of these views.  But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section I apply the criminal standard.”

It is also remembered that in Khawaja’s case Lord Scarman had said at p.112E that “[i]t is largely a matter of words”.

84.  All of that having been noted, it becomes necessary to note also the statement on the point by the High Court of Australia in Rejfek v. McElroy (1965) 112 CLR 517 in which their Honours held that any Australian case which decided that the criminal standard of proof had to be satisfied in civil proceedings as to facts which amounted to a crime should to that extent be overruled.  The statement I have in mind is at p.521 where it is said that “[t]he difference between the criminal standard of proof and the civil standard of proof is no mere matter of words”.  It is, as Lord Atkin said at p.707 when delivering the advice of the Privy Council in Lawrence v. R [1933] AC 699, “an essential principle of our criminal law that a criminal charge has to be established by the prosecution beyond reasonable doubt : and it is essential that the tribunal of fact should understand this”.  This Court has consistently applied the Re H approach as a feature of the civil standard where grave allegations are in issue.

85.  What is the standard of proof in disciplinary proceedings?  Before considering the authorities on this question, I will outline the circumstances of the present case and the course which it has taken on its way to us.

Circumstances of the present case

86.  The appellant solicitor (“the Solicitor”) was admitted in 1992.  For a time thereafter he practised as a consultant.  Then in October 1997 he established his own firm as sole proprietor.  Consequent upon an application made by the respondent professional body (“the Law Society”) in June 1999, he appeared before the Solicitors Disciplinary Tribunal (“the Tribunal”) on eight complaints of professional misconduct.  This is how those complaints were summarised by the Tribunal in its Statement of Findings:

“Complaints 1 to 5 (inclusive) comprise charges against [the Solicitor] between October 1997 to July 1, 1998, of having publicised or otherwise promoted his practice or permitted his practice to be publicised or otherwise promoted, contrary to Rule 2AA of the Solicitors’ Practice Rules (‘the Rules’) and the Solicitors' Practice Promotion Code in force at the material time (‘the Code’), more particularly, contrary to Paragraphs 6(b), 6(c), 6(h), 6(l) and 6(m) of the Code.

Complaint 6 charges [the Solicitor] of having engaged in conduct unbefitting of a solicitor in or around January 1999 by posing nude or semi-nude for the cover stories for the Next Magazine Issue No.463 dated 22^nd January 1999 and in Sudden Weekly Issue No.183 dated 30^th January 1999.

Complaint 7 also relates to such posing nude or semi nude for the Next Magazine and Sudden Weekly and charges [the Solicitor] of having acted in contrary to principle 1.02 of the Hong Kong Solicitors’ Guide to Professional Conduct or Rule 2 of the Rules by which [the Solicitor] did not conduct himself appropriately but conducted himself in a manner likely to bring the profession into disrepute.

Complaint 8 charges [the Solicitor] for having acted in contrary to Paragraph 6(h), alternatively 6(1) or 6(m), of the Code as a result of the cover stories / article of [the Solicitor] posing nude or semi-nude for the aforesaid 2 magazines being published on the internet and leading to other interviews and. articles in other newspapers.”

Solicitors Disciplinary Tribunal’s findings and order

87. For reasons which it is unnecessary to explore, the disciplinary proceedings proved extremely protracted.  On 30 September 2004, by its Statement of Findings which I have just mentioned, the Tribunal found all eight complaints proved.  As to the standard of proof, the Tribunal said that it applied “the civil standard albeit with the higher degree of probability commensurate with the gravity of the allegations”.

88. Some considerable time after finding the complaints proved, the Tribunal, by its Order dated 15 March 2005, censured the Solicitor, fined him, suspended him from practice, placed restrictions on how he may practise for the first two years of any resumed practice and made awards of costs against him.  The fine was imposed on Complaint 2.  It was in the sum of $50,000.  The periods of suspension were of: 6 months on Complaint 1; 9 months on each of Complaints 3 to 6; and 12 months on each of Complaints 7 and 8.  The periods of suspension under Complaints 1, 3, 4 and 5 were made concurrent to produce 9 months.  Those under Complaints 6, 7 and 8 were made concurrent to produce 12 months.  While it was not spelled out by the Tribunal, the necessary implication is that the 9 months and 12 months so produced were made consecutive so as to result in suspension for a total of 1 year and 9 months.  As to costs, the Solicitor was ordered to pay two-thirds of the Law Society’s costs of the disciplinary proceedings, its costs of the investigation and the costs of the Clerk to the Tribunal.

Court of Appeal’s judgments

89.  On 23 and 24 February and 16 March 2006 the Court of Appeal – composed of Ma CJHC, Stock JA and Tang JA (as Tang VP then was) – heard the Solicitor’s appeal against the findings on which the Tribunal made in adjudging all the complaints proved.  The Court of Appeal handed down judgment on 7 July 2006.  Ma CJHC was for setting aside the findings on Complaints 1 and 2 and affirming those on Complaints 3 to 8.  Stock JA was for setting aside the findings on Complaint 2 and affirming those on Complaints 1 and 3 to 8.  Tang JA was for setting aside the findings on Complaints 1 to 6 and affirming those on Complaints 7 and 8.  Thus were the findings on Complaints 1 and 2 set aside and those on Complaints 3 to 8 affirmed.

90.  Ma CJHC and Stock JA were of the view that the standard of proof in disciplinary proceedings is proof on a balance of probability.  They both referred to Lord Nicholls’s speech in Re H.  Tang JA was of the view that the standard of proof in disciplinary proceedings is proof beyond reasonable doubt.  As can be seen, their being of the same view as to the standard of proof did not prevent Ma CJHC and Stock JA from differing with one another on whether the findings on Complaint 1 should be set aside or affirmed.  Nor, as can also be seen, did differing from Ma CJHC and Stock JA as to the standard of proof prevent Tang JA from agreeing with them that the findings on Complaints 7 and 8 should be affirmed.

91.  There was a considerable interval after the handing down of the Court of Appeal’s judgment on findings.  Then, on 26 April 2007, the Court of Appeal – composed of Ma CJHC, Tang VP (as he had become) and Stock JA – heard the parties on three matters.  Those three matters were : (i) penalty; (ii) costs and (iii) leave for the Solicitor to appeal to us against the findings earlier affirmed by the Court of Appeal.  Judgment on those three matters was handed down by the Court of Appeal on 18 May 2007.  On each of those three matters the Court of Appeal was unanimous.  For the penalties imposed by the Tribunal, the Court of Appeal substituted censure and suspension for a total of 12 months (by way of concurrent periods of 6 months on Complaints 3 to 5 and 12 months on Complaints 6 to 8).

92.  As to costs relating to findings, the Court of Appeal, making an order, said :

“(a) The Solicitor is to pay to the Law Society three-quarters of the costs of the appeal relating to this issue, such costs to be taxed if not agreed.

 (b) The Solicitor is to pay to the Law Society three-fifths of the costs relating to this issue in the proceedings before [the Tribunal], such costs to be taxed if not agreed.  The Solicitor is also to pay the investigation costs of the Law Society and the costs of the Clerk to [the Tribunal] relating to this issue.”

And as to costs relating to penalty, the Court of Appeal, making an order nisi, said :

“(a) The Law Society is to pay to the Solicitor the costs of the appeal relating to this issue, such costs to be taxed if not agreed.

 (b) The Solicitor is to pay to the Law Society three-fifths of the costs relating to this issue in the proceedings before [the Tribunal], such costs to be taxed if not agreed.  For the avoidance of doubt, the Solicitor is also to pay the investigation costs of the Law Society and the costs of the Clerk to [Tribunal] relating to this issue.”

93.  The Court of Appeal granted the Solicitor leave to appeal to us because of the questions of great general or public importance as to the standard of proof and precedent involved in this case.

94.  In my view, nothing turns on the imperfection of the Tribunal having spoken in terms of “the higher degree of probability commensurate with the gravity of the allegations” rather than in Re H terms.  A similar imperfection was to be found in the judgment of the trial judge in the Aktieselskabet case.  But, as can be seen at pp 78C-79D, this Court declined to hold that he had misunderstood what was required.  Upon a fair reading, its Statement of Findings does not suggest any such misunderstanding on the Tribunal’s part in the present case.  None of this is to go so far as to say that every reference to a higher degree of probability is inevitably to be treated as indicative of an adequate appreciation of the position as explained in Re H.  It depends on all the circumstances.

95.  Rowland v. Boyle [2003] STC 855 involved a finding of dishonesty made against a professional man.  He had, on the strength of his representations to the revenue, obtained interest relief.  Subsequently the revenue, coming to regard those representations as fraudulent, raised an assessment to income tax designed to reverse the effect of the interest relief which the taxpayer had obtained.  The assessment was affirmed by the Special Commissioners, and the taxpayer’s appeal from them was dismissed by Lloyd J (as he then was) sitting in the Chancery Division.  At p.882a the judge recognised that the taxpayer’s “standing as a professional man renders the more grave the finding of dishonesty against him”.  Further down the page at c to d the judge said this:

“It is accepted that where, as here, the findings in question involve fraudulent and therefore criminal conduct, although the burden of proof is the balance of probabilities, there is a degree of inherent unlikelihood that a professional man otherwise of good character would commit such acts, and that such a finding should therefore be regarded as requiring correspondingly stronger evidence before the balance shifts in favour of the Revenue.  There is, however, no suggestion that the commissioners misdirected themselves about the burden of proof in the passage in their decision where they dealt with this point”.

Authorities on the standard of proof in disciplinary proceedings

96.  Mr Gerard McCoy SC for the Solicitor has argued, ably as always, that the standard of proof in disciplinary proceedings is proof beyond reasonable doubt.  The authority on which Mr McCoy most heavily relies for that proposition is the decision of the Privy Council in Campbell v. Hamlet [2005] 3 All ER 1116, an appeal from Trinidad and Tobago.  Delivering their Lordships’ advice, Lord Brown of Eaton-under-Heywood said this at p.1121a-b :

“That the criminal standard of proof is the correct standard to be applied in all disciplinary proceedings concerning the legal profession, their Lordships entertain no doubt.  If and in so far as the Privy Council in Bhandari v. Advocates Committee [1956] 1 WLR 1442 may be thought to have approved some lesser standard, then that decision ought no longer, nearly fifty years on, to be followed.”

97.  Immediately after saying that, Lord Brown quoted this passage at p.1452 of their Lordships’ advice in Bhandari’s case (which had gone from the Advocates Committee in Kenya to the Supreme Court of Kenya, then to the Court of Appeal for Eastern Africa and finally to the Privy Council) :

“With regard to the onus of proof the Court of Appeal said : ‘We agree that in every allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for, and we cannot envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities.’  This seems to their Lordships an adequate description of the duty of a tribunal such as the Advocates Committee and there is no reason to think that either the committee or the Supreme Court applied any lower standard of proof.”

98.  Referring to that statement in Bhandari’s case, O’Connor LJ said this at p.755A in R v. Hampshire County Council, ex parte Ellerton [1985] 1 WLR 749 which involved disciplinary proceedings against a fire officer :

“I do not think that the requirement that something more than the ‘mere balance of probabilities’ is required is to be read as requiring proof beyond reasonable doubt.  It is just another way of saying what has been said in Hornal’s case [1957] 1 QB 247 and Khawaja’s case [1984] AC 74 that the civil standard is flexible.”

The other members of the English Court of Appeal in Ellerton’s case were May and Slade LJJ.  At p.759D May LJ said this :

“In my judgment the emphasis in that quotation is to be placed upon the word ‘mere’ and if this is done then the dictum is entirely consistent with the application of the civil standard of proof, albeit varying having regard to the nature of the matter in issue.”

Slade LJ agreed with O’Connor and May LJJ, adding at p.761D a reference to this statement by McCullough J at first instance :

“… a tribunal of fact will automatically take the relative seriousness of an allegation into account as one of the factors bearing on the question of whether the civil burden of proof has been discharged.”

99.  I turn now to Re A Solicitor [1993] QB 69 which, as its name implies, involved disciplinary proceedings against a solicitor.  Delivering the judgment of the Divisional Court of the Queen’s Bench Division, Lord Lane CJ cited the reference in Bhandari’s case at p.1452 to a “mere” balance of probabilities, and then said this at p.81E-F :

“It seems to us, if we may respectfully say so, that it is not altogether helpful if the burden of proof is left somewhere undefined between the criminal and the civil standards.  We conclude that at least in cases such as the present, where what is alleged is tantamount to a criminal offence, the tribunal should apply the criminal standard of proof, that is to say proof to the point where they feel sure that the charges are proved or, put in another way, proof beyond reasonable doubt.”

100. Lord Lane CJ went on to say this at p.82A-C about Ellerton’s case :

“Our attention was drawn to the decision of the Court of Appeal in [Ellerton’s case], a case in which a fireman sought judicial review in respect of disciplinary proceedings against him under the Fire Services (Discipline) Regulations 1948 (S.I. 1948 No.545).  It was held that the burden of proof in such cases was the civil standard, namely on the balance of probabilities, but it was a flexible standard, higher or lower according to the nature and gravity of the offence.  On the other hand, the Police (Discipline) (Senior Officers) Regulations 1985 (S.I. 1985 No.519) provide, by rule 18(2), that a charge ‘shall not be regarded as proved unless it is - … (b) proved by the person presenting the case … beyond reasonable doubt.’  Finally the Code of Conduct of the Bar of England and Wales provides by clause 10 that at the proceedings before a disciplinary tribunal ‘the tribunal shall apply the criminal standard of proof.’  It would be anomalous if the two branches of the profession were to apply different standards in their disciplinary proceedings.”

Referring in Campbell v. Hamlet at p.1122e-f to that last observation by Lord Lane CJ in Re A Solicitor, Lord Brown said that it “clearly warranted the Law Society Disciplinary Committee thenceforth applying the criminal standard to all cases”.  As it seems to me, decisions like Re A Solicitor and Campbell v. Hamlet have been influenced to a considerable extent by a perceived need to avoid anomalies of that sort.  In Hong Kong there is no anomaly of that sort to be avoided.

101.       The next case to mention is Lanford v. General Medical Council [1990] 1 AC 13.  Delivering the advice of the Privy Council in that appeal to their Lordships from the Professional Conduct Committee of the General Medical Council, Lord Lowry said at pp 19H-20A that counsel for the appellant doctor “(rightly, as their Lordships consider) submitted that the onus and standard of proof in these disciplinary proceedings and the relevant legal principles were those applicable to a criminal trial”.

102.       This brings me to Attorney General v. Tsui Kwok-leung [1991] 1 HKLR 40, a decision of the Court of Appeal.  As one sees at p.43H-J, I had said this at first instance :

“In my judgment, on the authority of the Privy Council’s recent decision [in Lanford’s case], the best guidance which the courts can give disciplinary tribunals is to tell them that when they are dealing with allegations of wrongdoing so serious as to have a grave effect, if proved, on a person’s career or livelihood, they ought not to find such person guilty of such wrongdoing if they have a reasonable doubt – and it is of course a reasonable doubt, not a fanciful doubt – as to whether he is indeed guilty.  Of course, such tribunals should understand – and be given to understand if necessary – that the more serious an allegation the more compelling must be the evidence to remove reasonable doubt of guilt.”

The Court of Appeal regarded itself confronted by conflicting decisions of the Privy Council.  In support of Lanford’s case were Heirs of Phillips and Narayanan Chettyar v. Official Assignee of the High Court, Rangoon (1941) 28 AIR (PC) 93.  Against Lanford’s case wereDoe d Devine v. Wilson (1855) 10 Moo 502, Bhandari’s case and Tarnesby v. General Medical Council, Privy Council Appeal No.21 of 1969 (unreported).  The Court of Appeal also saw Khawaja’s case as being against Lanford’s case.  Choosing the Khawaja approach for disciplinary proceedings in Hong Kong, the Court of Appeal said this at p.47B-D :

“Perhaps influenced by the length of the period during which the principles of Tarnesby and Khawaja have been accepted in Hong Kong we find them more convincing than those expressed in Lanford.  Indeed we gratefully adopt the extract from the speech of Lord Scarman in Khawaja, at p.112, quoted by Bokhary J in his judgment :

‘My Lords, I have come to the conclusion that the choice between the two standards is not one of any great moment.  It is largely a matter of words.  There is no need to import into this branch of the civil law the formula used for the guidance of juries in criminal cases.  The civil standard as interpreted and applied by the civil courts will meet the ends of justice.’ ”

103.       Between the time of the decision in Lanford’s case and the time of the decision in Campbell v. Hamlet, the Privy Council decided McAllister v. General Medical Council [1993] AC 388.  Delivering their Lordship’s advice in McAllister’s case, Lord Jauncey of Tullichettle referred at p.398E to the statement in Lanford’s case that the standard of proof in disciplinary proceedings is the one applicable to a criminal trial.  As to that statement, Lord Jauncey said this at p.399A-C :

“Their Lordships do not consider that the above dictum can be treated as having universal application in all cases arising before the committee.  In charges brought against a doctor where the events giving rise to the charges would also found serious criminal charges it may be appropriate that the onus and standards of proof should be those applicable to a criminal trial.  However there will be many cases, where the charges which a doctor has to face before the committee could not be the subject of serious or any criminal charges at all.  The committee is composed entirely of medical men and women learned in their profession and to require that every charge of professional misconduct has to be proved to them just as though they were a jury of layman is, in their Lordships’ view, neither necessary nor desirable.  What is of prime importance is that the charge and the conduct of the proceedings should be fair to the doctor in question in all respects.”

Neither Lanford’s case going one way nor McAllister’s case going the other way was cited in the Privy Council’s advice in Campbell v. Hamlet.  Nor was Roylance v. General Medical Council (No. 2) [2000] 1 AC 311.  In that case the Privy Council declined to disturb the findings made against a doctor by the Professional Conduct Committee.  Delivering the advice of the Privy Council, Lord Clyde said at p.329F-G that “it seems to their Lordships that the committee were entitled to reach these findings on the standard of proof beyond reasonable doubt which was accepted as appropriate”.  McAllister’s case was cited in argument but not in the Privy Council’s advice.  It is to be observed that Lord Clyde spoke of what was accepted as appropriate rather than what the Privy Council determined was appropriate.

104.       A Privy Council case in which both McAllister’s case and Re H were mentioned in their Lordships’ advice is Sadler v. General Medical Council [2003] 1 WLR 2259.  It was an appeal from the Committee on Professional Performance.  Delivering the advice of the Privy Council, Lord Walker of Gestingthorpe said this at p.2281F-2282C :

“  The function of the CPP is not penal. It is to protect the public and to rehabilitate (if possible) practitioners whose professional standards have fallen too low. In the first of its tasks (that is deciding whether the standard of a practitioner's performance has been seriously deficient) the CPP has to ascertain the primary facts (which in many cases may not be seriously in doubt) and then to exercise their judgment (in the case of some but not all the members of the CPP, their professional judgment as experienced doctors). In this exercise the standard of proof of the primary facts ought not, in the generality of cases, to be an issue which gives rise to much difficulty. So far as it is a material issue the standard should in their Lordships’ view, in the generality of cases, be the ordinary civil standard of proof.  There may be exceptional cases (probably cases in which the practitioner is fortunate to be facing the CPP rather than the Professional Conduct Committee) in which a heightened civil standard might be appropriate, as explained by the House of Lords in [Re H].

   Their Lordships do not think it prudent to try to go further in giving guidance, except to echo what was said by the Board in [McAllister’s case at p.399],

‘In charges brought against a doctor where the events giving rise to the charges would also found serious criminal charges it may be appropriate that the onus and standards of proof should be those applicable to a criminal trial. However there will be many cases, where the charges which a doctor has to face before the committee could not be the subject of serious or any criminal charges at all. The committee is composed entirely of medical men and women learned in their profession and to require that every charge of professional misconduct has to be proved to them just as though they were a jury of laymen is, in their Lordships' view, neither necessary nor desirable. What is of prime importance is that the charge and the conduct of the proceedings should be fair to the doctor in question in all respects.’”

105.       Returning to the Hong Kong decisions, I come to Tse Lo Hong v. Attorney General [1995] 3 HKC 428 which concerned disciplinary proceedings against a police officer.  It was decided by the Court of Appeal after the Privy Council’s decision in McAllister’s case.  At p.440C-E Litton VP (as he then was) said this :

“We were, in the course of the hearing, referred to [Tsui Kwok Leung’s case, McAllister’s case] and a number of other cases.  I will not burden this judgment – already far too long – with yet another analysis of the law relating to the standard of proof in police disciplinary proceedings.  In my judgment, the matter can be approached very simply.  Charge A was, in essence, one of indecent assault.  This carried severe penalties for the ‘defaulter’.  To categorize the proceedings as ‘civil’ does not end the matter.  The standard of proof must be commensurate with the gravity of the charge.  Here, the tribunal seems to have required the prosecution to prove the case on a mere ‘balance of probabilities’ which in my judgment is plainly unacceptable.”

At p.442A-B I quoted Lord Jauncey’s statement in McAllister’s case that “[i]n charges brought against a doctor where the events giving rise to the charges would also found serious criminal charges it may be appropriate that the onus and standards of proof should be those applicable to a criminal trial”.  And then I said this at p.442E :

“So the criminal standard of proof is not applicable simply because a serious disciplinary charge is involved.  But where the events giving rise to such a disciplinary charge would also found serious criminal charges, then it may be appropriate to apply that standard.”

Godfrey JA (as he then was) said this at p.444A-B :

“Whilst it is true that disciplinary proceedings are not criminal proceedings, I am of the opinion that the standard of proof in such proceedings as these requires at least this, that if, taking the evidence as a whole, there must be a reasonable doubt as to the guilt of the ‘defaulter’, then he is entitled to a finding that the case against him has not been proved.”

106.       One month after Tse Lo Hong’s case was decided, the Court of Appeal decided Lai King Shing v. Medical Council of Hong Kong [1996] 1 HKC 24 which concerned disciplinary proceedings against a doctor.  The Court of Appeal’s judgment was given by Keith J (as he then was) who said this at pp 27B-28B :

“  The authorities on the standard of proof in disciplinary proceedings have not spoken with one voice in the past, but all the relevant recent authorities were considered as recently as last month by this court in [Tse Lo Hong’s case]. That was an appeal which concerned disciplinary proceedings against a police officer. The judgment of Bokhary JA reviewed the authorities comprehensively at 441E-442E. In particular, he referred to the decision of this court in [Tsui Kwok Leung’s case], which has traditionally been regarded as authority for the proposition that whatever may be the standard of proof required in disciplinary proceedings, it falls short of satisfaction beyond all reasonable doubt.

Against that background, Litton VP said at 440D-E: ‘The standard of proof must be commensurate with the gravity of the charge’.

As for Bokhary JA himself, his view, when properly analysed, was the same as that of Litton VP.  He said at 442E : ‘... where the events giving rise to such a disciplinary charge would also found serious criminal charges, then it may be appropriate to apply [the criminal] standard [of proof’. 

However, when he came to consider the standard of proof which had in fact been applied by the adjudicating officer in that case, he said at 443G that the adjudicating officer had not applied ‘a standard of proof commensurate with the gravity of the case’ .

I agree entirely with this approach. It has the inestimable advantage of flexibility, and does not tie the hands of the disciplinary tribunal to a particular standard of proof, whatever the nature of the allegations and whatever the consequences for the person facing the disciplinary action.  The more serious the complaint, and the more dire its consequences, the greater the degree of proof required to prove it, even though the degree of proof required falls short of proof beyond reasonable doubt.

The critical issue, therefore, is: what is the standard of proof commensurate to the gravity of a complaint of indecent assault by a doctor on his patient? In Tse Lo Hong, Godfrey JA thought that only proof beyond reasonable doubt would be commensurate to the gravity of a charge which, if proved, was likely to result in a police officer being dismissed from the force. For my part, I am not convinced that the position of doctor and police officer is entirely analogous. But I bear in mind that the allegation being made against Dr Lai amounted to the criminal offence of indecent assault which was punishable by imprisonment.  If proved, it would have struck a devastating blow on his practice, destroying as it would have done the confidence which his female patients would otherwise have placed in him. And it would have been likely to result in Dr Lai's name being removed from the medical register for a not insignificant period. In my judgment, the standard of proof commensurate to the gravity of such a charge was, if not proof beyond reasonable doubt, proof to a degree of probability which fell short of proof beyond reasonable doubt by so small a margin as made no practical difference.”

107.      Soon after those two cases, one concerning a police officer and the other a doctor, came a case concerning a solicitor.  This was the case of A Solicitor v. Law Society of Hong Kong [1997] 1 HKLRD 63 (which the Court of Appeal decided in November 1995 one month after the decision in Lai King Shing’s case).  At p.69 F-G Nazareth VP said this :

 “As for the standard of proof required, clearly it was not that of proof beyond reasonable doubt.  This was not even a case of allegations of conduct of the nature of a criminal offence nor was so high a standard required as to be virtually the same.  The standard embodied by a balance of probability enables a tribunal to apply that which is commensurate with the gravity of the complaint.  See for example [Lai King Shing’s case] decided by this court only last month.  The conduct that is the subject of the complaint here is far from conduct that would be a criminal offence.  There is no reason to suppose here that the tribunal applied any standard other than what is commensurate.”

108.       Wu Hin Ting v. Medical Council of Hong Kong [2004] 2 HKC 367 is a case on the standard of proof which the Court of Appeal decided after Re H.  What Ma CJHC said in Wu Hin Ting’s case includes the following at p.378D-G :

“The words ‘stricter standard of proof’ involve a flexible concept. The only rule must be, as Litton VP said in [Tse Lo Hong’s case at p.440D], the appropriate standard of proof should be commensurate with the gravity of the charge.  This is not new law.  The more serious the charge, the more cogent the evidence must be to prove it.  The logic here is that the more serious the allegation, the less likely it is that the event occurred : see [Re H].

Thus, where in disciplinary proceedings, the charges amount to serious charges of a criminal nature, the requisite standard of proof will be the criminal standard of proof : see Tse Lo Hong at 442E (per Bokhary JA) and 444B (per Godfrey JA).  The word ‘serious’ is an interesting qualification and I leave open for a future case the consideration of disciplinary charges which coincide with crimes but which are on the lower end of the spectrum regarding seriousness.  In Tse Lo Hong, of course, involving a charge of indecent assault, the criminal standard of proof had to be applied.”

109.       Having cited that, I should mention an observation made in LL Mu v. Medical Council of Hong Kong [1995] 1 HKLR 29 at p.36 by Sears J sitting in the Court of Appeal.  This was that the standard of proof in disciplinary proceedings is “similar or closely similar to the criminal standard”.

110.       We were shown a number of New Zealand cases.  They included the recent one of Z v. Complaints Assessment Committee [2007] NZAR 343.  In that case the New Zealand Court of Appeal, after considering Campbell v. Hamlet, held (at p.351) that the standard of proof in disciplinary proceedings “is the civil standard and that it operates in the manner set out by Lord Nicholls in Re H”.  We have been informed by counsel that Z’s case has proceeded to the Supreme Court of New Zealand where it has been argued but has not yet decided.

Standard of proof for disciplinary proceedings in Hong Kong

111.       Pirie v. Bar Council [2001] 4 HKC 190 did not turn on the standard of proof in disciplinary proceedings, and no decision thereon by the Court of Appeal was necessary.  Nevertheless Le Pichon JA made certain observations in regard to the standard of proof in such proceedings, which observations are worth noting.  These appear at p.204 F-I where she said:

“  It was common ground at that hearing that so far as the standard of proof was concerned, the criminal standard or a standard that is so close to or indistinguishable from the criminal standard should be applied.  It would appear that the tribunal decided that it was logical for the rules of criminal evidence and procedure to apply.  Nevertheless, it acceded to the invitation of counsel for the Bar Council that the tribunal would exercise ‘some flexibility over the criminal rules’.

A direction that criminal rules should apply ‘with flexibility’ appears to me to be entirely unsatisfactory inasmuch as it creates considerable uncertainty as to the extent the rules actually apply.  A party who has to defend himself against serious allegations which are tantamount to the commission of a criminal offence and which have serious repercussions on his professional career should not be placed in a situation where the ground rules for defending himself are elastic and the boundaries imprecise.”

112.       The standard of proof in disciplinary proceedings must be clear and, at the same time, capable of accommodating the variety of circumstances in which it has to be applied from case to case.  It must lend itself to the just and proper disposal of all those cases.

113.       As we have seen, this Court has adopted and consistently applied the Re H approach.  Of the things which I have said in the lower courts about the standard of proof in disciplinary proceedings, there is only one thing I would now reiterate.  This is (as I had said at first instance in Tsui Kwok-leung’s case at p.43I) that “the more serious an allegation the more compelling must be the evidence”.  But instead of speaking in terms of the evidence being sufficiently compelling to remove reasonable doubt of guilt, I would now say that the evidence must be sufficiently compelling to overcome the improbability of the serious allegation being true and thus prove it on a preponderance of probability.

114.       Where maintaining standards within professions and services is involved, the courts are always mindful of their duty to protect the public.  That point was made by Mason J (as he then was) in Weaver v. Law Society of New South Wales (1979) 142 CLR 201 at p.207 (in a judgment with which the other members of the High Court of Australia agreed).  I made the same point in Medical Council of Hong Kong v. Chow Siu Shek (2000) 3 HKCFAR 144 at p.155A-D (in a judgment with which the other members of this Court agreed).  The point is obvious.  I have cited cases on it only out of respect for the sort of sentiment neatly expressed by Lefroy CJ in the Irish Queen’s Bench Chamber in R v. Carden (1854) 6 Cox Crim Cas 484 at p.486 when he said: “I am always glad, however strong my own opinion may be, to find specific authority to support it”.

115.       As for the interests of persons facing serious allegations, due protection is afforded by the Re H approach properly understood and applied.  It is to be remembered that the expression “beyond reasonable doubt” is, as Lord Scarman pointed out in Khawaja’s case at p.112F, “the formula used for the guidance of juries in criminal cases”.  How that formula evolved is dealt with in Wigmore on Evidence, 3rd ed. (1940) vol. 9 §2497 at p.317 where this is said:

“ ‘A clear impression’, ‘upon clear grounds’, ‘satisfied’, are the earlier phrases; and then ‘rational doubt’, ‘rational and well-grounded doubt’, ‘beyond the probability of doubt’ and ‘reasonable doubt’ came into use.  Then, in Mr Starkie’s classical treaties, ‘moral certainty, to the exclusion of all reasonable doubt’ is given vogue”.

Lord Scarman considered it unnecessary to import the formula “beyond reasonable doubt” into the branch of English civil law concerned in Khawaja’s case.  Similarly, I consider it unnecessary to import that formula into the branch of Hong Kong civil law concerned in the present case.  It is unnecessary in the light of Re H.

116.       In my view, the standard of proof for disciplinary proceedings in Hong Kong is a preponderance of probability under the Re H approach.  The more serious the act or omission alleged, the more inherently improbable must it be regarded.  And the more inherently improbable it is regarded, the more compelling will be the evidence needed to prove it on a preponderance of probability.  If that is properly appreciated and applied in a fair-minded manner, it will provide an appropriate approach to proof in disciplinary proceedings.  Such an approach will be duly conducive to serving the public interest by maintaining standards within the professions and the services while, at the same time, protecting their members from unjust condemnation.

Findings not vitiated by error in regard to standard of proof

117.       Upon a fair reading of its Statement of Findings, there is on the Tribunal’s part no such error in regard to the standard of proof as would vitiate its findings against the Solicitor which he now appeals against to us.  None of those findings are to be overturned for such error.

118.       In the alternative to the submission made on the Solicitor’s behalf that those findings ought to be overturned for error as to the standard of proof, it is submitted on his behalf that they ought to be overturned even in the absence of such error.  Suffice it to say that I see no basis for such a course unless the Court of Appeal can be said to have adopted an approach more restrictive than the one appropriate for an appellate court when reviewing the findings of a disciplinary tribunal.

Appellate court’s role when reviewing disciplinary tribunal’s findings

119.       In regard to the role of an appellate court when reviewing the findings of a disciplinary tribunal, three decisions of the Privy Council arise for consideration.  They are Libman v. General Medical Council [1972] AC 217, Ghosh v. General Medical Council [2001] 1 WLR 1915 and Preiss v. General Dental Council [2001] 1 WLR 1926.  Mr McCoy submits that the Ghosh/Preiss approach is the appropriate one.  The effect of each of those three decisions may be taken from this passage (at pp1935G-1936A) in their Lordships’ advice delivered by Lord Cooke of Thorndon in Preiss’s case:

“In [Ghosh’s case at p.1923F-H] the Board has recently emphasised that the powers are not as limited as may be suggested by some of the observations which have been made in the past.  An instance, on which some reliance was placed for the General Dental Council in the argument of the present appeal, is the observation in [Libman’s case at p.221], suggesting that findings of a professional disciplinary committee should not be disturbed unless sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence was misread.  That observation has been applied from time to time in the past, but in their Lordships’ view it can no longer be taken as definitive.  This does not mean that respect will not be accorded to the opinion of a professional tribunal on technical matters.  But, as indicated in Ghosh, the appropriate degree of deference will depend on the circumstances.”

120.       I find that wholly convincing. In my view, the role of our courts when reviewing the findings of a disciplinary tribunal is to be understood in the way explained by Lord Cooke in the passage quoted above.

121.       Looking at the Court of Appeal judgments on findings in the present case, none of those judgments reflect the Libman approach.  Indeed, Ma CJHC and Tang JA each made express reference to the Ghosh/Preiss approach in terms which demonstrate that he had followed it.  The Solicitor has no cause for complaint against the Court of Appeal’s approach in the present case to the role of an appellate court when reviewing the findings of a disciplinary tribunal.

Result

122.       In the result, I would dismiss this appeal and deal with costs in the manner proposed by the Chief Justice.

Mr Justice Chan PJ :

123.       I agree with the judgment of the Chief Justice and that of Mr Justice Bokhary PJ.

Mr Justice Ribeiro PJ :

124.       I agree with the judgment of the Chief Justice and that of Mr Justice Bokhary PJ.

Sir Anthony Mason NPJ :

125.       I agree with the judgment of the Chief Justice and that of Mr Justice Bokhary PJ.

Chief Justice Li :

126.       The Court unanimously dismisses the appeal with costs. An order nisi is made that the appellant shall pay 50% of the respondent’s costs of the appeal.  The order nisi shall become absolute within 21 days unless either party lodges written submissions within that period seeking a different order.

[1]    Keep to what has been decided previously.

[2]    The doctrine of precedent involves a decision of a superior court being binding on a lower court.  The doctrine of precedent also includes the doctrine of stare decisis which involves a superior court being bound by its own previous decision.  See Sir Anthony Mason :The Use and Abuse of Precedent (1988) 4 Australian Bar Review93 at 95 & 98.

[3] Article 8 of the Basic Law provides :

The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.

[4] Article 18(1) provides :

The laws in force in the Hong Kong Special Administrative Region shall be this Law, the laws previously in force in Hong Kong as provided for in Article 8 of this Law, and the laws enacted by the legislature of the Region.

[5]    For similar statements in the Privy Council that the courts in a particular jurisdiction are bound to follow decisions of the Privy Council in appeals from that jurisdiction, see Baker v. The Queen [1975] AC 774 at 788D-E (Jamaica) and Gibson v. Government of the United States of America [2007] 1 WLR 2367 at 2377F (Bahamas).  Note that the passage in the latter case is in the dissenting judgment of Lords Hoffmann, Carswell and Mance but the dissent did not relate to this matter.

[6]    See Negro v. Pietro’s Bread Co Ltd [1933] 1 DLR 490 where the Ontario Court of Appeal held that it was not bound by a decision of the Privy Council on appeal from Australia.

[7]    The Privy Council accepted that the common law may develop along lines different from those in England in a jurisdiction from which an appeal lies to it, having regard to the circumstances in the jurisdiction concerned.  See Australian Consolidated Press v. Uren [1969] 1 AC 590 and Invercargill City Council v. Hamlin [1996] AC 624.

[8]    [1944] KB 718.  Lord Greene M.R. delivered the judgment of the Court of Appeal which consisted of six of its eight regular members.  See Davis v. Johnson [1979] AC 264 at 324A-B.  The case proceeded to the House of Lords where Viscount Simon expressed his agreement with the rule laid down by the Court of Appeal [1946] AC 163 at 169.

[9]    Previously, the Full Court had held that it was not bound by its previous decision which was considered to be manifestly wrong.  Dataprep (HK) Limited v. Kuo Chi-yung Peter [1974] HKLR 383.  It should be noted that decisions of the Full Court are not binding on the Court of Appeal.  R  v. CEC Finance Ltd [1993] 1 HKC 127, [1993] 2 HKCLR 134.

[10]   Lord Diplock noted (at 325C-G) that Lord Denning had mounted “a one-man crusade” to free the Court of Appeal from the shackles imposed by Young v. Bristol Aeroplane, although he appeared to have reluctantly recanted for a while in Miliangos v. George Frank (Textiles) Ltd [1975] QB 487.  Lord Denning accepted that he received “a crushing rebuff” from the House of Lords in Davis v. Johnson.  See Lord Denning : The Discipline of Law (1979) p.299.

[11]   In relation to a case without a jury, Cross and Harris : Precedent in English Law (4th ed. 1991) at p.72 stated : “The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, …”.  In The Use and Abuse of Precedent,supra at p.103, Sir Anthony Mason referred to the ratio as : “the principle or statement of law on which the previous decision is based to the extent to which it is essential to the decision, it being recognized that there may be more than one ratio when the court assigns more than one ground for its decision.” 

[12]   See also the recent decision of the English Court of Appeal in Whipps Cross University Hospital NHS Trust v. Iqbal  [2007] EWCA Civ 1190, [2008] LS Law Med 22 at para. 57. 

[13]   Sir Raymond Evershed delivered the judgment of the Court of Appeal consisting of five judges.

[14]   Williams v. Fawcett [1986] 1 QB 604 at 616E; Rickards v. Rickards [1990] Fam 194 at 203E.

[15]   Langley v. North West Water Authority [1991] 1 WLR 697 at 710H; Limb v. Union Jack Removals Ltd [1998] 1 WLR 1354 at 1364C-D; Cave v. Robinson Jarvis & Rolf [2002] 1 WLR 581 at 591E-F, 593E & 596B-C.

[16]   Cave v. Robinson Jarvis & Rolf, ibid at 595C (per Sedley LJ).

[17]   Tan v. Sitkowski [2007] 1 WLR 1628 at 1640F-G.

[18]   Ibid at 1640H.

[19]   Ibid at 1643C.

[20]   See Limb v. Union Jack Removals Ltd, supra at 1364B-D and Desnousse v. Newham London Borough Council [2006] QB 831 at 853G.

[21]   Lord Neuberger : “Law Reporting and the Doctrine of Precedent” in Halsbury’s Laws of England Centenary Essays 2007 p.69 at p.80.

[22]   For a helpful survey of the position in Australia and Canada, see the decision of the New Zealand Court of Appeal in R v. Chilton [2006] 2 NZLR 341 which held that after the creation of the Supreme Court to replace the Privy Council as New Zealand’s final appellate court, the intermediate Court of Appeal continues to have the power to depart from its previous decisions.

[23]   In 2006 and 2007, the Court dealt with 46 and 33 appeals and 128 and 121 applications for leave to appeal respectively.  In 1995 and 1996, the Privy Council dealt with 9 and 16 appeals and 11 and 28 petitions for leave to appeal respectively.  During the six months from 1 January to 30 June 1997, in order to clear all pending cases, the Privy Council dealt with 22 appeals and 18 petitions for leave to appeal.

[24]   See paras 61, 62, 77, 78 and 79. The majority noted that the finality provision may be challengeable, having regard to the decision of this Court in Solicitor v. Law Society of Hong Kong and Secretary for Justice (2003) 6 HKCFAR 570 that a similar finality provision for appeals from the Solicitors Disciplinary Tribunal was constitutionally invalid.  Having regard to that decision, it is doubtful whether the finality provision for appeals from the Medical Council is valid.

[25]   In England, the authority of a two-judge court is not different from a three-judge court, although there was a time in the past when a two-judge court was considered to have less authority, as it then only dealt with matters under a summary procedure with brief arguments which were unlikely to be appealed.  See Cave v. Robinson Jarvis & Rolf at 589F-593F where the English position is traced.