ZHU LI v. THE LAW SOCIETY OF HONG KONG

HCAL 8/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 8 OF 2014

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J U D G M E N T

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Introduction

1. This judicial review has had a long history and concerns the decision of the Law Society of Hong Kong (the Law Society) not to investigate a complaint lodged by the applicant against a partner of a law firm that she was working for at the time who was also a member of the Council of the Law Society (the Council). 

2. The applicant made four allegations of misconduct against the partner.  It was decided by the Law Society that three of the allegations were not within the scope of its jurisdiction, and that the remaining allegation lacked sufficient evidence.  Not satisfied with the outcome of her complaint, the applicant sought the intervention of the Chief Judge of the High Court under the relevant statutory provision but he declined to do so, which led her to bring judicial review proceedings against the decision of the Law Society.  After the present proceedings had been instituted, the Law Society decided to consider the applicant’s complaint afresh.  The result of the fresh investigation was that the complaint did not warrant a referral to the Tribunal Convenor of the Solicitors Disciplinary Tribunal. 

The legislative framework

(a) The disciplinary process

3. The establishment of a disciplinary tribunal and the process for dealing with complaints against a solicitor are provided under sections 9, 9A and 9B of the Legal Practitioners Ordinance, Cap 159, (the Ordinance), and Articles 18(d) and (e) of the Articles of Association of the Law Society (the Articles of Association).  The provisions read as follows:

“9. Solicitors Disciplinary Tribunal Panel

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

(2) A member of the Council is not eligible to be appointed to or remain on the Panel.

(3) A person appointed to the Panel shall be appointed for a term specified by the Chief Justice not to exceed 5 years but may be reappointed for a further term or terms.

(4) The Chief Justice shall appoint a solicitor as the Tribunal Convenor for a 3 year term and he may appoint one or more solicitors on the Panel and one or more foreign lawyers on the Panel as Deputy Tribunal Convenors for 3 year terms.

(5) If the Tribunal Convenor is precluded by illness, absence from Hong Kong or any other cause from exercising his functions under this Ordinance, a Deputy Tribunal Convenor may act in his place.

(6) The Tribunal Convenor and a Deputy Tribunal Convenor who acts in the place of the Tribunal Convenor in circumstances mentioned in subsection (5) may be remunerated by the Society.” (Underline added)

“9A. Complaint about conduct of solicitor, foreign lawyer, etc.

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

(1A) Notwithstanding subsection (1), if the conduct involves an alleged breach of-

(a) a provision of this Ordinance;

(b) a practice direction issued by the Society; or

(c) a principle of professional conduct contained in The Hong Kong Solicitors' Guide to Professional Conduct,

prescribed in rules made by the Council, and the Council considers that that matter is suitable for disposal by the Tribunal Convenor under section 9AB, the Council may submit the matter to the Tribunal Convenor for such disposal subject to the conditions mentioned in subsection (1) of that section being satisfied.

(1B) In considering whether a matter is suitable for disposal by the Tribunal Convenor under section 9AB, the Council may take into account the following-

(a) whether the alleged breach is deliberate;

(b) whether the alleged breach has been committed with a dishonest intent;

(c) the gravity of the alleged breach;

(d) any other factor it considers relevant.

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

“9B. Solicitors Disciplinary Tribunal

(1) On receipt of a submission under section 8A(3) or 9A in respect of a person who is, or was at the relevant time, a solicitor, a trainee solicitor or an employee of a solicitor the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel shall, unless it is a matter that is to be disposed of by the Tribunal Convenor under section 9AB, appoint from the Panel 2 solicitors and one lay person to constitute a Solicitors Disciplinary Tribunal to inquire into and investigate the matter.

(1A) On receipt of a submission under section 8A(3) or 9A in respect of a person who is, or was at the relevant time, a foreign lawyer or an employee of a foreign lawyer the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel shall, unless it is a matter that is to be disposed of by the Tribunal Convenor under section 9AB, appoint from the Panel 2 solicitors, one foreign lawyer and one lay person to constitute a Solicitors Disciplinary Tribunal to inquire into and investigate the matter.

(2) The Tribunal members shall elect as chairman one of its members who is a solicitor.

(3) The Council may be represented at proceedings before the Tribunal.

(4) The Tribunal shall sit in camera in the places and at the times it directs.

(5)  A member of the Tribunal who becomes a member of the Council may continue as a member of the Tribunal notwithstanding section 9(2).”

“Article 18:

Without prejudice to the general powers conferred by Article 17 hereof the Council shall have power:-

…

(d) To investigate any charge of misconduct against any solicitor (whether a Member or not) or employee of a solicitor and to institute and (if the Council thinks fit) prosecute any disciplinary proceedings.

(e)  To call upon any Member or Associate Member for an explanation of any conduct of such Member or Associate Member which may, in the opinion of the Council, appear to be dishonourable, improper or unprofessional.”

(b) The investigatory function

4. The Council is empowered to appoint a person as an inspector to assist it in a variety of supervisory and investigative tasks in relation to the professional conduct of its members.  The appointment and powers of an investigator are provided under sections 8AA and 8AAA of the Ordinance.  The provisions read as follows: 

“8AA. Appointment and powers of inspector

(1) The Council may appoint a person as an inspector to assist the Council—

(a) in verifying compliance by a solicitor, a foreign lawyer, a trainee solicitor or an employee of a solicitor or foreign lawyer with the provisions of this Ordinance or any practice direction issued by the Society;

(b) in determining for the purpose of section 9A whether the conduct of any solicitor, foreign lawyer, trainee solicitor or employee of a solicitor or foreign lawyer should be inquired into or investigated; or

(c) in relation to an inquiry or investigation under section 9B.

(2) For the purposes of subsection (1), an inspector may—

(a) in relation to any person who acts or purports to act as an employee of a solicitor in the premises of any court or place of lawful detention—

    (i) question there and then the person as to his name, identity card number, the identity of any client for whom he acts or purports to act on that occasion and the name of the firm of which he acts or purports to act as the employee; and

    (ii) require the person to produce for inspection there and then all documents in his possession that the inspector reasonably suspects to be relevant to any matter referred to in subsection (1)(a), (b) or (c) and copy or seize any of the documents; and

(b) (i) subject to subsection (3), require a solicitor, a foreign lawyer or an employee of a solicitor or foreign lawyer to produce or deliver to him for inspection, at a time and place specified by him, all documents in the possession of the solicitor, foreign lawyer or employee of a solicitor or foreign lawyer that the inspector reasonably suspects to be relevant to any matter referred to in subsection (1)(a), (b) or (c) and specifies particularly or generally; and

    (ii) copy or seize any of the documents produced or delivered under subparagraph (i).

(3) An inspector shall not exercise his power under subsection (2)(b)(i) except under a direction of the Council to do so.

(4) No liability shall be incurred by any person in respect of anything done or omitted to be done by him in good faith in the exercise of any power under this section.

(5)  In this section, identity card (身分證) means an identity card issued under the Registration of Persons Ordinance (Cap. 177).”

“8AAA. Additional powers of an inspector

(1) In this section inspector (調查員) means an inspector appointed under section 8AA.

(2) The Council may direct an inspector to assist it in gathering evidence in respect of a matter the Council is considering for the purpose of deciding whether or not it should be submitted to the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel.

(3) For the purposes of this section, an inspector may question—

(a) persons who are, or were at the material time, members or employees of any law firm; or

(b)  where authorized by the Council, any other persons whom the inspector considers may be able to assist the Council.”

The legal procedures for handling of a complaint

5. The Law Society is the professional and regulatory body for solicitors in Hong Kong.  It was incorporated in 1907 as a company limited by guarantee.  The Council is the governing body of the Law Society and is responsible for the management of its affairs.  There are 20 members in the Council.  They are elected annually on a staggered basis by the membership.  The President and two Vice Presidents are elected annually by the Council. 

6. It is part of the Law Society’s function to ensure that solicitors, foreign lawyers, trainee solicitors and employees of solicitors and foreign lawyers (which I will refer to collectively as solicitors or members) comply with all relevant laws, codes, regulations, practice directions and professional conduct obligations. 

7. The Council meets twice monthly, and receives and considers reports from six Standing Committees.  One of the Standing Committees is the Standing Committee on Compliance (SCOC), which deals with the regulatory and administrative aspects of the profession. 

8. The Council is empowered under section 9A(1) of the Ordinance, and Articles 18(d) and (e) of the Articles of Association to consider complaints against its membership, who in various capacities perform the services as a solicitor. 

9. The Chief Justice is required to appoint a Solicitors Disciplinary Tribunal Panel (the Panel) consisting of 120 practising solicitors, 10 foreign lawyers, and 60 lay persons: section 9(1).  The term of the appointment of a member of the Panel is for a period not exceeding 5 years, although a member can be reappointed for a further term or terms: section 9(3).  The Chief Justice is also required to appoint a Tribunal Convenor, although he may appoint from the Panel, one or more Deputy Tribunal Convenors for three year terms: section 9(4).  It is to be noted that section 9(2) stipulates that a Council member is not eligible to be appointed to or remain on the Panel.

10. The members of the Solicitors Disciplinary Tribunal (the Tribunal) are selected from the Panel: section 9B(1) and (1A).  However, curiously under section 9B(5) a Tribunal member who becomes a Council member may continue as a member of the Tribunal notwithstanding section 9(2).  Otherwise, no Council member can be a member of the Solicitors Disciplinary Tribunal. 

11. It is suggested by Au J in his decision on a security of costs application by the Law Society against the applicant that the underlying reason for section 9(2) is in order to avoid any apparent conflict of interest as the Council may be represented before the Solicitors Disciplinary Tribunal: section 9B(3).[1] I would add that there is also the apparent conflict of interest by the fact that the Council after consideration of the complaint submits it to the Tribunal Convenor for inquiry or investigation: section 9A(1). 

12. Au J observed that given the important professional roles solicitors play in society and the trust the public has generally placed on the legal profession, “it must be of public interest for the Law Society to properly and fairly discharge its statutory regulatory and disciplinary function and its (in its own words) ‘frontline responsibility to ensure compliance by solicitors with the rules’.”[2]

13. As provided under section 9A(1), when the Council receives a complaint, and it considers that the conduct of the complained solicitor should be inquired into or investigated, it must refer it to the Tribunal Convenor.

14. The Council’s power to investigate professional misconduct of its members is delegated to the Conduct Section, the Investigation Committee and the SCOC, which perform the functions of investigating, deciding and reviewing the decision of the complaint respectively.

15. Ms Margot Tung Yin Ka, the Director of the Compliance Department of the Law Society, in her evidence has explained the role and responsibilities of the investigatory bodies when dealing with a complaint against a solicitor.  As she explains it, the process works as follows. 

16. After the Council has received a complaint, it is the SCOC effectively through the Investigation Committee, based on a report submitted by the Investigation Counsel, which decides as to whether the complaint should be further inquired into or investigated.  If it decides it should, the Council would exercise its power under section 9A(1) to refer the complaint to the Tribunal Convenor. 

17. The Conduct Section is responsible for investigating complaints and preparing investigation reports. Included in its staff are a number of Investigation Counsel, who are solicitors responsible for investigating complaints and preparing investigation reports for the Investigation Committee and the SCOC. 

18. The Investigation Committee is an ad hoc sub-committee of the SCOC.  Each Investigation Committee is made up of three persons, who are elected from members of the SCOC according to their expertise and language skills.  At any given time, there may be a number of different Investigation Committees considering different complaints and reports prepared by Investigation Counsel.  The role of the Investigation Committee is to consider any report submitted by the Investigation Counsel and to consider and decide on a complaint.  The Investigation Committee does not meet with the parties to the complaint.  As a matter of policy, the Law Society does not disclose the identities of the three members of the Investigation Committee to the public or to the parties to the complaint.  The decision of an Investigation Committee may not be final, in the sense that it may involve referral to the SCOC to consider whether the Solicitors Disciplinary Tribunal should be convened or to review the decision at the request of any aggrieved party. 

19. The SCOC consists of 19 practising solicitors, 10 of whom are Council members, with the remaining 9 being Non-Council members.  The composition of the SCOC is public knowledge and the members of the SCOC are identified in the Law Society’s website.  The SCOC monitors the work of the Conduct Section and will refer appropriate disciplinary matters to the Tribunal Convenor. 

20. A final matter that should be mentioned is that under section 9A(2) the Chief Judge of the High Court is empowered to directly submit a complaint to the Tribunal Convenor in certain circumstances.  It would appear that the Council’s jurisdiction is wider than that of the Chief Judge.  The Council considers whether or not to submit to the Tribunal Convenor the conduct of a solicitor “as a result of a complaint being made to it or otherwise”.  The Chief Judge can only exercise his power in relation to “a complaint made to the Council”.  The reference to “otherwise” means that the conduct of a solicitor may come to the attention of the Council other than through a complaint having been made to it.

Background facts

21. The applicant is a qualified lawyer in mainland China who was formerly an employee of a major law firm in its Beijing office from 2003 to 2010.  Thereafter, she was seconded to the law firm’s Hong Kong office from September 2010 to March 2012.

22. On 9 October 2011, the applicant lodged a complaint with the Law Society against a partner of the law firm in Hong Kong.  She made four allegations of misconduct against the partner.  The first was that the partner conspired with his client’s mainland Chinese lawyers to make illegal monies.  The second was that he practised law in the People’s Republic of China (the PRC) when he was not qualified to do so.  The third was that he acted for clients regardless of an apparent conflict of interest in a criminal case in mainland China.  The fourth was that he had private meetings with arbitrators in an arbitration case in Shenzhen.  At the time of the complaint, the partner was a Council member of the Law Society.

23. On 3 February 2012, the Director of Compliance for the Investigation Committee wrote to the applicant and informed her that the Investigation Committee had considered and decided to withhold the investigation of the complaint in light of the ongoing investigations by the PRC authority and the law firm.

24. The applicant then requested the Law Society to review that decision by an email dated 28 February 2012.

25. On 26 April 2012, the Law Society wrote to the applicant and informed her that it would withhold the investigation as the applicant had issued civil proceedings in the District Court against the law firm claiming it had breached her secondment contract on the ground that it had wrongly terminated her services in March 2012.

26. On 16 August 2012, the applicant wrote to the Chief Judge of the High Court of Hong Kong asking him to exercise his power under section 9A(2), to directly submit the complaint to the Tribunal Convenor.

27. On 4 October 2012, the Law Society wrote to the clerk of the Chief Judge and informed him that the applicant’s civil claim in the District Court had been struck out and that it would resume the investigation into her complaint including her request for a review of the Investigation Committee’s decision on 28 February 2012.  This information was passed on to the applicant by the clerk of the Chief Judge in a letter dated 8 October 2012. 

28. On 11 December 2012, the Law Society informed the applicant that the SCOC, after considering the complaint afresh, resolved that the matters complained of by her “were not within the scope of the jurisdiction of the Law Society and the complaint was unpursuable, the Law Society would not take any further action in this matter.”

29. On 17 December 2012, the applicant wrote again to the Chief Judge, informing him of the latest decision of the Law Society, and asking that he exercises his statutory power to directly submit the complaint to the Tribunal Convenor.  There was a further letter on the matter from the applicant to the Chief Judge on 1 August 2013.

30. On 30 August 2013, the Chief Judge wrote to the Law Society, noting the SCOC’s decision not to investigate the matters for want of jurisdiction, and asked for elaboration in relation to the second allegation which concerned the partner without proper qualification advising clients on PRC law in Hong Kong.

31. On 16 September 2013, the Law Society wrote to the Chief Judge and informed him of the resolution of the SCOC on 9 November 2012 that the first, third and fourth allegations were “unpursuable” because they were not within the scope of jurisdiction of the Law Society and that the second allegation was “unpursuable” because the applicant had not provided evidence to support her allegation.

32. The Chief Judge by letter dated 11 October 2013 informed the applicant of the contents of the Law Society’s latest letter.  The Chief Judge also noted that his discretion under section 9A(2) to submit a complaint to the Tribunal Convenor was exercisable if he considered that the Council of the Law Society ought to have done so.  He went on to state that in general terms only when the Council had considered the complaint on its merits but had decided not to submit it to the Tribunal Convenor, and he disagreed with that decision, that he may, in his discretion, submit it instead.  He noted that in the present case the Council had not considered the complaint on its merits, but decided not to submit it to the Tribunal Convenor for other reasons.  He stated that he did not think it was an appropriate case for him to consider exercising the statutory power available to him.  He also noted that there were other forms of legal redress available to an aggrieved complainant.

33. On 16 January 2014, the applicant sought leave to judicially review the decision of the SCOC made on 9 November 2012.  Leave was granted by Au J on 9 July 2014.

34. At the first directions hearing of the present judicial review on 13 and 14 August 2014 before Au J, the Law Society informed the Court and the applicant that having reviewed the matter, it accepted jurisdiction over the complaint and would proceed to investigate it.

35. Sometime later, an application was made by the Law Society for security for costs against the applicant.  It was heard on 27 October 2015 by Au J who refused the application in his decision dated 12 April 2016. 

The grounds for judicial review

36. The applicant challenges the decision of the Law Society not to invoke its power under section 9A(1) to submit her complaint to the Tribunal Convenor. 

37. The initial relief sought was for an order that the Law Society submit her complaint to the Tribunal Convenor.  The grounds for relief were that the Law Society had failed to perform its statutory duty under section 9A(1) to investigate her complaint and refer it to the Tribunal Convenor and therefore the decision was illegal; that the Law Society erred in denying its own jurisdiction over three of the allegations of complaint; that the Law Society failed to have due regard to the circumstances of the allegation in finding no supporting evidence in relation to the remaining allegation of complaint and therefore the decision was irrational; that the Law Society’s decision was tainted by conflict of interest; that the procedure of making the decision was unlawful, unfair and improper; that the Law Society showed bias in making the decision; and that the Law Society failed to give reasons or sufficient reasons for its decision. 

38. After the Law Society had reconsidered its position and decided to investigate the applicant’s complaint, the applicant on 8 November 2016 sought to amend her application by including additional relief that if the initial order was not possible both in fact or in law, for an order that the Law Society investigate the complaint afresh by due procedure; and a declaration that the Law Society’s complaint handling procedure is defective to the extent that it fails to ensure independent and impartial handling of complaints against a Council member.

39. The grounds for additional relief are that the “fresh investigation” was “arbitrary, unfair and unlawful”, and that “inherent bias and conflict of interest exist” in the Law Society’s complaint handling procedure when the complained solicitor is a Council member. 

40. The general grounds of procedural irregularities alleged are that (1) the complained solicitor has been a Council member for more than 10 years and was still serving on the Council; (2) all or some of the members of the Investigation Committee might well be also Council members, but the applicant as the complainant was not made aware of the composition of the Investigation Committee; (3) the Chairman of the Standing Committee on Compliance at the time of the decision was also a Council member; (4) members of the Council have been meeting regularly and dealing closely with each other in relation to Council affairs; and (5) in the premises, there is actual conflict of interest for the Standing Committee on Compliance in making the decision relating to complaints made against a senior Council member, and in the alternative there is at least apparent bias since an objective and reasonable person in the position of a complainant, such as the applicant, would be of the view that there is a real risk of bias, in particular when the composition of the three member Investigation Committee is kept confidential. 

Amending the application

41. The applicant seeks to amend her application pursuant to Order 53, rule 6(2) of the Rules of the High Court.  It is within the Court’s discretion to grant an amendment to an application, “whether by specifying different or additional grounds or relief or otherwise as it thinks fit”.  A court will normally permit such amendments as may be required to ensure that the real dispute between the parties can be determined, but fundamentally on the basis that it is fair and appropriate to do so in all the circumstances.[3]

42. The applicant seeks the amendment in order to address what she says has now become the real issue in this judicial review following the Law Society’s decision to conduct a “fresh investigation”, namely, whether the complaint handling procedure is inherently biased against a complainant and in favour of a Council member who is the subject of complaint, and whether there is a real risk of conflict of interest in the Law Society’s handling of a complaint against a Council member. 

43. Mr Abraham Chan, counsel for the Law Society, submits that the challenge to the original decision has been superseded by the fresh investigation and is wholly academic, and further that the new challenge to the complaint handling procedure is out of time and also wholly academic. 

44. He points out that under the Law Society’s updated policy, complaints against Council members are to be handled only by Investigation Committees comprising only of Non-Council members.  Whilst this is a welcomed initiative, it came about because of the applicant’s judicial review. 

45. There has been in recent times extensive and critical commentary about the judicial review jurisdiction, but all in all it provides a very important and highly effective means by which an aggrieved citizen can seek and obtain legal redress and relief in relation to a decision or act of a public body or entity.  Due to the nature and subject of the jurisdiction, judicial intervention will only be warranted to the extent necessary and proportionate to achieve a just and practical outcome in public administration.  It is important to bear in mind that judicial intervention does not seek to supplant public administration, but rather to ensure it operates fairly, properly and efficiently in the exercise of its functions and duties to and for the public. 

46. Given the diversity and breadth of public administration, with its numerous structures and layers, the court’s judicial review jurisdiction needs to be put in perspective and kept in check.  The administrative court’s finite resources necessitate that it will focus its efforts on truly necessary interventions and practical outcomes. This was stressed by Au J in Kwok Cheuk Kin v Chief Executive of Hong Kong,[4] where he said:

“…save in exceptional circumstances, the court would not by way of judicial review entertain challenges of intermediate decisions, which are not of final and substantive nature. Moreover, the court would also not decide questions that had become or been rendered academic.”[5]

47. It is well recognised that only in exceptional circumstances, and by that I mean where there is good reason in the public interest, will the courts entertain a question that is hypothetical or academic.  The reason for this is obvious.  The courts should be more concerned with cases which involve real and pressing disputes that through the intervention of the courts bring about a practical and meaningful outcome to public administration. 

48. I do not agree with Mr Chan that the applicant’s amendment is out of time and academic.  The amendment seeks to elaborate upon an issue that was always present and apparent in the applicant’s application.  The central theme of her complaint has been the appearance of the lack of impartiality in the complaint handling procedure when the Council has to consider a complaint against a Council member.  This has always been a live issue in these proceedings.  Furthermore, the amendment has to some extent come about in consequence of the Law Society’s decision to conduct a “fresh investigation” and shifts the emphasis in the applicant’s challenge to the complaint handling procedure. 

49. I therefore do not see that the amendment is either out of time, or addressing matters that are academic.  It still remains to be resolved whether there is substance to the applicant’s arguments as to the fairness or propriety of the Law Society’s disciplinary process when it concerns a Council member. 

50. No doubt the courts have to guard against a public authority taking corrective action in the face of a judicial review challenge, in order to avoid judicial intervention or scrutiny of the decision or act under review.  Where there is a public interest consideration, as will often arise in public law challenges, a court once seized of a matter is obliged to ensure that any wider public interest implication is appropriately addressed.[6] Obviously, a public authority taking appropriate corrective action as a result of a judicial review challenge is to be encouraged.

Disclosure application

51. Prior to the hearing of the substantive application, the applicant sought broad disclosure from the Law Society of all papers and files that it had in its possession in relation to her complaint.  Unlike private civil litigation, there is no automatic right of discovery or production of documents in judicial review proceedings.  This is mainly due to two factors.  First, a court in judicial review is concerned about whether some recognisable public wrong has taken place, and not about the merits of the decision or action under review.  Secondly, the public authority whose decision or action is under review has a duty of candour to be full and frank with the applicant and the court.

52. For a court to order disclosure in judicial review, it must be satisfied that such disclosure is necessary for disposing the critical issues fairly and justly,[7] particularly, where resolution of the critical issues requires that the court be provided with adequate disclosure.[8] Obviously, any failure to discharge the duty of candour would weigh heavily in deciding whether to grant an order of disclosure if sought in such circumstances.

53. By the time the disclosure application was made, the Law Society had filed, what can be fairly described as a full account of the history and the issues of the matter together with relevant background information.  Having considered the nature and circumstances of the application and the written submissions from the parties on the issue, I was minded not to grant the application.  However, I left the issue open if it emerged that disclosure of some kind was necessary and justified. 

54. At the conclusion of the hearing, I found no basis to change my mind on the issue.  Moreover, there was no necessity or justification to order any disclosure, let alone the broad disclosure sought by the applicant. 

The Law Society’s duty under section 9A(1)

55. The applicant’s main argument centres on the Law Society’s statutory duty under section 9A(1) which I have already set out. 

56. When the conduct of a practitioner comes to the attention of the Council, whether by complaint or otherwise, and it “considers” that the conduct of the practitioner “should be inquired into or investigated”, it is obliged to submit the matter to the Tribunal Convenor.

57. The key to this provision is that the Council is required to consider whether the conduct in question should be inquired into or investigated.  If the Council does so decide, it must submit the matter to the Tribunal Convenor. 

58. It would appear that the decision requires a collective view of the Council according to its articles and procedures.  As I have already noted, the Council consists of 20 members who are elected on a staggered basis by the membership.  The Articles of Association of the Law Society govern the conduct and voting requirements of meetings of the Council. 

59. The applicant argues that the Council’s function at this preliminary stage in handling complaints against solicitors, is to sift out wholly unmeritorious ones. 

60. The applicant submits, relying on a similar Scottish provision under section 2(4)(a) of the Legal Profession and Legal Aid (Scotland) Act 2007, that the Council should refer a complaint to the Tribunal Convenor if it is “not frivolous, vexatious or totally without merit”.  The quoted phrase is the language of the Scottish provision.  It is not the language of the Hong Kong provision.  Whilst I have no doubt that the Council at this stage should sift out wholly unmeritorious complaints, according to the language of the statutory provision the Council is obliged to submit the matter to the Tribunal Convenor if it “considers” that the conduct in question “should be inquired into or investigated”.  To “consider” something is to think carefully about it.  In other words, the Council is obliged to think carefully about whether the conduct in question should be inquired into or investigated. 

61. As I have already noted, a regime is in place to deal with complaints against solicitors.  The Conduct Section is given responsibility to investigate complaints and prepare a report which is submitted to the Council for its ultimate decision under section 9A(1).  The investigative work is carried out by Investigation Counsel who are employed by the Conduct Section.  An Investigation Committee is established, consisting of three members of the SCOC, to oversee the investigation and to make a recommendation on the complaint.  The recommendation of the Investigation Committee may be further considered by the SCOC before it is submitted to the Council.  It is primarily at this stage of the process that the applicant argues is defective when dealing with a complaint against a Council member. 

62. The SCOC consists of 19 practising solicitors, 10 of whom are Council members.  Whilst the composition of the SCOC is made public, the identities of the three members of the Investigation Committee is not.  So it is quite possible that an Investigation Committee could consist of one, two or even three Council members, which would not be disclosed, in relation to a complaint against a Council member.  It is for this reason that the applicant argues that a reasonable observer may view the disciplinary process against a Council member with scepticism because of the likelihood of the complaint being handled by a fellow Council member or members.

63. The applicant further argues that the threshold that the Council has to meet in making a referral is not high, and is lower than a prima facie case.  She bases her argument on Rule 6 of the Solicitors Disciplinary Tribunal Proceedings Rules, Cap 159C, which provides that when a complaint has been referred to the Solicitors Disciplinary Tribunal, it can dismiss the complaint summarily on the papers if it finds that there is no prima facie case of professional misconduct.  The rule reads:

“6. Dismissal without answer by respondent

(1) If upon consideration of any such documents transmitted to the Solicitors Disciplinary Tribunal under rule 4, the Solicitors Disciplinary Tribunal is of the opinion that no prima facie case is shown for any disciplinary action, the Solicitors Disciplinary Tribunal may dismiss the application without requiring the respondent to answer the allegations, and without hearing the applicant.

(2)  If required so to do either by the applicant, the Society or the respondent, the Solicitors Disciplinary Tribunal shall make a formal order dismissing such application and the clerk shall file the order pursuant to section 10(3) and section 12(2) of the Ordinance.”

64. Relying on the test in Rule 6, the applicant submits by reverse logic that the threshold the Council needs to meet is less than a prima facie case.  I do not agree.  The test that the Council has to apply is as I have stated one that follows the language of section 9A(1), namely that it “considers” whether the conduct in question should be inquired into or investigated.

65. Clearly the function of the Council at this stage of the disciplinary process is to determine whether or not to submit the conduct in question for inquiry or investigation.  It is a referral function, not a proper investigatory one.  However, it does require the Council to examine and evaluate the conduct in question, whether by complaint or otherwise, bearing in mind it is a referral function, warranting a prompt and informed decision.

The “fresh investigation” cannot supersede the decision or the decision-making process

66. I have difficulty understanding the applicant’s argument under this ground.  It appears she is complaining that the “fresh investigation” does not satisfy the alternative relief sought.  She argues that the decision-making process is tainted by procedural unfairness, bias and conflict of interest, and therefore the original decision is unlawful and irrational, and the “fresh investigation” is “arbitrary, unfair and unlawful”. 

67. The problem with this argument is that it is based on unsubstantiated assertions that the Council members (all 20 of them) have acted in concert to protect the partner, the subject of the complaint.  It is also inconsistent with the general relief sought by the applicant.  The present proceedings were brought by the applicant against the Council’s decision not to submit her complaint to the Tribunal Convenor through an independent and impartial process.  The relief sought was that the Council should do so.  The Council has arranged for the applicant’s complaint to be investigated by a specially appointed Investigation Counsel and a three-member Investigation Committee, who have no previous involvement in the applicant’s case, nor any connection with the Council.  Even though this is essentially the relief the applicant sought, she challenges the referral as “arbitrary, unfair and unlawful”.

68. As I understand the applicant’s argument and the position that she now takes, is that the existing decision-making process is defective for the reasons she has submitted, and therefore the decision or any further decision of her complaint is tainted.  Her argument rests on whether the existing decision-making process is defective as she has submitted. Although her argument does not necessarily mean that a subsequent decision is tainted because of a previous decision.  It will depend upon the circumstances of the case.

69. The applicant also argues that there is no guarantee that her complaint will be handled “independently and impartially”.  She notes that the Law Society has a statutory duty to regulate solicitors to ensure they act according to professional standards and in the public interest.  She argues that this public responsibility conflicts with the Law Society’s private responsibility as a representative of the interests of solicitors in Hong Kong. 

70. Whilst the Law Society has these dual responsibilities, it does not mean they are in conflict as the applicant argues.  As long as there are appropriate checks and balances, the two responsibilities can co-exist.  It is in the interests of the legal profession and all its members that improper or unfit practitioners are appropriately dealt with after it is found that they have misconducted themselves or are no longer fit to practice.  This is substantially reflected by the regulations and rules that have been promulgated, and the guidelines and mechanisms in place to address any violation or breach of them. 

71. The applicant complains of the resistance to her application from the Law Society and the applications it has made against her in the course of these proceedings.  She alleges that this evidences the Law Society covering up an embarrassing complaint against a Council member and avoiding to address the sensitive subject of the complaint concerning the practice of mainland China laws by Hong Kong solicitors. 

72. I find no substance to these allegations.  As far as I am concerned the Law Society has taken a principled approach in dealing with this application and there is nothing to suggest that anything untoward has taken place. 

73. I should add that this Court has been informed by the Law Society that the new investigation has been conducted and completed.  The investigation was carried out by an Investigation Counsel from the Conduct Section with no prior involvement in the case.  The Investigation Counsel’s findings and relevant supporting material were thereafter provided to an Investigation Committee comprised of three Non-Council members for their consideration and decision.  The Investigation Committee reviewed and considered the procedure and findings of the Investigation Counsel and agreed with her conclusion that the matter did not warrant referral to the Tribunal Convenor. 

Whether the complaint handling process is defective

74. Au J in his decision on security for costs noted that one of the fundamental grounds the applicant raised in the judicial review is that there is procedural unfairness in the process of the investigation of the complaint relating to the partner as a senior member of the Council.  He observed that the critical elements in this ground were that (a) there is an appreciable chance for all or some of the three-member Investigation Committee appointed to investigate a complaint relating to a Council member to be comprised of also Council members; (b) Council members share a close and regular working relationship; and (c) the complainant is not informed as to whether the Investigation Committee comprised of any Council member. 

75. Au J observed that in light of the allegations of procedural unfairness which is inherent in the process, the mere fact that the Law Society had decided to reconsider the complaint afresh did not by itself remove any defects that may be present.[9]  I agree with this observation.

76. The applicant’s argument that the complaint handling process is defective is mounted on the proposition that it fails to ensure independence and impartiality in handling of complaints against a Council member.  It is primarily based on the perception, whether correct or not, that self-regulatory bodies have a tendency to look after their own.  Such perception is brought into sharp focus when the member allegedly being looked after is in high office and well connected within the body.  It is therefore of vital importance that self-regulatory bodies especially professional bodies or the like, that serve the public interest or have public responsibilities, are open, transparent and accountable in regulating and disciplining its members.  It achieves these objectives in a number of ways, principally by putting in place a regime of guidelines, rules and procedures that seek to ensure that the Council is open and accountable, and fair and impartial, in the exercise of its disciplinary functions.  I note that the Law Society has guidelines concerning conflict of interest and procedures for declaring an interest.  

77. The main point that the applicant makes in her application is that there is an apparent conflict of interest when Council members have to consider a complaint against a fellow Council member.  She argues that the complaint handling procedure is defective because it does not differentiate complaints concerning a Council member from other complaints.  She submits that a good complaint handling procedure in this case should have appropriate safeguards and an independent checkpoint to ensure that complaints against a Council member are handled independently and fairly. There can be no disagreement with this proposition.  The question for this Court is whether this is the case.

Whether the relief is justified in the circumstances

78. The applicant takes issue with the reasons given by the Law Society for not referring her complaint to the Tribunal Convenor.  She argues that the suggestion that there was a lack of evidence as to one of her allegations was not a proper reason for not referring the case.  She makes three points.  First, the Law Society had not sought any further evidence or comments from her.  Secondly, the Tribunal Convenor has the power to summarily dismiss the case if there is no prima facie case of misconduct and during its proceedings the parties are given the opportunity to adduce evidence (or any further evidence).  Thirdly, on the evidence she provided by letter dated 9 December 2011 there was a prima facie case for referral. 

79. As I have explained, the Law Society in the face of this judicial review referred the applicant’s complaint for “fresh investigation”.  The applicant argues that the decision by the Law Society not to refer her complaint to the Tribunal Convenor meant it did not find a prima facie case.  And yet she suggests, the decision to conduct a “fresh investigation” proves that the threshold for referral had been met.  I do not think that that logically follows. 

80. It seems to me that the Law Society is standing by its original decision but in order to allay and address the concerns raised by the applicant, it has nevertheless referred her complaint for independent investigation and consideration.  Although the applicant questions the method employed by the Law Society in seeking to consider her complaint afresh, she submits that in the circumstances it would be more suitable for the Tribunal Convenor to decide whether there is a prima facie case of misconduct.  In practical terms, the applicant has had her complaint independently assessed, and in any event, it seems to me that the method employed by the Law Society was, in the circumstances, an entirely appropriate and acceptable one.

The systemic challenge

81. The applicant’s complaint is that the Law Society’s procedure was not only unfair in her case but systemically lacking in fairness and impartially.  The systemic challenge was further particularised in the amended application. 

82. The Law Society’s complaint handling procedure can only be systemically unlawful if there is some unfairness or other procedural defect that is inherent in the system.  Mr Chan points out that even where a statutory procedure is said to contravene constitutional rights, true “systematic incompatibility must be shown”.  This was emphasised by Ribeiro PJ in Lam Siu Po v Commissioner of Police[10] where in the circumstances of that case the burden was discharged because the impugned procedural provisions imposed a blanket restriction, and wholly precluded the Tribunal from allowing professional legal representation in any individual case. 

83. Mr Chan rightly points out that absent any inherent defect, any alleged unfairness arising from the operation of the procedure in a given instance would be case specific.  He submits that assuming the particular allegation is proven, this may give rise to a specific remedy in that case, such as quashing the particular decision concerned, but would not be the basis for a sweeping declaration that the procedure and the system overall are generally defective.  It has to be shown that there is an inherent defectiveness in the system that will spawn unfairness in its various manifestations.

84. Mr Chan argues that at its highest, the applicant’s case is that the original decision was unfair to the extent that it resulted from deliberation by an Investigation Committee comprising one or more Council members.  He submits that the applicant cannot point to any ingrained feature of the Law Society’s procedure that might make the general procedure inherently unfair.  He gives as an example of such possible unfairness where the procedure was to include a standard direction or formal arrangement for complaints against Council members to be handled by an Investigation Committee made up of one or more other Council members.  It seems to me that this example tends to support the applicant’s argument for her complaint that there is no measure in place to prevent Council members sitting on the Investigation Committee in relation to a complaint against a fellow Council member.

85. By this example, it seems to be acknowledged that fellow Council members, who know and deal with each other on a regular basis, should not be sitting in judgement of each other as to whether a complaint against one of their members should be referred for inquiry or investigation.  Such a close association or connection would be an apparent conflict of interest that would normally be declared and/or disqualify the person from being involved in the matter concerned.  The composition of a decision making body may give rise to the risk of unfairness.  This was a matter that Au J mentioned in his decision on the security for costs.  

86. It is appropriate to refer more fully to the principles as stated by the Court of Final Appeal in Lam Siu Po, even though the Court examined the issue of systemic incompatibility in the context of a constitutional challenge.  The Court explained that it would consider the fairness of a procedure or process having regard to its entirety.  This would include the availability of judicial review.  Accordingly, where a potentially unfair situation arising from the operation of a challenged procedure in a given case can be remedied by access to judicial review, then the Court would not find the procedure itself to be systemically defective.  The Court emphasised that systemically, the availability of a case specific remedy by judicial review makes the general process itself public law compliant.

87. Whilst the general process is public law compliant, there is an anomaly when dealing with a complaint against a Council member.  There is in my view an inherent defect in the general process to the extent when the complaint relates to a Council member.  It is not an insignificant or case specific defect for it is inherent in the procedures when dealing with complaints against Council members.  Having said that, the issue can be remedied with appropriate administrative arrangements and guidelines to ensure that a complaint against a Council member is handled properly and fairly, without fear or favour.  The solution is a simple one.

Challenge to the fresh investigation

88. The applicant comes under strong criticism from the Law Society on her submission to this ground which consists of the bare assertion that the fresh investigation was “arbitrary, unfair and unlawful”.  I can understand the Law Society’s response that the applicant has made no attempt to particularise or substantiate the allegation.  As far as I am concerned, the Law Society sought to address the complaints made by the applicant in relation to the original decision by conducting the “fresh investigation”, although maintaining that no unfairness or impropriety had taken place in the first instance. 

89. Section 9A(1) leaves it to the Council to “consider” whether the conduct of a solicitor “should be inquired into or investigated” as a result of a complaint or otherwise.  This confers a discretion on the Council which it delegated to the Conduct Section and Investigation Committee. 

90. Mr Chan argues that the Council’s discretion is akin to a prosecutorial discretion.  I do not agree.  A prosecutorial discretion is set in a completely different context, and the nature and exercise of it is governed by a different body of principles and laws. 

91. He further argues that the impugned decision falls within a wider discretion to the Law Society, and that the courts are generally reluctant to interfere with the judgment of professional bodies on matters of professional conduct, unless “plainly wrong”.  He cites the cases of Re A Solicitor [1988] 2 HKLR 137 per Barker JA at 144A-E; A Solicitor v The Law Society of Hong Kong [1997] HKLRD 63 per Nazareth VP at 69B-C and per P. Chan J (as he then was) at 72E; Tong Pon Wah v Hong Kong Society of Accountants [1998] 2 HKLRD 427 per Liu JA at 443I; and Hong Kong Civil Procedure 2017 at paragraph 106/0/2. 

92. These are cases dealing with the principle that the propriety of the conduct of a professional person is best judged by his or her peers.  This is not the principle in issue in this case.  It is a question of whether procedures are fair when dealing with a complaint against a Council member.  Indeed, the Law Society seems to acknowledge that the procedures it employed in the past when dealing with a complaint against a Council member were open to criticism, and as a result it changed and improved the procedures to address the issue.  I have already expressed my view as to how the matter can be remedied and this is something that the Law Society may need to address further in light of this judgment. 

Conclusion

93. By the present proceedings, the applicant sought the Law Society to investigate her complaint against the partner.  She specifically sought that the Law Society submit her complaint to the Tribunal Convenor pursuant to section 9A(1).  The Law Society instead had her complaint investigated by an Investigation Counsel and an Investigation Committee consisting of members that were not previously involved in her case and not members of or connected with the Council. 

94. The applicant complained that the Law Society had a duty to investigate her complaint and refer it to the Tribunal Convenor.  The duty imposed under section 9A(1) is to consider whether the conduct of a solicitor should be inquired into or investigated, and if it does, it must submit the complaint to the Tribunal Convenor.  The applicant’s allegations that the Law Society had erred in denying jurisdiction over three of the allegations of complaint and finding that there was insufficient evidence in relation to the remaining allegation of complaint were addressed in the sense that the Law Society conducted a fresh investigation in relation to the allegations of complaint. 

95. The applicant further complained that the Law Society’s decision was tainted by a conflict of interest, that the procedure it employed was “unlawful, unfair and improper”, and that it showed a bias in making the decision.  These matters were not made out and the Law Society’s corrective action in conducting a fresh investigation dispelled any suggestion of impropriety or bias.  It was shown that there was an anomaly in the disciplinary process when the complaint under consideration concerns a Council member. 

96. The stage in the disciplinary process at which the Council makes its decision pursuant to section 9A(1) does not require that formal reasons should be given.  It is at the formative stage of the disciplinary process where the Council “considers” whether or not the conduct of the solicitor should be inquired into or investigated.  In any event, there was an exchange of correspondence where reasons were given.

97. The applicant amended her grounds for review to allege that the “fresh investigation” was “arbitrary, unfair and unlawful” and that “inherent bias and conflict of interest exist” in the Law Society’s complaint handling procedure in relation to a Council member.  I found that there is no substance to these grounds.  There is as I said an anomaly in the disciplinary process when the complaint under consideration concerns a Council member.  I agree with Mr Chan that this does not render the whole disciplinary process defective.  It seems to me that the matter can be properly addressed by putting in place a regime that ensures that a complaint against a Council member is dealt with properly and fairly.

Costs

98. I have given the question of costs anxious consideration.  The applicant by this application has caused the Law Society to reconsider its decision and to investigate her complaint as she had initially sought.  She has nevertheless continued her challenge, and refined her grounds of review.  She has unfortunately at times used extreme language and made unsubstantiated allegations in advancing her case. Her allegations against the Law Society of collusion and bias in relation to this complaint were unsubstantiated, and quite frankly without foundation, bearing in mind the structure and the composition of the Council and the manner in which it conducts its affairs and business. 

99. From my assessment of the case, I have no doubt that the Law Society initially stood its ground on principle but later in a genuine effort to resolve the dispute with the applicant agreed to reconsider its decision.  The applicant has succeeded in identifying an anomaly in the complaint handling procedures when a complaint is made against a Council member.  The Law Society has addressed the matter in the present case, and no doubt it has general guidelines concerning conflict of interest and procedures for declaring an interest in relation to its ordinary affairs and business.  It would seem to me that the Law Society needs to specifically address this issue with appropriate guidelines and measures. However, the applicant has not been successful in advancing arguments against the “fresh investigation”, and unfortunately has resorted to making allegations against the Law Society that are without foundation.

100. Therefore, on the question of costs, I am inclined to award the applicant 60 percent of her costs. Such costs would be limited because the applicant has acted in person but in any event she may have incurred costs of some sort.  I therefore make an order nisi that the Law Society pay 60 percent of the applicant’s costs, to be taxed if not agreed.