MA PUI TUNG v. THE LAW SOCIETY OF HONG KONG AND ANOTHER

HCAL157/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 157 OF 2004

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DECISION

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1. On 16 December 2004, the applicant commenced these proceedings applying for leave to judicial review a number of decisions of the 1^st and 2^nd respondents. On 17 December 2004, Hartmann J (as he then was) directed that an oral hearing be held.  A hearing was listed on 9 March 2005.  Upon the applicant’s application by letter dated 18 February 2005, the leave application was adjourned sine dine with liberty to restore.  At the time, the applicant was applying for legal aid to pursue an appeal to the Court of Final Appeal against the judgment in CACV 221 and 245 of 2003, which is related to the present application.

2. On 26 August 2008, the Court of Appeal in CACV221/2003 & 254/2003 refused to grant leave to the applicant to appeal to the Court of Final Appeal.  In the meantime, the applicant had also instituted a number of related proceedings, including HCAL104, 108 and 123 of 2008.  On 31 October 2008, Cheung J refused to grant the applicant leave to apply for judicial review in the above three actions.  Thereafter, upon the applicant’s request, the present leave application was restored for hearing on 4 February 2009.

The factual background

3.  The applicant was formerly a solicitor who practised under the name of Josip Ma & Co.  The present application stems from a disciplinary proceeding against the applicant arising out of his representation of a Mr Koo Koon Yan (“Koo”) in High Court Action no. 7035 of 1993.

4.  In HCA7035/1993, Koo was sued by Jim Glass Investment Limited (“Jim Glass”) for specific performance of an agreement for the sale and purchase of the Ground Floor and First Floor of a small house erected on Lot No.1829 in D.D.10 at the consideration of HK$2,250,000.  The main issue between the parties related to whether Koo as the vendor or Jim Glass as the purchaser should pay the government premium for effecting the transfer of the properties in question.  The premium was provisionally assessed to be HK$2.3 million in 1996 and finally assessed at slightly over HK$2.8 million in 1998. 

5.  The action, which was listed in the Running List, was warned for trial on 14 November 1996.  On the day of trial, due to other court engagement, the applicant did not attend court. A clerk of his firm, who was also a friend of Koo, Mr William Wong (“Wong”), attended instead.  Through their respective counsel, Jim Glass and Koo negotiated a settlement.  A consent order was granted on the same day disposing of the action. 

6.  Under the consent order, Koo was to specifically perform the agreement and to pay Jim Glass $550,000 as agreed damages and $60,000 as agreed costs.  As for Jim Glass, the consent order provided that, out of the balance of the purchase price (i.e. less HK$100,000 initial deposit), it would pay the government premium, once finally assessed, and that upon the assignment of the properties free of incumbrances and delivery of vacant possession, it would make an ex gratia payment of $270,000 to Koo.

7.  Complications however arose out of the settlement and the terms of the consent order.  This led to exchange of correspondences between solicitors and counsel. In particular, Koo’s counsel, Mr Hubert Woo (“Woo”), asserted that the consent order did not reflect two matters understood and agreed between counsel. The first is that Jim Glass was responsible to pay any excess of premium over the balance of the purchase price. The second is that Jim Glass would not enforce the order for $550,000 damages if Koo removed all incumbrances to the properties before the assignment.

8.  On 12 March 1998, Jim Glass applied to the court for a declaration that it was not obliged under the consent order to pay the premium excess. Then on 16 April 1998, Koo (represented by another firm of solicitors) applied for a correction of the consent order to provide that Jim Glass would be responsible for the premium excess.  The dispute was eventually settled and a second consent order was made on 1 May 1998.  Under the second consent order, Koo had to pay $100,000 to Jim Glass and waive the ex gratia payment.  In return, Jim Glass also waived its entitlement to the damages and costs payable by Koo.

9.  On 25 November 1996, Koo lodged a written complaint against the applicant to the Law Society, which he later followed up by a letter on 23 September 1997. 

10.  As a result of the complaint and upon its investigations, the Law Society commenced disciplinary proceedings against the applicant. Seven charges were laid against him. The first two charges related to the applicant’s failure to provide Koo with a written record of fees and to deliver a bill of costs to Koo within a reasonable time of the conclusion of the matter.  The third charge alleged the applicant failed to comply with Koo’s instructions to appoint Mr Hylas Chung (“Chung”) as his trial counsel.  The fourth charge had two parts: The first part related to the applicant’s failure to keep Koo properly informed of the true nature of the Notice to Act in Person, which he asked Koo to sign. The second part alleged that the applicant failed to inform Koo of Chung’s advice to obtain a second valuation report.  The fifth charge alleged failure to advise Koo that his defence did not have prospect of success. The sixth charge related to the applicant’s failure to arrange for a responsible representative to attend the court hearing. The seventh charge alleged that the applicant failed to ensure that proper instructions and papers were delivered to counsel in good time for advice.  

11.  The disciplinary hearing was lengthy and consisted of many sessions that lasted between 17 January 2002 and 1 March 2003.  Among the witnesses who had testified at the disciplinary proceedings were Koo, Wong, the applicant and Woo.  On 16 July 2003, the Solicitors Disciplinary Tribunal (“SDT”) delivered its findings. It found the applicant guilty of the first two charges, the first part of the fourth charge and the sixth charge and not guilty of the rest of the charges.  In terms of credibility of the witnesses, the SDT accepted the evidence of Koo and Wong and preferred their evidence to that of the applicant and Woo.  On 7 August 2003, the SDT sentenced the applicant to fines totalling $170,000 and ordered him to be censured for the first three convictions.  On the sixth charge, the SDT also ordered that the applicant be disallowed from practising on his own account or in partnership for six months.  In addition, the SDT ordered the applicant to pay 80% of the costs of the disciplinary proceedings on indemnity basis, to be taxed if not agreed.

12.  The applicant appealed to the Court of Appeal against the convictions and sentence under CACV221/2003 & 254/2003. On 11 November 2003, the Court of Appeal dismissed the appeal against convictions and sentence, but quashed the costs order and referred the issue of costs back to the SDT for reconsideration.

13.  Subsequently, the applicant applied for leave to appeal to the Court of Final Appeal against the Court of Appeal’s dismissal of his appeal against convictions and sentence.  As a result of police investigations into the applicant’s complaints against Koo and Wong for, inter alia, perjury, the application for leave to appeal was adjourned sine dine.  It only came to be heard on 24 July 2008.  On 26 August 2008, the Court of Appeal dismissed the application for leave to appeal with costs.  At the hearing of this application, the applicant indicated that he had on 8 December 2008, made an application to the Court of Final Appeal for leave to appeal out of time under FAMV 45 of 2008.      

Decisions challenged and relief sought

14.  In the Form 86A, the applicant seeks to challenge seven decisions. They are:

(1)  The decision of the Law Society to institute and to continue to prosecute disciplinary proceedings against the applicant.

(2)  The decision of the SDT to institute disciplinary proceedings against the applicant.

(3)  The findings of the SDT given on 16 July and 7 August 2003.

(4)  The order of the SDT convicting the applicant of contempt of court given in the course of the disciplinary hearing on 26 and 28 September 2002.

(5)  The investigative process of the Law Society and SDT before laying disciplinary charges against the applicant.

(6)  The decisions of the Law Society and SDT to lay the seven disciplinary charges against the applicant.

15.  The applicant seeks the following relief:

(1)  A certiorari to quash the decisions of the SDT on convictions and sentences and the orders on contempt.

(2)  A declaration that the disciplinary proceedings were ultra vires.

(3)  A declaration that the SDT’s findings and the Court of Appeal’s judgment upholding the findings be set aside on ground that they were obtained by combined frauds of the Law Society, SDT, the prosecutor of the disciplinary action, Koo and Wong or gross miscarriage of justice.     

16.  The applicant also seeks leave to make the application out of time.

17.  At the hearing, the applicant indicated that he did not wish to pursue the certiorari order. In relation to the declaration under (2), the applicant wished to add that the disciplinary proceedings were unlawful under the human rights law, the Basic Law and the PRC constitution.  The applicant also indicated he wished to pursue damages under human rights law.

Grounds for the application

18.    The Form 86 is lengthy, containing 604 paragraphs and running into 198 pages. The supporting affirmation is equally voluminous. While a great many number of things had been referred to, it is extremely difficult to decipher the grounds that the applicant seeks to advance in support of the intended judicial review.  At the hearing, the applicant had not referred to the contents of his Form 86A or his affirmation. He handed up a bundle of combined submissions / documents and indicated that his main grounds were unlawfulness and irrationality of the decisions.

19.  From what I can understand, the applicant’s arguments or grounds are as follows:

(1)   The seven disciplinary charges were mere technical breaches and did not involve moral turpitude.  On the basis of A Solicitor v. The Law Society of Hong Kong (unreported) CACV84/1995, they did not amount to professional misconduct.  That being the case, the Law Society should not have instituted disciplinary action. Likewise, the SDT should not have continued with the disciplinary action or should not have taken so long to conclude the proceedings.

(2)   The disciplinary action was in substance a criminal prosecution against the applicant (and also Woo). The Law Society acted unlawfully in bringing a hostile litigation against the applicant, a fellow solicitor.

(3)   The applicant did not have a fair trial because he was not allowed to meet the “substantive criminal charge” against him, namely, that he and Woo had deliberately and intentionally cheated Koo into a settlement with Jim Glass.

(4)   As a criminal prosecution, the prosecutor acting for the Law Society carried the burden of proving the criminal charge on a criminal standard.

(5)   The SDT had failed in its duty to find out the truth. The SDT should have called Chung as the tribunal witness.  It was not appropriate for the applicant to call Chung because he could not then cross-examine him.  The refusal of the SDT to call Chung had deprived the applicant of the opportunity to cross-examine Chung.

(6)   The accounts given by Koo and Wong when applying in HCA7035/1993 to correct the consent order, when making complaints to the Law Society, when claiming against the applicant and Woo in HCA4145/2002 and when testifying before the SDT were self-contradictory and incapable of belief. The SDT’s decision in accepting their evidence and preferring their evidence to that of the applicant and Woo is irrational and amounts to criminal contempt.          

Delay

20.  Before dealing with the grounds advanced by the applicant, it is necessary to deal with his application for extension of time to bring the application. 

21.  Section 21K(6) of the High Court Ordinance, cap.4 provides:

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant-

(a) leave for the making of the application; or
(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

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

23.  The decisions that the applicant seeks to challenge were made in 2002 and 2003. The Form 86A was however filed in December 2004.  Plainly, the present application is seriously out of time.

24.  In paragraphs 581 to 604 of the Form 86A, the applicant set out various matters in an attempt to explain the delay. They include the fact that he had appealed to the Court of Appeal and the judgment in CACV221/2003 & 254/2003 was only rendered in November 2003, that he had applied for legal aid, the refusal of which was only made on 7 October 2004 and he was appealing against the refusal, that he had brought an action (HCA988/2004) to set aside the judgment on account of frauds of Koo, Wong, the Law Society and the SDT and that the intended judicial review raised issues of importance to the legal profession as well as administration of justice.

25.  I am not persuaded that the matters put forward by the applicant in the Form 86A amount to satisfactory or good reasons that justify extending the time for bringing the present application. Leaving aside the point that the applicant had appealed to the Court of Appeal against the convictions and sentences of the SDT and it was decided against him, an aspect that I shall return to in the latter part of this Decision, there is no satisfactory explanation for the very long delay since the handing down of the Court of Appeal judgment in November 2003.  The legal aid application cannot amount to good justification for the delay in bringing judicial review.  It is not the case that without legal aid, the applicant did not know about judicial review as a legal process or was not in a position to start the process.  Indeed, he commenced the present proceedings and continues to conduct it in person.  The applicant is after all legally trained.  As to the argument that matter raised important issues for the legal profession and the public, for reasons mentioned in the latter part of this Decision, it is misplaced.

26.  Subsequent to the oral hearing, the applicant had lodged a further bundle of supplemental submissions.  In them, the applicant argued that the delay did not prejudice the legitimate interests of the putative respondents, that any undue delay was the fault of the HKSAR government, especially the Department of Justice, and that he should not be denied of remedies for the violation of his human rights.

27.  I am unable to comprehend the legal foundation for these arguments or to accept them as affording proper grounds for the Court to exercise the statutory power to enlarge the time.  Solely on account of the undue delay, the present leave application should be refused.

Merits of the applicant’s grounds for application

28.   The test for granting leave to apply for judicial review is whether the applicant has a reasonably arguable case, being one that enjoys realistic prospects of success: Po Fun Chan v. Winnie Cheung [2008] 1 HKLRD 319.

29.  In this connection, the applicant had at the oral hearing and in his several written supplemental submissions argued that the Court of Final Appeal acted unlawfully in raising the threshold for granting leave to judicial review.  It was said that “where judicial review proceeding is employed as a human rights proceeding, it is unconstitutional and unlawful for the court to further impose ‘reasonably arguable’ test in addition to the ‘sufficiency of interest’ test”.  The applicant also referred to HCAL 74 of 2008, in which he challenged, inter alia, the constitutionality of the leave requirement under Order 53 rule 3 of Rules of High Court.  He was refused leave and he is appealing against the decision.         

30.  I do not agree with the applicant’s challenges to the test for granting leave to apply for judicial review or to the leave requirement. In any case, the Judgment of the Court of Final Appeal is binding on this Court. 

31.  Returning to the applicant’s grounds for the intended judicial review.  The subject matter that underlines the intended judicial review is the disciplinary proceedings against the applicant and the findings of the SDT.  It is the same subject matter of the applicant’s appeal in CACV 221/2003 & 254/2003.  The applicant does not dispute this.

32.  What the applicant argues is that he should not have appealed to the Court of Appeal.  In his argument, the appeal avenue provided under section 13(1) of the Legal Practitioners Ordinance only relates to the “merits” of the decisions on disciplinary proceedings and should have no application to situations like his, where the decisions were “obtained by frauds and crimes”, amounted to “non-decisions” or were “invalid, illegal or unlawful”.   Hence, the applicant contends that his appeal against the convictions and sentences of the SDT does not and should not preclude him from bringing the intended judicial review, which is said to be based on human rights law.

33.  Although the applicant had referred to a number of authorities, including decisions of the European Court, he has not shown any authority to the effect that in appeals under section 13(1) of the Legal Practitioners Ordinance, issues of legality of the disciplinary decision, procedural fairness and propriety of the disciplinary hearing and admissions of evidence in the disciplinary proceedings cannot be raised.

34.  Not only that, it is plain from reading the judgment in CACV221/2003 & 254/2003 that quite a number of the matters and grounds put forward by the applicant in the present application, including the lawfulness and rationality of the decisions of the Law Society and SDT, had already been argued in the Court of Appeal and were decided against him by the Court of Appeal.  A clear example is the applicant’s argument on the credibility of Koo and Wong and the SDT’s decision to accept their evidence in preference to that of the applicant and Woo.  This was dealt with in great details in paragraphs 33 to 49 of the Court of Appeal’s judgment. It is in particular to be noted that a key point of the applicant’s counsel before the Court of Appeal was that no reasonable tribunal could have believed Koo and Wong at the expense of the applicant and Woo.  This argument, which was also repeatedly stressed in this application, was, however, rejected by the Court of Appeal: see paragraphs 35 and 48 of the Judgment dated 11 November 2003.  I should also mention that the applicant had in early 2008 sought to challenge by way of judicial review (HCAL15/2008) the decision of the Department of Justice not to prosecute Koo for perjury, but Saunders J, in a judgment delivered on 25 February 2008, refused to grant him leave. 

35.  In addition to the argument against the SDT’s finding on credibility, the Judgment of the Court of Appeal shows that the applicant’s counsel had also raised, albeit unsuccessfully, arguments on the standard of proof (paras.58 to 63), the SDT’s refusal to call Chung as a witness of the tribunal (paras.64 to 67) and the contempt orders imposed by the SDT (paras.51 to 57). 

36.  Further in the application for leave to appeal to the Court of Final Appeal, in which the applicant acted in person, the argument that the disciplinary charges were mere technical breaches not amounting to professional misconduct had been raised, but was not accepted by the Court of Appeal: see Judgment dated 26 August 2008 at paras.8 to 10.  

37.  All these serve to demonstrate three points.  First, the subject matter of the intended judicial review as well as the bulk of the grounds for it had been argued and dealt with in the appeal under section 13(1) of the Legal Practitioners Ordinance.  Second, the Court of Appeal had determined that the challenges to the disciplinary proceedings as well as the grounds repeated in this application have no merits.  In these circumstances, the present application can hardly cross the threshold of reasonable arguability.  Third, to the extent there may be grounds in this application that had not been raised in the section 13(1) appeal, there is no reason why the applicant could not or should not have mounted them in the appeal.  This alone or coupled with the undue delay in bringing the present application weighs heavily against the granting of leave.

38.  Finally, it only remains to deal briefly with two matters arising from the applicant’s arguments.  The first is the case of A Solicitor v. The Law Society of Hong Kong (unreported) CACV84/1995, which the applicant relied heavily on to argue that the decision to bring disciplinary action against him is irrational and unlawful because the disciplinary charges are mere technical breaches. That case was a very different case.  There, the materials before the Court of Appeal showed that at the material time the solicitors as a body did not regard breaches of undertaking in conveyancing matters as per se professional misconduct and also there was a conciliation scheme among solicitors dealing with breaches of the undertakings. Further on the complaints for breach of undertakings, the disciplinary tribunal had convicted the solicitor of some of them but acquitted him of the others, without finding whether a breach of undertaking per se is professional misconduct.  It is against such background that the Court of Appeal observed that “as regards the standards of professional conduct, the tribunal cannot be out of lime with the views of the governing body of the Law Society, and with the majority of members themselves”: at p.28. There is nothing remotely resembling that in the applicant’s case.       

39.  The second is the applicant’s repeated emphasis that the intended judicial review is based on human rights law and therefore stands in different light from what he called conventional judicial review proceedings.  In this connection, he had mentioned the PRC constitution and referred to the Basic Law, the ICCPR, the Human Rights Act 1998, the Irish Law Reform Commission Report on judicial review and UK and European Court decisions.  The applicant complains that his right to rule of law and good administration, right to human dignity, right to fair hearing, right not to be attacked on honour and reputation, right to effective substantive remedies and procedural safeguard and right to be treated according to the principle of proportionality has been infringed.    Notwithstanding the lengthy submissions and many materials and citations put forward, an arguable case of infringement of fundamental human rights has not been demonstrated.  More fundamentally, even if it is accepted that the intended judicial review involves issues of human rights, it does not mean that the relevant legal requirements, including the threshold for granting leave and the requirements under Order 53, can be disregarded.   

Conclusion

40.  For the reasons set out above, the applicant’s application for leave to judicial review is dismissed.