ABC v. THE LAW SOCIETY OF HONG KONG

HCAL 1215/2023

[2024] HKCFI 47

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1215 OF 2023

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R U L I N G

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A. Introduction

1.  The result of any discretionary balancing exercise is a function of the weight given to the factors to be balanced.  The present application requires the Court to balance (1) the ordinary and fundamental principle of common law requiring open administration of justice against (2) the need to achieve, and not frustrate, the ultimate aim of in fact doing justice in the particular case, including where apt to protect the rights of individuals to private and family life.

2.  The application arises in the following circumstances.

3.  These proceedings concern the Applicant’s application for judicial review concerning the Law Society of Hong Kong’s handling of a Complaint lodged by the Applicant on 30 August 2019, alleging misconduct against a solicitor (“Solicitor”).  The Complaint relates to the Solicitor’s dealings with a particular client (“Client”), a family relation of the Applicant.  The Complaint has eventually led to Solicitors Disciplinary Tribunal (“SDT”) proceedings against the Solicitor.

4.  Prior to the formal commencement of these proceedings by issue of the Form 86 on 26 July 2023, the Applicant sought an ‘anonymity order’ on the basis of matters set out in his solicitors’ letter dated 13 July 2023 (see further below).

5.  On 18 July 2023, I made an order (“Anonymity Order”) in the following terms:

1.     The Court file of the judicial review proceedings shall not be open for search and inspection by the public and third parties without leave or further order of the Court.  This includes the Form 86 and supporting Affirmation, when filed, and all subsequent affirmations and skeleton submissions filed by the parties.

2.     The [Applicant] shall be granted anonymity, unless and until the Court orders otherwise, and be referred to as ‘ABC’ in the proceedings.  No report of these proceedings shall directly or indirectly identify him and family members.

3.     Any hearing(s) in respect of the intended judicial review shall be conducted in camera.

6.  As is obvious from the fact that the Anonymity Order was made ex parte even before the formal commencement of these proceedings, and from its own terms, and from the fact that it is a case management decision, the Anonymity Order is open to being revisited by the Court.

7.  Now, by summons dated 1 December 2023, the Law Society seeks to set aside the Anonymity Order (or at least paragraphs 2 and 3 of it: see below).

8.  It can also be mentioned that, on 21 September 2023, I granted the Solicitor an order to anonymize his or her name as ‘DEF’.  There is no challenge to that order.  Further, the Solicitor takes no stance as regards the present application, and the Solicitor’s attendance has been excused.

9.  At the hearing of this application, the Law Society has been represented by Mr Jin Pao SC, leading Mr John Cheung; and the Applicant has been represented by Mr John Hui of Counsel.

10.  For obvious reasons the hearing of the application was dealt with in camera (i.e. in private, not open to the public).  At the end of the hearing, I reserved my decision to be handed down later, but with a recognized need to do so quickly in light of the fact that the substantive hearing is fixed for 30 January 2024.

11.  This is my Ruling.  It is intended to be made publicly available, once the Court and the parties are satisfied that its terms can appropriately be made public.

B.     Broad Shape of the Judicial Review Challenge

12.  In these proceedings, the Applicant seeks to impugn the Law Society’s decision(s):

(1)     to refuse to include the Applicant as a party to the SDT proceedings against the Solicitor;

(2)     not to keep the Applicant informed of the progress and results of the Complaint against the Solicitor; and

(3)     to deny the Applicant’s request to submit evidence and to participate in the SDT proceedings.

13.  In broad terms, the Law Society’s response is that:

(1)     the Applicant has no right to be included as a party to the SDT proceedings as a matter of the proper construction of the relevant procedural rules;

(2)     there were also concerns relating to legal professional privilege and conflict of interest stemming from the Applicant’s involvement, which prompted the Law Society to take up the matter and not to inform the Applicant of the progress and result of the Complaint; and

(3)     in any event, neither the prosecutor of the SDT proceedings nor the Law Society has made a decision not to approach the Applicant for assistance in relation to the SDT proceedings.

C.     The Request for the Anonymity Order

14.  As already stated, the request for the Anonymity Order was made by the Applicant’s solicitors by letter dated 13 July 2023. The offered justification for the directions sought was broadly as follows:

(1)     By these proceedings, the Applicant intends to challenge a decision made by the Law Society on 18 April 2023, which he says has denied him his rights in the ongoing SDT proceedings against the Solicitor.

(2)     The SDT proceedings arise out of the Complaint made by the Applicant concerning the Solicitor’s alleged professional misconduct.

(3)     The particular misconduct alleged is that the Solicitor purported to act for the Client, despite evidence that the Client lacked the relevant mental capacity and/or was under undue influence at the time.

(4)     In proceedings (“Foreign Proceedings”) which took place in a different common law jurisdiction (“Foreign Jurisdiction”), it was held that the Client lacked mental capacity and was under the undue influence from other family members.

(5)     There are related disciplinary proceedings in the Foreign Jurisdiction, brought against other lawyers purporting to act for the Client in that jurisdiction, and where the allegations of professional misconduct mirror those put forward in the Complaint against the Solicitor.

(6)     The Foreign Proceedings and the disciplinary proceedings in the Foreign Jurisdiction have all been held in camera, and subject to court file sealing orders.

(7)     In the judgment(s) given in the Foreign Proceedings, the Client was anonymized, as were the Client’s various family members whose identities, if revealed, would also have revealed that of the Client.

(8)     Therefore, the subject matter of these judicial review proceedings concerns several confidential legal proceedings: (a) the disciplinary proceedings involving the Solicitor, (b) the related disciplinary proceedings in the Foreign Jurisdiction, and (c) the Foreign Proceedings relating to a mentally incapacitated person.

(9)     The Client passed away in early 2023, but the fact that the mentally incapacitated person has passed away does not mean that anonymity orders previously granted should lapse.

(10)     Therefore, the Anonymity Order should be granted, notwithstanding the usual public interest in favour of open justice in a judicial review.  This is to protect the privacy and dignity of the Client and/or the Client’s family members, and to uphold the confidentiality of the disciplinary proceedings against the Solicitor.

15.  The letter also made plain that the Applicant would have no objection to the Court publishing a judgment with appropriate anonymization at the conclusion of the judicial review proceedings.

16.  On the basis of those matters, it seemed to me to be appropriate to grant the Anonymity Order – at least in the first instance, albeit obviously subject to potential further review.  One aspect which then seemed to me to be persuasive in favour of granting the Anonymity Order was a desire not to destroy the careful anonymization conducted in the Foreign Proceedings.

17.  Of course, this application now having been made by the Law Society, the position is open to fresh consideration.

D.     Applicable Principles

18.  It is convenient next to deal with the applicable principles, which are essentially not controversial.  They can be found described and applied, for example, in Asia Television Ltd v Communications Authority [2013] 2 HKLRD 354 at §§19-36, 46 and 53; Leung Kam Chung Kenneth v Commissioner of Police [2023] 4 HKLRD 829 at §§15-17; and, in particular relevant contexts, in Chao Pak Ki Raymond v The Hong Kong Society of Accountants (unreported, HCAL 134/2003, 6 February 2004) at §§16-17; Money v AB [2021] EWHC 2999 (Ch) at §§9-13; and Re C (Deceased) [2016] EWCOP 21 at §§74-79.

19.  I might summarize the various principles as follows:

(1)     The open administration of justice is a fundamental principle of common law, for reasons including maintaining the public’s confidence in the administration of justice and making uninformed and inaccurate comment about the proceedings less likely.

(2)     Hence, justice should not only be done, but in general should manifestly and undoubtedly be seen to be done.

(3)     Open justice also gives effect to the rights of litigants to a public hearing guaranteed under Article 10 of the Hong Kong Bill of Rights (“HKBOR”).

(4)     Open justice gives substance to the media’s right to freedom of expression including the freedom to seek and impart knowledge, and enables the public to enjoy their right to seek and be imparted with knowledge, both guaranteed under Article 16 of the HKBOR.

(5)     Therefore, any restriction on open administration of justice represents a compromise between important interests, rights and freedoms, and must be justified by considering and balancing all pertinent matters.

(6)     The right to privacy underlying some considerations or matters is not in itself sufficient to justify a departure from the general rule of open justice.  For example, the mere fact that the subject proceedings which give rise to an application for judicial review were held in private is not of itself sufficient to justify a departure from the general rule.

(7)     Indeed, as a general rule, parties involved in litigation – and in particular the initiating party – cannot complain about the normal consequences of open justice, such as unwanted publicity, potential embarrassment and so forth.

(8)     However, open justice is a means to the end of doing justice between the parties concerned.  If there is a risk that justice cannot be done if it is administered openly, the Court’s task is to balance that risk (and other relevant interests) against other competing considerations, to come up with the answer that best serves the particular situation.

(9)     It therefore follows that where open administration of justice in a case would frustrate the ultimate aim of doing justice, it may be an important or even decisive consideration to take into account when balancing the relevant matters to decide whether open justice should be restricted, and if so by what means and to what extent.

(10)     The circumstances when it might be appropriate to restrict open justice are incapable of exhaustive definition, and each application must be judged on its own particular merits, with the burden on the applicant to satisfy the Court that restriction is appropriate.

(11)     The touchstone as to whether open justice should be restricted is one of “necessity”, meaning that open administration of justice will only be restricted to the extent necessary in the interest of justice.

(12)     Obvious examples include proceedings involving wards of court or mentally incapacitated persons (see further below).  Hence, the nature of proceedings is also a relevant consideration.

(13)     In particular, proceedings by way of judicial review relate to decisions made in the public field and, as a general rule, they must be held in public because the public has a legitimate interest to be informed about them, unless justice would be denied.

(14)     To meet any concerns, it is frequently not necessary to go so far as to hold proceedings in private, where alternative steps may be taken to ensure that the appropriate level of privacy is maintained.  This can be done for example by giving directions as to the way case is listed, the way in which the various individuals or companies and dates are referred to in open court, the control of access by members of the public to the court file and to documents filed in court, and the form of the judgment.

(15)     But, on a practical level, the Court will take into account any difficulties that may arise regarding implementation of partial restrictions.

20.  In this particular case, it is necessary to take into account that:

(1)     the proceedings arise as regards the proper regulation of a profession by the regulator, here the Law Society;

(2)     the Law Society is tasked by statute with ensuring that its members operate properly and strictly in accordance with applicable regulations and professional standards;

(3)     the proceedings relate to the manner in which the Law Society exercises its powers and performs its function;

(4)     the operation and conduct of the solicitors’ profession is under public scrutiny;

(5)     members of the public are entitled to know whether the Law Society has done its job properly;

(6)     how the Law Society conducts investigations and approaches disciplinary proceedings against a solicitor can have wide-ranging implications in relation to future investigations and disciplinary proceedings;

(7)     there may be some knock-on or comparative effect on other public bodies exercising similar powers; and

(8)     it is not unreasonable to regard the person who initiates such public law proceedings as having accepted the normal incidence of the public nature of those proceedings.

21.  It is also appropriate to recognise that:

(1)     anonymity orders may be granted more readily in some contexts than others, such as cases involving decisions (and the evidence on which they are based) relating to matters concerning and which affect private and family life;

(2)     the evidence based approach means that the invasion can extend beyond a particular party’s individual life and might directly or indirectly engage the family life of other members of that party’s family and others as witnesses or participants in relevant events;

(3)     the assessment in a particular case may include whether the administration of justice will best be served by a private hearing (with or without the publication of some documents or material, for example a judgment), or by a public hearing (with or without reporting restrictions).

22.  Though this application is brought by the Law Society on its summons, I keep in mind throughout that the burden is really on the Applicant to establish why the Anonymity Order should be maintained, rather than be set aside or varied.

E.     The Application as Refined

23.  As originally framed by its summons, the Law Society sought the setting aside of the entirety of the Anonymity Order.  Now, a more nuanced approach is taken.

24.  As now more specifically focused through Mr Pao’s skeleton submissions and a revised draft order handed up to the Court, the Law Society invites me to make the following order on its application (amended to follow my anonymized definitions used in this Ruling):

1.     Paragraph 1 of the Order dated 18 July 2023 (“the Order”) be continued.

2.     Paragraphs 2 and 3 of the Order are set aside.  The hearing on 30 January 2024 shall proceed in open court unless otherwise directed by the court.

3.     At the hearing on 30 January 2024, there shall be no references in open court to: (a) the name, identity or medical condition of the Client; (b) the Client’s relationship with the Applicant; (c) any of the previous Foreign Proceedings dealing with the Client’s mental capacity issues.  If the parties wish to refer the Court to any of the above matters at the hearing, this must be done through their respective skeleton arguments.

4.     Any decision or judgment in these proceedings shall be redacted to avoid identifying the Client or the Client’s relationship with the Applicant.

25.  Mr Pao submits that an order in that form would achieve the correct balance between the various competing interests.

F.     Arguments and Analysis

26.  The starting point is to note that the Law Society now recognises that it is appropriate for public access to the court file to be restricted.  That is why the Law Society no longer seeks to set aside paragraph 1 of the Anonymity Order.  Of itself, that concession identifies that the relevant balancing exercise is seen to be not necessarily an ‘all or nothing’ decision, but there is a move away from full openness.

27.  As to the rest of the offered draft order, Mr Pao’s submissions are that:

(1)     The Client’s status as a mentally incapacitated person is insufficient to warrant anonymity, given that the Applicant’s intended judicial review challenge principally raises disputed issues of law which are unrelated to the Client’s mental status.  The proceedings do not concern the medical treatment of or care arrangements for the Client.

(2)     To the extent that the evidence in these proceedings touches on the Client’s mental capacity, it is not necessary for that evidence to be referred to (much less to be analysed in any detail) in submissions or in the judgment, given that the information is not central to any of the substantive grounds.

(3)     Anyway, the Court may make various directions about redactions, or the matters to which reference might be given in open court.

(4)     The Foreign Proceedings were of a different nature as compared to the present proceedings, in that they focused on the Client’s mental capacity and the ability or not to make decisions relating to property and affairs.

(5)     The disciplinary proceedings in the Foreign Jurisdiction will be held in camera is neither here nor there, and the same goes for the SDT proceedings in Hong Kong.  The mere fact that these proceedings arise from proceedings which will be heard in private does not justify an anonymity order.

(6)     Nor has any party made any application to lift the anonymity order concerning the Solicitor, whose identity will continue to remain anonymous in these proceedings.

(7)     The Applicant’s stated concern about ‘jigsaw identification’ as a result of possible connection between these proceedings and the Foreign Proceedings is more apparent than real.  In any event, safeguards can be put in place by the Court as in part are suggested in the draft order.

28.  I see considerable force in the submission that at least the first intended ground of judicial review is primarily a point relating to the correct interpretation of the relevant procedural rules – hence, a point of law.  However, Mr Hui says that the proper understanding of the point will require some detailed consideration of the Client’s mental capacity to instruct the Solicitor (so as to create a valid solicitor-client relationship at all), which will require reference to the underlying documents and evidence revealing the identities and details about the Client and the Client’s family members, including the Applicant.  At this stage, I am not prepared to shut out what Mr Hui says will be included in his submissions.

29.  I also accept that, as far as the second intended ground of review is concerned, it is even more likely that detailed reference to the underlying documents and evidence may be necessary.  Hence, I accept that, without the Anonymity Order, there is a significant risk (if not certainty) that the Client’s identity, details as to the Client’s mental capacity, and other aspects relating to certain family members would become public.

30.  I also accept Mr Hui’s submission that there may be real practical difficulties in conducting the hearing in open court, or partially open and partially in camera, with potentially practically awkward distinctions between what can and cannot be said aloud in Court. I accept that experienced Counsel can be expected to deal with matters sensitively, and to seek to avoid unnecessary references to the kind of private medical or family matters as will ordinarily attract anonymity.  However, once it is recognised that any of the most sensitive information would have to be dealt with only on paper – it is said by Mr Pao that would be in skeleton submissions, but would likely have to be in much more like full written submissions in that respect – then much of the value of an open hearing for the purposes of the public is already lost.

31.  It seems to me to be far better – from the point of view of the parties and the interests of the wider public – for (1) a private hearing to be conducted, where Counsel can make references, without fear of ‘tripping’, to whatever parts of the evidence are felt necessary to seek to make good any particular submission, followed by (2) a judgment suitably written to enable the wider public, the media and other interested parties to understand the scope of the argument, and the reasoning leading to whatever is the ultimate decision made in the judicial review proceedings.

32.  Therefore, I also accept that the jurisprudential value of the present proceedings, and in particular the Judgment, would not be materially diminished by maintaining the Anonymity Order.

33.  But, a very strong feature pointing to the need to maintain the Anonymity Order lies in the Foreign Proceedings, and the way in which the Foreign Jurisdiction courts have approached the various matters. There have been public judgments, which have followed from hearings dealt with in camera, and where anonymized references to the various participants and other related parties were carefully maintained.  It seems to me that the Hong Kong Court must now act carefully so as not to undermine by a side wind the anonymity orders made in the Foreign Proceedings.

34.  Though a point of lesser weight, I also take into account that the Law Society itself would unlikely suffer any prejudice from the continuation of the Anonymity Order.

G.     Timing of Application

35.  I am dealing with the question of timing separately and secondly, because it does not seem to me to be likely determinative of the present application.

36.  Mr Hui has sought to make a great deal of the timing of the present application.  He says that the lateness of the application, and the prejudice caused by it, are reason enough for the application to be dismissed.

37.  I disagree.  First, I have reminded myself that the burden of obtaining, and maintaining the Anonymity Order lies with the Applicant, who seeks that order.  Secondly, I think Mr Hui has overstated the argument on timing.  For example, whilst I accept that dealing with this application may have diverted some time and effort from the Applicant’s (and his legal team’s) preparation of evidence, and perhaps for the substantive hearing itself, I reject the suggestion that that was the intention of the timing of this application.

38.  Where the timing seems to me to be relevant is that significant evidence has already been filed without any thought that there might need to be future references to it in open court.  Hence, I accept that the evidence has been filed by both parties, on the basis that there would be no open court hearing in the matter.  As I have pointed out above, the concerns arising from that do not seem to me to be met entirely by paragraph 1 of the Anonymity Order.

39.  Therefore, whilst I agree that there has been some unfortunate tardiness in the Law Society’s making this application, I do not think the timing weighs significantly in how to deal with the application.

H.     Result

40.  I have considered carefully whether there may be some lesser restriction on an open hearing which will achieve the necessary balance of the various rights and interests at stake.  In my view, the Anonymity Order is in practical terms the only way to maintain the necessary balance.  To put it another way, nothing short of the Anonymity Order already in place will strike the right balance in the particular circumstances of this case.

41.  Therefore, the application is dismissed, and the Anonymity Order will continue.

42.  Because of the proximity in time, I reserve the question of costs to the hearing on 30 January 2024.