THE LAW SOCIETY OF HONG KONG v. A SOLICITOR

 FAMV No.30 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 30 OF 2006 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 372 OF 2004)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.  The appeal to the Court of Final Appeal which the Law Society seeks leave to bring would be an appeal against penalty and costs only.  It would be against the Court of Appeal’s reduction of the fine and costs which the Solicitors Disciplinary Tribunal ordered against the Solicitor and against the awards of costs made against the Law Society by the Court of Appeal on the appeal to them and on the failed application to them for leave to appeal to the Court of Final Appeal. The courts are traditionally and rightly slow to interfere with penalties imposed and costs orders made by professional disciplinary tribunals.  They do not interfere save on strong grounds.  Were such grounds lacking in the present case?

2.  Quite simply, there was one element of mitigation.  The charge was of failure to comply with a notice to produce documents under s.8AA(2)(b) of the Legal Practitioners Ordinance, Cap. 159.  And the mitigation consisted of counsel’s advice on the question of whether the Solicitor was entitled to sight of a direction of the Law Society’s Council authorising the notice before complying with it.  The Solicitors Disciplinary Tribunal said this:

“Judging from the matters disclosed by [the Solicitor], he was not exactly advised by [counsel] to refuse to comply with the Notice for Inspection.  [Counsel] did advise for sight of [the Council of the Law Society’s] direction (which he thought probably existed), but he recommended only the remedy of judicial review.  The [Solicitor] has not applied for judicial review of [the Law Society’s] actions, nor has he threatened to do so.”

There is at least one other statement to the same effect by the Solicitors Disciplinary Tribunal in its Statement of Findings.

3.  As to what counsel had or had not advised, the Court of Appeal quoted counsel’s e-mail message in which he said that the Solicitor was entitled to ask for sight of a direction authorising the notice to produce “before” complying with the notice.  And the Court of Appeal then proceeded on the footing that, contrary to the Solicitors Disciplinary Tribunal’s view, counsel had, whether rightly or wrongly, indeed advised refusal to comply with the notice unless and until shown such a direction.

4.  The Court of Appeal were justified in proceeding on that footing, which they did on the particular facts of this case.  Accordingly they were entitled – indeed obliged – to approach penalty and costs afresh.  This is not a case in which the Court of Appeal interfered with the penalty imposed or costs order made by a professional disciplinary tribunal on the same view of the primary facts as that taken by the tribunal.  As the costs of the appeal to the Court of Appeal and of the failed leave application made to them, the recollection of each counsel as to what was or was not said to the Court of Appeal on such costs is not clear.  The proper orders as to costs in regard to disciplinary proceedings is a matter of importance and is open to debate, and the Court of Final Appeal should not be called upon to pronounce upon them where, as here, the factual foundation for adjudication is not firm. 

5.  There is no warrant in the circumstances of this case for an appeal to the Court of Final Appeal against the result at which the Court of Appeal arrived.  Leave to appeal to the Court of Final Appeal is refused.

[After argument, no order was made as to the costs of this application]