THE LAW SOCIETY OF HONG KONG v. CHAN DORIS KA YEE, formerly A CLERK OF MESSRS CHAN, WONG & YIP, SOLICITORS

CAMP 156/2024

[2025] HKCA 313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 156 OF 2024

(ON AN INTENDED APPEAL FROM AN ORDER MADE BY THE
SOLICITORS DISCIPLINARY TRIBUNAL DATED 24^TH JULY 2024)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is an application for leave to appeal brought by the Law Society of Hong Kong (“Law Society”) against an order of the Solicitors’ Disciplinary Tribunal (“SDT”) made on 24 July 2024 dismissing all three complaints against Ms Chan Doris Ka Yee (“respondent”) for the reasons set out in its Statement of Findings and Order (“Findings”), and, if leave is granted, an extension of time for filing the notice of appeal.

2.  This application is made under section 13(2A) of the Legal Practitioners Ordinance, Cap 159 (“LPO”). Under section 13(1), the time for appealing is 21 days from the date of the decision. There is no provision in the LPO for the time within which an application for leave to appeal must be made. The Law Society was within time to file a notice of appeal when it filed this application to seek leave to appeal. However, by the time this application is determined, the time for appealing would have expired. It would be appropriate to extend time for filing and serving the notice of appeal if we decide to grant leave to appeal.

3.  The respondent, who is acting in person, opposes this application. She has lodged submissions in Chinese. Having considered the papers and submissions, we consider it appropriate to deal with the application on paper without an oral hearing, pursuant to Order 59 rules 2A(5)(a) of the Rules of the High Court, Cap 4A.

Threshold for granting leave to appeal

4.  No express provision is made in section 13 of the LPO regarding the requirement or threshold for granting leave to appeal against a decision of the SDT.

5.  As held in The Law Society of Hong Kong v A Solicitor [2023] 1 HKLRD 543 at [4], it is not necessary to resolve whether the appropriate threshold for leave to appeal in these disciplinary proceedings is reasonable prospect or realistic prospect of success. Whichever test is applied, and assuming that realistic prospect of success is of a higher threshold, we are satisfied that the higher threshold is met.

Factual background

6.  The respondent was employed as a clerk of Messrs Chan, Wong & Yip (“the Firm”) from 15 June to 9 September 2012, and from 21 March 2013 to 31 March 2018.

7.  The Firm acted for Ms Yang Bai (“Ms Yang”) in her purchase of a residential property in Yuen Long, with completion taking place on 7 June 2017.

8.  In May 2018, after the respondent had left the Firm, the Law Society received a complaint from Ms Yang against both the Firm’s senior partner and the respondent. The complaint was an allegation that the Inland Revenue Department did not receive an application by which Ms Yang wished to apply for a partial refund of stamp duty. It is not the subject of the disciplinary proceedings. The subject of the proceedings is the respondent’s failure to respond to the applicant’s inquiries.

9.  On 24 July 2018, the Law Society wrote to the respondent inviting her to respond to Ms Yang’s allegations by 7 August 2018 (“July 2018 Letter”).

10.  On 7 August 2018, the respondent requested an extension of 21 days to reply, to which the Law Society agreed on 8 August 2018.

11.  On 28 August 2018, the respondent requested a further extension of 14 days. On 29 August 2018, this extension was agreed by the Law Society. The respondent was reminded of section 2(2) of the LPO[1], as well as Commentary 4 to Principle 1.06[2] and Principle 6.04[3] of The Hong Kong Solicitors’ Guide to Professional Conduct (“the Guide”).

12.  The respondent’s letter dated 28 August 2018 was the last time she communicated with the Law Society prior to the commencement of the disciplinary proceedings. What followed was a series of reminders from the Law Society, namely its letter dated 4 October 2018, 10 January 2019, 6 March 2019, 21 March 2019, and 10 April 2019. Each of the letters drew the respondent’s attention to section 2(2), Commentary 4 to Principle 1.06, and Principle 6.04.

13.  On 17 July 2019, the Law Society issued a “Letter of Disapproval” to the respondent. It stated that the Investigation Committee had considered the matter and resolved that:

“1) A letter of disapproval be sent to [the respondent] … for breach of section 2(2) of the [LPO] in that [the respondent] has failed to reply fully and promptly to the [July 2018 Letter].

2) [The respondent] is to provide her full reply to the [July 2018 Letter] within 14 days from the date of receipt of the decision of the present complaint, failing which the Standing Committee on Compliance may consider a more serious sanction”.

14.  As no response was received from the respondent, on 27 March 2020, the Law Society sent a “Strong Letter of Disapproval” to the respondent. It stated that the Investigation Committee had considered the matter and resolved that:

“1) A strong letter of disapproval be sent to [the respondent] … for breach of section 2(2) of the [LPO] in that she has failed to reply fully and promptly to (i) the [July 2018 Letter]; (ii) the [Letter of Disapproval]; and (iii) the Law Society’s reminder letter dated 14 August 2019.

2) [The respondent] is to provide her full reply to the [July 2018 Letter] within 14 days from the date of receipt of the Law Society’s letter notifying her of the Investigation Committee’s present decision, failing which the Standing Committee on Compliance may consider to institute disciplinary proceedings against [the respondent]”.

15.  On 5 May 2020, Investigation Counsel sent a further reminder letter stating that unless a full reply was received from the respondent within 14 days, the matter would be referred to the Investigation Committee for consideration of a more serious sanction including the institution of disciplinary proceedings.

16.  After about three years, on 7 March 2023, the Law Society instituted the disciplinary proceedings against the respondent.

The complaints

17.  The Law Society brought three complaints against the respondent:

1)  The respondent had committed disgraceful, dishonourable, and discreditable conduct within the meaning of section 2(2) of the LPO in that she failed to reply fully and promptly or at all to inquiries from the Law Society as set out in the July 2018 Letter, and reminder letters dated 4 October 2018, 10 January 2019, 6 March 2019, 21 March 2019, 10 April 2019, 14 August 2019, and 5 May 2020 respectively which constituted a breach of Principle 6.04 of the Guide.

2)  The respondent had committed disgraceful, dishonourable, and discreditable conduct within the meaning of section 2(2) of the LPO in that she failed to comply with the resolutions of the Investigation Committee as set out in the Law Society’s Letter of Disapproval dated 17 July 2019 which required her to provide her full reply to the July 2018 Letter within the stipulated time which constituted a breach of Principle 6.04 of the Guide.

3)  The respondent had committed disgraceful, dishonourable, and discreditable conduct within the meaning of section 2(2) of the LPO in that she failed to comply with the resolutions of the Investigation Committee as set out in the Law Society’s Strong Letter of Disapproval dated 27 March 2020 which required her to provide her full reply to the July 2018 Letter within the stipulated time which constituted a breach of Principle 6.04 of the Guide.

The statement of findings and order

18.  The SDT identified five issues for determination:

1)  What exactly is alleged in the complaints and is a breach of Principle 6.04 a prerequisite to a finding of misconduct on the facts of this case;

2)  Whether the basic factual allegations for the three complaints have been proved to the requisite standard;

3)  If a breach of Principle 6.04 is required, whether there has been such a breach;

4)  Would the respondent’s conduct reasonably be regarded as disgraceful, dishonourable and discreditable by a solicitor of good repute; and

5)  Having regard to the determination of the four issues above, what is the result.

19.  The findings on the above issues are:

1)  On Issue 1: The complaints are alleging that the respondent’s conduct would reasonably be regarded as disgraceful, dishonourable, and discreditable by a solicitor of good repute, such that her conduct would be deemed to be misconduct, not just because she allegedly failed to respond to the Law Society’s correspondence, but also because that failure was a breach of Principle 6.04. Accordingly, it is incumbent on the Law Society to demonstrate that the respondent has breached Principle 6.04.

2)  On Issue 2: the basic factual allegations for each of the complaints have been proved.

3)  On Issue 3: It is not the Law Society’s position that employees of solicitors are bound to comply with the Principles in the Guide. The Law Society relies on Commentary 4 to Principle 1.06 that employees of solicitors “shall have regard to” the Principles. The SDT considers that a person who is not obliged to comply with a Principle but is required “to have regard” to it is under a less onerous obligation. He must consider the Principle when making his decision and must have good reasons if he chooses not to comply. Having considered the reasons given by the respondent for not replying to the Law Society’s correspondence, the SDT considers that she did not have good reasons. It follows that the SDT considers that the respondent did breach her obligation “to have regard” to Principle 6.04. That does not answer the question if the respondent breached Principle 6.04; the SDT thinks she did not. It is however not necessary to reach a conclusion if she breached Principle 6.04, in light of the finding on Issue 4.

4)  On Issue 4: None of the three adjectives (disgraceful, dishonourable, discreditable) are satisfied. The respondent’s obligation was not to comply with Principle 6.04, but merely to have regard to it, which is less onerous. She was an unqualified clerk and not a solicitor. The SDT is unable to conclude that her conduct, in breach of her obligation to have regard to Principle 6.04, would reasonably be regarded as either disgraceful, or dishonourable, or discreditable by a solicitor of good repute. The SDT finds the respondent’s own description of what she did, namely “rude”, to be a better adjective to describe her behaviour.

5)  Issue 5: Having regard to the determination of the four issues above, the complaints must be dismissed.

Intended grounds of appeal

20.  The findings for Issues 1 and 2 are not in dispute. The challenge in the intended appeal is against the findings for Issues 3 and 4. The finding in Issue 5 is contingent on the determination of the other four issues.

21.  The Law Society contends that the SDT was wrong in finding in Issue 3 that the respondent did not breach Principle 6.04 for two main reasons:

1)  This finding is inconsistent with the finding that the respondent breached her obligation under the Guide as a solicitor’s employee “to have regard” to Principle 6.04.

2)  Breaching an obligation “to have regard” to Principle 6.04 and breaching Principle 6.04 is a distinction without a difference in this situation, in the absence of the respondent having good reason not to reply.

22.  As for the contention that the SDT was wrong in its finding on Issue 4, the Law Society’s reasons are:

1)  The SDT failed to take into account the respondent’s motives for her conduct.

2)  In assessing whether the respondent’s conduct discredited her professionally, the SDT should not have regard to the fact that she was an unqualified clerk. Her conduct is to be judged “according to the standards of a solicitor of good repute”.

3)  The SDT failed to give adequate reasons for its finding that the respondent’s conduct was not disgraceful, dishonourable and discreditable.

Our views

23.  We are of the view that the grounds of appeal in the draft notice seeking to challenge the findings in respect of Issues 3, 4 and 5 are reasonably arguable. They raise issues of law of importance that warrant consideration by the Court of Appeal.

24.  We grant leave to appeal on the grounds in the draft notice and extend time for the Law Society to file and serve the notice of appeal within seven days of the handing down of this judgment.

25.  We order the costs of this application be in the cause of the appeal.