CHEUNG TAT MING ERIC v. THE COUNCIL OF THE LAW SOCIETY OF HONG KONG

HCAL 529/2022

[2025] HKCFI 5383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 529 OF 2022

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J U D G M E N T

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A. Introduction

1.  The Applicant is a practising solicitor who was elected as a member of the Council of the Law Society of Hong Kong (“Council”) on 31 May 2018, and had served as one until 30 August 2021. It is the Council’s position that the Applicant, on two occasions during March and May 2020, disclosed confidential information which he obtained as a Council member, in breach of his duty of confidentiality.

2.  After a year of back-and-forth between the Applicant and the Council, the matters eventually culminated in the Council’s decision (“Decision”) made on 30 March 2021 to refer the two matters as complaints against the conduct of a solicitor to the Tribunal Convenor (“Convenor”) of the Solicitors Disciplinary Tribunal Panel (“SDT Panel”) under section 9A(1) of the Legal Practitioners’ Ordinance Cap 159 (“LPO”).

3.  I have been told that this is the first time when a complaint was made by the Council against one of its serving Council members. The Decision was collectively made by various Council members against one of their fellow members. The Council was not only the decision maker, but also the complainant, and supposed victim of the Applicant’s breaches. It was these features which the Applicant relied upon in his attempt to challenge the Decision by way of judicial review.

4.  On 23 June 2022, the Applicant filed a Form 86 seeking leave for judicial review against the Decision. The leave application was heard on 15 November 2022 and I granted leave on two Grounds (out of three set out in the Form 86) on 24 November 2022.

5.  The substantive hearing was heard on 16 and 19 January 2023. The Applicant was represented by Mr Stewart Wong SC, leading Mr Jason Kung of Counsel. The Council was represented by Mr Abraham Chan SC, leading Mr John Cheung of Counsel.

6.  At the end of the hearing, I reserved Judgment. This is the Judgment.

B.  The Two Disclosure Incidents

B.1  Complaint 1: Disclosure of President’s Letter in March 2020

7.  The two occasions of disclosure which have now become the bases of the two complaints referred to the Convenor occurred in March and May 2020, during the currency of the Applicant’s office on the Council.

8.  The long and short of what I will refer to as “Complaint 1” is that the Applicant had “tipped off” Mr Dennis Kwok (“Mr Kwok”), the then Representative for the Legal Functional Constituency in the Legislative Council, by disclosing to him a paragraph extracted from the letter of the President of the Law Society (“Letter”) before the same was circulated to the general membership of the Law Society.

9.  The Letter was intended to be circulated to the general membership on 30 March 2020, but the Applicant disclosed the extracted paragraph to Mr Kwok on 27 March 2020 (“Disclosure to Kwok”). The Applicant himself was able to have an advance copy because he was a serving Council member.

10.  The extracted paragraph (“Comment”) disclosed to Mr Kwok reads:

Incidentally, my attention has been drawn to the Newsletter of Mr Dennis Kwok, Legislative Councillor, dated 23 March 2020, in which it was stated that the Law Society had been contacted on the content of the Newsletter. However, the Law Society’s records did not show that we had been so contacted officially and we have written to Mr Kwok to clarify.

11.  The Comment was prompted by an earlier newsletter issued by Mr Kwok in which he claimed to have contacted the Law Society regarding the Law Society’s position on offering financial assistance to small and medium firms during the outbreak of Covid-19. Apparently, the Law Society did not agree that such “contact” (or “official contact”) was made, and thought it necessary to put the record straight by way of the Letter.

12.  As said, the Applicant disclosed the Comment to Mr Kwok on 27 March 2020. The disclosure was accompanied with a message which read: “You should be prepared to respond when this is out on Monday.”

13.  The disclosure was discovered by the Council because Mr Kwok texted one of the Vice Presidents, citing the Comment, for clarification in the evening of 27 March 2020. The matter was brought up in the Council meeting held on 31 March 2020, and the Applicant admitted in the meeting that he was the one who leaked the Comment to Mr Kwok. The Applicant said it had never occurred to him that the confidentiality requirements of the Standing Orders of the Council (“Standing Orders”) would cover the President’s Letter as well. He also took the view that if something was to be said in public against the Legislative Councillor of the Legal Constituency, the person should be given a chance to respond.

B.2  Complaint 2: Disclosure of non-unanimity in voting result

14.  In the lead-up to the election of the Council in 2020, there were reports in the media that the then President of the Law Society had urged her friends to support five of the candidates in the upcoming election. It was described by some as controversial and inappropriate for the then President to support any candidate.

15.  The Council resolved to issue a press release on 14 May 2020. In the press release, the Council summarized its position in three points: (1) the Law Society does not endorse any of the candidates; (2) the Law Society has not permitted its resources to be used to support any candidate; and (3) all solicitors (including Council Members) are entitled to, and should, hold personal views as to the calibre and desirability of particular candidates to join the Council, and should act in accordance with those views.

16.  On the same day, the President (in the presence of the Vice Presidents and two other Council members) held a press conference and expressed that her support for specific candidates and the emails she sent were in her private capacity as a member of the Law Society.

17.  Also on the same day, following the press conference, the Applicant published on his Facebook page a statement (“FB Statement”), the excerpt of which reads:

The press statement issued this morning was approved by the majority of Council and all Council members need to bear the collective responsibility for matters approved by the Council even though they might express dissenting views internally. The press statement does not touch on whether the President can or should openly lobby for certain candidates in the Council elections (see paragraph 7 of the press statement: “Like any other Law Society members, Council members including the President and the Vice Presidents are entitled to form personal views, express preferences and exercise discretion to vote in the Council election”). Under our protocol, no Council member can go beyond what was stated in the approved press statement on behalf of Council.

18.  The FB Statement was picked up by some news media as saying that the issuance of the press release was approved by a majority of the Council, and that there were dissenting views within it.

C.  The Law Society’s Complaint Handling Procedure

C.1  General framework for handling complaints against solicitors

19.  Before turning to the actual decision making process of the Council in deciding to refer the Disclosure to Kwok and the FB Statement to the Convenor, it is convenient briefly to set out the Law Society’s framework or procedures for handling complaints against solicitors.

20.  In Zhu Li v Law Society of Hong Kong [2017] 3 HKLRD 513, Zervos J (as Zervos JA then was) helpfully provided a broad overview of the Law Society’s complaints handling procedures in regulating its own members. The Council confirmed that the procedures have remained as such since the Zhu Li case, and I gratefully adopt Zervos J’s summary given at §§5-19 (excluding footnotes):

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). 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 [in Zhu Li v The Law Society of Hong Kong, HCAL 8/2014, 12 April 2016, unreported] 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’.”

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.

21.  More details of the complaint handling procedures could be found in a document headed “Notes to Parties to a Complaint” (“Notes to Parties”) published by the Law Society. In gist:

(1)  The complaint handling procedures start when the Conduct Section receives a “Complaint Form” from the complainant.

(2)  The Conduct Section will then proceed to do some preliminary research and review to see if the complaint reveals a prima facie case of professional misconduct.

(3)  If not, the Conduct Section will advise the parties to resolve the disputes between them amicably. If the parties are able to settle their disputes in such manner, the complaint file will be closed without further reference to an Investigation Committee. If parties are not willing to or cannot resolve their disputes between themselves, the Conduct Section may then obtain information from the respondent and prepare a report for the Investigation Committee to decide if the matter should be proceeded further.

(4)  If the Conduct Section’s preliminary research and review reveals a prima facie case of professional misconduct, the Conduct Section will write to the respondent and send him a copy of the completed Complaint Form together with copies of all documents provided by the complainant, and seek an explanation from the respondent. The complainant will then be given an opportunity to comment on the respondent’s explanation. If the complainant’s comments raise new allegations, the respondent will be given an opportunity to reply.

(5)  If the Conduct Section is satisfied that sufficient information has been gathered, the Conduct Section (presumably the Investigation Counsel referred to in Zervos J’s Judgment) will prepare a report for consideration by an Investigation Committee.

(6)  The Investigation Committee will consider the appropriate sanctions, including issuing a letter of regret or a letter of disapproval.

(7)  If the Investigation Committee considers that the matter should be referred to the Convenor, the committee will refer the report to the SCOC who will then decide if the matter should be referred to the Convenor.

22.  Specifically, §8 of the Notes to Parties sets out the role of the SCOC, which reads as follows (and where the Applicant placed some emphasis on §8(v) in particular):

Standing Committee on Compliance

(i) its powers are delegated by the Council of the Law Society;

(ii) is made up of practising solicitors who are not members of the Law Society Secretariat;

(iii) monitors the work of the Conduct Section in carrying out its policies:

(iv) considers of its own motion or upon recommendations from an Investigation Committee for submission of matters to the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel;

(v) considers and decides on allegations of professional misconduct that are of particular sensitivity, importance or complexity;

(vi) oversees the work and considers all requests for review of decisions of the Investigation Committees.

C.2  Delegation of Referral Power under section 9A(1) to SCOC

23.  In the procedure set out above, the Council has effectively delegated its power under section 9A(1) to the SCOC (with the assistance of the Investigation Committee and the Conduct Section).

24.  The power under section 9A(1) is the power to refer a complaint to the Convenor, which would then trigger the possibility of having the complaint inquired into or investigated through a Solicitors Disciplinary Tribunal (“SDT”) under section 9B(1). The referral to the Convenor under section 9A(1) should be made “where the Council considers that the conduct of [a solicitor] should be inquired into or investigated as a result of a complaint made to it or otherwise”.

25.  I have already noted that the Decision the subject of the present challenge was made by the Council itself, rather than by the SCOC. The Council has not seriously disputed that what may be called the general or usual procedures as set out above were departed from in the present case. But the Council emphasized that, notwithstanding the delegation of powers under section 9A to the SCOC, as a matter of law, the Council still retains and is capable of exercising the very same power by itself, citing section 44(1)(a) of the Interpretation and General Clauses Ordinance Cap 1 (“IGCO”). There was no serious legality challenge from the Applicant, who did not argue that the Council had no power to make the referral itself on the basis that the power was delegated to the SCOC.

26.  The Council stressed that the delegation was only a general rule (or “guidance” if the Council so prefers) rather than an absolute rule from which there should never be departure. Both sides referred me to the following excerpt from Chapter 15 of The Hong Kong Solicitors’ Guide to Professional Conduct, Volume 1 (3^rd ed, 2013) (“Solicitors’ Guide”) at p 205:

Complaints against solicitors are investigated by the Conduct Section but decisions are made by the Standing Committee on Compliance or by Investigation Committees. In exceptional circumstances, the Council can of its own motion refer a complaint direct to the Convenor of the Solicitors Disciplinary Tribunal Panel.

27.  The Council’s affidavit evidence stated that in the past, the Council had made eight referrals under section 9A(1) directly (and not via the SCOC) during the currency of the Applicant’s membership, pursuant to what it referred to as the “fast-track” procedure when the normal procedure was thought to be too slow to meet the demand of the circumstances. Apparently, a typical example has been in circumstances of misconduct warranting the Law Society’s intervention into a law firm’s practice.

C.3  The Internal Requirement

28.  On top of the usual procedures set out above, there is a further requirement – referred to by the Applicant as the “Internal Requirement” – which was implemented in 2018, apparently to address the issue highlighted in Zhu Li (see above). There, the SCOC decided not to refer a complaint against a Council member to the Convenor under section 9A(1). The Court recognized the need to have measures in place to prevent Council members (through the Investigation Committee or the SCOC) from handling complaints against their fellow Council members.

29.  The Applicant described the Internal Requirement as being that if the complaint is made against a serving or past Council member, any Council member who has served in the Council with him at the same time would be regarded as being in conflict and would not be allowed to take any part (or even be allowed to receive the relevant papers) in the investigation or decision-making process before the Investigation Committee or the SCOC. He said the Internal Requirement would similarly require members who are in a position of conflict to refrain from dealing with the complaint as a member of the Council.

30.  As reflected in the Council’s affidavit evidence, the Council did not take serious issue with the fact that there is such an Internal Requirement, along the lines as advanced by the Applicant. The Council’s affidavit evidence referred to §3.5.2 and §4.8.1 of the Standing Orders of the Law Society of Hong Kong (1 February 2020 version) (“Standing Orders”). §3.5.2 reads:

Any Council member who becomes aware that he/she has personal or professional interests in conflict with those of his/her role as a Council member shall forthwith disclose the fact and shall, unless the chairperson determines otherwise, leave the meeting place whilst the issue in which he/she has such an interest is under discussion. In the event of a dispute as to whether a conflict exists, the chairperson of the meeting shall so decide and his/her decision shall be final. Any member with a personal or professional interest in conflict with those of his/her role as a Council member shall not vote in respect of that issue.

31.  §4.8.1 of the Standing Orders reads:

The rules relating to conflict of interest applicable to Council meetings and set out in Standing Order 3.5 hereof shall apply mutatis mutandis to meetings of Standing Committees.

32.  The Council also agreed that in 2018, measures had been adopted to the effect that only non-Council members could sit on the Investigation Committee or the SCOC when the complaint involves a Council member. From my reading of the Council’s affidavit (at §14b), it would be fair to say the rationale behind the measures is that Council members would be generally (if not automatically) regarded as being conflicted out when the complaint involves their fellow Council member.

33.  But the Council stressed that the Internal Requirement (or “internal measure” in the Council’s words) was “only intended to be and is no more than a general guidance”, and that the requirement “was not a strict one in the sense that the Council would not be permitted to depart from it if necessary”.

34.  Again, it was not disputed that the Decision was not made in a manner in compliance with the Internal Requirement. The Decision was made by Council members in respect of how to handle a complaint against one of their fellow Council members. Again, as would be imagined, the battlefield lies in whether the departure was justified in the circumstances.

D.  The Decision Making Process

D.1  Actual Circumstances

35.  Hence, it is useful now to turn to the actual circumstances leading to the Decision.

36.  As said above, the Disclosure to Kwok occurred on 27 March 2020, and the matter was first brought up in the Council’s meeting held on 31 March 2020. The Decision was eventually made in a meeting held on 30 March 2021, a year later. I will set out the process in several periods, by reference to the development of events.

D.2  Council meetings from March to May 2020

37.  The first relevant Council meeting was held on 31 March 2020, during which the Applicant admitted being the one who leaked the information to Mr Kwok. As reflected in the minutes, some members saw it as a serious matter involving breach of confidentiality and breach of trust. No conclusion was reached, but apparently the matter was thought to warrant further consideration, and it was resolved that the discussion be adjourned, and the Applicant be invited to submit written representations for the Council’s consideration.

38.  The next meeting minutes are dated 12 May 2020. But from the email exchange between 31 March 2020 and 12 May 2020, I understand that the Applicant was asked by the Council to sign a confidentiality undertaking, which request he refused.

39.  Apparently during that period, the Council had also sought legal advice from Mr John Rowland QC (“1^st Legal Advice”) regarding the Applicant’s Disclosure to Kwok. The 1^st Legal Advice, understandably, was not placed before the Court. But discussion about it was recorded in the minutes of the meeting held on 12 May 2020. From this meeting onwards, the Applicant would leave the meeting as being conflicted out whenever the Council would discuss the Disclosure to Kwok or the FB Statement (which had not yet happened by 12 May 2020).

40.  In the 12 May 2020 meeting, all members agreed (or did not object) that the Disclosure to Kwok was a clear breach of confidentiality by the Applicant. Members discussed how to deal with it. Options raised included writing some sort of disapproval letters to the Applicant, publishing the breach to the general membership of the society, etc. One of the options discussed was to refer the matter to the Conduct Section for investigation. As shown in the minutes, apparently it was a suggestion (or one of the suggestions) raised in the 1^st Legal Advice, which advice also recommended that the likely sanctions would be issuing letters of regret or letters of disapproval. The 1^st Legal Advice also concluded that the Disclosure to Kwok was a breach of the duty of confidentiality. All 19 members unanimously agreed that there was a breach of confidentiality. By a majority of 11 to 6, the Council resolved to refer the matter to the Conduct Section for investigation on professional misconduct.

41.  However, in the next meeting held on 18 May 2020, the Council decided to overturn the resolution to refer the Applicant to the Conduct Section, in favour of setting up an “Independent Panel” to adjudicate on the matter first. Despite the previous resolution to refer the matter to the Conduct Section, it was recorded that members continued to discuss the appropriateness of such referral.

42.  It may be noted that the Internal Requirement was already mentioned by members in the 18 May 2020 meeting. The arrangement that when a complaint was made against a Council member, the relevant Investigation Committee would be comprised of non-Council members was referred to as the “current standard procedure” or the “standard normal procedure”.

43.  As to why the Council eventually preferred an Independent Panel, several reasons were recorded in the minutes (as observations raised by members), including that once the matter was referred to the Conduct Section, the Council would not be kept informed of the process until the end; the investigative process would take some time and the lack of trust in the Applicant as a Council member had to be addressed urgently; and also so as “to be fair to” the Applicant. At the end, the Council resolved to overturn the previous decision to refer the matter to the Conduct Section in favour of referring the matter to an Independent Panel comprising three past presidents who had not served on the Council for any overlapping period with the Applicant. It was recorded in the minutes that the referral to the Conduct Section be revisited in due course after considering the finding of the Independent Panel.

44.  By the time of the 18 May 2020 meeting, the Applicant had already published the FB Statement. It was also resolved in the meeting that legal advice was to be obtained from the same Counsel regarding if that was also a breach of confidentiality, taking into account §3.4.2 (concerning confidentiality) and §3.4.8 (concerning collective responsibility) of the Standing Orders.

45.  It is recorded in the minutes of the meeting held on 26 May 2020 that Rowland QC had provided a legal advice dated 23 May 2020. I was not provided with that advice, but the Council resolved, taking into account Rowland QC’s advice, that by publishing the FB Statement the Applicant had also breached his duty of confidentiality and §§3.4.2 and 3.4.8 of the Standing Orders. At the same meeting, it was also resolved that further legal advice was to be obtained from Rowland QC regarding, mainly, whether it would be appropriate to handle both the Disclosure to Kwok and the FB Statement by an Independent Panel (and on what terms) before the Council considered the next step to take, including potential referral to the Conduct Section.

46.  The minutes of the 26 May 2020 meeting also recorded that the Secretary General of the Council reported that three qualified past presidents had been approached and indicated willingness to be on the Independent Panel. But members suggested that two of the potential candidates might be perceived as conflicted even though they had no overlapping period with the Applicant on the Council. Members thus suggested approaching two other past presidents.

D.3  The Independent Panel

47.  The terms of reference (“ToR”) of the Independent Panel were approved by the Council in a meeting held on 9 June 2020:

(1)  As to the purpose of the Panel, it is said that the Panel was appointed to review the conduct of the Applicant in respect of the Disclosure to Kwok and the FB Statement in his capacity as a Council member.

(2)  For the appointment of Panel members, it is said that the three members are selected from past presidents of the Law Society (starting with the most recent) who are willing to accept the appointment, subject to the following requirements (a) the members shall not have served on Council with the Applicant at the same time; (b) no member shall have any conflict or perceived conflict of interest with the Applicant; and (c) all members shall act impartially and independently of the Council. The members appointed are Mr Dieter Yih, Mr Huen Wong and Mr Lester Huang.

(3)  For the procedure, it is said that the Panel shall determine its own procedure with the object of treating the Council and the Applicant with equality and providing each with a fair and reasonable opportunity to make representations and present its case to the Panel. The Panel is also required to produce a written report setting out its conclusion at the end and the report should be provided to both the Council and the Applicant.

(4)  The Council will send a statement to both the Panel and the Applicant setting out the facts relied upon by the Council in reaching its conclusion that the Applicant had breached his duty of confidentiality.

(5)  The proceedings shall remain confidential and neither party may disclose any information concerning the procedure including any documents produced or disclosed in the process without the prior written consent of both parties, save that either party may disclose (a) to members of the Law Society the fact that the Panel has been established and the matter it has been asked to consider; (b) to the members of the Law Society a copy of the Panel’s written report or a fair summary of the same at the conclusion of the proceedings; (c) to his or its legal advisers such information for the purpose of seeking legal advice.

(6)  The Panel is constituted on 9 June 2020 and the submission of the written report was expected to be submitted by 8 July 2020.

48.  The actual proceedings before the Independent Panel were confidential subject to those expressly excluded by the ToR and both parties’ written consent. But upon the conclusion of the proceedings, the Panel issued its report on 27 July 2020 (“Panel’s Report”). I have not been provided with a copy of the Panel’s Report, but I am told that the Panel found that the Applicant had breached his duty of confidentiality and had no valid justification for his breaches.

49.  From the limited information the parties chose to disclose in their affidavit evidence and the bundle exhibits, I gather that the proceedings were conducted from June to early July 2020, and both parties were legally represented and were allowed to make written and oral submissions. The Applicant’s written submissions were settled by three Counsel: Mr Johannes Chan SC, Mr Randy Shek, and Mr Ted Chan. Mr Randy Shek (together with Mr Ted Chan) also represented the Applicant to make oral submissions before the Panel in a hearing held on 20 July 2020.

50.  The Court was not provided with the parties’ written submissions or the transcript of the oral hearing. But in an email dated 13 August 2020 (after the issue of the Panel’s Report), the Applicant requested the members of Law Society to be provided with not only the Panel’s Report but also the parties’ written submissions. In that email, the Applicant pointed out that there were numerous issues covered in the written submissions, which were not dealt with or properly dealt with in the Panel’s Report. From what was said to have been missing in the Panel’s Report, Mr Chan submitted that the Applicant’s submissions before the Panel already cover “an array of legal questions pertaining to breach of confidence, freedom of expression/ proportionality, and the principle of collective responsibility”.

D.4  After the Independent Panel’s Report

51.  After the proceedings before the Panel had concluded, the Council sought to procure the Applicant to sign an undertaking of confidentiality. The Applicant did not sign one in the end, since the parties could not come to an agreement on the terms of the undertaking.

52.  On 2 November 2020, the Council issued a circular to the general membership of the Law Society. The Council explained that an Independent Panel had been set up to review the Disclosure to Kwok and the FB Statement, and the Panel concluded that the Applicant “had breached his duty of confidentiality and had no valid justification for the breach in each of the two incidents”. It was also revealed that the Council had passed a vote of no confidence in the Applicant on 12 May 2020 and that “the Council considers that the duty of confidentiality is of fundamental importance to the solicitors’ profession and any breach of such duty is serious”.

53.  By email dated 5 November 2020, the Applicant requested the Council to also circulate the Applicant’s written statement in reply to the Law Society’s circular issued three days ago. In the written statement, the Applicant said the Panel’s Report contained hardly any analysis of the legal principles or the submissions made on the Applicant’s behalf, and had only stated a conclusion without substantial analysis. The Applicant set out his version and analysis of the two disclosure incidents. The Applicant sought to clarify what was no doubt his position at that time, that the Panel did not involve any disciplinary action against him but was only a Panel appointed by the Council to review the two disclosure incidents.

54.  The Council did not circulate the Applicant’s written statement in reply, but sought to explore with the Applicant the possibility of coming up with a joint statement. However, the parties failed to reach a consensus on the content of the joint statement and apparently negotiation stopped in around mid-December 2020.

D.5  The Council meetings on 2 March 2021 and 16 March 2021

55.  The next meeting minutes I was provided with were of the meeting held on 2 March 2021. Apparently, at some point, the Council revisited the idea of processing the matter through the Law Society’s disciplinary mechanism or even to refer it to the SDT. A further advice dated 10 February 2021 was procured from Mr Rowland QC which advice was considered by the Council in the 2 March 2021 meeting. It is recorded in the minutes that after the members had reviewed that legal advice, they expressed diverging views on whether the two disclosure incidents should be further processed along the disciplinary route. Items (i) to (iv) are redacted, but items (v) to (vii) read:

(v) If a referral to the SDT was made, the decision of the Council to make such a referral would be subject to judicial review in which event, the incident would be in the public domain and there would be bad publicity for the Law Society.

(vi) Council members are in possession of a lot confidential and sensitive information and hence the duty of confidentiality is very important. Council members should therefore be subject to an even higher standard. If nothing was done for the current breach, it would send a wrong message that everyone could do the same thing without any consequence in future.

(vii) Disclosing confidential information is not correct, but the matter should be put to an end and be left to the general membership to decide by their votes in the Council member election at the annual general meeting.

56.  But the majority was in favour of further processing the two disclosure incidents through the disciplinary mechanism. It was further recorded in the minutes that (my emphasis):

Members considered if Council members would be conflicted in making a decision to refer a breach of confidentiality by a fellow Council member to the SDT. Members noted that in cases involving Council members who had served on the Council at the same time as the member under consideration will be considered as conflicted and will not participate in the discussion and decision making process. After discussion, members agreed to put forward for voting a resolution that the conduct of [the Applicant] in relation to the Disclosure and the Statement be referred to the appropriate body for investigation.

On a show of hands, 10 voted in favour of the referral and 8 against. [The Applicant] was conflicted and Mr [redacted] was absent.

57.  Thus, it is clear that the Council initially took the view that the Council itself (and its members) was not the appropriate body to refer the Applicant to the SDT or to participate in the decision making process in respect of disciplining the Applicant for two disclosure incidents. The Council had also clearly recognized conflict of interest as the reason. Therefore, there was a need to search for the “appropriate body” to do so.

58.  As reflected in the minutes of the next meeting held on 16 March 2021, it appears that the “appropriate body” the Council originally had in mind was the Investigation Committee and the SCOC since both of them consist of non-Council members. The Chair of the SCOC was called to report in the meeting, and he or she reported that there were insufficient numbers of non-Council members to either form the Investigation Committee or to form a quorate SCOC. The Chair was recorded as having reported that:

The Chair of the Standing Committee on Compliance (“SCOC”) reported that there was administrative difficulty in following up with the Council Resolution on 2 March 2021. He explained that adopting the procedure where a complaint had been made against a Council member, an Investigation Committee (“IC”) with non-Council members with no conflict has to be formed and the decision of the IC has to be endorsed by SCOC. When the matter comes before SCOC for endorsement, the required quorum for SCOC is five members who must be non-Council members but one had indicated that there were conflict issues. Out of the five non-Council members with no conflict, there would be members of the IC. Normally, endorsement of IC decisions will not be entrusted to such a small group of members.

It was noted that one option was to enlarge the composition of SCOC…

59.  Also recorded in the minutes was perhaps some sentiment that a decision to refer a Council member to the SDT would or should be seen differently from a decision not to refer the member to the SDT:

It was noted that in a previous case, the Council was criticized for not referring a complaint against a Council member to the Solicitors Disciplinary (“SDT”) due to bias. However, in the current matter under consideration, the suggestion to refer to the SDT, a statutory regime, for further investigation should not create any perception that the Council was protecting its own members. It was when the Council did not make a referral to the SDT that might create the perception of bias.

60.  Apparently, the case referred to in the minutes was the Zhu Li case.

61.  It was resolved in that meeting that a report on how to address the “difficulties” encountered in cases involving complaints against a Council member be prepared for further consideration by Council. The “difficulties”, though not specified in the resolution, were presumably the insufficiency of quorum if the standard procedure of having non-Council members with no conflict of interest to sit on the Investigation Committee and the SCOC is to be adopted.

D.6  Chu’s Report and the meeting on 30 March 2021

62.  This led to the report produced by Ms Chu dated 30 March 2021 (“Chu’s Report”), which was considered in the Council’s meeting held on 30 March 2021.

63.  It appears that, broadly speaking, Chu’s Report sought to address two questions: (1) whether the Council itself could still exercise the power under section 9A given that it had delegated such power to the SCOC; and (2) what measures to take to avoid allegations of bias and conflict of interest when handling a complaint against a Council member.

64.  From the first question Ms Chu sought to answer, it can be seen that the option of the Council itself (rather than the SCOC) making the referral to the Convenor had already been raised and Ms Chu was tasked with finding out the legal feasibility of this option. Ms Chu reproduced section 44(1)(a) of the IGCO. I would not go into the detail of this part, because there is no dispute between the parties that the Council still retains such powers.

65.  As to the second question, Ms Chu first reviewed the Council’s previous discussions or consideration on the topic. She first reiterated the “measures” adopted in 2018 for handling a complaint involving a Council member – both the Investigation Committee and the SCOC should comprise non-Council members who also confirm that he or she has no conflict of interest. In 2018, the SCOC also accepted in principle a proposal to set up a panel of senior members of the legal profession (members on the Roll of Honor to be approached first) to decide on complaints against Council members, but apparently such proposal had not been implemented. It was also revealed that the Council had already procured a legal opinion back in 2014, from Mr Andrew Hopper QC. The paragraphs summarizing the content of the Mr Hopper QC’s advice are redacted. But the paragraph immediately following reads:

15. Having regard to the measures previously considered to avoid allegations of bias, with respect to the current matter under consideration, it is noted:

(a) the Council has established an independent Panel to conduct investigation of the facts to avoid any undue influence of bias (which aligns with the advice as noted in paragraph 13(a)):

(b) paragraph 13(b) notes that the decision on the way forward must be taken by a Law Society committee which should have due regard to the conclusion of the independent panel’s report;

(c) in accordance with the usual procedure (i.e. Council members to recuse themselves for complaints involving a fellow Council member) and to achieve consistency of standards over disciplinary matters and having regard to the fact that the investigation process had already been completed by the independent panel, the appropriate Law Society committee to adjudicate would be SCOC with non-Council members. The usual conflict check in accordance with Standing Orders 4.8.1 and 3.5.2 for the non-Council members should apply. The quorum required is 5 members. The membership list and terms of reference of SCOC is at Annexure 11.

66.  Therefore, it appears that the idea of setting up the Independent Panel for fact finding came from Mr Hopper QC’s legal advice in 2014. Mr Hopper QC also advised that, then, the report of such independent panel be considered by a committee.

67.  At §16, Ms Chu recommended to submit the findings of the Independent Panel to the SCOC (consisting of five non-conflicted and non-Council members) directly for its consideration, and skipping the Investigation Committee since that would duplicate the investigation process. Ms Chu also recommended if quorum is insufficient, consideration should be given to the possibility of recruiting members from the independent panel (who are not members of the particular panel that conducted the investigation) as ad hoc members for the specific matter.

D.7  The Council meeting held on 30 March 2021

68.  This is the meeting in which the Decision was made.

69.  As recorded in the minutes, Chu’s Report was reviewed by Council members. However, there is no record in the minutes showing that Ms Chu’s recommendation – as set out at §16 of her report regarding how to further process the Applicant’s case – was discussed.

70.  Rather, what was recorded as having been discussed is the first question Ms Chu was tasked to answer – namely whether the Council could still exercise the power under section 9A by itself despite the delegation to SCOC. Members noted that the answer was affirmative under section 44(1)(a) of the IGCO. It was further noted that section 9A(1) of the LPO covers situations where a complaint was to the Council “or otherwise” and would thus be wide enough to cover the “current situation under consideration” – presumably referring to a situation when the complaint was made by the Council rather than to the Council.

71.  After discussion, members resolved that:

The appropriate body referred to in the Council resolution dated 2 March 2021 (item 480(b)) would be the Solicitors Disciplinary Tribunal and that the matter in relation to the [Disclosure to Kwok] and the [FB Statement] should be submitted to the Tribunal Convenor of the Solicitors Disciplinary Tribunal pursuant to section 9A(1) of the LPO and that the Standing Committee on Compliance be authorized to follow up with the referral in the usual manner including the appointment of a prosecutor.

D.8  The Charges

72.  The exact charges against the Applicant, however, were only revealed about 6 months later, in the Complaint Sheet dated 24 August 2021 issued by the Prosecutor. Both the Disclosure to Kwok and the FB Statement were charged as being in breach of (1) Rule 2(a) and (d) of the Solicitors’ Practice Rules (“SPR”), (2) Principle 1.03 of the Solicitors’ Guide; and (3) the common law offence of unbefitting conduct.

73.  Rules 2(a) and 2(d) provide that a solicitor shall not, in the course of practicing as a solicitor, do or permit to be done on his behalf anything which compromises or impairs or is likely to compromise or impair his independence or integrity (Rule 2(a)) or his own reputation or the reputation of the profession (Rule 2(d)). Principle 1.03 provides that a solicitor is an Officer of the Court and should conduct himself appropriately. The common law offence of unbefitting conduct is committed if a solicitor misconducts himself or engages in conduct unbefitting a solicitor, thereby compromising his integrity, his own reputation and the reputation of the profession.

E.  Introduction to Ground 1 and Ground 2

74.  I will deal first with Ground 1 then Ground 2, on which leave to apply for judicial review had been granted, before turning to Ground 3 and the challenge on the amenability of the Decision.

75.  Mr Wong framed Ground 1 and Ground 2 this way in his written submissions:

(1)  Ground 1: The Decision is illegal, procedurally irregular and/or in breach of the Applicant’s legitimate expectation in that the Council has acted in breach of its public law duty and failed to follow and adhere to its published policy and procedure or internal requirement on the investigation and submission of complaints to the Convenor.

(2)  Ground 2: There was procedural impropriety on the ground of apparent bias in that the Decision was made by the Council itself against a Council member, instead of by the SCOC.

76.  In Ground 1, the core complaint is that the Council, in deciding to refer the two disclosure incidents to the Convenor by itself, has departed from what Mr Wong referred to as the “published policy, procedure or internal requirement” of the Council. Such “published policy, procedure or internal requirement” is that to be found at p.205 of the Solicitors’ Guide, §8(v) of the Note and what the Applicant understood from his experience working in the Council.

77.  The net effect of such published policy, procedure or internal requirement is that when a complaint is made against a Council member, the decision to refer the complaint to the Convenor will be made by the SCOC comprising non-Council members, and that Council members would be regarded as being conflicted out and would not take part in the decision making process in respect of such a complaint.

78.  As already set out above, the Council does not dispute the existence of such arrangement as a “standard procedure”, but it emphasized that the standard procedure is not an absolute bar which permits no exception. I will refer to the arrangement as “standard procedure”. As long as parties could agree (and they did) that the standard procedure is not an inflexible rule which permits no variation, I do not think it bears much importance whether it is called “policy” or “guidance” or “requirement”. It transpired during the hearing that the real debate was whether the Council had good reasons to justify a departure from the standard procedure.

79.  Whilst Ground 1 is framed in terms of illegality, procedural irregularity and legitimate expectation, it is clear that the focus on this ground is on the procedural aspect of the Decision. Mr Wong did not challenge that the Council had the power or jurisdiction to make the Decision, and this is not what may be called a vires challenge. Also, as I understand it, the suggested legitimate expectation harks back to the idea that the standard procedure should have been followed, rather than pertaining to any expectation on the substantive results of the Decision.

80.  Ground 2 is also a procedural challenge, but with the centre of focus sharply on the identity of the decision maker – that the Decision was made by Council members against their fellow Council member and that the decision maker was also the complainant.

81.  It is appropriate to consider each of Ground 1 and Ground 2 separately, but I do not lose sight of the interactional overlap between them.

82.  It is also appropriate to refer at this point to the features which Mr Chan submitted bear some importance on how the Court should approach both Ground 1 and Ground 2.

83.  First, Mr Chan said the relevant statutory regulatory framework in which the Decision was made is a flexible one. Section 9A(1) only provides that the Council, upon the receipt of complaint, could refer the complaint to the Convenor. There is no further provision governing the procedure or administrative details as to what should happen between the receipt of a complaint and the referral to the Convenor. Mr Chan said those procedural or administrative details are entrusted, by the legislature, to the good judgment of the Council, being the self-regulatory professional body for solicitors. Given that complaints could come in various forms, and there are different factors the Council would have to take into account in the decision making process, the procedural route by which the Council refers a complaint to the Convenor could not be an inflexible one.

84.  As said, Mr Wong, rightly, accepted that the standard procedure is not an inflexible mechanism which does not permit any variation. An inflexible rule or policy which permits no exception could itself be liable to being impugned on the ground of rigidity.

85.  The second feature highlighted by Mr Chan was the nature of the composition of the decision maker. He said the Council members are all solicitors elected by their fellow solicitors who trusted that those members would be able to fulfill their roles as such. Mr Chan particularly emphasized this point in the context of Ground 2. He said a reasonable and informed observer, when considering if the Council members were biased, would take into account that they were all persons of high competence and integrity. Mr Wong did not disagree, but cautioned that taking this position too far would render it impossible to make an allegation of bias against lawyers.

86.  Mr Chan’s third feature was that, in essence, the Decision is not one with any great consequence. It is not a decision of guilt, but merely a decision that there was sufficient basis for further investigation. It is but one of the intermediary decisions in the entire disciplinary mechanism. After the referral, the Applicant would still have the opportunity to be heard fairly before an independent SDT, which might well dismiss the complaints at the conclusion of its proceedings.

87.  The fourth feature is that there was already a full span of measures to ensure fairness to the Applicant, the typical example being the setting of the Independent Panel. Mr Chan said this is an example of the Council going above and beyond the normal procedure to afford the Applicant what one would not normally have in the process.

F.  Ground 1: Procedural Unfairness

F.1  The Court’s approach

88.  Turning to Ground 1 itself, it is trite that a decision maker should generally adhere to his own published policy, unless there exist good reasons to depart from that policy.

89.  As said, it transpired in the hearing that the real question for Ground 1 is whether the departure from the standard procedure was justified – or, to put it another way, whether there were good reasons to justify such a departure.

90.  The question arises as to when a departure from a standard procedure might warrant the Court’s intervention. Mr Chan submitted that the Court should only intervene when the departure from the normal procedure is so unreasonable and unfair as to amount to an abuse of power, citing R (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1 at §60. That case concerned whether a convicted criminal who was subsequently acquitted on appeal should be entitled to an ex-gratia payment under a compensation scheme. §60 reads:

The Home Secretary decided to depart from the policy. He did so in the light of the circumstances set out in the judgment of the Court of Appeal (Criminal Division). Was he entitled to depart from the policy? In the Divisional Court Simon Brown LJ observed (para 32):

"There are, of course, cases in which substantive legitimate expectations have been built up where nowadays public authorities will be required to honour their statements of policy or intention. All this is exhaustively and authoritatively discussed by the Court of Appeal in R v North and East Devon Heath Authority, Ex p Coughlan [2001] QB 213, 238-251, paras 51-82 inclusive. As, however, is there made plain, the question for the court is ultimately one of reasonableness and fairness. Would a departure from policy represent an abuse of power? That is a question to be asked in the circumstances of the particular case. It cannot in my judgment be suggested that the Secretary of State can never in any circumstances depart from his stated policy with regard to the payment of ex gratia compensation. He should, of course, give the person concerned an opportunity to say why in his particular case the policy should be applied rather than disapplied. But no problem of that sort arises here. The opportunity was given and taken. The Secretary of State was simply not persuaded."

I am in respectful agreement with these observations.

91.  Mr Chan said this Court must give some margin of appreciation to the Council as to its decision on what procedural route to adopt in the circumstances, in light of the fact that the Council is the professional regulatory body charged with this task by the statute. In his oral submissions, he went as far as suggesting that the Court should not intervene unless the procedural route chosen by the Council was so unreasonable that no reasonable Council would have chosen it.

92.  Mr Chan’s language is reminiscent of a conventional irrationality challenge directed at the merits of the substantive decision. But Ground 1 primarily concerns procedural fairness. Mullen concerned the substantive decision the authority had to make – whether or not to make an ex gratia payment to Mr Mullen – rather than the procedural aspects of the decision-making process. Whilst the judicial review court often recognizes the authority’s expertise on making the impugned substantive decision the subject of the challenge, procedural fairness is a different matter.

93.  Mr Wong drew my attention to M v Law Society of Scotland (OH) SLT 463 at §43, where the applicant solicitor challenged the decision of the Law Society of Scotland on the basis of, amongst other things, procedural fairness. That paragraph reads (my emphasis):

For the respondents it was submitted that the court should afford respect to decisions made by them in their capacity as a specialist and expert professional disciplinary body. Reference was made to a number of cases in England, notably Cooke v Secretary of State for Social Security, [2001] EWCA Civ 734, at paragraph [16]; Napp Pharmaceutical v Director General of Fair Trading (No 5), [2002] 4 All ER 376, at paragraphs [34] and [63]; and AH (Sudan) v Secretary of State for the Home Department, [2008] 1 AC 678, at paragraphs [18] and [30]. The same principle has been followed in Scotland in Mooney v Secretary of State for Work & Pensions, 2004 SLT 1141, at paragraph [30]; and Murnin v Scottish Legal Complaints Commission, 2012 SLT 65, at paragraph [31]. The principle referred to is clearly correct and well vouched by authority. It applies primarily, however, to the consideration of the substance of factual and legal issues by such a tribunal. It is obvious that, in considering those issues, the tribunal is likely to have a degree of specialist expertise that the court does not have. In questions of procedural fairness, by contrast, all tribunals are subject to certain basic principles of fairness, such as audi alteram partem, and many are subject to the rules of fairness derived from article 6 of the Human Rights Convention. That is clear, for example, from the passage in Barrs v British Wool Marketing Board, supra, quoted at paragraph [16] above. Those principles of fairness are of fundamental importance, and they must apply indifferently to tribunals of every sort. In that context the argument based on specialist expertise appears to me to be much less strong.

94.  In my view, the position taken in the M case is correct. This is why a challenge to the procedural fairness to the decision-making process and a challenge to the substantive merits of a decision are often seen as two distinctive grounds of review.

F.2  The reasons/factors put forward by Council to justify departure

95.  Ms Chu, in her affidavit, put forward three reasons to justify the departure: (1) the sensitive nature of the Applicant’s case (involving complaints made by the Council against a Council member); (2) the fact that the Independent Panel had, pursuant to a fair and impartial procedure, come to a clear determination that he breached the confidentiality; and (3) the practical difficulties in following the standard procedure, in that there would not be sufficient numbers of qualifying SCOC members to meet the quorum requirement for endorsing the Investigative Committee’s recommendation.

96.  It is convenient to deal with a point made by Mr Wong at this juncture. That point was raised for the first time in the skeleton submissions for the substantive hearing. Mr Wong said that the three main reasons now put forward on behalf of the Council were not recorded in the minutes for the 30 March 2021 meeting at all, but were only mentioned by Ms Chu in her affidavit evidence. Ms Chu, whilst said to be closely involved in the process as the Secretary General of the Law Society, was not even a Council member. The allegation is that those reasons were but ex post facto justifications to rationalize the Council’s Decision made in the 30 March 2021 meeting in deciding to bypass the SCOC.

97.  Mr Chan contended that the allegation was unfairly made. Until the allegation was revealed very late in the Applicant’s skeleton submissions filed on 4 January 2023, the genuineness of the Council’s reasoning for departing from the standard procedure had never been questioned. That would mean that Ms Chu had not been given a proper opportunity to explain nor was she called to be cross-examined. I agree.

98.  Further, the minutes are not to be treated as written decisions delivered by the Court or other adjudicatory bodies, and the Council should not be expected to set out its reasoning in the minutes up to the standard as might be expected of adjudicatory bodies. Mr Chan said he had obtained confirmed instructions from the Council that it would not set out every reason in the minutes.

99.  I also agree with Mr Chan that the 30 March 2021 minutes should not be read in isolation, but in the context of all minutes of the prior meetings in the lead-up to the Decision. I have referred to the meeting minutes from March 2020 to March 2021 in quite some detail above. I think it fair to say that the sensitivity brought by the fact that it was a complaint against a serving Council member and the difficulty to find sufficient qualifying SCOC members to meet the quorum requirement were indeed very much featured in the Council’s discussion. The setting up of the Independent Panel obviously would not have escaped the mind of the Council members.

100.  Further, as I already said above, this is not a merits challenge to the Decision in which the reasoning of the Council would be the focus of the arguments. Ground 1 is essentially a challenge to the procedural fairness of the process afforded to the Applicant in handling complaints made against him. Whether the process adopted was procedurally fair has to be assessed in all the circumstances. Although what factors the Council had taken into account in eventually choosing the particular procedural route as it did would be relevant, the Court would also take into account other factual circumstances even if those circumstances had somehow escaped the Council’s attention.

F.3  The factors highlighted by the Applicant

101.  As I understand it, Mr Wong focused on the following factors or circumstances which he said had made the Decision to bypass the SCOC exceptionally unfair.

102.  First, Mr Wong also relied on the fact that this was (and still is) the very first case where the complaint has been made by the Council against a serving Council member. Mr Wong said that the very set of facts presented by this case heightened (rather than reduced) the conflict of interest between the Council and the Applicant. The need for the Decision to be made by the SCOC comprising non-Council members rather than by the Council itself is amplified rather than diminished.

103.  Second, he said the Council itself had also recognized the conflict of interest or the inappropriateness for the Council to make the Decision itself. He referred to the minutes of the Council meetings in which the concern for conflict of interest was expressly voiced out by members and the need to adhere to the standard procedure for handling complaints against fellow Council members was initially recognized. An example would be the excerpt from the minutes of the meeting held on 2 March 2021 reproduced above.

104.  Third, Mr Wong put some emphasis on Mr Rowland QC’s opinion which advised that the two disclosure incidents would only warrant letters of disapproval or letters of regret (and presumably not serious enough to warrant a referral to the SDT).

105.  Fourth, Mr Wong also highlighted the fact that in the 12 May 2020 meeting, 6 members voted against (vs. 11 members voting for) referring the Applicant to the Conduct Section for investigation for professional misconduct.

106.  Finally, Mr Wong underscored what he called the actual reputational harm suffered by the Applicant arising from the referral to the Convenor (which entailed a referral to the SDT). The Applicant had been practicing as a solicitor for more than 30 years. He was at the time a Principal Lecturer and Director of Clinical Legal Education at the University of Hong Kong and a part-time consultant to ONC Lawyers. He had taken office in numerous public positions over the decades. I accept it may be fair to say at the time that he had a long and good track record to protect.

F.4  Discussion

F.4.1  Complaint made by the Council against a serving Council member

107.  First, I would point out that Mr Chan’s submissions – that the Council has to handle a wide range of complaints of different natures, including those not previously envisaged, and therefore the procedure for referring a complaint to the Convenor under section 9A of the LPO has to embrace commensurate flexibility – is only good for showing that the internal requirement/standard procedure should not be rigidly adhered to and could be departed from when circumstances permit. It does not of itself explain why the instant circumstances would justify such a departure.

108.  Both sides relied upon, as a factor to their advantage, the fact that the case involved a complaint made by the Council against a serving Council member. Mr Wong submitted that the internal requirement/ standard procedure was specifically developed to cater for the situation when a complaint is made against a Council member. The fact that a complaint is made against a Council member should trigger the application of (rather than justify the disapplication of) the internal requirement. He also referred to §8(v) of the Notes which provides that the SCOC “considers and decides on allegations of professional misconduct that are of particular sensitivity, importance or complexity”. The extra fact that the complainant was the Council itself, in Mr Wong’s submission, further strengthens his argument.

109.  Mr Chan suggested that the internal requirement was designed with a complaint made by the public against a Council member in mind. He referred to §76 of the Zhu Li case, that the rationale behind is the perception that self-regulatory bodies have a tendency to look after their own members and Council members would tend to “go easy” on their fellow Council members. In Zhu Li, a complaint was made by a lawyer (not a Council member) against a Council member and the Council decided not to refer the complaint to the Convenor. In the present case, the complaint was made by the Council and the Decision was to refer (as opposed to not to refer) the matter to the Convenor. Thus, the perception that Council members would go easy on each other would not have the same, if any, force. Mr Chan’s submission advanced in the hearing seemed to have also been shared by some of the Council members: see the excerpt of the minutes for the 16 March 2021 meeting reproduced above.

110.  Overall – and subject to a point I shall return to below – I tend to accepting Mr Wong’s submission that this is a factor pointing in favour of the Council not making the Decision by itself. The standard procedure/internal requirement was triggered in the present case, and the difference relied upon by Mr Chan (that the complaint was made by the Council, rather than by a member of the public member) does not seem to me to be a weighty factor pointing towards the disapplication of the standard procedure. As Mr Wong pointed out, whilst Council members working in a close and regular relationship may tend to grant favour to each other, the working relationship may also generate animosity amongst them. He said the latter concern is at the forefront when the Council itself was the very complainant. The potential “interest” the other Council members might have in the Decision was not an interest which would tend them to go easy on the Applicant, but to be tough. The concern expressed in the Zhu Li case was that Council members may go easy on each other at the expense of the interests of the Hong Kong public generally. The concern in the present case is that Council members, being the very complainant themselves, may abuse their position and go tough on their own fellow member. It is the interest of the solicitor the subject of the complaint (rather than merely that of the general public, though that remains relevant) that has been brought into focus and that the Court has to protect.

111.  No matter what particular interest the Council had (or might be perceived to have had) in the Decision, the potential for conflict of interest in the present case is obvious. But, I think this is tempered to a not insignificant extent by the fact that the Decision was made by a committee comprised of numerous individual members, each well able to express their own views and vote according to their own conscience. Indeed, individual members of the Council are able to express their own views prior to the taking of any relevant vote, no doubt in part either (1) to seek to persuade other Council members to agree with those views, and/or (2) to test those views within the debate and the expression of other views from other Council members before the taking of the vote.

112.  As can be seen from the minutes canvassed above, the Council members held and expressed and voted according to differing views. Though the decision of the Council is, of course, ultimately the decision of the majority, I nevertheless think that this is a factor which is properly taken into consideration given some weight in the overall assessment of procedural fairness.

F.4.2  The process before the Independent Panel

113.  There is no dispute that the proceedings before the Independent Panel were conducted fairly, independently, and impartially. The Applicant had the opportunity to make both written and oral submissions via his legal representative before a Panel comprising three past presidents of the Law Society. He simply would not have been entitled to, or the beneficiary of, such additional procedural safeguard had the usual procedure been slavishly followed (though I have not lost sight of the Applicant’s dissatisfaction with the result).

114.  However, Mr Wong submitted that the Independent Panel was not and should not be regarded as part of the disciplinary proceedings against the Applicant. It was simply set up as a fact-finding panel to adjudicate on the concrete question of whether the Applicant had breached his duty of confidentiality as a Council member.

115.  But, as reflected in the meeting minutes I have set out in quite some detail above, it seems to me that the Council did intend for their decision on the next step (including referral to the Conduct Section) to be informed by the results of the proceedings before the Independent Panel. In any event, even if the Independent Panel was not originally intended to form part of the disciplinary proceedings against the Applicant, it does not mean that the Council was not entitled to take that fact into account when considering the procedural route to adopt in making the referral under section 9A. Still less does it prevent the Court to take the proceedings and findings made by the Panel into account when assessing the procedural fairness of the Decision.

116.  Mr Wong said, in essence, the Independent Panel was no substitute to the usual procedure. First, he said the Applicant had never had a chance to make reply to the allegation against him from a professional misconduct perspective. He said, for example, the Applicant might like to advance the argument that what he did as a Council member would not constitute conduct whilst “practicing as a solicitor” under the SPR. Under the usual procedure, the Applicant would have opportunity to make representation on that before a report was compiled by the Investigative Committee.

117.  I agree that under the standard procedure, the issue the SCOC would have to tackle with might be broader than that which was put before the Independent Panel – whether the Applicant had breached its duty of confidentiality as a Council member. But, it is clear that the issue of breach of confidentiality would be very much at the core of what the SCOC had to consider in forming a view as to whether there was a prima facie case of professional misconduct warranting further investigation by referral to the Convenor.

118.  Taking a step back, I remind myself that, as pointed out by Mr Chan, the Decision was not a decision of guilt of professional misconduct, but a decision to proceed with the investigation into professional misconduct. I do not think procedural fairness necessarily requires the Applicant to have an opportunity to make representations on every issue that could possibly be argued to his favour at every turn of the process. It could hardly be disputed (and, indeed, it was not seriously disputed) that the Applicant had an opportunity to make full representations before an independent panel via a fair procedure on perhaps the issue core to the charges he might face.

119.  It is true that the process before the Independent Panel and the process before the Investigation Committee/SCOC would not be identical. But looking at the matter in the round, I would not say that the procedural safeguard or procedural fairness afforded to the Applicant by way of the Independent Panel was less than what would be afforded to him by the usual process before the Investigative Committee/SCOC. To the contrary, I tend to agree with Mr Chan that the Council, by setting up the Independent Panel, had gone beyond and above the usual level of procedural safeguard that would be afforded to a solicitor the subject of a complaint. I find the existence of, and the process before, the Independent Panel to be a strong factor justifying departure from the standard procedure in the circumstances of this case.

F.4.3  The administrative difficulty – quorum and delay

120.  It cannot be disputed that there was practical difficulty in assembling sufficient number of qualifying members to form a quorate SCOC. But the difficulty may not be as great as Mr Chan would like to portray. In any event, Ms Chu did recommend a solution to resolve the difficulty – recruiting ad hoc SCOC members for this specific matter.

121.  Mr Chan said that would entail further delay. He reminded the Court that the two disclosure incidents forming the basis of the complaints occurred in March 2020 and by the time the Decision was made it was already March 2021. He said there was a need to “get a move on”, taking into account the public interest in resolving disciplinary matters against solicitors as soon as possible.

122.  It appears that the delay occasioned by the need to recruit new SCOC members would only be a matter of several months. In Ms Chu’s affidavit, she gave an example of a recruitment exercise which took four months to complete. It may be noted that the Council had allowed seven months to lapse between the issuance of the Panel’s Report (on 27 July 2020) and when the disclosure incidents were next brought up for the Council’s discussion on 2 March 2021. In those circumstances, it is perhaps less convincing if the Council’s Decision to depart from the standard procedure was motivated by the need to speed up the process by several months – or it might be thought that the perceived need for speed was caused by the Council’s own previous lack of speed.

123.  That said, as reflected in the meeting minutes, it appears that the Council did intend to follow the standard procedure at the beginning, and Chu’s Report was commissioned for the specific purpose of finding out the “appropriate body” that could make the Decision without being accused of conflict of interest. As a matter of fact, the Decision was made after the Council had reviewed Chu’s Report.

124.  Overall, I accept that there would be some administrative difficulties and some delay to the disciplinary process if the standard procedure were to be followed. But as already alluded to in the discussion above, I do not find this a strong factor justifying departure from the normal procedure.

F.4.4  The Council itself recognizing the conflict

125.  There was a debate in the oral hearing as to whether the Council recognized or accepted that there would be conflict of interest for it to make the Decision (Mr Wong’s view) or whether the Council was simply acting out of abundance of caution and tried its best to prepare itself for an allegation of conflict which might be launched against it (Mr Chan’s view).

126.  Bearing in mind that Ground 1 is a procedural challenge rather than a merits challenge to the Council’s reasoning, I do not think the Council’s own view as to whether it was conflicted would have much bearing on the ultimate question of whether the Decision was made via a fair procedure.

F.4.5  Mr Rowland QC’s opinion / the 6 members voting against referral

127.  I put these two points under the same heading because they share a common feature – they both concern different people’s views of the matter expressed at different stages of the process. I have already touched on this point above, from the angle of the make-up of the Council by members who may have differing, or different shades of, views which can be brought to bear as part of the overall decision-making process.

128.  In this particular context, I think the point Mr Wong tried to make was that the Decision was a controversial one, shown by the division in voting, which factor should tend to requiring extra procedural safeguards in arriving at the decision.

129.  Mr Rowland QC’s legal opinion was not disclosed to the Court and, as Mr Chan pointed out, that was rendered before the Independent Panel had found that the Applicant had breached his duty of confidentiality without valid justifications. As to the 6 members voting against referral, the answer obviously lies in that 11 members, i.e. the clear majority, voted in favour of the referral.

130.  Most importantly, I do not think it helpful for the Applicant to point to the fact that of differing views held by different people at different points in time. As I have touched on above, that is the nature of decision by committee. Incidentally, that is why it is rarely permitted or helpful to look at the minutes of a committee meeting to seek to divine the reasoning for the committee’s decision in any particular case; minutes tend to record only brief summaries of an ongoing and as yet inchoate process, and the committee’s reasoning is usually only properly to be found in any reason given at the time of the decision.

131.  In any event, equally in this case, the Council could also point in its favour to the fact that all 19 Council members agreed that there was a breach of confidentiality in the 12 May 2020 meeting, and that Mr Rowland QC also concluded there was a breach of confidentiality (even though he appeared to have thought that only letters of regret or letters of disapproval would be warranted).

F.4.6  Prejudice suffered by the Applicant

132.  Mr Wong submitted that the Decision causes real and substantial prejudice to the Applicant. The Applicant said the Decision commences a legal process against the Applicant, against which he has to defend with substantial time, cost and effort, causing him grave anxiety in the meantime, and that his professional reputation would be severely damaged no matter the outcome. At the oral hearing, Mr Wong put much emphasis on the reputational damage caused to the Applicant.

133.  A decision to refer a complaint to the Convenor which could in turn lead to the commencement of a disciplinary proceedings is of course not one without practical consequence in life. That is why even though it is not a decision of guilt, it should be afforded procedural fairness to an extent commensurate with the significance of the decision.

134.  But I do not think the Applicant was entitled to more procedural safeguards or to a higher level of procedural fairness than any other solicitors in Hong Kong who may be at risk of a referral to the Convenor. The fact of potentially being made subject to a formal disciplinary proceeding probably carries a serious consequence for all solicitors.

F.4.7  Conclusion on Ground 1

135.  Starting with the position that the procedure for referring a complaint to the Convenor under section 9A of the LPO is not an inflexible one and the internal requirement/normal procedure could be departed from when circumstances so justify, the Court has to take a holistic view on all the relevant circumstances to see if departure was indeed justified in the instant case. This would entail a balancing exercise in which the Court has to weigh a host of different factors, some pointing in opposite directions.

136.  The weightiest factor in favour of the Applicant – as already alluded to above – is that there was plainly conflict of interest when the Council, itself being the complainant and the supposed victim of the Applicant’s alleged breach of confidentiality, decided to take the step to make reference to the Convenor for the commencement of disciplinary proceedings against the Applicant. On the other hand, the weightiest factor in favour of the Council was the existence of the process before the Independent Panel, in which the Applicant had had proper and fair opportunity to argue in his favour the issue core to the complaint, namely whether he had breached the duty of confidentiality by making the two impugned disclosures. As said, there was no dispute that the proceedings before the Independent Panel was conducted fairly, independently, and impartially.

137.  To perform the necessary balancing exercise is not always an easy one. But looking at the overall circumstances of the present case, I have come to the conclusion that there was no procedural unfairness in the Council’s Decision by itself to refer to the Convenor the two disclosure incidents – being the Disclosure to Kwok and the FB Statement. Stepping back, and looking at the materials overall, it seems to me that the Council was well aware of the sensitivities in the case, and despite some changes of view along the way (which may be said to evidence a continuing ‘open mind’ as to how it might appropriately get things ‘right’), the Council was throughout attempting to deal with matters in a way fair and appropriate to the circumstances, and to the Applicant. The existence of the process before the Independent Panel – in practical terms in substitution for the involvement of the SCOC – was sufficient safeguard to counteract the risk that other Council members or the Council as a whole would “go tough” on the Applicant. I also bear in mind that the Decision was only a decision to commence disciplinary proceedings rather than a finding of guilt of professional misconduct.

138.  Whilst Ground 1 met the arguability threshold for granting leave, it is not made out on substantive review.

G.  Ground 2: Apparent Bias

139.  The Applicant said the decision-making process is inherently unfair because it was tainted by apparent bias.

140.  The general test for apparent bias is well established: whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision-maker was biased: see, for example, HKSAR v Md Emran Hosain (2016) 19 HKCFAR 679, at §§36-37. Bias is in this sense the notion that the decision maker might unfairly regard with favour, or disfavour, the case of a party to the issue under consideration by him: see also Deacons v White & Case LLP (2003) 6 HKCFAR 322 at §18.

141.  The overlap with Ground 1 is obvious. Mr Wong submitted that it is plain and obvious that a fair-minded and informed observer would conclude that the Council was in a position of conflict of interest such that the Council members would regard the Applicant’s case with disfavour. Mr Wong said that the Council was interested in the Decision in two ways. First, the Council was the complainant and the supposed victim of the Applicant’s breach of confidentiality. Second, the Council was making a decision against a fellow Council member.

142.  As I understand it, Mr Chan did not seriously dispute that these two facts relied upon by the Applicant are factors which might point towards a finding of apparent bias. But he suggested that the fair-minded and informed observer would also bear in mind other relevant facts and, having considered all the facts in the round, would come to a conclusion that there was no real possibility of bias overall.

143.  Mr Chan said the fair-minded and informed observer would be aware of the following (not in his original order): (1) the quorum issue with the SCOC; (2) the reality that it would take many months to recruit more SCOC members to solve the issue; (3) the fact that the original complaints stemmed from incidents which occurred in March and May 2020 and it would be undesirable to delay the process further; (4) the fact that the Applicant’s case had been treated fairly throughout, including through the Independent Panel’s proceedings; (5) that the Applicant would be able to seek a stay of SDT’s proceedings on the basis of unfairness; and (6) the composition of the Council, which was made up of experienced and respected solicitors, with the ability to think and act in accordance with their own honest views.

144.  I note that amongst the six points highlighted by Mr Chan, points (1) to (5) really pertain to aspects of the decision making process, and only point (6) directly concerns the decision maker itself.

145.  Mr Wong emphasized, that the focus on an apparent bias challenge is on the decision maker, rather than the decision. Thus, the reasonableness or the merits of the decision itself is irrelevant and the reasonableness of the decision itself could not change the fact that the decision was made by an apparently biased decision maker. Otherwise, he said, all bias challenges become an examination of the merits of the decision itself.

146.  Nevertheless, I think Mr Chan did recognize that the focus is on whether the decision maker was apparently biased, rather than whether the decision was a reasonable one to take. This may explain why he underscored the composition of the Council – that it was made up of professional solicitors of high integrity and competence – and elevated it to be one of the four features he highlighted at the very beginning of his oral submissions. He drew the Court’s attention to Belize Bank Ltd v Attorney General Belize [2011] UKPC 36 at §41 in which the impartiality of the members sitting on an Appeal Panel was put into question. There, it was said:

The concept of apparent bias does not rest on impression based on an incomplete picture but on a fair and reasoned judgment formed as a result of composed and considered appraisal of the relevant facts. Moreover, while the judgment to be made is whether an ordinary, well informed member of the public would consider that there was a real possibility of bias, one should not neglect to take into account that a fair-minded assessment would include the knowledge that those performing the important task of serving on the Appeal Board are themselves professional people against whom no criticism has been levelled. Indeed, Mr Pleming was at pains to disavow any suggestion that a shadow fell over the integrity of the individuals chosen. It was on the identity of the person appointing (the minister) that the appellant’s challenge was focused.

147.  I accept that the fact that the Council members were all respectable solicitors, conscious of their role and duties and able to act independently in their own debating and voting, is a factor that the fair-minded and informed observer would bear in mind.

148.  Mr Chan also insisted that the fair-minded and informed observer could and should take into account the other matters pertaining to the decision making process (as set out in points (1) to (5) above). In particular, he said the Court recognizes that such an observer would take into account practical difficulties of the sort encountered by the Council in the present case. In The Queen v Hertfordshire County Council ex parte A (10 November 2000, Westlaw Transcript), a head teacher of a school sought judicial review against a decision of a disciplinary panel of the school governors that the head teacher be dismissed. One of the head teacher’s grounds of complaint was that two members of the disciplinary panel lacked impartiality, having previous knowledge of the case. The application was dismissed by Maurice Kay J whose decision was upheld on appeal in [2001] EWCA Civ. At §29, Maurice Kay J said:

Before moving on from this part of the case it is appropriate for me to say something about impartiality in procedures such as these generally. It is in everyone’s interests that allegations of misconduct in the context of employment are first investigated within the organization. It is also good employment practice. It is inevitable, particularly in relatively small organizations, that one or more, or often all of a disciplinary panel will have some previous knowledge of what is alleged. Indeed, it may be impossible to constitute a panel, none of whom has had previous contact with the issue or none of whom has expressed an opinion about it at some stage. In the present case, the panel had to be selected from the Governors and, by November 1999, the Governors had been dealing with the position of the Applicant, in one form or another, for well over a year, sometimes in highly charged atmosphere. In such circumstances, a degree of pragmatism is inevitable. That is why, in a particular case,

“a person who is subject to disqualification at common law may be required to decide the matter if there is no other competent tribunal or if a quorum cannot be found without him … Necessity may also play a part in excusing an appearance of bias where it would not be impossible for anyone else to make the decision but where the particular administrative structure makes it inevitable that some appearance of bias will occur.” (de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5^th edn, pp 544-545)

149.  There was a debate as to when “pragmatism” (or “necessity” in Mr Wong’s word) could come into play in the assessment. Mr Wong said the analysis operates in two stages, and necessity only operates at the second stage – as a “defence” to excuse a finding of apparent bias after such bias has been found.

150.  Mr Chan said ultimately there is one overall question the Court has to answer, namely whether there was apparent bias of the sort that would warrant the Court’s intervention. He said that the ex parte A case was a case where the Court considered necessity or pragmatism in answering the overall question of whether there was apparent bias. In the paragraph immediately followed the paragraph reproduced above, Maurice Kay J said:

In the present case, great care was taken to exclude those Governors who had clearly manifested particularity, one way or the other. The eventual composition was inevitable. It would have been possible to proceed with a panel of two rather than three (Education (School Government) (England) Regulations 1999, regulation 4(7)(6)), but it was reasonably considered in the present case that that might lead to problems. Co-option of a further Governor as a possibility, was considered, and was rejected. In my judgment, the constitution of the disciplinary panel, whether or not it resulted from necessity in the strict sense, was reasonable and appropriate. Its constitution and its subsequent performance are subject to the supervisory jurisdiction of this court. I am not satisfied that, having regard to all the circumstances, there was a real danger of bias on the part of any member of the panel, in the sense that he or she might unfairly have regarded with favour, or disfavour, the case of one side or the other. In other words, the Applicant has failed the Gough test.

151.  It is probably not necessary to consider if a challenge based on apparent bias should be approached in two stages or as one overall question when it comes to “necessity” or “pragmatism”. I tend to the view that there is one iterative process that leads to the final assessment. But, suffice it to say that practical difficulties or pragmatism would be taken into consideration.

152.  Nor do I think it is particularly profitable to identify exactly which fact would and should be taken into account by the fair-minded and informed observer in coming to his or her conclusion as to whether there was a real possibility of bias. The assessment is one made overall against all the relevant circumstances.

153.  In my view, all the factors relied upon by Mr Chan are relevant in assessing the overall question of whether the Council – being the decision maker – was tainted by a real possibility of bias. This is because they would all inform the requisite degree of independence and impartiality that would be required of the Council in making the Decision. In HLB Hodgson Impey Cheng v Hong Kong Institute of Certified Public Accountants [2010] 6 HKC 232, an accountant challenged the decision of the Investigation Committee convened by the Hong Kong Institute of Certified Public Accounts on the ground of apparent bias. At §§43-46, Reyes J stated that:

43. First, plainly the IC must show some degree of independence and impartiality. I do not think anyone can seriously argue to the contrary. That an IC has to be impartial and act in good faith in weighing evidence, for example, is tacitly acknowledged by the undertaking to avoid conflicts of interest signed by the IC’s members upon their appointment.

44. The real question is what the “requisite degree” of independence and impartiality is which the IC must show.

45. There is a whole spectrum of independence and impartiality. The more formal the nature of the decision-maker and the more significant the consequences of its decision, the more rigorous the degree of independence and impartiality that such entity must show.

46. Where on this spectrum does the IC find itself? That depends on the function which the IC is supposed to carry out or (to use Lord Hoffmann’s words in Clark v. Kelly [2004] 1 AC 681 (at para.19)) it all depends on how the IC “works in practice and how its workings would appear to a reasonable objective observer”.

154.  The question arises whether the level of independence or presence of perceived potential for conflict in the Council as the decision maker would make a fair-minded and informed observer think that there was a real risk of bias. Again, there is perhaps no obvious quick answer to this question. But I have come to the view that, on balance, the requisite level of independence and impartiality was met. Of course, the fair-minded and informed observer would bear in mind that the decision-maker was at the same time wearing the hats of the complainant and the supposed victim of the Applicant’s alleged breach of confidentiality. But that must be seen in the context that the Decision is not a decision of guilt but only a decision to commence disciplinary proceeding against the Applicant, and that the Decision was made after there was already a finding of breach of the duty of confidentiality by the Independent Panel through a fair, independent and impartial process in which the Applicant had had the opportunity to make written and oral representations through his legal representatives. The fair-minded and objective observer would also take into account the other matters canvassed under Ground 1 above, including as to the ability of individual members of the Council to debate and vote in accordance with their own considered views.

155.  Whilst Ground 2 met the arguability threshold for granting leave, I have also found that it has not been made out on substantive review.

H.  Ground 3: Illegality from bad faith

156.  Ground 3 asserted that the Decision is illegal in that it was not made in good faith. However, I refused to give leave for Ground 3 on the basis that it was not reasonably arguable.

157.  The Applicant relied on the principle that a decision must be made in good faith and that a decision activated by bad faith or vindictiveness is an abuse of power: see Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 207F; and R v Derbyshire County Council, ex p The Times Supplements Ltd (unreported, Queens Bench Division, 18 July 1990).

158.  The Applicant said that bad faith could be inferred from the following:

(1)  The Council, for no good reason, decided to make the referral by itself in knowing disregard of the normal procedure/internal requirement.

(2)  The Council, for no good reason, chose to adopt a course where all the members of the decision-making body would have an apparent conflict of interest, but not a course – leaving it to the SCOC – that would eliminate any such apparent conflict of interests.

(3)  There was no allegation of professional misconduct as a practising solicitor until much later stage of the saga. The Applicant and the Council had been seeking, until 14 December 2020, to resolve their differences by the Applicant’s giving appropriate confidentiality undertaking and/or issuing joint statement, so that they could continue to work together.

(4)  It was not until the negotiations on the wording/content of the confidentiality undertaking or joint statement in late 2020 that the Council took a radical turn and made the Decision in about April 2021 to institute disciplinary proceedings against the Applicant. The Applicant said the timing suggests that the Decision was made in view of his staunch refusal to back down to the Council’s demands.

(5)  The last item is a collection of several smaller items. The Applicant said the Decision was made notwithstanding Rowland QC’s Advice that the Applicant’s breach of confidentiality warranted (only) the issuance of letters of disapproval/regret. If the Council genuinely believed that the conduct of the Applicant was unbefitting – which is a serious allegation – there was little reason for the negotiation between the Applicant and Council as to how they could continue to work together. The complaint as it was framed includes an obviously unsustainable ground – breach of rule 2(a) and (d) of the SPR – because it is artificial to suggest that a practising solicitor in the Council is “in the course of practising as a solicitor”.

159.  As submitted by Mr Chan, bad faith is a strong accusation, not to be lightly alleged and is difficult to prove.

160.  I found that none of the factors relied upon by the Applicant, either in isolation or in combination, were sufficient to show on an arguable basis that the Council’s Decision was motivated by bad faith or vindictiveness. I agree with Mr Chan that the various meeting minutes (as canvassed above) show that the Council had made numerous attempts to discharge its regulatory role including appointing an Independent Panel to investigate the disclosure incidents, obtaining legal advice from a London Silk, obtaining a report from the Secretary General, and so forth. Those matters tend to point to acting carefully, and in good faith.

161.  Whilst the ultimate Decision made was arguably tainted by procedural unfairness and apparent bias (on which two grounds I gave leave, but have eventually found in favour of the Council), those matters in and of themselves are no evidence of bad faith.

162.  The chronology also does not support the idea that the Council only took a “radical turn” to process the complaint as a disciplinary matter after the parties’ negotiation on the confidentiality undertaking or joint statement broke down in late 2020. As the Applicant himself recognized, the Council passed the resolution to refer the Applicant’s breach of confidentiality to the Conduct Section as early as in the 12 May 2020 meeting, albeit the Applicant said he was only made aware of that resolution after these proceedings had started and the allegation of professional misconduct was only first alleged in April 2021. I do not agree that the timing of the Decision came anywhere close to evidence of bad faith.

I.  Prematurity/alternative redress available

163.  In light of my findings, these points are moot. But I can address them briefly.

164.  At the leave stage, the Council argued that the intended judicial review challenge was pre-mature and that the Applicant had not yet exhausted all available remedies. The Council said that the target of the intended challenge – the Council’s Decision to refer the two disclosure incidents to the Convenor by itself – was only an intermediate step to commence the disciplinary proceedings against the Applicant, rather than the ultimate finding of guilt. Such intermediate step should normally be reviewed as part of the entire process after a final decision was made, citing TVB v Communications Authority [2013] 5 HKC 593 at §25(2)-(3).

165.  The Applicant, relying on M v Law Society of Scotland [2013] SLT 462 at §42 and Byrne v Marles (2008) 19 VR 612 at §§73-90, contended that the fairness or otherwise of the process or decision to prosecute a complaint of professional misconduct or to refer a matter to disciplinary investigation is amenable to judicial review and is not barred on the ground of prematurity.

166.  On this point, the differences between the parties are not as wide as it might seem. Indeed, the Council did not dispute that the Court can and does have discretion to intervene at such stage if it considers appropriate. But the Council emphasized that the Court should not intervene at this stage, save where the facts call out for intervention e.g. where irreparable harm is likely to occur or justice could only be met by intervention: citing R (Aurangzeb) v The Law Society [2003] EWHC 1286 (Admin) at §§5 and 8; and R (on the application of Baker Tilly UK Audit LLP) v Financial Reporting Council [2015] EWHC 1398 (Admin) at §§152 and 155.

167.  Relatedly, the Council also argued that the Applicant had not yet exhausted all available redress – that he would have the opportunity to challenge any unfairness within the disciplinary proceedings themselves, including seeking a permanent stay of the proceedings on the ground of any alleged irreparable unfairness. In essence, the Council argued that the Court should let the disciplinary proceedings before the SDT run their course and the Applicant could advance before the SDT the very arguments that he has advanced before this Court.

168.  The Applicant said he could not. He said that the SDT is a statutory creature with its powers defined and confined by the empowering statute, i.e. the LPO. The SDT only has the power “to investigate and inquire into the conduct of any person in respect of which it is appointed” under section 10 of the LPO and that any ancillary power is “for the purpose of conducting any such inquiry or investigation” under section 11. The Applicant argued that the SDT has no power to inquire into the lawfulness or propriety of the decision-making process of the Council, let alone to adjudicate on that.

169.  There could be no dispute that the SDT is a statutory creation and it only has such power as stipulated by the LPO, either expressly or impliedly, on a proper construction. But I am inclined to think that the SDT does have such power to consider if the overall proceedings (including the Council’s Decision which kick-started the formal disciplinary proceedings) were so unfair to the Applicant such that a permanent stay is warranted. Nevertheless, as will be seen below, I do find it necessary to determine if it is within the power of the SDT to review and adjudicate on whether the Council’s Decision was tainted by procedural unfairness, apparent bias or bad faith whether in the context of seeking a permanent stay of the disciplinary proceedings or otherwise.

170.  The Applicant also said that the subject matter of the disciplinary proceedings would primarily concern whether the allegations of professional misconduct could be made out, rather than whether the Council’s Decision (which commenced the disciplinary proceedings) was tainted by procedural unfairness, apparent bias or bad faith. As already alluded to, I am inclined to disagree that arguments that the Decision was unfair, tainted by apparent bias or bad faith, could not be considered by the SDT in the context of a stay application. That said, I think it fair to say that the focus of the disciplinary proceedings and the present judicial review are or would be different.

171.  Ultimately, I was persuaded by the Applicant that the alternative remedy suggested by the Council – i.e. simply to let the disciplinary tribunal run its course and for the Applicant to advance his arguments in these judicial review before the Tribunal – would not be an effective or suitable remedy, or in any event there existed exception circumstances which might warrant the Court’s intervention at an earlier stage. I found support in the cases cited by the Applicant: see R (Al-Le Logistics Ltd) v Traffic Commissioner for the South Eastern and Metropolitan Traffic Area [2010] EWHC 134 (Admin); and Tse Wai Chun Paul v Solicitors Disciplinary Tribunal (unreported, HCAL 636/2001, 27 August 2001).

172.  The general lawfulness (in the broad sense as opposed to the narrower sense of legality) of the process by which the Council reached the decision to commence disciplinary proceedings against one of its fellow Council members when the Council itself is the complainant and supposed victim is no doubt a matter of some general importance. The general public has an interest in ensuring that disciplinary proceedings against Hong Kong solicitors for professional misconduct are properly commenced and conducted. Since the Applicant’s complaint was that the very decision to begin the disciplinary proceedings was unlawfully made, to seek to have the Decision reviewed by the Court was not premature in the circumstances of this case.

173.  Judicial review is a flexible remedy and this was an appropriate case for the Court to entertain the judicial review application.

J.  Delay

174.  This could be quickly dealt with. There is no dispute that the Applicant failed to seek leave for judicial review within the three month statutory period from the date of the Decision, i.e. in April 2021. The Form 86 was filed on 23 June 2022. In other words, there was a delay of about 14 months.

175.  In deciding whether to extend time, it is trite that the Court has to consider the overall circumstances, including (1) the length of the delay, (2) the explanation for the delay, (3) the merits of the intended appeal, and (4) any prejudice to the respondent if extension of time is to be granted.

176.  Whilst the delay was substantial, I agree with the Applicant that the delay occurred through no fault of his own. The Applicant said he was unaware the Decision amounted to a departure from the published policy, normal procedure or internal requirement until after receiving the Council’s affirmation (in the Tribunal proceedings) on 14 April 2022 and the confirmation by the prosecutor’s letter on 24 May 2022.

177.  The Council’s reply was that the Applicant ought to have realized the alleged irregularity – i.e. that the SCOC was not involved in the relevant referral to the Convenor – when he was notified of the Decision on 27 April 2021, because he did not receive any complaint form nor invitation to submit his views on the complaint form. I reject that argument. There is insufficient factual basis to show that the Applicant, albeit a solicitor and then a Council member, should be so familiar with the relevant procedures to such an extent as would be immediately alerted to the suggested irregularity of the decision-making process. There was a sufficiently good reason for the delay. As to merits, I found that Ground 1 and Ground 2 were reasonably arguable with some prospect of success. I saw no real prejudice to the Society in the circumstances, Hence, the necessary extension of time was granted.

K.  Disposition

178.  Whilst leave was granted for Ground 1 and Ground 2, I have ultimately come to the view that neither ground could be made out substantively.

179.  The Applicant’s application for judicial review is dismissed.

180.  As to costs, I presently see no reason why the costs should not follow the event, so that the Applicant shall pay the costs of the Law Society, to be taxed if not agreed, with certificate for 2 Counsel. However, I shall in the first instance make that order on a nisi basis, to become absolute after 14 days unless there is any application to vary. Any such application will be dealt with on paper.