A SOLICITOR v. THE LAW SOCIETY OF HONG KONG

1993, No. 2
(Civil)

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H E A D N O T E

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Section 53(3) and (5) of the Legal Practitioners Ordinance (Cap.159)

Appeal against suspension for 9 months imposed by Disciplinary Committee in respect of statutory and professional misconduct admitted by solicitor.

Held (by Court of Appeal):

(1) The requirement for suspension under s.53(5) for contravention of s.53(3) is mandatory.

(2) (Penlington J.A. dissenting) Suspension for 9 months was not manifestly excessive.

Appeal dismissed by decision of majority.

1993, No. 2
(Civil)

IN THE COURT OF APPEAL

(On Appeal from the Order of the Disciplinary

Committee dated 17 December 1992)

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J U D G M E N T

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Nazareth, J.A.:

1. This is an appeal by a solicitor against orders of the Disciplinary Committee of the Law Society suspending him from practice as a solicitor for nine months in respect of two complaints of misconduct which he admitted.

2. The complaints, one of statutory misconduct, and the other of professional misconduct were as follows:

(1) That the [appellant] was in breach of s.53(3) of the Legal Practitioners Ordinance in that, in connexion with his practice as a solicitor, without the written permission of the Law Society of Hong Kong, he employed, from 6th November, 1989 to about 18th February, 1991, Miss Chan Wai King who, to his knowledge, had been convicted of a criminal offence involving dishonesty, namely false accounting; and

(2) The [appellant] abused his position of a solicitor by -

i) employing Miss Chan Wai King from 6th November, 1989 to about 14th February, 1991 at the request of Mr Tang Yee Chun (Miss Chan and Mr Tang being co-defendants and convicted of false accounting in High Court Criminal Case No.133 of 1988), with a view to enabling Mr Tang to see Miss Chan, who would visit him together with Mr Tang's Counsel, in prison in the absence of prison staff, which Mr Tang and Miss Chan would not otherwise be entitled to; and

ii) writing a letter dated 23rd October, 1990 to the Superintendent of Shek Pik Prison and thereby enabling Miss Chan Wai King to visit Mr Tang Yee Chun in Shek Pik Prison on 23rd October, 1990 and Mr Tang to see Miss Chan in the absence of prison staff, which they would not otherwise have been entitled to,

in relation to which he has been guilty of conduct unbefitting a solicitor.

3. The facts were that Miss Chan and Mr Tang were co-defendants in High Court Criminal Case No.133 of 1988, both being convicted of 22 counts of false accounting on 27th February 1989. Miss Chan was sentenced on her own plea of guilty to 12 months imprisonment and Mr Tang was sentenced after trial to six years imprisonment. Miss Chan testified for Mr Tang as one of his defence witnesses. Mr Tang appealed and retained the appellant, who had been acting for him as one of his joint solicitors in respect of the trial.

4. In terms of the statement of facts agreed by the appellant, he employed Miss Chan "at the request of Mr Tang with a view to enabling Mr Tang to see and obtain assistance from Miss Chan, who would visit him together with Mr Tang's counsel, in prison in the absence of prison staff, which Mr Tang and Miss Chan would not otherwise be entitled to."

5. On 23rd October 1990 the solicitor wrote a letter addressed to the Superintendent of Shek Pik Prison, where Mr Tang Yee Chun was imprisoned in the following terms:

"Dear Sir,

Re C/M Tang Yee Chun (P-75692)

We have instruction to act for the abovenamed person and shall be obliged if you will allow our counsel...(holder of Hong Kong Identity Card No. ...) and her interpreter Miss Chan Wai King (holder of Hong Kong Identity Card No.E386675(4)) to interview the abovenamed person for the purpose of taking instructions."

6. The agreed statement continued "by writing the letter dated 23rd October 1990, the solicitor intended to seek permission from the Superintendent of Shek Pik Prison to enable and did enable Miss Chan Wai King to visit Mr Tang Yee Chun in prison and Mr Tang to see Miss Chan on 23rd October 1990 in the absence of prison staff, which they would not otherwise have been entitled to."

7. Section 53(3) and (5) of the Legal Practitioners Ordinance (Cap.159) reads:

"(3) No solicitor shall, in connection with his practice as a solicitor, without written permission of the Society, which may be given for such period and subject to such conditions as the Society may think fit, employ or remunerate any person, who, to his knowledge, has been convicted of a criminal offence involving dishonesty.

(5) If any solicitor acts in contravention of the provisions of this section or of the conditions subject to which any permission has been given thereunder, his name shall be struck off the roll or he shall be suspended from practice for such period as a Disciplinary Committee or as the Court may think fit."

8. Mr Gilbert Rodway Q.C., with Mr D.Y. Marash, appears for the solicitor. It is convenient to begin with his submission that the Disciplinary Committee was wrong in law in holding that s.53(5) of the Ordinance compelled it either to strike off or suspend upon a finding of contravention of s.53(3), i.e. that "shall" in s.53(5) is directory and not mandatory. It is not in dispute that the Disciplinary Committee proceeded upon that basis.

9. Prima facie the word "shall" is used in a statute in a mandatory sense, but in many cases it has been held to be directory. Mr Rodway submits that "shall" in s.53(3) should not be construed as mandatory if it would lead to results which are manifestly absurd or unjust. He cites in support of that proposition the following passage at p 6 in the judgment of Kempster J.A. in Woo Kin Wah v Somec (HK) Ltd. CA 1991 No.18, unreported, at p 7:

"Were the word 'shall' to be construed as mandatory in its effect, in accordance with its ordinary meaning, it could '... lead to results ... manifestly absurd or unjust...' to quote Lord Diplock in In re Racal Communications Ltd [1981] AC 374 at p 380. ... In context 'shall' can be no more than directory and permissive as found in the circumstances of R v Spring Hill Prison Governor [1988] 1 All ER 424 and Re Salcombe Hotel Development Co Ltd (1989) 5 BCC 807."

Mr Rodway referred also to In re Davis [1947] 75 C.L.R.409 which also is authority for the proposition relied upon, in relation to absurdity.

10. Turning then to the Legal Practitioners Ordinance, the provisions relevant to this appeal, as pointed out by Mr Rodway, are derived from provisions of the English Solicitors Act 1957, which were re-enacted in the 1974 Act without material change. There is no provision in those Acts corresponding directly to s.53(3). The nearest equivalent, Mr Rodway submits, is s.43(2) of the 1974 Act, under which the Tribunal could order that no solicitor shall employ a solicitor's clerk convicted of a criminal offence disclosing dishonesty except with the written permission of the Law Society. But, he emphasises, under s.44(2), the Tribunal has an unfettered discretion within the range of penalties provided, whereas s.53 construed in a mandatory sense would require the solicitor to be struck off or suspended. When subsection (3) was introduced in 1968, s.53 was viewed as a provision into which it could conveniently be inserted and that this was done without due regard to the effect of subsection (5). He stressed that there is no difference in principle between standards of professional conduct for solicitors in Hong Kong and in England and therefore no reason for the Hong Kong legislature to provide for the mandatory striking off or suspension of a solicitor who breaches s.53(3). While the possibility of subsection (5) being overlooked, however unlikely, might explain how a seemingly mandatory effect came to be provided in that way, it does not seem to me to provide any assistance in reaching the conclusion that "shall" in subsection (5) was intended to be directory.

11. I turn then to consider whether to construe "shall" in a mandatory sense would produce absurd or unjust consequences. That the consequences might be absurd, does not seem to me to be arguable and I did not understand Mr Rodway to suggest that. But he does submit that the consequences are unjust. Reverting first to comparison with the position under the Solicitors Act 1974, I do not think that because greater flexibility is available to the Tribunal in the range of available penalties, it follows that a mandatory requirement to strike off or to suspend produces unjust consequences. No minimum period of suspension is provided for in the Ordinance. Clearly a suspension is a severe penalty, particularly in the case of a solicitor practising as a sole proprietorship, as here. But even in that regard, it is pertinent that the Disciplinary Committee, which cannot have overlooked the penal consequences of suspension, considered nine months an appropriate period in the full knowledge it must obviously have had that a far shorter period could have been imposed. However that may be, nothing that was submitted leads me to the conclusion that s.53(5) if construed as mandatory leads to such unjust consequences that it must have been intended to be directory.

12. Equally compelling is the consideration that if s.53(5) is directory, it is difficult to see what use or purpose its enactment served, given that a general discretionary power to suspend was already included and remains in s.10(2) of the Ordinance. Moreover, it was not suggested in relation to contravention of subsections (1) and (2) of s.53, that subsection (5) was other than mandatory; how, therefore, at the same time subsection (5) could be directory in relation to contravention of subsection (3) is difficult to see.

13. I have accordingly had no difficulty in concluding that the true and proper construction of s.53(5) requires it to be construed as mandatory.

14. That brings me to Mr Rodway's final submission, that whether s.53(5) be mandatory or directory, the penalty of nine months suspension was manifestly excessive, first, because there was no dishonesty on the part of the appellant, and second, because of the appellant's personal circumstances. Since the former to some extent also involves consideration of the circumstances, I turn to those. The appellant was one of two solicitors retained by Mr Tang to advise him on his appeal. Although the appellant did not act for Miss Chan he knew she was convicted of an offence involving dishonesty, i.e. false accounting. The idea of employing Miss Chan came from Mr Tang. He proposed to the appellant that for the purpose of his appeal against conviction and sentence, the solicitor should see him daily to help him run through the transcript and advice from counsel. Understandably the appellant did not find this possible. When Miss Chan was released from prison, Mr Tang suggested that the appellant employ Miss Chan to act as interpreter for the barrister then preparing for the appeal. As the appellant did not at that time have any clerks of his own who spoke Chiu Chow, Mr Tang's native dialect, and none in any event had the detailed knowledge of the case that Miss Chan had, he decided to employ Miss Chan. He considered her the most suitable candidate to assist Mr Tang. She had served her sentence and told him she wanted to start afresh. He was not aware that her employment by him would require the approval of the Law Society. Miss Chan was to be employed exclusively for Mr Tang's appeal and was to report to the appellant after each visit to Mr Tang. The appellant felt he was able to supervise Miss Chan because he personally signed all briefs to counsel and visitation letters and she came to collect those documents the day before the actual visit.

15. In addition, it was submitted on the appellant's behalf that he reported the fact of his employment of Miss Chan to the Law Society in his annual employee returns. Furthermore, that he stated Miss Chan's full name and identity card to the Superintendent of the Correctional Institute and stated that her role in visiting was to act as interpreter to counsel. The appellant himself disclosed that he allowed the arrangement to continue for about ten months. Had he not done so, it may well have been assumed that only the two last visits had occurred, in which Miss Chan's attendance came into question.

16. Mr Rodway submits, therefore, that there was no question of dishonesty. The latter element assumes its importance in Mr Rodway's first submission because it qualifies the nature of the criminal offence in s.53(3) with reference to which suspension under subsection (5) is mandatory in the present context, but does not do so in respect of professional misconduct as dishonourable conduct in respect of which a Disciplinary Committee may suspend a solicitor as one of the several penalties which it may impose under s.10(2) of the Legal Practitioners Ordinance upon a hearing of or investigation into a complaint. Mr Rodway referred to Re a Solicitor's Clerk [1978] HKLR 160 in which Briggs C.J. in his dissenting judgment at p 162 said:

"In the case of In re a Solicitor (1976) 120 Sol.J.353 Lord Widgery said :-

'There were four basic penalties for professional misconduct by a solicitor: reprimand, fine, suspension and striking off. The great divide came between fine and suspension. Suspension and striking off could well mean professional disaster. As the solicitor had not been dishonest, he had not reached the stage where he ought to be supended and, accordingly, a fine of $250 would be substituted for the tribunal's order.'

This is not a very full report but in my view it shows what His Lordship meant by 'dishonesty' was doing an act for personal gain. It is, strictly speaking, 'dishonest' to tell a lie. But I do not think that such a conduct should result in a sentence of suspension."

Huggins J.A., as he then was, at p 163 said:

"The first question we have to decide is whether any sentence of suspension was wrong and unjustified in the present case. Hogan, C.J., delivering the judgment of the Full Court in Re a Solicitor (1956) 40 HKLR 186, said at p 189 -

'The cases decided in England show that when the solicitor has been guilty of dishonest or dishonourable conduct or conduct showing a defect of character, the Court will intervene right away to remove or suspend him in order to maintain and protect the trust which the public should be able to repose in a member of the profession.'"

17. It is convenient to note that in that case the appellant was the chief clerk in a firm of solicitors. He had a brother who was serving a term of imprisonment. To enable himself and his brother's wife to visit the prisoner and use the interview room, he wrote a letter to the superintendent on the firm's notepaper without the authority of the firm, stating the visit was "for instructions" and thus obtained the use of the interview room thereby avoiding the crowded visitors' room. Briggs C.J. was of the view that the 18 months suspension ordered by the Disciplinary Committee should be reduced to an order of censure and a fine of $500; however, it was reduced to six months by the majority decision of Huggins and Pickering JJ.A.

18. Mr Rodway, focussing upon the "great divide" referred to by Lord Widgery, submits that in the absence of dishonesty, the conduct should not have resulted in suspension, and that it follows from this that suspension, even if mandatory under s.53(5), for a duration of 9 months is manifestly excessive. That submission attracts a three-fold response. First, the conclusion contended for does not seem to follow, nor does it really assist in determining the appropriate duration of suspension. Second, as Mr Thong for the Law Society pointed out, it is implicit in the dictum of Hogan C.J., which was accepted by Huggins J.A., that dishonourable conduct of itself calls for suspension no less than does dishonesty. I did not understand Mr Rodway to question that dictum. Third, while the appellant's conduct may not have been dishonest in a narrow or literal sense, it may have quite properly been regarded by the Disciplinary Committee as done for personal gain i.e. to retain Mr Tang as a client, in the sense mentioned by Briggs C.J. as dishonesty.

19. Turning then to the second limb of Mr Rodway's submission that the period of suspension was manifestly excessive, he referred first of all to the catastrophic effect of the suspension not only on the solicitor but also upon his staff, i.e. several solicitors and non-professional staff numbering about 50 at the time of the Disciplinary Committee's finding. The firm could not continue without taking in a partner. Finding someone who would be prepared to be a partner for more than about three months, we were told, was proving impossible. It was moreover urged that the employment of Miss Chan did not provide the appellant with any financial benefit. I pause to say again that if the Disciplinary Committee took the view that in employing Miss Chan in the way he did, the appellant ensured his further retention in the case and the resulting remuneration, the Disciplinary Committee would not have been acting unreasonably and would have been perfectly entitled to do so. To return to the other considerations urged in mitigation, it was pointed out that this was the appellant's first infringement of the regulations, moreover that he was not aware of the contents of s.53 when he acceded to Mr Tang's request to employ Miss Chan. Again, I do not think the Disciplinary Committee would be unreasonable, if they were not impressed by the latter. To continue, it has to be accepted that the appellant was very frank and promptly and fully admitted the matter which saved the Law Society the difficulty of proving it, particularly in the absence of Miss Chan who had left for Paraguay and could not be located. The appellant immediately terminated Miss Chan's employment when s.53(3) was drawn to his attention. He is married and has three children all in their teens. His wife does not work. He was of unblemished character and references from two Queen's Counsel were exhibited.

20. Not all the foregoing can be regarded as mitigating factors, or of much weight, as Mr Thong pointed out. I do not think it necessary to recount or discuss the competing submissions upon them. In so far as they may not have been expressly put to the Disciplinary Committee, the relevant considerations would not have escaped it.

21. Finally it was submitted that the period of suspension was also clearly excessive in the light of the penalties imposed in the Hong Kong cases that have already been referred to and also in In re a Solicitor's Clerk [1966] HKLR 99.

22. I do not find it necessary to adumbrate the nature of the offences, and the penalties in the foregoing cases, the contended effect of which was resisted by Mr Tong. Suffice it to say that they do indicate that the appellant has prima facie been dealt with somewhat more severely than in some of those cases, and that none of them are concerned with mandatory suspension under s.53(5), which apparently has yet to receive the attention of the courts. Each case has to be decided on its own facts. (McCoan v General Medical Council [1964] 1 WLR 1107 PC). In that case which has been relied upon in more than one Hong Kong authority (see e.g. In re a Solicitor's Clerk [1966] HKLR 99) their Lordships stated at pp 1112 and 1113 that:

"... in principle, where a professional body is entrusted with a discretion as to the imposition of the sentence ... [an appellate court] should be very slow to interfere with the exercise of that discretion .... their Lordships agreed with Lord Goddard C.J. in Re a Solicitor [1956]1 WLR 1312; [1956]3 WLR 138; [1960]2 All ER 621, All ER 516, D.C. when he said that it would require a very strong case to interfere with sentence in such a case, because the Disciplinary Committee are the best possible people for weighing the seriousness of the professional misconduct.

No general test can be laid down, for each case must depend entirely on its own particular circumstances. All that can be said is that if it is to be set aside the sentence ..... must appear to their Lordships to be wrong and unjustified."

23. The Disciplinary Committee clearly took a serious view of the appellant's conduct. While Mr Tang's native dialect was Chiu Chow, he had given evidence in Cantonese. It is apparent from all the circumstances including the paragraphs that I have quoted from the agreed statement of facts, that Miss Chan's employment was concerned not so much with the procurement of an interpreter as with enabling Mr Tang "to see and obtain assistance from Miss Chan.....in the absence of prison staff, which Mr Tang and Miss Chan would not otherwise be entitled to" under the Prison Rules. Moreover the privilege so procured was used over 10 months to obtain about 2 visits a week, when under the Prison Rules, only 2 visits would have been permitted per month, and in the presence of prison staff.

24. It must be accepted that the appellant did not know of the existence of s.53(3), although the Disciplinary Committee may rightly not have been much impressed by that. On the other hand there was no suggestion that the appellant was not aware of the position under the Prison Rules. The Disciplinary Committee would therefore have been entitled to regard Miss Chan's employment in the capacity of an interpreter as a device to overcome the restrictions in the Prison Rules and obtain the concessions intended for legal advisers and their interpreters.

25. Mr Rodway argued strenuously that the purpose of s.53(3) is to protect the public and the courts from the acts of dishonest clerks and that neither had been exposed to mischief of that sort by the actions of the appellant. That does not seem to me to preclude the Disciplinary Committee from taking a serious view of the contravention of s.53(3) because of the manner in which that was done or of potential or actual mischief of another sort. Mr Rodway also submitted that the Law Society could have permitted Miss Chan's employment, and stressed that the appellant was not aware of the prohibition under s.53(3).

26. In the end, having regard to all the foregoing matters, it seems to me quite clear that the Disciplinary Committee was entitled to take a serious view of the appellant's contravention of s.53(3), a fortiori, having regard to the particular profession involved, the position of the appellant as an officer of the court, the potential damage to the administration of justice, the necessity for members of the legal profession to be able to see their clients in prison custody in conditions both suitable and of confidence, and to the trust that it is therefore necessary to preserve between the profession and the Prisons' staff. In the light of the mandatory requirement for suspension in s.53(5) - striking off being accepted as inappropriate - it seems to me, therefore, that the period of nine months, albeit heavy in the circumstances and somewhat high, is not manifestly excessive.

27. Having regard to all the foregoing matters, and indeed to all that has been so eloquently urged upon us, I am not able to see any good or sufficient reason to interfere with the findings and orders of the Disciplinary Committee. I would therefore dismiss the appeal and make an order nisi that the respondent is to have its costs of the appeal.

Penlington, J.A.:

28. The facts of this matter, which were not in dispute, are set out fully in the judgment of Nazareth J.A. and I need not repeat them.

29. I am in agreement with him and while the provisions of s. 53(3) and (5) appear to be draconian this Court cannot go behind them. For the reasons stated by Nazareth J.A., s. 53(5) does impose a mandatory requirement that any solicitor guilty of an offence under subs. (3) must be either struck off or suspended from practice. We are however, in my view, entitled to look at the section and the manner in which it was enacted as being relevant to the way in which it should be implemented. Quite clearly it was the intention of the legislature that any solicitor who knowingly employed another solicitor who had been struck off the role or had been suspended should himself be faced with mandatory striking off or suspension. It is difficult indeed to think of a more serious offence than for a solicitor to employ somebody as an assistant solicitor who he knew was not entitled to practise for that reason.

30. So far as subs. (3) is concerned, this was introduced into the legislation in 1968 and has no equivalent in the relevant United Kingdom legislation. It does have the effect that a solicitor who employs a person who, for instance, at some time in the past had been convicted of an offence of shoplifting or possibly interference with a parking meter, faces the same mandatory penalty, which may mean, in the case of a self-practitioner, professional disaster, as if he had employed a solicitor who had been struck off or suspended. The only justification for finding that legislation is not unjust, in which case, in accordance with the dicta of Lord Diplock in Re Racal Communications Ltd, the word "shall" should be read as meaning "may", is that the period of suspension could be nominal. In my view, the facts here, while they do show that the solicitor was negligent in not being aware of the provisions of s. 53 of the Ordinance, his conduct falls far short of that calling for a substantial period of suspension.

31. It was accepted and unchallenged at the hearing that the appellant had not been guilty of conduct which was in any way dishonest, either financial or in the making of a deliberate false statement with intent to deceive. It was sought to equate his conduct with being "dishonourable" but even that was not agreed. He admitted the offence of conduct unbefitting a solicitor. That simply means no more than that he should have been aware of the provisions of the Ordinance and that, even in the very unusual circumstances of this case, he should not have employed Miss Chan as an interpreter. He has not been shown to be "guilty of dishonest, dishonourable conduct or conduct showing a defect of character" per Huggins J.A. in Re a Solicitor's Clerk [1978] HKLR 160, at 163.

32. There can be no doubt whatever that the intention behind s. 53 is to prevent the employment in solicitors' offices of persons who had been proved to be dishonest and may use their position to defraud clients or members of the public. It is in itself serious but it also has the effect of bringing the profession into disrepute. The prohibition refers only to offences of dishonesty. This seems clear as the section makes no reference whatever to other offences and it seems somewhat strange that, for instance, a person can be employed in a solicitor's office, without any consent being required, who has a record of violent crime or offences such as membership of a triad society. Such a person, however, can be so employed as of right and, could be sent to a prison to interview a prisoner as a solicitor's interpreter. That may well be a real danger to prison security. I am unable to see that the employment of an interpreter who is dishonest as opposed to violent can be a risk to security or may interfere with the administration of justice.

33. Here Miss Chan, while she did have a conviction for the offence of false accounting for which she had served a sentence of imprisonment, had no access whatever to the solicitor's office and was employed solely to act as an interpreter for a European barrister in connection with one client only. It seems to me that her previous dishonest conduct posed no threat whatever to the solicitor's clients or to members of the public. Nor, in my view, was there any prospect whatever of there being a risk of a breach of prison security or the administration of justice. Mr Tang had already been convicted following a lengthy trial and was awaiting the hearing of his appeal. There could be no question of evidence being fabricated at that stage. I do not see that the facts here can possibly form the basis of any suggestion that there was any form of physical risk to prison security. Miss Chan interviewed Mr. Tang in the presence of the barrister and nobody else. Undoubtedly the prison authorities quite rightly complained that they had been misled into believing that Miss Chan was a person who could properly be employed in a solicitor's office and that her employment was not in breach of s. 53 of the Ordinance. There is however nothing in the agreed facts to suggest that this was a deliberate act on the part of the solicitor and, regrettable though it was, it seems to me to have been a very minor breach of the confidential relationship which exists between the solicitor's profession and the Superintendent of Correctional Services.

34. The main complaint seems to be that the solicitor bowed down to the unreasonable requests of his client to be interviewed very frequently in prison and accepted an easy way out which would keep the client happy and at the same time not impose any unreasonable demands on him or his staff. This meant he could see Miss Chan and discuss his appeal with her in the absence of prison staff. It is suggested here that this was for financial reward. I am satisfied that certainly Mr Tang must have been a difficult client and that the solicitor was anxious to please him. I do not however consider that there is any justification in finding that the wrongful conduct of the solicitor was in order that he could obtain financial benefits which otherwise he would not. It was not so suggested before the Committee. He was no doubt anxious to retain Mr Tang as a client. As all of us who have any knowledge of appeals in Hong Kong know that it is almost inevitable that after a conviction there is a change of solicitors. Mr Tang could certainly have gone elsewhere if not satisfied with the way he was being treated by the solicitor here. However by far the greatest bulk of the costs in the case must have been already accrued. There has been no finding of financial impropriety by the Committee and I do not consider that this Court can itself take that view.

35. It was accepted before the Committee that the solicitor was not aware of the provisions of the Ordinance in relation to the employment of Miss Chan. Not only was that accepted but it seems to me to tally with all the other facts. He was perfectly frank and truthful in the letters that he sent with Miss Chan to the prison authorities. They gave her full name and her correct ID card identification. There was no effort whatever at concealment. The same situation existed after it was pointed out to the solicitor that his employment of Miss Chan was in breach of the Ordinance. He was totally frank and indeed but for his own admissions it would not have been found out that there was more than two visits by Miss Chan to the prison to interview Mr Tang. It is true that circulars are sent out periodically by the Law Society setting out the names of persons who should not be employed in solicitors' offices either because they have been suspended or struck off or, being clerks, they had been convicted of dishonesty. These however all seem to relate to offences committed in a solicitor's office. If Miss Chan had been so employed by the solicitor the Committee would have been entitled, in my view, to have taken a more serious view of this matter. A suspension for nine months may well have been perfectly proper.

36. The effect of a period of suspension on a self-practitioner is undoubtedly very serious indeed. We are told, and it is not challenged, that here a period of nine months' suspension will be disastrous for the solicitor who is employing a substantial number of assistant solicitors and supporting staff. We are informed by affidavits sworn on his behalf by leading counsel is a conscientious and competent officer of the court. Needless to say he has not been guilty of any professional misconduct before and apparently this is the first time a solicitor has been charged with this particular offence. It is therefore clearly not prevalent.

37. Turning to the previous decisions to which we have been referred I of course accept that this Court should be slow to interfere with the finding of a professional disciplinary body which is charged with regulating the conduct of its own members. Nevertheless an appeal does lie to this Court and if the Committee has erred in principle in finding a charge proven or if it has imposed a penalty which is manifestly excessive, then clearly this court has a duty to correct that situation. Otherwise there would be no such right of appeal.

38. I consider the dicta of Lord Widgery C.J. in In re a Solicitor (1976) 120 Sol.L.J. 353 is highly relevant to the facts here. He said, in relation to a solicitor who had signed a deed as a witness although it had not been executed in his presence, that there were grounds for criticising the solicitor but on the facts he had not acted dishonestly. For that reason he did not come within the category of cases which justified suspension which could well mean professional disaster. "As the solicitor had not been dishonest, he had not reached the stage where he ought to be suspended and, accordingly, a fine of $250 would be substituted for the tribunal's order." It is to be noted that Lord Widgery did not hesitate to interfere with a finding which he considered to be wrong. Here because of our different legislation the Committee had no option but to suspend but, in the light of Lord Widgery's dicta, which has remained unchallenged since 1976, in my view the period of suspension in the absence of evidence of dishonesty should not be for a long. period. Indeed from a reading of the proceedings before the Committee clearly they were very concerned over the question of suspension and repeatedly asked the solicitor, who was, perhaps unwisely, not represented, if he agree that the Committee's hands were tied as regards mandatory suspension. That seems to indicate that at a first reading of the agreed facts before them they did not consider that suspension was warranted. The Committee gave no reasons for its decision, as it was entitled not to do, but in view of that earlier attitude it is puzzling why it finally decided that a substantial period of suspension was required.

39. The Hong Kong decision which I find very strongly in favour of the appellant is in the dicta of Sir Derek Cons V.P. in Re a Solicitor [1988] 2 HKLR 137 where the solicitor had been guilty of flagrant dishonesty. She had signed a false statutory declaration in relation to non-payment of stamp duty. She had lied to the Law Society in attributing blame not to herself but to her conveyancing clerk. She had prevaricated after the offence had been disclosed and wrote letters to the Law Society and to fellow solicitors which contained statements she knew to be false. Nevertheless it was felt that a suspension of six months was adequate on those facts. There are, of course, always different factors which can be brought forward in mitigation in any particular case. Apparently the solicitor had been pregnant at the time and that was regarded as something which may have affected her conduct but, as a matter of principle, it seems to me entirely wrong that a person guilty of that type of conduct as a solicitor is suspended for a lesser period than was imposed in the case now before us. That was in my view simply no comparison with the degree of impropriety involved in each case.

40. In Re a Solicitor's Clerk where the defendant had written what he knew to be a false letter to the Superintendent of the Victoria Reception Centre stating that his firm was acting for a prisoner who was the clerk's brother in order to see the prisoner in more comfortable surroundings. That was a total blatant lie. Even then, however, Huggins J.A. and Pickering J.A. considered that the period of suspension of eighteen months imposed was excessive and reduced it to one of six months. Briggs C.J. considered even that to be too much and would have imposed a fine. Once again it is also to be noted that the court considered that it should intervene even though this was an appeal from a professional disciplinary committee.

41. We have been told of the extremely serious consequences if the appellant here is suspended for a period of nine months. I cannot accept that just as on the facts here requires such a penalty. I certainly do not consider that the appellant's conduct in this matter was such as to in any way bring the profession into disrepute in the eyes of the average member of the public. In my view, a suspension of three months would be quite sufficient to denote the disapproval of the appellant's professional colleagues.

42. I would myself allow the appeal to that extent.

Bokhary, J.A.:

43. The argument advanced by Mr Rodway for the Solicitor that the requirement for striking off or suspension contained in subs. (5) of s. 53 of the Legal Practitioners Ordinance, Cap 159, is not mandatory but only directory is untenable. By its nature, it is a command to be obeyed rather than a direction which can be ignored. And Mr Rodway concedes that, in light of s. 10 of the Ordinance by which the power to impose punishment including striking off and suspension is conferred upon the Disciplinary Committee, the subsection would be a waste of print and paper if the requirement for striking off or suspension contained in it were not mandatory.

44. What is left, therefore, is the question whether the period of suspension imposed by the Disciplinary Committee, nine months, should be reduced.

45. Dealing with the Professional Conduct Committee of the General Medical Council in particular but stating a principle of general application to professional bodies invested by the legislature with the duty of maintaining professional standards, Lord Mackay said in Peatfield v. General Medical Council [1986] 1 WLR 243 at p. 251 that:

"The question of the appropriate penalty to be imposed in respect of serious professional misconduct is a matter peculiarly within the discretion of the committee and interference would be justified only if it was plain that the sentence imposed was inappropriate."

46. We are here face to face with an important aspect of the practical workings of our criminal justice system. It involves a relaxation of the strict requirements of prison security. The relaxation is to preserve the confidentiality of communications between prisoners and their legal advisers. Thus, the conditions governing "legal visits" are less restrictive than those governing other prison visits. In particular, legal visits, unlike other ones, take place in the absence of prison staff.

47. The relaxation is made in the interests of justice at some risk to security. And much depends on the confidence which prison authorities are able to repose in the legal profession, particularly the Solicitors' branch. For, apart from counsel and solicitors, clerks and interpreters in the employ of solicitors also attend legal visits.

48. Naturally, prison authorities are anxious that each such clerk or interpreter should be reliable. And that is not least of all because quite often he or she will be the only visitor who speaks the only language which the prisoner speaks. Indeed, that was position in the present case: the prisoner and the interpreter communicated in Chinese, which counsel, the only other person attending the interview, did not understand.

49. No doubt, prison authorities naturally incline towards reposing confidence in solicitors' firms. And that confidence is buttressed by a statutory scheme, being the one contained in s. 53 of the Legal Practitioners Ordinance, Cap 159, which provides that:-

" (1) No solicitor shall, in connection with his practice as a solicitor, without the written permission of the Society which may be given for such period and subject to such conditions as the Society thinks fit, employ or remunerate any person who, to his knowledge, is disqualified from practising as a solicitor by reason of the fact that his name has been struck off the roll of solicitors or is suspended from practising as a solicitor or whose practising certificate has been determined by virtue of section 6(7) in consequence of a receiving order in bankruptcy being in force against him.

(2) No solicitor shall in connection with his practice as a solicitor employ or remunerate any person who, to his knowledge, is the subject of an order made by a Disciplinary Committee under section 10(2)(g) whereby the employment of such person by any solicitor is prohibited, while such order is in force.

(3) No solicitor shall, in connection with his practice as a solicitor, without written permission of the Society, which may be given for such period and subject to such conditions as the Society may think fit, employ or remunerate any person, who, to his knowledge, has been convicted of a criminal offence involving dishonesty.

(4) A solicitor aggrieved by the refusal of the Society to grant any such permission as aforesaid, or by any conditions attached by the Society to the grant thereof, may appeal to the Chief Justice, in such manner as may be prescribed by the Chief Justice, and on any such appeal the Chief Justice may confirm the refusal or the conditions, as the case may be, or may, in lieu of the Society, grant such permission for such period and subject to such conditions as he thinks fit.

(5) If any solicitor acts in contravention of the provisions of this section or of the conditions subject to which any permission has been given thereunder, his name shall be struck off the roll or he shall be suspended from practice for such period as a Disciplinary Committee or as the Court may think fit.

(6) Any person who, while there is in force in respect of him an order made under section 10(2)(g) prohibiting his employment by any solicitor, seeks or accepts any employment by or remuneration from a solicitor in connection with his practice as a solicitor without previously informing the solicitor of that order shall be guilty of an offence and shall be liable on summary conviction to a fine of $25,000."

50. By reason of what the Solicitor in present case did, that scheme was defeated and that confidence shaken. Given employment by him without reference to the Law Society, a woman who had recently come out of prison after serving a term for 22 counts of false accounting was able to, and did, make repeated visits to the prisoner in the absence of prison staff, the prisoner having been her co-accused, she having completed her sentence and he being in prison awaiting the hearing of his appeal against his conviction and sentence on those very counts, on which he had drawn six years' imprisonment after trial and she had drawn one year's imprisonment following her pleas of guilty. And such employment had been given to enable her to visit him in the absence of prison staff.

51. The disciplinary charges to which the Solicitor pleaded guilty are these. The first is that he

"was in breach of Section 53(3) of the Legal Practitioners Ordinance in that, in connexion with his practice as a solicitor, without the written permission of the Law Society of Hong Kong, he employed, from 6th November, 1989 to about 18th February, 1991, Miss Chan Wai King who, to his knowledge, had been convicted of a criminal offence involving dishonesty, namely false accounting".

And the second is that he

"abused his position of a solicitor by -

(i) employing Miss Chan Wai King from 6th November, 1989 to about 14th February, 1991 at the request of Mr. Tang Yee Chun (Miss Chan and Mr. Tang being co-Defendants and convicted of false accounting in High Court Criminal Case No. 133 of 1988), with a view to enabling Mr. Tang to see Miss Chan, who would visit him together with Mr. Tang's Counsel, in prison in the absence of prison staff, which Mr. Tang and Miss Chan would not otherwise be entitled to; and

(ii) writing a letter dated 23rd October, 1990 to the Superintendent of Shek Pik Prison and thereby enabling Miss Chan Wai King to visit Mr. Tang Yee Chun in Shek Pik Prison on 23rd October, 1990 and Mr. Tang to see Miss Chan in the absence of prison staff, which they would not otherwise have been entitled to,

in relation to which he has been guilty of conduct unbefitting a solicitor." (Emphasis supplied.)

52. Judging by the penalty which it imposed, nine months' suspension, the Disciplinary Committee must have viewed those as serious offences against professional discipline. It was certainly entitled, on those facts, to take that view.

53. It cannot be doubted that a body composed of practising solicitors, as the Disciplinary Committee was, would be under no illusion as to the severe impact which nine months' suspension would have upon the Solicitor. Nor can it be supposed that such practitioners would be more severe to a colleague than they felt duty-bound to be.

54. In seeking to persuade us to interfere with the penalty imposed in this case, Mr Rodway drew our attention to a number of past appeals to this Court by other solicitors punished for other offences against professional discipline.

55. What has to be remembered is that each case depends on its own facts and its own context. Each professional body entrusted with responsibility for professional discipline is in a uniquely advantageous position to discharge its duty: first, to set and maintain professional standards; secondly, to view each offence against discipline in its proper context from time to time as times change; thirdly, to gauge the effect of each offence on the profession and the public; and, fourthly, to assess the penalty required to mark professional disapproval, restore public confidence and provide effective deterrence. That is why they are entrusted with such responsibility in the first place.

56. In the present case, there is simply no material upon which it can be demonstrated that the Disciplinary Committee's decision is wrong.

57. Accordingly, I am in agreement with my brother Nazareth; and, like him, I am of the view that this appeal must be dismissed.

Penlington, J.A.:

58. In consequence, this appeal is dismissed. There will be an order nisi that the respondent have its costs of the appeal.

59. Since this is said to be the first decision of this Court bearing upon the construction and operation of s.53(3) and (5), and Mr Rodway

indicated that he would not be opposed to that, we hand down these judgments in open court.