THE LAW SOCIETY OF HONG KONG v. A SOLICITOR

CACV280/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 280 OF 2003

(ON APPEAL FROM THE ORDER OF THE SOLICITORS
 DISCIPLINARY TRIBUNAL DATED 10 SEPTEMBER 2003 AGAINST A SOLICITOR)

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J U D G M E N T

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Hon Ma CJHC :

1. On 10 September 2003, the Respondent was found guilty by a Solicitors Disciplinary Tribunal (“the SDT”) of having breached Principle  1.02 of the Hong Kong Solicitors’ Guide to Professional Conduct issued by the Law Society (“Principle 1.02”) in relation to two complaints.  These decisions were contained in a document headed “FINDINGS AND ORDER” (“the Findings”) of that date.  Both complaints related to incidents that had taken place on 1 March 2001.

2. The complaints were as follows : -

“1.    That you, [the Respondent], on the 1^st March, 2001, conducted yourself in a manner likely to bring the profession into disrepute in breach of Principle 1.02 of the Hong Kong Solicitors’ Guide to Professional Conduct and Rule 2(d) of the Solicitors’ Practice Rules.

Particulars

a)      At approximately 2.30 p.m. outside Wheelock House, Pedder Street, you stood demonstrating in the street wearing no clothes other than your swimming trunks.

b)      You held a banner covering your lower parts with a template that stated in both English and Chinese ‘Legal rights are inborn mine too’.

2.         That you, [the Respondent], on the 1^st March, 2001, conducted yourself in a manner likely to bring the profession into disrepute in breach of Principle 1.02 of the Hong Kong Solicitors’ Guide to Professional Conduct and Rule 2(d) of the Solicitors’ Practice Rules.

Particulars

a)      On or about the 1^st March, 2001, you published or caused to be published a circular in your name which was distributed to members of the profession.

b)      The circular stated that a protest would be staged outside Wheelock House at 2.30 p.m. against what you alleged to be the unjust and unfair conduct of the Law Society.

c)      You invited members of the profession to attend the disciplinary hearing notwithstanding that there were previous rulings by the Tribunal that the hearings were to be held in camera.

d)      The circular contained disparaging and improper remarks against the Law Society.”

3. Insofar as the complaints were based on Rule 2(d) of the Solicitors’ Practice Rules, Cap.159, this was rejected by the SDT as a basis for substantiating the complaints.  The reason was that Rule 2(d) only applied where the solicitor was acting “in the course of practising as a solicitor”.  The subjectmatter of the two complaints with which we are concerned did not involve the Respondent having acted in that capacity.  At all material times on 1 March 2001, the Respondent was facing another set of disciplinary proceedings that had been brought against him by the Law Society.  The SDT did not regard this as involving the Respondent practising as such.

4. The basis on which the Respondent was found guilty of the two complaints in the proceedings relevant to this appeal was Principle 1.02, which states as follows : -

“1.02    Conduct subject to discipline

A solicitor is an officer of the Court (see s 3(2) of the Legal Practitioners Ordinance (Cap.159), and should conduct himself appropriately in professional and private matters.

Commentary

A solicitor, whether practising or not, is an officer of the Court.  Certain standards of behaviour are required of a solicitor, as an officer of the Court and as a member of the profession, in his business activities outside legal practice and in his private life.”

5. The Respondent was fined $90,000 in relation to the first charge and $40,000 in relation to the second.  He was also ordered to pay two-thirds of the costs of and incidental to the disciplinary proceedings, such costs to be taxed on a party and party basis.

6. In this appeal, the Respondent was represented by Mr Johnny Mok and Miss Joyce Leung, the Applicant (The Law Society of Hong Kong) was represented by Mr Paul Carolan.

The facts surrounding the complaints

7. The hearing before the SDT took place over the course of two days.  No evidence was adduced and the matter proceeded on the basis of the following agreed facts : -

“1.      On or about the 1^st March, 2001, the Respondent published or caused to be published in his name a circular which was distributed to members of the profession.

2.      The circular states that a protest would be staged outside Wheelock House at 2:30 p.m. against what the Respondent alleged to be unjust and unfair conduct of the Law Society.

3.      The Respondent invited members of the profession to attend the disciplinary hearing notwithstanding that there were previous rulings by the Tribunal that the hearings were to be held in camera.

4.      A true copy of the circular is annexed herewith marked ‘Annexure A’.

5.      On the 1^st March, 2001 at approximately 2:30 p.m. outside Wheelock House, Pedder Street, the Respondent stood demonstrating in the street wearing no clothes other than his swimming trunks.

6.      At the time, the Respondent held a banner covering his lower part with a template that stated in both English and Chinese ‘Legal rights are inborn mine too’.

7.      On the afternoon of the 1^st March, 2001, the Solicitors Disciplinary Tribunal did not proceed with the hearing as scheduled.”

8. The circular dated 1 March 2001 referred to above (“the Circular”) was annexed to the document containing the agreed facts.  Insofar as relevant to the present appeal, the Circular stated the following : -

“To All Fellow Colleagues :

        You are hereby invited to attend the Solicitors’ Disciplinary Tribunal Hearing against me, the details which are as follows :-

Date:    1^st March, 2001

Time:    3:00p.m. – 7:00p.m.

Venue:    4/F., Central Conference Centre, Wheelock House, 20 Pedder Street, Central.

A PROTEST  will be staged at outside the Wheelock House Building at 2:30p.m. against the unjust and unfair conduct of the Law Society, including:

1.    Insisting on a secret hearing when the Law Society had right at the outset publicized its intention to institute and the fact of Disciplinary Proceedings against me;

2.    Maintaining its opposition to an open hearing when I have clearly indicated my wish to waive the protection of a hearing in camera which afterall is for my own benefit;

3.    …..

4.    …..

5.    …..

          All of you who feel you have been oppressed by the Law Society’s disciplinary regime or are disillusioned by its bureaucratic attitude are specially invited.”

9. The following points arise from the agreed facts and should be noted : -

(1)    On 1 March 2001, the Respondent was engaged in disciplinary proceedings that had been brought against him by the Applicant before another Solicitors Disciplinary Tribunal.  It is clear that the Tribunal in those proceedings had ruled on a number of occasions that any hearings were to be conducted in camera.  This, I interpose, is entirely consistent with the requirements of section 9B(4) of the Legal Practitioners Ordinance, Cap.159 (“the LPO”), which states : -

“(4)    The Tribunal shall sit in camera in the places and at the times it directs.”

(2)    Despite the said rulings that any hearings were to be held in camera, the Respondent issued the Circular to all solicitors inviting them : -

(a)    to attend the hearing of the disciplinary proceedings against him that day between 3:00 pm and 7:00 pm on 1 March 2001; and

(b)    to attend a protest he was staging outside Wheelock House (on Pedder Street) at 2:30 pm that day to protest against the “unjust and unfair conduct” of the Applicant.  One of the bases for the protest was the fact that the Tribunal had ruled that hearings should take place in camera.

(3)    Accordingly, the protest that was held by the Respondent on the day in question was in the context of the disciplinary proceedings against him and specifically, of the rulings made by the Tribunal that any hearings were to take place in camera.

10. As a matter of inference from the agreed facts, it can readily be seen that by his actions on 1 March 2001, the Respondent intended to protest in some of the strongest and most graphic ways possible his dissatisfaction with the rulings of the SDT.  It is also clear that by the Circular and the invitation contained in it to fellow solicitors to attend the disciplinary hearing, he intended to flout the rulings.  He was not just inviting other solicitors to protest; he was actually asking them to attend the hearing itself, details of which (time, duration and place) he provided.

11. Based on the agreed facts, were the complaints justified?  The Respondent says not.

Issues

12. In this appeal, at the forefront of Mr Mok’s arguments on the Respondent’s behalf in relation to both complaints have been the submissions based on freedom of expression.  Essentially, two arguments were raised in this context : -

(1)       The Respondent’s actions on 1 March 2001 were no more than the exercise of his right of freedom of expression guaranteed under the Basic Law and the Hong Kong Bill of Rights.  Principle 1.02 (or indeed any other provision) should not be permitted to stifle this fundamental right (Issue 1 : The freedom of expression and its limits in relation to professional discipline).

(2)       In any event, Principle 1.02, inasmuch as it referred to appropriateness as the test for solicitors’ conduct both professionally and privately, was much too vague a provision with which to limit fundamental rights such as the freedom of expression.  The principle was not “prescribed by law” within the meaning of Article 39 of the Basic Law.  (Issue 2 : Is Principle 1.02 “prescribed by law” or is it too vague?)

13. In addition, a number of points were raised specifically in relation to each of the two complaints.  As to these, I have had the advantage of reading in draft the judgments of Woo VP and that of Cheung JA.  I agree with them and accordingly intend to deal just briefly with those issues under the following headings : - Issue 3 : The First Complaint, Issue 4 : The Second Complaint.

14. On the day of the appeal, we granted leave to the Respondent to raise an additional ground of appeal which was in the following terms : -

“3.    Having regard to the terms of the two Complaints made against the Respondent, namely, that he conducted himself in a manner likely to bring the profession into disrepute, the Tribunal was not entitled (as it did) to find those Complaints ‘proved in respect of only Principle 1.02 of the Hong Kong Solicitors’ Guide to Professional Conduct’ after it had found that Rule 2(d) of the Solicitors’ Practice Rules is not applicable.”

15. For the reasons contained in the judgment of Woo VP, I agree that this ground has no merit and in any event adds little to the other grounds of appeal raised by the Respondent.

Issue 1 : The freedom of expression and its limits in relation to professional discipline

16. Both parties have assumed the Basic Law, the International Covenant on Civil and Political Rights (the “ICCPR”) and the Bill of Rights to be relevant in the present case in considering the Hong Kong Solicitors’ Guide to Professional Conduct.  Neither party has questioned the limits of the application of these laws or the human rights concepts within them to professional bodies such as the Law Society.  As far as the Hong Kong Bar Association is concerned, it has been held by the Barristers Disciplinary Tribunal in Hong Kong Bar Association v Anthony Chua (1994) 4 HKPLR 637 that the Association is not a public authority for the purposes of section 7(1)(b) of the Hong Kong Bill of Rights Ordinance, Cap.383.  I express no view one way or the other on these matters nor on the question of the limits of the applicability of the Basic Law, the ICCPR and the Bill of Rights to disciplinary tribunals such as the SDT.  In the latter respect, the decisions of this Court in Dr Ip Kay Lo v Medical Council of Hong Kong [2003] 3 HKLRD 851 and A Solicitor v The Law Society of Hong Kong, unreported, CACV 302/2002, 18 February 2004, Court of Appeal, are relevant.  I am however content, given the parties’ approach just stated, likewise to assume the relevance and applicability of the Basic Law, the ICCPR and the Bill of Rights.

17. Article 27 of the Basic Law guarantees as a fundamental right the freedom of speech.  Article 39 of the Basic Law stipulates that the ICCPR remains in force in Hong Kong and requires that convention (among others) to be implemented through the laws of Hong Kong.  The relevant provision in the ICCPR engaged in the present case is Article 19 which states : -

“Article 19

1.    Everyone shall have the right to hold opinions without interference.

2.    Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3.    The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities.  It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a)   For respect of the rights or reputations of others;

(b)   For the protection of national security or of public order (ordre public), or of public health or morals.”

This provision is reproduced in Hong Kong legislation in Article 16 of the Bill of Rights.

18. The freedom of expression, like all fundamental rights contained in the Basic Law, must be given a generous and purposive meaning, for such rights lie at the heart of Hong Kong’s existence : - see Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 1, at 28D-29B.  Any restrictions on such rights must be closely scrutinized and fully justified.

19. The above said, the freedom of expression is not, however, an absolute one.  The limitations to it are contained in Article 19 of the ICCPR itself.  In addition, in paragraph 6 of the Preamble to the ICCPR, it is expressly stated that individuals have duties to “other individuals and the community to which he belongs”.

20. The specified limitations contained in Article 19 of the ICCPR are that any restrictions on the freedom of expression must be : -

(1)    “provided by law” (or, as Article 39 of the Basic Law states, “prescribed by law” – the two terms have the same meaning); and

(2)    necessary for respect of the rights or reputations of others, or for the protection of national security or of public order (ordre public) or of public health or morals.

These limitations are reproduced in Article 16 of the Bill of Rights and are permitted under Article 39 of the Basic Law.

21. These limitations have recently been extensively analyzed in two decisions of the Court of Appeal : HKSAR v Yeung May Wan & Others, unreported, HCMA 949/2002, 10 November 2004 and HKSAR v Leung Kwok Hung & Others, unreported, HCMA 16/2003, 10 November 2004.  I do not intend to repeat what has been dealt at length in the judgments in those cases, but for the time being, emphasize one point.  The said limitations to the freedom of expression reflect the need to balance the rights of the individual against the general interests of the community.  Here, I would repeat what Lord Bingham of Cornhill said in Brown v Stott (Procurator Fiscal, Dunfermline) and another [2003] 1 AC 681, at 704F-G  : -

“The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the [European Convention for the Protection of Human Rights and Fundamental Freedoms]”.

22. Issue 2 deals with whether Principle 1.02 satisfies the “prescribed by law” test.  I would therefore for the time being confine myself to the other limitations on the right of freedom of expression.

23. The two limitations most relevant here are the requirement to “respect the rights or reputations of others” and the protection of “public order (ordre public)”.  The first limitation is particularly pertinent when considering Principle 1.02 because the rationale behind this provision is clearly to ensure that the standing and dignity of solicitors within the community are preserved.  It will be noted that the two complaints made against the Respondent alleged that his conduct on the day in question was “likely to bring the profession into disrepute”.  I accept that the term “rights or reputations of others” in the ICCPR is principally intended to offer protection against defamatory remarks being made but I think the term to be sufficiently wide to apply to the general reputation of a professional body.  This is particularly so when the profession is seen in the context of the general community to which it belongs, an aspect I now address.

24. The term “ordre public” was extensively discussed in the Court of Final Appeal’s decision in HKSAR v Ng Kung Siu & Another (1999) 2 HKCFAR 442, at 457E-460E.  In particular, at 459I-460A, the Chief Justice said this : -

“The following points can be drawn from the materials referred to above.  First, the concept is an imprecise and elusive one.  Its boundaries cannot be precisely defined.  Secondly, the concept includes what is necessary for the protection of the general welfare or for the interests of the collectivity as a whole.  Examples include: prescription for peace and good order; safety; public health; aesthetic and moral considerations and economic order (consumer protection, etc).  Thirdly, the concept must remain a function of time, place and circumstances.”

25. I emphasize the reference to the need to protect the general welfare and interests of the community.  Lawyers, whether barristers or solicitors, occupy a central role in the administration of justice in Hong Kong.  Solicitors enjoy the respect of the community and, for most people, provide the only link with the law.  And, where citizens encounter the courts, it is often the solicitors who provide the only comfort with what is often regarded as a daunting experience.  In Nikula v Finland, Application No. 31611/1996, 21 March 2002, the European Court of Human Rights said this at paragraph 45 of its judgment : -

“45.    The Court reiterates that the special status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts.  Such a position explains the usual restrictions on the conduct of members of the Bar.  Moreover, the courts – the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence.  Regard being had to the key role of lawyers in this field, it is legitimate to expect them to contribute to the proper administration of justice, and thus to maintain public confidence therein (see the Schopfer v Switzerland judgment of 20 May 1998, Reports of Judgments and Decisions 1998-III, pp.1052-1053, paras 29-30, with further references).”

26. In Casado Coca v Spain [1994] 18 EHRR 1, the European Court of Human Rights was faced with a challenge made by a lawyer based on Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the equivalent to Article 19 of the ICCPR) against a warning that had been issued to him by the Barcelona Bar Council for advertising.  The warning was challenged without success in the Spanish Courts.  The Court upheld the decision of the Spanish Courts.  In doing so, the Court made a number of general observations : -

(1)    Rules of discipline and conduct (in that case the rules of the Barcelona Bar) were “designed to protect the interests of the public, while ensuring respect from members of the Bar” : - at paragraph 46.

(2)    Lawyers (in that case, the reference was to members of the Spanish Bar) have a special status giving them “a central position in the administration of justice as intermediaries between the public and the courts”.  It was this special position that justified the restrictions on them and the monitoring and supervising powers vested in their professional bodies.  See here : - paragraph 54.

27. I find the reasoning of the European Court of Human Rights in the two decisions compelling to justify the necessity and legitimacy for rules or principles of conduct such as Principle 1.02 to exist.  In my view, the public interest requires such rules of conduct to be in existence and indeed, I would even go so far as to say that the Law Society would be failing in its public duty and responsibilities were such rules not in place.

28. I would perhaps also add here that decisions of the European Court of Human Rights on provisions in the European Convention that bear similarity to the Basic Law and the ICCPR are of considerable persuasive authority.  As Sir Anthony Mason said in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381, at 401E-F (paragraph 59) : -

“59.        In interpreting the provisions of chap.III of the Basic Law and the provisions of the Bill [of Rights], the Court may consider it appropriate to take account of the established principles of international jurisprudence as well as the decisions of international and national courts and tribunals on like or substantially similar provisions in the ICCPR, other international instruments and national constitutions”.

29. For the above reasons, I am of the view that Principle 1.02 cannot be said to constitute an unjustifiable limitation on the freedom of expression enjoyed by solicitors such as the Respondent.  It does not of course prohibit solicitors from exercising this freedom at all (if it had purported to do so, very different considerations would arise), but seeks to restrict this freedom where inappropriate conduct is involved.

30. But is the standard of inappropriateness too vague?  It is this issue to which I now turn.

Issue 2 : Is Principle 1.02 “prescribed by law” or is it too vague?

31. Mr Mok submits that the requirement in Principle 1.02 that solicitors should conduct themselves “appropriately in professional and private matters” is so vague and uncertain so as not to be “prescribed by law” within the meaning of Article 39 of the Basic Law.  It is argued that this term is very much a subjective one and therefore uncertain.  Such subjective criteria were criticized in the Consultation Paper on Legal Services published by the Attorney General’s Chambers in 1995 : - see paragraph 6.7, 6.17 and 6.19(b).

32. The constitutional principle of legal certainty was dealt with in the judgment of Sir Anthony Mason in Shum Kwok Sher at 401J-403J (paragraphs 60-65) and by this Court in HKSAR v Leung Kwok Hung & Others.  Again, it is not necessary to go through what has been dealt with at some length in the two decisions but I would emphasize the following : -

(1)    Any restriction on a fundamental freedom must be formulated with sufficient precision so that a person may be able to regulate his conduct and foresee to a reasonable degree the consequences that any given action on his part may entail.  However, consequences need not be foreseeable with absolute certainty for this is unattainable.

(2)    The need for certainty, albeit desirable, must however be balanced against the danger of excessive rigidity (where provisions are so inflexible as to be unable to keep pace with changing circumstances).  In the case of the conduct of professionals such as solicitors in both their professional and private capacities, this balance is particularly acute.

(3)    As the European Court of Human Rights said in Hashman and Harrup v United Kingdom (2000) 30 EHRR 241, at 256 (paragraph 31) : -

“The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed.”

33. In my judgment, Principle 1.02 is not too vaguely worded so as to offend against the principle of certainty : -

(1)    It is important to construe the terms “should conduct himself appropriately in professional and private matters” in context.  Principle 1.02 is to be found in that part of the Solicitors’ Guide to Professional Conduct under the heading “PRINCIPLES OF PROFESSIONAL CONDUCT”.  It can therefore readily be seen that it is in the context of the conduct of solicitors (and correspondingly, misconduct) that the principle operates and against which the appropriateness of a solicitor’s conduct in professional and private matters is to be gauged.

(2)    The appropriateness of a solicitor’s conduct is also to be seen in the context of his being an officer of the Court.  Principle 1.02 itself (which contains an important commentary) makes it clear that certain standards of behaviour are expected of a person who is an officer of the Court and also the member of a profession (I add here an honourable profession at that).

(3)    Seen in the context I have just referred to, Principle 1.02 is in my view readily understandable and of sufficient clarity to enable solicitors to regulate their conduct.  Though the terms used are wide, this is necessary given the flexibility that is required to regulate the conduct of solicitors.  Solicitors, like everyone else, are part of the community in which the people in Hong Kong live and work.  The myriad of situations a solicitor will encounter in the course of his professional and private life cannot easily nor comprehensively be identified.  A large degree of flexibility is therefore required in any rules to ensure the proper standards of behaviour are adhered to.  The point I have just made as to the desirability of having flexibility in relation to professional conduct situations was precisely the point made by the Privy Council in John Roylance v General Medical Council [2000] 1 AC 311 at 330 F-H per Lord Clyde.

(4)    Inappropriate conduct is conduct that is unbefitting to an honourable profession, a profession in which trust is reposed by the public and in which dignity is to be maintained.  It is a form of professional misconduct (see paragraph (1) above) which itself is conduct “which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency” : - see Myers v Elman [1940] AC 282, at 288-9 per Viscount Maugham (cp. here section 2(2) of the LPO).  The complaints made against the Respondent in the present case charge that his conduct was such as to be likely to bring the profession into disrepute.  This is yet another way of connecting the appropriateness of behaviour or conduct to the standards expected of officers of the Court, to the fact that the solicitors profession is an honourable one and this profession’s role in the community.

(5)    Finally in this context, I would perhaps just add that for many years, the Courts and professional disciplinary bodies have dealt with concepts such as “conduct disgraceful to him in a professional respect” (see for example Marten v Royal College of Veterinary Surgeons’ Disciplinary Committee [1966] 1 QB 1) and “serious professional misconduct” (see for example Roylance) without any difficulties caused by vagueness.  The words “should conduct himself appropriately in professional and private matters” should likewise cause few difficulties.  They are neither “unintelligible” (see here R vNova Scotia Pharmaceutical Society, (1992) 74 CCC (3d) 289, at 310B-C) nor “incomprehensible” (see Committee for the Commonwealth of Canada v Canada (1991) 77 DLR (4th) 385, at 438).

34. These general objections disposed of (they being Mr Mok’s main arguments in this appeal), I now deal with the other aspects of the individual complaints.

Issue 3 :The First Complaint

35. In dealing with this complaint, the SDT bore firmly in mind the submission that the Respondent was exercising his freedom of expression but saw the need also to recognize the fact that he was a professional solicitor.  As the Chairman said in the Findings, “The Respondent cannot be right in trying to arbitrarily distinguish his conduct as complained of him as a solicitor and of him as a man in the street/an individual citizen of the community”.

36. The Respondent’s behaviour in wearing only swimming trunks in public holding a banner was regarded by the SDT as inappropriate behaviour.  Tribunals such as the SDT are in the best position to adjudicate on the appropriateness of a fellow professional’s behaviour.  This has long been recognized in Hong Kong :  see The Law Society of Hong Kong v A Solicitor, unreported, Civil Appeal 130/1995, 9 November 1995, Court of Appeal.  As Chan J (now Chan PJ) said in that case, “There is very good sense in the practice that the propriety of the conduct of a professional man is to be judged by his peers”.  The SDT referred to this case in the Findings.  It is clear that the SDT assumed the responsibility of deciding whether or not the Respondent’s behaviour was appropriate.  Further, although Mr Mok seized upon references in the Findings to newspaper reports to suggest that the SDT may have taken into account facts which were extraneous to the agreed facts, I think that when the reasons of the SDT are read as a whole, it is reasonably clear that it based its findings on the agreed facts.  Specific reference was made to paragraphs 5 and 6 of the agreed facts (see paragraph 7 above) which refer to the Respondent having worn only swimming trunks and carrying a banner.  I would add here that the demonstration that was held on 1 March 2001 was in the context of the Respondent seeking to flout (certainly not accepting) rulings that had been made that the hearing in the disciplinary proceedings he faced that day was to be held in camera.

37. We are only entitled to disturb the SDT’s findings if they are plainly wrong : - see Re a Solicitor [1988] 2 HKLR 137, at 144.  For my part, I am far from satisfied this is the case.  On the contrary, I agree with the SDT’s findings on the first complaint.  The Respondent’s behaviour was unbecoming, undignified and completely inappropriate given his position as an officer of the Court and the member of an honourable profession.  Much was made by Mr Mok of the lack of evidence from members of the public as to whether what the Respondent did was likely to bring the profession into disrepute.  I doubt whether it was suggested this was some sort of evidential requirement every time a complaint is made to this effect.  If it was so suggested, I would reject it.  The determination of whether or not any act is likely to bring the profession into disrepute is a matter entirely for the Tribunal to determine on the basis of the facts before it.  It is not crucially dependent on evidence being adduced of what members of the public may think any more than where the issue of liability in a negligence case has to be determined by reference to the reasonable man on the Star Ferry.

38. For the above reasons, I am of the view that the SDT’s findings on the first complaint cannot be impugned.

Issue 4 : The Second Complaint

39. The gravamen of this complaint was seen by the SDT to be the invitation to other solicitors to attend a hearing that had been ruled (on at least two occasions) should be held in camera.  The SDT said this in the Findings : -

“Although we take lightly The Respondent’s disparaging and improper remarks against the Law Society, we are of the opinion that for a solicitor, being an officer of the Court, very high standards of behaviour, ethical too apart from professional and private, are expected of him from the court, from his fellow solicitors and from the public including abiding by and respecting rulings made by a Tribunal.  The Respondent’s failure of abiding by the ruling was part and parcel of the conduct inappropriate of a solicitor”.

40. Again, I cannot fault the reasoning of the Tribunal here and find myself in total agreement with the sentiments expressed by it.  A solicitor is an officer of the Court.  He is expected to abide by rulings made by a court of law or, in the present case, by a statutory tribunal.  The public expects lawyers at least to abide by rulings.  If there is dissatisfaction with a ruling, any appellate or review measures can be taken.  If the law is somehow deficient, again appropriate measures may be taken or representations can be made to the authorities concerned.  What legal practitioners cannot do is to flout rulings that are made.  Unfortunately, this was what the Respondent was inviting fellow practitioners to do.  Mr Mok sought to argue that no solicitor receiving the Circular would actually have turned up (at least this had not been proved by the Applicant).  This misses the point because the focus of the complaint was not what would have happened had any solicitor turned up but the Respondent’s conduct in sending out the Circular in the first place.  In another sense, Mr Mok’s arguments here reinforce the complaint against the Respondent in that it impliedly recognizes the fact that most solicitors would not have turned up at the disciplinary hearing on 1 March 2001 for the very reason of this being in contravention of the express rulings made by the Tribunal (and of section 9B(4) of the Ordinance).

41. Mr Mok also submitted that as the Circular was not directed at members of the public but only issued to other solicitors, somehow the complaint that this act was likely to bring the profession into disrepute could not be made out.  I confess not easily being able to understand this point.  In determining whether or not conduct is likely to bring the profession into disrepute, a disciplinary tribunal is not confined to conduct that is directed at the public in general.  It looks to conduct that, were it known by the public, would or might bring the profession into disrepute.

42. As with the first complaint, again I am of the view that the SDT’s findings cannot be impugned.

Conclusion

43. For the above reasons, I would dismiss the appeal and make a costs order nisi that the Respondent is to pay the Applicant’s costs of this appeal, such costs to be taxed if not agreed.

44. Lastly, it was faintly suggested by Mr Mok that perhaps the penalties that were imposed on the Respondent were too harsh.  In my view, given the nature of the complaints and in particular the gravity of the second complaint, the Respondent can consider himself quite fortunate that the penalties imposed were not heavier.

Hon Woo VP :

Introduction

45. The respondent, who was at all material times and is a member of the Law Society, the applicant, and a solicitor in active private practice in Hong Kong, faced two complaints before the Solicitors Disciplinary Tribunal (“Tribunal”).

46. Both complaints were in respect of the respondent’s conduct that took place on 1 March 2001.  Both complaints were that he conducted himself in a manner likely to bring the profession into disrepute in breach of Principle 1.02 of the Hong Kong Solicitors’ Guide to Professional Conduct (“Principle 1.02”) and Rule 2(d) of the Solicitors’ Practice Rules (“Rule 2(d)”).

47. The particulars of his conduct under the first complaint were that:

(a)	at approximately 2.30 pm outside Wheelock House, Pedder Street, he stood demonstrating in the street wearing no clothes other than his swimming trunks; and
(b)	he held a banner covering his lower parts with a template that stated both in English and Chinese “legal right are inborn mine too”.

48. The particulars of his conduct under the second complaint were as follows:

(a)	on or about 1 March 2001, he published or caused to be published a circular in his name which was distributed to members of the profession;
(b)	the circular stated that a protest would be staged outside Wheelock House at 2.30 pm against what he had alleged to be an unjust and unfair conduct of the Law Society;
(c)	he invited members of the profession to attend the disciplinary hearing notwithstanding that there were previous rulings by the Tribunal that the hearing was to be held in camera; and
(d)	the circular contained disparaging and improper remarks against the Law Society.

49. The hearing in camera referred to the hearing on 1 March 2001, starting at 3 pm. 

50. The hearing of the complaints, the subject matter of the present proceedings, took place before the Tribunal on 4 April, 6 June and 10 September 2003.  On 10 September 2003, the Tribunal found the first and second complaints against the respondent proved for contravening Principle 1.02, and proceeded to order the respondent to pay a fine of $90,000 in respect of the first complaint and $40,000 in respect of the second complaint.  The Tribunal further ordered that the costs of and incidental to the proceedings, including all prior enquiries and investigations in relation to the matter and including but not limited to costs of the Tribunal, the Tribunal Clerk and the applicant, be taxed on a party and party basis with a two-thirds contribution from the respondent.

51. The respondent now appeals.

Grounds of Appeal 

52. By the re-amended notice of appeal, the respondent has raised three grounds of appeal, as follows:

(1)	The Tribunal erred in law in holding that respondent had brought the profession into disrepute by reason of conduct, which not being “conduct in the course of practising as a solicitor”, constituted breaches of Principle 1.02, on various bases in respect of each of the complaints.
(2)	The Tribunal should have held that:
	(a)	The respondent, albeit a solicitor, does enjoy the fundamental right and freedom of speech and expression under Article 16 of the Hong Kong Bill of Rights and Article 27 of the Basic Law.
	(b)	Objective evidence from the community ought to have been adduced to establish that the respondent’s conduct complained of had brought the profession into disrepute.
	(c)	The Tribunal was obliged, as a matter of law, to take into account and/or give effect to the views and standard of the community as a whole on the conduct of the respondent.
	(d)	The Tribunal ought to have considered the matter from the point of view of persons outside the legal profession and not or not merely that of persons within the legal profession.
	(e)	The circulation of a letter only to members of the profession would not, as a matter of law and fact, have the effect of bringing the profession into disrepute.
(3)	Having regard to the terms of the two complaints, namely that the respondent conducted himself in a manner likely to bring the profession into disrepute, the Tribunal was not entitled (as it did) to find those complaints proved in respect of only Principle 1.02 [after it had found that Rule 2(d) is not applicable] (the part in parenthesis was deleted when counsel addressed us).

53. The bases that are relied on as the Tribunal’s errors of law alleged in ground (1) are varied.  Some are repetitive of the matters raised in ground (2).  The others contend that the Tribunal erred in law by placing a wider restriction on the respondent’s right and freedom of expression than that applicable to a man in the street because the respondent was a solicitor and an officer of the court, and by the Tribunal’s examination of the respondent’s conduct in the light of the fact that he was a solicitor.

Ground (3)

54. Ground (3) can be disposed of first.  It was added by way of a re-amendment to the notice of appeal.  Leave was granted to the respondent when the hearing commenced.  As originally drawn, this ground was abstruse and gave me the impression that what was challenged was that there was the inconsistency between the finding by the Tribunal that the respondent was not in breach of Rule 2(d) and its finding that he was in breach of Principle 1.02, or that Principle 1.02 could not stand alone because of the way the complaints were framed, as stated in paragraph 2 above.

55. Rule 2 of the Solicitors Practice Rules provides:

“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 –

(a)    his independence or integrity;

(b)    the freedom of any person to instruct a solicitor of his choice;

(c)    his duty to act in the best interests of his client;

(d)    his own reputation or the reputation of the profession;

(e)    a proper standard of work; or

(f)    his duty to the court.”

56. This Rule 2 appears in terms identical to Principle 1.01 under the heading of Principles of Professional Conduct in the Hong Kong Solicitors’ Guide to Professional Conduct.  Principle 1.02 that follows provides:

“1.02    Conduct subject to discipline

A solicitor is an officer of the court (see section 3(2) of the Legal Practitioners Ordinance (Cap. 159), and should conduct himself appropriately in professional and private matters.”

57. It can be seen that Rule 2(d) (Principle 1.01) deals with a solicitor’s conduct “in the course of practising as a solicitor”, whereas Principle 1.02 deals with his conduct in both “professional and private” matters. 

58. Both complaints related to the respondent’s conducts that were “likely to bring the profession into disrepute” which were alleged to be in breach of Principal 1.02 and Rule 2(d).  It is therefore clear that the complaints related only to the respondent’s conducts that were alleged to be likely to bring the profession into dispute, which were within the ambit of Rule 2(d) and also had the effect of circumscribing the ambit of the word “appropriately” in Principle 1.02.  The way that the complaints were framed had the effect of limiting the scope of the inappropriate conduct being alleged to be in breach of Principle 1.02.  In my judgment, the complaints directing at the breach of Principle 1.02 were properly framed in making it clear to the respondent that his conducts that were subject to the complaints were inappropriate and likely to bring the profession into disrepute.  This fairly and adequately informed the respondent of the true nature of the complaints against him as regards his alleged breach of Principle 1.02. 

59. The Tribunal found that there was no breach of Rule 2(d), simply because Rule 2(d) only directs at conducts of a solicitor, in the course of practising as a solicitor, and the Tribunal found that the conducts of the respondent complained of and as proved against him did not amount to conducts in the course of his practising as a solicitor.  The basis of the Tribunal’s finding that there was no breach of Rule 2(d) was not that the respondent’s conducts complained of were unlikely to bring the profession into disrepute.  The Tribunal found him to be in breach of Principle 1.02 because the conducts of the respondent as found were in the course of the respondent’s private matters, as opposed to in the course of his practice as a solicitor.  The finding that the respondent was not in breach of Rule 2(d) on the one hand and that he was in breach of Principle 1.02 was not at all inconsistent.  There is no logic to support the contention that as the Tribunal had found that Rule 2(d) did not apply, they had to find similarly that there was no breach of Principal 1.02.

60. The lack of logic might have been the reason why Mr Mok, on behalf of the respondent, deleted the part of the ground in parenthesis when he sought leave before us.  He clarified what he meant by this ground.  His point is that while the words in both complaints “likely to bring the profession into disrepute” are not contained in Principle 1.02 though such words form part of Rule 2(d), those words appeared as particulars of the “inappropriateness” of the conducts complaint of.  He contended that the Tribunal, however, did not make any specific finding regarding the second complaint that the conducts of the respondent in issuing the circular was likely to bring the profession into disrepute, and therefore the second complaint, as thus particularized, could not have been found proven.

61. This contention is similarly without substance, because the Tribunal was obviously considering all along the inappropriateness of the respondent’s conduct in the second complaint in the context of whether it was likely to bring the profession into disrepute.  It was not necessary for the Tribunal to expressly state at every stage of its consideration that the conduct had that effect, especially at the time when it concluded that it was inappropriate.

62. Ground (3) fails.

Grounds (1) and (2)

(a) The freedom of expression

63. The main thrust of grounds (1) and (2) is the respondent’s reliance on his freedoms of speech and expression enshrined in Article 16 of the Hong Kong Bill of Rights and Article 27 of the Basic Law.

64. Article 27 of the Basic Law provides:

“Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of a assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”

65. Article 16 of the Bill of Rights provides:

“(2)    Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3)    The exercise of the rights provided for in paragraph (2) of this Article carries with it special duties and responsibilities.  It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary–

            (a)    for respect of the rights or reputation of others; or

            (b)    for the protection of national security, or of public order (ordre public), or of public health or morals.”     

66. There is no doubt, and the applicant does not seek to gainsay, that a solicitor, as a member of the community of Hong Kong, is entitled to protection of his freedom of expression and freedom of speech.  For ease of reference, and since for the purpose of these proceedings, freedom of expression covers freedom of speech, I shall use the term freedom of expression to cover both freedoms in this judgment.  The applicability of the Bill of Rights and Article 35 of the Basic Law to the Tribunal in its exercise of powers was recently affirmed by this Court in A Solicitor v The Law Society of Hong Kong, CACV 302/2002 (18 February 2004), see paras 76, 109 and 214.

67. There are two aspects of the freedom of expression that has to be examined in this case, namely, whether Principle 1.02 is a necessary and legitimate restriction of this freedom, and secondly, if it is, whether its applicability by the Tribunal in the present case was proper.

68. Mr Mok contends that Principle 1.02 is too vague and uncertain, with little guidance as to its applicability to members of the profession, including the respondent, wherefore it is an improper restriction of the freedom.

69. Mr Mok submits that the word “appropriately” in Principle 1.02 is so vague and constitutes a subjective criterion on the part of members of the Tribunal that it falls foul of the requirement that any restriction of a solicitor’s freedom of expression must be prescribed by law.

70. He refers us to Shum Kwok-sher v HKSAR [2002] 2 HKLRD 793 at 810-821 in support.  That case related to the appellant’s challenge of the propriety of the offence of “misconduct in public office” for being too vague and uncertain.  In Mason NPJ’s judgment, with which all judges of the Court of Final Appeal agreed, a number of passages are relevant to the consideration of the appeal before us, as follows:

“60.    International human rights jurisprudence has developed to the point that it is now widely recognised that the expression ‘prescribed by law’, when used in the context such as art.39 of the Basic Law, mandates the principle of legal certainty.  This principle is likewise incorporated in the expression ‘according to law’ in art.11(1) of the Bill.”

“64.    In Hashman and Harrup v. United Kingdom (1999) 30 EHRR 241, where conduct contra bonos mores was held to be too vague and imprecise to justify a restriction on the applicants’ liberty of action in the form of an order binding them to keep the peace and be of good behaviour, the European Court of Human Rights pointed to the tension between requiring a law to be formulated with sufficient precision and the desirability of avoiding rigidity in the law.  The Court said (at para.31):

The Court recalls that one of the requirements flowing from the expression ‘prescribed by law’ is foreseeability.  A norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct.  At the same time, whilst certainty in the law is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances.  The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed.” 

“89.    …a law must be adequately accessible in the sense that it gives a person an adequate indication of the law relevant to his situation so that (if need be with advice) he can regulate his conduct.  On the other hand, it is well settled that the degree of precision required will vary according to the context of the law.  In Sabapathee v Mauritius, Lord Hope of Craighead, speaking for the Privy Council, said (at p.1843):

But the precision which is needed to avoid [striking down as unconstitutional] will necessarily vary according to the subject matter.  The fact that a law is expressed in broad terms does not mean that it must be held to have failed to reach the required standard.  In an ideal world it ought to be possible to define a crime in terms which identified the precise dividing line between conduct which was, and that which was not, criminal.  But some conduct which the law may quite properly wish to prescribe as criminal may best be described by reference to the nature of the activity rather than to particular methods of committing it.  It may be impossible to predict all these methods with absolute certainty, or there may be good grounds for thinking that attempts to do so would lead to undesirable rigidity.  In such situations a description of the nature of the activity which is to be penalised will provide sufficient notice to the individual that any conduct falling within that description is to be regarded as criminal.  The application of that description to the various situations as they arise will then be a matter for the courts to decide in the light of experience.”

71. Mr Mok also refers us to Elloy de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 77C-79A, for the proposition that the freedom of expression is delicate and vulnerable, as well as supremely precious in our society, that in fairness it should not be left to the hazard of individual decision by the members of the Tribunal, that the guidance given to solicitors must be sufficiently precise and clear, and that any restriction of the freedom can only be made with narrow specificity.

72. On the other hand, Mr Carolan, on behalf of the applicant, refers us to Casoda Coca v Spain [1994] 18 EHRR 1, where the European Court of Human Rights considered the Spanish Bar’s rules in restriction of advertising by Spanish lawyers.  Mr Carolan relies on the observations of the court that the restriction of advertising was “designed to protect the interests of the public while ensuring respect from members of the profession … taking into account their special rights and position as officers of the court”, and the Spanish “Bar Authorities and Courts were in a better position than an international court to determine how the balance should be struck between protection of the requirements of the public administration of justice, the dignity of the legal profession, the right of everyone to receive information about legal existence and affording lawyers the possibility of advertising their practices” on the one hand, and an individual lawyer’s unrestricted freedom to advertise on the other.

73. In my judgment, as is expressly provided for in Article 16 of the Bills of Rights, the freedom of expression may be subject to certain restrictions.  Although Principle 1.02 was not designed specifically to restrict the freedom of expression, it does, as in the present case, impose such a restriction insofar as the conduct subject to complain is an exercise of that freedom.  While generally speaking, an “appropriate” conduct may appear to be vague, the meaning of appropriateness was in the present case circumscribed by “conduct likely to bring the profession into disrepute” as specified in the complaints.  In other respects, the word “appropriateness” can also be viewed together with Principle 1.01 which is an identical repetition of Rule 2(d).  I am not saying that the word “appropriately” can only be read in conjunction with the various items of conducts set out under Rule 2(d); however, the items will afford ready guidance to members of the solicitors’ profession.  As such, I am not persuaded that Principle 1.02 is so vague or uncertain that no clear guidance was afforded to solicitors to know what may amount to professional misconduct or unprofessional conduct.  Moreover, any member of the profession should be able to discern what is and what is not appropriate in accordance with the prevailing circumstances.  Circumstances may change, social norms and even practising norms may change with time, and “appropriateness” of conduct has the flexibility that can cater for these changing circumstances and, indeed, the changing views of members of the profession on conducts of its members.  It is impossible to define all kinds of conduct that will be considered inappropriate, just as it is impossible to define all kinds of unprofessional conduct and professional misconduct.

74. After all, a solicitor’s conduct is normally judged by his peers of good standing and competence, those whose reputation will be affected by the conducts of others in the same profession.  What better hands would he expect to be in when questions of his conduct arise for consideration, also with the remedy of an appeal to the Court of Appeal when he doubts whether his peers that sat in judgment on him had reached a correct or proper decision.

75. In its written decision of 10 September 2003, the Tribunal cited the following two decisions of this Court on appeal from the Solicitors Disciplinary Tribunal in support of the proposition that “Members of the profession are indeed the best people to judge their own peers” that it adopted.

76. In the case of the Law Society of Hong Kong v A Solicitor, Civil Appeal No. 130 of 1995 (9 Nov 1995, unreported), Nazareth VP said:

“…it is also pertinent to note the limited role of this Court on appeal.  It is for the Solicitors Disciplinary Tribunal to deal with such disciplinary matters and to decide whether the conduct was unbefitting a solicitor judged by the standards which responsible legal opinion demanded of its own profession.  A decision to such effect will only be interfered with on appeal if plainly wrong.  Re a Solicitor [1988] 2 HKLR 137 at 144A-E and In re A Solicitor (1924) 93 LJKB 761.  Furthermore, as Channell J said In re A Solicitor, ex parte the Law Society (1913) 29 TLR 354 at 355, with reference to persons in a position similar to the Tribunal have:

‘… These gentlemen were the most competent to decide upon professional matters of this kind, …’

That is an important consideration that has been repeatedly recognised by the courts.”

77. Also in A Solicitor v The Law Society of Hong Kong, Civil Appeal No. 2 of 1993 (7 May 1993, unreported), Bokhary JA (as he then was) observed:

“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.”

78. With respect, I agree with these observations.  They have been applied in Hong Kong and they are consonant with the views of the European Court of Human Rights in Casoda Coca v Spain cited above.  In particular, in the present context, the word “appropriately” in Principle 1.02 prevents excessive rigidity so that the provision can cater for and keep pace with changing circumstances and the changing attitude of members of the profession in the light of changing social circumstances and attitude of the community.  It enables the profession itself to gauge the conduct of its professional colleagues in accordance with such ever-changing circumstances. 

(b) Was the freedom of expression applied?

79. Now I turn to Mr Mok’s contention that the Tribunal erred in law in the following passage in that the Tribunal excluded the freedom of expression that should be enjoyed by the respondent from its consideration:

“… as a solicitor is an officer of the court, he should conduct himself appropriately in professional and private matters as stated in Principle 1.02 of the Hong Kong Solicitors’ Guide to Professional Conduct.  We are here dealing with the conduct of a professional man, a solicitor, not a case where the high-sounding principle of freedom of an individual citizen is at issue.  The cases submitted by the Respondent deal mainly with freedom of expression (Ng Kung Siu), free speech (the US case of Fred H. Edenfield), human rights and fundamental freedoms and permissible restrictions prescribed by law (Shum Kwok Sher as well as Gurung) : a generous approach should be adopted to the interpretation of those rights while restrictions to them should be narrowly interpreted.  All these cases [involving freedom of expression] would be relevant if the Respondent is a man in the street but not a professional man and being a solicitor makes him more than an ordinary professional.  He is also an officer of the court.”

80. However, the passage above must be read in its context.  The Tribunal went on:

“From the cases produced by the prosecution, notably New South Wales Bar Association v Cummins [2001] NSWCA 284 (Professional misconduct may include acts which do not occur in the ordinary course of practice but which are sufficiently closely connected to practice or which manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice.) and Barristers’ Board v Darveniza [2000] QCA 253 (On the Respondent’s behalf, it was submitted that the relevant acts happened in private, and that such acts did not scandalise the public unless and until there was a conviction.  That submission is far from convincing ….  What is relevant are the acts committed by the respondent and the extent to which they reflect upon his character as a barrister who is expected to play an important role in the administration of justice.), the cardinal principle that a professional man should behave properly is clear and we are of the opinion that he should behave more cautiously than a man in the street because of the particular constraint over him for rules meant to be observed whether in public or private as the profession requires of him.  The Respondent cannot be right in trying to arbitrarily distinguish his conduct as complained of him as a solicitor and of him as a man in the street/an individual citizen of the community.  The Respondent seems to have been trying to get the best of both worlds to suit his purposes and hopes to be benefited from two incompatible sets of ideas and circumstances, i.e. those of a solicitor who is additionally constrained and those of an individual citizen of the community who, being not a professional, is not required to be similarly constrained.  The Respondent is not entitled to do so as a solicitor. … We find that the conduct was in breach of the said Principal 1.02.”

81. What I understand the Tribunal to be saying is that although a man in the street, not being a member of the profession, was not subject to Principle 1.02, the respondent, as a solicitor, was subject thereto.  Members of the profession expected the respondent, a fellow solicitor, to abide by the rules imposed by their professional organisation, which rules might impose a restriction on his freedom of expression to which, but for the fact that he was a solicitor, he would not be so subject as a man in the street.  The restriction imposed on the respondent was more stringent than that to which an ordinary citizen would be subjected.  As a solicitor, and an officer of the court, the respondent should behave more cautiously than a man in the street and heed such restrictions. 

82. The Tribunal is a statutory body set up by the Legal Practitioners Ordinance, and its members were appointed by the Chief Justice in accordance with that Ordinance.  They are entrusted with the power to deal with professional discipline.  As observed by Nazareth VP and Bokhary JA, the Tribunal is in a uniquely advantageous position to discharge its duty regarding professional discipline and to set and maintain professional standards.  Unless the Tribunal’s decision is totally unreasonable or is plainly wrong or is clearly against any principle of law, it would be ill advised for this Court to interfere.  The Tribunal, when sitting in discharge of its functions and duties on professional disciplinary matters, represents the view of the profession over the conduct of one of its professional colleagues.  Moreover, the Tribunal is in the most advantageous position to gauge the effect of such conduct on the profession and the public from the perspective of the profession itself.

(c) The first complaint

83. Under the first complaint, the conduct involved was that the respondent was demonstrating outside Wheelock House in Central at about 2.30 pm on a working Thursday, almost naked, save that he covered his lower parts in swimming trunks with a template bearing a statement in both English and Chinese “legal right are inborn mine too”.  The place was as public a place and one can expect: it was a busy area with a large number pedestrians and heavy vehicular traffic.  While such a conduct was not in contravention of the criminal law relating to indecency in a public place, I would venture to say, as was apparently the view of the Tribunal, that conduct would adversely affect the public’s view of the solicitors’ profession and even render members of the profession to becoming a laughing stock in the community.  I have no hesitation to say that the Tribunal was correct in finding that the respondent’s conduct in that manner was likely to bring the profession into disrepute.

84. I do not agree with Mr Mok’s contention that the Tribunal was obliged, in the absence of objective evidence from the community regarding the respondent’s conduct, not to find the respondent’s said conduct to be in breach of Principle 1.02.

85. Mr Mok complains that the Tribunal took into account inadmissible evidence of newspaper clippings on the respondent’s almost naked demonstration as evidence of the public’s view on the subject.  He points to a passage in the Tribunal’s findings where the Tribunal referred to the newspaper clippings exhibited to the affidavit for laying the complaints on behalf of the Law Society, and submits that the evidence before the Tribunal was and should be limited to the Agreed Facts made between the parties.  In fact, these clippings were referred to by Mr Mok when he addressed the Tribunal on behalf of the respondent.  He carefully made known to the Tribunal that he referred to the clippings not as evidence but to demonstrate that there was a need to adduce evidence to show whether or not the image of the profession was brought into disrepute generally.

86. I consider that the Tribunal’s comments on those clippings were to counter the arguments in Mr Mok’s submissions.  It is sufficiently clear from the passage below that the Tribunal was merely looking at the agreed facts and applying its own knowledge of the profession’s standards to the facts as agreed:

“Paragraphs 5 and 6 of the Agreed Facts referred.  Such conduct was likely to compromise or impair Respondent’s own reputation or the reputation of the profession.”

(d) The second complaint

87. Another contention that needs to be dealt with is that the sending of the circular, the subject of the second complaint, only to members of the profession would not, as a matter of law and fact, have the effect of bringing the profession into disrepute.  What I understand the contention to mean is that even if its contents were inappropriate, since the circular was sent only to members of the profession and there was no evidence that it had come to the notice of any member of the public, it would not have the effect of bringing the profession into disrepute in the eyes of the public.  Mr Mok also places great reliance on the finding of the Tribunal that solicitors who received the circular were unlikely to attend the hearing despite the invitation.

88. I am afraid I do not agree.  Although the addressees of the circular were limited to members of the profession, it did contain disparaging and improper remarks against the Law Society.  It alleged that the Law Society was unjust and unfair and contained an invitation to fellow solicitors to attend the hearing fixed at 3 pm on the very day.  The invitation was, in my view, in patent disregard of the ruling of the Tribunal that the hearing of the then complaints against the respondent was to be held in camera.  While right-thinking members of the profession might well have disregarded the remarks against the Law Society and the invitation in the circular, even these members could have harboured the feeling that the dignity of the Tribunal and of the profession as represented by the Law Society and the respect for them would be undermined or lowered.  Some might think that they could openly defy the rulings of the Tribunal, as the respondent did.  Some might form the view that the Law Society was unfair and unjust and was oppressive to its members and bureaucratic, as the circular stated.  I have little doubt that the Law Society and the solicitors’ profession can thus be brought into disrepute, although the circular was only sent to its own members.  The conduct was to be judged against the discipline of the profession for ensuring respect for it and protecting its dignity.  Where the conduct undermines that respect and dignity, it adversely affects the reputation of the profession and its members.

89. Mr Mok has also strenuously argued that the Tribunal’s ruling that the hearing was to be in camera did not impose any injunction on the respondent against sending an invitation to his fellow members to attend the hearing.  He argues that the ruling of conducting the hearing in camera was only made to announce the Tribunal’s own procedure, as opposed to an order prohibiting the respondent from inviting other persons to attend the hearing.  He refers us to a passage in para 52/1/16 of the 2004 Hong Kong Civil Procedure regarding contempt of court for breaching a court order that states:

“Any ambiguity in the order or undertaking will be resolved in favour of the alleged contemnor …”

90. That, of course, is an indisputable rule, but it only applies to contempt of court.  Here, we are dealing with a conduct of the respondent who is a member of the solicitors’ profession and an officer of the court.  He well knew that the Tribunal had made a ruling of hearing in camera after hearing his objections to that course being taken.  By his circular to fellow solicitors, he intended or at least hoped that they would attend in the face of the Tribunal’s ruling.  Mr Mok argues that the invitation could not be flouting the ruling because other solicitors could just attend and apply or make a request to the Tribunal for allowing them to stay in at the hearing if they wished, and it was then entirely a matter for the Tribunal to decide whether their requests would be acceded to.  The Tribunal knew full well that it was not dealing with a situation of contempt of court, it was dealing with the conduct of the respondent in order to decide whether it constituted inappropriate conduct that was likely to bring the profession into disrepute.  The respondent is a solicitor and an officer of the court.  He could find the ruling wrong in law and against principle and disagree with it, just as he can disagree with any judgment of the courts and consider it wrong in law, principle or fact.  However, his invitation was to his fellow solicitors to attend the hearing, without intimating anything of the necessity of applying or requesting the Tribunal to allow them to stay in, contrary in fact to what Mr Mok has argued.  It is clear that the respondent intended other members of the profession to attend the hearing so as at least to disturb the Tribunal.  Even if the attending members requested the Tribunal to allow them to stay at the hearing in the most civil manner, the proceedings would have to be disrupted for the Tribunal to deal with such requests.  As a solicitor and an officer of the court, the respondent should have well known that his invitation to other members of his profession in the face of the ruling was a wanton and disrespectful disregard of the ruling and a manifest attempt to cause disruption to the proceedings.  Moreover, the letter stated that the Law Society was unjust and unfair in “insisting on a secret hearing when the Law Society had right at the outset publicised its intention to institute and the fact of Disciplinary Proceedings against me”.  The use of the term “secret hearing” helps demonstrate the attitude of the respondent and his intention as aforesaid.

91. The gravamen of the complaint relating to the circular was not whether there was a risk of other solicitors accepting the respondent’s invitation to attend the hearing, it was his intention and conduct of sending the circular that was inappropriate, as found by the Tribunal.  In all the circumstances, I am not persuaded that the Tribunal was wrong to so find.

92. Grounds (1) and (2) fail.

The last ground

93. In the afternoon of the hearing before us, Mr Mok raised a new ground, which is that where this Court finds that the Tribunal had erred in any respect, then even if this Court finds that the Tribunal’s findings could otherwise be supported, the disciplinary offences that the respondent had committed were so minor that no sanction should have been imposed by the Tribunal.  Having stated my views above, this ground necessarily fails.

Conclusion

94. For the above reasons, I would dismiss the appeal.  I agree with the order for costs as proposed in paragraph 43 of the CJHC’s judgment.

Hon Cheung JA :

The real issue

95. The solicitor clearly had a right to demonstrate in public and send a circular to his fellow lawyers.  These are his right of expression which is guaranteed by the Basic Law and the Hong Kong Bill of Rights Ordinance.

96. What is at issue is that this right of expression is subject to legitimate limitation.  The limitation is provided by Rule 2 of the Solicitors’ Practice Rules and Principle 1.02 of the Hong Kong Solicitors’ Guide to Professional Conduct both of which are to ensure that this exercise of the right of expression does not constitute a misconduct in his professional duty or in private matters.

Rule 2

97. Rule 2 provides that :

‘A solicitor shall not, in the course of practising as a solicitor, do or permit to be done on his behalf anything which compromises or impairs or is likely to compromise or impair—

(a)    his independence or integrity;

(b)    the freedom of any person to instruct a solicitor of his choice;

(c)    his duty to act in the best interests of his client;

(d)    his own reputation or the reputation of the profession;

(e)    a proper standard of work; or

(f)    his duty to the court.’

Principle 1.02

98. Principle 1.02 provides that

‘Conduct subject to discipline

A solicitor is an officer of the Court (see s 3(2) of the Legal Practitioners Ordinance (Cap. 159)), and should conduct himself appropriately in professional and private matters.’

The challenge on Principle 1.02

99. It is not argued that Rule 2 does not constitute a legitimate limitation on the solicitor exercising his right of expression.  The challenge is directed towards Principle 1.02.  It is submitted by Mr. Mok, counsel for the solicitor, that the words ‘appropriate conduct’ are too vague and if a solicitor is to be charged for a misconduct, he should know the precise misconduct that he is alleged to have committed.

100. In my view, since Principle 1.02 is concerned with conduct subject to discipline, the inappropriate behaviour cannot be any trivial misbehaviour but serious misconduct of a solicitor committed by him in professional or private matters.  Rule 2 deals with those serious misconducts committed by solicitor in the course of his practice, while serious misconduct under Principle 1.02 may be committed by him, apart from those committed by him in the course of his practice, in connection with his practice and in private matters.  Such misconduct may bring his reputation or that of the profession into disrepute.

101. View in this manner, Principle 1.02 clearly constitutes a legitimate limitation.

Professional matters

102. Under Principle 1.02, serious misconduct in professional matters may arise in respect of

a)    the actual legal work performed by the solicitors, for example, the performance was below the required standard;

b)    or connected to his practice, such as failure to notify the client of the development of the case; breach of confidentiality and putting himself in conflict of interest situations.

Private matters

103. Private matters are covered as well because a solicitor is an officer of the court and obviously misconduct in private matters has an effect on this important role.  The misconduct may involve

(a)    either moral turpitude, such as sexual misconduct committed by a solicitor in his private capacity;

(b)    or conduct short of moral turpitude but nonetheless outrageous or disgraceful to him in a professional respect.

104. The case of Raylance v. General Medical Council [2000]1 A.C. 311 contained examples of misconduct of a professional man in his professional and private capacity.  Whether a conduct constitutes a serious misconduct has to be judged by the facts of the case.  One can only give examples of misconduct and they are not exhaustive.

Reputation

105. In case of professional misconduct, one can readily see that apart from the solicitor’s own reputation, the reputation of the legal profession is also affected.  Public confidence in both the solicitor and the profession is prejudiced by the misconduct. 

106. The same will equally be true in situations involving serious misconduct of a solicitor in his private matters.  Both his own reputation and that of the profession are equally affected.

107. It is difficult to envisage situations where the tarnish of the solicitor’s own reputation will not also affect that of the profession.  The connection exists because he is a member of the profession which is used as a yardstick in judging his conducts.

The 1st complaint

108. Anyone who appears in business Central wearing only his swimming trunks is bound to raise eyebrows, let alone a member of an honourable professional.

109. The skills of a lawyer are based on his knowledge of the law and his ability to communicate both verbally and in writing.  The conduct of the solicitor demonstrating in this manner was more appropriate in a show business setting.  It appealed to sensation rather than a genuine expression of his grievances against the Law Society or the Tribunal.  The action was directed towards a decision of the Tribunal.  Considering the context in which the demonstration was made, what had happened went beyond what was merely a matter of bad taste.  The conduct was disgraceful and was a serious misconduct subject to discipline.  It was a mockery of the high standard one expects from the solicitor profession.  The episode brought the solicitor’s own reputation and that of the profession into disrepute.  In my view this first complaint was clearly substantiated.

The 2nd complaint

110. A lawyer plays a vital role in the administration of justice.  The rule of law depends on the efforts of everyone involved with the justice system.  It is important that a high standard is maintained by members of the legal profession. 

111. Whether the decision to hold a private hearing is correct or not is not the issue here.  A lawyer should know how a decision can be lawfully challenged.  He should further know how a third party who wishes to intervene in a case should proceed.  In a usual case, the third party has to lodge a written application to the court or tribunal first.  These are basic principles.

112. The solicitor invited members of his profession to attend the hearing when the Tribunal had already held that the hearing was to be in private.  Clearly what the solicitor intended to do by the circular was to challenge the ruling of the Tribunal by way of confrontation at the hearing itself.  He intended non-parties to be present despite the ruling by the Tribunal.  This is tantamount to saying to the Tribunal : ‘I don’t care about your ruling.  Here are the non-parties and what are you going to do about it.’  It was not intended to be an impassionate discussion of legal principles on the right of intervention by non-parties.

113. In my view it is serious misconduct on the part of the solicitor to try to engineer a situation of confrontation with the Tribunal in respect of a decision that it had made.  It lowers the public confidence in the legal system.  It brings his reputation and that of the profession into disrepute. 

114. As we learnt from another disciplinary case involving another lawyer from the solicitor’s firm, 40 members of the solicitor’s firm had attended the hearing that day resulting in it being aborted. 

Penalties

115. The penalties imposed in this case are totally appropriate to the complaints.

Conclusion

116. I too would dismiss the appeal with costs.

Hon Ma CJHC :

117. It follows from the above judgments that this appeal is dismissed with a costs order nisi that the Respondent is to pay the Applicant’s costs of this appeal, such costs to be taxed if not agreed.