TSE WAI CHUN PAUL v. SOLICITORS DISCIPLINARY TRIBUNAL

HCAL33 /2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 33 OF 2005

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REASONS FOR DECISION

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1.  On 22 March 2005, I dismissed the applicant’s urgent application for interim relief and indicated that I would give reasons later, which I now do.

Background

2.  The events leading to the application can be summarized as follows.

3.  On 30 September 2004, the Tribunal found eight complaints of professional misconduct proved against the applicant.  On 14 October and 16 December 2004, the Tribunal heard mitigations from the applicant and his counsel. 

4.  On 15 March 2005, the Clerk of the Tribunal (“the Clerk”) by letter served on the applicant, the Tribunal’s Reasons and Order on the penalty for the complaints (“the Tribunal’s Order”). 

5.   On the same day, the Clerk also filed with the Registrar, High Court (“the Registrar”) the Tribunal’s Order. On 16 March 2005, the Registrar entered a note of the Tribunal’s Order in connection with the applicant’s name on the Roll of Solicitors (“the Roll”).

6.  On 17 March 2005, the applicant gave notice to the Clerk of his intention to apply to the Tribunal for a suspension of the filing of the Tribunal’s Order.  On the same day, the applicant wrote to the Registrar requesting him to withhold taking step under section 12(2) of the Legal Practitioners Ordinance, cap. 159 (“LPO”) pending the ruling of the Tribunal and/or the hearing and determination of any judicial review proceedings.

7.  The Registrar replied by letter that afternoon informing the applicant that he saw no reason for removing the note that he had entered on the Roll and that he shall proceed to publish the Tribunal’s Order in the normal way unless there is direction otherwise made by the court of the Tribunal.   

8.  On 18 March 2005, Messrs. Haldanes, solicitors for the Law Society, informed the Clerk by letter that the Tribunal did not suspend the filing of the Tribunal’s Order under Rule 16 of the Solicitors Disciplinary Proceedings Rules (“the Rules”), and that with the filing of the Tribunal’s Order, the function of the Tribunal had become defunctus. 

9.  On the same day, the Clerk wrote to the applicant informing him that the Tribunal was unable to convene to deal with his application.  It was also mentioned in the letter that one of the members of the Tribunal had gone on an overseas trip.

10.  On 21 March 2005 at 5 pm, the applicant filed the Form 86A in these proceedings.  The decisions challenged are :

(1)	the Tribunal’s decision to file or direct the Clerk to file the Tribunal’s Order with the Registrar; and
(2)	the advice conveyed by letter dated 18 March 2005 that the Tribunal was defunctus.

11.  Among the relief sought is an order that the filing of the Tribunal’s Order be suspended during the time limited for the appeal against the Tribunal’s Order under section 13 of LPO and, if notice of motion of appeal is filed, until determination or abandonment of the appeal.

12.  The applicant also seeks a stay of the decision mentioned in paragraph 10(1) above, and all steps and procedures by which the decision is implemented, including the entry of a note of the Tribunal’s Order on the Roll and gazetting the Tribunal’s Order, pending the determination of the application for judicial review or until further order of the court.  The interlocutory stay is sought under Order 53 rule 3(10) of Rules of the High Court.   

13.  On the same day as the filing of the Form 86A, I granted leave to judicial review and directed that the application for stay be listed for an inter partes hearing on an early date.  Upon being notified of the order and direction, the applicant applied ex parte for an interim order to stay the gazetting of the Tribunal’s Order by the Registrar.  After hearing counsel, I refused the application and directed that the application should be made inter partes or on notice to the relevant parties.

14.  Subsequently, the applicant gave notice by letters to the Tribunal and the Registrar of his intention to apply for interim relief.  By a letter dated 22 March 2005, the Registrar informed the applicant that the Tribunal’s Order had in the morning of 21 March 2005 been sent to the government printer for publication in the Gazette to be published on Thursday, 24 March 2005.  The Registrar further advised that nothing could be done to retrieve it.

15.  In the afternoon of 22 March 2005, the applicant made a second application for interim relief.  No representative from the Tribunal or the Law Society appeared. 

The application

16.  The applicant sought the following interim relief:

(1)	A removal of the filing of the Tribunal’s Order with the Registrar; and
(2)	A removal of the note entered in connection with the applicant’s name in the Roll.

Reasons for refusing the application

17.  The interim relief sought is not prohibitory in nature.  It is seeking to compel the Clerk to withdraw the filing already made with the Registrar and also to compel the Registrar to remove the entry he had made in the Roll.  The court therefore needs to be satisfied that there is a strong prima facie case in that the court must feel there is a high degree of assurance that at the trial it will appear that the relief was rightly granted: Hong Kong Civil Procedure 2004 paras. 29/1/20 & 29/1/30.  

18.  The crux of the applicant’s complaints in these judicial review proceedings is twofold.  Firstly, it is said that the Clerk had in breach of Rule 15 of the Rules failed to give notice of the date when the Tribunal’s Order will be pronounced.  Secondly, it is said that there has been no pronouncement of the Tribunal’s Order in a hearing attended by the parties as contemplated by Rule 16 of the Rules.  The applicant contends that the sending of the Tribunal’s Order by the Clerk’s letter dated 15 March 2005 is not pronouncement. 

19.  The applicant argues that three consequences follow from the failure to pronounce the Tribunal’s Order at a hearing.  Firstly, the applicant has been deprived of the opportunity to apply to the Tribunal for a suspension of the filing of the Tribunal’s Order as provided under Rule 16.  Secondly, the Clerk was wrong to have filed with the Registrar the Tribunal’s Order.  It is premature to make an entry in the Roll and to gazette the Tribunal’s Order.  Thirdly, the Tribunal’s Order has not yet begun to take effect.

20.  I accept that at this stage, the court needs not and should not decide the merits of the application.  But that does not mean the court cannot form a tentative view of the broad merits of the case.   Indeed, the court has to be satisfied that there is a high degree of assurance that at the trial it will appear that the relief now sought was rightly granted.

21.  Without detracting from the position that leave to judicial review had been granted, I have reservations about the contentions that the Clerk was wrong in filing with the Registrar the Tribunal’s Order and that it is premature to make an entry in the Roll and to gazette the Tribunal’s Order.  In the first place, there is no express reference in Rule 16 requiring findings and orders of the Tribunal to be pronounced by way of a hearing attended by the parties.  Secondly, the Clerk’s statutory obligation to file the Tribunal’s Order with the Registrar does not arise from Rule 16, but stems from the main legislation, namely, section 12(2) of LPO. 

22.  Section 12(2) reads:

“A signed copy of an order of a Tribunal in relation to a solicitor shall be filed with the Registrar who shall enter a note of the order on the roll of solicitors in connection with the name of the solicitor and, where the order directs, the Registrar shall strike off the name and shall publish an order for suspension or striking off in the Gazette within 14 days after receiving a copy of the order.”

23.  Rule 16, on the other hand, reads:

“The clerk shall on the day of pronouncement file the order pursuant to section 10(3) and section 12(2) of the Ordinance. …”

24.   It will appear that Rule 16 only requires the clerk of a tribunal to deal with the filing on the same day when an order is pronounced.  This is not the same as providing that the filing should not be made without a pronouncement of the order at a hearing. 

25.  Thirdly, section 12(2) imposes upon the Registrar a duty to make an entry in the Roll and to publish the order of suspension in the Gazette within 14 days.   The Registrar’s statutory obligation is not premised upon a pronouncement of the order at a hearing.  The obligation arises upon receipt of an order of a tribunal.  In the present case, the Registrar had already made the entry in the Roll in fulfilment of his statutory obligations.  There is no justifiable basis to require him to remove the entry.

26.  Additionally, it has also not been demonstrated that the Registrar has power to remove an entry already made on the Roll in situation such as the present.

27.  Mr Mok argued that the matter is one of extreme urgency having regard to the need to deal with matters concerning the applicant’s clients, the fact that the applicant is one of the three authorized bank signatories of the firm and the fact that substantial costs would have to be incurred to effect modifications to advertisements of the firm, which will be wasted if the applicant succeeds in his intended appeal against the Tribunal’s findings and order. 

28.  Mr Mok also submitted that the court should balance the risk of doing injustice to the applicant.  It was said that it would be unjust for the applicant to appear on record as being suspended from practice when he is in fact not suspended.

29.  Underlying these arguments is the contention that the Tribunal’s Order, and in turn the order of suspension thereunder, has yet to take effect because there was no pronouncement at a hearing.  There is no provision in the LPO or the Rules dealing with the effective date of an order of suspension.  It would appear that the suspension takes effect upon the Tribunal making the order.  The making of an entry on the Roll and the publication in the Gazette are steps of carrying the order into effect.   That being the case, the interim relief sought by the applicant, even if granted, will not relieve the urgency of the situation.   The removal of the filing of the Tribunal’s Order and of the entry in the Roll do not affect the suspension imposed by the Tribunal’s Order.

30.  On the other hand, section 7 of LPO provides that no person shall be qualified to act as a solicitor unless, inter alia, he is not suspended from practice.   It is important for the Roll, which is open for inspection by the public, to reflect the actual position, namely, the Tribunal had made an order suspending the applicant from practice.   

31.  The applicant indicates in his affidavit that he intends to appeal to the Court of Appeal against the Tribunal’s findings of guilt and the order imposing penalty.  Mr Mok also submitted that there are substantial grounds for the intended appeal.  Section 13(1) of LPO provides that the provisions of Order 59 of Rules of the High Court shall apply to an appeal to the Court of Appeal.  There is power under Order 59 rule 13 to stay the execution of the order or decision being appealed.

32.  The applicant is therefore not without redress if he wishes to withhold the implementation of the Tribunal’s Order or to preserve the status quo pending the appeal to the Court of Appeal.  It is open to him to seek an interim or interlocutory stay of the Tribunal’s Order, including the suspension order.  This will also address the difficulties said to have given rise to the urgency of the matter.   

33.   I do not disagree with Mr Mok’s submissions that a decision to appeal is not a light decision and that time is needed to properly formulate an appeal.  But in exercising the discretion whether to grant ex parte interim relief, I consider the court is entitled to weigh the consequences of granting the application against those of refusing it.  The fact that the applicant can seek an interim stay from the Court of Appeal is therefore a relevant consideration.  There is no question of the applicant being forced to appeal or that his right to appeal within 21 days is being curtailed.    

Conclusion

34.  For the reasons above, the applicant’s application is refused.