CHAN SIU CHUNG v. LAW SOCIETY OF HONG KONG

Civil Appeal No. 73 of 1997

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H E A D N O T E

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Solicitors' Practice Rules. Disciplinary proceedings. Meaning of words "where a firm acts for a client in relation to that client's criminal litigation" in rule 2D. Narrow construction contended for, excluding circumstances where a firm acts prior to client being charged, rejected. Appeal against penalty also rejected.

IN THE COURT OF APPEAL OF HONG KONG

1997, No. 73
(Civil)

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REASONS FOR JUDGMENT

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Nazareth V-P:

1. The appellant, Mr Chan Siu-chung, is a solicitor and the sole proprietor of S.C. Chan & Co. He appeals against an order made by a Solicitors Disciplinary Tribunal ("the Tribunal") on 13th March 1997 under s.10(2)(c) of the Legal Practitioners Ordinance, Cap. 159, by which he was required to pay penalties totalling HK$140,000 in respect of five complaints brought against him.

2. The first four complaints were each of failure to comply with rule 5D(a) of the Solicitors' Practice Rules in that a letter from his firm was not despatched to the different clients in respect of each complaint, after receiving instructions confirming:

(i) the instructions given by the client;

(ii) the services provided by the firm;

(iii) the services provided by the firms: see the name of the solicitor in charge of the matter;

(iv) the fee to be charged or an estimate of fees; and

(v) the name of counsel, his fees or refreshers or an estimate of such fee and refresher, and

of failure to acquire the written signed agreement of the client concerned to those terms.

3. The fifth complaint was that Chan Siu-chung breached rule 2(e) of the Solicitors' Practice Rules by failing to supervise a member of his staff Tse Wing-kwan in respect of his handling of the files relating to the foregoing four complaints.

4. At the hearing the respondent admitted all the complaints. He also admitted the facts stated in the statement of agreed facts. The Tribunal found on the basis of Mr Chan's own admission that the facts alleged in the complaints were established and all the complaints against him were proved.

5. Having considered all the facts of the case and the submission made on his behalf, the Tribunal ordered Mr Chan to pay in respect of each of the first four complaints a penalty of $10,000, and in respect of complaint 5, a penalty of $100,000 making a total of $140,000. The Tribunal also ordered Mr Chan to pay the costs of and incidental to the proceedings before them including all prior enquiries and investigations, such costs to be taxed by a taxing master of the Supreme Court on a full indemnity basis if not agreed. Those costs have not yet been agreed or taxed.

6. Notwithstanding that the charges were amended to conform to the agreed facts, that the appellant agreed to the charges in writing, and further, agreed to the charges and pleaded guilty orally, he now seeks to appeal against the Tribunal's finding, made upon his plea of guilty, on charge 4. Despite it being far from clear that his original notice of appeal included an appeal against the finding of guilty on charge 4, we permitted the appellant to pursue his appeal against that finding. The appellant also appealed against all the penalties imposed upon him.

7. Turning then to the appellant's appeal against the finding of guilty on charge 4, Mr Timothy Cheung who appeared for the appellant before us but did not appear below, relied upon one point which he put quite shortly. He points to rule 5D(a) of the Solicitors' Practice Rules, under which charge 4 has been laid. It is convenient to set out all its terms here:

"Steps to be taken in criminal matters

Where a firm acts for a client in relation to that client's criminal litigation the solicitor in charge of that matter shall take the following steps:

(a) as soon as practicable and not more than 7 days after receiving instructions the firm shall confirm by letter to the client:

(i) the instructions given by the client;

(ii) the services to be provided by the firm;

(iii) the name of the solicitor in charge of the matter;

(iv) the fee to be charged or an estimate of such fee; and

(v) the name of counsel, his fee and any refreshers, or an estimate of such fee and refreshers,

and the firm shall secure the written and signed agreement of the client to those terms"
(emphasis supplied)

Mr Cheung submits that the requirements under para. (a) arise only where a firm acts for a client in relation to that client's criminal litigation. His submission is simply that charge 4 related to instructions received from a lay client to attend an identification parade in which the lay client was involved. The lay client had not been charged with any offence at the material time. The lay client was, he therefore says, not involved in any criminal litigation within the meaning of rule 5D. There was no need to comply with rule 5D. The fact that the appellant pleaded guilty to charge 4, Mr Cheung continues, or that he accepted that he should have sent the letter, is irrelevant. So long as the charge could not on the agreed facts be committed in law, the appeal against conviction must be allowed.

8. For the latter proposition, Mr Cheung relied upon the judgment of the English Court of Appeal (Criminal Division) in Charles Henry Rollafson (1969) 53 CrAppR 389. However, in that case, what the Court of Appeal held was that the legislation in question created only offences committed during a winding-up (leaving aside offences committed before that, an aspect which is not material here). The matter charged had not occurred during winding-up. The Court accepted upon the previous authority it cited that the fact the appellant there had pleaded guilty was no bar to his appeal provided that it would have been impossible for him to have been lawfully convicted of the offence. The position in this appeal is very different. Far from the offence here being created inflexibly in the context of e.g. ongoing litigation, it is created "in relation to criminal litigation". It does not seem to me that the expression "in relation to that client's criminal litigation" is intended to be or can properly be construed in the narrow way contended for by Mr Cheung.

9. Section 19 of the Interpretation and General Clauses Ordinance, Cap. 1, which is all too often overlooked, provides that "An Ordinance [which defined in s.3 to include subsidiary legislation] shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit".

10. It seems to me to be reasonably plain that the object of the Solicitors' Practice Rules is to ensure that the matters conveniently listed in rule 2, of which I mention only the following, are not impaired or compromised, i.e. a solicitor's duty to act in the best interests of his client, his own reputation and the reputation of the profession, a proper standard of work. These are not matters confined to criminal litigation. They arise just as much, to address the present case, where solicitors are acting not in the actual course of criminal litigation, but preliminary, preparatory or incidental or even in anticipation of litigation; it seems to me that properly construed "in relation to criminal litigation" must extend to a solicitor acting in that way. It is not without relevance, a fortiori, this being subsidiary legislation, that the heading or title to rule 5D is "Steps to be taken in criminal matters".

11. It could not have been other than in the contemplation of the appellant and his client that the identification parade with which both were immediately concerned, was likely to lead to criminal proceedings, and that in that sense, the appellant's firm was acting for the client in relation to that client's criminal litigation that might ensue, even if the firm's instructions did not in the event continue beyond the identification parade, a matter that is unclear.

12. Mr Cheung was constrained to argue that "criminal litigation" commenced where the lay client was charged with an offence. Such a concept can be readily seen to present difficulties in the application of rule 5D. However that may be, it in no way diminishes the effect of the words "in relation to".

13. In my view, therefore, Rollafson and the submission founded upon it does not avail the appellant, and his appeal against the Tribunal's finding on charge 4 had to be dismissed.

14. It remains in respect of this aspect of the appeal, to say that Mr Ashley Burns, who appeared before us on behalf of the respondent, initially sought contend that for the appellant to seek to appeal against the finding of the Tribunal on charge 4 in the face of his admission of the charge before the Tribunal was an abuse of the process of justice. However, not being able to find any authority in support of such a submission, he did not in the event pursue it.

15. Turning then to the monetary penalties imposed in respect of the five charges, Mr Cheung submitted that the non-compliance of rule 5D(a) in respect of the first four charges was in factual terms exactly the same as the lack of supervision of the member of the appellant's staff specified in charge 5. That contention has to be rejected. While the failure to send the requisite letter to the client might well have been the result of or been contributed to by some failure of supervision, it is clearly a separate matter and in no way as serious as the latter.

16. Mr Cheung then took us to some instances of reprimand or censure and of fines by the Tribunal ranging from $1,000 to $25,000, contending that nothing like the size of the fines here has been imposed before. Mr Burns countered by pointing to other such cases where total fines of up to $250,000 had been imposed. Given the limited scope for intervention by this Court in the proceedings and decisions of Solicitors' Disciplinary Tribunals, specific instances of the penalties imposed by the Tribunal in particular cases are of minimal, if any, assistance.

17. Mr Cheung also pointed to extenuating aspects of charges 2, 3 and 4 which I do not find it necessary to adumbrate. None of them could have been overlooked by the Tribunal, nor is that suggested.

18. Ultimately, the appellant's invitation to this Court to intervene upon the penalties imposed by the Tribunal falls to be determined upon the principles applicable. These can be conveniently taken from the Privy Council judgment in McCoan v General Medical Council [1964]1 WLR 1107, which although a medical tribunal case, was addressed upon analogous authorities in cases of professional misconduct of solicitors. Their Lordships said this:

"The powers of the Board to correct the determination of the committee on the hearing of such an appeal are in terms unlimited, but in principle, where a professional body is entrusted with a discretion as to the imposition of the sentence ... their Lordships should be very slow to interfere with the exercise of that discretion. ... Their Lordships are of opinion that Lord Parker CJ may have gone too far in In re a Solicitor ([1960] 2 QB 212) when he said that the appellate court would never differ from sentence in cases of professional misconduct, but their Lordships agree with Lord Goddard CJ in In re a Solicitor [1956]1 WLR 1312 when he said that it would require a very strong case to interfere with sentence in such a case, because the Disciplinary Committee are the best possible people for weighing the seriousness of the professional misconduct.

No general test can be laid down, for each case must depend entirely on its own particular circumstances. All that can be said is that if it is to be set aside the sentence of erasure must appear to their Lordships to be wrong and unjustified." (at pp.1112 and 1113)

19. Their Lordships' dicta was followed in Bolton v Law Society(CA) [1994]1 WLR 512 where it was held:

"that since a professional disciplinary tribunal was the body best fitted to assess the seriousness of professional misconduct an appellate court should not, save in a very strong case, interfere with its sentence; that the Solicitors Disciplinary Tribunal's orders were not primarily directed to punishment but to the maintenance of a well-founded public confidence in the trustworthiness of all members of the profession and the discharge of any professional duty with less than complete integrity would attract severe sanctions; that in consequence considerations in mitigation of sentence had less effect than in the exercise of a criminal jurisdiction ..."

20. Both McCoan's and Bolton's cases were followed by this Court in Dr Siu Shek David v The Medical Council of Hong Kong [1995]2 HKC 527.

21. While I feel bound to say that the total amount of the fines seemed to me to be a severe penalty, it is clear that this Court would not be justified in the circumstances in intervening. In particular, the Tribunal was far better placed than this Court in assessing the seriousness of the appellant's non-compliance with rule 5D and the damage such failure was likely to cause to the object of the rules. Clearly, therefore, the appeal against the penalties imposed also had to be dismissed.

22. As to the costs of the appeal, I can see no good reason why they should not follow the event, and I would order nisi that the respondent is to have its costs of the appeal.

Gall J:

23. I concur and have nothing to add.

Yam J:

24. I also agree. There is nothing I can usefully add.

Nazareth V-P:

25. There will accordingly be an order nisi that the appellant is to pay the respondent's costs of the appeal, to be taxed if not agreed.