A SOLICITOR v. THE LAW SOCIETY OF HONG KONG

IN THE COURT OF APPEAL

1995, No. 84
(Civil)

Headnote

Findings of professional misconduct by Solicitors Disciplinary Tribunal - Appeal to Court of Appeal under s13(1) Legal Practitioners Ordinance, Cap 159.

Court of Appeal held: Having regard (1) to the unsatisfactory way in which the proceedings were conducted (2) the tribunal's failure to deal with the real issues (3) the lack of findings of material fact and (4) the equivocal nature of the findings of misconduct, all the findings must be quashed.

Observations of Court of Appeal on:

* Distinction between civil liability and professional misconduct

* Effect of Rule 8(1) of the Solicitors Disciplinary Tribunal Proceedings Rules

* Requirements of due process in the context of a Solicitors Disciplinary Tribunal

* Relevance of Ladd v. Marshall [1954] 1 WLR 1489 in the context of a disciplinary inquiry

IN THE COURT OF APPEAL

1995, No. 84
(Civil)

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J U D G M E N T

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Litton, V.-P., giving the judgment of the Court:

Introduction

1. The appellant is a solicitor, the sole proprietor of the firm J. Fang & Co. On 6 March 1995 a Solicitors Disciplinary Tribunal, upon the conclusion of disciplinary proceedings brought against him by the Law Society, found him guilty of professional misconduct in respect of a total of 84 complaints. Various penalties were imposed. It is common-ground that the order imposing those penalties cannot stand because the appellant was not given an opportunity to advance matters in mitigation following the tribunal's findings of guilt on the 84 complaints. To that extent at any rate the Law Society accepts that there was a material irregularity in the course of the proceedings. It is the appellant's case that the inquiry was not only flawed in that respect: it was fundamentally flawed by reason of (i) other procedural irregularities and (ii) errors in the tribunal's findings of guilt in relation to specific charges; it is the appellant's case that the tribunal's findings of misconduct on the 84 complaints must be quashed or alternatively reversed, pursuant to s13(1) of the Legal Practitioners Ordinance, Cap 159.

The complaints

2. The appellant originally faced 119 complaints before the tribunal. These had come from 33 firms of solicitors and 12 members of the public. They all related to conveyancing transactions handled by the appellant's firm between the years 1988 and 1993. In relation to the 84 complaints on which findings of professional misconduct were made, there were a total of 43 conveyancing transactions involved. In the majority of them the appellant's firm acted as solicitors for the vendor or sub-vendor; in some cases the firm acted as solicitors for the mortgagor or purchaser, and in one case as solicitors for the mortgagee. The transactions were by no means straight-forward. The bulk of the complaints - though not all - fell into three categories: (i) breach of undertaking, (ii) failure to deal promptly with correspondence from other solicitors and (iii) failure to "give any or any sufficient and satisfactory answer to the Law Society's enquiries".

History of proceedings

3. On 15 October 1993 Mr R.A. Harrod, the Law Society's Director of Compliance, made an affidavit setting out the matters of complaint for the Council's consideration. In this affidavit Mr Harrod did no more than to state the effect of the correspondence in the Law Society's files, relating to the conveyancing transactions involved, and the conclusions which might reasonably be drawn from a reading of such correspondence. Mr Harrod had no personal knowledge of any of the transactions; his oath, given as maker of the affidavit, added nothing to the contents of the letters themselves. The letters were not exhibited to the affidavit.

4. The Council, pursuant to Rule 4 of the Solicitors Disciplinary Tribunal Proceedings Rules Cap 159, after considering Mr Harrod's affidavit, transmitted the material to the Tribunal Convenor who then convened the tribunal, consisting of two solicitors and a lay person, to hear the complaints.

8 December 1993

5. The first hearing took place on 8 December 1993 at which Mr Harrod, the applicant, was represented by a solicitor but the appellant (the respondent in those proceedings) was unrepresented. The proceedings commenced with a statement by the chairman that on the basis of Mr Harrod's affidavit of 15 October 1993 alone - without, apparently, having considered the correspondence referred to in the affidavit - the tribunal had decided that a prima facie case of professional misconduct had been shown against the appellant.

6. The tribunal then proceeded to give directions for the further conduct of the inquiry.

7. But, because it was then discovered that there had been previous proceedings which were aborted, no directions were in fact given and the matter was adjourned. In the meanwhile Mr Harrod made a second affidavit setting out further complaints, including 31 of failure to deal promptly with correspondence from other solicitors. This brought in, by reference, a huge volume of correspondence.

24 February 1994

8. The tribunal reconvened on 24 February 1994 when the chairman stated that the tribunal had considered the additional complaints made in Mr Harrod's second affidavit and had decided that "those complaints disclosed a case to answer". The tribunal proceeded to give directions for mutual discovery and for mutual notices to admit documents and facts. The appellant was ordered to file within 28 days an affidavit in response to Mr Harrod's affidavits and to "detail the current status of the matters complained of and what actions (had) been taken in that regard".

9. Mr Harrod was ordered to file an affidavit in reply within 28 days, the affidavits to stand as evidence-in-chief. The tribunal appointed 11 May 1994 as the day for hearing the complaints.

10. Pausing here to consider what was in the tribunal's mind, the situation must surely be this: On the basis of Mr Harrod's two affidavits, the tribunal was satisfied that there was a prima facie case of professional misconduct against the appellant on the 119 complaints; the appellant had a "case to answer"; if he wished to answer that case by evidence, he was to do so by lodging an affidavit within 28 days. It must logically follow from this order that if the appellant chose not to serve notices to admit facts and documents and not to lodge an affidavit, he had, in effect, elected not to adduce evidence at the hearing.

11 May 1994

11. On 11 May 1994 the prosecutor opened the proceedings by stating that the applicant had complied with the directions of 24 February but the appellant had not done anything in accordance with those directions. The prosecutor then stated:

"So today on record there are altogether [119] complaints against the respondent, as set out in the first and second affidavit of Mr Harrod. Since the respondent has not filed any affidavit at all in reply to the affidavit of Mr Harrod that there is in fact no contradictory evidence before the Tribunal in respect of all the assertions against the respondent. So the Law Society is going to rely basically upon the first and second affidavits of Mr Harrod in support of this application."

12. The prosecutor then referred to Rule 36 of the Solicitors Disciplinary Tribunal Proceedings Rules: All the documents set out in the notice to admit documents were deemed to have been admitted: the applicant relied upon those documents in substantiation of his case. The prosecutor then added: "Sir, as I have said, since there are no contradictory evidence being supplied by the respondent, all the facts have been proved by way of the 1st and 2nd affidavits of Mr Harrod and by way of the documents having been supplied. So relying upon that I submit that all the charges, altogether totalling [119], have been proved." Logically, if the tribunal was intending to adhere to the procedure previously laid down, the prosecutor had, at that point, closed his case.

13. This was not how things were perceived. Upon the conclusion of the prosecutor's opening statement, the appellant was invited to "respond". What exactly he was supposed to respond to is not clear: unless it was, in effect, to make his final submissions, since he had chosen not to adduce any evidence. In the course of a long and rambling speech the appellant made a number of significant points:

(i) That, among the huge amount of documents disclosed by the Law Society, there was a glaring omission, a letter of 29 February 1992 which he had written complaining about the system of completion by undertakings.

(ii) That he had written many letters to the Law Society in response to their inquiries, but not all have been disclosed.

(iii) That there has been 'inadvertent delay, tardiness, inefficiency' on the part of his staff but that he had tried to remedy the situations dealt with in the complaints.

(iv) That to prosecute the complaints was unfair as it was to hold him vicariously liable for his staffs' wrong-doing and that undue delay and incompetence on the part of his firm did not amount to professional misconduct as charged.

(v) That there has been inordinate delay in prosecuting the charges which went back, in some cases, six years.

(vi) That to throw 119 complaints against him made the 'thing too big' and in consequence he was unable to get counsel of his choice to represent him.

(vii) That he had tried to persuade the prosecutor to limit the scope of the prosecution to one or two cases so that he could put his points across, but the prosecutor had refused to co-operate.

(viii) That the entire system of completion by undertakings was flawed and it was not true (as the chairman had stated) that when the Law Society wrote in respect of complaints they very rarely received any reply.

(ix) That the prosecution for breach of undertaking was unfair when the opposite party to the transaction invariably failed to adhere to the rules by sending a draft of the undertakings before they were imposed at the last minute.

(x) That it was only the day before (10 May) that he received the bundles of documents and he did not have time to consider them.

(xi) That many of his own documents were missing, some of the files having been sent to the New Territories and got lost.

(xii) That he was minded to admit some of the primary facts set out in the complaints: but not the allegations of professional misconduct.

(xiii) That if the tribunal found that a breach of undertaking was "a crime of strict liability" then he had nothing to say.

(xiv) That he was proposing to put up a 'block defence' on the complaints of breach of undertaking.

14. Eventually, the hearing was adjourned, but only after the tribunal had issued fresh directions, with fresh time limits, along the lines of the directions made on 24 February 1994. In effect, the appellant was given a fresh opportunity to make his defence.

2 August 1994

15. The tribunal reconvened on 2 August 1994. The prosecutor opened the proceedings by stating that he had heard nothing from the appellant since the last hearing but was ready to proceed to "prove" the case against him.

16. So the prosecutor opened the applicant's case (in effect for the second time) by reading out a long written statement. Paragraphs 13 - 16 of the statement are relevant:

"'13. After numerous requests and demands without success, the other solicitors would have no alternative but complain to the Law Society. The Law Society, on receipt of the complaint, would immediately write to the Respondent requesting the Respondent to give an explanation to the complaint. Invariably, the Respondent would not reply to Law Society's letter. The Law Society would then issue numerous requests and demands in writing before the matter would be referred to the Disciplinary Committee for further action.

14. On some occasions, the Respondent would issue a reply saying that he was not prepared to make any explanation, or after a long period of time, gave a reply which was totally irrelevant to the issue in question. Examples of the Respondent's reply were, on page 517 of the Bundle of Documents,'

and I only quote one single sentence.

'A breach of undertaking cannot be condoned by a satisfactory explanation - so we don't make one.'

15. Sometimes, the Respondent would write after a long lapse, saying what action he has taken as a result of the complaint but not explaining the cause of the complaint.

16. The facts afore-mentioned would lead to 3 separate complaints, namely, (a) breach of undertaking, (b) failing to give satisfactory answer to Law Society's enquiries and (c) fail to deal promptly with correspondence from fellow solicitors."

17. The prosecutor then took the tribunal through a number of specific complaints:

(i) A transaction in which the appellant's firm acted as solicitors for the vendor relating to Flat A, 7/F, No. 5 Mount Sterling Mall, Kowloon in which the purchase price was sent to the firm on 11 September 1989 subject to an undertaking to send certain title documents to the confirmor's solicitors within 17 days. This gave rise to Complaints No. 1, 2 and 1A.

(ii) A transaction in which the firm acted as solicitors for the Bank of East Asia in preparing a mortgage of Flat 907, Block 49, Heng Fa Chuen in December 1989. The allegation was that the appellant had failed to register the Assignment and Mortgage within the relevant time limits. This gave rise to complaints No. 47 and No. 48.

(iii) A transaction in which the firm acted as the purchaser's solicitors in relation to Flat A, 18/F, Block 10, Wonderland Villas, the completion of which took place on 24 August 1990. The allegation was that the appellant had post-dated the Assignment to 20 July 1991. This gave rise to complaints No. 72 and No. 73.

(iv) A transaction in which the firm acted as solicitors for the purchasers of Flat F, 10/F Yiu Sing Mansion, Taikoo Shing, the completion of which took place on 20 July 1990. The Assignment duly executed by the parties was subsequently lost. The allegation was that the appellant had re-engrossed a fresh Assignment and presented it to the parties for their execution: the appellant was allegedly responsible personally for such irregularity or alternatively had allowed an unqualified person in his firm to act in this way. This gave rise to complaints No. 49, 50 and 51.

18. The prosecutor then referred the tribunal to the general question of a solicitor's duties; previous cases of professional misconduct dealt with by other tribunals were cited.

19. In closing his case, the prosecutor said this:

" In conclusion, I would like to say to the Tribunal that all the facts were put down in the two affidavits of Mr Harrod, which is in the Bundle of Affidavits that I have compiled and placed before the Tribunal, and all the documents in support of the assertions or allegations of Mr Harrod have also been compiled in two separate bundles of documents in two separate box files that I have placed before the Tribunal.

On the basis that the four bundles of affidavits and documents have been read by the Tribunal or will be read before a decision is made on finding, I have not lead the Tribunal through each and every single word in the affidavits or each and every single document, and I do not venture to do that.

On that basis, that concludes my submission and concludes the case of the Law Society against the Respondent in this particular disciplinary action."

20. It was at this point that things went seriously wrong. The appellant, not having adduced any evidence, as he had been given the opportunity (twice) to do, should have been invited to make his final submissions on the case as presented by the applicant. This did not take place. Instead, there was a long exchange between the chairman and the appellant concerning his position. It began with a statement by the appellant as follows:

" MR FANG: Well, first all, can I say I must apologise to the Tribunal for having apparently not minded anything received from the prosecution. Now, this is unfortunate because through two bouts of trying to retain counsel in good faith as advised by the Tribunal, I have come to grief.

It is not as if I will say even with Counsel that I will deny all the facts or deny all the documents, etc. I am a very reasonable man. The only two cases I have denied consistently, and the prosecution know about, is 47 and 72, which -- well, I will in due course come to, in the defence of myself, say something about that."

21. The chairman then asked:

" Perhaps, Mr Fang, are we to take it take you admit all the complaints other than the complaints 47 and 72? (emphasis added)"

22. It is not clear why, at that stage, the appellant was being asked if he admitted the complaints: It should have been apparent from the appellant's statement on 11 May that he was not admitting the complaints: If he had admitted the complaints, there was no need for the prosecutor to prove his case as he had purported to do.

23. By his reply it became clear that whilst the appellant was, in very general terms, prepared to admit the primary facts averred in the complaints (other than Nos. 47, 49 and 72), he was not admitting that proof of those facts amounted to professional misconduct.

24. There then followed a long rambling discussion about missing documents: In particular, a letter of 29 February 1992 which the prosecutor had failed to disclose. This was a letter in which the appellant complained to the President of the Law Society concerning the system of completion by undertakings. This then led to lengthy statements by the appellant as to how "during the hey-days of 1989 - 1991" out of every hundred cases of conveyancing, 99 cases would result in some breach of undertaking. The appellant detailed the difficulties of the small firms being let down by banks, clerks etc.

25. It is unnecessary to set out the unstructured debate between the chairman and the appellant. The chairman was, doubtless, trying his best to understand the nature of the appellant's defence, presented in a highly garbled fashion. However, in terms of a disciplined conduct of the enquiry, it would have been better if the appellant had simply been left to make his submissions uninterrupted by interventions from the tribunal - however well-intentioned those might have been.

26. There was, at one stage, a long debate between the chairman and the appellant as to who, in a one-man firm, should carry responsibility for breaches of undertaking. An example of this debate is as follows:

" CHAIRMAN: Are you denying that as sole proprietor of your firm you are not responsible?

MR FANG: No, no, no, no.

CHAIRMAN: Then what are you saying?

MR FANG: All I'm saying is if this thing happened in a firm of 80 partners or 80 solicitors or something it will not be such a gigantic thing.

CHAIRMAN: They would all be responsible.

MR FANG: Well, I disagree with you, Mr Chairman. Okay, let me give an example. I belong to an 80 partner firm and two solicitors have stolen $2 million of clients' money and went to Taiwan. I don't think the Law Society will come round and say I have lack of supervision and I would be suspended and I would be fined and everybody will appear before Tribunals for lack of supervision or misconduct or something. That is the point I'm trying to make. The point I'm trying to make is that in a small firm, specially a sole proprietor, he gets the stick ultimately, because--

CHAIRMAN: Of course, because there's nobody else to take ultimate responsibility.

MR FANG: Yes, but in a big firm a manager can take the stick, anybody else-- an assistant solicitor can take the stick, it will go no further; that's all I'm saying.

CHAIRMAN: Who else is there to take responsibility for this complaint, Mr Fang, other than you?

MR FANG: The point I'm trying to make is this: in an 80 partner firm the person committing the act--

CHAIRMAN: But we're not talking about an 80 partner firm, we're talking about J Fang & Co, sole proprietorship.

MR FANG: Yes. Well, I'm trying to make the point, I'm trying to make the point is that if a member of my staff has negligently sort of done an act of negligence or something like that, in a big firm that would be that, but in a small firm, for some reason the Law Society always blames the sole proprietor.

CHAIRMAN: Are you surprised at that, Mr Fang?

MR FANG: Yes, I'm surprised at that because--

CHAIRMAN: Why? Who else do you think they should complain to?

MR FANG: No, no, the reason why I'm surprised at that is that there is no fairness between big firms and small firms. In a big firm things sort of get diluted, that's a view I'm trying to make. In a small firm the sole proprietors take the stick. But in a big firm--

CHAIRMAN: But, Mr Fang, your firm is a sole proprietorship. Who else is there to answer to these complaints other than you, the sole proprietor?

MR FANG: Well--

CHAIRMAN: You have no partners.

MR FANG: Yes, I know, but Mr Chairman, that's the irony of it, is that if I belong to an 80 partner firm this thing will be as nothing because the bigness itself is protection.

CHAIRMAN: I can't accept that. If this complaint had been made against any firm there would have been no reason to suggest that the complaint would not have been made just because a big firm might have been involved in the complaint.

MR FANG: Well, in a big firm I think--

I think in a big firm, with respect, sir, it will end at the very low level, it would end at the person who is actually doing the registration.

CHAIRMAN: This is completely irrelevant."

27. Pausing here, it is disturbing to note the total rejection by the chairman of the point the appellant was advancing, categorising it as "completely irrelevant". He was simply trying to make the point that the charges of professional misconduct were directed at him personally.

28. The tribunal was entitled of course to expect high professional standards from solicitors generally; but at the end of the day the appellant must be found personally culpable in some respects before he could be convicted as charged. There is a distinction between civil liability as the proprietor of a one-man firm, and professional misconduct. The chairman appears, from the passage cited above, to have lost sight of this point. His earlier suggestion that "in a firm 80 partners" all would be responsible is valid of course in terms of civil liability, but it would be absurd to suggest that all 80 partners could be found guilty of professional misconduct. The blurring of this distinction, a theme throughout the proceedings, was never corrected by the prosecutor.

29. Following the debate between the chairman and the appellant as summarised above, there ensued a long discussion of complaint No. 47, covering over 20 pages of transcript.

30. After complaint No. 47 was seemingly dealt with, there then followed another long debate concerning the system of completion by undertakings. The following is an example:

" MR FANG: May I make a point here, now, okay? Normally we do things in two things. There are two categories: misfeasance and malfeasance. If your staff committed fraud, if your staff does things-- do things negatively, then the boss is-- the sole proprietor is liable, he can either pay the damages through his own pocket or inform the insurance, okay? In no case is his reputation, so to speak, compromised; he's not in danger of being censured by the Law Society, but you do things like-- inefficiency, okay, inefficiency, and somebody stabs you in the back and complains to the Law Society then this is entirely different thing.

You have not caused anybody loss, you are not dishonest, you are within reasonable grasp of your firm, it's just that sometimes business are good and people have not replied to letters, etc etc. Then all of a sudden you are big criminal and I come here before you and you can strike me off. This called professional misconduct, but I have caused nobody loss, I have not caused any dishonesty, I have done-- in fact, you might look at--one relevant thing about it is that in all these cases here there is no element of dishonesty by me, okay?

The simple thing is that I'm a sole proprietor. The simple thing is that I'm a sole proprietor; therefore, I get the blame anyway, because it all ends up with me. But I may not be culpable in the true sense of the word. I have not done anything dishonest, I have not caused any negligence. It is just that my staff has done things inefficiently and I get my head chopped off. And this is why I complained to the Law Society and said this system of breach of undertaking is evil because they have created a category of crime--

CHAIRMAN: Are we dealing with Complaint No 47, still, Mr Fang?

MR FANG: Yes. In general, yes. It is my feeling about this case, okay?

CHAIRMAN: It's very difficult for the Tribunal, I think, to deal with some of your submissions because they are so general.

MR FANG: May I make one thing clear. If you do things one by one without me being able to air my views then I might as well admit to everything and end it here and now. But I have a legitimate gripe against the Law Society because the Law Society have consistently ignored my complaint. Now, why should it be-- in a different view--

CHAIRMAN: I'm sorry, but Mr Fang how is this relevant to this complaint or these complaints?

MR FANG: Because I made a general complaint about all the undertaking system, and I don't think the law--

CHAIRMAN: Does that excuse you from compliance with--

MR FANG: No, not excuse but at least that can--

CHAIRMAN: -- solicitors undertakings? So, how is it relevant to these complaints?"

31. In the course of this debate, the lay member of the tribunal intervened and this went on until the end of that session when the hearing was adjourned to 4 August 1994.

4 August 1994

32. The hearing on 4 August 1994 began with the chairman expressing his concern over the fact that an averment of fact in complaint No. 47 seemed plainly wrong. There, the appellant had acted for a bank mortgagee, and complaint No. 47 accused him of failure to register the assignment and mortgage in time. The averment in that complaint, that the appellant did not register those documents until April 1991, was wrong by nearly a year. The memorials produced by the appellant showed that they had been registered on 1 May 1990. The chairman asked whether there were similar errors in relation to complaints No. 74 and 80 (which also dealt with the late registration of title deeds) and asked for a corrective affidavit to be lodged.

33. That problem having been disposed of, the tribunal then adopted a curious procedure. The appellant was sworn as a witness: thereby, in effect, nullifying the orders of 24 February and 11 May that evidence from the appellant should be by affidavit.

34. Over the next 25 pages of the transcript the appellant dealt, essentially, again with complaint No. 47. The appellant then produced a photocopy of a hand-written letter from him to the Law Society dated 12 October 1992 (exhibit JF2) which had not been previously included in the bundles prepared for the hearing. Curiously, the appellant made little of that letter at that stage, but in the outcome it had a profound effect. In exhibit JF2 he gave explanations in relation to a substantial number of transactions and this resulted in his being eventually found not guilty on 15 out of the 119 complaints.

35. After a short adjournment on the morning of 4 August 1994 the hearing resumed when the appellant then dealt with complaint No. 49 - an allegation that he had prepared a grossly irregular deed of assignment, or, alternatively, "allowing or failing to take adequate measures to prevent [his] employee from preparing a grossly irregular deed of assignment for his client's execution". His explanation (which covered another 20 pages of transcript) was to the effect that the transaction was handled by a solicitor Mr Kelvin Ng without his knowledge and when he discovered the irregularity he took appropriate steps to remedy the position. In the outcome, his explanation was accepted by the tribunal and this resulted in his being eventually acquitted on complaints No. 49, 50 and 51.

36. In the afternoon of 4 August 1994 the hearing resumed with a long rambling statement concerning conveyancing practice in Hong Kong generally. Eventually the lay member of the tribunal intervened:

" MR PONG: Mr Fang. there are many of these complaints which you are saying nearly invariably was because of that. You said many of these complaints are because of situation which you are highlighting. Why don't you point to a few amongst the 119 --

MR FANG: I will now, I will now.

MR PONG: Because we have gone over the generality of it so many times.

MR FANG: I am sorry, please bear with me. I am coming to it.

MR PONG: I think even as a layman I am following you quite well. So it is time to come and say specifically."

37. The appellant then, on the tribunal's invitation, dealt specifically with complaint No. 1 and pointed out the fact that no draft undertaking had been submitted by the purchaser's solicitors before the balance of the purchase price was sent on the day fixed for completion: by that time, the appellant had no alternative but to accept the terms of the undertaking thus imposed, including the time limit of 17 days to produce the title documents. The explanation given by the appellant (covering numerous pages of transcript) was along these lines:

(i) As far as the parties to the transactions were concerned, title had been approved by the respective solicitors and the transaction was completed.

(ii) The failure was in respect of the "ancillary documents" and was often the result of laziness of his staff or the failure of third parties.

(iii) He never "haggled" with the solicitor on the other side for fear of compromising the transaction.

(iv) It was a very common practice amongst small firms to be late in complying with undertakings.

38. In the course of his "evidence" (which at times was more in the nature of a debate with members of the tribunal) the appellant put before the tribunal two documents from the Law Society dated respectively 15 February 1993 (exhibit JF4) and 27 July 1993 (exhibit JF3) as follows:

"CIRCULAR 54/93 (PA)

15 February 1993

SOLICITORS' UNDERTAKINGS IN CONVEYANCING TRANSACTIONS

 

The Law Society is concerned at the increase in the number of complaints of breaches of undertakings given by solicitors in conveyancing transactions. This is particularly marked in the case of failure to comply with an undertaking given to forward documents within a stipulated time after completion has taken place.

A common reason given by members following investigation by the Compliance Committee is that the fault was that of a member of their staff who had failed to carry out the necessary work to comply with the undertaking and not that of the person who had given the undertaking. This is not a valid reason for failure to comply with an undertaking given by or on behalf of the firm.

The opportunity is taken to remind members that they are obliged to exercise close supervision of all their staff for whom they are responsible. Failure to do so may well amount to professional misconduct and subsequent disciplinary proceedings.

 

JOHN CROXEN
Secretary General"

 

 

"27th July 1993

BY FAX

The Senior Partner
All solicitors firms

 

Dear Sir,

The Society is concerned about the delay and increasing cost caused by the failure of solicitors to abide by their undertakings in conveyancing transactions.

Normally before making a complaint, solicitors write a number of reminder letters (some often addressed to the senior partner) and call the clerk involved, usually without success. Often the problem stems from a lack of supervision by the partners of the firm in breach. This in turn is the fault of inadequate office procedures to ensure that the file is brought to the attention of a partner at an early stage.

If you have cause to make a complaint regarding a breach of undertaking in the future it would be helpful if you could supply details of your own enquiries, such as:-

1. The name of the solicitor at the firm in breach and his reaction to your enquiry regarding his breach of undertaking. Did he return your calls and did he seem to make efforts to resolve the situation? Please give details of each contact to enable us to obtain an explanation.

2. Was it your impression that a partner at the firm was aware of the breach? If so, what was his name and what efforts did he make to resolve the situation?

3. Was any response made after you advised the firm that you intended to make a report to the Law Society. If so, by whom and to what effect?

If it is not your practice to contact the solicitor in breach by telephone before making your complaint we would recommend this course of action to you. Experience suggests that it may lead to a more cordial resolution of the dispute and save the time and expense of a referral to the Society.

If you have any observations to make or any advice to give other firms on procedures that you have developed to avoid a breach of undertaking, it would be very helpful to hear from you.

Finally I enclose a handout entitled "DISPUTES BETWEEN SOLICITORS - TEN POINTS FOR THE PARTIES TO NOTE". You may wish to circulate this handout to all your conveyancing staff.

Yours faithfully

 

Paul Brennan
Conduct Section"

39. The appellant was asked to explain the relevance of introducing exhibits JF3 and JF4 which resulted in further lengthy statements which must have tested the patience of the tribunal to breaking point. Before the hearing on 4 August ended, the appellant was asked to make a schedule relating to the breaches of undertaking, to show what the "current status" was relating to those undertakings. The appellant's reply (at 5/0675) was as follows:

" MR FANG: Madam, I would immediately say that most of the staff causing me this trouble have already left the company. What you ask is very valid and so on, but it might be easier said than done, and we might have already put all the files inside Kwai Chung and so on and so forth. So I would do my best...."

40. Shortly thereafter the hearing was adjourned.

8 August 1994

41. The hearing on the afternoon of 8 August 1994 began with a request by the appellant for a transcript of the proceedings up to that point. This, if granted, would have meant an adjournment. The chairman indicated the tribunal's willingness to adjourn, and accede to the appellant's request, provided that the rest of the appellant's evidence should be in the form of an affidavit, to which the appellant agreed. There was, however, a lengthy discussion as to the contents of that affidavit. The appellant was asked if by searching his records, he would be able to ascertain if the undertakings had since been complied with. The chairman said (at 2/0688):

" It is matter, it seems to me, of looking at about 35 files."

42. The transcript then reads:

" MR FANG: Mr Chairman, so far as I know, at the time of these proceedings all the things complained in these matters have been complied with.

But the thing is that I had many people dealing with the things. Mr Chairman, I hope you will accept the fact that physically I'm only one person, and although I'm the sole proprietor, physically - I'm not excusing myself - but physically I'm unable-- well, incompetent, unable to handle all these documentation.

Normally, when a complaint is given to our company 1 ask the clerk in charge to handle everything and to my woe that sometimes I've allowed him too much time to sit on it. Also, Mr Chairman, most of these things-- sometimes are handled by my assistant solicitors and so on, but whenever these things got to the Law Society complaint stage everybody tried to wash their hands out of it.

CHAIRMAN: Yes. But, Mr Fang, do you not have these files on which these undertakings were given?

MR FANG: No, not all of them, Mr Chairman.

CHAIRMAN: Do you have any of them?

MR FANG: Yes. I have some of them but I really-- they have all been packed away and sent to the New Territories and so on.

CHAIRMAN: Do you have access to them?

MR FANG: I have access to them but we have to go and really have to look at them sort of file by file and try to retrieve them.

CHAIRMAN: Are you able to retrieve any of them?

MR FANG: I should be able to retrieve some, but I hope, Mr Chairman, the fact-- this is-- well, I'm sorry. Nothing."

43. Eventually the tribunal made an order as follows:

" The Tribunal has considered the Respondent's application for an adjournment to enable him to file an affidavit in lieu of further oral evidence and the Tribunal has decided to grant an adjournment for this purpose.

The terms of the order are:

1. The Respondent to file with the clerk of the Tribunal an affidavit in lieu of further oral evidence by 4pm on 12th August 1994

that is this coming Friday.

2. The Applicant to be at liberty to file with the clerk to the Tribunal an affidavit in reply to the Respondent's affidavit by 4pm on 18th August 1994

3. That this hearing be adjourned to 2.30pm on 19th August 1994 which a Friday week"

19 August 1994

44. When the hearing resumed on 19 August 1994 the appellant raised two matters:

(i) The fact that there had been two complaints in the past lodged against the appellant by the firm Messrs Woo & Woo of which Ms Lucy Yen was a partner. Though those two complaints were not among the 119 complaints being dealt with by the tribunal, Ms Yen's impartiality as one of the three members of the tribunal was, somehow, compromised.

(ii) There had also been a complaint by the firm Messrs P C Woo & Co. (also not among the cases being dealt with) and as that firm was acting for the applicant in the inquiry, that somehow compromised the prosecutor's "integrity". The prosecutor was a member of the firm of P C Woo & Co.

45. The matter having been raised, the appellant then "tendered himself for cross-examination".

46. The offer was not taken up but the appellant was invited by the chairman to make submissions. This covered pages 2/0700 to 2/0753 in the transcript. Then there was this exchange:

" CHAIRMAN: But, Mr Fang, you haven't told us which ones you plead guilty to and which ones you plead not guilty to. Are you saying that you plead not guilty to them all?

MR FANG: If am allowed to, yes. I think the prosecution has not proven their case and, correct me if I am wrong, I am not required to confess to anything, that's all. Correct me if I am wrong. But this is the view I take that if the prosecution is here with a team of three lawyers to prove their case and if they have not satisfactorily done that then I am not required to do anything else.

CHAIRMAN: So you admit to none of these."

47. After a few more pages the following exchange took place:

" CHAIRMAN: But it will be for the Tribunal to decide whether they have proved it or not. But you are not giving us much assistance in deciding anything in your favour.

MR FANG: Well, Mr Chairman, I admit the task of going through all the cases in its entirety is beyond me me, too daunting, and furthermore I don't know the facts that well. I mean I confess to it. I hope it is human nature that I do not know the facts well. But in so far as I can assist the court I have pointed out that when Mr Harrod swore his affidavit (well, if you pardon me for the expression) he didn't know what he was talking about. He just got all the facts from the files which may be three, four, five years old and dump it in there."

48. The prosecutor was given leave to file an affidavit "in response" and to cross-examine the appellant on his evidence both oral and by affidavit.

49. The appellant was then asked if he had finished his submissions and he replied "I think so". The hearing that afternoon was adjourned.

23 August 1994

50. The hearing resumed on the afternoon of 23 August 1994 when the chairman dealt with the appellant's complaint of apparent bias. The matter was not resolved. Before the hearing was further adjourned, the chairman addressing his remarks to the prosecutor stated:

" CHAIRMAN: Mr Yiu, it is a matter of concern to the Tribunal that Mr Fang is and during these proceedings has been, perhaps a bit in dribs and drabs, been putting in as exhibits to his evidence or as exhibits to affidavits letters, whether written by him to the Law Society or written by the Law Society to him, which have not been disclosed by the Law Society and which do appear, on the face of them, to have some relevance to the complaints. For example, the letter that was put in as JF2, which was a letter of 12th October 1992, written by Mr Fang, and which deals with a number of matters, it seems, relating to complaints made to him by the Law Society, and in particular sets out a schedule of responses made by Mr Fang to, it looks like 15 complaints. It is a matter of concern to the Tribunal that complaints have been made by the Law Society that no or no adequate response was made by the Respondent to letters from the Law Society and yet a letter such as this which - it may be a matter for argument as well that it is an adequate response - but is nevertheless a response to apparently 15 complaints that were being made against him or were pending against him at that time. I think that it would be useful and of assistance to the Tribunal if the Law Society were to review its files in relation to these complaints and produce to the Tribunal, in the form of exhibits to a further affidavit, copies of any letters, whether written to the Respondent or written by the Respondent to the Law Society, relating in any way to the complaints which are before the Tribunal, because it does seem to the Tribunal that we do not as yet perhaps have the full picture in terms of the correspondence.

It is also said by Mr Fang that on many occasions he responded by telephone and - I know that is less than satisfactory, but it may be that the Law Society may have kept some record of telephone conversations that the Law Society had with Mr Fang in relation to these complaints. If any such record, attendance notes or otherwise of those conversations were kept again it would be helpful to the Tribunal to have copies of those before it.

Mr Yiu, what sort of period of time will you and the Law Society require to enable you to file a further affidavit in respect of these matters and also in relation to any answer you may wish to make to Mr Fang's affidavit, or affidavits?"

51. The prosecutor's response was as follows:

"But in view of the question raised in this hearing the prosecution is thinking if we should now exhibit full file documents to enable the Tribunal to just look into all the documents in this file, because of course the investigation will have piles of files here and I think even if we file further documents to exhibit I think the Respondent may not be satisfied with the documents. He may still think there are some documents missing or maybe he'd remember that something could be found in the file. So we are thinking if we should file an affidavit exhibiting all documents as far as possible to assist the Tribunal and also the Respondent fully. So in that case that's why the Prosecution think that we may not have sufficient time to have it done within a month."

On this basis the hearing was adjourned.

1 December 1994

52. At this hearing the prosecution was represented by counsel Ms Maria Yuen who dealt exclusively with the question of apparent bias. This covered over 70 pages of transcript and resulted in the appellant's allegation being rejected; he was ordered to pay the Law Society's costs on a full indemnity basis.

14 December 1994

53. The chairman opened the hearing by saying:

"... on 23 August ... we indicated that having dealt with the issue of whether or not we should discharge ourselves I said that if the Tribunal decides to proceed with these proceedings we will then fix a date for the filing of further affidavit from the Law Society exhibiting files and other documents. Now that reference was to other correspondence not so far disclosed by the Law Society ... and possibly also attendance notes of telephone conversations which might exist and which might be material to the present complaints .... It seems to us, for example, that certain letters which Mr Fang has exhibited to his last affidavit ... appear to us that they were possibly relevant to these complaints and they were not part of the Law Society's documents. So unless Mr Ngai [the prosecutor], you have anything you wish to say on this subject we were proposing to make an order this afternoon fixing a date by which such a further affidavit might be filed with us."

54. Mr Ngai, resiling from the position previously adopted by Mr Yiu (who had indicated willingness to exhibit all the relevant files), stood firm on the Tribunal Proceedings Rules and the orders previously made by the tribunal: He took the stance that as the applicant had disclosed all the documents on which he intended to rely (invoking in effect Rule 9 of the Tribunal Proceedings Rules), it was for the appellant to rebut the case as presented.

55. This then led to another lengthy exchange between the appellant and the tribunal of which the following is a small excerpt:

" CHAIRMAN: My recollection, Mr Fang, is that you accepted, apart from those two instances, you accepted the facts but you didn't accept that it amounted to professional misconduct. You accepted the complaints, the conclusion being from the facts that you were guilty of professional misconduct.

MR FANG: Yes, it was my intention all along that these are fairly trifling matters; it's not cases of dishonesty, and so on and so forth; and I can only do my best in assisting my people, my staff, who handled the files to do the best.

MR PONG: Now Mr Chairman and Mr Fang, the point of agreeing on the facts, let us put aside whether they are considered as trivial matters or not, you contested the factual accuracy of two complaints and you produced evidence to say they were wrong and you were right.

MR FANG: Rebuttal, in other words.

MR PONG: No, no, no, I am going along this agreement on a statement of facts not in dispute.

MR FANG: After you've finished I have the answer for you.

MR PONG: Please don't try to answer me. You are not contesting with me.

MR FANG: I tell you right away, okay? After you've listened to me you can tell me whether I am insane or not.

MR PONG: All-right, I will listen.

MR FANG: Mr Pong, I don't have first-hand knowledge of all these facts. Just by the fact that they want me admit to it is immoral. I don't have the physical conduct of this, I haven't seen Mr Pong writing to me. All these are sort of routine things conducted by my staff. I don't have first-hand knowledge of it. And these people said: admit it, admit it, admit it. I don't have anything to admit. Do you understand that?

MR PONG: No.

MR FANG: On behalf of my company taking responsibility is quite another thing. I may accept responsibility for it if something goes wrong. But from the day to day letters I can't tell whether these letters are true or false. I literally don't have the physical knowledge.

MR PONG: No, the case was whether a series of letters on a particular complaint were written to John Fang & Co, and having had no reply they refer the matter to the Law Society. The Law Society on that complaint also wrote to the company, the firm John Fang & Co., and did not receive replies or satisfactory replies, and those were matters of fact. But you said incorrect and you correctly said they were incorrect by saying that 'I did reply and in my handwriting letters, in my way I replied'.

MR FANG: Some, not all.

MR PONG: Some, not all of them. 'And here is my evidence I replied in one letter to a series of complaints which the Law Society have not produced.'

MR FANG: Yes, thereby prejudicing me.

MR PONG: But when you said there was no attempt to agree on facts not in dispute, but you did. You did go through them and you did say 'I have found out at least two cases were wrong' and you did produce evidence to say that they were wrong.

MR FANG: Yes, as a matter of fact.

MR PONG: I do not know in the procedure of law if that were the procedure of agreeing on matters of fact not in dispute. Maybe it should have been done before the hearing. But this process hearing it these times there was such a thing that went through, i.e. you did not contest that in one complaint there were letters written to your company and that the Law Society wrote subsequently and they were matters of fact."

56. Pausing here, it is worth observing that the first hearing of the tribunal commenced a year before (on 8 December 1993) and the appellant had appeared repeatedly before the tribunal. What the appellant was saying - though not in a clear and structured fashion - was that there could well have been letters in the Law Society's possession - similar to the letter of 12 October 1992 exhibit JF2 - showing that he had responded to other enquiries from the Law Society, thereby indicating his innocence on other complaints. And he was also telling the tribunal that as he did not personally handle all correspondence from other firms of solicitors, the failure to answer those letters could not in every case be laid at his door: He was, of course, responsible ultimately for all his staff, being the sole proprietor of his firm, but professional misconduct in consequence of such failure was another matter. So he was insisting on the applicant strictly proving his case. But the tribunal had by this time lost patience with him. The point that there might be material in the possession of the Law Society relevant to his defence simply got lost in the dialogue which ensued. The waters were muddied further by the appellant making two applications to the tribunal which were quite frivolous: (i) An application to the tribunal to "review" its ruling made on 1 December, which was declined; (ii) an application to the tribunal that they should discharge themselves from further hearing the complaints. This too was dismissed.

57. At about 4.40pm the appellant was invited to make his final submissions. The appellant asked for time to "put up a sort of written submission" but this was refused. He was asked to address the tribunal immediately. Not surprisingly, the appellant was caught off-guard since, originally, the hearing on 14 December was intended merely for the tribunal to give directions concerning the further disclosure of material by the Law Society.

58. The appellant said:

" Well, can I have 10 minutes to compose myself, Mr Chairman, because I didn't think this would come today."

59. There was a further exchange between the chairman and the appellant and eventually he was given 5 minutes to prepare his submissions.

60. The tribunal adjourned briefly and heard the appellant, whose further submissions occupies over 20 pages of transcript.

61. Thus, the enquiry came to an end.

Has there been a proper enquiry?

62. The problem which afflicted these proceedings from the outset was the sheer number of complaints, some of them going back to the year 1988. The breaches of undertaking formed the core of the complaints; but the circumstances of the breaches, and the way the appellant's firm dealt with them (or failed to deal with them) differed from case to case. The 119 complaints can be broken down into the following:

33	breaches of undertakings
47	failures to give any or any sufficient and satisfactory answers to the Law Society's enquiries
3	cases of undue delay in registering title deeds
1	case of preparing a grossly irregular title deed
1	case of failing to register title deeds
1	case of post-dating title deeds
1	case of acting for both vendor and purchaser
1	case of acting for the client of another solicitor
31	failures to deal promptly with correspondence from other solicitors

63. Before the question of procedural unfairness can be properly determined, the relevant issues must first be identified.

Breach of undertaking

64. Turning first of all to the complaints of breach of undertaking, Ms Yuen makes the following points: Completion by undertakings relieves solicitors from the obligation to deliver the executed assignment and title documents and to perform other tasks such as the apportionment of rates and expenses on the day fixed for completion; the solicitor for the vendor would know at the requisition stage what documents might be needed on the day fixed for completion; he would also know three working days in advance whether the purchaser was calling for formal completion; so the undertakings "imposed" on the solicitor at the last minute should come as no surprise; the time limits (17 days, 21 days etc for completion) are well-known to practitioners. Thus, a breach of undertaking is prima facie misconduct.

65. In an ideal world, breaches of undertakings in conveyancing matters would be rare. But the tribunal clearly did not take the view that the mere fact of breach necessarily amounted to professional misconduct: if they had, they would not have acquitted the appellant of Complaint No. 31. There the appellant's firm acted as solicitors for the vendor; the title deeds should have been sent to the purchasers' solicitors by 17 April 1990, but the undertaking was not fully discharged until 20 August 1991, after repeated requests by the purchasers' solicitors, ending with a formal complaint to the Law Society. The tribunal nevertheless found the appellant not guilty of professional misconduct because the appellant had taken steps to deal with the purchaser's solicitor's complaint: that is, he had "contacted [the solicitor] personally and apologised to him for his firm's tardiness" and had asked that solicitor to liaise with him for any follow-up which was required.

66. Likewise in relation to complaint No. 47. There, the appellant's firm as solicitors for the purchaser had given an undertaking to Messrs Li and Cheung to settle the apportionment account when received. It was received on 28 February 1990 but the firm delayed in honouring the undertaking for nearly a year. It was eventually settled on 4 January 1991, but only after repeated requests by Messrs Li and Cheung and a complaint to the Law Society. The tribunal considered the complaint "a minor and insignificant matter" and made "no finding" in relation to that complaint.

67. What this clearly demonstrates is that, in considering the matter, the tribunal felt it necessary to look at the breach and its consequence in the round; it was not a case where a finding of professional misconduct could be made from the mere fact of breach.

68. This approach is entirely consistent with the Law Society's policy for dealing with complaints of breaches of undertaking by solicitors. It was to encourage the "cordial resolution" of disputes, thus saving "the time and expense of referrals to the Law Society" (see the circular of 27 July 1993 referred to earlier): it was not to treat the breaches of undertaking as per se professional misconduct.

69. This view is reinforced when one considers the successive annual reports of the Law Society. For example, in the report for 1991 there is the following: 43% of all complaints related to breaches of undertaking, and 71% of those arose from conveyancing. But in relation to the seven disciplinary committees appointed in 1991, none was for breach of undertaking in a conveyancing matter. This could not have happened if a strict view had been taken of breaches of undertaking. In the 1992 report there is the following statement:

" Allegations of breach of undertaking in conveyancing matters continue to be the major area of complaint comprising 58% .... During 1992 the amount of time spent on breaches of undertaking complaints was greatly reduced due to the conciliation process. Certain firms were the subject of a high number of complaints. The cause was identified as inadequate office procedures, often combined with a failure to reply to correspondence from fellow solicitors".

70. In the 1993 report, there is a reference to the reduction of allegations of breach of undertaking, as a result of the "success of the conciliation scheme".

71. It is clear from this material that solicitors as a body did not regard breaches of undertaking in conveyancing matters as per se professional misconduct. And when such events arose, as they did frequently, the governing body encouraged settlement between the solicitors themselves. It did not treat each case as prima facie misconduct, fit to be dealt with by a disciplinary tribunal.

72. The tribunal's finding on complaint No. 31, in effect, established the benchmark for judging the other cases. Plainly, the tribunal cannot properly set different thresholds for different breaches of the same undertaking. The tribunal is entitled to expect solicitors to maintain high professional standards, but in making findings of professional misconduct it must be consistent in this regard. What this means is that the tribunal was required, in relation to the other 30 conveyancing transactions in which there were also breaches of undertakings, to subject them to the same scrutiny as they did with complaint No. 31. Without such scrutiny, it would not have been possible to conclude whether the appellant was guilty of misconduct or not. And, as regards the standards of professional conduct, the tribunal plainly cannot be out of line with the views of the governing body of the Law Society, and with the majority of members themselves.

73. Moreover, as is clear from the circular dated 27 July 1993 (Ex JF4) the questions such as "was the partner at the firm aware of the breach", "what efforts did he make to resolve the situation" etc, were plainly relevant to the consideration of guilt. This underlines once again the distinction between civil liability and professional misconduct.

Failure to give "any or any sufficient and satisfactory answer"

74. The formal complaints lodged against the appellant alleged that, in relation to each breach of undertaking, he failed to give "any or any sufficient and satisfactory answer to the Law Society's enquiry".

75. As can be seen, the complaint makes an allegation in the alternative. There is a considerable difference between a solicitor's failure to give any answer to the Law Society's enquiry and the case where he fails to give any sufficient and satisfactory answer. If the former were the case, professional misconduct would be easily established. But if the latter were the case, the tribunal would have to examine the nature and quality of the reply before it could safely convict. Given the way the proceedings were conducted, did this take place?

76. Since the tribunal was, upon the conclusion of the hearings, constrained to deal with 119 complaints, to have set out their findings in detail would have been an almost impossible task. So, by necessity, their findings had to be terse to the extreme. As such, this cannot be criticised: so long as the findings of fact are sufficient to justify the conclusions of guilt. We will, later on in this judgment, examine in greater detail some of those findings, but this general observation can at this stage be made: the meagreness of the tribunal's findings has rendered the task for this court even more difficult. Ms Yuen, counsel for the Law Society, has invited us to infer certain findings which would justify the tribunal's conclusions. This cannot be right. Having regard to the manner in which the proceedings were conducted, such an approach would only be justified if the evidence in that regard tended all one way.

77. Another general point should be made. As mentioned earlier, the production by the appellant of a copy of his letter of 12 October 1992 in the course of the hearing resulted in 10 of the complaints of failing to give satisfactory answers to the Law Society being eventually dismissed. It is disturbing to know that the original of this letter has throughout been in the Law Society's possession, undisclosed. Whilst technically the Law Society was not at fault - Rule 9 of the Tribunal Proceedings Rules only requires each party to furnish a list of documents on which he intends to rely - it heightens the possibility that there may be other letters (or notes of telephone conversations) exculpating the appellant in other cases as well.

78. It is clear that when the appellant has told the Law Society that efforts were being made to resolve the matter with the solicitors on the other side, this is deemed a sufficient explanation by the tribunal: Hence the dismissal of complaints No. 32, 38, 46, 62, 71, 73, 75, 81 and 85. And yet, similar explanations given in relation to complaints No. 4, 30, 36 and 57 did not result in those charges being dismissed. Ms Yuen suggests that the relevant letters might simply have been overlooked by the tribunal. This is disturbing.

79. In relation to complaint No. 28 the appellant has recently found a copy of a letter from him in response to the Law Society's enquiry. It is a letter dated 4 January 1991 in which he stated:

"K.C. YEUNG, ESQ., DIRECTOR OF PROFESSIONAL CONDUCT LAW SOCIETY OF HONG KONG

4 January 1991

Dear Sir,

Complaint by M/S Hermes W.K. LUI & CO.

I've had the pleasure of Mr Hermes Lui's company prior to his opening his own firm. I've gone down to Rm 601 Swire House to see him specially concerning this regrettable and avoidable incident and apologised to him concerning the acrimony caused by the breakdown of communication (our fault) and the tardy manner in which we went about handling the whole case. Mr Lui has kindly consented to maintain personal contact with me in future and has graciously accepted my apology.

Sincerely"

80. Ms Yuen asks us not to receive such letter into evidence on "Ladd v. Marshall principles": referring to Ladd v. Marshall [1954] 1 WLR 1489 governing the exercise of discretion under Order 59 r10(2). This submission is surprising. The Law Society is not in hostile litigation with the appellant. If further evidence casts doubt on the soundness of a particular complaint it is difficult to see why this court should refuse to receive it - unless the failure to adduce the evidence is on account of trickiness or conduct of that kind on the part of the appellant. Here, the fault (which led the appellant into trouble in the first place) is gross inefficiency and bad office management. There has been no attempt to over-reach. The letter of 4 January 1991, if produced before the tribunal, would probably have led to an acquittal of complaint No. 28.

Failure to deal promptly with correspondence from other solicitors

81. Here, the professional misconduct, if such be the case, must be focussed upon the appellant's failure: hence the relevance of such questions as "was the partner at the firm aware of the breach", etc.

82. The tribunal was of course entitled to infer from the circumstances of a case that, given the nature of the complaint from the other solicitor, the appellant must have been told of the problem by his staff. What the tribunal was not entitled to do was to convict without any reference to the correspondence, as if there had been a blanket admission of every statement of primary fact in the 119 charges.

Admissions of fact

83. We have given this matter our most anxious consideration. The appellant seemed at one time to have been saying that he admitted all the statements of fact except in complaints No. 47, 49 and 57. But that was in fact not so, upon a careful scrutiny of the whole of the transcript; nor was it so understood by the chairman. An extract from the transcript of the hearing on 14 December (the last day) is relevant:

" CHAIRMAN: Well, they have presented the facts, Mr Fang. It is for you to say whether or not you agree with them.

MR FANG: Well, Mr Chairman, this is what I say all along: if it is your case that I must prove my innocence, that's one case.

CHAIRMAN: Mr Fang,. I am not saying anything of the sort.

MR FANG: I disagree. I mean I submit that with their bundle of documents and the affidavits of Mr Harrod alone they have not proved their case, and they might have gone about it the wrong way. I further submit that all these are hearsay evidence. If I agree to any of the facts that's quite another thing.

CHAIRMAN: But you don't agree to any of the facts?

MR FANG: And they have never asked me to agree to any facts. And I am saying that I have a right --

CHAIRMAN: Mr Fang, the very first step in these proceedings was a notice to admit facts.

MR FANG: I didn't admit any facts.

CHAIRMAN: I know you didn't, but you can't say that you weren't invited to.

MR FANG: Well, I am glad I did not oblige to it.

MR PONG: Mr Chairman, I seem to remember that Mr Fang did agree to the list except two cases, two complaints, and against one of them was this date of registration some many more months later, and we took the effort to go to the Lands Registration and found out that was registered. But coming back to what Mr Fang has said, he did say that these were the two points that he did not agree.

MR FANG: I think I qualified my statement, Mr Pong, if you put it that way. And my contention is that I do not have to admit to any guilt unless they have proven beyond reasonable my guilt. That is my point. If it is the Tribunal's view that I must plead guilty, I must rebut their case, that's quite another thing."

84. Repeatedly, the appellant said he required the applicant to prove his case - and, in his vehemence, even called in aid the Bill of Rights. The tribunal could not, in the end, have understood him to have made clear and unequivocal admissions of fact.

What did fair enquiry entail?

85. Plainly, the tribunal was obliged to resolve the true issues, before it could properly convict.

86. The broad question then is whether the proceedings were conducted in such a manner as to enable the real issues to emerge, and for them to be fairly resolved.

A more basic point

87. Mr Michael Thomas QC, Counsel for the appellant, says that there is a more basic point. Quite apart from failing to deal with the real issues, there was in fact a denial of due process; procedurally, the enquiry was so flawed that we do not even need to go on to examine the evidence, to see how the tribunal made their findings of guilt; however strong the evidence may seem on individual charges, if there had been a denial of due process, the findings must as a matter of law be quashed in their totality. He relies upon the statement of principle by Lord Bridge in Lloyd v. McMahon [1987] AC 625 at 702:

"the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."

Prima facie case

88. The first point Mr Thomas takes is this: Before a complaint can properly proceed to a hearing, Rule 8(1) of the Solicitors Disciplinary Tribunal Proceedings Rules requires that a "prima facie case is shown": that is, shown upon the face of the affidavit lodged in accordance with Rule 3. Rule 8(1) states:

"8. Notice of date of hearing

(1) Where an application is made pursuant to rule 3 and in the opinion of the Solicitors Disciplinary Tribunal, a prima facie case is shown against the respondent, the Solicitors Disciplinary Tribunal shall fix a day for the hearing and the clerk shall serve notice thereof on each party to the proceedings and shall in every case serve on the respondent a copy of the affidavit and a copy of the application."

89. The affidavits in this case were made by Mr Harrod who knew nothing of the matters in the complaint. Some of these complaints, by the time the tribunal commenced its hearings in December 1993, were plainly stale. Mr Thomas makes two submissions:

(i) Under Rule 8(1), the tribunal was required to hear the solicitor concerned before deciding that "a prima facie case is shown". As the appellant never had this opportunity, the process was fundamentally flawed.

(ii) In any case, no prima facie case was shown upon the face of the affidavits. Therefore the tribunal had no jurisdiction to "fix a day for the hearing" pursuant to Rule 8(1) and everything that happened thereafter was without jurisdiction.

90. If either of these points be valid, Mr Thomas submits that the findings of misconduct must be quashed in their entirety; there is no need to look further and consider the evidence as a whole.

91. We cannot accept these submissions. As to (i), Rule 8(1) is clear enough. The tribunal's duty was to entertain the application made under Rule 3 and to consider if a prima facie case was shown. Normally, before a complaint is submitted to the Tribunal Convenor under Rule 4, the Council would have heard from the solicitor concerned. Rule 6(1) then provides:

"6. Dismissal without answer by respondent

(1) If upon consideration of any such documents transmitted to the Solicitors Disciplinary Tribunal under rule 4, the Solicitors Disciplinary Tribunal is of the opinion that no prima facie case is shown for any disciplinary action, the Solicitors Disciplinary Tribunal may dismiss the application without requiring the respondent to answer the allegations, and without hearing the applicant."

92. Rule 8(1) is the obverse of Rule 6(1). Just as the application may be dismissed without hearing the applicant, so the tribunal can fix a day for the hearing without first inviting the solicitor to respond.

93. As to (ii), Mr Thomas' submissions take too narrow a view of Rule 8(1). Whatever might have been the position prior to the first hearing, the fact is that the notice to admit documents was served and the documents were properly brought before the tribunal when the hearings began. This is, however, far from saying that a finding of professional misconduct was necessarily justified.

Due process

94. Mr Thomas makes the further additional points. He says, having regard to:

(i) the tribunal's acceptance of the prosecutor's 'shot-gun' approach in relation to the 119 complaints (apart from No. 1, 1A, 2, 47, 49, 50, 51 and 72) and in particular his failure to deal with the circumstances of each complaint;

(ii) the prosecutor's failure to disclose all relevant documents, despite Mr Yiu's acceptance of the need to lodge a further affidavit "exhibiting all documents" as stated at the hearing on 23 August 1994;

(iii) the hostile interventions of the members of the tribunal during the hearing and pressure applied to make the appellant plead guilty;

(iv) the way the hearing on 14 December 1994 was conducted: when the appellant was led to expect that directions would be given to the prosecutor to lodge a further affidavit of documents, only to find himself being required to make final submissions with five minutes' notice;

the proceedings failed to meet the minimum standards of fairness required by law and they must be quashed in their entirety on that ground.

95. We regret to say that there is considerable strength is these submissions. The tribunal should have realised, after the appellant had outlined his case on 11 May, that the prosecutor's "shot-gun approach" was oppressive; from the sheer number of complaints alone the tribunal should have realized that it was well-nigh impossible to deal with the individual cases with care; the details of each conveyancing transaction must necessarily be examined, if fairness was to be achieved. The tribunal should have taken charge of the proceedings by the exercise of proper case management; they could for instance have adopted the appellant's suggestion that some of the charges be selected for hearing "so that he could put his points across". Once the tribunal decided to play to the prosecutor's tune, a balanced and careful enquiry into the 119 complaints was severely compromised.

96. On the other hand, this court should avoid any semblance of requiring the adoption of the standards and processes of a criminal trial by disciplinary tribunals of this kind. Essentially this is a case of a solicitor being tried by his peers, where many assumptions of fact could safely be made. The solicitor-members of the tribunal could be expected to have detailed knowledge of conveyancing in Hong Kong and its difficulties.

97. Having weighed Mr Thomas' points with anxiety we have come to the conclusion that strong though they are, they alone cannot suffice; this court cannot simply declare, in effect, that the proceedings are a nullity, without at any rate examining closely how the conclusions of guilt on the 84 complaints were reached.

The basis of the tribunal's findings

98. The applicant had made no enquiries of any of the complainants before the proceedings were launched. If he had, he might well have been met with the statement: "We have settled this matter with John Fang & Co. years ago". It is quite possible therefore that most if not all of the earliest complaints had effectively been dealt with one way or another before the inquiry began. The appellant so asserted in his testimony before the tribunal.

99. In these circumstances, any proper conduct of the enquiry necessarily involved an investigation into the individual circumstances of each case. The extent to which this took place is highly questionable. The prosecutor relied on Mr Harrod's two affidavits and on the fact that, under Rule 36(1) of the Tribunal Proceedings Rules, the authenticity of all the documents was deemed admitted. The correspondence - deemed authentic under Rule 36(1) - went back, in the earlier cases, many years. The affidavits made no attempt to state the position as at the time they were sworn. As can be seen from the transcript of the hearing on 4 August 1994 the appellant was asked to make a schedule showing the "current status" of the various breaches of undertaking, but the appellant explained his difficulties and said he would try. The matter was then simply left in the air.

100. As regards the failure to deal with correspondence, if this had been a case where the appellant had simply ignored letters from his professional colleagues and the Law Society, the prosecutor's blanket approach might have been justified. Further, his approach was not entirely consistent. In opening the case on 2 August 1994 the prosecutor said:

"The Law Society, on receipt of the complaint, would immediately write to the [appellant] requesting [him] to give an explanation to the complaint. Invariably, the [appellant] would not reply to the Law Society's letter ....".

101. If this were accurate, a finding of professional misconduct would be easy to make. But this statement is palpably wrong, and later passages in the opening statement shows that this was not a stance the prosecutor felt able to maintain.

The appellant's own conduct in the enquiry

102. The appellant's own conduct at the inquiry was unwise. It is quite possible that he simply felt overwhelmed by the sheer weight of the complaints. Nevertheless, his inability, or unwillingness, to deal with the individual complaints clearly aggravated the tribunal's own difficulties. It will be recalled that as late as 8 August 1994 (some time after the applicant's case had closed) a question arose as to whether there should be an adjournment to enable the appellant to seek access to his files which had been packed away and sent to the New Territories. A matter like this should never have emerged at this late stage. It should have been dealt with at the preliminary hearings. The appellant told the tribunal that he might be able to retrieve some of the files and would be able to say, in some cases, whether the undertakings had been complied with. The tribunal acceded to the appellant's application to adjourn but gave him less than 4 days to file a further affidavit. Nothing suggests that the appellant availed himself of the opportunity to gain access to his files. The further affidavit which was lodged simply made broad statements, and no further mention was made of those missing files.

103. Looking at the matter in the round, there is no doubt that the appellant had contributed materially to the unsatisfactory way in which the proceedings took place.

Tribunal's finding on breaches of undertaking

104. Counsel for the Law Society categorised complaints No. 1 and 3 as "extreme cases" of breaches of undertaking.

105. It would be convenient to take complaint No. 1 first, but, to make sense of it, complaint No. 1A (relating to the appellant's failure to respond to correspondence from the purchasers' solicitors) and complaint No. 2 (alleging failure to "give any or any sufficient and satisfactory answer to the applicant's enquiry" in respect of the breach of undertaking in complaint No. 1) must also be referred to.

106. The tribunal's finding on complaint No. 1 is as follows:

"Complaint No. 1

This complaint relates to a breach of undertaking by the Respondent given to Messrs. Charles Yeung Clement Lam & Co., solicitors, in his professional capacity. As the vendor's solicitor in selling a property known as Flat A on the 7th Floor of No. 5 Mount Sterling Mall, Kowloon the purchase price was sent to the Respondent on 11th September 1989 subject to his undertaking to send certain title deeds to Messrs. Charles Yeung Clement Lam & Co., the confirmor's solicitors within 17 days from 11th September 1989. The Respondent sought no revision of the undertaking and the purchase price was not returned. In breach of his undertaking he failed and/or refused to send the title deeds to Messrs. Charles Yeung Clement Lam & Co. despite their repeated requests and demands and complaints to the Applicant. The Tribunal finds the Respondent guilty of professional misconduct in respect of this complaint."

107. It must be assumed that the tribunal, in making the finding of misconduct in complaint No. 1, had reference to the letters from the purchasers' solicitors Messrs Charles Yeung Clement Lam & Co. as set out in complaint No. 1A. Here, we immediately come up against a difficulty. The tribunal's finding on complaint No. 1A is equivocal. The tribunal, after having set out a number of letters from that firm spanning the period 29 September 1989 to 14 November 1990 found:

"The [appellant] failed to give any or any prompt reply to the said letters."

108. This is a mere repetition of the complaint itself and says very little as a finding of fact.

109. Being unable to determine from the tribunal's statement what precisely was the failure as found in complaint No. 1A, we turn to the letters themselves, copied in Bundle 3. We see that the letters from the purchaser's solicitors were, at the beginning, marked for the attention of either a Mr Chan Kwok On or a Miss Wong in the appellant's firm. They were not marked for the appellant's personal attention. The letters exhibited by the prosecutor are one-sided, and contain no correspondence from Messrs J. Fang & Co. But it is clear from reading those letters that the respective firms of solicitors were in constant contact with each other: either by letter or by phone. For example, it can be seen from the letter of 7 October 1989 (to which, it is alleged, there was no reply) that a reply was given on 12 October. In Messrs Charles Yeung Clement Lam & Co.'s letter of 12 February 1990 there is a reference to "your letter to us dated 22 November 1989" and in a letter dated 11 July 1990 there is reference to "your letter of 10 May 1990". By 14 November 1990 the purchaser's solicitors had lost patience and gave a further five days to comply, otherwise the matter would be reported to the Law Society. Finally, on 10 December 1990, the solicitors lodged their complaint with the Law Society, when there were still four documents out of 15 outstanding.

110. Ms Yuen, in her submissions, said there were "11 reminders from Charles Yeung Clement Lam & Co. over the course of more than 1 year from October 1989 and November 1990 when the undertaking remained unhonoured". This is not an accurate categorisation of those letters. They were not all "reminders". The letters provide evidence, to some extent, of dialogue between the solicitors and attempts to resolve problems.

111. In making their findings on complaint No. 1, the tribunal simply repeated the averments in the complaint itself: to the extent of finding that the appellant had "failed and/or refused" to send the documents to Messrs Charles Yeung Clement Lam & Co. There is a difference between a failure and a refusal to send the documents, in terms of culpability. If a solicitor refuses to send documents, he is wilfully frustrating the scheme for completion by undertakings; if he has merely failed, then in terms of professional misconduct the extent of the failure must be evaluated. How, then, has the appellant transgressed, to the extent of committing professional misconduct - apart from the fact that by the time of the complaint (10 December 1990) four documents out of 15 had still not been delivered to the purchaser's solicitors by his firm? The finding on complaint No. 1 is silent.

112. Ms Maria Yuen, for the Law Society, argues thus: The breach of undertaking is undoubted; once a prima facie case is established, it is for the appellant to show what steps were taken to remedy the breach, since the facts are peculiarly within his own knowledge; in the absence of an explanation from the appellant, the tribunal was entitled to find professional misconduct established. Ms Yuen points out the fact that on 8 August 1994 the appellant was given an opportunity to locate his files (said to have been packed away in the New Territories) and, though the time given to him was short for that purpose, when the hearing resumed on 19 August the appellant did not tell the tribunal whether he had located the files and if so what had been revealed. The tribunal is therefore entitled to draw an inference adverse to the appellant.

113. These are powerful submissions. It is clear from the transcript of the proceedings - particularly what occurred on 8 August 1994 - that the chairman considered it relevant to find out whether the undertakings were eventually met. If they were, the appellant might have been acquitted in relation to complaint No. 1- as he was in relation to complaint No. 31. There was evidence before the tribunal from the appellant, for what it was worth, that as far as he knew, at the time of the proceedings, "all the things complained of in these matters" had been complied with: see transcript of 8 August 1994. The tribunal never expressly rejected this or said it was inherently improbable.

114. The inherent probabilities were not all one way: some were in the appellant's favour. Was it really the case that an undertaking given in September 1989 had still not been complied with when Mr Harrod lodged his affidavit? If the facts had been viewed in the round, as they should have been, the tribunal might well have concluded that complaint No. 1 was not sufficiently proved.

115. Having reached this point, we cannot see how the tribunal's finding of guilt on complaint No. 1 can properly stand. There are simply not sufficient findings of fact to justify the conclusion of guilt. This is quite apart from the further point made by Mr Thomas: that it must be shown that, in relation to the averments in complaint No. 1, the appellant was personally culpable: not simply that he failed to have an office system such that when problems of this kind arose, they would be brought to his personal attention.

Complaints No. 9, 13, 15, 17, 25, 33, 37, 39, 41, 61, 70, 76, 84

116. The appellant was found guilty on the above 13 complaints of breaches of undertaking, but the related complaint of failure to give any or any sufficient and satisfactory answer to the Law Society's enquiries were dismissed.

117. Mr Thomas submits that it is a logical absurdity to find in effect that there was no explanation or excuse for breach of undertaking, and therefore the appellant was guilty on those complaints, and yet in respect of the related charge of failing to give a satisfactory explanation to the Law Society for such breach, the appellant was acquitted. He therefore submits as a matter of law that the findings of misconduct on these charges must be quashed.

118. We would not go as far as that. There is in our view no question of law involved. But the points raised certainly suggest that we should look at the findings of misconduct with particular care.

119. Take, for example, complaint No. 13 which relates to a transaction in which the appellant's firm were solicitors for the mortgagor. The corresponding charge of failing to give a satisfactory answer to the Law Society's enquiry is complaint No. 14. The mortgage loan was sent to the firm on 27 June 1991 subject to an undertaking to send all title deeds including the release of a legal mortgage to the mortgagee's solicitors within 21 days. It is averred in complaint No. 13A that the mortgagee's solicitors sent a reminder to the appellant on 10 September 1991 and he failed promptly to deal with correspondence from that firm. However, the tribunal dismissed complaint No. 13A and likewise complaint No. 14 on the ground that the appellant may have given a sufficient and satisfactory explanation in relation to the mortgagee's solicitor's complaint.

120. These being the findings relating to that mortgage transaction, and bearing in mind the proper approach to the complaint of breach of undertaking generally, it is difficult to see how the finding of professional misconduct in relation to complaint No. 13 can stand: unless the tribunal, in relation to this complaint, lowered considerably the threshold of guilt so that the failure to meet the undertaking within 21 days was enough by itself to constitute misconduct. Nothing in the nature of those undertakings justify such an approach.

121. Take another instance: complaint No. 33 where the firm acted as solicitors for the mortgagor in purchasing a flat (with a carparking space) in Seaview Garden Tuen Mun. The firm received the mortgage loan on 13 August 1990 subject to an undertaking to send all title deed to the mortgagee's solicitors within 21 days (by 2 September 1990). They were late by about 1 month: the documents were not completely sent until 8 October 1990, 6 days after those solicitors had complained to the Law Society. On 5 December 1990 the Law Society (presumably being unaware that the matter had in the meanwhile been settled) wrote to the appellant asking him to identify the handling solicitor and the clerk of the case. The appellant failed to answer and reminders were sent on 21 December 1990, 30 July 1991, 9 September 1991 and finally on 7 October 1991. A year later, on 12 October 1992, the appellant gave his explanation as follows:

"P. Brennan Esq., Law Society of Hong Kong

12 October 1992

Dear Paul,

 

Re: Your letter of 3/8/92

I'm answer your letters which you addressed to this firm/Terry Leung King Kwong where the files are handled by Mr Leung and with myself the partner handling/in charge of the files.

It is respectively submitted:-

1) It is in practice immaterial whether an undertaking was imposed on the firm (J. FANG & CO.) e.g. that a relevant document be given to the other firm within certain days. In most cases the undertaking cannot physically be complied with due to circumstances beyond our control e.g. Another firm is in technical breach of a similar undertaking imposed by us on them. e.g. There is delay, inadvertent or otherwise by our own staff.

2) It is immaterial how the delay was caused.

3) The Law Society, by its inexplicable attitude, likes to "interrogate" each individual concerned with the file and "wring" an "explanation" (I would think extracting a confession a more apt description) out of each staff, solicitor partner etc. The process/procedure is longwinded, antiproductive and put all concerned in a very defensive stance. Afterall, people working in law firms - lawyers, partners staff senior and junior alike ought to be granted civil/human rights when accused - they may "even" have the right to remain silent and put the normal burden of proof of guilt on you.

4) If a firm complains of breach of undertaking against us writes to you, you can be assured they want assistance from you to help get what they wanted, not to chop off our head. Your letter of 11/8/92 to us (Re PEB/V1/P196/92) points to a change of this bloody mindedness and attitude by the Law Society and is to be most commended.

5) If remedial action is sought on behalf of complaining firms and not retribution, we will for one respond with alacrity and do whatever is necessity to remedy the defect post-haste.

6) Whether another firm is involved in the chain of delay, we hope you'll allow us the freedom of choice not to get them involved at this stage.

7) We would like to add we seldom bother the Law Society with complaints of breach of undertaking against another firm - we would however like to add this phenomena is the rule rather than the exception in the boom years of property transactions (89 - 1st half of 92).

8) For the record when we do complain, there are cases where the situation complained of has not been remedied by the Law Society since 1989/90.

9) The individual reponses follow where we would apologise for the delay to you and the complainant where appropriate without laden you with feeble excuses (explanations).

10) Needless to say, I attribute all the unpleasant consequences to the fault of the whole undertaking system which was so ill devised by the Law Society before the boom years of property and before the advent of separate representation. I wouldn't mind talking about how the system could be improved, but are you interested and if so are you conversant in Hong Kong Conveyancing practices?

11) ....

12)

(1) This complaint was personally handled by me eons ago and if I remember correctly I already wrote to the Law Society.

(2) I telephoned Miss Fanny Wong of Liu Chan Lam and fortunately for me she remembered that I liaised with her many months ago whence she informed me confirming she received everything she asked for from us. I don't believe she would pursue the complaint."

122. The tribunal acquitted the appellant of complaint No. 34 (failure to answer the Law Society's enquiry), presumably accepting the appellant's statement that the mortgagee's solicitors had received everything: and perhaps that he had already written to the Law Society "eons ago".

123. In the light of all this, the basis for finding the appellant guilty on complaint No. 33 is obscure: unless the sending of the documents late by about 1 month alone constitutes professional misconduct.

124. The analysis in relation to complaints No. 13 and 33 is equally appropriate in relation to all the other remaining 11 complaints dealt with under this heading. The tribunal's approach in each instance was virtually identical.

Findings of guilt on the 31 complaints of breach of undertaking

125. Having reached this point, the conclusion we have reached this that none of the findings of professional misconduct on breach of undertaking can properly stand. The findings on the following complaints must accordingly be quashed: No. 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 33, 35, 37, 39, 41, 43, 61, 63, 66, 68, 70, 76, 78, 82, 84 and 86.

Complaint No. 72

126. The tribunal's finding in relation to complaint No. 72 is as follows:

"Complaint No. 72

This complaint relates to the post-dating of a title deed or alternatively allowing or failing to take adequate measures to prevent his employee from preparing a post-dated title deed. The Respondent was the purchaser's solicitor in purchasing the property known as Flat A, 18th Floor, Block 10, Wonderland Villas, New Territories. Completion took place on 24th August 1990 and the purchase price together with the Assignment duly executed by the vendor was sent to the Respondent by the vendor's solicitors Messrs. Joseph C.T. Lee & Co. on 24th August 1990. The vendor subsequently received a property tax demand and discovered that the Assignment had been post-dated to 20th July 1991. The Tribunal finds the Respondent guilty of professional misconduct with respect to this complaint."

127. In relation to this matter, the tribunal also found on complaint No. 73 that when the Law Society wrote to the appellant asking for his explanation, he replied the next day, by a letter of 15 April 1993: an explanation which justified his acquittal on complaint No. 73. Does this necessarily mean that the finding of guilt on complaint No. 72 is flawed, as Mr Thomas contends?

128. Turning to complaint No. 72, the position quite simply was this: The completion took place on 24 August 1990. Accordingly, the assignment should have borne that date. In fact, it was dated and registered in the Land Office nearly a year later (20 July 1991), causing the Inland Revenue Department to send to the vendor a property tax demand for that period, when clearly the vendor had ceased to have any liability. This was a very serious matter.

129. The reply to the Law Society's enquiry, dated 15 April 1993, was as follows:

"The Secretary, The Law Society, Attn. Mr Paul Brennan

15th April 1993

Dear Sir,

Re: Complainant: Messrs Joseph C.T. Lee & Co.
Respondent: ourselves

We refer to your letter of 14th April, 1993 in connection to the captioned matter.

As an initial step to try to resolve this matter, we send you herewith for your reference a copy of letters dated 19th and 30th March, 1993 addressed to the captioned Complainant and the Inland Revenue Department, contents of which are self-explanatory.

We confirm that the handling clerk in this matter is called HUI MAN PAO.

For further information, we would have to get the file and look into the matter.

We would ask the individual to furnish an explanation as requested. Our John Fang will write to you again after receiving a reply from the Inland Revenue Department - as at this moment not at hand yet (27/4/93).

In the meantime, please contact our Mr John Shum or Miss Jane Pun if you need further information.

 

Yours faithfully,

 

For and on behalf of
Messrs. J. Fang & Co."

130. The "copy letter dated 19th and 30th March 1993 addressed to the captioned complainant and Inland Revenue Department" were not produced. Nevertheless, the tribunal was entitled to take this letter as a sufficient reply to the Law Society's enquiry and acquit the appellant of complaint No. 73. But did this absolve him in any way of misconduct in relation to complaint No. 72?

131. As can be seen, the finding merely repeated the complaint which, in effect, was that the appellant had personally post-dated the title deed or alternatively allowed his employee to a post-dated title deed or alternatively failed to take adequate measures to prevent his employee from doing so.

132. This is a sliding scale of culpability. The tribunal was, of course, entitled to find the appellant guilty on the lowest scale, namely, that he had failed to take adequate measures to prevent his employee from preparing the post-dated assignment. But was that the basis upon which the tribunal convicted?

133. Ms Yuen on behalf of the Law Society submits thus: There is clear evidence on the appellant's own admission that his firm had post-dated the assignment some 11 months after the date of completion; the appellant did not produce any contrary evidence; there was therefore sufficient evidence for the tribunal to find him guilty. This is all well and good, as far as it goes. The problem is: What was the nature of the appellant's culpability? Was it because he had allowed his employee to prepare a post-dated title deed, or alternatively had failed to take adequate measures to prevent his employee doing this? The tribunal, in its finding, merely repeated the averment in the complaint without stating the basis of its finding.

134. The tribunal is, of course, entitled to take a strict view of a solicitor's professional duty, to the extent of finding him guilty of professional misconduct for having inadequate office systems and failing to take measures to prevent employees from injurious actions such as post-dating title deeds. But was this the basis of the finding of guilt in complaint No. 72?

135. As can be seen from the transcript of the proceedings, the appellant had repeatedly raised the question of personal responsibility. At the hearing of 2 August 1994 he said at one point:

" Mr Chairman, if I belong to a big firm and my partner absconded with $1 million it's a deplorable act, but nobody else gets the stick. Okay? It's the absconding partner or the absconding solicitor or the absconding staff that gets the stick. Okay? Now, my view is this: the whole thing is everything is blamed on me because I'm a sole proprietor. Okay? Everything is deplorable because I'm a sole proprietor, because I'm the partner ultimately in charge, nobody else. But --"

136. Then the chairman intervened and asked the appellant whether he was denying that as sole proprietor of his firm he was not responsible.

137. Plainly, this is not grappling with the appellant's point, which was quite simply that there is a distinction between his civil liability as the sole proprietor of his firm and professional misconduct. Injurious acts, such as the post-dating of assignments, will result in his incurring civil liability: but did it necessarily connote professional misconduct on his part?

138. The tribunal simply brushed side the question. The result is that in relation to complaint No. 72 the appellant could have been found guilty on three alternative bases:

(i) That he had, as averred in the complaint, post-dated the assignment to 20 July 1991;

(ii) that he had allowed his employee to prepare the post-dated assignment;

(iii) that he had failed to take adequate measures to prevent his employee from so doing.

139. This is not a proper finding. The conviction on complaint No. 72 cannot stand.

Complaint No. 74

140. The tribunal's finding on this complaint states:

"Complaint No. 74

This complaint relates to undue delay by the Respondent in registering the Assignment in a conveyancing transaction. As the solicitor for the donees Mr. Wong Kam Fai and Miss Wong Lai Sim of the property known as 4th Floor, No. 7A, Ka Shin Street, Kowloon, Hong Kong, the Respondent failed to register the Assignment in favour of the donees dated 3rd April 1990 within the time limit prescribed under the relevant Ordinance. On or about 28th October l992 the donees through their solicitors Messrs. Raymond Ho & Koo discovered that the Respondent had failed to register the Assignment. On 29th October 1992 Messrs. Raymond Ho & Koo wrote to the Respondent enquiring about the position of the Assignment. The Respondent gave no response. Letters of reminder were sent to the Respondent on 5th and 13th November 1992. On 18th November 1992 the Respondent replied that the said Assignment was in the course of registration. The Assignment has not been returned to the donees and such undue delay for over 2 1/2 years in registering the title deed was either a deliberate act or a grossly negligent act and is regarded deplorable and inexcusable in the profession. The Tribunal finds the Respondent guilty of professional misconduct in respect of this complaint."

141. In the related complaint No. 75, where the allegation was that the appellant had failed to give a satisfactory answer to the Law Society's enquiry in respect of his conduct in complaint No. 74, the tribunal found the appellant not guilty. This was on account of his response to the Law Society dated 13 May 1993 which reads:

"Paul Brennan, Esq., Conduct Section, The Law Society of Hong Kong, 1403 Swire House, Hong Kong.

13th May 1993

Dear Sir,

Re: Complainant : Messrs. Raymond Ho & Koo
Respondent : Messrs. J. Fang & Co.

We thank you for your letter dated 28th April 1993.

As regards the delayed registration of the Assignment (Deed of Gift) dated 3/4/90 for over 2 1/2 years with the Land Registry, we have in our letter dated 18/11/92 to Messrs. Raymond Ho & Koo explained that our file relating to the subject property was mislaid and was recovered and found recently prior to 18/11/92.

We have on 17th November 1992 presented the Assignment to the Land Registry for registration. Since then our file has been mislaid again. We have also since then in some occasions been asked by Messrs. Raymond Ho & Koo about the Assignment and we have explained to them in telephone that our file has been mislaid again and we were not sure whether the Assignment had yet been returned to us from the Land Registry.

We are now in the course in tracing whether the said Assignment has been returned to us from the Land Registry and as soon as we have the same in our possession we shall forward the Assignment to Messrs. Raymond Ho & Koo.

Yours faithfully,"

As can be seen, the firm's conduct of this matter was deplorable. The appellant was the solicitor in charge of the file which was handled by his clerk Eric Chan. The tribunal's finding was that the delay for over 2 1/2 years in registering the title deed was "either a deliberate act or a grossly negligent act and is regarded deplorable and inexcusable in the profession".

142. Once again, this is an equivocal finding. If a solicitor should deliberately withhold the stamping and registration of an assignment for a lengthy period (and, having received the money for the stamp duty from the client is earning interest on that sum in the meanwhile) this is clearly a deplorable act. If, however, it is a case where the handling clerk had somehow overlooked the matter (because the file got mislaid) and the matter went to sleep for some years, is this a grossly negligent act on the part of the solicitor?

143. Clearly, on the tribunal's findings, there was some delay on the appellant's part in responding to Messrs Raymond Ho & Koo's enquiry of 29 October 1992. It needed two reminders to jolt the appellant into replying on 18 November 1992. But the finding of misconduct in complaint No. 74 was not focussed upon that. It was focussed upon the fact of delay for over 2 1/2 years in registering the deed. As to this, the foundation for the finding of misconduct is obscure. Is the tribunal saying this: no principal of a solicitor's firm should ever have allowed a situation like that to arise?

144. In our judgment, the finding of misconduct on complaint No. 74 is too uncertain to stand.

Complaint No. 80

145. The tribunal's finding on this complaint states:

"Complaint No. 80

This complaint relates to undue delay by the Respondent in registering title deeds in a conveyancing transaction. As solicitor for the purchaser and mortgagee of the property known as 4th Floor, No. 7A Ka Shin Street, Kowloon, Hong Kong, the Respondent failed to register the Assignment and Mortgage dated 16th April 199l within the time limit prescribed under the relevant Ordinance. In October 1992, the purchaser intended to apply for a further charge from the mortgagee and thereby discovered that the Respondent had failed to return the title deeds to the mortgagee. Despite repeated requests the Respondent failed to respond to the purchaser's enquiry. The purchaser was eventually given to understand that the Assignment and the Mortgage were only registered in or about March 1993 after they had lodged a complaint with the Applicant. Such undue delay for nearly 2 years in registering the title deeds was either a deliberate act or a grossly negligent act and is regarded as deplorable and inexcusable in the profession. The Tribunal finds the Respondent guilty of professional misconduct in respect of this complaint."

146. In the related complaint No. 81, where the allegation was that the appellant had failed to give a satisfactory answer to the Law Society's enquiry in respect of his conduct in complaint No. 80, the tribunal found the appellant not guilty. This was on account of the response given by the appellant which reads:

"The Law Society, Conduct Section, Hong Kong.

3 August 1993

Dear Sirs,

 

Re: Complaint by Wai Hung Kay Ltd.

Further to our letter dated the 26/7/1993 and upon listening to the explaination given by Mr. Ng Wing Hung, we would like to explain our position as follows :-

Our file in question was then handled by our former conveyancing clerk, Miss Shum Shuk Yee (who has left our firm on the 1/6/1992) and overseen by our former Assistant Solicitor, Mr. Ng Wing Hung (who has left our firm on the 1/8/1992).

The transaction was completed on the 15/4/1991 and the history leading to the completion are as follows :-

On the 9/3/1991, one Mr. Edmond Wong Shu Pui signed a provisional Agreement for the purchase of the property known as Flat H on the 11th Floor of Oak Mansion, Harbour View Garden, Taikoo Shing, Hong Kong and thereafter the said Mr. Wong instructed our firm to act for him in the purchase. Since then, the said Mr. Wong decided that a Limited Company owned by him should take up the subsequent formal Agreement and the Assignment. The said Company is now the present Complaint, Wai Hung Kay Limited. Upon taking this instruction, we duly prepared a letter of Nomination for the said Mr. Wong's signing. Later the said letter of Nomination dated the 20/3/1991 together with the formal Agreement were then sent to Messrs. K.K. Chu & Partners, the then Vendor's Solicitors. During this period, we have caused to be registered in the Land Office the said provisional Agreement dated 9/3/1991 so as to protect our client's interest. The said provisional Agreement had been duly registered and had been assigned the Memorial No.4746777.

After the formal Agreement dated the 25/3/1991 had been signed by the respective parties and returned to us, we then duly registered the same at the Land Registry. Completion then took place on the 15/4/1993.

Since then, the said formal Agreement had been stopped by the Land Registry due to the fact that the name of the Purchaser as appeared in the said formal Agreement (i.e. Wai Hung Kai Limited) was different from the name in the provisional Agreement Memorial No.4746777 (i.e. Edmond Wong Shu Pui). Upon receiving the stopped Agreement, we then discovered that the original of the Letter of Nomination dated the 20/3/1991 had been sent to Messrs. K.K. Chu & Partners when we sent to them the formal Agreement.

Under these circumstances, we immediately requested Messrs. K.K. Chu & Partners by telephone for the return of the original Letter of Nomination. But nothing was heard since then. During that time, the relevant Assignment dated the 16/4/1993 had been presented to the Stamp Office for stamping and the said Assignment was returned to us, we again telephoned Messrs. K.K. Chu & Parterns for the return of the said letter of Nomination but again nothing had been heard.

After the departure of our formal clerk Miss Shum, our said file had been put away due to inadvantence. In early 1993, the said file had then been discovered and immediately we telephoned Messrs. K.K. Chu & Partners for the return of the said Letter of Nomination but again nothing had been heard. Since then we proceeded to register all the relevant documents despite the fact that the said documents might still be stopped by the Land office. The Assignment in favour of our client had now been assigned the Memorial No.5589260 and the Mortgage had been assigned the Memorial No.5589261.

Furthermore, in order to avoid further delay, we return the title deeds and documents to the morgaee Bank on the 18/3/1993 and informed them as to the Memorial Nos. of the missing documents.

On the 15/7/1993, we have written a letter to Messrs. K.K. Chu & partners requesting them to send us the original Letter of Nomination dated 20/3/1991 but again nothing had been heard from them. On the 29/7/1993, we again wrote to Messrs. K.K. Chu & Partners but again nothing had been heard.

Enclosing herewith please find copies of the followings for your reference: -

1. Copy Assignment 16/4/1991,

2. Copy letter dated 18/3/1991,

3. Copy letter dated 15/7/1993 and

4. Copy letter dated 29/7/1993.

We hereby apologise for the inconvenience caused to the Complaint and to the Law Society.

In the event that we did not hear from Messrs. K.K. Chu & Partners within the next 7 days, we shall proceed to arrange with our client for the re-execution of the letter of Nomination or to prepare a declaration to that effect, if necessary.

Finally, for your record, the documents including the Assignment dated 16/4/1991 which we had registered in early 1993 had not yet been stopped by the Land Registry.

Thank you for your attention and again we hereby apologise for all the inconvenience caused to you and the Complaint.

Yours faithfully,"

147. Assuming the contents of the letter of 3 August 1993 to be truthful (and nothing suggests that it is not) it is difficult to see how the delay in registering the title deeds was a deliberate act on the appellant's part. Once again, the explanation provided by the appellant to the Law Society discloses a chaotic state of affairs in his office. Can it be inferred by the tribunal's finding of guilt that it was, in effect, saying this: the person ultimately in charge in the firm must take professional responsibility when something like this happens, irrespective of whether he was aware of the circumstances or not at the time?

148. In our judgment, the tribunal's finding of guilt on complaint No. 80 is too uncertain to be allowed to stand.

Findings of guilt on 26 complaints of failing to give satisfactory answer to the Law Society

149. It would be convenient first of all to deal with complaints No. 2, 4, 6, 8, 28, 30 and 36 where the finding was that, in response to the Law Society's enquiry, the appellant replied "on 5 December 1991 ... that he was not prepared to make any explanation."

150. This is a reference to his letter of 5 December 1991 which reads:

"Miss Margaret Lau Head of Professional Conduct Law Society of Hong Kong

5 December 1991

Dear Miss Lau,

We refer to the letter dated 14/11/91 sent to us by your Miss Cecilia Aw and the subsequent telephone conversation between you and our Mr J. FANG.

We write to state we strongly disagree with the allegations made in your said letter. Our Mr J. Fang personally handled all the cases and wrote you stating generally that he did

1) Personally liaised with the complainant;

2) Apologised for the fault/default complained of and

3) Established good communication to remedy the fault and to improve further contact as bad PR/communication is so often the sole cause leading to the decision to complain to the Law Society seeking remedy/revenge.

We saved time and money by admitting our shortcomings and doing our best to remedy the breach. A breach of undertaking cannot be condoned by a "satisfactory explanation" - so we don't make one.

We are in the process of preparing a detailed report criticising the Undertaking system and hoping to propose some improvements. It will be send to you hopefully by the end of the year."

151. Plainly, the appellant did give answers to the Law Society's enquiry. Whether they constituted a "sufficient and satisfactory answer" is another matter. The tribunal blindly accepted the prosecutor's categorisation of the letter of 5 December 1991 as one where "he was not prepared to make any explanation". Looking at that letter as a whole and considering the dialogue he was conducting with the Law Society at that time, is this a case where the appellant gave no explanation? The tribunal never looked at it that way. It is not possible to say that if the tribunal had properly considered the matter they would necessarily have found the appellant guilty of professional misconduct.

152. This view is reinforced when one considers some of the other charges on which the appellant was acquitted. Take for instance complaint No. 32 where the facts were these: On 8 November 1990 the Law Society wrote to the firm asking for an explanation concerning a complaint lodged by Messrs Edmond H.C. Wong & Co. who alleged that the firm had been in breach of its undertaking for over 6 months. On 1 July 1991 the appellant responded to the Law Society's enquiry as follows:

"Miss Margaret S.Y. Lau Head of Professional Conduct

1 July 1991

Dear Madam,

Re: C. by M/S Edmond H.C. Wong & Co.

If memory served me, I have contacted Mr Edmond Wong personally, apologised to him for our firm's tardiness and ask him to liaise with me for any follow up required. This event occurred many months ago and I thought I should advise you of it.

Sincerely"

153. This was regarded by the tribunal as a sufficient and satisfactory answer, and he was acquitted on complaint No. 32.

154. Likewise, in relation to a similar enquiry from the Law Society in complaint No. 38 the appellant replied by his letter dated 17 August 1992 as follows:

"To: P. Brennan Esq
From: John Fang

Re: 8/130/92 CHIU & Co. JF/KN/36614/92

N.B. 1) This file is directly handled by Kelvin Ng - Solicitor who will liaise with you direct.

2) I personally contacted Margaret Chiu of Chiu & Co. and understand she's got most of the documents bar a few minor things.

3) I got a list from Margaret and will ask Kelvin Ng to expedite."

155. As can be seen, the tribunal did not erect a particular high threshold before being satisfied on complaint No. 38 that the answer was sufficient and satisfactory.

156. In the light of this, it is difficult to see how the reply of 5 December 1991, when read as a whole, can be said to be insufficient and unsatisfactory.

157. In relation to complaints No. 4, 30 and 36 there is the additional point that there were later letters written by the appellant which were simply missed by the tribunal: perhaps not surprisingly, given the mountain of papers before them. The same point is valid in relation to complaint No. 37 where a letter dated 12 October 1992 giving an explanation was likewise missed by the tribunal.

158. The point can be further tested by a detailed consideration of complaint No. 2, where the tribunal's finding is as follows:

"Complaint No. 2

This complaint relates to the failure to give any or any sufficient and satisfactory answer to the Applicant's enquiry in respect of the Respondent's conduct under Complaint no. 1. On 14th November 1991 the Applicant wrote to the Respondent requesting him to give an explanation with regard to the complaint. On 5th December 1991 the Respondent replied that he was not prepared to make an explanation. The Tribunal finds the Respondent guilty of professional misconduct in respect of this complaint."

159. Once again, all that the tribunal did was to repeat the complaint virtually verbatim.

160. The finding refers to a letter of 14 November 1991 from the Law Society which, after referring to 8 complaints, from various sources, said:

"I refer to the previous correspondence concerning the above complaints against you or your firm, copies of which are enclosed herewith for your reference.

The matter has received the preliminary consideration of the Professional Conduct Committee.

The Committee notes that you persistently fail to answer the Society's letters concerning the complaints against you or your firm promptly or at all. The Committee takes a very serious view of your conduct.

You are requested to give explanations to all the above complaints by 5th December 1991. Please note that if no satisfactory explanations are received by the Society within the time limit, the Committee would make a recommendation to Council to refer the matter to a Disciplinary Committee for determination.

Yours faithfully,

Cecilia Aw
Assistant Head of Professional Conduct

Encl."

161. The appellant replied by his letter of 5 December 1991 as set out earlier in this judgment.

162. As can be seen, far from simply saying that he was not prepared to make any explanation, the appellant did in fact give a response. In relation to the 8 complaints dealt with in this letter (which included Messrs Charles Yeung Clement Lam & Co, the complainant in complaint No. 1) the appellant said that he had personally "liaised with the complainant", apologised for the "fault/default complained of" and had "established good communication to remedy the fault": explanations which, in relation to complaints No. 31 and No. 32, seemed sufficient to justify acquittals.

163. In opening his case to the tribunal, the prosecutor read out the letter of 5 December 1991 and he said (at 2/0451):

"Now this is basically a reply by Mr Fang to the Law Society initially asking the [appellant] to give the name of the person who was handling the matter, so basically there is no reply to that letter and no explanation has been given. As stated in the letter, Mr Fang is not ready and willing to give any explanation at all to the Breach of Undertaking."

This is inaccurate and incomplete.

164. By the tribunal's finding in complaint No. 2, one would be justified in assuming that, with the appellant's supposed refusal to "make any explanation", that was the end of the dialogue between the Law Society and the appellant on that matter. But this is not so. The appellant in fact wrote further on the same day disclosing the name of the handling solicitor and the clerk concerned in relation to the 8 complaints. Plainly, the prosecutor was factually wrong in this regard. It is questionable whether the tribunal read that letter at all, in finding the appellant guilty of misconduct.

165. In the light of these matters, it is difficult to see how the finding of guilt on complaint No. 2 can properly stand.

Findings of guilt on 23 complaints of failing to deal promptly with correspondence from other solicitors

166. The tribunal simply made proforma findings on these complaints, following the averments as charged. The finding on complaint No. 1A is an example. It reads:

"Complaint No. 1A

This complaint relates to the failure by the Respondent to deal promptly with correspondence from Messrs. Charles Yeung Clement Lam & Co. in the matter concerning Complaint No. 1. Messrs Charles Yeung Clement Lam & Co. sent reminder letters to the Respondent on 29th September 1989, 7th October 1989, 14th October 1989, 9th November 1989, 12th February 1990, 19th February 1990, 27th February 1990, 26th April 1990, 11th July 1990, 12th September 1990 and 14th November 1990. The Respondent failed to give any or any prompt reply to the said letters. The tribunal finds the Respondent guilty of professional misconduct in respect of this complaint."

167. As mentioned earlier in this judgment, to categorise all the letters as "reminder letters" is misleading.

168. Moreover, it is quite clear that the respective firms of solicitors left correspondence of this kind to be handled generally by conveyancing clerks. Very few letters were marked for the personal attention of the appellant. The tribunal appears to have made no distinction between the appellant's failure to deal with correspondence and his employees' failure. In this regard, an examination of complaint No. 19A is instructive. The tribunal's finding on complaint No. 19A reads:

"Complaint No. 19A

This complaint relates to the failure by the Respondent to deal promptly with correspondence from Messrs. Samuel Lam & Co. in the matter concerning Complaint No. 19. Messrs. Samuel Lam & Co. sent reminder letters to the Respondent on 29th June 1991, 12th August 1991, 4th October 1991, 8th October 1991, 12th October 1991, 29th October 1991 and 7th November 1991. The Respondent failed to give any or any prompt reply to the said letters. The Tribunal finds the Respondent guilty of professional misconduct in respect of this complaint."

169. As can be seen, the tribunal categorised the letter of 8 October 1991 as a "reminder letter". It was nothing of the kind. It referred to a letter dated 26 September 1991 from the firm and dealt with the verification of a signature on the assignment. The matter was then apparently taken up by the firm's Mr Chan and the corresponding solicitor's Mr Lawrence Lam. By the letter of 12 October 1991 those solicitors sent to the firm a cheque for $29,200 for stamping purposes. The matter then seems to have gone to sleep and by a letter dated 29 October 1991 marked for the personal attention of the appellant he was asked to state the "latest position relating to the stamping of the assignment". This was followed up by a reminder, also marked for the appellant's personal attention, dated 7 November 1991. The solicitors then complained to the Law Society on 3 December 1991.

170. It was certainly open to the tribunal to find that the appellant had failed to deal promptly with the letters of 29 October 1991 and 7 November 1991 and, on that basis, to find him guilty of professional misconduct.

171. But that is not the tribunal's finding. It simply adopted uncritically the prosecutor's "shot-gun" approach, and found him guilty of failing to give "any or any prompt reply" to all the letters, starting with the one dated 29 June 1991. This is plainly unfounded upon the facts.

172. Having reached this point, we are driven to the conclusion that none of the findings on the 23 complaints under this heading can properly stand.

Conclusion

173. It is quite clear from the material before the court that during the years 1988-1993 the conditions inside Messrs J. Fang & Co. were chaotic. The firm's standards of efficiency were extremely low. It probably took on far more work than it could properly handle. Documents, sometimes entire files, were missing. Deadlines were not met. Correspondence was not dealt with. It is not surprising that the Law Society received so many complaints concerning the firm.

174. Unfortunately, the tribunal, in enquiring into the complaints, did not learn from the mistakes of that firm. In turn, it took on board more work than it could handle. It got swamped.

175. It would be tempting to try to pick through the material before the court to see whether, putting the case for the applicant at its lowest, any of the findings of guilt can properly stand. We have attempted this exercise and, at times, have almost persuaded ourselves that we have succeeded. But this is not the right approach. This court cannot properly take on the functions of the tribunal. Moreover, in the circumstances of this case, it is impossible to identify what was the lowest threshold the tribunal had adopted. It is simply impossible to conclude: Even taking that as the threshold, the evidence points inevitably to the appellant's guilt.

176. In our judgment, having regard (1) to the unsatisfactory way in which the proceedings were conducted (2) the tribunal's failure to deal with the real issues (3) the singular lack of findings of material fact and (4) the equivocal nature of the tribunal's findings of guilt, the only proper order is that the findings of misconduct on all 84 charges must be quashed. We discharge the order of 6 March 1995 and all the orders for costs made against the appellant in the course of the hearing.