KWONG KA YIN, PHYLLIS v. THE SOLICITORS DISCIPLINARY TRIBUNAL

HCAL 93/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 93 OF 2004

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J U D G M E N T

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Facts

1.  The applicant is a solicitor.  In 2001, she faced 4 complaints in disciplinary proceedings instituted against her by the Law Society.  The complaints arose out of a conveyancing transaction that her firm did in 1997.  She was said to have failed to take proper steps to protect the interests of the purchasers and mortgagee in the transaction, and to properly supervise and exercise control over the solicitors, trainee solicitor and conveyancing clerks involved in the transaction (complaints 1 and 2).  Furthermore, the applicant was said to have falsely certified a document as a true and complete copy (complaint 3).  When enquiries were made by the Law Society in relation to the above complaints, the applicant (allegedly) failed to deal promptly with and to offer satisfactory replies to the Law Society’s enquiries (complaint 4).

2.  The Solicitors Disciplinary Tribunal set up to consider the complaints, comprising 2 solicitors and a lay member, considered that a prima facie case had been established against the applicant in relation to the complaints.  The Tribunal therefore heard the complaints on 22 and 23 November 2002 and 9 January 2003.

3.  On 6 June 2003, the Tribunal pronounced its findings on the complaints.  It found complaints 1, 2 and 4 partially established, and complaint 3 wholly established.

4.  On the same day, the Tribunal ordered the applicant to pay a fine of $30,000.00 in respect of complaint 1, a fine of $20,000.00 in respect of complaint 2 and a fine of $50,000.00 in respect of complaint 3.  The Tribunal also censured the applicant in respect of complaint 4.  The Tribunal further ordered the applicant to pay 90% of all costs of and incidental to the proceedings of the Tribunal, including the costs of the prosecutor and the tribunal clerk and the costs of the Law Society’s prior investigation and inquiries, all on a full indemnity basis to be taxed if not agreed.

5.  The applicant duly paid the total fine of $100,000.00.

6.  On 27 June 2003, the applicant lodged an appeal from the findings and orders of the Tribunal.  However, for reasons of her own, she eventually decided not to prosecute the appeal.  By an order of Rogers V-P dated 27 October 2003, the appeal was formally dismissed.

7.  In relation to the costs that the Tribunal ordered the applicant to pay, on 3 May 2004, the relevant bills of costs were served on the applicant.  Upon perusal of the bills, the applicant found that a number of items of work had been done by the tribunal clerk for which payment was sought from her pursuant to the Tribunal’s costs order.  Essentially, they related to 6 types of work, namely receiving and considering documents filed by the parties and the transcripts, producing formal documents of the notice of hearing, attending 2 meetings of the Tribunal on 10 October 2001 and 27 January 2003 respectively, attending hearings and meetings of the Tribunal immediately before and after such hearings, conducting researches for the benefit of the Tribunal on 3 occasions in relation to the applicable standard of proof, penalties imposed in past cases and procedural rules pertinent to the Tribunal, and attending to the production of the findings of the Tribunal pronounced on 6 June 2003.

8.  On 23 July 2004, the applicant sought leave from this Court to commence judicial review proceedings against the findings and orders of the Tribunal.  Essentially, the applicant complained that the tribunal clerk had acted in excess of its administrative role in the disciplinary proceedings and trespassed on the exclusive province of the Tribunal to investigate and inquire into the complaints against her by undertaking a number of items of work set out in the clerk’s bill of costs.  The applicant also said that there were secret communications between the tribunal clerk and the Tribunal which were unknown to her, as a result of which there was procedural unfairness in the proceedings which vitiated the findings and orders of the Tribunal.

9.  On 16 September 2004, leave was granted and thus the present proceedings.

Legislative framework

10.  The legislative framework of solicitors disciplinary proceedings is straightforward enough.  The Legal Practitioners Ordinance (Cap. 159) and the Solicitors Disciplinary Tribunal Proceedings Rules made under the Ordinance comprise the entire disciplinary scheme for the profession.  The more relevant provisions read:

“9B.  Solicitors Disciplinary Tribunal

         (1)     On receipt of a submission under section 8A(3) or 9A in respect of a person who is, or was at the relevant time, a solicitor, a trainee solicitor or an employee of a solicitor the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel shall, unless it is a matter that is to be disposed of by the Tribunal Convenor under section 9AB, appoint from the Panel 2 solicitors and one lay person to constitute a Solicitors Disciplinary Tribunal to inquire into and investigate the matter.

…

         (2)     The Tribunal members shall elect as chairman one of its members who is a solicitor.

         (3)     The Council may be represented at proceedings before the Tribunal.

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

…

10.    Powers of a Solicitors Disciplinary Tribunal

         (1)     A Solicitors Disciplinary Tribunal shall have power to inquire into and investigate the conduct of any person in respect of which it was appointed.

         (2)    Subject to the provisions of this Ordinance, on completion of its inquiry and investigation, a Solicitors Disciplinary Tribunal shall have power to make such order as it thinks fit and any such order may, in particular, include provision for all or any of the following matters––

…

(c)     payment by that solicitor of a penalty not exceeding $500000 which shall be paid into the general revenue;

(d)     censure of that solicitor or, if the inquiry or investigation relates to a solicitor's employee or a trainee solicitor, of such employee or  trainee solicitor;

(e)     payment by any party of the costs of and incidental to the proceedings of the Tribunal and the costs of any prior inquiry or investigation in relation to the matters before the Tribunal, to be taxed by a Master of the High Court on a full indemnity basis, or payment of an amount that the Tribunal considers is a reasonable contribution towards those costs;

…

12.    Findings of a Solicitors Disciplinary Tribunal

         (1)     An order made by a Solicitors Disciplinary Tribunal shall include a statement of its findings in relation to the facts of the case and shall be signed by the chairman or by a member authorized by the Tribunal.

…

13.    Appeal and saving

         (1)     Subject to section 12(6), an appeal against any order made by a Solicitors Disciplinary Tribunal shall lie to the Court of Appeal and the provisions of Order 59 of the Rules of the High Court (Cap 4 sub. leg. A) shall apply to every such appeal save that the time for serving notice of motion of appeal shall be 21 days from the date of the decision and not 6 weeks as provided in the said Order.

         (2)     Subject to subsection (2A), in any appeal under subsection (1) the Society shall be the respondent.

         (2A)  The Council may, with leave of the Court of Appeal, appeal an order of a Solicitors Disciplinary Tribunal under subsection (1), in which case the Society shall be the appellant and the person whose conduct was the subject of the inquiry by the Solicitors Disciplinary Tribunal shall be the respondent.”

11.  There is no dispute that the Tribunal alone has the power to investigate and inquire into the conduct of a solicitor under complaint and it solely has the power to make findings and orders.

Position of a tribunal clerk

12.  As regards the position of a tribunal clerk, it is governed by the Solicitors Disciplinary Tribunal Proceedings Rules made pursuant to section 73(1)(c) of the Ordinance.  The Rules established the office of a “clerk” to the Tribunal, which means:

“The clerk to the Solicitors Disciplinary Tribunal or any deputy or person appointed by the Solicitors Disciplinary Tribunal temporarily to perform the duties of that office.”

13.  As has been pointed out by senior counsel for the applicant, the clerk has no powers under the Rules, only duties.  There are duties found in rules 6(2), 8(1), 9, 13(1), 15, 16, 17 and 34.  Suffice it to say, those duties are entirely administrative in nature.  Definitely, the clerk’s role and duties do not involve participation in decision-making or giving legal advice to the Tribunal.

14.  There have been several Court of Appeal cases in the past few years, in which pertinent observations on the ‘dos’ and ‘don’ts’ of tribunal clerks have been made.

15.  In Au Wing Lun William v. The Solicitors Disciplinary Tribunal, CACV 4154/2001 (9 September 2002), Rogers V-P examined the role of a tribunal clerk in detail:

“8.     As indicated, this court was informed that the $188,000 in respect of the Tribunal Clerk's costs were calculated on the basis of the Tribunal Clerk having drafted the findings. This matter was not explored at the hearing of the appeal although an indication was given that the matter caused concern. Prima facie, it would seem that it would be no part of the Tribunal Clerk's duties to become involved in drafting the findings or in any other manner in the decision-making process.

9.      The following sections of Legal Practitioners Ordinance itself makes clear that the findings must be the findings of the Tribunal.

…

10.    The case of Dato Tan Leong Min & Another v Insider Dealing Tribunal [1999] 2 HKC 83 involved a situation where the counsel to the Insider Dealing Tribunal had played a part in writing the decision. This court considered a number of cases concerning the role of counsel, or clerks, to tribunals. These cases included cases from Australia and Canada. In the course of his judgment at page 98 Mortimer VP approved the statement of Sears J when he said:

“Put simply, counsel are under a duty not to get involved in the judicial function of the Tribunal, or the decision-making process and to ensure that all things are done openly, publicly and fairly, unless, as I said, it is essential to have a meeting in the absence of the parties and the public.”

11.    In the Canadian case of Sawyer and Ontario Racing Commission 24 O.R. (2d) 673, Brooke JA speaking for the Court of Appeal said at page 676:

“It is basic that persons entrusted to judge or determine the rights of others must, for reasons arrived at independently, make that decision whether it or the reasons be right or wrong. It was wrong for the Commission, who were the judges, to privately involve either party in the Commission's function once the case began and certainly after the case was left to them for ultimate disposition. To do so must amount to a denial of natural justice because it would not unreasonably raise a suspicion of bias in others, including the appellant, who were not present and later learned what transpired.”

12.    Of course, the Disciplinary Tribunal hearings in the present case were not open to the public and the Clerk to the Tribunal was not a party to the proceedings. Nevertheless it is vitally important that only the Tribunal should be involved in the decision-making process. The considerations of fairness which arise when persons other than the members of the Tribunal have access to the Tribunal in the absence of one or any of the parties are the same whether the proceedings are held in public or in private. In this case there is cause for concern that there has been a transgression in this respect. Natural justice dictates that there must not be any observations made to the Tribunal in the absence of the parties that might influence their decision. Actual influence of the Tribunal would be unthinkable. If the Clerk to the Tribunal takes part in the writing of the findings that, in itself, gives rise to a perception that that could have happened. It is difficult to imagine how anybody who drafts findings for a Disciplinary Tribunal before that Tribunal has made its order could avoid influencing the Tribunal both as to the order and as to the contents of the findings and the way they are framed.

13.    There is another factor, however, which makes it wrong, in my view, for the Clerk to draft the findings. Even if the Tribunal made the decision itself, if the findings are those of another, the person subject to the complaint has no way of knowing whether the decision of the Tribunal was based upon flawed findings or reasoning. At page 678 of the Sawyer case, Brooke JA said:

“I think Mr. Laskin is right in his submission that justice cannot appear to have been done when the determination of how a case was decided depends, not upon the reasons over the signature of the real author, but rather upon the affidavit of a person who actually wrote the reasons and who now must explain how his thoughts were accepted after the decision of the tribunal. This is not good enough, for the appellant still has not been told by the tribunal why it found him guilty. Similarly I do not agree that this Court should attempt to test the decision by considering the record. We should not retry the case or simply examine it to find if there is evidence which might support the judgment. That is not what is in issue here. What is in issue is that this man has not been dealt with according to the law.”

14.    In the case of Khan v College of Physicians and Surgeons of Ontario 9 O.R. (3d) 641, Doherty JA in giving the judgment of the Court expressed similar sentiments. The case concerned the Disciplinary Committee. Doherty JA pointed out at page 671 that in disciplinary proceedings the parties are entitled to know, and if so inclined challenge on appeal, the Committee's decision. Someone else's explanation for or rationalization of that decision is no substitute for the Committee's findings. Without the findings of the Committee given in their own words, a party cannot know why the decision was made, or who made the decision. The right of appeal becomes illusory. On the next page he said:

“If the reasons presented for the decision are not those of the decision-maker, or do not appear to be so, it raises real concerns about the validity of the decision and the genuineness of the entire inquiry.”

15.    Despite those remarks in that case the decision of the particular Committee was there allowed to stand because the Clerk concerned had not drafted the original reasons but had only reviewed the draft prepared by the Committee.

16.    For my part I consider it wrong for the findings of the Solicitors Disciplinary Tribunal to have been drafted by the Clerk to the Tribunal. This court does not know exactly what did take place, but one thing is clear that the findings were drafted before the Tribunal had given its decision and made its order. In those circumstances there must be grave suspicion that at the very least justice does not appear to have been done: The King v Sussex Justices [1924] 1 KB 256, andR v Salford Assessment Committee [1937] 2 All ER 98 at page 103.”

16.  In A Solicitor v. The Law Society of Hong Kong, CACV 181/2003 (17 March 2004), Rogers V-P had this to say about the clerk’s bill of costs rendered in that case (at para. 20):

“20.   There are other matters, however, which also call for comment. It appears from the bill of costs which was delivered on behalf of the Clerk to the Tribunal that a claim was being made in respect of costs for drafting the Findings. I consider it unnecessary to repeat what was said by this court in the case of Au Wing Lun, William v The Law Society Disciplinary Tribunal and the Law Society of Hong Kong CACV 4154 of 2001. I would, however, repeat that I consider it wrong for the findings of the Solicitors Disciplinary Tribunal to be drafted by the Clerk to the Tribunal. Although, in this case, the court does not know exactly what did take place, it is clear that charges are raised by the Clerk for drafting the findings in respect of dates that were before the Tribunal had given its decision and made its order. If the Clerk did draft the findings in those circumstances, that, for the reasons previously expressed by this court, is not an appropriate course. If such course is taken it can have two effects. The most severe effect could be that the findings would have to be set aside as being unsafe. Secondly, the justification for the costs of the Clerk undertaking work that he should not have done would appear obscure.”

17.  In Solicitor v. Law Society of Hong Kong [2005] 3 HKLRD 622, the particular Tribunal in question instructed its clerk to prepare an initial draft of its findings and orders based on the Tribunal members’ own views and thereafter discussed and settled the draft so prepared without participation by the clerk.  The Tribunal pointed out that the procedure it adopted combined practicality with fairness to the parties, bearing in mind that the Tribunal members provided their services for free whereas the legally-qualified clerk rendered his work for remuneration.  The latter could therefore charge for the preparation of the initial draft whilst the former could not – that was why the clerk was asked to prepare the initial draft based on the Tribunal members’ views.  This attracted criticisms from Le Pichon JA (at paras. 22 and 33), with whose judgment Rogers V-P and Burrell J agreed:

“22.      What is essential in any judicial decision is that the parties involved should know exactly not only what the particular Tribunal has decided but the reasons therefor.  It is not sufficient that others are permitted to articulate the reasons.  The particular manner in which a decision is framed and the wording used is often vitally important.  Not only that, the manner in which the Tribunal has indicated in this case that it saw fit to proceed would indicate that it would be open to the clerk to insert thoughts and expressions of his own, albeit subject to review by the Tribunal.  As was said that must in itself be wrong.  It would involve a person making suggestions to the Tribunal in secret and without the knowledge of the parties.  More importantly, those who have been involved in making judgments know full well that the very exercise of framing that judgment can bring home points which may be of particular significance.  In this case, the Tribunal failed to appreciate the significance of what had been said by the respondents and indeed in the agreed facts.  Whether they would have done that if they themselves had taken the trouble to draft their decision is thus open to question.

23.    This Court can only express its regret that the Tribunal should have failed to appreciate not only the distinction but the responsibility which appointment as a member of the Solicitors Disciplinary Tribunal brings.  It has failed to appreciate that the retention of the privilege of self-regulation of the professional body of which they are members will entail self-sacrifice even to the extent of having to give their services free.  It is a sad reflection that members of the profession so appointed can express the view that they are not prepared to devote time and energy in furtherance of the public interest and the interest of their profession without payment.”

18.  Finally in Law Society of Hong Kong v. Solicitor [2006] 1 HKLRD 49, the tribunal clerk conducted sentencing research for the Tribunal and in accordance with the Tribunal’s instructions, assisted in preparing the format of the findings of fact as well as the format of the reasons for order.  Rogers V-P reiterated his earlier views as follows:

“24.   Two observations fall to be made in respect of this.  This court has on previous occasions emphasised the importance of the Tribunal itself writing its own decisions.  As was pointed out in the judgment of Le Pichon JA in Solicitor & Another v Law Society of Hong Kong [2005] 3 HKLRD 622 at paras 17-23, the wording used in the articulation of reasons is often vitally important.  If others are allowed to take over the role of writing the decision, even the first draft, there is a danger that there could be thoughts and expressions which come into a decision which would not otherwise been there had the Tribunal itself written in its own decision. As was correctly pointed out by Mr Dykes, in so far as there is mention in the Solicitors Disciplinary Tribunal Proceedings Rules of the clerk, it is in the context of the clerk giving no more than administrative assistance to the Tribunal.  It is certainly not envisaged that the Tribunal should be able to co-opt what would, in effect, be an additional member who would seemingly have considerable influence on the contents of the decision.  There is no justification under the Rules for the appointment of a solicitor, let alone a partner.

25.    In my view, one who has stood trial before a disciplinary body is entitled to have the body’s reasons for the decision and not the reasons drafted by some other person.  If it were otherwise the right of appeal and review would be illusory.  As O’Leary J said in Bernstein v College of Physicians & Surgeons of Ontario (1977) 15 OR (2d) 447 (Steele J, concurring):

In my view it is an unusual and improper practice for counsel to write the reasons for the Discipline Committee even if the chairman or some member of the Committee has drafted rough reasons to guide him. One who has stood trial before a disciplinary body is entitled to have that body’s reasons for its decision and not the reasons the prosecutor composes for the decision. If the Committee has made an error in arriving at its conclusion the one who has stood trial, in fairness, should learn of it.

26.    In this case the difficulties which might arise of a person making suggestions to the Tribunal in secret which are referred to in para. 22 of Le Pichon JA’s judgment would appear to be relevant.  The Clerk had admittedly conducted legal research and communicated that to the Tribunal.  We were informed that the solicitor was neither told of the research, nor of the results of it, nor the fact that it had been communicated to the Tribunal.  This, in itself, must be clearly wrong.”

Costs of the tribunal clerk

19.  In the present case, the profit costs of the tribunal clerk, a practising solicitor, amounted to $149,706.00 in total.  Charged at $2,000.00 per hour, the clerk did 37 hours and 37 minutes of “ordinary work”.  He spent another 5 hours and 15 minutes in total for work that attracted a higher rate of $3,000.00 per hour.  That higher rate was reserved “for assisting in the preparation of the format of the findings and order”.

Parties

20.  The immediate parties before the Tribunal were the applicant and the Law Society, the formal complainant.  When these judicial proceedings were commenced, both the Law Society and the Tribunal were joined as respondents.  For reasons of its own, the Law Society did not wish to participate in these proceedings and one could only infer that it had no intention to defend the findings and orders of the Tribunal.  By a consent order (the background of which I need not refer to here), the Law Society was removed as a respondent.  As regards the Tribunal, it takes a neutral stance in these proceedings, as per Dato Tan Leong Min v. Insider Dealing Tribunal [1999] 2 HKC 83, 99A to 100A (per Mortimer V-P).

21.  In those circumstances, at the substantive hearing, the application for judicial review was effectively unopposed.  However, it does not mean that the applicant need not establish her case to the satisfaction of the Court.

Issues

22.  Mr Philip Dykes SC, Mr Paul Wu with him, put the applicant’s case for relief on three bases, namely ultra vires delegation, procedural unfairness and apparent bias.  Mr Dykes submitted, and I agree with him, that there is no question of delay here given that the grounds giving rise to the present challenge did not come to the notice of the applicant, through no fault of her own, until after the service of the bills of costs.

Ultra vires delegation

23.  It was Mr Dykes’ primary submission that by instructing the clerk to conduct researches for the Tribunal and by allowing the clerk to participate in the Tribunal’s deliberations on the relevant findings and order, the Tribunal wrongfully allowed a non-member to trespass on its exclusive province to investigate and inquire into, and eventually to determine, the complaints against the applicant.

24.  As indicated, the clerk, at the request of the Tribunal, did researches into the appropriate standard of proof, past cases on sentencing as well as some procedural matters pertaining to the Tribunal.  Furthermore, despite what the clerk asserted in his affirmations filed in these proceedings on behalf of the Tribunal, item 108 of his bill of costs stated that he had attended 3 hours “meeting with Tribunal chairman and two other members discussing on the relevant findings and order”.  For that item of work, the clerk charged the higher rate of $3,000.00 per hour and thus a total sum of $9,000.00.  That, Mr Dykes submitted with some justification, can hardly be consistent with a clerk merely performing an administrative role during the meeting with the Tribunal members.

25.  The Tribunal pronounced its ruling on the standard of proof on 6 December 2001, having received the clerk’s letter enclosing four relevant authorities on the subject on 28 November 2001.  Mr Dykes submitted, and I accept, that there was a close connection between the authorities cited by the Tribunal to support the conclusion reached in its ruling and those four authorities referred to by the clerk.  The clerk, in his 2 affirmations, did not say that the result of his research on the appropriate standard of proof did not influence the Tribunal’s ultimate conclusion on the subject.  Most probably, he did not have direct knowledge about it.  But perhaps more importantly, the Tribunal members did not put in any evidence to explain to the Court what had happened after their receipt of the clerk’s authorities.  Nor is there any evidence from the Tribunal members denying that they had relied on or been influenced by the result of research done by the clerk at the Tribunal’s request.

26.  In my judgment, even more important than all this is that the Tribunal was supposed to investigate and inquire into the complaints against the applicant by itself.  This should be so whether what was involved was a question of fact or a point of law.  The clerk was not a member of the Tribunal.  Nor could it be said that he was in the position of a research agent or assistant of the members of the Tribunal.  It was the Tribunal alone which by law was tasked with investigating and inquiring into the complaints and eventually coming up with a finding.  The only persons who were allowed to address the Tribunal on matters pertinent to the complaints were the parties themselves, namely the applicant and the Law Society.  Apart from them, the Tribunal members were the only persons who, amongst themselves, had the power and duty to investigate and inquire into the complaints and make a decision.

27.  If that process should involve any point of law, then apart from the immediate parties whose submissions on the point should be heard by the Tribunal, the Tribunal members were the only persons who had the power and duty to deliberate on the point amongst themselves and reach a decision on it.

28.  The clerk, as an outsider in the context under discussion, had no part to play in the process.  Put another way, the Tribunal must not allow a third party, including its clerk, to enter into that process of deliberation and determination.  To do otherwise would be acting ultra vires.

29.  In my judgment, asking the clerk to do an initial research into the law on the appropriate standard of proof, particularly after the immediate parties’ submissions on that particular point had already been heard, was allowing an outsider to intrude into the deliberation process of the Tribunal which belonged to its exclusive province.  That it was only an initial research into the authorities was, in my judgment, neither here nor there.  The deliberation process, as I have termed it, included not only reasoning out a decision in light of the competing arguments, but any necessary legal research into the relevant authorities underpinning those arguments.

30.  Asking the clerk to do such legal research for the Tribunal was, in my judgment, an unauthorised delegation of the Tribunal’s own work.

31.  It has to be emphasized that the matter is entirely governed by statute.  The Tribunal is a creature of statute.  It has no inherent jurisdiction, practice or convention to exercise or follow.  Everything done by the Tribunal must be done in accordance with the enabling statute.  The relevant statutory provisions give the Tribunal and the Tribunal alone the power to investigate and inquire into the complaint and to make a finding in relation to it.  It alone (comprising its constituting members) must personally attain to the investigation and inquiry into the complaint and the determination of the same in the form of findings and order.

32.  In Ward v. Bradford Corporation (1971) 70 LGR 27, 33, Lord Denning MR explained the general principles thus:

“Mr. Morritt submitted that the presence of Mr. Naismith invalidated the decision of the committee, especially as he actively participated in the discussions. He relied on Middlesex County Valuation Committee v. West Middlesex Assessment Area Committee [1937] Ch. 361; 35 L.G.R. 211, where Lord Wright M.R. said, at pp. 376 and 215-216:

“It would be most improper on general principles of law that extraneous persons, who may or may not have independent interests of their own, should be present at the formulation of that judicial decision.”

Now, I quite agree that in general no person ought to participate in the deliberations of a judicial or quasi-judicial body unless he is a member of it: see Lane v. Norman (1891) 66 L.T. 83 and Leary v. National Union of Vehicle Builders [1971] Ch. 34, at pp. 54-55. Nor should he retire with them for their discussions lest this give the impression that he is taking part in their deliberations when he is not entitled to do so, for then justice would not be seen to be done.

But this general rule is subject to exceptions. One of the best known is when magistrates request their clerk to join them for the purpose of advising them on the law: see Reg. v. Welshpool Borough Justices, Ex parte Holley [1953] 2 Q.B. 403, or on the sentences imposed by other courts: see Practice Note (Justices' Clerks) [1953] 1 W.L.R. 1416, or on a mixed question of law and fact: see Reg. v. Consett Justices, Ex parte Postal Bingo Ltd. [1967] 2 Q.B. 9, 10. It is everyday practice for this to be done and no one doubts that it is entirely proper.”

33.  In my view, the position of the Tribunal, which is governed entirely by statute is miles away from that of the lay justices and magistrates in England and Wales who can always send for their legally-qualified clerk if they require advice on a point of law, because that is what the clerk is there for: R v. East Kerrier Justices ex p. Mundy [1952] 2 QB 719, 723 (per Lord Goddard CJ).  See also Clark v. Kelly [2004] 1 AC 681 for the similar position of district court clerks advising lay justices on points of law in Scotland.

34.  In our system, two of the members of the Tribunal are, as required by law, solicitors.  The clerk’s role and responsibilities are, unlike that of a magistrate’s clerk in England and Wales, wholly administrative in nature.  There is no question of the Tribunal requiring legal advice from its clerk – who is not even required by law to be legally qualified.  Put another way, in the present case, asking the clerk to conduct legal research on behalf of the Tribunal was ultra vires delegation.

35.  Likewise, it is unacceptable for the Tribunal to allow participation of the clerk in the discussion of its findings and order, save for a purely administrative purpose.  Here, as pointed out above, despite the denial of the clerk in his affirmations, item 108 of his bill of costs clearly stated that he attended a meeting on 27 January 2003 of the Tribunal, “discussing on the relevant findings and order”.  Three hours were spent on it and he charged for his attendance at the higher rate of $3,000.00 per hour.  That rate was reserved for “assisting in the preparation of the format of the findings and order”, and in the affirmations, the clerk explained that the format of the findings and order referred to the formal parts of the findings and order.  However, the description for item 108 does, in my judgment, leave a doubt as to whether the clerk has really restricted his participation at the discussion to the preparation of the formal parts of the findings and order only.  As Mr Dykes said in submission, the time spent was much more consistent with a more substantial participation at the discussion.

36.  Rogers V-P said in Law Society of Hong Kong v. Solicitor, supra, at para. 27:

“27.   An affirmation by the clerk was prepared shortly before the hearing of this appeal.  No specific leave was given to use it, nevertheless its contents have been considered.  The affirmation does not deal with the matter of the legal research other than to say that the clerk was asked to assist with it.  As regards the preparation of the written decision, the affirmation raises more problems than it solves.  It is couched in language which by use of the word “direct” just prior to “dictate” begs the question as to exactly what the clerk did which justified his spending so long at the higher rate of charging.  It certainly does not dispel the notion that the clerk was responsible for the wording of the decision.  I would add that it is highly undesirable for this Court to be requested to consider such affirmations for the purpose of justifying the clerk’s actions in communicating with the Tribunal and involvement in the written decision.  If there is a doubt, the solicitor, who stands in the position of the accused, is entitled to the benefit of it and not to the benefit of this Court’s assessment of an untested affirmation from a party interested in justifying his or her own actions.  This Court is concerned with examining the Tribunal’s reasons for the decision and not with assessing the affidavit evidence of someone who may have added to, refined or subtracted from those reasons.”

37.  Notably, on this point, no evidence has been filed by the members of the Tribunal to further explain what the clerk had or had not done during the discussion.

38.  Assuming that a substantial participation at the discussion by the clerk did take place, and in this regard, the benefit of doubt should be given to the applicant, this must be objectionable.  Again, the Tribunal, on that assumption, has allowed a stranger to trespass on its exclusive responsibility.

39.  Similar observations can be made in relation to the legal research done regarding the past sentencing cases.  On the other hand, I am not sure if the legal research into the procedural matters should by itself attract the same criticism.  I tend to think, given the nature of the procedural matters involved, that it relates to administrative matters which are at least arguably within the responsibility of the clerk.  I do not wish to base my decision on this last matter.

Discretion

40.  In my judgment, for the reasons explained above, the findings and orders of the Tribunal cannot be allowed to stand.  Whilst the court’s discretion in judicial review proceedings to refuse relief even in a case of ultra vires (delegation) cannot be doubted, such discretion should only be exercised in most exceptional circumstances.  As Lightman J said in R v. General Medical Council, ex parte Toth [2000] 1 WLR 2209, para. 6:

“Section 31(2) of the Supreme Court Act 1981 [i.e. section 21K(2) of the High Court Ordinance, Cap. 4] provides that the court can grant relief in judicial review proceedings if in all the circumstances it is just and convenient to do so.  The general principle is well established that, if an applicant establishes in judicial review proceedings that the decision which he challenges is bad in law, he should be granted relief, and most particularly an order quashing that decision, unless there are strong reasons in public policy for refusing relief or unless to quash the decision would occasion so great an injustice either to the respondent or to a third party as to require some other course to be taken.”

41.  This is particularly so in a case like the present, as opposed to a case involving solely procedural irregularities.  In the latter case, given that fairness is essentially the touchstone, the absence of prejudice in terms of substantive merits and outcome – if that can be established to the satisfaction of the court – would normally persuade the court to refuse relief despite a technical breach.  The Court of Appeal’s decision in Leung Fuk Wah v. Commissioner of Police [2002] 3 HKLRD 653 is a good local illustration of the situation where the court refused relief when there was no prejudice at all, in terms of substantive merits and outcome, resulting from the technical breach of procedural fairness.  But even in that type of situations, the courts have been proceeding with great caution: see for instance, my own decision in Chu Ping Tak v. Commissioner of Police [2002] 3 HKLRD 679, another case on procedural fairness decided shortly after Leung Fuk Wah.

42.  But what is ‘prejudice’ or ‘no prejudice’?  In my view, where as here, an inferior court or a tribunal established by statute to try a certain matter has allowed an unauthorised person to intrude into its process of determination, the right of the person standing trial to have the matter determined and determined only by that court or tribunal has been infringed.  That per se, by nature, is prejudice of some significance, irrespective of the outcome of determination.  Furthermore, the integrity of the adjudication system ordained by statute is put at risk.  That also is potential prejudice (on a more general plane) that the court must guard against.  I recognise that even in this type of situations, the court still retains a discretion to refuse relief in appropriate circumstances: see for instance, R v. Monopolies and Mergers Commission ex p. Argyll Group plc [1986] 1 WLR 763.  But I venture to suggest that highly exceptional circumstances are required to justify refusal of relief.  And in this context, as indicated, I find what Lightman J has said (extracted above) to be helpful in describing the type of circumstances that would justify refusal of relief.

43.  On the facts of the present case, I do not find any such circumstances.  In particular, no or no serious question of good public administration, other form of public interest, decisiveness or finality is involved (if relief is granted).  In the circumstances, relief should be granted in favour of the applicant, quashing the relevant findings and orders.

Procedural unfairness

44.  Mr Dykes’ second line of attack is based on procedural unfairness.  The gist of the complaint is that the researches done by the clerk were never made known to the applicant, so that she was deprived of an opportunity to make representations in relation to them.

45.  Mr Dykes pointed out correctly that there is no evidence from the Tribunal to the effect that regardless of what standard of proof was applicable, it had no doubt that the applicant was guilty of the complaints.  Nor is there any evidence that the sentencing cases that the clerk referred the Tribunal to did not influence its ultimate sentences.

46.  Mr Dykes further pointed out that the conclusion reached by the clerk on the appropriate standard of proof, which was the same conclusion reached by the Tribunal in its ruling, was arguably wrong, in the light of Campbell v. Hamlet [2005] 3 All ER 1116, where the Privy Council said that the criminal standard of proof is the correct standard to be applied in all disciplinary proceedings concerning the legal profession (per Lord Brown at para. 16).  To the extent that the applicant had been denied an opportunity to comment on the authorities that the clerk referred the Tribunal to, which suggested that a lower standard of proof was applicable, the applicant was prejudiced.

47.  I certainly do not subscribe to the view that the Tribunal, or for that matter, a court of law, must give the parties an opportunity to comment on each and every legal authority or point of law that the Tribunal or court of law may come across by means other than the actual hearing or the submissions of the parties, which the Tribunal or court of law finds to be of some relevance to the issue in dispute.  It depends on, amongst other things, the centrality of the authority to the decision and the presence or absence substantial prejudice to the party concerned.  Sheridan v. Stanley Cole (Wainfleet) Limited [2003] 4 All ER 1181.

48.  On the facts of the present case, I think the authorities the clerk referred the Tribunal to were important authorities, particularly when neither side had cited to the Tribunal any authorities during argument on the appropriate standard of proof.  They were material authorities and they themselves referred to other relevant authorities, some of which were referred to by the Tribunal in its ruling, all bearing on the question of standard of proof.  In my judgment, the parties ought to have been given an opportunity to comment on these relevant authorities.

49.  Likewise, for the sentencing cases.  What the clerk did was to select 15 cases out of many past cases all kept in the Law Society’s archives (open to inspection by the applicant), prepare a digest of each of these cases with comments (for instance, “[this] is a case very similar to our present case”) and send them over to the Tribunal.  In my judgment, the cases, digests and commentaries ought to have been made known to the applicant so as to enable her to comment on them and to refer the Tribunal to other cases if she so wished.

50.  I find that there was a breach of natural justice in the process.

Discretion

51.  Should relief be refused? 

52.  Here the absence of prejudice is a paramount consideration.  It must be remembered that the applicant did lodge an appeal from the findings and orders of the Tribunal.  That appeal, if pursued to the end, would have placed squarely the questions of the appropriate standard of proof and sentencing before the Court of Appeal for its determination.  If there were any errors committed by the Tribunal in relation to those two issues, they could and would have been put right by the Court of Appeal.  That plainly would have accorded with the legislative intent behind the appellate procedure laid down in the Legal Practitioners Ordinance.

53.  By not pursuing the appeal to its logical conclusion but abandoning it halfway, the applicant had only herself to blame for the lack of an opportunity to ventilate whatever points of law that she might otherwise have wished to raise regarding the standard of proof and whatever submissions that she might otherwise have thought it important to make in relation to sentencing.  Put another way, she was the real author of her lack of an opportunity to make submissions on those two issues.

54.  Her case is very much unlike the case where after the Tribunal had made its findings and orders, a solicitor chose to launch judicial review proceedings instead of an appeal to challenge the unfavourable findings and order of the Tribunal for some public law wrongs.  In that type of situation, no criticism can be made against the solicitor for, as it were, denying himself the opportunity to ventilate his legal arguments or submissions before the Court of Appeal.  As pointed out by Le Pichon JA in Au Wing Lun William, supra, paras. 33-34, the fact that the findings and order of the Tribunal were appealable does not of itself preclude the remedy of judicial review.

55.  But the complexion of the situation changed when the applicant chose to appeal from the findings and orders of the Tribunal.  By appealing, she was automatically given an opportunity to address the questions of standard of proof and sentencing before the Court of Appeal, which had full power to deal with those two matters on appeal.  That was an opportunity conferred by statute.  That opportunity, in normal circumstances, would have effectively cured the unfairness to the applicant that resulted from the Tribunal’s failure to afford her an opportunity to address the secret researches before making its decisions.  Lloyd v. McMahon [1987] AC 625, c.f. Calvin v. Carr [1980] AC 574.  The Court of Appeal would not have been privy to the secret researches made by the clerk, which would have become wholly irrelevant at the appeal. 

56.  Insofar as it may be suggested that the Court of Appeal’s power to re-open the question of sentencing is restricted (see Dr Lau Koon Leung v. Medical Council of Hong Kong CACV 250/2004, 14 March 2006), so that a breach of natural justice at the Tribunal level cannot be fully cured by an appeal to the Court of Appeal, what has been said is at least true and applicable in relation to the question of standard of proof.  In relation to that latter question, plainly the Court of Appeal would have been free to reach whatever decision it should have deemed correct.

57.  An additional consideration in the present case is that: by not pursuing the appeal to its logical conclusion, the applicant must be taken to have accepted the correctness of the Tribunal’s ruling on the standard of proof and its decision on sentencing.  Almost by definition, there was no prejudice arising from the lack of an opportunity to comment on the legal researches done by the clerk in relation to those two areas.  Indeed in relation to sentencing, the applicant has not suggested in these proceedings that the sentences were by themselves wrong or excessive.

58.  Since fairness is the touchstone of any complaint of procedural irregularities and unfairness, I do not agree, on the peculiar facts of the present case, that the applicant has suffered any real prejudice occasioned by the failure of the Tribunal to afford her an opportunity to comment on the legal researches of the clerk.  For that reason, relief should not be granted on the ground of procedural unfairness.  At the very least, this should be so in relation to the question of standard of proof and thus the Tribunal’s findings (on liability), as opposed to its order on sentencing.

59.  Here I must point out that the decision of the Privy Council in Campbell v. Hamlet, supra, was only made on 25 April 2005.  In determining whether the applicant had suffered any real prejudice as a result of the failure of the Tribunal to afford her an opportunity to comment on the legal researches of the clerk, the Privy Council decision simply came too late.  The Privy Council decision apart, there is really nothing before the Court to suggest that the ruling of the Tribunal on the standard of proof was incorrect in the light of the then available authorities.  This is in fact well evidenced by the applicant’s decision to withdraw the appeal, which was duly dismissed. 

60.  In any event, in the very recent case of A Solicitor v. The Law Society of Hong Kong CACV 107/2005 (7 July 2006), the Court of Appeal by a majority (Ma CJHC and Stock JA, Tang JA dissenting on this point) refused to depart from previous (local) Court of Appeal decisions and follow Campbell v. Hamlet.

Apparent bias

61.  Mr Dykes’ third basis for challenge can be disposed of quickly.  Senior counsel argued that the Tribunal asked the clerk to research on the past sentencing cases even before holding deliberations on the complaints.  This, it was argued, leads a reasonable and fair-minded person to think that the Tribunal was acting with bias (albeit unconscious) in that it had prejudged the complaint.

62.  I do not agree.  In my judgment, the fact that the Tribunal has looked up and even considered relevant authorities on sentencing simply does not by itself sustain a case of apparent bias or prejudging.  I do not base my decision in this case on this third basis of challenge.

Outcome

63.  In conclusion, I make orders of certiorari, quashing the findings of the Tribunal on the complaints, the orders of the Tribunal on sentencing and its order on costs.

64.  Without prejudice to the costs orders previously made, I make no order as to costs of these proceedings.

65.  I thank counsel for their assistance.