AU WING LUN, WILLIAM v. THE SOLICITORS DISCIPLINARY TRIBUNAL AND ANOTHER

CACV 4154/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 4154 OF 2001

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(ON APPEAL FROM THE JUDGMENT/ORDER DATED 20
DECEMBER 2001 OF THE HONOURABLE MR JUSTICE HARTMANN
SITTING IN THE COURT OF FIRST INSTANCE IN
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST CASE NO. 1942 OF 2001)

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J U D G M E N T

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Hon Rogers VP:

1. I have had the advantage of reading in draft the judgments of Le Pichon and Yuen JJA. The facts stated in those judgments will be taken as included herein. I would add that this court was informed in relation to the Tribunal Clerk's costs of $188,000 that those costs would based upon a charging rate of $2,000 per hour generally and $3,000 per hour for drafting the findings and the order.

The order as to costs

2. There are three points which trouble me particularly as matters of principle in relation to the Tribunal's order as to costs. In the first place the applicant was ordered to pay indemnity costs in respect of charge A of which he was acquitted. No explanation appears to have been given for this most extraordinary order other than that it was the "usual order". In the second place the Tribunal made the order as to costs against both respondents, this order included costs in respect of the charge against the other respondent in respect of which the applicant was not charged. In the third place it appears that the costs of the Tribunal Clerk are said to have included costs of drafting the findings.

Charge A

3. It would appear to me to be wholly exceptional that a respondent to a disciplinary complaint should be ordered to pay costs in respect of a charge of which he was acquitted. The only circumstances where such an order might be made are where he had raised issues or made allegations improperly or unreasonably. Disciplinary proceedings are in essence civil proceedings but, if anything, higher standards of proof are required than in normal civil proceedings. In civil proceedings it is wrong in principle that a party should be ordered to pay costs where he has succeeded in an action unless there are very exceptional circumstances.

4. In Gupta v Klito (unreported), 7 November 1989, Court of Appeal (Civil Division) Transcript No 1063 of 1989, Mustill LJ said:

"In those circumstances it seems to me that this is not a case where there was anything for which Mrs Ferguson deserved such criticism as to justify the extreme sanction of ordering her to pay the costs of her unsuccessful opponents. I would therefore be of the opinion that so far as the question of costs is concerned, the judge must be taken to have erred in principle and that therefore the case is one where this court should substitute its own opinion."

5. In a subsequent case in the Court of Appeal, Re Elgindata Ltd (No 2) [1992] 1 WLR 1207, Nourse LJ gave closer examination to the principles of awarding costs in cases where a party had been successful in relation to all or some of the issues in proceedings. He said at page 1213H-1214D:

"In order to show that the judge erred I must state the principles which ought to have been applied. They are mainly recognised or provided for, it matters not which, by section 51 of the Supreme Court Act 1981 and the relevant provisions of RSC, Ord 62, in this case rules 2(4), 3(3) and 10. They do not in their entirety depend on the express recognition or provision of the rules. In part they depend on established practice or implication from the rules. The principles are these. (i) Costs are in the discretion of the court. (ii) They should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made. (iii) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or a part of his costs. (iv) Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party's costs. Of these principles the first, second and fourth are expressly recognised or provided for by rules 2(4), 3(3) and 10 respectively. The third depends on well established practice. Moreover, the fourth implies that a successful party who neither improperly nor unreasonably raises issues or makes allegations on which he fails ought not to be ordered to pay any part of the unsuccessful party's costs. It was because of his disregard of that principle that the judge erred in this case."

One of the cases to which he referred and relied upon in relation to this formulation was the case of Gupta v Klito. Le Pichon JA has referred to decisions in criminal law. There the position is even stronger in favour of the person acquitted of a charge.

6. In my view, the Tribunal clearly erred in principle in their order as to costs in respect of charge A. There was no finding or holding that the respondent made allegations improperly or unreasonably. The Tribunal expressed itself as making the usual order. The order that it made was very far from an order which should be usual in the circumstances. The net effect in this case may be particularly marked because it could well be the case that the investigations in respect of charge A were very much more costly than any investigations in respect of the other charges. If there be any difficulty in dividing the costs incurred in respect of the different charges, then some reasonable estimate would have to be made.

The order for costs in respect of the other respondent

7. Here, again, it would appear on the face of the matter that the respondent has been ordered to pay costs in respect of charges for which he was never charged. Put in such bald terms it can be seen that the case, in this respect would be even stronger than the first case. Such a decision is irrational.

Tribunal Clerk's costs

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.	(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-.....
...
12.	(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." (emphasis added)

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, and R v Salford Assessment Committee [1937] 2 All ER 98 at page 103.

17. Whether or not the whole proceedings could now be set aside on the basis the Clerk to the Tribunal's involvement is beside the point. What is at issue is that the respondent should not be compelled to pay the professional charges of somebody undertaking work which he or she should never have undertaken. Clearly here further investigation is required. If investigations do show that the Tribunal Clerk drafted the findings, then even if no other remedial steps were taken it would be wrong that the applicant should pay the Clerk's professional charges for that work. I would only add that given the charging rate quoted and the total amount said to represent the Clerk's costs, the inference must be that a great deal of time has been attributed to the Clerk's drafting of the findings.

Conclusion

18. In my view, there are wholly exceptional circumstances in this case. I well appreciate that the applicant should have appealed. That, as has been pointed out in the other judgments herein, is no absolute bar to judicial review proceedings but would, in my view, in most circumstances drive a court to the conclusion that relief by way of judicial review should not be granted. There are, however, other factors to be taken into account. Not only are there such strong merits in the case which have driven me to the conclusion that the decision of the Tribunal is not only so clearly wrong but so manifestly unjust that it cannot be allowed to stand, but I cannot imagine that had the Tribunal known of the full facts at the time it made its decision and made its order, that it would have made the order it did.

19. The Tribunal was given no indication as to the likely costs at the time it made its order. It is a surprising that the solicitor appearing on behalf of the Law Society could not have given at least some indication of the amount incurred to that time. Had that been done it would have been most surprising if the Tribunal had not attempted to put some limit as to the amount of the costs, bearing in mind the penalties which it imposed which are less than one-tenth of the costs which are now under consideration. The delays in this matter are not entirely due to the applicant although they are at the highest end of what might be considered, but there are at least some mitigating factors arising from the delay in the appellant being told of the costs and the other matters which must have trespassed on the applicant's time and attention.

20. I would therefore allow this appeal, set aside the judgment below, grant an order of certiorari to quash the decision of the Tribunal in respect of the order for costs made in respect of the applicant and remit the matter to the Tribunal for a fresh determination. I would also make an order nisi that the costs here and below should be to the appellant.

Hon Le Pichon JA:

21. I have had the advantage of reading in draft the judgment of Yuen JA and gratefully adopt the facts set out in paragraphs 35 to 66 of her judgment.

The costs order made by the Tribunal

22. Several matters of principle arise out of the order for costs made by the Tribunal at the conclusion of the disciplinary proceedings. The first matter of principle which arises is whether a joint and several order for costs should have been made when Complaint D had not been made against the appellant. In practical terms, this had the effect of rendering the appellant who was one of two defendants liable for costs on full indemnity basis in relation to a complaint for professional misconduct made not against him but his clerk Chan Cheuk Yan. As recent events appear to suggest, Chan has gone missing.

23. Chan was found to have breached the Law Society Circular concerning visits to persons in custody by visiting Victoria Prison on at least 19 occasions between July and December 1997 when he was not on the Law Society's approved legal visitor list and "his conduct would reasonably be regarded as disgraceful, dishonourable or discreditable by a solicitor of good repute". It is evident from the Tribunal's decision of 28 January 2000 that the clerk gave evidence. He was separately represented and his counsel made submissions on his behalf. Complaint D was not directed at the appellant. Whilst Complaints C and D appear to have something in common, that is to say, they pertained to the 19 prison visits made by the clerk, not only were the complaints not identical, they were made in respect of different persons. In these circumstances, I can see no rational basis for an order which has the effect of rendering the appellant responsible for the costs of a complaint of professional misconduct made against someone else. It runs contrary to all notions of fairness and justice and is wrong in principle.

24. In this connection, I derive assistance from costs orders made in criminal cases involving joint defendants. Where an order to pay the prosecution's costs is to be made against a number of defendants, one of whom does not have the means to pay, his share of the costs should not be charged to those who can pay; the costs should be apportioned between all the defendants and those who have the means should pay their own share. See R v Ronson & Parnes (1992) 13 Cr. App. R. 153 and HKSAR v Lee Woon-fai [1999] HKLRD (Yrbhk) 340, Cr. App. No. 366 of 1998 C.A. (13 January 1999) where this Court held, inter alia, that in a prosecution of two defendants, it was wrong in principle for one defendant to be ordered to pay the whole of the costs.

25. The second matter of principle which arises is whether it is correct to make a defendant pay full indemnity costs in relation to a complaint against him which has been dismissed.

26. The charge under Complaint A against the appellant was that he had taken no action during the period from 19 September 1997 to 14 January 1998 to pursue work on the file of the complainant opened by the firm on 21 July 1997. That involved an investigation into what if anything had been done by the appellant during the period in question. The Tribunal held that the appellant was entitled to delegate the conduct of the complainant's file to his clerk. The Tribunal found that the clerk had, during the period, instructed a surveyor to carry out a market price survey of the property of the complainant but that due to a conflict of interest, the surveyor could not accept the instructions; and that the clerk had paid four legal visits to the complainant during the period to take instructions from the complainant and to get further costs on account. In view of those findings, the Tribunal concluded that the appellant through his clerk had taken steps to follow up on the file of the complainant during the relevant period. As a result, the Tribunal dismissed Complaint A.

27. Complaint B concerned an alleged breach of rule 3 of the Solicitors' Account Rules inasmuch as the $3,500 collected by the clerk from the complainant and the refunding of $3,000 to the complainant had not gone through the firm's client account. The facts relevant to Complaint B thus fell within a very narrow compass. Complaint C concerned an alleged breach of Law Society Circulars concerning visits to persons in custody. There were two respects in which it was said the rule was breached. The appellant admitted the first which was that he had allowed his clerk to pay legal visits to Victoria Prison on 19 occasions. The second was a matter of construction, namely, whether the relevant Law Society Circulars required separate letters of authorisation in respect of each person to be visited. This complaint did not involve disputed facts.

28. Complaint A involved a far more extensive factual inquiry than either of the other two complaints against the appellant even though some of the factual matters pertinent to Complaint A were also pertinent to Complaints B and/or C. But on no footing could it have been said that the factual matters to be inquired into under Complaint A were no more than what had been necessary for Complaints B and C. That is self-evident from the Complaints themselves.

29. The notion that a professional person who has been cleared of misconduct under a specific complaint can be saddled with the costs associated with that complaint on a full indemnity basis is, putting it mildly, startling and irrational. The point of principle which arises was considered in HKSAR v Lee Woon-fai (supra) to be a point of "considerable substance." There D1 faced 17 charges, one jointly with D2. D1 was acquitted on a further six offences and D2 was acquitted on four other offences. The prosecution's costs of $230,000 ordered to be paid by D1 was set aside. It is implicit from the order made (that D1 pays $100,000 towards the costs of the prosecution) that it is wrong in principle to make a defendant pay the costs of the prosecution for offences on which he was acquitted.

30. In making the costs order, the Tribunal appeared to have accepted the assertion of the solicitor for the Law Society who had applied for costs that it was going to be "incredibly difficult to try to sort out percentages." (This same solicitor had apparently professed that she didn't even know what her costs were at that stage.) I find it difficult to understand how that could have been so. In my judgment, the Tribunal ought not to have shied away from apportioning costs. Where it is not possible to carry out detailed calculations, the exercise might call for a broad-brush approach. See the observations of Neill LJ in the Ronson case (at 157) where he referred to a "rough and ready approach." Not to embark on the exercise at all was, in my view, fundamentally wrong.

31. In the present case, (subject to such adjustments as may be appropriate under the next paragraph) an apportionment exercise is required at two levels: first, as between the appellant and his clerk and, second, a further apportionment of the appellant's share of the costs as between Complaint A on the one hand and Complaints B and C on the other. The appellant should only have to bear such costs as are apportioned in respect of Complaints B and C.

32. The third matter is the role played by the clerk to the Tribunal in drafting the findings and the costs associated therewith which formed part of the costs order. I fully agree with what has fallen on that subject from the Vice President whose judgment in draft I have had the benefit of reading. I would add that I find the amount of costs (totalling almost three quarters of a million dollars) run up by the Law Society and the Tribunal which the appellant has been ordered to pay little short of scandalous and wholly disproportionate to the penalties imposed.

Availability of judicial review

33. In R v Inland Revenue Commissioners, Ex parte Preston [1985] AC 835, Lord Scarman stated the following proposition (at 852D):

"... a remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision."

Even Lord Scarman accepted that though only 'rarely', judicial review may be used to attack an appealable decision. As Lord Oliver explained in Leech v Deputy Governor of Parkhurst Prison [1988] 1 AC 533 at 580D and 581D-E:

"An alternative remedy for abuse or excess, whether effective or not, may be a factor, and a very weighty factor, in the assessment of whether the discretion which the court undoubtedly has to grant or refuse judicial review should be exercised. But it cannot, as I see it, bear on the question of the existence of the jurisdiction. ...

It has never previously, so far as I am aware, been suggested that the mere existence of an alternative remedy, of itself and by itself, ousts the jurisdiction of the court, though it may be a powerful factor when it comes to the question of whether the discretion to review should be exercised. I can see, of course, that if the existence of the separate and self-contained remedy is a conclusive factor against the exercise of discretion in every case, so that the discretion could never be exercised in favour of judicial review, that is tantamount to saying that, for practical purposes, the jurisdiction does not exist. But I find it quite impossible to attribute such a result to the statutory framework governing prison administration and it would, in any event, equally have the effect of ousting the jurisdiction in the case of a board of visitors who are equally a part of the administrative system."

Indeed, in Ex parte Preston itself, Lord Templeman observed (at 862) that

"judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers."

So whilst the Tribunal's order as to costs was amenable to the appeal procedure set out in section 13 of the Legal Practitioners Ordinance, the fact that the order was appealable does not of itself preclude the remedy of judicial review.

34. Applying those principles to the present case, there are indeed "exceptional circumstances" to warrant the grant of judicial review: here, the Tribunal had committed errors of law. The costs order made was irrational and Wednesbury unreasonable inasmuch as it is an order which no reasonable tribunal applying the correct principles could have made. I would therefore grant an order of certiorari quashing the order as to costs made by the Tribunal and remit the question of costs back to the Tribunal for a fresh determination.

Hon Yuen JA:-

35. This is an appeal from the Judgment of Mr Justice Hartmann handed down on 20 December 2001 in which he dismissed the Appellant's application for judicial review of the decision of the Solicitors Disciplinary Tribunal given on 28 January 2000 ordering that the Appellant be censured and fined and that he pay the costs of the disciplinary tribunal proceedings on a full indemnity basis.

Background

36. Events commenced in 1997, when the Appellant's firm was retained by a client to challenge the value at which the client's bank had sold his mortgaged property. Cash of $3,500 was paid by the client to a clerk of the Appellant for the purposes of obtaining a valuer's report. The money was not paid into the firm's client account .

37. Little was done to carry out the client's instructions and in 1998, the client made a complaint to the Law Society.

38. After the complaint was made, the clerk offered a sum of $3,000 to the Appellant for repayment to the client, as the valuers had not performed any valuation (on the basis of conflict) and had charged only $500 for a preliminary consultation.

39. The Appellant refused to accept payment of the sum of $3,000 into his firm's client account on the basis that the original sum of $3,500 had not been paid into the client account.

40. It was not until some time later that the client received reimbursement of the money that he had paid the clerk.

41. Investigations were conducted by the Law Society, and later by solicitors instructed by it, into this and another matter involving the clerk's visits to the client in prison, resulting in disciplinary proceedings commenced by the Law Society against the Appellant.

Disciplinary proceedings

42. There were 3 complaints against the Appellant and 1 complaint against the clerk which were the subject of proceedings, which took place over the course of 2 evenings, 1 full day, and another evening for pronouncement of the decision, mitigation and the decision as to penalties.

43. Complaint (A) was that the Appellant had acted in breach of Rule 2 of the Solicitors Practice Rules by failing to take steps to carry out the client's instructions.

44. Complaint (B) was that the Appellant had acted in breach of Rule 3 of the Solicitors Accounts Rules in relation to the receipt of $3,500 which was not paid into a client account and the receipt of $3,000 being a refund due to the client which was not paid into the client account.

45. Complaint (C ) was that the Appellant had acted in breach of the Law Society's Circulars concerning prison visits.

46. Complaint (D) was against the clerk only.

47. At the end of the proceedings, the Disciplinary Tribunal found Complaint (A) not proved and dismissed it. The Tribunal found Complaints (B) and (C ) proved, and also found Complaint (D) against the clerk proved.

Costs

48. After the decision of the Disciplinary Tribunal was pronounced, submissions were made on the appropriate penalty. This included submissions on costs.

49. Section 10(2)(e) of the Legal Practitioners Ordinance cap. 59 provides :

"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- ...

(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".

There had been no discussions between the legal advisers for the various parties on the question of costs. Solicitors for the Law Society submitted that in relation to costs, the Disciplinary Tribunal should either make an order on a full indemnity basis, to be taxed if not agreed, or fix an amount. The Chairman indicated that that would be the usual order, unless there was some objection.

50. Solicitors for the Law Society then made submissions as to why, even though it had failed on Complaint (A), the usual order as to costs, which was taken to mean costs of the proceedings and investigations on a full indemnity basis, should apply, and that it was "going to be incredibly difficult to sort out percentages".

51. Counsel for the Appellant made submissions asking the Disciplinary Tribunal to take account of the dismissal of Complaint (A). However, as far as the basis of costs was concerned, he said he was "instructed that we can't argue against the suggestion that it should be done on the usual basis", presumably meaning the full indemnity basis referred to in s.10(2)(e).

52. Counsel for the clerk asked solicitors for the Law Society for a proposal so that instructions could be taken to see if there could be an agreement on costs.

53. However, the solicitor for the Law Society indicated that she did not "even know" what their costs were at that stage.

54. The Chairman then made "the usual order", adding that failing agreement, the matter would go to the taxing master.

55. The order, as perfected, was that "the [Appellant] and the [clerk] do pay all costs of and occasioned by these proceedings including all prior inquiries and investigations in relation to all Complaints filed against them, on a full indemnity basis, to be taxed by a Master of the [High] Court if not agreed".

56. In other words, costs were ordered on a full indemnity basis against the Appellant, with no deduction made on account of the dismissal of Complaint (A). Nor was any apportionment made as between the Appellant and the clerk, the form of the order being to the effect that they were jointly and severally liable for costs.

Events after Disciplinary Tribunal proceedings

57. The Appellant did not lodge an appeal from the order of the Disciplinary Tribunal which, under s.13(1) of the Ordinance, he would have had to do within 21 days of the date of the decision. As the decision had been given on 28 January 2000, the deadline for lodging an appeal was 18 February 2000.

58. The Appellant says that he did not do so as he did not receive the Bill of Costs until 17 November 2000. The Bill, which remains untaxed on the Appellant's own request, was for $743,337.75, which this court has been told comprises of approximately $444,000 for the costs and disbursements of solicitors instructed for the Law Society, $188,000 for the costs of the Disciplinary Tribunal's clerk, and $110,000 for the Law Society's own costs of investigations before it instructed solicitors and disbursements for the services of professional reporters.

59. However, even after the delivery of that bill, the Appellant still did not take any steps towards lodging an appeal.

60. It was not until 21 August 2001 (17 months after the Disciplinary Tribunal's decision, and 9 months after the delivery of the Bill of Costs) that the Appellant sought leave, not to appeal from the Disciplinary Tribunal, but to make an application for judicial review.

Application for Judicial Review

61. Leave to apply for judicial review was granted after an ex parte hearing.

62. The relief sought in the application for judicial review, made before Hartmann, J., was for:-

(a) an order of Certiorari quashing the decision/findings and order of the Solicitors Disciplinary Tribunal in respect of Complaint (B) and the fine of $35,000 imposed in respect of that complaint; and

(b) an order of Certiorari quashing the decision/findings and order of the Solicitors Disciplinary Tribunal ordering the Appellant to pay all the costs of and occasioned by the proceedings on a full indemnity basis.

63. In his Judgement handed down on 20 December 2001, the judge dismissed the application and gave an order nisi that the costs of the application for judicial review be awarded to the respondents on a party and party basis.

64. There was an application to vary the costs order nisi, and in a ruling handed down on 11 February 2002, the judge made a final order that costs be awarded to the respondents on an indemnity basis.

Appeal from judgment on application for judicial review

65. It is against this Judgment that the Appellant has appealed. However at the hearing, the Appellant confined his appeal to the judge's refusal of judicial review of the Disciplinary Tribunal's order as to costs only.

66. The Appellant sought an order of Certiorari quashing the decision/findings and order of the Solicitors Disciplinary Tribunal as to costs and sought an order that the issue of costs be remitted to the Solicitors Disciplinary Tribunal for re-determination.

Not an appeal relating to costs only

67. Before the grounds of appeal are considered, it is necessary to deal with one matter first, which is the submission of Mr Westbrook SC, counsel for the respondents, that this appeal was in effect an appeal relating to costs only, which required leave under s.14(3)(e) High Court Ordinance, which provides:-

"no appeal shall lie -

(e)	without the leave of the court or tribunal in question or of the Court of Appeal, from an order of the Court of First Instance or any other court or tribunal ... relating only to costs which are by law left to the discretion of the court or tribunal".

68. In our view, it is clear that this section did not apply. This section would only have applied if the Appellant were appealing from the judge's order as to the costs of the application for judicial review, but that is not this appeal. This appeal is from the judge's refusal of substantive relief, i.e. judicial review of the Disciplinary Tribunal's order as to costs.

Ground of appeal based on jurisdiction

69. Turning to the grounds raised in the Appellant's Additional/Supplemental Grounds of Appeal, the first ground of appeal was that the judge was wrong in law in holding that the issue was not a matter that should properly be determined by way of judicial review but rather by way of appeal.

70. In placing reliance on the statement in Leech v Deputy Governor of Parkhurst Prison [1988] AC 533 at 581D, that "it has never previously ... been suggested that the mere existence of an alternative remedy to judicial review, of itself and by itself, ousts the jurisdiction of the court [to review], though it may be a powerful factor when it comes to the question of whether the discretion to review should be exercised", the Appellant appeared to be suggesting first, that the judge had thought that he had no jurisdiction to grant judicial review because of the existence of the statutory appeal process.

71. It is clear from the Judgment that the judge was not under any such misapprehension. On the contrary, the judge expressly recognized in paragraphs 39 - 41 of the Judgment that a challenge by way of judicial review would be possible, even where there was a statutory appeal process which had not been followed, if exceptional circumstances existed. In the circumstances, the Appellant's first ground of appeal must fail.

Ground of appeal based on finding of no exceptional circumstances

72. The Appellant's second ground of appeal was that the judge had exercised his discretion wrongly in finding that there were no exceptional circumstances to grant judicial review.

73. Having, in paragraphs 34 - 38 of the Judgment, examined the facts of this case and the Appellant's explanation for not having (so far) pursued the statutory appeal process, the judge found in paragraph 42 that no exceptional circumstances existed.

74. The legislature has provided in s.13 of the Ordinance that an appeal lies to the Court of Appeal against "any order" of the Solicitors Disciplinary Tribunal. The Appellant had argued that the dismissal of Complaint (A) should be taken into account, but the Disciplinary Tribunal had rejected that argument and made a joint and several order against him for full indemnity costs. If the Appellant took the view that the Disciplinary Tribunal's order was wrong in principle, he could and should have invoked the statutory appeal process.

75. Where there is an appeal process clearly provided by statute, it would only be in rare cases, where the Appellant can show exceptional circumstances, such as abuse of power or unfairness, that a collateral challenge by way of judicial review would be allowed.

76. However, the Appellant had not shown in the present case that the Disciplinary Tribunal had abused its power or had treated him unfairly. At the application before the judge, the Appellant alleged that he had not been given an opportunity to address the Disciplinary Tribunal on the question of costs. However, the transcript revealed that his counsel had, on instructions, chosen not to argue against the basis of costs, as noted in paragraph 51 above.

77. The Appellant's real complaint was against the quantum of the (untaxed) Bill of Costs when that was delivered later. Notwithstanding his experience as a solicitor, he had obviously merely assumed that the costs of the proceedings, even at a full indemnity basis, would be less (perhaps much less) than the sum in the Bill of Costs. He might also have been better-advised to have pressed the solicitors for the Law Society at the hearing to give an estimate of their costs (and possibly, the Law Society's own costs) before deciding not to argue on the basis of costs.

78. Nevertheless, the fact was that the Appellant had instructed counsel not to argue against the basis of costs, nor did he argue that a costs order above a particular value would be unfair to him. That being the case, it is difficult to see how the Disciplinary Tribunal could be criticised for having made an order on a basis that was not opposed by the Appellant.

79. This case is clearly different from Hatfield v Barristers' Society (Nova Scotia) (1978) 30 NSR (2d) 95 DLR 585 where the tribunal imposed an order that the barrister pay a specific amount as costs without knowing what costs had been incurred.

80. In any event, even if it could be argued by the Appellant that the Disciplinary Tribunal had erred in ordering him to pay full indemnity costs before ascertaining the quantum of such costs, and even taking into account the delay in delivering the Bill of Costs, the Appellant neither sought time to appeal, nor to apply for judicial review, for a period of 9 months after the Bill was delivered. No reason has been proffered for this inactivity. In the circumstances, I consider the judge was perfectly entitled to take the view that there were no exceptional circumstances shown and that the application for judicial review was unmeritorious.

81. It was also submitted by the Appellant, in the context of this ground of appeal, that there was a breach of his human rights, a matter which will be considered below (starting at paragraph 90).

Ground of appeal based on wrong exercise of discretion

82. The Appellant's third and fourth grounds of appeal were that the judge had wrongly exercised his discretion because he had placed too much weight upon the legislature's intent as shown in s.10 that the Law Society should be indemnified, and had given insufficient weight to factors such as the dismissal of Complaint (A) and the Appellant's conduct in the proceedings and his right to defend himself.

83. These grounds of appeal can be disposed of briefly. The judge was fully aware of the principle involved, that he had to find exceptional circumstances for the case to be amenable to the remedy of judicial review, and it is clear from the Judgment that he had thoroughly examined the features of this case. In my view, where the argument descends to how much or how little weight a judge exercising his discretion ought to have given various factors, an appellate court should not intervene unless the judge's decision is so "aberrant" that no reasonable judge regardful of his duty to act judicially could have reached it. This is not such a case

84. It was further submitted in relation to the fourth ground that the costs order was in effect punitive, as the costs were beyond the Appellant's means and would drive him into bankruptcy. Counsel for the Appellant relied on a passage in the judgment of Dubin JA in Re W.D. Latimer Co Ltd v Bray 6 O.R. (2d) 129, 135 in which the judge said that where a professional body was dealing with disciplinary matters with its members, the duty imposed upon the body of protecting the public from the misconduct of its members was a principal object, but the obligation of the professional body was also to deal fairly with those whose livelihood was in its hands, and nothing was to be gained by placing a priority upon one of its functions over the other.

85. However, this is not a case where the Appellant has been struck off or suspended from practice, so that he would be deprived of any income. A Bill of Costs which he had under-estimated has been delivered, but it has remained untaxed at his own request, and it is not for this court to undertake a taxation exercise. More importantly, there was no evidence before the judge or before this court as to what are the means of this Appellant, who has been a solicitor for more than 20 years. One would have expected such evidence to be adduced as a primary step before a submission was made that the costs order was punitive because it would "drive him into bankruptcy".

Ground of appeal based on imprecision or unreasonableness of costs order

86. The Appellant's fifth ground was that the Disciplinary Tribunal's order was imprecise or unreasonable, in that the costs should have been divided between the Appellant and the clerk.

87. The costs order was to the effect that the Appellant and the clerk would be jointly and severally liable for the costs of the proceedings. There is, as such, nothing imprecise about the order.

88. The Appellant's real complaint is that the order was unreasonable because (he says) the clerk has since "disappeared". This has been disputed by the respondents. Apparently, although the clerk has instructed solicitors, these solicitors had not signed the latest consent summons issued by the Appellant for adjourning the appointment for taxation, and no appearance was made on the clerk's behalf at the hearing of the application to adjourn.

89. Be that as it may, the issue whether a joint and several order to pay costs was appropriate in the circumstances (and before it was known that the clerk would "disappear") was entirely within the discretion of the Disciplinary Tribunal, which was familiar with the details of the case including the relationship between the Appellant and his clerk. If the Appellant considered that a joint and several order to pay all the costs was a wrong exercise of the Disciplinary Tribunal's discretion, that should have been made the subject of an appeal under the statutory appeal process.

Grounds of appeal based on contravention of BORO and human rights

90. The Appellant also submitted that the order for costs on a full indemnity basis contravened his rights under the Bill of Rights Ordinance ("BORO") and his basic human rights.

91. As I understood counsel's written submissions (which were not developed in oral argument), they were that the judge should not have interpreted s.10(2)(e) as doing no more than providing an indemnity for the Law Society against loss, because that interpretation would contravene Articles 10 and 22 of the BORO, which provide that all persons should be equal before the courts and tribunals. Presumably the argument is that the Law Society should not be in a better position than the Appellant.

92. The first issue is whether the BORO applies at all. Section 7 of the Hong Kong Bill of Rights Ordinance cap. 383 provides that it binds only (a) the Government and all public authorities, and (b) any person acting on behalf of the Government or a public authority. It is not binding in "inter-individual" disputes, even if enforcement is supported by statutory machinery such as a prohibition order (Tam Hing-yee v Wu Tai-wai [1992] 1 HKLR 185).

93. In Hong Kong Bar Association v Anthony Chua (1994) 4 HKPLR 637, a Barristers Disciplinary Tribunal decided that the BORO did not bind the Bar Council, whether in promulgating the Code of Conduct or in enforcing it before a Barristers' Disciplinary Tribunal, because the Bar Association was a professional association made up of private individuals. The fact that it has statutory recognition, and that a disciplinary tribunal has statutory powers in relation to disciplinary matters did not affect that basic position. In my view, the same reasoning applies to the present case, and counsel for the Appellant did not seek to distinguish it from the Bar Association case.

94. In any event, it would appear that even if it could be argued that the BORO applied, there was no contravention of Article 10 or Article 22 because s.10(2)(e) provided for payment "by any party" of costs.

95. The Appellant's final submission was that the costs order placed him in a double jeopardy situation. I do not see how that can be the case. The penalty provided for in s.10(2)(c) goes into the general revenue and is intended to reflect the Disciplinary Tribunal's disapproval of the solicitor's conduct. The costs order provided for in s.10(2)(e) merely reimburses the other party to proceedings for costs it had actually and reasonably incurred in the proceedings.

Application to adduce further affirmations

96. Finally, I would record that the Appellant sought to adduce two affirmations before this court which we read de bene esse. They show that the valuers had only received $500 and it was submitted that therefore it was likely that the clerk had kept for himself the sum of $3,000 which was later returned to the client. Presumably the purpose of these affirmations was to show that the clerk should have shouldered more of the burden of costs than the Appellant.

97. This sort of evidence should have been put before the Disciplinary Tribunal for its consideration in the exercise of its discretion over costs of the proceedings. It is far too late to adduce such evidence now, at the hearing of an appeal, not from the Disciplinary Tribunal, but from the refusal of judicial review of the Disciplinary Tribunal's decision. In any event, there is no suggestion that this evidence could not have been obtained if the Appellant had used reasonable diligence at either the proceedings before the Disciplinary Tribunal or before the judge. As such, it fails the first condition in Ladd v Marshall [1954] 1 WLR 1489.

Order

98. In the circumstances, I would dismiss this appeal. However, I have to express my disquiet on two matters. The first is what would appear to be the disproportionate amount of costs of the clerk to the Disciplinary Tribunal, given that his functions would be limited to preparation of papers, attendance at the hearing and the drafting of the order only. The other matter is the reluctance of the solicitors for the Law Society to reveal their costs when they were asked for an estimate at the hearing before the Disciplinary Tribunal. It would appear to me that had they been more forthcoming, a great deal of time and costs would have been saved.

Hon Rogers VP:

99. There will therefore be an order as set out in paragraph 20 above. There will be an order nisi that the costs here and below be to the appellant.