TSE WAI CHUN PAUL v. SOLICITORS DISCIPLINARY TRIBUNAL AND ANOTHER

CACV 3174/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3174 OF 2001

(ON APPEAL FROM HCAL NO. 636 OF 2001)

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J U D G M E N T

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Hon Rogers VP:

1. I agree with the judgment of Le Pichon JA.

Hon Le Pichon JA:

2. This is an appeal from the order dated 27 August 2001 made by Hartmann J dismissing the application of Tse Wai Chun Paul ("the applicant") for judicial review of the decision of the Solicitors Disciplinary Tribunal ("the Tribunal") made on 28 February 2001, refusing the applicant's request to hold disciplinary proceedings against him in public.

3. At the heart of this appeal is the constitutionality of section 9B(4) of the Legal Practitioners Ordinance ("the Ordinance") which reads:

"The Tribunal shall sit in camera in the places and at the times it directs."

The judgment below

4. The judge below rejected the applicant's contention that that section which compels the Tribunal to conduct its hearings in camera is inconsistent with the Basic Law. Article 8 of the Basic Law which came into effect on 1 July 1997 provides that the laws previously in force in Hong Kong shall be maintained "except for any that contravene this Law" and subject to any amendment by the HKSAR legislature. Article 39 of the Basic Law provides that:

" The provisions of the International Covenant on Civil and Political Rights, ... as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article."

The International Covenant on Civil and Political Rights ("the ICCPR") has been given effect in Hong Kong through the enactment of the Bill of Rights Ordinance, Cap. 383 ("the Bill of Rights").

5. Article 10 of the Bill of Rights restates Article 14(1) of the ICCPR and reads:

"Article 10

Equality before courts and right
to fair and public hearing

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."

It is the applicant's contention that section 9B(4) of the Ordinance contravenes Article 14(1) of the ICCPR and Article 10 of the Bill of Rights. It is therefore inconsistent with the Basic Law and is of no effect.

6. One of the preliminary issues dealt with by the judge was whether the Tribunal was a 'public authority' for the purposes of section 7 of the Bill of Rights. Unless the Tribunal were a 'public authority', it would not be bound by the obligations laid down in the Bill of Rights or the ICCPR. It was accepted that the Tribunal in exercising certain of its statutory powers was performing a public function and was thus amenable to judicial review. The judge did not consider that that fact of itself was determinative. Nor was the fact that the Tribunal receives government funding. The judge noted the Tribunal's public jurisdiction and its powers including the power to punish for contempt but he was not persuaded that those matters brought "the Tribunal sufficiently into the public domain or imbue it with such a public character that this can properly be called a public authority in terms of the Ordinance."

7. In case he was wrong in reaching this conclusion, the judge went on to consider the substance of the application which was whether the in camera hearing mandated by section 9B(4) contravened Article 14(1) of the ICCPR and Article 10 of the Bill of Rights. The judge's conclusions may be summarised as follows:

* What must be considered is the 'statutory scheme' within which the civil rights and obligations in a suit at law are determined. Even if the trial hearing fails to comply with Article 14(1) of the ICCPR or Article 10 of the Bill of Rights, there is no contravention if there is a body to whom an application for review or an appeal may be made which has full jurisdiction to review the legality of the decisions made earlier in the process and of the procedure followed.

* The Court of Appeal has full jurisdiction to deal with a decision of the Tribunal since Order 59 of the Rules of the High Court applies to such an appeal by reason of section 13(1) of the Ordinance.

* The public is given 'meaningful' access to appeal hearings notwithstanding the anonymity to be found in the title of the notice of originating motion as a result of Order 106, Rule 12 and, as a consequence, the public notice.

* Notwithstanding the powers conferred upon it, the Tribunal in its essential nature is a disciplinary tribunal and not a 'court of the classic kind'. The Tribunal is not part of the standard judicial machinery of the HKSAR.

This appeal

8. The appeal is based on a number of grounds. I propose to deal first with the central issue, namely, the constitutionality of section 9B(4) of the Ordinance.

Article 10 of the Bill of Rights

9. Although the wording is not entirely identical, the substance of Article 10 of the Bill of Rights is no different from that to be found in Article 6(1) of the European Convention on Human Rights. Article 6(1) reads:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

European jurisprudence on Article 6(1) of the convention is thus pertinent. The European position was considered in the recent decision of the Court of Session in Tehrani v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2001] IRLR 208 at paragraph 52:

"Under the Strasbourg jurisprudence, the position in relation to tribunals charged with responsibility for disciplinary or administrative matters is quite clear. Where the decision of such a tribunal involves the determination of a dispute over civil rights and obligations, no violation of the Convention can be found in the proceedings before the tribunal, if the tribunal's decision is subject to subsequent control by a court that has full jurisdiction and does provide the guarantees required by Article 6(1) (see eg Le Compte, Van Leuven and De Meyere, paragraphs 50-51, Albert and Le Compte, paragraph 29, Obermeier v Austria [1991] 13 EHRR 290, at 306, paragraph 70, and Bryan v United Kingdom [1995] 21 EHRR 342, at 349, paragraph 40). A passage from paragraph 51 of the ECHR's judgment in Le Compte, Van Leuven and De Meyere sets out the position:

'Whilst Article 6(1) embodies the "right to a court" ... it nevertheless does not oblige the Contracting States to submit "contestations" (disputes) over "civil rights and obligations" to a procedure conducted at each of its stages before "tribunals" meeting the Article's various requirements. Demands of flexibility and efficiency, which are fully compatible with the protection of human rights, may justify the prior intervention of administrative or professional bodies and, a fortiori, of judicial bodies which do not satisfy the said requirements in every respect; the legal tradition of many Member States of the council of Europe may be invoked in support of such a system.'

..."

This reasoning was refined in the later case of Albert and Le Compte v Belgium (1983) 5 EHRR 533 (referred to by Lord Mackay), where it is stated (at paragraph 29) that:

"In many member States of the Council of Europe, the duty of adjudicating on disciplinary offences is conferred on jurisdictional organs of professional associations. Even in instances where Article 6(1) is applicable, conferring powers in this manner does not in itself infringe the Convention. Nonetheless, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1)."

10. As Lord Mackay explained in Tehrani (at paragraph 55), in relation to tribunals operating in the disciplinary and administrative fields, European jurisprudence establishes that:

"... no breach of the Convention arises if the tribunal is subject to control by a court that has full jurisdiction and itself complies with the requirements of Article 6(1). In other words, when dealing with a disciplinary tribunal, ... a right of appeal to a court of full jurisdiction does not purge a breach of the Convention. It prevents such a breach from occurring in the first place."

This principle has been applied in Hong Kong. See, for example, R v Lift Contractors' Disciplinary Board, ex p Otis Elevator Co (HK) Ltd (1995) 5 HKPLR 78 at 87F-88B. If applicable in the present case, there is no question but that the judge was correct in concluding that there was no breach of the Basic Law because of the right of appeal under section 13 of the Ordinance to this court which is by way of a public rehearing.

11. Mr Dykes SC for the applicant submitted that this line of authority (which for convenience I will refer to as "the Tehrani principle") was inapplicable because the Tribunal has the powers of a 'court of the classic kind'. He relied on De Cubber v Belgium [1984] 7 EHRR 235. In that case, the applicant was convicted of offences of forgery and uttering forged documents. One of the judges of the court which convicted him had previously acted as investigating judge in the same case. The European Court of Human Rights held that there had been a breach of Article 6(1) of the Convention. It distinguished cases such as Le Compte, Van Leuven and De Meyere v Belgium and Albert and Le Compte v Belgium on the basis that those cases concerned litigation which was classified by the domestic law of the respondent State not as civil or criminal but as disciplinary or administrative. They concerned

"bodies which, within the national system, were not regarded as courts of the classic kind, for the reason that they were not integrated within the standard judicial machinery of the country."

This was to be contrasted with the court in the De Cubber case which was characterized (at p. 248) as follows:

"... what was involved was a trial which not only the Convention but also Belgian law classified as criminal; the Oudenaarde criminal court was neither an administrative nor professional authority, nor a jurisdictional organ of a professional association, but a proper court in both the formal and the substantive meaning of the term."

12. The other authority referred to was Findlay v United Kingdom (1997) 24 EHRR 221 which concerned court-martial proceedings. The 'fundamental flaws' which concerned the commission was that all the members of the court-martial appointed by the convening officer were subordinate in rank to him and many of them were directly or ultimately under his command. The convening officer had the power to dissolve the court-martial either before or during the trial. The convening officer also acted as "confirming officer" which meant that the decision of the court-martial was not effective until ratified by him and he had the power to vary the sentence imposed as he saw fit. The Commission held that these fundamental flaws in the court-martial system were not remedied by the presence of safeguards such as the involvement of the judge advocate, or the oath taken by members of the court-martial board. It went on to say this (at paragraph 79):

"Nor could the defects referred to above be corrected by any subsequent review proceedings. Since the applicant's hearing was concerned with serious charges classified as 'criminal' under both domestic and Convention law, he was entitled to a first instance tribunal which fully met the requirements of Article 6(1)."

13. Both De Cubber and Findlay concerned a trial classified as 'criminal' under both domestic and Convention law in a 'proper court'. This attracted the full protection of Article 6(1) guarantees. In the present case, one is dealing with disciplinary proceedings concerning the applicant as a member of the solicitors' profession. As I understand it, Mr Dykes's submission is that full protection is warranted because the Tribunal has the powers of a 'court of the classic kind'. Before considering the meaning of that expression, it would be convenient to summarize the relevant statutory provisions relating to the Tribunal.

The Tribunal

14. The Solicitors Disciplinary Tribunal Panel ("the Panel") is made up of practising solicitors, foreign lawyers and lay persons not connected in any way with the practice of the law appointed by the Chief Justice pursuant to section 9 of the Legal Practitioners Ordinance, Cap. 159. It has a Tribunal Convenor who is also appointed by the Chief Justice. (Section 9(4)). The Tribunal Convenor is required to appoint members from the Panel and constitute a 'Solicitors Disciplinary Tribunal' to inquire into and investigate a submission made to it in two situations. It is not a matter of discretion. First, under section 8A(1), if the Council of the Law Society ("the Council") considers that a solicitor or foreign lawyer may be unfit to practise, it may appoint a person as an inspector to inquire into and report on the matter. After considering the report and representations on behalf of the solicitor or foreign lawyer involved, if the Council considers that he is unfit to practise, the Council is obligated (under subsection (3)) to submit the matter to the Tribunal Convenor. Second, under section 9A(1), where the Council considers that the conduct of a solicitor or foreign lawyer or their employees should be inquired into or investigated as a result of a complaint being made to it or otherwise, the Council must also submit the matter to the Tribunal Convenor.

15. Section 10 sets out the powers of the Tribunal. It has power to inquire into and investigate the conduct of any person in respect of which it was appointed and make orders at the conclusion of an inquiry which include striking the name of the solicitor from the roll of solicitors, suspending him from practice, imposing a fine etc. Section 11 deals with the "ancillary powers" of the Tribunal. Subsection (1) reads:

" (1) For the purpose of conducting any such inquiry or investigation, a Solicitors Disciplinary Tribunal shall have all such powers as are vested in the Court or in any judge in the course of any action or suit in respect of the following matters-

(a) enforcing the attendance of witnesses and examining them upon oath or otherwise;

(b) compelling the production of documents;

(c) punishing persons guilty of contempt;

(d) ordering an inspection of any property;

(e) conducting the examination of witnesses; and

(f) adjourning any meeting from time to time and from one place to another,

and a summons under the hand of the Chairman of a Solicitors Disciplinary Tribunal may be substituted for and shall be equivalent to any form of process capable of being issued in any action or suit for compelling the attendance of witnesses or the production of documents and any warrant of committal to prison issued for the purpose of enforcing any such powers as aforesaid shall be under the hand of such Chairman and shall not authorize the imprisonment of any offender for a period exceeding 1 month."

Mr Dykes drew particular attention to the power to commit for contempt under subsection (1)(c).

Court of a classic kind

16. Mr Dykes argued that the Tribunal was a court of the classic kind. This expression appears to have its origin in the case of X v The United Kingdom (1981) 4 EHRR 188 where one of the issues was whether there had been a breach of article 5(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms which provides:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful."

The meaning of the word "court" used in article 5(4) fell to be considered. At paragraphs 52-53 of the judgment, it is said:

" 52. ...

By virtue of Article 5(4), a person of unsound mind compulsorily confined in a psychiatric institution for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings at reasonable intervals before a court to put in issue the 'lawfulness' (within the meaning of the Convention, see para. 57, below) of his detention, whether that detention was ordered by a civil or criminal court or by some other authority.

53. It is not within the province of the Court to enquire into what would be the best or most appropriate system of judicial review in this sphere, for the Contracting States are free to choose different methods of performing their obligations. Thus, in Article 5(4) the word 'court' is not necessarily to be understood as signifying a court of law of the classic kind, integrated within the standard judicial machinery of the country. This term, as employed in several Articles of the Convention (including Art. 5(4)), serves to denote -

bodies which exhibit not only common fundamental features, of which the most important is independence of the executive and of the parties to the case, but also the guarantees ('appropriate to the kind of deprivation of liberty in question') of [a] judicial procedure',

the forms of which may vary from one domain to another." (emphasis added)

What is important there is thus to consider whether it is a court of law of the classic kind integrated within the standard judicial machinery of the country. Once it is appreciated that the full test entails that the particular tribunal must be integrated within the standard judicial machinery of the country it can be seen at once that the Tribunal is not so integrated. In the G.M.C. v BBC [1998] 3 All ER 426 it was held that the General Medical Council in United Kingdom was not a body which exercised the judicial power of the state. Likewise here, the Tribunal does not exercise the judicial power of the state. It exercises a disciplinary function over solicitors, foreign lawyers and their employees.

17. The only doubt that might have arisen was the fact that the Tribunal was given a statutory power of contempt. As will become apparent, that in itself cannot be conclusive.

Contempt of court

18. The ability to commit for contempt is sometimes thought to be the mark of a court. This is of course so in relation to the inherent power of a superior court to punish for contempts committed outside courts. It is clear that only superior courts (i.e. the Court of First Instance, the Court of Appeal and the Court of Final Appeal) have an inherent power. The juridical basis of this inherent power was explained in the following passage from an article by Sir I.H. Jacob in 1970 Current Legal Problems 23 at 27 quoted with approval by Rogers J (as he then was) in A.G. v Cheung Kim Hung [1997] HKLRD 472 at 477:

"... the jurisdiction to exercise these powers is derived, not from any statute or rule of law, but from the very nature of the court as a superior court of law, and for this reason such jurisdiction has been called 'inherent.' For the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very essence. Without such a power, the court would have form but would lack substance. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil its function as a court of law.

Rogers J also referred to Connelly v DPP [1964] AC 1254, 1301 where Lord Morris pointed out that:

"[t]here can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.' The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner."

19. Thus, the Court of First Instance watches over the proceedings of inferior courts. It may punish as contempt acts amounting to an interference with the course of justice in connection with committal proceedings before magistrates. (In the UK, the Queen's Bench Division of the High Court has this jurisdiction. See R v Davies [1906] 1 KB 32, 47-8.) Contempts committed in relation to District Court proceedings are also subject to the supervisory jurisdiction of the Court of First Instance. See In re an application by Liu Lee Yuk-ching [1982] HKLR 399.

20. It is to be noted that provided that they are courts of record, inferior courts, tribunals, commissions and appeal boards also have inherent jurisdiction to punish for contempt committed in the face of the court. Examples include the Lands Tribunal, the Labour Tribunal and the Small Claims Tribunal. These are all courts of record. See Lands Tribunal Ordinance, Cap. 17 (s.3); Labour Tribunal Ordinance, Cap. 25 (s.3); Small Claims Tribunal Ordinance, Cap. 338 (s.3). Such courts of record may, additionally, have conferred upon them a statutory power to commit for contempt. See, for example, s.10(1)(d) of Cap. 17, ss. 41-45 of Cap. 25 and s.35 of Cap. 338. Nevertheless, there is a material difference between this jurisdiction of the inferior courts and the supervisory jurisdiction of the superior courts of record since in the case of the inferior courts it does not extend to contempts committed outside courts but is confined to contempts committed in the face of the court. See R v Lefroy (1873) LR 8 QB 134 at 137.

21. So far as the Tribunal is concerned, whilst it has power to commit for contempt, that power is purely statutory. It has no inherent power, not being a court of record and, unlike the superior courts of record exercising supervisory jurisdiction, there is no power to punish for contempts committed outside courts. These differences are real. When thus analyzed, it will be appreciated that the Tribunal's power to commit for contempt is markedly different in nature from that of a court of the classic kind. It is possible that when the statutory power to commit for contempt was introduced into the legislation, it was thought that those who constituted the Tribunal were likely to be of a standing where they could be eligible to be appointed judges and thus would be able to know and understand the law and practice in relation to contempt and it would be safe to entrust them with the power to commit even if it be a limited power. Whatever the reason which caused the introduction of the power into the legislation, the possession of the statutory power to commit for contempt in itself is not dispositive. I see no reason, let alone a compelling one, why that fact should transform what is a domestic disciplinary tribunal into a court of law of the classic kind integrated within the standard judicial machinery of Hong Kong.

Conclusion

22. For these reasons, I am unable to accept that the Tribunal is a court of the classic kind. In my judgment, the Tehrani principle applies in the present case. Accordingly, section 9B(4) of the Ordinance does not contravene either Article 14 of the ICCPR or Article 10 of the Bill of Rights: nor is it, in any way, inconsistent with the Basic Law.

Anonymity

23. Mr Dykes also argued that the right of appeal to this court under section 13 of the Ordinance is not "curative" because Order 106, rule 12(1) requires that the appellant in each and every such appeal must not be named in the originating notice of motion by which the appeal is brought. As a preliminary matter, as Lord Mackay pointed out in Tehrani (at paragraph 55), a right of appeal to a court of full jurisdiction does not purge a breach of the Convention. It prevents the breach from occurring in the first place. It is therefore not a question of the right of appeal being "curative".

24. The issue then comes down to this: is it a requirement of Article 10 of the Bill of Rights or Article 14 of the ICCPR that a case be listed for information of the press or public generally? Looking at the wording of Article 10, what it provides is that

"... everyone shall be entitled to a fair and public hearing ..."

There is thus no express requirement in Article 10 itself.

25. It is stated in Harris, O'Boyle & Warbrick, Law of the European Convention on Human Rights at 218 that there is no such requirement and that it is sufficient that the public is not excluded. X v UK No. 8512/79 is cited for the proposition. Although the case is unreported, this court has located a digest of it: see 2 Digest of Strasbourg Case-Law relating to the European Convention on Human Rights 444. The applicant in that case complained that proceedings before the English Court of Appeal on 28 July 1978 violated Article 6(1) of the Convention in that they were not public, on the ground, inter alia, that the case was unlisted. The Commission considered that although the case might have been unlisted, the hearing was clearly "public" in the sense of Article 6(1) of the Convention since members of the public were in fact allowed into the courtroom and that therefore there had been no violation of Article 6(1).

26. Even if the point were free from authority, I would have reached a similar conclusion. There is no doubt that the appeal hearing itself is held in public. Details of the appeal including the name of the appellant can be reported. Contrary to Mr Dykes's submission, section 5(1)(e) of the Judicial Proceedings (Regulation of Reports) Ordinance, Cap. 287 does not render the publication of information relating to an appeal hearing a contempt of court because it has no application where the court is not sitting in private. Thus, there is no restriction on the applicant himself if he so wished to publicize the hearing of his appeal. In these circumstances, I fail to see how the requirement of Order 106, rule 12(1) that the applicant not be named in the originating notice of motion can render the appeal hearing either unfair or one which is not held in public. Nor do I agree with Mr Dykes that the public would effectively be denied any 'meaningful' access to the appeal hearing. As stated above, it is open to an applicant to publicize his impending appeal; the hearing is in public and details may be reported both before and after the hearing. On any footing, that must constitute 'meaningful' access.

The 'public authority' point

27. In view of my conclusion on the constitutionality issue, it becomes unnecessary to consider the question whether the Tribunal is a 'public authority' for the purposes of section 7 of the Bill of Rights and, if not, whether section 7 constituted an illegitimate restriction on the applicant's rights under the Basic Law. Suffice to say that, for my part, I am not persuaded that the judge's reasoning that the Tribunal is not a 'public authority' was wrong in any respect.

28. I would dismiss this appeal. I would also make an order nisi for costs in favour of the 2nd respondent.

Hon Sakhrani J:

29. I agree.