MUI KWOK KEUNG LOUIE v. THE BAR COUNCIL

CACV 102/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 102 OF 2010

(ON APPEAL FROM THE BARRISTERS DISCIPLINARY TRIBUNAL
THE BAR COUNCIL v. MUI KWOK KEUNG LOUIE)

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Hon Yuen JA:

1.  I agree with the judgment of Fok JA and would dismiss the summons and appeal with costs on an indemnity basis.

Hon Fok JA:

Introduction

2.  This is an appeal against the findings of a Barristers’ Disciplinary Tribunal (“the Tribunal”) that the appellant was guilty of three complaints of professional misconduct that had been made against him.

The disciplinary proceedings

3.  The appellant was admitted as a barrister in Hong Kong in 1993 and is a practising barrister with his chambers at Room 1301, Dina House, Duddell Street.

4.  Four complaints of professional misconduct were laid against the appellant by the respondent, the Bar Council, following complaints made by a Mr Pang Mo Fung (“Mr Pang”).  The complaints arose out of the appellant’s handling of contentious court proceedings brought by Mr Pang against the police and the Hospital Authority.

(1)  First, it was alleged that, contrary to paragraph 100 of the Code of Conduct of the Bar (“the Code”), the appellant touted for business from Mr Pang.

(2)  Secondly, it was alleged that, contrary to paragraph 124 of the Code, the appellant proposed and accepted a contingency fee arrangement in relation to intended proceedings by Mr Pang against the police and Hospital Authority.

(3)  Thirdly, it was alleged that, contrary to paragraphs 50(a) and 142(a) of the Code, the appellant discussed, took instructions from, and gave advice to Mr Pang without the intervention of instructing solicitors.

(4)  Fourthly, it was alleged that, contrary to paragraph 6(d) of the Code, the appellant was incompetent in his professional activities in handling Mr Pang’s intended proceedings against the police and Hospital Authority between September 1999 and January 2003.

5.  The Tribunal sat on various dates between 29 June 2009 and 19 November 2009.  On 8 April 2010, the Tribunal convened and delivered its statement of findings in which it found the appellant guilty of complaints 1, 2 and 3 but not guilty of complaint 4. The members of the Tribunal were unanimous in those findings.

6.  The Tribunal reconvened on 28 April 2010 to deliver its sentence and the reasons for sentence.  It suspended the appellant from practising as a member of the Bar for a period of six months in respect of each of the three complaints on which he was found guilty, with the suspensions to run concurrently so as to result in a total period of suspension of six months.  The Tribunal also ordered the appellant to pay three-quarters of the costs of the proceedings before it on a full indemnity basis and also made orders concerning the publication of the order for suspension by the Registrar and the parties to whom the Tribunal’s statement of findings and reasons for sentence should be supplied.  The Tribunal has directed that its orders be stayed pending the outcome of this appeal.

Summary of the disputed facts giving rise to the complaints

7.  In December 1997, Mr Pang was arrested by the police following a domestic dispute at home with his former wife, Madam Chan Yuk Fong (“Madam Chan”).  In the course of that arrest, Mr Pang was alleged to have assaulted a police officer and, as a result of his losing consciousness, he was taken to the United Christian Hospital and then transferred to the Psychiatric Unit at Pamela Youde Nethersole Eastern Hospital.  According to Mr Pang, this transfer was without his consent.  These events led to Mr Pang being charged with assaulting a police officer and he was convicted of this offence after trial in April 1998.  He appealed against that conviction and his appeal was allowed in October 1998.

8.  Mr Pang determined to pursue civil proceedings against the police and Hospital Authority in respect of his arrest and subsequent treatment in hospital.  He applied unsuccessfully for legal aid.  An appeal to the Court of First Instance against the refusal to grant him legal aid was dismissed in September 1999.

9.  According to Mr Pang, he received an unsolicited telephone call from the appellant, whom he had never met before, in October 1999.  As a result of this call, Mr Pang went to the appellant’s chambers and was interviewed by the appellant.  The appellant claimed to have served in the Police Force and made a number of other claims to suggest that he was suitably qualified to represent Mr Pang in his intended civil claims.  These facts form the basis of complaint 1.

10.  The appellant’s case on this complaint (although he did not give evidence before the Tribunal) was that he was introduced to Mr Pang through a Dr Li Fung Ming, Joseph (“Dr Li”), a clinical psychologist.  Dr Li worked at the Yung Fung Shee Memorial Centre and had treated Mr Pang in group therapy.

11.  This was supported by the evidence of Mr Mak Hon Ming (“Mr Mak”), who was called as a witness before the Tribunal by the respondent.  Mr Mak was admitted as a solicitor in Hong Kong in 1995, became an assistant solicitor employed by Messrs Lam, Lee & Lai (“LLL”) in September 2000 and a partner of that firm on 1 February 2003.  He said that he received a call on 11 October 2001 from the appellant asking him to assist in an urgent personal injury case.  He attended a conference at the appellant’s chambers the same day, when he met Mr Pang and Madam Chan.  Mr Mak said that the appellant told him that Mr Pang’s case was referred to him by Dr Li.

12.  However, Dr Li, who was called as a witness before the Tribunal by the respondent, denied that he had introduced Mr Pang to the appellant.  Rather, his recollection was that the appellant’s name was mentioned by another patient he was treating in group therapy together with Mr Pang. He ceased working at the Centre in August 2001 and recalled having met Mr Pang by chance on the MTR sometime after that date who told him that he had engaged the appellant in respect of legal proceedings.  Dr Li denied that he knew Mr Mak.

13.  The appellant called Madam Chan as his witness before the Tribunal.  Her evidence was that Mr Pang told her that he was introduced by Dr Li to a solicitor, namely Mr Mak Hon Ming.  She says she accompanied Mr Pang to go and see Mr Mak and the appellant at the latter’s chambers in October 2001 (not 1999) and that this was the first time she and Mr Pang saw Mr Mak and the appellant.

14.  During the initial meeting at the appellant’s chambers, Mr Pang alleged that, when he explained to the appellant that he was unemployed and was receiving Comprehensive Social Security Assistance (“CSSA”) so that he lacked the financial means to pursue litigation, the appellant told him he need not pre-pay any legal fees but that, if he won, Mr Pang would give him 30% of the compensation as a fee and that, if he lost, he would not need to pay any costs.  These facts form the basis of complaint 2.

15.  For his part, the appellant denied having proposed this contingency fee arrangement.  Instead, it was his case that Mr Pang proposed this and that he refused to act on this basis.  The appellant’s case was that he agreed to act for Mr Pang on a pro bono basis and this was supported by Madam Chan’s evidence.  According to her, Mr Mak did not discuss fees with Mr Pang but said he would talk to him about this later.  She stated that, prior to the start of the proceedings, Mr Pang told her to deposit $1,200 into the bank account of Mr Mak’s firm, which she did within about one week of the meeting on 11 October 2001.

16.  Mr Mak’s evidence as regards fees was that the appellant asked him to assist in Mr Pang’s case on a pro bono basis, which was the basis on which the appellant would be acting. Although he stated he agreed to assist Mr Pang on a pro bono basis primarily out of sympathy for him, his evidence was that he asked for and received from Madam Chan $1,200 in cash “as payment on account of court fee and other miscellaneous disbursements” in the action.  In his witness statement, which was treated as his evidence in chief before the Tribunal, Mr Mak said “[n]either LLL nor myself had received any other money from Mr Pang, Madam Chan or anybody else in our conduct of the PI Action for payment of LLL’s fees or disbursements therein.”

17.  At this first meeting, Mr Pang alleged that only he and the appellant were present.  After that meeting, and before Mr Pang was introduced to Mr Mak, Mr Pang alleged that he had about 8 to 10 conferences with the appellant in the absence of any solicitor.  These facts form the basis of complaint 3.

18.  Since the appellant was found not guilty of complaint 4, it is not necessary to set out the facts on which that complaint of incompetence was based.  However, by way of background, it is relevant to note that DCPI Action No. 303 of 2001 (“the DCPI Action”) was brought by Mr Pang against the Secretary for Justice for and on behalf of the Hong Kong Police as 1^st defendant and the Hospital Authority as 2^nd defendant.

19.  The DCPI Action had a sorry history since it was flawed from the outset as against both defendants.  First, it was time-barred since it was commenced more than three years after any cause of action for personal injury would have accrued (in December 1997).  Secondly, leave under s.69(2) of the Mental Health Ordinance, Cap. 136, was required (but had not been obtained) to advance the claim made in the action against the Hospital Authority; moreover, such leave could only be granted by the Court of First Instance and not the District Court.  An application for leave in respect of the proceedings against the (2^nd defendant) Hospital Authority was transferred to the High Court.  On 15 May 2003, the action against the 2^nd defendant was discontinued by consent with no order as to costs (and with all interlocutory orders as to costs being waived).

20.  So far as the action against the (1^st defendant) Secretary for Justice is concerned, at a hearing of the DCPI Action on 27 January 2003, an adjournment was ordered apparently because no application had been made to disapply the relevant time-bar and the 1^st defendant’s costs of the adjournment were ordered to be borne by Mr Pang’s solicitors personally.  The amount of those costs was subsequently agreed at $70,000 which Mr Mak says he and the appellant “personally came up with … and paid … to the Department of Justice”.  Eventually, because of Madam Chan’s refusal to testify for Mr Pang in the action, LLL ceased to act for Mr Pang on about 22 August 2003.  On 1 September 2004, Mr Pang was given leave to discontinue the action against the 1^st defendant and ordered to pay the 1^st defendant’s costs of the action.

The Tribunal’s findings

21.  The Tribunal found Mr Pang to be an honest and reliable witness, whose evidence they believed and accepted.  The Tribunal accepted Mr Pang’s evidence that the first meeting between him and the appellant took place in October 1999.  As for Madam Chan, the Tribunal found her to be an unreliable and dishonest witness and concluded that they could not rely on her evidence insofar as it was inconsistent with Mr Pang’s case.  The Tribunal also found Dr Li to be a credible and reliable witness and accepted his evidence that he did not introduce Mr Pang to the appellant.  Accordingly, the Tribunal found the appellant guilty of complaint 1.

22.  The Tribunal also accepted Mr Pang’s evidence as to what the appellant said regarding fees at that first meeting and was satisfied that no meaningful monetary sum of money was ever paid by Mr Pang to the solicitors and that up to August 2003 all the work done by the appellant was on a contingency basis.  Accordingly, the Tribunal found the appellant guilty of complaint 2.

23.  Finally, the Tribunal accepted Mr Pang’s evidence that there were a number of conferences in the absence of any instructing solicitor before Mr Mak was introduced to Mr Pang.  Accordingly, the Tribunal was satisfied that the appellant was guilty of complaint 3, although the Tribunal made no specific finding as to the number of such conferences.

24.  As to complaint 4, the Tribunal doubted the credibility and reliability of Mr Mak who was the main witness on this complaint.  The Tribunal was not able to make any specific findings as to whether the incompetence in the handling of the litigation was that of the appellant or of Mr Mak and, hence, found the appellant not guilty of complaint 4.

The application to adjourn

25.  Shortly before the date of the hearing of this appeal, the appellant, acting in person in this appeal (as he did before the Tribunal), issued a summons dated 7 March 2010 seeking leave:

“… to adduce bank records (if any) to be retrieved by Madam Chan Yuk Fong for the total payment of HK$66,000.00 as new evidence in the form of an affidavit for the forthcoming appeal hearing”.

A letter from Madam Chan to the Bar Association dated 27 February 2011 exhibited to an affirmation of the appellant sets out a schedule of those payments.  There are six separate payments in the period from 6 October 2004 to 21 May 2005 of varying amounts totalling, in aggregate, $66,000.  The letter states that Madam Chan had, on Mr Pang’s instructions, transferred this sum from her bank account to the account of Mr Mak.

26.  When the appeal came on before us, the appellant, recognising that the bank records had not yet been obtained, applied for an adjournment of the appeal so as to enable those records to be retrieved by Madam Chan from her bank, so that those records could then formally be made the subject of an application to adduce them as fresh evidence on the appeal.

27.  It was not suggested by the appellant that Madam Chan would have anything additional to add in her affidavit or affirmation which he intended to file to exhibit the bank records to that which was stated in her letter to the Bar Association dated 27 February 2011 (referred to above) and in her subsequent letter to the appellant dated 7 March 2011 (to which I refer below).  Thus, the real question on the adjournment application was whether the court would be prepared to grant leave to the appellant to adduce fresh evidence that Madam Chan, on the instructions of Mr Pang, transferred an aggregate sum of $66,000 to the personal account of Mr Mak in the period from 6 October 2004 to 21 May 2005.

28.  The application for the adjournment and to introduce fresh evidence was opposed by the Bar Council.  After hearing argument from the parties on the admissibility of the intended fresh evidence, the court dismissed the application for an adjournment, indicating that reasons for doing so would be given later, and proceeded to hear the substantive appeal.

The reasons for refusing the adjournment

29.  Under RHC Order 59 r.10(2), where there has been a trial or hearing on the merits, fresh evidence cannot be admitted before this court unless there are special grounds.  And it is trite that, for special grounds to be established, the conditions laid down in Ladd v Marshall [1954] 1 WLR 1489 must be satisfied.  Those conditions are that (1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial, (2) the further evidence is such that, if given, it would probably have an important influence on the result of the case, and (3) the evidence is such as is presumably to be believed.

Condition (1): Reasonable diligence?

30.  As to the first condition (the exercise of reasonable diligence), the appellant said this in his skeleton argument:

“For Condition (1), it is apparent at all times that the Appellant could not control the act or behavior of Madam Chan … . If she did not tell the Appellant about the 6 bank transfers, the Appellant had no means to have access to the same. Since the Respondent is now not interested at all to contact Madam Chan for clarification or investigation of the matter, the Appellant had just contacted her on 6^th March 2011; attached herewith is a copy of the latest letter dated 7^th March 2011 (having just reached the Appellant by courier this morning) from her showing why she did not disclose the information relating to the bank transfers at the tribunal hearing.”

31.  The attached letter of 7 March 2011 from Madam Chan addressed the question of why she did not disclose to the Tribunal the fact that she had paid costs of $66,000 to Mr Mak for Mr Pang.  The material part of the letter (in translation) reads:

“In fact the reason is very simple, after every transfer, I gave the transfer record to [Mr Pang]. By the time of the hearing at the end of 2009, as the matter was many years ago, I had long forgotten this matter, even if I had remembered it, it would have been very hard to make enquiries among my many accounts. I know when lawyers act, they look mostly to evidence, since there was no substantial evidence at hand, that was why I chose to keep my mouth shut.”

32.  In my view, the explanation that Madam Chan forgot that she made the transfers in question is not credible.  The sum of $66,000 is a large amount, particularly for a family such as that of Mr Pang, who was receiving CSSA, and Madam Chan.  I do not think it is plausible that a series of transfers amounting to this total sum would be forgotten by Madam Chan.  This is particularly the case given that she says Mr Pang asked her to assist him to complain against the appellant and Mr Mak in September 2004, shortly before the date when she made the first of the transfers in question (6 October 2004).  If Mr Pang was intimating dissatisfaction with the appellant’s and Mr Mak’s services to the point of making a complaint, it is highly doubtful Madam Chan would not have found his request to make payments to Mr Mak unusual and thus would not have forgotten about making the payments.  She had also been approached by Mr Mak in respect of the complaint against the appellant and provided a letter to Mr Mak dated 13 May 2005 denying any impropriety on the part of either the appellant or Mr Mak in respect of their handling of Mr Pang’s litigation.  If she had been addressing her mind to the handling of the litigation at that time, it is simply not credible that she would have forgotten about the payment of $66,000 to Mr Mak.

33.  Most importantly, there is a complete lack of any evidence from the appellant, or from Madam Chan, as to what inquiries were made by the appellant of Madam Chan concerning any payments made to Mr Mak.  It is quite clear from the contents of the appellant’s skeleton and Madam Chan’s letter of 7 March 2011 that it is not suggested that the appellant asked Madam Chan, who was his witness before the Tribunal, whether there were any further payments made by her to Mr Mak in respect of the DCPI Action.  In my opinion, reasonable diligence would at least require the appellant to ask whether evidence of this nature was available. The appellant was relying on evidence that Madam Chan paid a sum of $1,200 to Mr Mak’s firm.  If he considered this to be relevant, there is no good reason why he would not have investigated with Madam Chan whether any other payments were made to Mr Mak or his firm.  And for the reasons given in the preceding paragraph, had he asked her about any further payments in respect of the litigation, I cannot conceive that she would simply have forgotten about the transfers totalling $66,000.  Finally, in this regard, insofar as the appellant suggested in argument that the reason he did not ask Madam Chan about any such payments was because the initial complaint letter from Mr Pang to the Bar Association only concerned his alleged negligence in failing to ensure that the DCPI Action was commenced within time so that he only focused on this aspect rather than the question of payments for legal services, this argument is refuted by the letter to the appellant from the Bar Association dated 18 March 2005 in which his attention was drawn to, amongst other provisions, paragraph 124 of the Code which prohibits contingency fees.  The fact that this prohibition was drawn to his attention is a further reason reasonably to expect the appellant to raise inquiries with Madam Chan as to whether Mr Pang made any payments for the legal representation he received in respect of the DCPI Action.

34.  It is possible, of course, that the appellant consciously decided not to make these inquiries of Madam Chan because he was content to rely on Mr Mak’s evidence confirming that he, the appellant, would act on a pro bono basis in meeting the complaint that he was acting on a contingency fee basis.  It is certainly the case that, notwithstanding the evidence before the Tribunal that Mr Mak was not acting on a pro bono basis for Mr Pang, the appellant did not pursue the question of what further payments Mr Pang might have made to Mr Mak in order to discredit Mr Pang.  Madam Chan’s evidence in her witness statement and oral evidence before the Tribunal was that Mr Mak had said to Mr Pang that he would speak to him separately about fees and did not say he would act pro bono. This was contrary to Mr Mak’s evidence that he was in fact acting pro bono and Mr Pang’s evidence that the appellant told him he would not have to pay a single cent. However, the appellant only cross-examined Mr Pang as to who paid the $1,200 and he did not cross-examine Mr Mak at all on legal fees (other than in relation to challenging Mr Mak’s assertion that he had contributed towards the $70,000 costs in the DCPI Action (see above)).  The appellant was thereby accepting Mr Mak’s evidence that he was acting pro bono, even in the face of Madam Chan’s statement suggesting otherwise.

35.  Be that as it may, if the appellant consciously decided not to ask Madam Chan if any further payments had been to Mr Mak or his firm, I do not think it can be said that reasonable diligence had been shown in respect of the further evidence now sought to be adduced.

36.  It would seem that Madam Chan’s letter dated 7 March 2011 (see above) is seeking to anticipate an argument that, even if the appellant had asked her for the evidence of bank transfers, she would not have told him about them (even if she remembered them).  However, the wording of her letter is, to say the least, strange.  The latter explanation that she “chose to keep [her] mouth shut” is particularly odd in the light of her evidence to the Tribunal that she kept extracts of her diary recording events which happened in 2001. She gave evidence that her diary entries indicated a first meeting between Mr Pang and the appellant on 11 October 2001.  The Tribunal found that these extracts were recent fabrications, against which finding there is no appeal.  But, if Madam Chan was prepared to manufacture documentary evidence to support the appellant’s case, it is unlikely she would not have bothered to look for bank records or at least tell him about the transfers.

37.  For these reasons, I do not consider that the first condition of Ladd v Marshall is satisfied in respect of the further evidence the appellant would seek to adduce.

Condition (2): probable important influence on result?

38.  Turning to the second condition (whether the evidence would probably have an important influence on the result), the appellant said this in his skeleton argument:

“For Condition (2), the Appellant has no doubt that if evidence relating to Madam Chan relating to the 6 bank transfers are to be accepted, the convictions in relation to Complaints 1-3 must be quashed because the evidence goes to the credibility of the Complainant, who at all times said that he did not pay a penny for DCPI 303/2001. In short, the evidence will go to the root of the credibility of the Complainant.”

39.  However, it is important to note the evidence before the Tribunal as to the making of the fee arrangement.  Mr Pang’s evidence in this regard was directed at the complaint against the appellant’s acting on a contingency fee basis and not as to the basis on which Mr Mak acted.  Mr Pang said that the contingency fee arrangement was arrived at with the appellant at their first meeting in October 1999, when Mr Mak was not present and long before LLL were involved in respect of the DCPI Action.

40.  The fee arrangement of Mr Mak was not examined before the Tribunal.  Madam Chan’s evidence (as noted above) was that Mr Mak had not agreed to act on a pro bono basis and so he must have been acting either on a fee-paying basis or a contingency basis.  Mr Mak’s own evidence was that he was acting pro bono and the appellant did not challenge this.  The Tribunal did not have to determine whether Mr Pang’s fee arrangement with Mr Mak was on a pro bono basis, fee-paying or on a contingency for two reasons.  First, the mischief of the rule against contingency fees is not that the barrister will not charge: rather, the mischief to which the rule is directed is that he will receive a portion of the damages as his fees. Secondly, there was no evidence that the appellant and Mr Mak had the same fee arrangement with Mr Pang: on the contrary, the appellant’s own witness, Madam Chan, said that Mr Mak told Mr Pang that he would talk to him separately about fees.

41.  Finally, on the making of the fee arrangement, it is important to note that the Tribunal did not rely on Mr Mak’s evidence in reaching its conclusion that Mr Pang was telling the truth about the contingency fee arrangement as between him and the appellant.  Furthermore, the Tribunal’s finding on complaint 2 was that “up to August 2003 all the work done by the [appellant] was on a contingency basis”, that period being before the payments totalling $66,000 were made.

42.  As regards the purpose of the payment of $66,000 to Mr Mak, there is no evidence that any part of this money was intended to go to the appellant as fees.  The issue before the Tribunal was whether it should accept the appellant’s case that the arrangement was pro bono or the Bar Council’s case that it was a contingency.  On either case, there was no reason that the appellant should be receiving any fees.

43.  Even as between Mr Pang and Mr Mak, there is no evidence that the $66,000 was intended to go to Mr Mak as fees.  Madam Chan does not explain in her letter to the Bar Association or to the appellant why the payments were made to Mr Mak’s personal account as opposed to LLL’s firm account.  The fact the payment was made to Mr Mak’s personal account is indicative of a need for subterfuge.  If the money was to meet Mr Pang’s costs liability to the 1^st defendant in the DCPI Action, there would be no good reason why it could not be paid into LLL’s firm account.  Nor does Madam Chan explain in her letters why Mr Pang instructed her to pay fees or costs to Mr Mak some three years after the DCPI Action was commenced but after Mr Pang had already written to the Bar Association to lodge complaints against the appellant about the failure of that action.

44.  The circumstances of the payments made to Mr Mak’s account, together with their amount and timing, gives rise to the possibility that the payment was by way of reimbursement for the costs Mr Mak’s firm was ordered to pay personally, which Mr Mak would therefore know should not be borne by his client. However, this would amount to serious professional misconduct on the part of Mr Mak and, since he was not a party to the disciplinary proceedings below or to this appeal, it would not be right for this court to make any finding suggesting he was guilty of this.  Ultimately, whether this is the case is not something that can be determined on this appeal and this question would be a matter for the Law Society (who will no doubt have this judgment drawn to its attention) to investigate.

45.  As to the potential impact of the evidence on the credibility of the Bar Council’s witnesses, the payments totalling $66,000 are, strictly speaking, consistent with Mr Pang’s evidence that throughout the proceedings, he did not make any contribution to the legal costs, “not even one cent”.  This is because the payments were made after the proceedings terminated and, if they were payments made in respect of costs payable to one or other of the defendants, they would not have been contributions to his own legal costs.

46.  As to the credibility of Mr Mak, the Tribunal did not rely on his evidence, as noted above. But, in any event, the payments totalling $66,000 could still, strictly speaking, be consistent with his witness statement that neither his firm nor he received any fees from Mr Pang or Madam Chan “for payment of LLL’s fees or any disbursements”, since these would exclude the costs ordered to be paid by the solicitors personally to an opposite party.

47.  Therefore, I also do not consider that the second condition Ladd v Marshall is satisfied in respect of the further evidence the appellant would seek to adduce.

Condition (3): presumably to be believed?

48.  Turning to the third condition (evidence such as presumably to be believed), the appellant said this in his skeleton argument:

“For Condition (3), the Appellant hereby refers to what is stated in her letter dated 27th February 2011, ie. she did not know Mr. Mak … of solicitor … until coming to DCPI 303/2001; and the personal A/C No. of Mr. Mak was supplied by the Complainant to her. In the absence of any evidence showing any personal deals between Madam Chan and Mr. Mak, why she had got the personal Hang Seng Bank A/C No. of Mr. Mak? One of the irresistible inferences could just be that the same was supplied by the Complainant for the payment of costs in DCPI 303/2001.”

49.  One can assume that the bank transfers will show payments from Madam Chan’s account to that of Mr Mak.  However, what the transfers totalling $66,000 were for has not been definitively demonstrated.  Since the bank records have not been made available it is a matter of speculation as to what they might ultimately reveal.  It is, however, unlikely that the bank records will identify the DCPI Action as a reference.  Therefore, the position is that the court only has Madam Chan’s word as to what the transfers were for.  She says in her letter dated 27 February 2011 that the payments will “overturn the so-called ‘not win, not receive fees’ issue”.  It is not clear how this would be the case and, in any event, as noted above, there is no suggestion Madam Chan would have anything to add to the contents of her two letters in any affidavit or affirmation to be made by her to exhibit the bank records.

50.  Furthermore, the appellant’s burden is to show that Madam Chan’s statements that she paid $66,000 into Mr Mak’s personal account after the DCPI Action ended somehow casts doubt on Mr Pang’s evidence that the appellant made a contingency fee arrangement with him.

51.  The Tribunal found Madam Chan to be an unreliable and dishonest witness.  Not only was this finding open to the Tribunal, their reasons for making it cannot, in my opinion, be shown to be wrong.

52.  In the circumstances, I also do not think that the third condition Ladd v Marshall is satisfied in respect of the further evidence the appellant would seek to adduce.

The substantive appeal

53.  The appellant’s grounds of appeal challenged the Tribunal’s findings of guilt in respect of complaints 1, 2 and 3.  His skeleton argument in support of the appeal was, in substance, no more than a repetition of his grounds of appeal.  The appellant’s challenges are essentially to the Tribunal’s findings of fact and it is trite that this court will generally not interfere with findings of fact of a disciplinary tribunal who have had the opportunity to observe the witnesses giving oral evidence before them unless the findings are not supported by any evidence or are otherwise unsupportable.

54.  The Tribunal was clearly aware of the appropriate standard of proof laid down in A Solicitor v Law Society of Hong Kong (2008) 11 HKCFAR 117 and I do not consider there is any merit in the appellant’s contention that the Tribunal erred in reaching its findings of guilt in the absence of compelling evidence.

55.  In relation to complaint 1, I am satisfied that the Tribunal was entitled to accept the evidence of Mr Pang regarding the manner in which and time when he was contacted by the appellant, namely by telephone in October 1999 without the introduction of Dr Li.  The timing of the approach in October 1999 was shortly after Mr Pang’s appeal against the refusal of legal aid to pursue proceedings against the police and Hospital Authority.  The Tribunal was entitled, in my view, to find that Mr Pang’s anxiety to bring such proceedings would be such that he would not have waited two more years before then approaching lawyers.  The Tribunal was also entitled, in my view, to rely on Mr Pang’s evidence that the appellant had drawn Mr Pang’s attention to a newspaper article of 1 June 2001 concerning the suicide of a barrister with the same name as the appellant as supporting the inference that the appellant was known to Mr Pang before October 2001, when the appellant says they first met.

56.  Dr Li’s evidence was very clear that he did not know Mr Mak nor was it the case that Mr Pang was introduced by Dr Li to the appellant.  Dr Li’s evidence clearly contradicted the appellant’s and, given that Dr Li was an independent witness with no material interest in the matter, the Tribunal was entitled to prefer his evidence to that of the appellant and to find that the appellant’s approach to Mr Pang was unsolicited.  The fact that it was only after August 2001 that Mr Pang informed Dr Li he had engaged the appellant to act for him is not, in my view, a good reason to reject Mr Pang’s evidence, which the Tribunal found to be “cogent and believable as to how he went to the chambers of the [appellant] and the giving of the pager number and the name card of the [appellant] to him”.  There is nothing inconsistent between Mr Pang’s evidence and Dr Li’s in this regard. Nor do I consider that Mr Pang’s inability to produce the name card or recall the pager number at the time of the hearing before the Tribunal is a reason requiring the Tribunal to reject his oral evidence in this regard.

57.  There was some confusion in the appellant’s grounds of appeal as to the content of Mr Pang’s evidence.  It was not Mr Pang’s case that the appellant was a police officer familiar with disciplinary proceedings against the police or that he had been conducting negotiations with the police for Mr Pang.  Rather, this was Mr Pang’s evidence of what the appellant had said to him so there was no obligation on Mr Pang to produce documents or other evidence to support those allegations the appellant made to Mr Pang.

58.  As regards Mr Mak’s evidence, the Tribunal did not rely on his evidence in reaching their conclusions of guilt on the part of the appellant, regarding his evidence as mainly concerned with complaint 4 and, in any event, doubting his credibility and reliability.  Furthermore, his evidence that he was only involved in respect of the DCPI Action as from October 2001 is not inconsistent with the complaints against the appellant.

59.  In my view, the Tribunal was entitled to reject the evidence of Madam Chan as unreliable and to find her to be dishonest.  Although the Tribunal may have misstated her evidence as being that she strongly disliked her ex-husband (she in fact denied this in her oral evidence), there is no doubt that she was hostile to him, saying that his behaviour showed him to have a very low moral standard.  Having found her to be unreliable and dishonest, I cannot see any basis for the appellant’s complaint that the Tribunal erred in disregarding her evidence denying the particulars on which complaints 1, 2 and 3 were based.

60.  I would add, in relation to Mr Mak’s evidence and the question of whether the appellant had agreed to act on the basis of a contingency fee (complaint 2), the Tribunal was, in my view, entitled to place considerable weight on the existence of two backsheets for the hearing in the DCPI Action on 27 January 2003.  There was no good reason for the copy of the backsheet marked with a fee payable to the appellant not to have been torn up, as Mr Mak said the original was. Nor was there any good reason to keep it in the case file with the copy of the brief marked pro bono.  Nor do I think there is anything unusual in the absence of documentary evidence to support the contingency fee arrangement: there is good reason to expect such an unlawful arrangement would not be recorded in writing.

61.  So far as the payment of $1,200 to Mr Mak’s firm is concerned, this is not inconsistent with the basis of complaint 2 and the Tribunal was entitled to find the appellant guilty of this complaint despite the evidence of this payment. As noted above, this payment did not relate to the basis on which the appellant was acting for Mr Pang and the Tribunal was not concerned with the fee arrangements as between Mr Pang and Mr Mak.  In any event, there was some inconsistency between Mr Mak’s evidence and Madam Chan’s as to the form of payment, the former saying he received it in cash and the latter saying she made a bank transfer.

62.  Finally, in respect of complaint 3, I see no basis for concluding that the Tribunal erred in concluding that it should accept Mr Pang’s evidence that there were conferences with the appellant in the absence of an instructing solicitor before Mr Mak’s involvement.  The evidence to which the appellant referred in his grounds of appeal was all evidence concerning events after Mr Mak became involved and does not demonstrate that Mr Pang’s evidence about matters prior to that could not, or should not, be accepted.

63.  For these reasons, I do not think there is any merit in the appellant’s appeal and I would dismiss it.

Disposition and costs

64.  For the reasons set out above, I would dismiss this appeal with costs to the Bar Council.  Such costs will include the costs of the application to adjourn the appeal as well as the costs of the appeal itself.

65.  As to the scale of costs, the fact that the Tribunal awarded costs on a full indemnity basis does not mean that the costs of an unsuccessful appeal to this court must also be taxed on an indemnity basis.  However, I agree with the submission that was made on behalf of the Bar Council that the appeal was devoid of any merit and that this, together with the dilatory way in which it was prosecuted, justifies a higher basis of taxation.  I would therefore order that the costs of the appeal, including the costs of the adjournment application, to be paid by the appellant to the Bar Council be taxed on an indemnity basis.

Hon To J:

66.  I agree.