A SOLICITOR v. THE LAW SOCIETY OF HONG KONG

cacv 246/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 246 of 2004

(on appeal from THE FINDINGS AND ORDER OF THE

SOLICITORS DISCIPLINARY TRIBUNAL DATED 26 JULY 2004 )

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J U D G M E N T

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Hon Rogers VP:

1.  This matter first came before this court on 24 May 2005 when the applicant appealed against a ruling by the Solicitors Disciplinary Tribunal.  The applicant had been found guilty of breaching section 8AA of the Ordinance in failing to produce or deliver to inspectors appointed by the Council of the Law Society various documents in his firm’s possession.

2.  This court dismissed that appeal and the matter then went to the Court of Final Appeal.  They delivered judgment on 22 March 2006.  They upheld the Solicitors Disciplinary Tribunal finding on the same basis as this court save that the Court of Final Appeal did not go into the question as to whether or not the lay client had been demanding that the solicitor involved should not disclose the documents but approached the matter on the basis that the documents that the Law Society had sought were covered by legal professional privilege.  So the matter rested.  Unfortunately, although the solicitor involved was taking what he considered was a reasonable point on the question of legal professional privilege, because the matter had gone so far, it had no doubt attracted more publicity than it might otherwise have done.  Furthermore, the solicitor involved has now found himself having to bear costs of his own and the Law Society’s which exceed $3 million.  That is, of course, to be regretted in a matter of legal professional privilege but there it rests.

3.  The applicant now comes before this court with a Notice of Motion that he should have leave to vary the order of this court or to be granted any other remedy on the ground that there were facts which emerged from August to November 2006 that reveal such procedural or jurisdictional issues to the extent that justice might not have been done at the last appearance before the court.

4.  I regret that I do not consider that this court has jurisdiction to entertain this application.  There may be other routes which, when new facts have emerged, litigants can apply to set aside a judgment but this court has performed its function in deciding the appeal.  The order has been drawn up and perfected and, more importantly, the matter has gone to the Court of Final Appeal.

5.  This court has given the applicant the greatest amount of indulgence in allowing him to express his views on the matter and, in particular, there is no doubt that he feels a strong sense of grievance as to what has happened, not only because of the costs involved but, more importantly, because of the effect which it has had on his professional reputation.  Nevertheless, one must bear in mind that the matter of which he was held guilty by the Solicitors Disciplinary Tribunal - and the basis upon which he took the matter to the Court of Final Appeal – was that he initially refused to disclose the document.  That said, one trusts that when looked at rationally, one can see that there was a constitutional issue there which he was entitled to have ventilated in the Court of Final Appeal.

6.  These circumstances do not give this court ground, in effect, to reopen the appeal and delve into, not merely one aspect but, a large number of aspects of the case which do not go simply to the question of whether or not the client had refused to have the documents disclosed, but go to other matters.  I have to say that in view of the approach of the Court of Final Appeal in not going into that question at all but approaching it on the basis that the matter was covered by legal professional privilege, I cannot see now that there would be any future in trying to look into the question as to what the client’s instructions were because the Court of Final Appeal have approached it on the basis that the client maintained his claim to privilege.  In those circumstances, I am afraid that this application has to be dismissed.

Hon Stock JA:

7.  I agree with my Lord the Vice President that this application should be dismissed for the reasons he gave.  I would add only this: that this is an application, as he has intimated, to vary an order of this court.  This is not an action that we are hearing to rescind a judgment on the ground of discovery of new evidence which will have had a material effect upon the decision of the court.  In saying that, I do not for a moment do so in order to encourage this applicant to take that route, not least because one of the matters that would have to be shown in such an action is that the further evidence was such as to have an important influence on the result of the issue.  I say it merely to illustrate that on the application now made, this court has no jurisdiction.

Hon Sakhrani J:

8.  For the reasons given both by my Lord the Vice President and Stock JA, I agree that the application should be dismissed.