A SOLICITOR v. THE LAW SOCIETY OF HONG KONG/ THE SOLICITORS DISCIPLINARY TRIBUNAL

cacv 221/2003

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 221 of 2003

(on appeal from THE FINDINGS/DECISIONS OF THE
SOLICITORS DISCIPLINARY TRIBUNAL DATED THE 16^TH DAY OF
JULY 2003 AND THE ORDERS OF THE SOLICITORS
DISCIPLINARY TRIBUNAL DATED THE 16^TH DAY OF JULY 2003)

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J U D G M E N T

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Hon Rogers VP:

1.  This was an application for leave to appeal to the Court of Final Appeal out of time.  The application was made in respect of a judgment of this court dated 11 November 2003 whereby this court dismissed the appellant’s appeal from the Solicitors Disciplinary Tribunal save in respect of the order as to costs.  On 1 December 2003 notice of intended application for leave to appeal was given.

2.  The appellant applied on 28 April 2004 by summons for an order that the application for leave to appeal be stayed.  That application was dismissed.  Thereafter, the Department of Justice indicated in November 2004 that its investigation into the allegation made by the appellant that witnesses had been guilty of perjury was complete and there was insufficient evidence for a prosecution to be brought.  In May 2005 the Department agreed to request the police to carry out further enquiries.

3.  On 14 June 2005 a second notice of intended application for leave to appeal was given and there was also a notice of motion applying for such relief.  On 4 November 2004 the Department of Justice indicated that the police had passed their findings to the Department and that they were being reviewed.  On 8 December 2005 this court adjourned the appellant’s application for leave to appeal to the Court of Final Appeal sine die with liberty to restore.  The Department of Justice indicated by letter dated 2 February 2006 that after considering the available evidence the decision remained that there was insufficient evidence to prosecute the witnesses of whom the appellant complained.

4.  On 3 November 2006 the Department of Justice indicated that the police would investigate and review the evidence again following further complaints and witness statements from the appellant which had been provided to the police in April and June of that year.  There was a summons for directions which was issued on 13 November 2006 and heard on 22 November.  That summons sought an order, amongst other things, that the court should direct that the Department of Justice should expedite the matter.  Needless to say that application was dismissed.

5.  On 12 October 2007 the Department of Justice again indicated that there would be no prosecution in respect of the complaints made by the appellant.  Finally, on the 13 June 2008 the appellant issued a summons for leave to add new grounds to his application for leave to appeal to the Court of Final Appeal.  The observation has to be made that that document headed “Amended Application for Leave to Appeal to the Court of Final Appeal (out of time)” is a long and rambling document.

6.  The details of the charges and the findings of the Disciplinary Tribunal have been set out in the judgment of Stone J in this court of 11 November 2003.  The first two charges of which the appellant was found guilty relate to questions of written records of fees and failure to deliver a bill of costs.  Then the appellant was found guilty of failing to explain to the client the true nature of a notice to act in person.  Finally, there was a charge relating to failure to arrange for the attendance of a responsible representative throughout the court proceedings.

7.  Albeit there were other charges of which the appellant was found not guilty the proceedings lasted far longer than they could reasonably have done.  In this respect it would appear that the appellant and his former legal advisers must bear almost all the responsibility.  Despite that, this court considered that the order as to costs was excessive and sent the matter back to the Tribunal in respect of that.

8.  On this application by far the greater part of the submission by the appellant, who acted in person, was that he had been subject to a gross injustice.  He maintained that the most important witnesses who had given evidence had committed perjury.

9.  The next matter on which the appellants sought to rely was that he had been charged with certain technical breaches of the Solicitors’ Code of Conduct and that there had been no procedural safeguards in particular a proper preliminary examination of the relevant charges.

10.  The appellant complained that the burden of proof that had been applied had been inappropriate.  He also alleged that the matters which were the subject of the charges did not constitute professional mis-conduct.  Finally he made complaint that in this court there had been a breach of natural justice because he had been unable to address this court.  In regard to the latter matter it is right to say that this court had indicated to the appellant during the course of the appeal that if he were represented by legal representatives he could not also address this court.

11.  There is no doubt that the appellant has a strongly felt sense of grievance and vehemently considers that he has not been accorded justice.  I am unable to see, however, any question of great or general public importance that emerges from the submission.  In as much as the appellant submitted that the burden of disproving the charges had been placed on him, I see no basis in fact for that suggestion.  In so far as there is a matter of injustice this could only constitute a matter which could come within the “or otherwise” ground, but having given the best consideration I can to the papers I fail to see anything in it.

12.  In fairness to the appellant, I would mention one point that emerged almost at the end of his submission on this application but does not appear to have featured previously, namely that in respect of the charge relating to inadequate representation in court, the appellant argued that he himself had been unable to attend due to engagement in another court and it was clear to him that the client would not have accepted the attendance of anybody else other than the clerk who had brought the case with him when he joined the appellant’s firm.  It would seem that the client’s reliance, rightly or wrongly, on the particular clerk was not a matter that had been considered along with the appellant’s own inability to attend.  Since that point did not feature even when the appeal was argued before this court, this court has no option but to leave the matter there.

13.  In summary, therefore, I do not consider that it has been shown that there is any question which is fit for this court to order that leave be given to the Court of Final Appeal.  I would, therefore, dismiss this application with an order nisi of costs in favour of the respondent.

Hon Le Pichon JA:

14.  I agree.

Hon Stone J:

15.  I also agree with the judgment of Rogers VP.

Hon Rogers VP:

16.  There will be an order as set out in paragraph 13 above.