ABC v. LAW SOCIETY OF HONG KONG

HCAL 1215/2023

[2025] HKCFI 4151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1215 OF 2023

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J U D G M E N T

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A.  Introduction

1.  It would be no surprise if a person who makes a complaint about a solicitor, which complaint is taken up and prosecuted, might feel aggrieved if he (the complainant) is then in effect excluded from participation or even knowledge about the prosecution process. It might well give rise to the sense of frustration and injustice, of the sort which has triggered and which permeates these proceedings.

2.  In 2019, the Applicant made a complaint to the Law Society against DEF, a Hong Kong solicitor, for representing his mother (“Mother”) from 2010 to 2015 while she lacked mental capacity. After years of not knowing whether the Law Society did anything with the complaint, the Applicant sought help from the Chief Judge of the High Court (“CJHC”) pursuant to the Legal Practitioners Ordinance Cap 159 (“LPO”) to compel the matter to be referred to the Solicitors Disciplinary Tribunal (“SDT”).

3.  The Applicant, of course, was eager to see DEF disciplined for what he alleges is grave misconduct. So when the Law Society told him that he was not a “party” to the proceedings before the SDT on 18 April 2023 (“Decision”) – and thus, he could not (amongst other things) inspect relevant documents (including those submitted by DEF) and would be shut out from the confidential SDT proceedings – the Applicant was understandably aggrieved. So he brings the current proceedings to challenge the Decision.

4.  On 18 July 2023, I made an anonymity order in these proceedings on an ex parte basis. On 3 January 2024, I dismissed the Law Society’s summons to set aside the anonymity order, and I reserved the issue of costs to be dealt together with at the conclusion of the rolled-up hearing (see below), for which I had already given directions.

5.  At the rolled-up hearing, the Applicant was represented by Mr John Hui and Mr Kevin Lau of Counsel, and the Putative Respondent Law Society was represented by Mr Abraham Chan SC, leading Mr John Cheung of Counsel. I excused the Putative Interested Party from attendance. At the end of the hearing, I reserved my decision.

6.  This is my Judgment.

B.  The Legal Framework for Disciplinary Complaints

7.  It is useful first to introduce the legal framework for handling complaints made against solicitors alleging professional misconduct (such as the Complaint).

8.  In this regard, I accept that the legislative framework reflects broader public interest in the proper regulation of the solicitors’ profession, and provides for a structure of self-regulation administered by the profession – the regulation of lawyers by lawyers. Therefore, it might be said that the systemic focus relates to ensuring the integrity of the profession as a whole.

9.  There are two ways through which the SDT might become aware of a matter of professional misconduct.

(1)  The first is for a private complainant to submit a complaint to the Law Society, who may then submit the matter to the Tribunal Convenor of the SDT Panel, if it thinks that at the relevant time a solicitor should be “inquired into or investigated”: see section 9A(1) of the LPO.

(2)  The second is for the Law Society itself – i.e. without any prior private complaint – to submit a matter of possible professional misconduct by a solicitor to the SDT. That is why section 9A(1) of the LPO allows the Law Society to make a submission to the SDT “as a result of a complaint being made to it or otherwise”.

10.  This is reflected in Chapter 15 ‘Complaints and Discipline’ of The Hong Kong Solicitors’ Guide to Professional Conduct, which identifies that investigation procedures are usually initiated by a written complaint (in a Complaint Form), but that the Standing Committee on Compliance can also investigate matters of its own motion. It also points out that details of the investigation procedure can be found in “Notes to Parties to a Complaint” (“Notes”), being guidance notes published by the Law Society from time to time.

11.  This is also reflected in rule 3 of the Solicitors Disciplinary Tribunal Rules Cap 159C (“SDT Rules”), which provides (emphasis added):

3. Applications to Society to consider complaints

(1) An application to consider a complaint regarding the conduct of a respondent shall be in writing and signed by the applicant in Form 1 in the Schedule and shall be sent to the Society together with an affidavit by the applicant in Form 2 stating the matters of fact on which he relies in support of his application.

(2) Where the application is made by the Society the application may be signed and the affidavit sworn on behalf of the Society by the Secretary General or by such other person as may from time to time be appointed by the Council.

12.  The Law Society provides guidance to a private complainant via its Notes, which guidance pertains to the time between (1) the receipt of the complaint by the Law Society, and (2) the potential submission of the matter to the Tribunal Convenor of the SDT Panel.

13.  The following matters may also be relevant, as can be found in the Notes:

(1)  The Conduct Section seeks to ensure the independence and impartiality of its investigative role is maintained, and that it is not perceived to be partial to one or other party to a conflict.

(2)  All conduct investigation is confidential.

(3)  The complainant should, amongst other things, assist the Law Society by acting as witness in the event that the disciplinary proceedings are commenced against the respondent.

14.  The Law Society’s function during this time is to compile information.

15.  Pertinently, if the Law Society is satisfied there is a prima facie case of professional misconduct after receiving the complaint, the Law Society will seek an explanation from the respondent (the solicitor against whom the complaint has been made). As the Notes make clear, a complainant will then have the opportunity to comment on the respondent’s explanation. These explanations – along with other information – will then be compiled into a report for the consideration of an Investigation Committee of the Law Society (paragraphs 5(v)-(vii)). On the strength of this report, the Law Society will then see if the matter should proceed to the SDT Panel.

16.  Of course, the Law Society could – for a variety of reasons, good or bad – fail to submit a complaint to the Tribunal Convenor of the SDT Panel. That is where section 9A(2) of the LPO comes in, which provides (emphasis added):

Where a complaint is made to the Council and the Council does not submit a matter to the Tribunal Convenor under subsection (1) within 6 months after receiving the complaint the Chief Judge may, on application, by any person or on his own initiative, submit the matter to the Tribunal Convenor if he considers that the Council ought to have done so.

17.  As section 9A(2) makes clear, this back-up mechanism only comes into play if a “complaint is made to the Council”. In other words, it only applies if there was a rule 3(1) complaint to begin with.

18.  After the Law Society refers a matter of professional misconduct to him under section 9A of the LPO, the Tribunal Convenor of the SDT Panel will then appoint from the Panel 2 solicitors and one lay person to constitute the SDT: see section 9B(1) of the LPO.

19.  Section 9B(3) of the LPO provides that the Council of the Law Society may be represented at proceedings before the Tribunal (which seems to suggest that right to be represented even if not otherwise a “party” to those proceedings). Section 9B(4) provides that the Tribunal shall sit in camera in the places and at the times it directs.

20.  Section 10 of the LPO provides for the powers of a SDT, whose main power is to enquire into and investigate the conduct of any person in respect of which it was appointed. Section 11 provides for the ancillary powers of a SDT. Section 12 provides for the findings and orders that can be made by a SDT.

21.  Section 13 of the LPO relates to potential appeals against any order made by a SDT. An appeal lies to the Court of Appeal, and in any appeal made by the person whose conduct was the subject of the inquiry the Law Society shall be the respondent. Where the Council, with leave of the Court of Appeal, appeal is an order of a SDT, the Society shall be the appellant and the person whose conduct was the subject of the inquiry shall be the respondent.

22.  The various procedural rules which govern proceedings under the SDT (i.e. after a complaint is submitted to the Panel of the SDT and an SDT is constituted) are set out in the SDT Rules.

23.  Who is a “party” under the SDT Rules seems to be determined by Rule 7, titled “Parties”. It provides as follows (emphasis added):

In the case of an application under rule 3(1), the applicant and the respondent shall be parties, and in the case of an application under rule 3(2), the Society and the respondent shall be parties.

24.  Being a “party” gives that person other rights and obligations under the SDT Rules. Reference for present purposes should be made to rules 8, 10, 11, 12, 13, 14, 15, 17, 25 and 30. Though I can summarize their apparent effect below, those provisions in full are as follows:

8. Notice of date of hearing

(1) Where an application is made pursuant to rule 3 and in the opinion of the Solicitors Disciplinary Tribunal, a prima facie case is shown against the respondent, the Solicitors Disciplinary Tribunal shall fix a day for the hearing and the clerk shall serve notice thereof on each party to the proceedings and shall in every case serve on the respondent a copy of the affidavit and a copy of the application.

(2) There shall be such period of not less than 21 days between the service of any such notice and the day fixed therein for the hearing as the Solicitors Disciplinary Tribunal may direct.

9. Forms of notice

A notice under rule 8 shall be in Form 3 or Form 4 in the Schedule, as shall be appropriate, and shall require the party to whom it is addressed to furnish to the clerk and to every other party at least 14 days before the day fixed for the hearing, unless the Solicitors Disciplinary Tribunal direct otherwise, a list of all documents on which he intends to rely.

10. Inspection of documents

(1) Any party may inspect the documents included in the list furnished by any other party.

(2) A copy of any document mentioned in the list furnished by any party which is or has been in his possession or power shall, on application by the party requiring it, be furnished to that party by the other, within 7 days after the receipt of such application.

11. Failure to appear

If any party fails to appear at the hearing, the Solicitors Disciplinary Tribunal may, upon proof of service on such party of the notice of hearing, proceed to hear and determine the proceedings in his absence, and in the absence of the applicant, the Solicitors Disciplinary Tribunal may, in their discretion, dismiss the application without a hearing.

12. Representation

Any party to an application or investigation may be represented by solicitor or counsel.

13. Re-hearing after failure to appear

(1) Any party who has failed to appear at the hearing may, within one calendar month from the pronouncement of the findings and order of the Solicitors Disciplinary Tribunal and upon giving notice to every other party and to the clerk, apply to the Solicitors Disciplinary Tribunal for a re-hearing.

(2) The Solicitors Disciplinary Tribunal, if satisfied that it is just that the case should be re-heard, may grant such application upon such terms as to costs or otherwise as they think fit.

(3) Upon such re-hearing the Solicitors Disciplinary Tribunal may amend, vary, add to, or reverse their findings, or order, pronounced upon such previous hearing.

14. Evidence

The Solicitors Disciplinary Tribunal may either as to the whole case or as to any particular fact or facts proceed and act upon evidence given by affidavit:

Provided that any party to the proceedings may require the attendance upon summons of any deponent to any such affidavit for the purpose of giving oral evidence and of being cross-examined, unless the Solicitors Disciplinary Tribunal are satisfied that the deponent is absent from Hong Kong or is for any other good and sufficient reason unable to give evidence in person at the hearing.

15. Findings and order

The clerk shall give notice to the parties of the date when the findings and order will be pronounced.

17. Service of findings and order

Within 4 days of the date when the findings and order shall have been pronounced, the clerk shall send a copy thereof to each party.

25. Reference to Council of Society

The Solicitors Disciplinary Tribunal may at any stage of proceedings against a respondent refer the case or any aspect thereof to the Council and may adjourn the proceedings pending the consideration thereof by the Council so that the Council may, if it so decides, take such further proceedings under rule 3 against the respondent or undertake on behalf of the original applicant the prosecution of his application.

30. Shorthand notes

(1) Shorthand notes of proceedings may be taken by a person appointed by the Solicitors Disciplinary Tribunal; and any party to the proceeding shall be entitled to inspect the transcript thereof.

(2) The shorthand writer shall, if required, supply to the Solicitors Disciplinary Tribunal and to any person entitled to be heard upon an appeal against an order of the Solicitors Disciplinary Tribunal, and to the Council, but to no other person, a copy of the transcript of such notes on payment of his charges.

(3) If no shorthand notes be taken, the Chairman of the Solicitors Disciplinary Tribunal shall take a note of the proceedings, and the provisions of this rule as to inspection and taking of copies shall apply to such note accordingly.

25.  Hence, amongst other things, the SDT Rules provide a set of rights to a “party to the proceedings”.

(1)  Rule 8 gives each party the right to be notified of and attend hearings before the SDT.

(2)  Rule 9 provides the forms of notice to be given. Form 3 is headed ‘Form of Notice of Hearing to Applicant/Society by the Clerk to the Solicitors Disciplinary Tribunal’, and Form 4 is headed ‘Form of Notice to Respondent by the Clerk to the Solicitors Disciplinary Tribunal’. The rule also requires the provision by the “party to whom it is addressed” to provide a list of the documents on which he intends to rely.

(3)  Rule 10(1) states that any party may inspect the documents included in the list furnished by any other party.

(4)  Rules 11 and 13 deal with what may happen if any party fails to appear at the hearing.

(5)  Rule 12, importantly for present purposes, states that a party to an application or investigation may be represented by solicitor or counsel.

(6)  Rule 14, allows any party to the proceedings to require the attendance of any deponent of any affidavit to give oral evidence and be cross-examined, unless the SDT is satisfied that the deponent is absent from Hong Kong or is for any other good and sufficient reason unable to give evidence in person at the hearing.

(7)  Rules 15 and 17 demand that the clerk give notice to the parties as to when the findings and order will be pronounced, and that copies of these materials be sent to them.

(8)  Rule 25 provides that the Council may decide to take over from an applicant the prosecution of his application (though this specifically arises where the SDT adjourns the matter for the Council to consider doing so).

(9)  Rule 30(1) allows a party to the proceedings to inspect its transcript.

C.  Factual Narrative

C.1  The Singapore Proceedings

26.  The Mother is a wealthy Singaporean who inherited substantial wealth. Unfortunately, in late 2010, the Applicant’s younger sister (“Sister”), together with her husband, abruptly cut the Applicant’s and others’ access to the Mother and removed the Mother from Singapore to Hong Kong. Such was the state of affairs until 2015. During this time, the Mother purportedly signed several documents that were not in her best financial interests. These suspicious transactions included the establishment of a trust and the transfer of substantial assets to DBS Bank, which were of no discernible benefit to the Mother.

27.  Litigation concerning the Mother’s mental capacity pursuant to the Singapore Mental Capacity Act (“MCA”) commenced in early 2011. These proceedings were commenced by the Mother’s two sisters (and supported by the Applicant, amongst others).

28.  On 11 December 2012, the Singapore District Court found that the Mother suffered from severe memory impairment, lacked capacity to make decisions concerning her property and affairs, and suffered from confabulations and delusions. The District Court also concluded that the Mother did not have capacity to instruct solicitors, understand documents and applications, or manage her property and affairs (“SGDC Judgment”).

29.  The SGDC Judgment was overturned by the Singapore High Court on 1 October 2013, primarily because the High Court thought that the District Court lacked jurisdiction to hear the application under the MCA.

30.  However, by judgment dated 19 May 2015 (“SGCA Judgment”), the Singapore Court of Appeal overturned the High Court’s judgment. It was further found by the Court of Appeal that (1) there was ample evidence that it was “evident” that the Mother had suffered from deterioration of memory since 2005, which was contemporaneously documented by (amongst others) several bankers, (2) the Mother was impaired or disturbed in the functioning of her mind, which in turn caused a significant decline in her memory and an observable deterioration in her executive functions, including and especially her ability to understand information or weigh countervailing considerations against one another, (3) she lacked mental capacity at least from late 2010, (4) she was acting under the undue influence of the Sister and her husband, and (5) she was unable to act independently, even with assistance from professional advisors after access to her family was cut off.

31.  At a further hearing on 24 November 2015, the Singapore Court of Appeal appointed 3 professional Deputies – including the Mother’s sisters – and an independent legal advisor for the Deputies (“Singapore Advisor”) – in late 2015 and early 2016.

32.  During this period when the Mother lacked mental capacity, DEF acted for the Mother in Hong Kong.

33.  When the Applicant (and other members of the family) tried to see her, DEF (via his previous law firm) issued letters on 21 December 2010 and 5 January 2011 to the Applicant. Collectively, they accused the Applicant of harassing the Mother. They even demanded a “non-molestation” undertaking from him, and further threatened to sue the Applicant for injunctive relief.

34.  DEF also continued to represent and advise the Mother, and render legal services despite the SDC Judgment, which should have put him on notice of the Mother’s incapacity.

35.  The Mother made no less than 9 affidavits in the Singapore proceedings, some in support of the interlocutory applications. DEF purportedly explained these affidavits to her and arranged for them to be notarised in Hong Kong. But as the Singapore Court of Appeal found, the Mother could not remember signing any of her affidavits or making any interlocutory applications. Worse still, the Court found that the Mother could not remember documents shown to her just 20 to 35 minutes earlier.

36.  DEF purported to communicate with the Mother via her email account (“Email Account”). But since the Mother was at the material times an elderly widow in her late 70s, and she was unlikely to be able to type, let alone operate a computer or communicate by email, there was always a very grave possibility that it was not the Mother who was using the Email Account. Indeed, as the SGDC Judgment states, the Email Account was actually created by the Applicant’s sister, who impersonated the Mother by preparing, sending, and receiving emails on the Mother’s account.

C.2  The Complaint

37.  On 30 August 2019, the Applicant (and not the Law Society itself) made a complaint against DEF (“Complaint”).

38.  The Complaint accused DEF of breaching various provisions of the Hong Kong Solicitors’ Guide to Professional Conduct (“Guide”), including Principles 5.01, 5.04, 5.07, 5.15, 7.01, 7.02, and the Solicitors’ Practice Rules Cap 159 (“SPR”). Most relevantly:

(1)  The Applicant accused DEF of breaching Principle 5.01 of the Guide, as he took instructions from the Mother in circumstances when he ought to have appreciated, at the very least, that she lacked mental capacity.

(2)  The Applicant accused DEF of breaching Principles 3.01 and 5.04 of the Guide, as he failed to ensure the Mother was free from adverse pressures and undue influence, before and while acting for her. To the contrary, he chose to act and continue to act for her even though there was serious concern and reason to suspect that she was subject to the undue influence of the Sister and her husband.

(3)  The Applicant also accused him of breaching Rule 2(d) of the Rules, as he behaved in a way which compromised the reputation of solicitors. Amongst other things, this part of the complaint was based on the following incidents: (1) after the SGDC Judgment was rendered, DEF purportedly alleged that the Mother disagreed with the Singapore District Court’s findings in a letter dated 11 January 2013, and (2) even after the SGCA Judgment, DEF still insisted that the Mother did not lack capacity in a letter dated 18 June 2015.

C.3  Post-Complaint Exchanges

39.  On 16 September 2019, the Law Society acknowledged receipt of the Complaint.

40.  On 12 December 2019, an Investigation Counsel (of the Investigation Committee) of the Conduct Section of the Law Society, Ms Wendy Youh, sent another letter to the Applicant ("12 December 2019 Letter"), which read as follows:

Having considered the documents provided by you and the Respondent (i.e. DEF), we note that you were not the client of the Respondent and were one of the opposing parties of the subject matter at the material time.

In light of the potential issues of legal professional privilege and conflict of interest, the Law Society will take up the matter and commence its own investigation on the captioned complaints. As such, you will not be informed of the progress and/or result of this complaint.

On behalf of the Law Society, I thank you for drawing the matter to our attention.

41.  At this juncture, it should be remarked that the Applicant was not an “opposing party” in the Singapore proceedings, albeit he supported the application under the MCA. Rather, he was a witness in proceedings that were commenced for the benefit of the Mother.

42.  Further, the Law Society seemed to suggest that the reason why the Applicant would not be informed of progress was because legal professional privilege (“LPP”) attached between the Mother and DEF, and/or there were (unspecified) conflicts of interest.

43.  On 19 December 2019, the Applicant responded as follows (“19 December 2019 Letter”): (1) he thanked the Law Society for taking up the matter and commencing “its own” investigation on the Complaint, (2) he appreciated there might be potential issues of LPP and conflict of interest as regards the Complaint, (3) though he was “technically” an opposing party, the proceedings were really brought in the Mother’s best interests, and (4) following the Singapore Court’s decisions, the Deputies were entitled to decide “whether and to what extent, legal professional privilege and/or any potential conflict of interest are to be waived, concerning the Law Society’s investigation on the complaint”. Thus, he asked the Law Society to direct queries and correspondence to the Singapore Advisor.

44.  More significantly, in the same Letter, he stated as follows:

4. I note from the Law Society’s “Notes to Parties to a Complaint” (at paragraph 5(vi)) that “a complainant will be given the opportunity to comment upon the respondent’s explanations”. As such, I respectfully request as a matter of consistency and fairness, that I be accorded a fair opportunity to comment on the respondent’s explanation once the same is received and considered by the Law Society, to ensure the Law Society is fairly and accurately apprised of any response to his explanation.

5. I would be most grateful if the Law Society could keep me informed as appropriate in this regard, and I look forward to hearing from you.

45.  On 17 January 2020, the Applicant sent the Law Society another letter (“17 January 2020 Letter”). In essence, the Applicant told the Law Society that (1) the Law Society of Singapore was ordered to convene a new disciplinary tribunal to investigate and hear a complaint against an eminent Singapore lawyer who had also acted for the Mother when she lacked mental capacity, (2) he had made a similar complaint against DEF (i.e. the Complaint), (3) the Complaint was a matter of great public importance, and (4) it should “thoroughly and promptly [investigate] my complaint against the Respondent” (i.e. DEF), and to keep the Deputies and himself fully informed of the status and outcome of the Law Society’s investigations, as a matter of fairness and transparency.

46.  It is also important to remark that at this point, the Applicant obviously still thought that he was the complainant.

47.  On 19 March 2020, Ms Youh of the Law Society responded as follows (“19 March 2020 Letter”):

We thank you for your three letters dated 19 December 2019, 7 January 2020, and 17 January 2020, and the enclosures thereof.

The Law Society will consider and deal with the matter referred by you against [DEF].

In the meantime, we thank you for drawing the Law Society’s attention to the matter.

48.  From this letter, it is plain that the Law Society also recognised that the complainant was still the Applicant. I do not think the reference to the fact that the Law Society would “consider and deal with the matter” would have signified anything other than that it would address the Complaint as made under rule 3(1). It also did not respond to the Applicant’s request that he be updated as to the status of the investigation.

49.  Thus, on 24 April 2020, the Applicant sent two letters marked for the attention of the Standing Committee on Compliance of the Law Society. In these two letters ("24 April 2020 Letters"), the Applicant stated that:

(1)  His request to be kept fully informed on the status and outcome of the Complaint was not addressed at all. This was particularly unreasonable given that the Applicant himself and his family were directly affected by DEF’s conduct, and that he had every expectation that justice would be done and be seen to be done.

(2)  He had no update as to how the Complaint was handled, if it was, for almost 6 months.

(3)  The blanket refusal to give any sort of information as to the complaint was not in line with (1) the minimum standards of fairness, (2) the Law Society’s own Notes, as canvassed above. This is even the case where privilege may be in play or, as the Applicant said, “asserted”.

(4)  The reasons for keeping him in the dark as canvassed in the 12 December 2019 Letter were, in any event, wrong.

(5)  There was no conflict of interest as (1) the nature of the Singapore proceedings under the MCA was inquisitorial, not adversarial, (2) it was the Sister and her husband who had “patent” conflicts of interest with the Mother, (3) most significantly, the 12 December 2019 Letter did not even identify with whose interests the Applicant’s interests conflicted, and (4) in any case, the Singapore proceedings had already concluded, such that there could not be any “issues of conflict” that arose from the Singapore proceedings.

(6)  Any suggestion that LPP applied to the communications between the Mother and DEF was erroneous. Starting with litigation privilege: it only applies to adversarial proceedings, not inquisitorial ones. The Singapore proceedings were squarely inquisitorial proceedings, so no such privilege could arise there. Further, the communications between DEF and the Mother via the Email Account could not be subject to advice privilege, given that (1) the Mother did not really appreciate the contents of any emails sent by DEF, and (2) it was the Sister who actually operated this, and DEF would have known this by 11 December 2012, when the SGDC Judgment was rendered.

(7)  Further, LPP has to be asserted and proved: Citic Pacific v Secretary of Justice (No.2) [2015] 4 HKLRD 20, §14. DEF had not claimed privilege. It is not permissible to speculate that LPP could be claimed, particularly when no meaningful assistance had been given in this regard.

(8)  Most significantly, LPP would be confined to confidential communications between DEF (the Mother’s purported solicitor) and the Mother. It does not prevent DEF giving evidence as regards his conduct, the Mother, and others, and his own assessment of their various states of knowledge and mind, all of which “could be made available” for the Applicant’s comments and representations as per the Notes.

(9)  If he were to continue to be kept in the dark, he would be ready to pursue judicial review proceedings against the Law Society.

50.  Perhaps rather confusingly, on 28 April 2020, Ms Youh of the Law Society then sent the following letter to the Applicant (“28 April 2020 Letter”). The relevant portions are as follows.

I write to acknowledge receipt of your letters dated 24 April 2020 (“the Letters”), the content of which are noted.

I write to clarify that my letter to you dated 12 December 2019 is a general reply having considered the documents available to me at this junction. Meanwhile, in light of your representations in the Letters, a report will be prepared and all your letters to the Law Society in respect of the captioned matter will be passed on to an Investigation Committee for consideration. You will be informed of the decision of the Investigation Committee in writing in due course.

51.  The Law Society sent a further holding letter on 22 May 2020 to the Applicant in respect of his query as to whether the Complaint had yet been relayed to DEF.

52.  On 22 May 2020, the Applicant sent a further letter explaining why LPP could be waived, or alternatively, did not apply (“22 May 2020 Letter”).

(1)  LPP belongs to the Mother, and not DEF. If it is to be waived, the Law Society should approach the Deputies of the Mother through the Singapore Advisor (see the 19 December 2019 Letter above).

(2)  In any event, LPP does not apply in cases of fraud or iniquity. These exceptions to LLP apply even if (1) the solicitor is not aware of, nor party to the relevant fraud or iniquity, (2) the relevant intention is that “of a person who is using the purpose of effecting his intention”: R v CCC, ex parte Francis [1989] 1 AC 346, 393E, 395B-C. Simply put, these situations involve fraud or iniquity. As fraud or iniquity “unravels all obligations of confidence” (amongst other things) DEF cannot rely on the argument of “once privileged, always privileged”.

(3)  To accord LPP to the communications between the Mother and DEF would fly in the face of its rationale.

53.  In the same letter, the Applicant disclosed various (but not the full set of) written communications from 2011 to 2015 between (amongst others) the Mother and DEF. He also told the Law Society that he came into possession of these communications after (1) the Deputies disclosed them to the Applicant’s Singaporean solicitors, when the Deputies filed an urgent action in Singapore in April 2016 to set aside a purported will made by the Mother in 2011, and (2) the Mother disclosed these communications to him in mid-June 2015, after she was able to escape from her “enforced isolation”. In such situations, the Applicant contended, such disclosure by the Deputies and the Mother herself constituted waivers of any LPP in such communications between DEF and the Mother.

54.  On 8 June 2020, Ms Youh sent a response to the Applicant on behalf of the Law Society (“8 June 2020 Letter”), telling him that (1) given the Mother was not the complainant and owing to the “confidential nature of our investigation”, the Applicant may seek a waiver of LPP if he so wished, (2) all his “representations” would be included in the report to the Investigation Committee, (3) but he had to make all his representations on or before 22 June 2020.

55.  On 12 June 2020, the Applicant told the Law Society (“12 June 2020 Letter”) that he would contact the Singaporean Advisor on the issue of waiver of any LPP in respect of communications between the Mother and DEF, which concerned the subject of his complaint and the Law Society’s investigation. He also stressed that LPP should not prevent the Law Society from investigating DEF’s conduct. But save for these two things, he had “no further representations in this matter” and looked forward to the Investigation Committee’s conclusions.

56.  Clearly out of an abundance of caution, the Applicant sent the Law Society the following, so that the investigation could proceed smoothly:

(1)  An email dated 10 July 2020 (“Waiver Email”) from the Deputies, who indicated that they were agreeable to waiving LPP to the extent necessary to allow the Law Society to compel DEF to disclose the documents and information relevant to their investigations. In the same email, the Deputies also agreed that the Law Society could disclose the progress of the complaint to the Applicant, and even requested that the Singapore Advisor be copied in the communications between the Applicant and the Law Society.

(2)  A written authorisation from the Mother, which authorised the Applicant to make the complaint against DEF (“Written Authorisation”), after the Law Society (strangely and wrongly) thought that this was necessary. Indeed, as the Deputies pointed out in their email to the Applicant dated 25 August 2020, the complaint was brought by the Applicant in his personal capacity, and the Applicant was “entitled to pursue the complaint in his own right”.

57.  On 18 September 2020, DEF sent a letter to the Law Society (“DEF Email”), which responded to the Waiver Email and Written Authorisation. Amongst other things:

(1)  DEF objected to the Waiver Email, on the basis that it was not clear what the “parameters of this limited waiver” were, “without sight of the complete chain of communication”.

(2)  Further, DEF represented that – in light of the Applicant’s “opposing position” to the Mother when he represented her – it was entirely appropriate for the Law Society to “maintain confidentiality”, and that the Applicant should not be provided with the Mother’s exchanges with him until there was a “clear” waiver from the Deputies.

(3)  DEF confirmed that he had made representations to the Law Society on 10 October 2019 and 3 December 2019 but objected to the provision of his representations to the Applicant.

(4)  DEF also said that he did not accept that the Mother lacked capacity when she instructed DEF’s former firm.

58.  On 21 October 2020, the Applicant made his representations in response to the DEF Email, the contents of which were very similar to the 24 April 2020 and 22 May 2020 Letters in relation to LPP. Further, the Applicant noted that the DEF’s continued refusal to accept that the Mother lacked capacity in instructing him (and his firm) was “extraordinary”.

59.  The Applicant wrote further letters on 18 December 2020, 29 January 2021, and 3 February 2021. These letters drew (or should have drawn) the Law Society’s attention to how the Singaporean Court of Appeal ordered the Law Society of Singapore to act on the complaint made against the Mother’s Singaporean lawyers at the time she lacked mental capacity.

60.  On 16 March 2021 – after some further exchange between the Applicant and the Law Society – the latter informed the Applicant that a report had been placed before an Investigation Committee, in line with paragraph 5(vii) of the Notes.

61.  On 13 July 2021, the Applicant was informed of the Investigation Committee’s decision after it perused the investigation report by Mr Chan Tat Hin Pierre, the Chairman of the Standing Committee on Compliance (“13 July 2021 Letter”).

The Investigation Committee has considered this matter and it was resolved that: -

“The Law Society will take up the complaints against [DEF], formerly of [DEF’s former firm] referred by [the Applicant] (“the Informant”) as complainant. As all conduct investigation is confidential, the Informant will not be informed of the progress or result of the investigation.”

On behalf of the Standing Committee on Compliance, I thank you for drawing this attention to the attention of the Law Society.

62.  Again, at this juncture, it may be important to note that the Law Society no longer regarded matters of privilege or conflicts of interest as reasons not to inform the Applicant of “progress or result” of the investigation. This, of course, is consistent with the 28 April 2020 Letter, where the Law Society seemed to distance itself from the 12 December 2019 Letter which provided that it would not inform the Applicant of the progress of the Complaint / investigation against DEF precisely because of matters of LPP / conflicts of interest.

63.  On 19 July 2021, the Applicant wrote to the Law Society again (“19 July 2021 Letter”). Amongst other things:

(1)  The Applicant asked for the Investigation Committee’s confirmation that the Complaint would be submitted to the Tribunal Convenor of the SDT pursuant to section 9A(1) of the LPO.

(2)  The Applicant also said that there was no “sound legal basis for keeping” him in the dark regarding the investigation, particularly after the Waiver Email. Further, the Investigation Committee’s reliance on confidentiality was surprising, particularly when it is of vital importance that regulatory bodies, such as the Law Society, are open, transparent and accountable in disciplining their members.

64.  In the premises, the Applicant also asked the Investigation Committee to give all its reasons for not keeping the Applicant ‘in the loop’. However, the Law Society declined to give further reasons on 26 July 2021, as it was not “performing a judicial function”. It only asked whether the Applicant would wish for the Standing Committee on Compliance of the Law Society to review that decision. The Applicant took up this option on 28 July 2021.

65.  However, on 25 November 2021, the Standing Committee upheld the Investigation Committee’s decision not to inform the Applicant of progress or result of the investigation (“25 November 2021 Letter”).

66.  On 2 December 2021, the Applicant expressed regret at the Standing Committee’s decision (“2 December 2021 Letter”). The Letter further contained the following.

(1)  He had not received any indication that the Law Society is actively investigating and pursuing the complaint, and that disciplinary proceedings would be commenced against DEF, even though it had been “more than 2 years” since the Complaint, and the Law Society said that it would “take up the complaints” (though it was not clear what exactly this meant).

(2)  More critically, the Applicant asked the Law Society to confirm whether and when (1) the Complaint was submitted by the Council to the Tribunal Convenor having regard to section 9A(2) of the LPO, and (2) whether the Council had deliberated on whether such a submission should be made at all. He further asked the Law Society to revert with a timeframe if “none of these steps had been taken”.

67.  On 7 December 2021, Mr Christopher KK Yu, the Chairman of the Standing Committee on Compliance, wrote on behalf of the Law Society to the Applicant (“7 December 2021 Letter”). It relevantly provided as follows (emphasis added):

Whilst it is not the policy of the Standing Committee on Compliance (“SCOC”) to give reasons for its decision to cases under review, I am able to assure that there has been thorough consideration of all the relevant matters put forward in this case by the SCOC.

You may, however, wish to consider whether section 9A(2) of the Legal Practitioners Ordinance is appropriate in the circumstances for application to the Chief Judge to submit your matter to the Tribunal Convenor.

C.4  The CJHC Application

68.  The Applicant did exactly that on 17 January 2022 (“CJHC Application”) under section 9A(2) of the LPO. On 18 January 2022, the CJHC directed the Law Society to state (1) whether it objects to the application by the Applicant, and (2) the reasons of the objection on or before 25 January 2022

69.  On 24 January 2022, the Law Society sent a response to the CJHC. The relevant provisions are as follows:

We would like to draw the Chief Judge’s attention to the fact that after the Law Society was alerted by [DEF] of the potential issues of legal professional privilege and [the Applicant’s] conflict of interest, [the Applicant] was informed in writing on 12 December 2019 that in light of the above, the Law Society would be the complainant in place of him and would commence the investigation against [DEF] and as such, he would not be informed of the progress and result of the investigation. [The Applicant] did not agree that the Law Society could replace him as the complainant and has since 24 April 2020 informed the Law Society that he would pursue judicial review proceedings against the Law Society. Please be informed that the Law Society is still continuing the investigation against [DEF].

70.  On 26 January 2022, the CJHC granted the CJHC Application. The Law Society also indicated, in reply, that it would appoint a Prosecutor to handle the matter and draft the relevant documents, and it would obtain all “potentially relevant information” before submitting the complaint to the Tribunal Convenor. To obtain such relevant information, the Law Society sought a time extension until 9 March 2022 for the submission of the complaint.

71.  In his letter to the CJHC (copying the Law Society), the Applicant particularly welcomed the Law Society’s comments that the Tribunal should have “all potentially relevant information” before it, which would include the Applicant’s comments on DEF’s explanation as to why he did not commit professional misconduct.

72.  In these circumstances, the CJHC granted the application for time extension.

73.  However, after the Applicant wrote to the Law Society asking for DEF’s explanations on why he did not commit misconduct, such that all relevant information could be placed before the Tribunal, the Law Society refused. This was because:

So far as the other comments in your letter are concerned, our client’s position on this issue has been clearly stated in previous correspondence with your client. We also note that your letter to the Clerk to the Chief Judge dated 17 January 2022 sought a direction that our client should keep your client informed of the progress and result of the complaints against [DEF]. However, no such order or direction was made by the Chief Judge.

C.5  Events after the submission of the Complaint

74.  On 22 March 2022 and 8 April 2022, the Applicant sent letters to both the Law Society and Mr Keith Brandt, the Tribunal Convenor asking for the names of (1) the Prosecutor appointed by the Law Society, and (2) the two solicitors and one lay person who would constitute the Tribunal and who would inquire into and investigate the Complaint. This was for two main purposes: (1) to ensure there would be no conflict of interest, actual or potential (given that the Applicant and DEF are senior members of their professions), (2) the Applicant wished to prepare a witness statement, give oral evidence, and be cross-examined before the Panel and assist with the fact-finding process – and to expedite matters, he wished to directly liaise with the Prosecutor concerning the relevant arrangements.

75.  On 13 April 2022 (“13 April 2022 Letter”), however:

(1)  The Law Society refused to disclose the identity of the Prosecutor (i.e. it seems a Prosecutor had been appointed at that point). It further represented that it was (along with its prosecutor) “well aware and do observe the standards required of prosecutors during disciplinary proceedings”.

(2)  It further stated that the “complainant in the disciplinary proceedings” was not the Applicant, and thus the reference to the Notes was irrelevant – but there was no explanation why. At this juncture, it can be noted that this was the first time that there was a clear refutation of the Applicant’s status as the “complainant”.

(3)  Finally, it said that the Prosecutor and Tribunal would, of course, consider whether it wished for the Applicant to provide evidence or any other assistance “at the appropriate point in the disciplinary process”.

76.  Given the Law Society’s stance, the Applicant did not further substantively engage with it anymore. He only asked – in a letter dated 19 April 2022 – that the Prosecutor be forwarded his letter dated 22 March 2022 (if he had not received it already).

77.  A year later, there was still no “update”. As he explained in his evidence, the Applicant thought that by then the Prosecutor would have had ample time to familiarise himself or herself with the Complaint and relevant papers, but the Applicant was concerned that no one had approached him to request any further information or materials ought to be a witness. He was at a loss as to how the Prosecutor could properly present the Complaint to the SDT Panel without calling him or any factual witness with first-hand knowledge. Thus, on 17 March 2023, the Applicant sent a further letter to the Law Society (“17 March 2023 Letter”). In this Letter:

(1)  The Applicant stated that pursuant to rule 7 of the SDT Rules, the Applicant was a “party” to the relevant proceedings before the SDT (“SDT Proceedings”).

(2)  He demanded these “basic” pieces of information, including (i) the identities of the Chairman and the persons comprising the SDT, (ii) whether the SDT had been informed that the Applicant is a party to the SDT Proceedings, (iii) whether the Law Society had appointed a Prosecutor, (iv) the identity of the Prosecutor, (v) the steps taken by the Prosecutor in the SDT Proceedings, and (vi) whether the SDT had indeed made any directions or orders in relation to the Complaint, including directions for a hearing to be fixed under rule 8 of the SDTP Rules to investigate DEF’s conduct.

(3)  Finally, the Letter also sought confirmation from the Law Society as to whether the SDT would decide (if not already) on whether the Applicant would be called to give evidence. In that regard, the Letter also highlighted the risks of not calling the Applicant, as (1) there may be legitimate concerns that there is a real risk of injustice if DEF is given the chance to give evidence before the SDT, but the Applicant is not, and (2) the Applicant has “first-hand knowledge” of the Mother’s lack of mental capacity and vulnerability, both immediately before DEF’s retainer in 2010 and around the time it was terminated in mid-June 2015, such that the Applicant must be a “proper and necessary witness”.

78.  On 18 April 2023, the Law Society sent a response (“18 April 2023 Letter”). This is also the “Decision”.

(1)  It again asserted that the Applicant was no longer the complainant at any point after it “took over the matter” in December 2019 and was ultimately directed by the CJHC to refer the matter to the SDT. Thus, he was not a “party” to the SDT Proceedings, and Rules 7 and 8 of the SDT Rules were inapplicable to him.

(2)  Given that (a) no order had been made by the CJHC to keep the Applicant informed of progress and the result of the Complaint, and (b) that the SDT Proceedings were confidential in nature, the Law Society would not provide the “basic information” that the Applicant wished for.

(3)  The Law Society denied that the Applicant had a right to submit evidence in the SDT Proceedings, as he is not a party, and that a fair hearing would be impossible if the Applicant was not given an opportunity to give evidence.

(4)  It also noted that (a) the Applicant had already provided materials to the Law Society, and they had all been transferred to the Tribunal Convenor and were thus “accessible” to the SDT, (b) the Prosecutor would consider whether to call the Applicant to give evidence in the proceedings, and he would be informed if this was the case.

79.  On 19 May 2023, the Applicant pushed back on the notion that he was not a party to the SDT Proceedings, in light of rules 3(1) and 3(2) of the SDTR. This contention, of course, is central to the current judicial review proceedings and will be explored later on. In the same letter, the Applicant also attached an Order made by the Singapore Court dated 29 November 2022 that the Applicant was to have conduct of “closely related disciplinary proceedings” against the Singapore lawyer who acted for the Mother during the material periods.

80.  On 2 June 2023, the Law Society sent a letter to the Applicant (“2 June 2023 Letter”). For the first time, it provided the following relevant contentions:

6. The Law Society took over the matter and conducted its own investigation of the matter in December 2019 and was ultimately directed by the Chief Judge to refer the matter to the Tribunal. As you know, the Law Society complied with this direction. At no point has your client been a party to the Proceedings (i.e. the SDT Proceedings) (with the section 9A(2) application, which can be made by “any person”, not affording him the status of a party), and there has been no suggestion from your client that the Law Society was not in a position to take over the matter and conduct its own investigation.

7. There is clear authority from Hong Kong case law that the party originally submitting a complaint to the Law Society cannot prosecute a disciplinary case, that such a party should not be a party to such proceedings, and that they have no “rights” in those proceedings […]

8. The combined effect of these decisions is that (i) your client is not a party to the proceedings and (ii) your client’s purported termination of the Law Society and the Prosecutor’s conduct of the Proceedings is of no effect…

[…]

81.  This Letter further provided that according to the authorities, a private complainant has no right to see privileged documents, and a complainant’s “rights and obligations” are not involved in proceedings before the SDT. Rather, those proceedings are not to determine the complainant’s own rights and obligations, but to determine the alleged misconduct of solicitors.

82.  In his evidence, the Applicant drew the contrast between the approach to the disciplinary proceedings in Singapore, where the Applicant has conduct of them, and the approach in Hong Kong. As he put it, the Law Society’s and Prosecutor’s stance in Hong Kong towards him comprises “three nos: no enquiries, no communication, and no coordination with closely related Singapore disciplinary proceedings”.

83.  However, it is fair to note that shortly before the hearing – and well after commencement of these proceedings – the Court was informed (by letter copied to the Applicant) that: the SDT Proceedings had not yet been concluded; the parties had filed their respective evidence and were currently in the process of agreeing to statements of agreed facts and disputed facts; and that the Law Society and the Prosecutor had decided that it would not be necessary to approach the Applicant and ask for his assistance “at this time”.

D.  Grounds of Review

84.  Against this backdrop, and by his Form 86, the Applicant advances two grounds of review against the Decision.

(1)  First, the Decision was unlawful in the public law sense, because it wrongly denied that the Applicant was a “party” to the SDT Proceedings, on a proper and purposive construction of the SDT Rules. Further, if the Applicant is a party, he is entitled under rule 12 to appoint independent Counsel and solicitors pursuant to the SDT Rules, to take over the prosecution of DEF.

(2)  Second, the Decision – which also refused to seek input from the Applicant – was unlawful in the public law sense, as it was (i) Wednesbury unreasonable, (ii) breaches the Tameside duty to make reasonable inquiries, and is tantamount to failure to take into account relevant factors, and (iii) breaches the Applicant’s legitimate expectation that the Prosecutor would abide by the “standards required of prosecutors”, including investigating all potentially relevant evidence, and keeping the Applicant informed of the progress of the case.

85.  In these circumstances, the Applicant seeks (inter alia) the following relief:

(1)  A declaration that he is entitled to be and is a party to the SDT Proceedings, and is entitled to all rights under rules 8, 10, 12, 14, 15, 17, and 30 (see above).

(2)  A declaration that the Applicant is entitled to appoint independent Counsel and solicitors pursuant to rule 12 of the SDT Rules to take over the prosecution of the SDT Proceedings from the Law Society and its appointed Prosecutor.

(3)  Alternatively, an order that the Law Society, do direct the Prosecutor to (i) provide the Applicant copies of, and allow the Applicant to comment on, all materials submitted to the Law Society by DEF for the purposes of the SDT Proceedings, and to take those comments into account for the further conduct of the SDT Proceedings; and (ii) consider whether to call the Applicant as a witness in the SDT Proceedings, and to provide adequate reasons to the Applicant if not.

86.  The Law Society, of course, contends that the grounds of review are not made out. It also contends that the present judicial review is very late, such that the challenge should be dismissed in its entirety. I will deal with the latter contention first.

E.  Delay

87.  The Law Society contends that it had “took over the complaint” as early as in the 12 December 2019 Letter (i.e. the Complaint went from one made under rule 3(1) to one under rule 3(2)). This decision – it is said – plainly refused to recognise “the Applicant’s status as a party” to the SDT proceedings, appoint him (or allow him to appoint someone else) as prosecutor, and disclose the responses or materials submitted by DEF.

88.  In such circumstances, the application is thus outside the time limit stipulated under Order 53, rule 4(1) of the Rules of the High Court Cap 4A. The challenge should only proceed if time is extended. It is necessary to consider (1) the length of the delay, (2) the explanation for the delay, (3) the merits of the substantive application, (4) questions of prejudice, and (5) whether there are questions of general public importance: see AW v Director of Immigration [2016] 2 HKC 393 at §37.

89.  However, I do not agree that the Law Society made a decision on 12 December 2019 which refused to recognise the Applicant’s status as a party in the SDT Proceedings (which is the crux of the present judicial review). Amongst other things, and as alluded to above, Mr Yu of the Standing Committee of the Law Society recommended the Applicant to take out the CJHC Application, such that the Applicant’s matter (“your matter”) could be pursued, on 7 December 2021. In other words, the Law Society plainly recognised that even after 12 December 2021, the Complaint was brought by someone other than the Law Society. Further, I do not think the Law Society’s evidence is correct when it suggests that the disciplinary proceedings were not commenced pursuant to an application made under Rule 3(1) of the SDT Rules but an application made under Rule 3(2), pursuant to the directions made by the Chief Judge. Indeed, if the Complaint was ‘converted’ from one made under rule 3(1) into one made under rule 3(2), that was after the CJHC Application, at the very earliest.

90.  The first time that the Law Society made clear that in its eyes the Applicant was not the “complainant” anymore was in the 13 April 2022 Letter. So, it can be said that the Applicant should have appreciated that the Law Society made a decision not to recognise the Applicant as a “party” to the proceedings as from then. The Form 86 was issued a year after the 13 April 2022 Letter, so there is some force in the Law Society’s argument that the current proceedings were commenced late.

91.  Nonetheless, even assuming the proceedings are late, I extend time for the present judicial review for the following reasons.

92.  First, I think that the current judicial review is of considerable public importance. At its core, it concerns what rights an aggrieved complainant may enjoy in proceedings against a solicitor accused of professional misconduct under the SDT Rules. It also concerns the ambit of the decisions in Delhaise v A Solicitor (unreported, CACV 147/2004, 8 June 2005) (“Delhaise (CA)”) and Delhaise v Law Society of Hong Kong (unreported, HCAL 143/2007, 29 July 2008) (“Delhaise(CFI)”). While finality in the administration of justice is an important factor, it is outweighed in the present case.

93.  Second, the Law Society does not claim any prejudice that it itself would suffer if time were to be extended. In sharp contradistinction, the Applicant may suffer grave prejudice – particularly when this concerns a family matter – if he was ultimately not able to have any sort of input in the SDT Proceedings, or if he was deprived of the exercise of his statutory rights when he should not have been.

94.  Third, as I indicate below, the judicial review is of strong merit. That may be why the Law Society did not seem to explain in the 13 April 2022 Letter why the Applicant was no longer a complainant.

95.  I turn to Ground 1 now.

F.  Ground 1

F.1  Is the Applicant a “party”?

96.  The crux of the judicial review is simple: is the Applicant a “party” to the SDT Proceedings? If so, is he entitled to the catalogue of statutory rights under the SDT Rules?

97.  There can be no dispute as to the principles of statutory construction, and they do not need to be rehearsed at any great length. It is an iterative and dynamic process. The proper starting point is to look at the relevant words, having regard to their context and purpose, taken in the widest sense and including other provisions of the statute and the existing state of the law. The object of the exercise is to ascertain the legislative intent of the language used in the statute.

98.  Giving a statutory provision a purposive interpretation, however, does not permit the Court to distort or even ignore the plain meaning of the text, or to construe the statute in whatever manner achieves a result which the Court may consider desirable. That is not permissible. Purposive construction means only that statutory provisions are to be interpreted to give effect to the intention of the legislature, to be ascertained by a proper application of the interpretative process.

99.  I also accept that the relevant provisions of the framework need to be read holistically, with the view of achieving an interpretation which has coherence and consistency.

100.  Bearing those principles in mind, prima facie the Applicant is a party to the SDT proceedings. The Complaint was made by the Applicant to the Law Society. In other words, the Applicant is a complainant under rule 3(1) of the SDT Rules. Rule 7 clearly states that “in the case of the application under rule 3(1), the applicant”, together with the accused/respondent solicitor, will be parties.

101.  As canvassed above, a party to the SDT Proceedings has various rights under the SDT Rules.

102.  Addressing the Law Society’s evidence, it is said that where the complainant is not the client of the solicitor, or where the complaint might involve issues such as LPP or conflict of interest, the Law Society’s usual approach is to treat the “complainant” as an “informant”, and to take up the complaint in place of the “informant” as the “complainant”, so that the Law Society can conduct investigation into the complaint matters against the respondent. It is said the Law Society has a working manual in relation to these matters, which is amended from time to time, but there is no formal policy as such. Hence, whilst generally speaking a “complainant” would be given the opportunity to comment on the respondent’s explanation, that does not apply to an “informant”.

103.  Mr Chan submits that despite the Applicant’s “nominal status” as a party under rule 7, the Applicant is still not entitled to the various rights as a party.

104.  First, Mr Chan relies on Delhaise (CFI), which applies Delhaise (CA). On the strength of these two authorities, he submits I am bound by authority to conclude otherwise. It is thus useful to traverse the two authorities, which have the same background, in some detail.

(1)  The applicant – Mr Delhaise – was gravely distressed after an ex parte injunction had been obtained against him in matrimonial proceedings. Thus, he made a complaint to the Law Society in respect of the two solicitors of the firm which acted for his ex-wife in obtaining the injunction.

(2)  The Law Society thought there had been no prima facie case of misconduct. Eventually, the Chief Justice of the Court of Final Appeal (who was tasked with discharging what is now the Chief Judge’s responsibility) submitted the complaint to the Tribunal Convenor. However, the Law Society maintained its position that the Law Society should not take up the prosecution of the complaint, and thus decided the “applicant would have to proceed in person” at the hearing before the Tribunal.

(3)  The Tribunal eventually dismissed the disciplinary proceedings. The Tribunal ordered the applicant to pay the costs of the solicitors with a certificate for senior and junior counsel, as well as costs of the Tribunal.

(4)  Dissatisfied, the applicant appealed to the Court of Appeal. But the Law Society raised the preliminary matter of whether the applicant had any right to appeal under sections 12(1), (2), and (2A) of the LPO. The Court of Appeal held not, and thus dismissed the appeal.

(5)  However, the Court of Appeal (Rogers VP delivering the unanimous decision) also held that it was wrong for the Tribunal to have allowed the applicant to act as prosecutor, even though the applicant “possibly”, could be a “party by virtue of rule 7”: see Delhaise (CA) at §§12, 16. This was so fundamentally wrong that it decided to set aside the costs order that was made against the applicant: see Delhaise (CA) at §17).

(6)  Following this episode in the Court of Appeal, Mr Delhaise decided to go back to the Tribunal asking for reimbursement on an indemnity basis for all his costs arising from his complaint, in particular his costs of the proceedings before the Tribunal and the Court of Appeal. This demand was refused. Aggrieved, the applicant commenced judicial review proceedings against the Tribunal and the Law Society. The applicant alleged that “by obliging him to be the prosecutor”, the Law Society acted in a manner inconsistent with his rights under Article 10 of the Hong Kong Bill of Rights (“BOR 10”) and Article 39 of the Basic Law: see Delhaise (CFI) at §14.

(7)  The applicant argued that his BOR 10 rights were infringed as, given that he did not enjoy a right of appeal to the CA as prosecutor and complainant, the Tehrani principle did not apply, and thus he was not afforded a “fair and public” hearing before the Tribunal as the Tribunal hearing was held in camera (§17).

(8)  A Cheung J (as the CJ then was) rejected the Applicant’s submission. As the Judge saw it at the time, the critical issue was whether the Tribunal hearing was a hearing to determine the “applicant’s own ‘rights and obligations in a suit of law’” per BOR 10.

(9)  Because the applicant was only a complainant or victim of the alleged misconduct, his “rights and obligations” were not involved. Rather, the point of the “suit at law” was to determine the alleged misconduct of the solicitors, and the solicitors’ only (§§18-20).

(10)  The applicant attempted to contend that given he was a party under rule 7 of the SDT Rules, the hearing before the Tribunal involved his “rights and obligations” (§24). The Judge recognised – like the Court of Appeal – that it was possible that the applicant was a “party” under rule 7, and thus there are “procedural rights and obligations” on the part of the applicant (§§26-27).

(11)  But the critical question was still – did the lawsuit involve the Applicant’s “rights and obligations” so as to trigger BOR 10, i.e. would the outcome of the proceedings affect him at all. The answer was that it would not – this was because he would not even be exposed to any costs order (§28).

(12)  In other words, the Judge thought whether or not the applicant was a “party” to the proceedings under rule 7 to be completely irrelevant to whether the applicant’s rights under BOR 10 were triggered.

105.  In these premises, I cannot agree with Mr Chan’s submission that the Applicant is not a “party” under rule 7 of the SDT Rules by virtue of the two authorities above.

(1)  Delhaise (CA) held that the applicant might well have been a party under that rule.

(2)  Delhaise (CFI) examined whether the applicant could be adversely affected by the ruling of the Tribunal – such that it could credibly be said that it was his rights and obligations which were being “determined”. It was not concerned with whether an applicant was entitled to a set of procedural rights under the SDT Rules before any ruling by the Tribunal.

106.  Second, Mr Chan submits that the referral to the Tribunal Convenor, after the CJHC’s directions, was made pursuant to rule 3(2) of the SDT Rules. It did so by way of a signed application and detailed affidavit sworn by a person appointed by the Council of the Law Society. It was this application that was accepted by the SDT. The Applicant did not protest at the time. Thus, according to rule 7, the “party” is the Law Society, and not the Applicant. This, apparently, is the Law Society’s “established practice”.

107.  I reject that submission. I do not think the Law Society is allowed to do that on proper interpretation of the SDT Rules.

(1)  Rule 4 of the SDT Rules is instructive. It reads (emphasis added):

4. Transmission of documents

If the Council or the Chief Judge decides to submit a matter under section 9A of the Ordinance to the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel appointed pursuant to section 9(4) of the Ordinance, the Council shall transmit to the Tribunal Convenor all documents received by the Society pursuant to rule 3(1) or any application and affidavit signed and sworn pursuant to rule 3(2) (my emphasis).

(2)  In other words, if a private complainant makes a complaint against a solicitor under rule 3(1) is ignored or delayed by the Law Society, and if the CJHC (upon application from the private complainant) sides with the private complainant, then the Council’s responsibility – it “shall” – is to transmit all the documents received by the Society which they have already received under rule 3(1), and not make a new application under rule 3(2).

(3)  I do think the word “or” gives the Law Society a choice. That word merely identifies what the Law Society must do, depending on whether it has received a complaint under rule 3(1) or it has itself made a complaint under rule 3(2).

(4)  Otherwise, the underlined portion would be completely otiose. The Rules would just provide that even after the CJHC decides to submit a matter under section 9A(2), what the Council “shall” do is to just make a rule 3(2) application.

(5)  The Law Society’s practice (and interpretation of its powers) is also irrelevant if that practice contradicts its powers.

(6)  The LPO provides that a private complainant may make an application to the CJHC to compel the Law Society to submit a matter to the Tribunal Convenor, precisely because the legislature foresees that the Law Society – no matter how upstanding or distinguished its members might be – might stall or take an unjustified view of the viability of the complaint.

(7)  For the Law Society to then take over the matter on its own – when it is shown that it might not have acted with all due propriety – by making an application under rule 3(2) of the SDT Rules is both strange and unfair to the applicant. In that process, that would effectively deprive the applicant of various rights to which he might be entitled under the SDT Rules (whether or not there is any basis for being mightily suspicious of the Law Society at that point).

108.  Insofar as the Law Society contends that it converted the Complaint from one being made under rule 3(1) to that under rule 3(2) as early as 12 December 2019 by “taking over” the Complaint, I see no mechanism in the SDT Rules and/or the LPO which allows that – except for the reference in rule 25 of the SDT Rules. There is also no documentary evidence of any policy which allows the Law Society to do so. That is also evidently not what happened in this case, as the Law Society suggested that the Applicant could make the CJHC Application. In any event, I doubt the materials provided by the Law Society to the SDT did not include the materials provided by the Applicant with his Complaint and which were added to by him thereafter.

109.  Third, Mr Chan suggests that on a purposive interpretation, the Legislature could not have intended for someone like the Applicant to have procedural rights. This is because, he says:

(1)  The Applicant is “not a full player. He is a participant in an investigatory process, which is focused on others”: Re (Miah) v Independent Police Complaints Commission [2016] EWHC 3310 at §§22, 74(ii) (Hickinbottom J).

(2)  Put slightly differently, procedural rights are given to parties because their substantive rights might be affected in the case. If the Applicant’s substantive rights are not affected (i.e. has no real “stake” in the ultimate outcome of those proceedings) then it is natural that he is not a “party”, and thus has no procedural rights: see Re Pablo Star Ltd [2018] 1 WLR 738 at §60; Re Leung Yat Tung (No 2) [2023] 4 HKC 311 at §12.

110.  I see some force in those submissions. The problem is that they fly in the face of the clear wording of the SDT Rules. If Mr Chan is correct, rule 7 should only limit the status of “party” to the particular respondent “in the case of a rule 3(1) application”, given that it is said that he is the only person whose substantive rights could be affected. But that is not what the rule says: the applicant (i.e. the complainant) is also given the status of a “party”, presumably with at least some attendant rights.

111.  I am also not sure that it is entirely correct that a private complainant can be treated as having no interest (at all) in the outcome of SDT proceedings, even if the focus of those proceedings is to determine whether the respondent has or has not been guilty of professional misconduct. One of the purposes of such disciplinary proceedings is to ensure and uphold the appropriate professional standards, in the public interest. It might be thought that the private complainant is at least a representative of the public in bringing the particular complaint, and very often one whose interests may have been directly affected by the conduct of which he or she makes complaint.

112.  Fourth, Mr Chan submits that it would not be right in the circumstances to give certain rights to the Applicant – most significantly, that of access to the materials submitted by DEF (which is covered by rule 10), as there are acute problems of LPP and conflict.

113.  I do not think that logic holds. It essentially asks that the clear wording of the SDT Rules be again ignored.

114.  Further, Solicitor v Law Society of Hong Kong (2006) 9 HKCFAR 175 shows how questions of privilege can be adequately tackled without depriving the Applicant of his status as a “party” under rule 7 of the SDT Rules. As Bokhary PJ said, what the SDT can do if DEF successfully asserts privilege over certain documents is to make directions under rules 9 or 32, so that the Applicant cannot access those documents (§23).

115.  Further still, I do not think there are acute issues of conflict or LPP in the present situation.

(1)  First, on 24 April 2020, the Applicant explained why LPP and conflicts were inapplicable, such that he should not be denied access to documents relevant to the Law Society’s investigation. After these explanations – and by 13 July 2021 – the Law Society refused to further involve the Applicant solely because of “confidentiality concerns”. Indeed, in the 18 April 2023 Letter (which contains the Decision), the Law Society refused to give “basic information” to the Applicant solely because of the confidential nature of the SDT Proceedings. It did not mention LPP, or conflict of interests.

(2)  Second, it is not clear whether the Law Society itself ever really thought that there were real issues of conflict / LPP between the parties. When push came to shove, the Law Society conceded that the 12 December 2019 Letter was nothing more than a “general reply” based on the materials that had been submitted to them by (amongst others) DEF, and not because it took the view itself that there were acute issues of conflict / LPP between the parties.

(3)  Third, if there was any privilege, the person whose privilege it was waived that privilege, at least through the decision of the Deputies and the Mother.

(4)  Fourth, the conflict of interest is more apparent than real. The Law Society complains that the real conflict of interest stems from the “bitter and longstanding disputes” between the Applicant and his other family members (as represented by DEF). This was never mentioned in correspondence. Further, even if this is a genuine concern, at best it may support a reason why the Applicant should not be allowed to prosecute his Complaint (see below), but it does not explain why he should not be accorded various other procedural rights as a “party” under the SDT Rules.

116.  I thus hold that the Applicant is a party to the SDT Proceedings, and he has rights under rules 8, 10, 12, 14, 15, 17, and 30.

117.  I also think that there were some grave missteps during the time between (1) the Law Society’s receipt of the Complaint, and (2) before it referred the matter to the Tribunal Convenor. It seems to me quite straightforward that the Applicant should have been allowed to comment on DEF’s explanation, particularly when (as I have found) the concerns over LPP and conflicts of interest were not substantial.

118.  It is also difficult to understand why it could ever be thought appropriate for the Applicant not even to be kept informed of the status and progress of the Complaint and the subsequent directed SDT proceedings. In this regard, analogous reference might be made to the Prosecution Code which (at §§14.4 and 14.5) emphasises that victims are amongst other things entitled to have their role in the proceedings fully explained and to be consulted during the course of proceedings about actions being taken, to be kept informed of the progress of the case, and to have their views considered by prosecutors and investigators. In any event, it seems to me that simple courtesy would dictate that the Applicant should at least have been and be kept properly informed of the status and progress of matters, which was and is perfectly possible notwithstanding any concerns about confidentiality.

119.  The problem in part is a failure of communication, and as often happens with such a failure of communication it was almost bound to generate a sense of suspicion, or even distrust. That was, to say the least, both unfortunate and easily avoidable.

F.2  Can the Applicant appoint his own counsel as prosecutor?

120.  But even if the Applicant is a “party” and has a right to representation under rule 12, it does not necessarily mean that he is entitled to appoint independent Counsel or solicitors to replace the current Prosecutor.

121.  I heard comparatively little argument on the ambit of rule 12. However, as a starting point, I see great force in Mr Chan’s submission that the particular relief sought – namely that the Applicant (and presumably other similar complainants) should have the legal right to appoint their own Counsel and solicitors to take over the prosecution from the Law Society and its prosecutor, that is to take away from the prime regulator a significant role in the process of regulation – has potentially enormous overall implications.

122.  Mr Chan also invites consideration of the question whether, even assuming for present purposes it is right that this case involved a rule 3(1) complaint, that sensibly leads to the desired end point giving such an applicant the legal right to be the prosecutor or to take over the prosecution in place of the Law Society.

123.  On the other hand, there is perhaps some force in what Mr Hui says, that there are only two parties to a rule 3(1) application sent before the SDT, and if one of them is the solicitor the subject of the inquiry, the other must be the prosecutor. That is the default situation, he says. However, that overlooks the power in the primary legislation for the Council to be present and represented at every SDT hearing. It seems to me to be unlikely that the Council (as the regulator) would be there with only some kind of observer status.

124.  In any event, on balance, I do not think the Applicant can appoint his own Counsel as prosecutor.

(1)  Rule 12 only says that “any party to an application” may be represented by solicitor or counsel. But it does not say for what purpose the party can pick the solicitor or counsel that represents him.

(2)  This concords with the fact that the solicitor / counsel that is said to “represent” the complainant’s interests under rule 3(1) will also inevitably or essentially act as the prosecutor. It is axiomatic that a prosecutor – besides prosecuting the complaint by “attacking the position adopted or evidence advanced on behalf of an accused” (i.e. competently representing the complainant: see Prosecution Code §3.3) – also must act fairly, impartially, and independently in the interests of justice, and not chase every rabbit down its hole.

(3)  In this regard, if rule 12 is interpreted to mean that the complainant has the right to nominate or replace the Prosecutor, then the right balance between firm prosecution and temperament and judgment might not be struck.

(4)  There is some obvious good sense in having a “buffer” (Mr Chan’s word) between a complainant and the process, which points against the right of every complainant to be actively involved in the process as prosecutor.

(5)  Ordinarily, it would be expected that the regulatory body would (at least in most cases) be the prosecutor of allegations of professional misconduct.

(6)  It might not even be in the public interest for an applicant to replace the prosecutor just because he wishes to do so. It might unduly prolong the matter, which – among other things – may not be fair to the respondent. There might also be no good reason for it. Indeed, that is exactly what the Law Society is alleging here: the Applicant should not be seeking to replace the Prosecutor just because (1) it has not sought the Applicant’s comment on the matter just yet (as to which, see below), or (2) because he or she has failed to identify himself / herself to the Applicant.

125.  I have already noted that under section 9B(3) of the LPO – the primary legislation – the Council may be represented at proceedings before the Tribunal. This seems to me to be consistent with the aim of and the ability for the Council to be represented in every case, likely for the purposes of itself pursuing the prosecution of the complaint.

126.  I keep in mind that rule 11 of the SDT Rules deals with what might happen on the failure of any party to appear at the hearing. Amongst other things, the rule states expressly that, in the absence of the applicant, the SDT may in their discretion dismiss the application without a hearing. But that seems to me to say little more than that if a person who initiates the proceedings appears not want to carry them through, then the SDT may choose to dismiss the application without the necessity of the hearing – in circumstances where the rules do not allow withdrawal once a SDT is set up. Rule 13 also deals with the possibility of re-hearing after an earlier failure to appear.

127.  I also think that section 13 of the LPO is also more consistent with my interpretation that the applicant’s right as a party to representation under rule 12 does not necessarily entitle that person to instruct the Prosecutor. Section 13 deals with appeals, and it provides that an appeal against any order made by a SDT shall lie to the Court of Appeal. Subsections 13(2) and (2A) identify that the appellant and respondent to such an appeal shall be the solicitor the subject of the inquiry and the Council (and no one else). That seems to me to identify that the protagonists on the appeal should reflect the protagonists before the SDT. Indeed, if the applicant was empowered to be or instruct the Prosecutor, it is difficult to see why the applicant would not be a party to any appeal.

128.  Though perhaps slightly less clear, rule 25 of the SDT Rules identifies that the Council has the power to decide to undertake the prosecution of an application on behalf of the original applicant. That is what is said to have occurred in this case, and to be the ordinary practice. Rule 25 at least suggests that there is no legal entitlement to an original applicant to be the prosecutor of his application.

129.  To complete the picture, I do not think Delhaise is relevant to the analysis. To my mind, all that Delhaise was saying was that the applicant there was not entitled to prosecute the complaint because the proper procedure where the Law Society refuses to take up the prosecution of the respondent solicitor, despite the CJHC’s submission under section 9A(2) of the LPO, is to “inquire into and investigate the matter” without the assistance of a prosecutor pursuant to section 9B(1A) of the LPO: see Delhaise (CA) at §16; Delhaise (CFI) at §38. Those remarks are clearly inapposite here, as the Law Society did not refuse to take up the prosecution of DEF in the present case.

G.  Ground 2

130.  Since I have found that the Applicant is entitled (amongst other things) to rights to inspect documents under the SDT Rules, I do not think it is necessary for me to consider whether the Applicant should be given copies of the materials submitted to the Law Society, whether or not they were given to it by DEF.

131.  The only thing left to consider is whether I should order the Law Society to direct the Prosecutor to (1) allow the Applicant to comment on the materials submitted by DEF and take those comments into account, and (2) consider whether to call the Applicant as a witness in the SDT Proceedings, failing which to provide adequate reasons to the Applicant for the said decision.

132.  Mr Hui makes the forceful submission that it is “mind-boggling” that the Applicant has still not been called as a witness or that he has not even been asked for comment – given that without the Applicant, it “begs the question of how the Prosecutor could properly and effectively prosecute the disciplinary charges”. He also asserts that the Prosecutor simply cannot proceed without the Applicant’s involvement, as DEF’s factual case and representations specifically will not be challenged without utilising the Applicant’s “personal knowledge of material information”.

133.  Mr Hui further points to various portions of the Prosecution Code, which obliges the Prosecutor to “assist the court to arrive at the truth”, to “see that all available legal proof of the facts is presented”, and “seek to have relevant and credible evidence placed fully and intelligibly before the court” (§§3.1, 3.2, 3.5(a)). Plainly, he submits, none of these obligations have been discharged. As such, these omissions are unreasonable, involve breaches of the Tameside duty, or breached the Applicant’s legitimate explanation that the “standards required of prosecutors” would be abided by.

134.  But both as a matter of law and fact, I do not think that the Prosecutor’s omissions are really any of those things.

135.  It is not entirely surprising that the Prosecutor has not sought further information from the Applicant. I do not wish to prejudge anything – and nothing I say in the Judgment should be seen as commentary on or seeking in any way to influence anyone’s view of the merits of the Complaint – but there seems to be ample material (a lot of which has been provided by the Applicant himself, including the SGDC Judgment, the SGCA Judgment) which suggests the Prosecutor might form the view that he has more than enough to go on, perhaps even for the purpose of rebutting DEF’s factual case (whatever it may be).

136.  My conclusion is further fortified by the following well-established principles.

(1)  For a breach of a Tameside duty to be established, it is for the public body and not the Court to decide upon the manner and intensity of inquiry to be undertaken, and the Court should not intervene merely because it considers that further inquiries would have been sensible or desirable, subject to a Wednesbury challenge: Royal Billion Investment Ltd v Town Planning Board [2021] HKCFI 1093, §§97-100.

(2)  As regards prosecutorial decisions specifically, it is only in highly exceptional cases that the Court will disturb the decisions of an independent prosecutor: R (Corner House Research) v Serious Fraud Office [2009] 1 AC 756, 840F-841D.

(3)  Indeed, that is why in R (Ramsden) v Independent Police Complaints Commission [2013] EWHC 3969 (Admin) – a case cited by the Applicant – the Court decided that the failure of the police to take witness statements from two witnesses in a case concerning police misconduct was ultimately unimpeachable, even though it was critical of the police’s decision not to do so. That is also why in R (Wilson) v Law Society [2014] EHWC 1265, the Court refused to find the decision of the UK Law Society not to investigate a solicitor’s misconduct Wednesbury unreasonable, even though it was “somewhat surprising” (§§8-11).

137.  Of course, if it is not unreasonable for the Prosecutor not to have sought the Applicant’s involvement in the SDT Proceedings, then it cannot be said that the standards expected of prosecutors were not observed, thus breaching the Applicant’s legitimate expectation in the process.

138.  To complete the picture, I do not think the Notes help the Applicant here. As I have explained, although there is a reference to the need for a complainant to act as a witness if the matter is sent to a SDT, the Notes mainly govern the period (1) after receipt of the Complaint by the Law Society but before the matter is submitted to the SDT, and not (2) after the SDT Proceedings have begun.

139.  On the other hand, I do think it worthy of comment that the Applicant has been kept completely in the dark, and has not even had the courtesy of contact from the Prosecutor, let alone any explanation as to why the Applicant’s assistance might be regarded as unnecessary. Whether as a matter of professional courtesy or otherwise, I cannot see that such form of contact would be anything other than appropriate. Further, as I think the Applicant has sought to explain in some way, the Prosecutor might be in the Rumsfeldian position of not knowing what he does not know. Surely at least exploring matters with the Applicant would make sense.

140.  Lastly, I expressly record that there is no reason to think that the Applicant – who may feel strongly about the Complaint – would act in anything other than an appropriate, measured and (if relevant) professional way if he was contacted by those whom it might reasonably be expected he would be contacted. The content and the tone of the Applicant’s earlier correspondence seems to me to make that abundantly clear. When there has been a prior failure, it is never too late to seek to re-establish the appropriate connection and communication.

H.  Result

141.  I thus grant the Applicant’s judicial review, quash the Decision, and declare that the Applicant is a party to the SDT Proceedings, and he has rights under rules 8, 10, 12, 14, 15, 17, and 30 of the SDT Rules. I decline to grant the other relief sought.

142.  As to costs, I make the following orders.

(1)  Given that I have found that Ground 1 is made out, the Applicant is the successful party in these proceedings. I see no reason why costs should not follow the event. Therefore, I order that the Applicant’s costs be paid by the Law Society. Those costs should be taxed if not agreed, with certificate for two counsel.

(2)  As canvassed above, I also deal with the costs of the anonymity order here. I see no reason why the Law Society should not pay the costs of its failed application to set aside the anonymity order.

(3)  However, I make those orders in the first instance on a nisi basis. The orders will become absolute after 14 days if no party seeks any variation within that period. Any variation application will be dealt with on the papers.