THE LAW SOCIETY OF HONG KONG v. A SOLICITOR

CAMP 427/2021

[2022] HKCA 1874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 427 OF 2021

(ON AN INTENDED APPEAL FROM AN ORDER MADE BY THE SOLICITORS DISCIPLINARY TRIBUNAL DATED THE 13^TH DAY OF SEPTEMBER 2021)

________________________

________________________

________________________

________________

J U D G M E N T

________________

Hon Kwan VP (giving the Judgment of the Court):

1.  On 13 September 2021, the Solicitors Disciplinary Tribunal found seven complaints substantiated and proved upon the own plea of the respondent[1]. In respect of the 1^st and 3^rd complaints[2], the Tribunal ordered the respondent be suspended from practice as a solicitor for a period of 30 months from the date of filing of the order, followed by a temporal restriction from practising as a partner or principal of a firm but only as an assistant solicitor under the supervision of a solicitor of not less than 15 years’ standing with no disciplinary record for a period of three years commencing from the date when the respondent resumed practice as a solicitor.

2.  On 4 October 2021, the Law Society issued a summons pursuant to section 13(2A) of the Legal Practitioners Ordinance, Cap 159, seeking leave of the Court of Appeal to appeal the above order for sanction on the ground that the penalty of suspension of 30 months was clearly wrong and manifestly inadequate in all the circumstances. It is the Law Society’s contention that the respondent ought to be suspended from practice for at least 60 months followed by temporal restriction for three years when he resumed practice on the terms as imposed by the Tribunal.

3.  Mr Vishal Melwani argued for the Law Society that the “reasonable prospect of success” test in section 14AA(4)(a) of the High Court Ordinance, Cap 4[3], which applies to leave application for interlocutory appeals, is not applicable in this situation. He submitted that leave to appeal will normally be granted unless the grounds have no “realistic prospects of success”. Ms Sally Wong for the respondent did not take issue with this. Mr Melwani has not cited any authority for his proposition.

4.  No express provision is made in section 13 of the Legal Practitioners Ordinance regarding the test or threshold for granting leave to appeal. Where the test is “reasonable prospect of success”, it has been held that this means an appeal with prospects that are more than “fanciful” but do not need to be shown to be probable[4]. For present purpose, it is not necessary to resolve whether the appropriate threshold is reasonable prospect or realistic prospect of success. Whichever test is applied, and assuming that realistic prospect is of a higher threshold, we are satisfied that the higher threshold is met.

5.  We are persuaded that the grounds of appeal in the draft notice of appeal do have reasonable or realistic prospect of success. As leave to appeal would be granted, it would not be appropriate to go into the merits of the appeal at this stage or express our preliminary views on the contrary arguments of Ms Wong.

6.  We note from Mr Melwani’s submissions he would argue that the Tribunal was incorrect to find in §12 of its findings “there was no dishonesty attributable” to the respondent in the complaints. Mr Melwani also contended that at the very least, there was wilful blindness. These contentions are not mentioned in the grounds of appeal, as rightly pointed out by Ms Wong. If these contentions are to be relied on by the Law Society, they should be stated expressly in the grounds of appeal.

7.  The clerical error in §3(2) ii of the grounds of appeal should be corrected[5].

8.  Subject to the above, we grant leave to the Law Society to appeal against the penalties imposed in the order of the Tribunal dated 13 September 2021.

9.  We give leave to the Law Society to file and serve a Notice of Appeal within seven days of the handing down of this judgment. Costs of this application will be in the cause of the appeal.