PHILIPPE FREDERIC DELHAISE v. Re: SOLICITORS AND ANOTHER

cacv 147/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 147 of 2004

(on appeal from AN ORDER OF THE SOLICITORS DISCIPLINARY TRIBUNAL DATED 30 APRIL 2004)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This was an appeal from a decision of the Solicitors Disciplinary Tribunal.  At the conclusion of the hearing of this appeal this appeal was dismissed but this court set aside the order for costs made by the Tribunal.

2.  It is unnecessary to rehearse all the background facts in this matter.  It is sufficient to say that the applicant was gravely distressed on account of the fact that an ex parte injunction had been obtained on 26 July 1988.  That injunction was discharged on 9 August 1988.  The proceedings in which the injunction had been obtained were matrimonial proceedings and they continued thereafter.

3.  By letter dated 23 January 1989 the applicant made a complaint to the Law Society in respect of two solicitors of the firm that had acted for petitioner in obtaining the injunction.  They are, collectively, the 1^st respondent in this matter.  The Law Society considered that there had been no misconduct on the part of the solicitors and refused to take the matter any further.

4.  Over the years there was considerable litigation in which the applicant attempted to obtain redress both against the solicitors and against other solicitors through several proceedings.  These were not successful and from time to time the applicant renewed his complaints to the Law Society.

5.  Eventually on 8 March 1999 the Investigation Committee of the Law Society dismissed the complaint on the ground that the complaint was not supported by evidence.  That decision was subsequently endorsed by the Law Society’s Standing Committee on Compliance.  Following that, the applicant applied to the Chief Justice of the Court of Final Appeal under section 9A of the Legal Practitioners Ordinance, Cap. 159 (“the Ordinance”).  In September 1999 the Chief Justice submitted the complaint to the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel.  By letter dated 18 February 2000, the Law Society indicated that it had given careful consideration to its position and had come to the conclusion that it would be inappropriate to take over the prosecution of the matter from the applicant.

6.  Eventually in an affidavit dated 6 March 2001 the applicant set out 4 charges which he considered should be brought against the solicitors in question.  It is unnecessary to consider the exact terms of those charges.  Charges 2 and 4 included allegations that the respondents had knowingly attempted to deceive the court.  It suffices to say that, as recorded in the findings of the Tribunal, those allegations were withdrawn and the applicant clarified that he did not intend to suggest in the other charges that the solicitors had deliberately carried out the acts which were the subject of those complaints.  Charges 1 and 3 can be summarised as turning upon the allegation that the solicitors failed to disclose all matters which should have been disclosed on the ex parte application and in particular failed to disclose 4 letters, 2 emanating from the 1^st respondent’s firm and 2 emanating from the applicant.

7.  It appears from paragraph 4 of the Findings of the Tribunal that the applicant prosecuted the matter before the Tribunal and that the Tribunal permitted, if not encouraged him to do so, considering that the matter was covered by rule 3(1) of the Solicitors Disciplinary Tribunal Proceedings Rules  (“the Rules”).

8.  It is not clear whether a person who falls within the purview of rule 3(1) of the Rules has in other circumstances been permitted to act as prosecutor.  Certainly in all other cases which have reached this court the conduct of the prosecution of a disciplinary charge before the Tribunal has been left in the hands of counsel instructed on behalf of the Law Society.  Under rule 3(1) an applicant wishing to make a complaint against a solicitor must submit the complaint in writing together with an affidavit.  Rule 3(2) of the Rules provides that:

“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.”

9.  Section 9A of the Ordinance provides in subsection (1) that the Council of the Law Society may submit a matter to the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel if it considers that the matter should be inquired into or investigated following a complaint being made to it or otherwise.  Subsection (2) provides:

“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.”  [Prior to amendment of the Ordinance in 2002 the reference to the Chief Judge had been to the Chief Justice of the Court of Final Appeal.]

10.  Rule 3(1) provides for the submission of an application to consider a complaint to the Law Society by an applicant.  That application must be in writing and supported by an affidavit.  Sub-rule (2) speaks of an application being made by the Law Society, in which circumstances the Secretary General may sign the application and swear the affidavit.  Thus rule 3 provides for two different circumstances.  In sub-rule (1) it is speaking of an application by a third party to the Law Society and unless something further is done the Tribunal does not become involved, but in sub-rule (2), whilst the word “application” is used, it is not an application by the Law Society but it must be referring to a submission of a complaint to the Tribunal Convenor.

11.  The matter becomes slightly confused in rule 7 which reads:

“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.”

As already observed the application under rule 3(1) is an application to the Law Society to consider a complaint and it does not in itself trigger an inquiry by the Tribunal whereas, presumably, if “application” as used in rule 3(2) of the Rules is to be read as the submission of a complaint to the Tribunal Convenor then the Law Society would necessarily be a party and the machinery of an inquiry would be put in motion.

12.  What would appear to be the result is that where the Chief Judge (or previously the Chief Justice) submits a complaint to the Tribunal Convenor, the Council is required to submit all documents which have been received by the Law Society pursuant to rule 3(1).  It would therefore seem that possibly the applicant does become a party by virtue of rule 7.

13.  The important point as regards this case comes in relation to which parties are entitled to appeal.  The right of appeal in respect of disciplinary matters is provided in section 13 of the Ordinance.  That reads:

“	(1)	Subject to section 12(6), an appeal against any order made by a Solicitors Disciplinary Tribunal shall lie to the Court of Appeal and the provisions of Order 59 of the Rules of the High Court (Cap 4 sub. leg.) shall apply to every such appeal save that the time for serving notice of motion of appeal shall be 21 days from the date of the decision and not 6 weeks as provided in the said Order and the decision of the Court of Appeal on any such appeal shall be final.
	(2)	Subject to subsection (2A), in any appeal under subsection (1) the Society shall be the respondent.
	(2A)	The Council may, with leave of the Court of Appeal, appeal an order of a Solicitors Disciplinary Tribunal under subsection (1), in which case the Society shall be the appellant and the person whose conduct was the subject of the inquiry by the Solicitors Disciplinary Tribunal shall be the respondent.
	(3)	Nothing herein contained shall affect the jurisdiction of the Court under sections 3(2) and 45.
	(4)	The hearing of every appeal under this section shall be in open court unless, and to the extent to which, the Court of Appeal may otherwise direct.”

14.  Section 13(2A) was inserted by an amendment in 2000.  It was observed in the case of The Law Society of Hong Kong v A Solicitor, CACV 2112 of 2001, reasons dated 1 February 2002, that it was agreed by the parties in that case that until that amendment had been made appeals to the Court of Appeal under section 13 could only be made by the solicitor and not by the Law Society.  Furthermore our attention has been drawn in this case to the Legislative Council Paper No. CB (2) 2232/99-00, which is a paper that was prepared for the House Committee on 9 June 2000; it was the report of the Bills Committee on the Legal Practitioners (Amendment) Bill 1999 and in paragraph 10 it read:

“According to the Administration, the Law Society currently has no right to appeal against the finding of the SDT as to guilt and sentence, although the other party to an SDT proceedings is entitled to appeal to the Court of Appeal under the Ordinance.  It is proposed to amend the Ordinance to give the Law Society a right to appeal against a finding of the SDT.  The Law Society would be in a better position to protect the public and maintain public confidence in disciplinary proceedings where these may be undermined by erroneous decisions of the SDT.”

15.  Coupled with that, it might be observed that, in the usual way of things, a prosecutor does not normally have a right of appeal unless there is some specific right enacted that that may happen.  In those circumstances section 13(1) clearly relates, and has always been treated as relating, to an appeal by the person whose conduct has been inquired into or investigated and not to an appeal by the prosecutor.  The only power to appeal on the part of those prosecuting the disciplinary complaint is under section 13(2A).  There the right of appeal is only given to the Council.

16.  In my view the Tribunal was in error in allowing the applicant to act as prosecutor.  If the Law Society or the Council, despite the submission of the complaint by the Chief Justice did not consider it right to bring the prosecution, the Tribunal should have considered the matter and made its own inquiry.  Whilst it allowed the applicant to act as prosecutor that did not constitute the applicant the Council of the Law Society.  In those circumstances the applicant has no right of appeal to this court.  Since this is a matter of jurisdiction, the court had no alternative but to refuse to entertain the appeal on merits.

17.  This court however discharged the order of costs below.  It had been made on the basis that the applicant was the prosecutor in the matter and, as already explained, that was an erroneous approach.  Even on the basis that the applicant was a party to the inquiry by the Tribunal it would appear that it would have been wrong for the applicant to have been ordered to pay costs in view of the fact that the matter had been submitted to the Tribunal by the Chief Justice under his powers under section 9A(2) of the Ordinance and the solicitors themselves had conceded there had been an error.

Hon Le Pichon JA:

18.  I agree.

Hon Gall J:

19.  I agree and have nothing to add.