LAM PING CHEUNG ANDREW v. THE LAW SOCIETY OF HONG KONG

HCAL 121/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 121 OF 2006

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J U D G M E N T

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Facts

1.  The applicant, a solicitor in private practice, was convicted after trial in the District Court (DCCC 298/2005) of the offence of conspiracy to pervert the course of public justice on 12 June 2006.  On 16 June 2006, he was sentenced to four years imprisonment.

2.  On 12 July 2006, the applicant lodged an application for leave to appeal against conviction and sentence (CACC 248/2006).

3.  On 26 September 2006, Tang JA (as he then was) granted the applicant bail pending appeal.  It was estimated that the appeal would only be heard in 18 months time.

4.  Upon receiving complaints and queries as to why the applicant, a convicted person, was still allowed to practise as a solicitor, the Conduct Section of the Law Society prepared a report to the Council of the Law Society regarding the applicant’s continued practice as a solicitor whilst awaiting the hearing of his appeal on bail.  After discussion, the Council decided to issue two letters, both dated 12 October 2006, to the applicant through the Secretary General.

5.  The first letter required the applicant to produce or deliver to the Director of Compliance of the Law Society all documents in his possession or in the possession of his firm (of which he is the only equity partner) relating to his conviction, pursuant to section 8A of the Legal Practitioners Ordinance (Cap 159) (“the Ordinance”).  He was also asked to submit any written representations regarding his fitness to practise as a solicitor.

6.  The second letter, issued pursuant to rule 3 of the Practising Certificate (Solicitors) (Grounds for Refusal) Rules (Cap 159N) (“the Refusal Rules”), gave notice to the applicant that consideration was being given to refuse to issue a practising certificate for 2007 to him and invited the applicant within 14 days to make such representations as he might think fit to the Law Society.

7.  On 18 October 2006, the applicant submitted the relevant documents as well as written representations under the Refusal Rules.  By letter dated 1 November 2006, the applicant confirmed that those representations were also applicable to the section 8A investigation.

8.  After receiving the relevant documents from the applicant, the Director of Compliance prepared a report dated 7 November 2006 under section 8A for the consideration of the Council.  Another report dated 3 November 2006 was prepared by the Assistant Director, Conduct, for the purposes of the Refusal Rules.  Both reports were placed before the Council.

9.  On the same day, after discussion, the Council by a majority concluded that the applicant was unfit to practise.  It resolved to refer the matter to the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel and suspend the applicant from practice pending the determination of the tribunal, pursuant to its powers under section 8A(3).  Furthermore, the Council decided not to issue to the applicant a new practising certificate for the year 2007.

10.  By letters dated 7 and 16 November 2006, the Council through the Secretary General notified the applicant of its decisions under section 8A and the Refusal Rules respectively.

11.  On 11 November 2006, the applicant through solicitors made further representations including representations on the question of interim suspension, and urged the Council to reconsider its decisions under section 8A.

12.  The Council considered the applicant’s further representations on 15 November 2006 and decided to maintain its earlier decisions.  By letter dated 15 November 2006, the Council through the Secretary General replied to the applicant’s solicitors and informed them that the previous decisions were maintained.  There was a follow-up letter dated 16 November 2006 written by the applicant’s solicitors to the Council, to which the Secretary General gave a reply by letter dated 21 November 2006.

Application for judicial review

13.  In this application for judicial review, leave having been granted on 24 November 2006, the applicant challenges the Council’s initial decisions under section 8A, as well as its decision to maintain those decisions despite the applicant’s further representations.  He also challenges the Council’s decision under the Refusal Rules.  A number of grounds, including some new grounds, are relied on.  They will be considered in turn.

14.  There is obviously some urgency in the matter as the new year is rapidly approaching.  Without a practising certificate for 2007, the applicant will be unable to practise with or without an interim suspension under section 8A.  Any delay in deciding this application for judicial review will have the practical effect of rendering the application a nugatory.  That was why, having concluded, for reasons given in an ex tempore judgment delivered on 28 November 2006, that it was not appropriate to grant interim relief in the present case, the Court agreed and directed that an expedited hearing be held to deal with the substantive application.  For the same reason, I am eager to give judgment as soon as possible.  In the remainder of this judgment, I will endeavour to set out the essential reasons for my decision.  Given the pressure of time, it may not be possible to elaborate on some of those reasons as fully as I would otherwise have attempted under different circumstances.

Section 8A

15.  I will first deal with the decisions under section 8A.

16.  The relevant sections in the Ordinance relating to disciplinary proceedings read as follows:

“8A (1)  Where the Council considers that a solicitor or foreign lawyer may be unfit to practise the Council may, if it considers it necessary for the purpose of investigating the matter, require the solicitor, the foreign lawyer or his firm to produce or deliver to a person appointed by the Council, at a time and place fixed by the Council, all documents in the possession of the solicitor, the foreign lawyer or his firm that the Council specifies either particularly or generally.

(2)  Without limiting subsection (1), the Council may take the following factors into account in deciding whether to act under subsection (1)-

(a)      the solicitor’s or foreign lawyer’s mental and physical health;

(b)  the solicitor’s or foreign lawyer’s ability to supervise his practice;

(c)  the nature and frequency of complaints made against the solicitor or foreign lawyer;

(d)  the solicitor’s or foreign lawyer’s financial position;

(e) conviction of the solicitor or foreign lawyer for an offence for which a sentence of imprisonment is possible; and

(f) the number of successful claims made against the solicitor or foreign lawyer for negligence or breach of duty.

(3)  After considering a report of the person appointed under subsection (1) and any written representations made by or on behalf of the solicitor or foreign lawyer, if the Council considers that the solicitor or foreign lawyer is unfit to practise, the Council shall submit the matter to the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel and may suspend the solicitor from practice or suspend the foreign lawyer’s registration pending a decision of the Solicitors Disciplinary Tribunal constituted to deal with the matter.

…

9A  (1)  Where the Council considers that the conduct of a person who is, or was at the relevant time, a solicitor, a foreign lawyer, a trainee solicitor or an employee of a solicitor or foreign lawyer should be inquired into or investigated as a result of a complaint being made to it or otherwise, the Council shall submit the matter to the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel.

…

9B (1)   On receipt of a submission under section 8A(3) or 9A in respect of a person who is, or was at the relevant time, a solicitor, a trainee solicitor or an employee of a solicitor the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel shall, unless it is a matter that is to be disposed of by the Tribunal Convenor under section 9AB, appoint from the Panel 2 solicitors and one lay person to constitute a Solicitors Disciplinary Tribunal to inquire into and investigate the matter.

…

10 (1)  A Solicitors Disciplinary Tribunal shall have power to inquire into and investigate the conduct of any person in respect of which it was appointed.

(2) Subject to the provisions of this Ordinance, on completion of its inquiry and investigation, a Solicitors Disciplinary Tribunal shall have power to make such order as it thinks fit and any such order may, in particular, include provision for all or any of the following matters-

(a)  striking off the roll of solicitors the name of the solicitor to whom the inquiry or investigation relates;

(b)  suspending that solicitor from practice for such period as the Solicitors Disciplinary Tribunal shall think fit;

…

13 (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. A) 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.”

Non-disclosure of reports (a) and (b)

17.  The first and foremost point made by Mr Dykes SC, Mr Bell with him, for the applicant was that the Council should have disclosed to the applicant for his comment and reply the initial report made by the Assistant Director, Conduct, dated 10 October 2006 (“report (a)”) and, more importantly, the further report made by the Director of Compliance, dated 7 November 2006 (“report (b)”).

18.  As mentioned, the Council had considered report (a) before deciding to require the applicant to submit documents regarding his conviction and representations on his fitness to practise to the Director of Compliance pursuant to section 8A(1). 

19.  Report (b) was the report referred to in section 8A(3).  It was prepared by the Director of Compliance after receiving the relevant documents and written representations from the applicant.  The report was considered by the Council together with the written representations of the applicant, before it concluded that the applicant was unfit to practise and decided to refer the matter to the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel for investigation and determination and suspend the applicant from practice in the meantime.

20.  In essence, Mr Dykes argued that as a matter of natural justice and procedural fairness, those two reports – particularly report (b) – should have been disclosed to the applicant so that he could have an opportunity to respond to them.  As it happened, they were only disclosed in the course of these proceedings. 

21.  Counsel’s argument reminded me of a well-known passage in Lord Mustill’s judgment in R v Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531, 560D-G, where his Lordship explained the meaning of fairness, albeit in the context of a statutory administrative power or discretion:

“What does fairness require in the present case?  My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment.  They are far too well known.  From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable.  They may change with the passage of time, both in the general and in their application to decisions of a particular type.  (3) The principles of fairness are not to be applied by rote identically in every situation.  What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.  (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.  (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

22.  Although the context of the present case is slightly different, what has been said, particularly points (5) and (6), are of much relevance to the contention under discussion.

23.  Mr Dykes recognised that the decisions of the Council made under section 8A were only provisional in nature, as the questions of the applicant’s fitness to practise and punishment are ones ultimately for the disciplinary tribunal.  Nonetheless, he argued that the gravity of the matters concerned – in particular the issue of interim suspension from practice – was such that they attracted the normal procedural requirements of fairness.  He relied on what Lord Wilberforce had said in Wiseman v Borneman [1971] AC 297, 317-318.

24.  For my part, I find the speech of Lord Slynn in Rees v Crane [1994] 2 AC 173, 189E-192G/H, a Privy Council decision concerning an investigation into a judge’s alleged misconduct, in which many earlier decisions – including Wiseman v Borneman – were reviewed, most illuminating:

“   It is also correct, as the appellants contend, that in a number of cases to which they refer it has been decided that in certain preliminary or initiating procedures there was no right on the part of an individual to know of complaints or to be allowed to answer them. That right may arise at a later stage and the appellants accept that a judge being investigated has a right to know of complaints, and to have an opportunity to deal with them, before the tribunal and before the Judicial Committee of the Privy Council. It thus falls to be decided whether in this case the right to be informed and to reply at a later stage dispenses with the obligation or duty to inform at the commission stage.

Lord Lester of Herne Hill, for the appellants, cited many decisions of English and Commonwealth courts and of the European Court of Human Rights. It is sufficient to refer to examples of these. Thus in Lewis v. Heffer [1978] 1 W.L.R. 1061, officers of a constituency political party were suspended pending an inquiry. The Court of Appeal held that the rules of natural justice did not apply since suspension was a holding operation pending inquiry and “The suspension in such a case is merely done by way of good administration:” per Lord Denning M.R., at p. 1073c. Geoffrey Lane L.J. regarded what happened in that case as “an administrative action which by its very nature had to be taken immediately,” at p. 1078g, and said, at pp. 1078-1079:

“In most types of investigation there is in the early stages a point at which action of some sort must be taken and must be taken firmly in order to set the wheels of investigation in motion. Natural justice will seldom if ever at that stage demand that the investigator should act judicially in the sense of having to hear both sides. No one’s livelihood or reputation at that stage is in danger. But the further the proceedings go and the nearer they get to the imposition of a penal sanction or to damaging someone’s reputation or to inflicting financial loss on someone the more necessary it becomes to act judicially, and the greater the importance of observing the maxim audi alteram partem.”

    …

In Wiseman v. Borneman [1971] A.C. 297 the House of Lords held that, where section 28 of the Finance Act 1960 laid down a procedure which enabled the Commissioners of Inland Revenue by a certificate to refer to the tribunal, constituted for the purposes of the section, the question whether there was a prima facie case for proceeding against a taxpayer, natural justice did not require that the taxpayer should have the right to be represented by counsel at the tribunal’s determination of that question or to see the commissioner’s certificate.

Lord Lester of Herne Hill relies on what was said by Lord Reid, at p. 308:

“It is, I think, not entirely irrelevant to have in mind that it is very unusual for there to be a judicial determination of the question whether there is a prima facie case. Every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is a prima facie case, but no one supposes that justice requires that he should first seek the comments of the accused or the defendant on the material before him. So there is nothing inherently unjust in reaching such a decision in the absence of the other party.”

Lord Morris of Borth-y-Gest, at pp. 308 and 309, stressed the importance of observing the rules of natural justice. He added, at p. 309: “The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair.” He continued:

“we were referred to many decisions. I think that it was helpful that we should have been. But ultimately I consider that the decision depends upon whether in the particular circumstances of this case the tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded.”

Lord Guest said, at p. 310:

“It is reasonably clear on the authorities that where a statutory tribunal has been set up to decide final questions affecting parties’ rights and duties, if the statute is silent upon the question, the courts will imply into the statutory provision a rule that the principles of natural justice should be applied.”

Moreover he took the view that a tribunal required to decide a preliminary point, which might affect parties’ rights, like a tribunal entrusted with a final decision ought to be required to apply the rules of natural justice. On this latter point, Lord Wilberforce, at p. 317, took a similar approach to that of Lord Guest. He too stressed that the test was one of fairness in the circumstances.

    …

It is clear from the English and Commonwealth decisions which have been cited that there are many situations in which natural justice does not require that a person must be told of the complaints made against him and given a chance to answer them at the particular stage in question. Essential features leading the courts to this conclusion have included the fact that the investigation is purely preliminary, that there will be a full chance adequately to deal with the complaints later, that the making of the inquiry without observing the audi alteram partem maxim is justified by urgency or administrative necessity, that no penalty or serious damage to reputation is inflicted by proceeding to the next stage without such preliminary notice, that the statutory scheme properly construed excludes such a right to know and to reply at the earlier stage.

But in their Lordships’ opinion there is no absolute rule to this effect even if there is to be, under the procedure, an opportunity to answer the charges later. As Professor de Smith puts it in de Smith’s Judicial Review of Administrative Action, 4th ed. (1980), p. 199:

“Where an act or proposal is only the first step in a sequence of measures which may culminate in a decision detrimental to a person’s interests, the courts will generally decline to accede to that person’s submission that he is entitled to be heard in opposition to this initial act, particularly if he is entitled to be heard at a later stage.” (Emphasis added.)

In considering whether this general practice should be followed the courts should not be bound by rigid rules. It is necessary, as was made clear by Tucker L.J. in Russell v. Duke of Norfolk [1949] 1 All E.R. 109, 118 (as approved by Lord Guest in Wiseman v. Borneman [1971] A.C. 297, 311, and by Lord Morris of Borth-y-Gest in Furnell v. Whangarei High Schools Board [1973] A.C. 660, 679) to have regard to all the circumstances of the case:

“There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.”

Plainly in the present case there would have been an opportunity for the respondent to answer the complaint at a later stage before the tribunal and before the Judicial Committee. That is a pointer in favour of the general practice but it is not conclusive. Section 137 which sets up the three-tier process is silent as to the procedure to be followed at each stage and as a matter of interpretation is not to be construed as necessarily excluding a right to be informed and heard at the first stage. On the contrary its silence on procedures in the absence of other factors indicates, or at least leaves open the possibility, that there may well be circumstances in which fairness requires that the party whose case is to be referred should be told and given a chance to comment. It is not a priori sufficient to say, as the appellants in effect do, that it is accepted that the rules of natural justice apply to the procedure as a whole but they do not have to be followed in any individual stage. The question remains whether fairness requires that the audi alteram partem rule be applied at the commission stage.”

Report (a)

25.  In my view, report (a) was not a report that need be disclosed.  It was merely an internal report made by the Assistant Director, Conduct of the Law Society following complaints and enquiries received by it.  It was an initial report which the Council considered before deciding whether the applicant might be unfit to practise as a result of his conviction.  In contrast with report (b), it was not a report required to be prepared and considered under section 8A.

26.  As was pointed out by Geoffrey Lane LJ in Lewis v Heffer [1978] 1 WLR 1061, 1078H-1079A and Lord Reid in Wiseman v Borneman at p 308E-F, both cited by Lord Slynn in Rees v Crane in the long passage extracted above, in most types of investigation there is in the early stages a point at which action of some sort must be taken to set the wheels of investigation in motion and natural justice will seldom at that stage require that the investigator should act judicially in the sense of having both sides heard, and there is nothing inherently unjust in reaching a decision on whether there is a prima facie case to proceed against a person in his absence.

27.  In Parry-Jones v Law Society [1969] 1 Ch 1, the Law Society upon receiving a complaint required a solicitor to produce for inspection his books of account and other documents pursuant to a power given under the Solicitors’ Accounts Rules 1945.  The Court of Appeal held (at pp 8 & 10) that since the inspection of books and documents pursuant to the rules was neither a judicial nor quasi-judicial inquiry but only an inquiry as to whether or not there was prima facie evidence that the ground of complaint existed, natural justice did not require a solicitor to be told what had instigated the Law Society to make the inquires, which it was entitled to make without instigation, nor entitle him to particulars of the complaint, if any, against him.  The case was referred to with apparent approval by Lord Slynn in Rees v Crane (at p 191E/F).

28.  In my view, nothing in section 8A or other relevant provisions in the Ordinance requires the disclosure of report (a).  Indeed the procedure laid down in section 8A suggests that generally speaking no such disclosure is required because the right to make representations is specifically given at the next stage – ie the stage immediately after the Council has decided that the solicitor may be unfit to practise and that all relevant documents should be obtained from him in order for the Council to look further into the matter.

29.  As far as the contents of report (a) is concerned, essentially it set out the known facts and circumstances of the case and the powers and options open to the Council.  It did not advocate any of the conclusions or decisions eventually reached by the Council that are being challenged.  The applicant takes issue with the correctness of some of the points made in the report.  In my view, they were minor points and did not, whether taken individually or together in light of the entire circumstances, rendered the procedure as a whole under section 8A unfair by reason of the non-disclosure of report (a).

30.  In other words, whether under the statutory scheme laid down in section 8A and other relevant provisions in the Ordinance or on the particular facts of the present case, I am of the view that fairness did not require the disclosure of report (a).

Report (b)

31.  The position with report (b), a report specifically referred to in section 8A(3), is entirely different.  Under that subsection, such a report is one which the Council must consider together with the written representations of the solicitor, before deciding whether in its view, the solicitor is unfit to practise.  And if he is indeed unfit to practise, the Council must then refer the matter to the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel and may decide to suspend him from practice in the meantime.  There is here an express right to make representations by the solicitor which the Council must consider.  This is so even though section 8A(3) is just one of the preliminary stages in the statutory framework whereby a solicitor’s fitness to practise is investigated into and determined.  The subsection expressly provides for a right to be heard even at such a preliminary stage.

32.  This is to be contrasted not only with the earlier stage under section 8A(1) regarding the Council’s reaching the conclusion that a solicitor may be unfit to practise and it is necessary to require production of documents from him, where the subsection is wholly silent on any right to be heard by the solicitor.  It is also to be contrasted with the position under section 9A(1) concerning the investigation of a solicitor’s conduct, where no report or representations by the solicitor are required to be considered by the Council before deciding to refer the matter to the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel for investigation.

33.  Mr Dykes submitted, and I agree, that the consequences of the Council’s decisions under sections 8A(3) and 9A(1) are quite different.  The former consequences are much more serious or potentially serious than the latter.  A decision by the Council that a solicitor is unfit to practise under the former subsection is an actual finding, albeit a provisional one based on the then available materials before the Council and the procedure under section 8A only.  It is an actual finding nonetheless by the Council that the solicitor is unfit to practise.  To a professional person and an officer of the court, such a finding by the governing body of his profession is a serious finding, affecting materially his professional reputation and practice.

34.  Furthermore, such a finding by the Council leads automatically to the next stage of the investigation process comprising not only a mandatory reference to the Tribunal Convenor of the Solicitors Disciplinary Tribunal Panel but also a consideration by the Council whether to suspend the solicitor from practice pending the outcome of the tribunal’s investigation.  Suspension from practice, no matter for how short a period of time, is almost by definition adverse to a professional man’s reputation and practice, and thus his livelihood.  Moreover, by the nature of things, the suspension will likely be for a significant period of time given the procedure involved in the investigation by the disciplinary tribunal.

35.  Thus analysed, it is plain that a decision under section 8A(3) is an important decision even though it is made at a preliminary stage of the investigation.  It is therefore understandable why the statute chooses to give the solicitor a right to make representations at this particular stage. 

36.  By way of contrast, a section 9A(1) decision does not involve the Council making any finding on the conduct of the solicitor.  Still less does it give the Council any power to suspend the solicitor from practice pending the determination of the disciplinary tribunal regarding the conduct in question.

37.  Given the importance of a section 8A(3) decision by the Council on the question of fitness to practise, and therefore the right to make representations – which the Council must consider before making its decision, the question becomes: whether the report made by the person appointed to receive all relevant documents from the solicitor – which the Council must also consider before making its decision – should be disclosed to the solicitor, so as to allow him an opportunity to make representations on the report as well.

38.  Given the statutory right to make representations, the cases cited by Mr Dykes on when, as a matter of procedural fairness, a person affected is entitled to be heard even at a preliminary stage of the investigation are quite irrelevant to that particular question in the present case.  However, their emphasis on fairness remains, in my view, the key to resolving the question that I have just posed.

39.  In my opinion, as a matter of fairness, such a report should be disclosed to the solicitor, so as to allow him an opportunity to make representations on it.  The report is made by the person appointed by the Council to receive the relevant documents from the solicitor and report on his fitness to practise.  The person to be appointed may be an employed person of the Law Society, a solicitor or indeed anyone else.  That is not the main point.  What is important is that he is charged with the responsibility of reporting to the Council, after considering all the documents produced by the solicitor and all other relevant materials and circumstances, on the question of the solicitor’s fitness to practise.  His report is by definition a highly relevant document, which the Council is by law required to consider.

40.  Given the significance of the report, and given the importance of the Council’s decision under section 8A(3) on the solicitor’s fitness to practise and therefore the importance of the solicitor’s right to be heard, in my view, as a matter of fairness as well as a matter of statutory construction, the report should be disclosed to the solicitor for his response.  As Lord Mustill pointed out in the passage from his judgment in Ex parte Doody extracted above, since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interest, fairness will very often require that he is informed of the gist of the case which he has to answer.

41.  The imposition of such a requirement of disclosure will allow the solicitor to make informed representations to the Council regarding his fitness to practise.  Such a requirement will not cause any undue difficulty or inconvenience to the Council, or in any way hamper its decision-making process.  Nor will it affect the quality of the Council’s eventual decision.  Quite to the contrary, with the benefit of the solicitor’s response to the report, the quality of the Council’s decision is likely to be improved.  The disclosure requirement will only lengthen the procedure slightly but will ensure total fairness to the solicitor, whose professional reputation and practice, as well as livelihood, are at stake.

42.  In short, I am of the view that report (b) should have been disclosed.  It was not.  There was therefore a procedural flaw in the decision-making process of the Council under section 8A(3).  It is plain from the materials placed before the Court that the procedural mistake was anything other than deliberate as the Council was merely following its established practice in the past not to disclose such a report to the solicitor in question.  There was nothing personal or deliberate in the present case.

43.  It is, however, well-established that judicial review being discretionary in nature, the court may refuse relief even though there has been a procedural breach of the rules of natural justice, if it is satisfied that it has not resulted in any actual prejudice or risk of prejudice to the applicant: Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653; Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679.

Scope of a section 8A(3) report and disclosure

44.  Before I deal with the question of prejudice, it is necessary to note that report (b) dealt with not only the question of fitness to practise but also that of interim suspension.   Section 8A(3) does not define the scope of the report.  Interim suspension is obviously a possible consequence of a finding of unfit to practise under that subsection.  In my view, the person appointed by the Council to receive all the relevant documents from the solicitor and prepare a report on his fitness to practise is in a good position to report on whether the solicitor should be temporarily suspended if the Council should eventually take the view that he is unfit to practise.  Very often, the two questions are interrelated and involve common factual background or considerations.  Provided that the report is disclosed to the solicitor, I see no real objection to the report dealing with the question of interim suspension as well.  As regards the language used in section 8A, I find no difficulty in construing the report as capable of covering the question of interim suspension as well.  Adopting a purposive construction, I so construe section 8A(3) insofar as it relates to the contents of the report.

45.  A corollary of this interpretation is that what I have said about the importance of allowing the solicitor to make representations on the question of fitness to practise and the need to disclose the report to the solicitor for that purpose applies with equal force to the question of interim suspension.  In other words, I would construe section 8A(3)’s requirement of considering the solicitor’s written representations as covering his representations on interim suspension and, insofar as the report also deals with the question of interim suspension, as imposing a duty to disclose the report to the solicitor for the purpose of enabling him to make such representations on interim suspension.

Prejudice resulting from non-disclosure

46.  On the facts of the present case, given the non-disclosure of report (b), which covered both fitness to practise and interim suspension, the crucial question becomes: whether the non-disclosure has occasioned any actual prejudice or risk of prejudice to the applicant in terms of either issue.

47.  The applicant has set out in his third affirmation what he would have submitted to the Council in response to report (b) if it had been disclosed to him.  His case is that he was prejudiced or potentially prejudiced by not being able to do so.  Mr Dykes reminded the Court during his submission that the Council only reached its decision on the question of fitness to practise by a majority (with two Council members dissenting) and that its decision to temporarily suspend the applicant from practice was only reached by a majority of 7:4, with one abstention.

Complaint from district councillor

48.  In paragraph 5 of the affirmation, the applicant said that he would have told the Council to treat the complaint from a district councillor “with caution, indeed suspicion”.  I do not see this as constituting an actual prejudice or risk of prejudice whether in terms of the Council’s finding on his fitness to practise or decision on interim suspension.  It is plain from the minutes of the Council’s relevant discussion that the gist of the Council’s reasoning was that the applicant had been convicted after trial of the offence of conspiracy to pervert the course of justice, an offence “which went against the fundamental principles of practice of the law”.  Whether anybody made any complaints to the Council, or the motives behind such complaints, merely served as the backdrop to the Council’s investigation and were quite irrelevant to its ultimate finding on the applicant’s fitness to practise and decision on interim suspension in light of his conviction.  Indeed the Secretary General said so in terms in his letter dated 21 November 2006 to the applicant’s solicitors.

Enquiries by CSD

49.  Paragraphs 7 to 9 of the affirmation dealt with matters that the applicant would have raised with the Council if he had been supplied with a copy of report (b) in relation to the question of interim suspension.

50.  First, the applicant complained that he was not informed about the “enquiries” by the Correctional Services Department (CSD) that he was still making legal visits (to the very prison where he had been imprisoned prior to getting bail) although he was a convicted person.  He pointed out that paragraph 19 of report (b) said this situation might be thought to be “bizarre”.  The applicant said if he had been given the opportunity, he would have asked for the basis on which such routine enquiries from the CSD about his right to practise while on bail pending appeal should be interpreted by the Council as “provocation [to the CSD] arising from a perception that the situation is bizarre and would have questioned whether that was true at all”.  He also said he would have considered ways to address the Council’s concerns arising from the CSD’s enquiries, including possibly an undertaking not to make prison visits.

51.  I see nothing wrong with the report saying that the continuing practice of law, including the paying of legal visits to his former fellow prisoners, by the applicant, a convicted person for the offence of conspiracy to pervert the course of justice, whilst on bail pending appeal, might be perceived by some, including the CSD, to be “bizarre”.  It was merely a matter of possible public perception that the Council was entitled to take into account in any event.  There would be absolute no point to argue with the Council about whether the public in general or the CSD did, might or should perceive his continuing practice whilst on bail pending appeal in such a way.

52.  But much more importantly, the Council’s majority decision on interim suspension did not turn on the possible public perception aspect of the case.  Rather, according to the minutes, what was important was the undeniable fact that the applicant had been convicted of an offence striking at the heart of the system by which law and order was enforced.  Having determined that the applicant was unfit to practise, it would be “illogical”, it was considered, to allow him to continue to do so pending the final determination by the disciplinary tribunal.  The Law Society’s duty as the regulatory body for solicitors meant that a solicitor whom it considered unfit to continue to practise because of the nature of the offence for which he was convicted should be suspended temporarily under section 8A(3), it was considered.  Any representations on the CSD’s enquiries would have been wholly irrelevant to the majority’s reasoning.

53.  Likewise, the question of whether the applicant has been unfairly deprived of the opportunity to address any possible concerns over his paying legal visits is really neither here nor there.  The seriousness of the situation, as perceived by the majority of the Council, simply went much beyond the question of making legal visits.

Embarrassment to the Law Society

54.  Paragraph 8 of the affirmation dealt with the question of “embarrassment” to the Law Society and argued that it was not the proper basis to proceed.  It was a matter raised in report (a) (para 23), but not report (b).  In any event, as described, the majority did not proceed on the footing that suspending the applicant was required in order to avoid causing embarrassment to the Law Society.  It is a wholly non-point.

Lack of opportunity to make representations on suspension

55.  The same paragraph also said that if the Council had made known to him its intention to suspend him from practice, he would have put forward submissions from clients who considered that it was in their best interests for him to continue acting for them.

56.  I reject this as being a matter of actual or potential prejudice.  First, the Secretary General’s letter dated 12 October 2006 did specifically draw the applicant’s attention to the consequences under section 8A(3) if the Council were to consider him unfit to practise.  On a fair reading of the letter, which was written to a practising solicitor with many years experience, it did more than adequately alert the applicant to the possibility of suspension following a finding of unfit to practise by the Council and invite relevant representations from him.  As Mr Fung SC, leading Mr Leung, has submitted to the Court on behalf of the Law Society at the hearing, paragraphs 10 to 12 of the applicant’s representations made to the Council were indeed matters going to the question of interim suspension.

57.  Second and in any event more importantly, the applicant did by solicitors make full representations on interim suspension to the Council by letter dated 11 November 2006 addressed to the Secretary General after he was informed of the decision to suspend him.  After receipt of his representations, the Council met to discuss them and eventually decided to maintain its earlier decision on interim suspension.  The applicant was informed of the Council’s decision by letter dated 15 November 2006.  The important point here is that the Council did not refuse or otherwise fail to consider the representations and review its decision – that is not challenged in the form 86A. That it decided ultimately to maintain its decision after considering the representations does not detract from the point that the applicant did have the opportunity to make representations to the Council on interim suspension which were duly considered.  That the applicant does not agree with the decision made by the Council after review is neither here not there for the purposes of the current discussion. 

58.  As Lord Mustill has pointed out in Ex parte Doody, supra, fairness often  requires that “a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both” (emphasis added).  Here, in the context of considering whether any actual prejudice or risk of prejudice has been suffered by the applicant arising from the non-disclosure of report (b), I am of the view that any actual prejudice or risk of prejudice has been removed by the subsequent opportunity that the applicant has in fact had in addressing the Council on the question of interim suspension by written submissions.

Suspension “inevitable”

59.  Finally, paragraph 9 of the applicant’s affirmation complained that paragraph 17 of report (b) seems to give the impression to the Council that if it should conclude (as it did) that he was unfit to practise, it should “inevitably’ and “immediately” suspend him.  He maintained that if he had known about that suggestion, he would have made representations to the effect that the power to suspend is discretionary and should be considered separately, and he would have brought to the Council’s attention the decision of R v Law Society of British Columbia, Ex parte MacKrow (1968) 68 DLR (2d) 179.

60.  I do not agree paragraph 17 would give any such impression to a reasonable reader, particularly to the members of the Council.  The paragraph reads:

“ The Council is further requested to consider under section 8A(3) whether to suspend [the applicant] from practice pending a decision of the Solicitors Disciplinary Tribunal.  In the past, where section 8A(3) was put into effect, Council had inevitably resolved to suspend the solicitors immediately.”

61.  In my view, that paragraph did not lump together or otherwise mix up the questions of fitness to practise and interim suspension.  Quite to the contrary, paragraph 17 and the preceding paragraphs in the report dealt with the questions of fitness to practise, reference to the Tribunal Convenor and interim suspension separately in a logical sequence.

62.  Paragraph 17 merely pointed out the historical fact that in the past, in all cases where a solicitor was found by the Council to be unfit, it also ordered interim suspension.  It did not suggest that interim suspension was automatic.  This was plain from the next two paragraphs (paras 18 & 19), which pointed out various factors to be considered by the Council – some obviously in favour of the applicant – in deciding whether to impose an interim suspension.  I wholly fail to see how members of the Council, all solicitors, would have misunderstood the correct position in law by anything said in those paragraphs.  That it never happened is also plain from the relevant minutes of the Council’s discussion.  The two issues were separately discussed and voted on – one after another.  Different majorities voted in favour of the two respective decisions.  As regards interim suspension, four members voted against it. There was simply nothing “automatic” or “inevitable” regarding interim suspension.

63.  Furthermore, the Secretary General’s letter dated 15 November 2006 written in response to the applicant’s written representations on interim suspension specifically pointed out in paragraph 8 that: “Section 8A of the Ordinance has been invoked in the past and in all cases the solicitor was suspended.  Each case is considered on its own merits.” (my emphasis)

64.  There is nothing in the suggested prejudice or risk of prejudice arising from paragraph 17 of the report.

Ex parte MacKrow

65.  As regards the Canadian case of Ex parte MacKrow that the applicant said he would have brought to the attention of the Council, I note that it was not referred to in his detailed written representations on interim suspension at all.  But more importantly, the case, which contained an obiter dictum by the British Columbia Court of Appeal (at p 184) that it would be imprudent to disbar a solicitor convicted on two counts of fraud before the normal right of appeal had been exhausted or expired, is wholly distinguishable from the present case. 

66.  In that case, Robertson JA made his obiter remark in the course of dealing with a summary procedure to suspend or disbar a solicitor convicted of an indictable offence (see p 181).  Disbarment, as opposed to suspension, which could also be summarily ordered under the relevant statute, was permanent.  It is therefore not difficult to understand why the learned judge took the view that despite the presence of jurisdiction to do so, it would be imprudent, in the absence of special circumstances, to move to disbar a lawyer before the normal right of appeal had been exhausted or expired.  It is noteworthy that the judge restricted his observation to disbarment and did not extend it to cover suspension – which is, in most if not all cases, definite in period and may include an interim suspension.

67.  Section 8A(3) is only concerned with an interim suspension from practice pending the determination by the disciplinary tribunal.  No permanent striking off from the roll of solicitors is in question.  The obiter observation by Robertson JA in Ex parte MacKrow simply does not help.

68.  The lack of an opportunity to bring the case to the Council’s attention did not, in my view, result in any actual prejudice or risk of prejudice to the applicant.

No actual prejudice or risk of prejudice

69.  Those are the supposed prejudices or risks of prejudice that the applicant says he has suffered as a result of the non-disclosure of report (b).  I find nothing in them.

70.  As mentioned, Mr Dykes reminded the Court that the resolution on suspension was only carried by a majority vote of 7:4, with one abstention.  That might be a relevant and even material consideration in some other cases.  But on the facts of the present case, and given the sort of so-called prejudices or risks of prejudice that the applicant has managed to come up with, I do not agree that the outcome might, would or could have been any different at all if there had been timeous disclosure and the applicant had been able to raise all the matters he said in his affirmation he would have raised.

71.  Looking at the picture broadly, the applicant, a solicitor and an officer of the court practising mainly in criminal and civil litigations, was convicted after a lengthy trial of the offence of conspiracy to pervert the course of justice, which struck at the heart of the administration of justice.  He was sentenced to four years imprisonment, which prima facie evidenced the gravity of the offence in the eyes of the sentencing court.  That he was appealing against his conviction and sentence did not alter the fact that he was a convicted person unless and until his conviction should be overturned on appeal.  And unless and until that should happen, the conviction remained, and still remains, a valid conviction by a competent court of law after a full trial lasting 56 days, which everyone, including the Council, is entitled to act on.  Tang JA, who granted the applicant bail pending appeal, was not prepared to proceed on the basis, despite contention to the contrary, that he had good prospects of success in his appeal, but only a reasonably arguable case on appeal.  It was, given the complexity of the case, in reality quite impossible and indeed inappropriate for the Council, to independently assess the prospects of success.  Given those facts, all other considerations – including the adverse effect of an interim suspension on the applicant’s practice, which the Council took into account – would pale into insignificance. 

72.  In those circumstances, it is difficult to fault the majority’s conclusion that the better course to take was to suspend the applicant from practice pending the determination of the disciplinary tribunal.  And more importantly, it is difficult to see how the majority members of Council would have changed their minds if they have had the benefit of considering the further matters that the applicant now says he would have brought to the attention of the Council if there had been disclosure of report (b).  That there were four members who voted against interim suspension and one abstention is quite insufficient to make any possible difference to the eventual result.   

73.  In my view, the applicant’s contention on prejudice has grossly under-estimated the seriousness of his conviction and the nature of the offence involved on the question of interim suspension under section 8A(3).

Relief for non-disclosure refused

74.  I am afraid this is one of those relatively rare cases where a breach of the procedural requirements of natural justice has not resulted in any actual prejudice or risk of prejudice to the complainant whatsoever.  As I have explained in Chu Ping Tak, supra, at pp 698-699, paras 59 to 61, this is a most important factor to take into account in deciding whether to exercise the court’s discretion on granting relief, not forgetting that the very fact of a procedural breach is also a material consideration.  Having considered all relevant circumstances, I am firmly of the view that despite the procedural breach regarding non-disclosure of report (b), as a matter of exercise of discretion, relief should be refused.

Opportunity to make representations on interim suspension

75.  The above discussion also disposes of the applicant’s general argument that he has not been afforded an adequate opportunity to address the Council on interim suspension.  As mentioned, whatever deficiency (if any) in the letter of 12 October 2006 inviting representations on fitness to practice has been cured by the fact that the applicant did make full representations on interim suspension by letter dated 11 November 2006.  They were considered and rejected on their merits on 15 November 2006. 

76.  As regards the non-disclosure of report (b) insofar as it dealt with interim suspension, for reasons I have just discussed in some detail, I am of the view that no actual prejudice or risk of prejudice has resulted from the non-disclosure and the discretion should be exercised against granting any relief.  I will not repeat myself here.

Prospects of success on appeal

77.  The applicant contends that the Council has refused or failed to assess his chances of success on appeal independently and that has flawed its decisions on fitness to practise and/or interim suspension.

78.  I disagree.  I do not consider the Council’s refusal to independently assess the chances of success of the appeal, on the facts of the present case, has rendered the decisions under section 8A Wednesbury unreasonable or otherwise liable to challenge.  I will not repeat what I have said above on this aspect of the case.   

79.  In short, I reject this ground of judicial review.

Wednesbury unreasonableness

80.  Then it is said that the decisions on fitness to practise and suspension are Wednesbury unreasonable on the facts, particularly given the prospects of success on appeal.

81.  For reasons that I have already given, which I will not repeat, I have no hesitation in rejecting this ground. 

82.  All I would add is that the comparison with the situation of Mr Kevin Egan, a co-accused of the applicant in the District Court trial, is wholly inapt. 

83.  The short point made by the applicant is that notwithstanding his conviction, Mr Egan, who has also been granted bail, has been allowed by the Bar Council to continue practising pending his appeal.

84.  It must be rejected.  First, Mr Egan was convicted of a much less serious offence (attempting to disclose information about the identity of a participant in the witness protection programme) and was accordingly sentenced to a much shorter period of imprisonment (two and a half years imprisonment). 

85.  Second, the practice of a litigation solicitor/sole proprietor  is different from that of a member of the criminal bar. 

86.  Third and more importantly, as Mr Dykes – the current Bar chairman – has fairly reminded the Court, there is in the Ordinance simply no equivalent or similar power on the part of the Bar Council to suspend a member convicted of a criminal offence from practice pending the holding of a disciplinary inquiry: see sections 34 to 39 of the Ordinance. 

87.  Fourth, I do not agree with the underlying premise of the suggested comparison with the case of Mr Egan that the question of Wednesbury unreasonableness may be decided by reference to what the Bar Council has chosen to do or not to do.

Exclusion of a Council member from discussions

88.  The form 86A has also mentioned one other ground, namely the exclusion of one member of the Council from the relevant discussions for the reason that he acted for the applicant in the criminal trial and was also acting for him in his appeal.

89.  Mr Dykes did not pursue the ground at the hearing.  I need say no more about it.

Conclusion on challenge against decisions made under section 8A

90.  In conclusion, I refuse the application for judicial review of the decisions made under section 8A.

Refusal of the 2007 practising certificate application

91.  Turning to the decision not to issue to the applicant a practising certificate for the year 2007, the relevant statutory provisions relating to the issue of practising certificates read as follows:

The Ordinance

“6 (1)  The Society, on application in writing by a solicitor in the month of November in any year in a form approved by the Council and on payment of such fee as may be so prescribed, shall, subject to subsection (3), issue to the applicant a practising certificate as a solicitor for the period of one calendar year from 1 January next following the date of the application.

…

(4)  Notwithstanding subsection (1), the Society may, upon such conditions as it thinks fit, permit an application for a practising certificate to be made under this subsection at any time and upon such application may issue to the applicant a practising certificate for any period not exceeding one calendar year and ending on 31 December in the year in which it is issued.

(5)    Notwithstanding subsection (1), the Society may-

(a)      refuse to issue a practising certificate on such grounds as may be prescribed by the Council;

…

(9)  Where the Society, in the exercise of the powers conferred on it under subsection (5) or (5A), refuses to issue a practising certificate, issues a certificate subject to conditions, amends a certificate by adding conditions or suspends or cancels a certificate, the solicitor may appeal to the Chief Judge against the decision of the Society within 1 month of being notified of it.

…

(11)  On an appeal to the Chief Judge under subsection (9) or (10) he may-

(a)      affirm the decision of the Society or Council;

(b)     direct the Society to issue a practising certificate to the appellant free from conditions or subject to such conditions as he thinks fit; or (c) remit the matter to the Society or Council for reconsideration with such directions as he thinks fit.

(12)  Where the Chief Judge affirms a decision of the Society or Council under paragraph (a) of subsection (11) or directs the Society to issue a practising certificate under paragraph (b) of that subsection, the decision of the Chief Judge shall be final.”

The Refusal Rules

“2.    For the purposes of section 6(5)(a) of the Ordinance, the grounds on which the Society may refuse to issue a practising certificate are-

(a)      the applicant has failed or refused to give to the Society a satisfactory explanation of any conduct which is, in the opinion of the Society, unbecoming of a solicitor;

(b) the applicant is, by reason of his financial position, mental capacity or otherwise, unfit to practise as a solicitor.

3.             The Society shall, before refusing to issue a practising certificate, give notice to the applicant that consideration is being given to such refusal and inviting the applicant within 14 days to make such representations in writing to the Society as he thinks fit.

4.             The Society shall, if it refuses to issue a practising certificate, state its reasons in writing to the applicant.”

92.  The applicant relies on a number of grounds in support of his application for judicial review. 

93.  In short, the applicant argues that as the refusal was based on the Council’s finding made under section 8A(3) and as that finding is open to challenge for reasons that I have discussed at length above, the refusal is likewise flawed. 

94.  The applicant also argues that non-disclosure of report (c), another report dated 3 November 2006 prepared by the Assistant Director, Conduct and considered by the Council before it took the decision to refuse the applicant’s application for a practising certificate for 2007, has rendered the procedure unfair. 

95.  The applicant has also contended in the form 86A that the exclusion of his solicitor, a member of the Council, from the relevant discussion rendered the Council not properly constituted – that was not pursued by Mr Dykes at the hearing and I need not mention it anymore.

96.  With the leave of the Court given at the hearing, the applicant has through Mr Dykes advanced two further grounds going to the vires of the Refusal Rules.  But in view of the fact that these grounds were first raised only days before the hearing and the Law Society simply had no reasonable time to research into the issues raised, which could have far-reaching implications, and file further evidence in response where appropriate, the Court has directed that hearing of these new matters be adjourned to a date to be fixed, if it should become necessary to hear them.  The rider was added because depending on the Court’s decisions on the other grounds of judicial review relied on in relation to the decisions made under section 8A(3) and/or the Refusal Rules, it might not be necessary to hold the further hearing.

97.  As it has now happened, I have come to the conclusion that the applicant’s challenge against the decisions made under section 8A has wholly failed.  That means, amongst other things, the decision to suspend the applicant from practice pending the determination by the disciplinary tribunal shall stand.  That being the case, there was (and still is) no question of the Council issuing to the applicant a practising certificate for 2007. 

98.  In other words, regardless of whether the Council’s decision to refuse to issue the certificate was flawed by reason of any one or more of the grounds relied on by the applicant, the actual decision itself of refusing to issue the certificate must have been correct – there could have been no other possible decision.  In the circumstances, put at the lowest, relief would have to be refused as a matter of exercise of the Court’s discretion.  In other words, the challenge against the decision refusing his application for a practising certificate for 2007 is, by reason of my conclusion relating to the decisions made under section 8A, wholly academic. 

99.  In the absence of exceptional circumstances – and none has been suggested at the hearing, in the exercise of my discretion, I refuse to entertain the academic challenge by holding a further hearing on the vires grounds.  See Leung v Secretary for Justice [2006] 4 HKLRD 211, 225-228, para 28.

100.  For that reason also, I do not propose to deal with the grounds that have been argued at the hearing except to say that they are in any event rejected for the following reasons. 

101.  Very briefly, first, even on the assumption that the Court should as a matter of discretion entertain the challenge notwithstanding the existence of an alternative remedy by way of an appeal to the Chief Judge of the High Court (s 6(9)), as the challenge against the decisions made under section 8A has failed, the challenge against the decision made under the Refusal Rules must also fail insofar as it is pegged to the former challenge. 

102.  Second, even on the assumption that report (c) should have been disclosed, since the supposed prejudices or risks of prejudice relied on by the applicant were in fact the same as that mentioned in relation to report (b) (see paras 5, 7, 8 and 10 of the third affirmation of the applicant – para 6 relating to the right of appeal has no relevance to the decision made under the Refusal Rules), for the same reasons that I have given, I reject them.

103.  I would only add that the disciplinary tribunal may or may not come to a determination on the applicant’s fitness to practise during the year 2007.  If it does and the determination is such that the applicant should feel he has a reason to re-apply for a practising certificate for 2007, that will be a new application under section 6(4) calling for a fresh decision by the Council based on the then circumstances.  All this will have nothing to do with whether the decision that the Council made on 16 November 2006 to refuse his application for a practising certificate for 2007 was the only possible decision under the then prevailing circumstances.

104.  In short, the challenge against that decision also fails.

Outcome

105.  In conclusion, the application for judicial review is dismissed. 

106.  I make an order nisi that the costs of the proceedings be paid by the applicant to the respondent to be taxed if not agreed.  I also give a certificate for two counsel.  Unless an application is made to vary the order nisi within 14 days after this judgment is handed down, the same shall become absolute upon the expiry of the 14-day period.

107.  I thank counsel for their assistance.