A SOLICITOR v. LAW SOCIETY OF HONG KONG

CACV372/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 372 OF 2004

(ON APPEAL FROM THE FINDINGS OF THE SOLICITORS
DISCIPLINARY TRIBUNAL, DATED 17^TH DAY OF AUGUST 2004,
AND ORDER OF THE SOLICITORS DISCIPLINARY TRIBUNAL,
DATED 23^RD OF NOVEMBER 2004)

_____________________________

______________

J U D G M E N T

______________

Hon Ma CJHC :

1.  Following the judgment of this court on 26 October 2005 (the reasons for the judgment were handed down on 3 November 2005), the Respondent (the Law Society of Hong Kong) has applied for leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap.484.  Some 10 questions are identified in the Notice of Motion seeking leave.

2.  The majority of the questions relate to what was a crucial aspect of the appeal, namely, the Appellant Solicitor's reliance on counsel's advice in refusing to allow an inspection to take place by inspectors appointed under section 8AA of the Legal Practitioners Ordinance, Cap.159 (“the Ordinance”).  In seeking leave, the Respondent questions whether this court was correct in taking the view that the Appellant had acted reasonably, honestly and in good faith in following counsel's advice.  It is here worth observing that the Solicitors Disciplinary Tribunal had also been of the view that the Appellant had an honest belief based on counsel's advice.  All these were findings of fact dependent on the particular circumstances of the case.  Similarly for the criticism that on the facts of the present case, something more than a nominal fine should have been imposed and that this court was wrong to interfere with the conclusions of the Solicitors Disciplinary Tribunal (although Mr Coleman did submit this morning that our decision was sufficiently extraordinary to justify leave being granted on the “otherwise” ground).  On analysis, many of the questions said to involve points of great general or public importance involve only matters of degree and assessment of the facts of the case.

3.  One or more of the questions go to the point whether reliance on counsel's advice could absolve a solicitor from what otherwise would be his duties under the Ordinance.  It is important here to bear in mind that the appeal did not involve a challenge by the Appellant to the charges of misconduct made against him, only to the penalties and costs order imposed.  The question whether or not reliance on counsel's advice can constitute a defence to a charge of misconduct did not arise in the present appeal (although the court did say, obiter, that in certain circumstances, it could amount to a defence to a charge of misconduct such as that faced by the Appellant).

4.  In my view, none of the questions raised by the Respondent involves points of great general or public importance or if they do, the law is settled.  For example, it is asked whether the imposition of a minimal or nominal fine was a factor that was relevant to costs.  One would have thought that it clearly was.  The same can be said of the argument questioning whether the Respondent should be made to pay the costs of an appeal relating to penalty and costs where it has in effect lost the appeal.  This is notwithstanding the reference this morning to a decision of the Queen's Bench Division in England relating to the question of costs before a disciplinary tribunal.  This is the case of Paul Michael Baxendale-Walker v The Law Society [2006] EWHC 643.  It seems to me that irrespective of what might be the position of costs in the Solicitors Disciplinary Tribunal itself, at the appeal stage (with which we are concerned), the normal principle as to costs will apply.  Before us, the Respondent had adopted a stance that was not upheld at the end of the day.

5.  In my view, the application for leave should be dismissed.

Hon Le Pichon JA :

6.  I agree.

Hon Suffiad J :

7.  I agree.