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CACV 302/2002

IN THE HIGH COURT OF THE

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HONG KONG SPECIAL ADMINISTRATIVE REGION

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COURT OF APPEAL
CIVIL APPEAL NO 302 OF 2002

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(ON APPEAL FROM THE FINDINGS OF THE SOLICITORS

DISCIPLINARY TRIBUNAL DATED THE 26TH DAY OF MARCH 2002
AND ORDER AND FINDINGS OF THE SOLICITORS DISCIPLINARY
TRIBUNAL DATED THE 27TH DAY OF JUNE 2002)
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BETWEEN
A SOLICITOR

Appellant
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and
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THE LAW SOCIETY OF HONG KONG

Respondent

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Before : Hon Woo VP, Cheung JA and Burrell J

Dates of Hearing : 12 December 2002, 13 and 14 January 2004
Date of Judgment : 18 February 2004

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JUDGMENT
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Hon Woo VP:

Introduction

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This is an appeal by a solicitor against the Ruling of the

Solicitors Disciplinary Tribunal (The Tribunal) made on 26 March 2002

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and the Order that it made on 27 June 2002. The Ruling made findings that
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the appellant was guilty of a number of complaints launched by the Law

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Society of Hong Kong against him. By its Order of 27 June 2002, the
Tribunal imposed penalties and censures on the appellant for the
complaints that it found had been proven and ordered that the costs of the
proceedings be borne by the appellant on a full indemnity basis.

Title of appeal

In this appeal, the Tribunal was named as the 1st Respondent

whereas the Law Society the 2nd Respondent. Section 13(2) of the Legal

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Practitioners Ordinance, Cap 159 (LPO) provides that, in any appeal

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against any order made by a Solicitors Disciplinary Tribunal, the Law

Society shall be the respondent. At the hearing, with the consent of the

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parties, we ordered the name of the Tribunal to be struck out from being a
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respondent in this appeal.

Facts of the complaints found proven

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The complaints were directed at the conduct of the appellant

when he and his firm of which he was the sole proprietor were handling
judicial review proceedings, HCAL 47/97, for Mr Akram. Mr Akrams

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application was to seek the quashing of a deportation order dated 22

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December 1995 made against him by the Secretary for Security. Ms Carol
Fung of counsel was retained by the appellants firm for conducting the

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proceedings for Mr Akram. On 5 May 1998, leave was granted by Yeung J

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(as he then was) to Mr Akram to apply for judicial review, and it was
ordered that a Notice of Motion for judicial review was to be filed within

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14 days. However, there was delay in the filing of the Notice of Motion
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and as a result Mr Akram was arrested and put into custody at Victoria
Prison. The complaints related to how the appellant handled the necessary

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steps of the case for Mr Akram.

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A
B

The particulars and factual basis of the complaints made

against the appellant that were found proven are as follows:

(1)

Failing to file a Notice of Motion in HCAL 47/97 whether

within the period required by the court or at all basis for

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(2)

complaints A(i) and B(i).

Purporting to withdraw from acting for Mr Akram without

obtaining the leave of the court and without giving Mr Akram

reasonable notice in writing with an explanation basis for

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complaints A(ii) and B(ii).

(3)

Mr Akram dated 24 August 1998 (Affirmation) knowing

that it was improperly affirmed in that he falsely stated, by

signing the Affirmation as the administering solicitor, that he

had administered Mr Akrams affirmation at Victoria Prison

on 24 August 1998 basis for complaints A(iii) and B(iii).

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Deliberately misleading the court in filing the Affirmation of

(4)

Filing in HCAL 47/97 an affirmation which was not

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sufficient since it was affirmed before the solicitor acting for

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the party on whose behalf the Affirmation was to be used

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(5)

basis for complaints A(iv), B(iv) and C(ii).

Failing to take necessary and proper steps to ensure that Mr

Akram knew or understood the contents of the Affirmation

and, in particular, to ensure that the contents of the

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Affirmation were truly, distinctly and audibly explained to Mr

Akram prior to his affirmation at Victoria Prison on 24 August

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1998; and since Mr Akram was not in his presence when

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affirming the Affirmation, the appellant could not have

ascertained whether or not Mr Akram knew that he was about

to affirm to the truth of the contents of the Affirmation basis

for complaints B(v) and C(i).

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Complaint A was for breach of Rules 2(c), (e) and (f) of the

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Solicitors Practice Rules, which provide as follows:

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General Conduct
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A solicitor shall not, in the course of practicing as a solicitor, do or permit

to be done on his behalf anything which compromises or impairs or is
likely to compromise or impair

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(c)

His duty to act in the best interests of his client;

(e)

A proper standard of work;

(f)

His duty to the Court.

Complaint B was for breach of Principle 6.01 of the Hong

Kong Solicitors Guide to Professional Conduct (the Guide), which reads

as follows:
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Duty to act competently.

(a) A solicitor owes his client a duty to be competent to perform any legal
services undertaken on the clients behalf.

(b) A solicitor should serve his client in a conscientious, diligent, prompt

and efficient manner.

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Complaint C was for breach of Principles 13.08 and 13.09 of

the Guide, which are as follows:

13.08 Oaths, Affirmations and Declarations.

When administering Oaths and Affirmations or taking declarations, a

solicitor is under a duty to ascertain:

(a)

That the deponent is in his presence, if necessary by checking the

identity card or other document of identity and if the document has

already been signed, to include in the oath or affirmation or

declaration, a statement that the signature is that of the deponent;

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That the deponent is apparently competent to depose to the

affidavit or declaration;

(c)

That the deponent knows he is about to swear, affirm or declare to

the truth of the statement; and

(d)

That the exhibits, if any, are the documents referred to.

A solicitor must not administer Oaths and Affirmations nor take

declarations in proceedings or matters in which he or his firm is acting for
any of the parties, or is otherwise interested.

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(b)

13.09 When an Oath must not be administered.

The Tribunal found that the facts under para 4(1) above were

not sufficient to establish that the appellant was in breach of Rule 2(f) of
the Solicitors Practice Rules, and it also dismissed a complaint for the
appellants failure to advise Mr Akram to apply for legal aid, which was

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complaint B(vi).

Penalties and costs

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Apart from censuring the applicant for each of the proven

complaints the Tribunal ordered him to pay penalties totalling $175,000 to

the general revenue, comprising $100,000 as penalty for complaints A(i)

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and B(i), $25,000 for complaints A(ii) and B(ii) and $50,000 for
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complaints B(v) and C(i). Apart from a censure, no penalty was imposed
on complaints A(iii) and B(iii), and A(iv), B(iv) and C(ii). The Tribunal

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also ordered the appellant to pay the costs of the proceedings on a full
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indemnity basis.

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Grounds of appeal
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On behalf of the appellant, a number of grounds of appeal

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have been raised. Mr Allan addressed us on all the grounds save those in
various aspects of costs on which Mr Johannes Chan SC focused.
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Reversal of burden of proof ground 1

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Ground 1 contends that the Tribunal reversed the burden of

proof onto the appellant. The statements made by the Tribunal that are
relied on by Mr Allan as a plank to launch this attack are as follows:
(a) Although it is the Respondents [appellants] right to choose not to
give evidence, it would have been of assistance to the Tribunal to
have heard his version of the facts.

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(b) The proceedings could have been considerably shortened if the

Respondent [appellant] had admitted complaints A(i) and B(i), A(ii)
and B(ii), A(iii) and B(iii) and A(iv), B(iv) and C(ii) to which there
was no real defence.

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Mr Allan referred us to Fu Kin Chi v The Secretary for Justice

(1998) 1 HKC 411 and submitted that it is the appellants right to elect not
to give evidence. At p 419D of the report, Li CJ stated:
At common law, a person has the privilege from being compelled to
answer questions, the answers to which might tend to expose him to any
punishment or penalty (including disciplinary one) and this privilege is
capable of application in non-judicial proceedings. That this is the
position at common law was accepted by Mr. Robert Tang SC who
appeared for the Respondent and was clearly established.

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Mr Allan argued that the Tribunal ought to have held that no adverse
inference could be drawn from the fact of the appellant electing not to give
evidence; the appellant was entitled to contest the case without giving
evidence as it was his fundamental right to test the evidence of the main

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witness Mr Akram. Doubtless, the appellant has a right to remain silent

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and not to incriminate himself, and he, as anyone else, is entitled to test the
evidence of the case against him. The statement in (a) (under para 11
above) clearly demonstrates that the Tribunal well recognised the right not
to give evidence. What the Tribunal expressed was that they could have

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been helped in making their decision if the appellant had given evidence.
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The statement in (b) does not have the effect, as argued by Mr Allan, of
reversing the burden of proof or any semblance of it. Nor does it affect the

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appellants right to test the evidence of the case against him. It was made
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when the Tribunal was dealing with costs. The Tribunal merely stated that
had there been admission of the complaints referred to in statement (b),

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then costs could have been saved. It was of the view that there was no real
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defence to those complaints as a basis for making the order for costs as it
did. It cannot fairly be said that the Tribunal had drawn adverse inference

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against the appellant from his silence in making the findings of fact in its
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Ruling of 26 March 2002.

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In this regard, it is instructive to the observations of Lord

Hoffmann NPJ in Li Defan & Anr v HKSAR [2002] 1 HKLRD 527, where
the defendant had paid a large sum of money to a bank officer and had
given a mixed statement to the ICAC. The prosecution had no direct
evidence as to why the money had been paid. The defendant did not give
evidence at the trial. At p 540, Lord Hoffmann said:
They [the items of evidence] invited the inference that the payment was
an inducement or reward, if not for doing something specially favourable
to Mr Fan, then at least for forbearing to do anything unfavourable. This
evidence plainly called for some explanation of why the money had been
paid and the appellants, in offering explanations to the ICAC, were well
aware of this. In the circumstances I consider that the judge, having
rejected those explanations as a pack of lies, was perfectly entitled to
regard the failure of the accused to give any explanation on oath as
strengthening the inference to be drawn from the prosecution case.

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In our view, the rule applies similarly, if not with more force,

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to a case of disciplinary inquiry as in a criminal case. The appellant offered

explanations by way of his letter dated 2 June 1999 addressed to the Law
Society and his affirmation dated 20 December 1999, but he chose not to
give evidence so as to avoid being cross-examined. Immediately following

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the last sentence of statement (a) cited above, the Tribunal continued:
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As it is, we must proceed upon the basis of the evidence before us.

The evidence against the appellant was already very strong and his electing
not to testify would, if necessary, in the circumstances of this case entitle
the Tribunal to draw stronger inferences from that evidence against him.
Even that would not be a reversal of the burden of proof as contended by

Mr Allan.

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Ground 1 has no merit.

Challenge on facts grounds 2, 3, 6 and 8

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Grounds 2, 3, 6 and 8 all relate to facts, although some of them

are worded as the Tribunal had erred in law. Before dealing with each of
these grounds specifically, it is important to bear in mind that the functions

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and powers of an appellate court on findings of fact made by a tribunal or a

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trial court are very limited.

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The law regarding appeals against decisions of questions of

fact is well settled. The principles can be found in para 59/1/48 of Hong
Kong Civil Procedure, 2004, Vol 1 and a large number of English and

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Hong Kong cases, including The Julia (1860) 14 Moo. PC 210 at 235 per
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Lord Kingsdown, SS Hontestroom v SS Sangaporack [1927] AC 37 at 47

per Lord Sumner, and Benmax v Austin Motor Co Ltd [1995] AC 370 at

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375 per Lord Reid; Lobo v Kripalani [1988] 2 HKLRD 325 at 327J per
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Godfrey JA, Carrian Holdings Limited (In liquidation) v Crestflame

Estates Limited & Ors, CACV 205/1993 (30 Aug 1994, unreported) at pp
16-17 per Power VP, Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999]
1 HKC 657, at 663D, per Godfrey JA, Shiek Shin Jiu v Mak Shiu Kei,

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Johnny and Anr, CACV 174/1997 (13 April 1999, unreported) at p 4K-P
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per Godfrey JA, and Chung Fai Engineering Co v Maxwell Engineering

Co Ltd, CACV 981/2000 (15 June 2001, unreported) at para 32 per Mayo

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VP.
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The principles and the rationale were recently reiterated in

Ting Kwok Keung v Tam Dick Yuen & Ors [2002] 1 HKC 601, where
Bokhary PJ said at 613E:
41. On an appeal against a judgment of a judge sitting alone Lord
Sankey LC said in Powell v Streatham Manor Nursing Home at p 249
the Court of Appeal will not set aside the judgment unless the appellant
satisfies the Court that the judge was wrong and that his decision ought to
have been the other way. I would reinforce that by respectfully adopting
what Lord Hoffmann said in Biogen Inc v Medeva plc [1997] RPC 1 at 45
and repeated in Piglowska v Piglowski at p 1372D-F:
The need for appellate caution in reversing the trial judges
evaluation of the facts is based upon much more solid grounds than
professional courtesy. It is because specific findings of fact, even
by the most meticulous judge, are inherently an incomplete
statement of the impression which was made upon him by the
primary evidence. His expressed findings are always surrounded by
a penumbra of imprecision as to emphasis, relative weight, minor
qualification and nuance of which time and language do not
permit exact expression, but which may play an important part in
the judges overall evaluation.
42. Where the judgment turns on an issue of fact, the Court of Appeal
must have regard to the nature of that issue of fact. And it must have
regard to the advantages enjoyed by a trial judge who received the
evidence on such an issue at first-hand, in other words, in whose presence
the whole of the evidence unfolded in its living state. Such advantages
can be, as Lord Shaw of Dunfermline put it in Clark v Edinburgh
Tramways at p 36, sometimes broad and sometimes subtle. The question
for the Court of Appeal is whether, even though it does not enjoy the
advantages enjoyed by the trial judge who received the evidence at firsthand, it is nevertheless satisfied that his conclusion on the facts is plainly
wrong. The Court of Appeal should intervene if so satisfied. But if not so

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satisfied, the Court of Appeal should defer to the trial judges conclusion
even if in some doubt as to its correctness.

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The principles laid down in the above authorities can be

summarised as follows:
(a) If the Court of Appeal is to reverse the trial judges decision on

the facts, it must not merely entertain doubt whether the

decision below is right, but be convinced it is wrong.

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(b) The Court of Appeal will certainly not disturb the judges
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findings of primary fact where they are based on the credibility of

the witnesses or the preference of the evidence of one witness for

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that of another because he enjoyed the advantages of receiving

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the evidence in its living state at first-hand.

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(c) In order to disturb a finding of primary fact, the Court of Appeal

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has to be satisfied that the judges conclusion is plainly wrong in

the sense that either (1) that there is no evidence to support it; or

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(2) that it is contrary to documentary or other incontrovertible

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evidence that the judge overlooked. It is not enough to show

there is little evidence to support the judges finding, or that it

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was contrary to the weight of the evidence. The weight of the

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evidence is a matter for the trial judge. It does not matter how
many witnesses say one thing, and how few say the contrary.

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The judge is perfectly entitled to prefer the evidence of the few to

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that of the many.

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Ground 2 contends that the Tribunal was wrong in law in

holding that complaints A(ii) and B(ii) had been established. Mr Allan

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A
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referred us to the letter dated 29 June 1998 from the appellants solicitors
firm to the Department of Justice stating that

We have no further instructions to act in this matter [HCAL 47/97]. We

would be obliged if you would remove our name from the records.

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Mr Allan submitted that the letter was the only evidence in regard to the
complaints and contended that the Tribunal erred in finding that the
appellant has not given any proper excuse for his attempt to withdraw.
He referred to the contents of the appellants letter dated 2 June 1999 to the
Law Society and his affirmation made on 20 December 1999, which were
the two documents that had been admitted as authentic before the Tribunal
containing the appellants own version of the facts and explanations in

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respect of all the subjects of the complaints. Mr Allan complained that the
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Tribunal did not consider properly or at all the appellants inability to

obtain proper instructions from Mr Akram contained in those two

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documents. The crux of the appellants case, as shown in the said letter
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and affirmation, was that his office had tried to get Mr Akram to come to
the office so that clear instructions could be taken from him for proceeding

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with the judicial review application the firm was handling for him.
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However, Mr Akram did not come up to the office until 2 July 1998 when
he merely left $10,000 and told the office to proceed with the application.
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The Tribunal had considered the appellants case, as shown in

the appellants letter and affirmation, which can be encapsulated in the

following:
because Mr Akram never bother (sic) to come up to our office despite
many requests by our Mr. Chan Cheuk Yung who could actually contact
Mr Akram personally every time.

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The Tribunal rejected the explanation since it did not amount to any proper
excuse for the appellants attempt to withdraw from acting for Mr Akram.
In its Ruling, the Tribunal said:
we cannot accept that it was appropriate for the Respondent
[appellant] to wait for Mr Akram to contact him before the Notice of
Motion was filed as suggested in his letter to the Law Society of 2nd June
1999 and his Affirmation sworn on 20th December 1999.

The documents established this (see page 200 of the bundle). The
Respondent [appellant] has not given any proper excuse for his attempt to
withdraw. As mentioned above, there was no special agreement between
Mr. Akram and the Respondent as to payment of costs non-performance
of which would have justified the withdrawal nor was it necessary for Mr.
Akram to give the Respondent any instructions before the Notice of
Motion was proceeded with. As of the end of June 1998, the Respondent,
having failed to file the Notice of Motion in time, was obliged to apply
expeditiously for leave to file out of time rather than attempting to
withdraw from acting from Mr. Akram. On the evidence the Respondent
gave no notice to Mr. Akram of his intention to withdraw nor did he apply
to Court for leave to withdraw.

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The basis for the Tribunal saying that it was unnecessary for

Mr Akram to give any instructions to the appellant before the Notice of

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Motion was proceeded with was that it had accepted the evidence of Ms
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Carol Fung of counsel (retained by the appellants firm to act for Mr

Akram) who testified that the filing of the Notice of Motion required no

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input from Mr Akram.

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I consider that the Tribunals finding in this regard was well

supported by the evidence before it. It cannot be said that the Tribunal had
not considered properly the defence or explanations given by the appellant
in making the finding. Indeed, if Mr Akram had been told, apparently on
the telephone, to come up to the appellants office, he could have simply
been asked if he wished the firm to proceed with his application by filing a
Notice of Motion. Why should he have been invited to come to the office
if he was simply to be asked if he wished to proceed? No explanation was

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given in the letter and the affirmation and the appellant did not give
evidence. Mr Allan now raised the point that clear instructions would have
to be taken from a client and he submitted that it would have been
necessary for the client to be warned of the implication as to costs (which

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might entail upon the judicial review being unsuccessful) when he was
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required to give instructions whether to file the Notice of Motion. It can be

seen that the instructions to proceed that was alleged to have been required

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were simple and brief, and the so-called advice on costs was similarly so,
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which could all have been dealt with on the telephone. The so-called
advice on costs was never mentioned to the Tribunal during the whole

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course of the inquiry, and it was, in my view, just an afterthought.

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Moreover, while Mr Akram could be contacted by Mr Chan of the

appellants firm, there was no evidence that notice was given to Mr Akram

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that the firm would withdraw from acting for him if he continued to fail to
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come to the office. It is obvious that the Tribunal had rejected the

appellants explanations, and I consider, properly so.

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Ground 3 contends that the Tribunal was inconsistent in

finding that complaints A(iii) and B(iii) had been proved because of the
following findings of fact that it made:

On the evidence we find that the Respondent [appellant] deliberately had

the Affirmation affirmed in this way probably with the intention of
expediting the application to file the Notice of Motion out of time because
he was busy with another case.

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The Affirmation of Mr Akram affirmed on 24 August 1998

stated on the face of the jurat:

Affirmed at Victoria Prison Hong Kong this 24th day of August 1998
before me [the signature of the appellant].

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A
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But the documentary evidence and admission of the appellant showed that
he never visited Victoria Prison that day and that he had signed the
Affirmation in his office and it was taken to the prison by his clerk, Mr
Chiu.

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B
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It is argued that the Tribunal ought to have held that the

appellant had done his best under difficult circumstances to act in the best
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interests of Mr Akram. The explanations given by the appellant were that

Mr Akram was detained in Victoria Prison and the Affirmation had been

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prepared for Mr Akram to affirm. However, the appellant was engaged in

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handling a criminal case and was too busy to attend the prison to have Mr
Akram affirm it before him. He therefore signed the administering portion

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of the jurat first for his clerk Mr Chiu to visit Mr Akram and get him affirm
the Affirmation. He did this because the Affirmation was urgently required

for extension of time for the judicial review proceedings to proceed.

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It was obvious that the Tribunal accepted that the appellant

might have been operating under the wish of expediting the step to be taken

by Mr Akram. This is reflected by the Tribunal imposing a censure for this

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offence without any penalty. But the fact, which was never denied by the
appellant, remains that the Affirmation was improperly affirmed and it

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contained a false statement that the appellant had administered the

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Affirmation at the prison. Ground 3 fails.

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Ground 6 complains that the Tribunals finding that the

appellant did not take proper steps to ensure that Mr Akram understood the
contents of the Affirmation was inconsistent with its findings that Mr

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Akram was not a particularly satisfactory witness, showing a poor

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memory and was vague about events. This matter, however, hinges on the
extent of Mr Akrams knowledge of the Punti dialect. Mr Allan contended

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that the Tribunal should have accepted the evidence of Mr Chiu, the clerk
who testified to have translated the Affirmation to Mr Akram in the prison,
that Mr Akram could speak and understand Punti. As said before, this is a
matter of weight that is within the ambit of the Tribunal. I shall return to

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this aspect below.

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Ground 8 challenges the Tribunals finding that the appellant

failed to file the Notice of Motion in the judicial review proceedings for Mr
Akram within the time ordered by Yeung J (as he then was) or at all

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(complaints A(i) and B(i)). The challenge is based on the explanations

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given by the appellant in his letter of 2 June 1999 and his affirmation.
What is said before relating to question of facts applies to this ground,

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which has no merit.

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Case not put to witness ground 7

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Ground 7 is connected with ground 6, because it challenges

the Tribunals finding that Mr Chiu was an unsatisfactory witness. This

ground is put on the basis of the well-known principle relating to the
conduct of a cross-examination as enunciated in Browne v Dunn (1893) 6 R
67, HL, that if it is intended to suggest that a witness is not speaking the
truth upon a particular point, his attention must be directed to the fact by
cross-examination showing that that imputation is intended to be made, so
that he may have an opportunity of making any explanation which is open

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to him, unless it is otherwise perfectly clear that he has had full notice
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beforehand that there is an intention to impeach the credibility of his story,

or the story is of an incredible and romancing character.
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Mr Chiu gave evidence of his getting the Affirmation (which

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was in English) affirmed by Mr Akram in Victoria Prison on 24 August

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1999. He said that he was instructed by the appellant to do so. The

Affirmation had already been signed by the appellant as the administering
person. Mr Chiu said Mr Akrams Punti was very good and he completely
understood Mr Chius translation of the contents in Punti before affirming

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the Affirmation. During cross-examination, Mr Chiu was questioned

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whether the appellant had instructed him to get an interpreter to translate

the Affirmation to Mr Akram, which he denied. This question was based

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on the contents of the appellants letter of 2 June 1999 which stated:

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Therefore [the appellant] signed on the Affirmation and requested his

clerk Mr. Chiu to bring the said Affirmation in Victoria Prison to have
it affirmed by Mr. Akram but with the interpretation by an interpretor (sic)
to be arranged by the Warden of Victoria Prison on 24th August 1998.
However, no interpretor (sic) could be arranged by the Warden at the
material time and since Mr. Chiu ... knew about the contents of the said
Affirmation, be (sic) acted as interpretor (sic) for Mr. Akram and Mr.
Akram agreed the contents and signed the said Affirmation and Mr. Chiu
signed as interpretor (sic) before Solicitor at the office of Messrs. Chan
and Kong Solicitors.

H
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K
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32

Mr Chiu was then asked about the word explained, instead

G
H
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of the normal word interpreted, having been used twice in two clauses of
M
N

the Affirmation in relation to the contents of the Affirmation being

explained to Mr Akram by him. Mr Chiu said the word explained

M
N

might have been a typing error. It can therefore be said that the
O

implication that the Affirmation was not interpreted but only explained to

Mr Akram had been drawn to the notice of Mr Chiu.

33

Regarding the knowledge of Punti on the part of Mr Akram, it

is plain from the transcript of the cross-examination of Mr Chiu that

nothing was put to contradict his testimony that Mr Akram was very good
S
T

at Punti and he completely understood Mr Chius translation in Punti of the

contents of the Affirmation. Mr Allan drew our attention to the part of the

S
T

transcript that he had made the point now contended known to the Tribunal
U

A
B

and Mrs Pryor, the solicitor for the Law Society, at the close of Mr Chius
cross-examination:

I have nothing further.

CHAIRMAN:

Do you have any re-examination?

MR ALLAN:

They havent put their case. But it is a matter for them.

But Ill make that a submission point.

CHAIRMAN:

Yes, You dont have any questions?

MR ALLAN:

No re-examination.

F
G

34
H

MRS PRYOR:

E
F

Despite the reminder, Mrs Pryor, for the Law Society before

the Tribunal, did not take the opportunity to ask for permission to put to Mr
Chiu that his testimony regarding Mr Akrams knowledge of the Punti

H
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dialect was not to be believed, or that he had never explained or interpreted

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the contents of the Affirmation to Mr Akram. While this was accepted by

Mr Westbrook SC, for the respondent before us, he drew our attention to

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Archbold 2002 para 8-116. The same paragraph of Archbold 2004 states:
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If, in a crucial part of the case, the prosecution intend to ask the jury to
disbelieve the evidence of a witness for the defence it is right and proper
that the witness should be challenged when in the witness-box or, at any
rate, that it should be made plain while the witness is in the box that his
evidence is not accepted: R v Hart, 23 Cr. App. R. 202, CCA (alibi
witnesses not cross-examined at all); and R. (Wilkinson) v. DPP, 167 J.P.
229, QBD (Stanley Burnton J.) (defendant not cross-examined). See also
Browne v. Dunn (1893) 6 R. 67 at 76-77, HL, and Flanagan v Fahy
[1918] 2 I.R. 361 at 388-389. Counsel is, however, entitled to invite the
jury to reject the evidence of a defence witness where he has adopted a
raised eyebrow approach, but has not explicitly put to the witness that he
is lying: R. v. Lovelock [1997] Crim.L.R. 821, CA.

M
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O
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Q
R

M
N
O
P
Q

35

In Lovelock, the raised eyebrow approach was adopted by

the Court of Appeal (Criminal Division) to hold that it was not incumbent
S
T

on the prosecution to explicitly challenge a defence witnesss evidence. In

the report of the case, the basis for this approach was not apparent, but in

S
T

the commentary to the report, there is the following note:

U

As it appears from the transcript that the overall tenor of counsels

cross-examination was plainly designed to demonstrate that [Hs] [the
witnesss] account was a cock and bull story, incapable of belief, there
can be little doubt that counsel did rather more than raise the proverbial
eyebrow at H, although it is clear he stopped short of explicitly putting it
to him that he was lying.

B
C

B
C
D

E
F

36

The raised eyebrow approach is not dissimilar to the

observation of Lord Halsbury in Browne v Dunn at p 79 of the report as an

exception to the rule:
But I can quite understand a case in which a story told by a witness may
have been of so incredible and romancing a character that the most
effective cross-examination would be to ask him to leave the box.

G
H
I

E
F
G
H

37

The commentary in Lovelock submits, and I think correctly,

that
J

although the exception contended for has the support of dicta of the
House of Lords in a civil action (Brown (sic) v. Dunn (1893) 6 R. 67), in a
criminal trial it is better, and less likely to lead to confusion, to take issue
more obviously.

K
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K
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38
M

Mr Westbrook stressed that it is not an inflexible rule that

should be applied in every case. I agree that one should examine the
circumstances of the particular case to see how justice lies. Mr Westbrook,

M
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very fairly, did not take the stance that the evidence of Mr Chiu in this
O
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respect was of an incredible or romancing character, but he doubted if it

had been put to Mr Chiu that the evidence was not believed Mr Chiu would

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be able to give any explanation which might have altered the Tribunals
Q
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view of the evidence. But here, one enters into the realm of speculation on
what, if any, explanation Mr Chiu would have proffered and how the

Q
R

Tribunal would have reacted to it. I can think of a number of explanations

S
T

that Mr Chiu could have given, but it would be idle to go into speculation.
I consider that it would not be fair for the Tribunal to have simply found

S
T

Mr Chius evidence unsatisfactory to brush aside his testimony that Mr

U

A
B
C

Akram completely understood the contents of the Affirmation as translated

or explained to him by Mr Chiu in Punti, while this evidence was not
clearly or by any implication contradicted in cross-examination, despite the
reminder made by Mr Allan at the close of cross-examination. Mr Chiu

B
C
D

was not given any notice that his evidence on this aspect was denied and he
E
F
G

had no opportunity to explain the basis for his belief, understanding or

knowledge of Mr Akrams standard of Punti.
39

The particulars of the complaints B(v) and C(i) were that the

E
F
G

appellant failed to take necessary and proper steps to ensure that Mr Akram
H
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knew or understood the contents of the Affirmation and, in particular, to

ensure that the contents of the Affirmation were truly, distinctly and

H
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audibly explained to Mr Akram prior to his affirmation at Victoria Prison,

and the appellant failed to ascertain if Mr Akram knew that he was about to
affirm to the truth of the contents of the Affirmation. The Tribunals
finding that these complaints were proved was partly based on the evidence
of Mr Akrams limited ability to understand English. That was related to
the Affirmation being in English, and that evidence was not refuted.
However, relating to Punti, the Tribunal relied on the record of the criminal
proceedings in English before a magistrate in 1997 where an Urdu
interpreter was used to explain matters to Mr Akram, an affirmation of Mr
Akram dated 23 June 1997 prepared by the appellant that was translated to

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Mr Akram in Urdu at Victoria Prison, the appellants statement in his letter

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of 2 June 1999 that he asked Mr Chiu to arrange interpretation in the

prison, and the document showing the Commissioner of the Correctional

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Services 1997 (which was in fact 1995) opinion that Mr Akram lacked
S
T

fluency in Cantonese. All these items of documentary evidence could have

been used to contradict Mr Chiu, but they were not. While the Tribunal

S
T

was entitled to reject the evidence of Mr Chiu on this matter, I do not think
U

A
B
C

it is proper for it to have done so when no notice was given to him that he
was not believed and no opportunity was given to him to proffer any or any
further explanation in support of his testimony. It might be suggested that
little significance should be placed on this rule of Browne v Dunn because

B
C
D

it could very simply be complied with by putting to the witness that what
E
F

he has said is untrue. But one must not forget that the rationale of the rule
is to ensure fairness to the witness and not to rule out the possibility that

E
F

such a statement when put to him might be met with responses providing
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H

facts that strengthen the evidence already given or even prove the story told
beyond any reasonable doubt. On this basis, I am of the view that the

G
H

finding in support of complaints B(v) and C(i) should not be allowed to

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stand.
40

Moreover, it appears that it was after Mr Allans warning

against the solicitor for the Law Society not putting her case that was
unheeded that he told the Tribunal that he had no re-examination. Mr
Allan was obviously relying on the rule in Browne v Dunn, and correctly
so. It would be unfair to Mr Allan in his conduct of the proceedings before
the Tribunal with the consequence of causing unfairness to the appellant if
he were not vindicated.

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M
N
O

Duplicity grounds 4 and 5

P
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41

Grounds 4 and 5 can be dealt with together because in

substance they raise the point that complaints B(i), (ii), (iii) and (iv), for
R
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breaches of Principle 6.01 of the Guide, were based on the same particulars
as for complaints A(i), (ii), (iii) and (iv) that were for breaches of Rules

R
S

2(c) and (e) of the Solicitors Practice Rules. It is argued that the complaint
T
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sheet in respect of the said complaints was bad due to duplicity, and that

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A
B

the Tribunal was wrong in law in holding that the particulars of the said
complaints were not bad for duplicity.

42

Indeed, the Tribunal made it clear that the same facts as set out

in para 4(1), (2), (3) and (4) above were at issue and that the appellants
E

conduct amounted to breaches of Rules 2(c) and (e) of the Solicitors

D
E

Practice Rules, and similarly to breaches of Principle 6.01 of the Guide.

F

However, the contention that the two sets of complaints were bad for

duplicity is misconceived. Para 1-135 of Archbold 2004 clearly states:

no one count on the indictment should charge the defendant with

having committed two or more separate offences: ...

I
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43

Here, Mr Allans contention is not that more than one charge

was contained in one complaint, but that the same conduct complained of

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had been repeated in more than one complaint, ie, the allegation is one of
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duplication of complaints not duplicity, which is quite a different matter.

The two sets of complaints distinguished the essential differences between

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them: the items of complaint under complaint A were for breaches of

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statutory requirements contained in the Solicitors Practice Rules whereas

the items of complaint under complaint B were for breaches of the Guide.

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N

There is no substance in these two grounds.

O

Procedural irregularity grounds 9 and 10

44

Ground 9 challenges the Tribunals invitation to the parties to

address it on the seriousness of the complaints after it had given its Ruling
which contained its findings.

45
T
U

The contention seems to run as follows. The appellant was

entitled to know at the beginning of the case the seriousness of the

T
U

A
B
C

complaints against him before the rulings and findings of guilt made by the
Tribunal, not after. It is argued that the submissions on seriousness of the
complaints might have had a bearing on the standard of proof, and as such,
they should be made at the beginning of the hearing before the Tribunal,

B
C
D

and not after it had made the rulings and findings. Mr Allan cited several
E
F

authorities, but those authorities are on the requirement of natural justice

that a person is not to be condemned unless he has been given an

E
F

opportunity of defending himself, or the accused person has a right to know

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the case which is made against him, and he should be given an opportunity
of stating his answers to the charges. In my judgment, those authorities do

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not help the appellant. The appellant knew the exact nature of the
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complaints against him as early as when he wrote the letter of 2 June 1999.
He was represented by counsel at the hearing before the Tribunal, and his

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counsel addressed the Tribunal on the standard of proof. The Tribunal

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rightly held that the standard required was the civil standard although for a
complaint of a serious character, the standard required would be

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commensurately higher. The appellant knew thoroughly well what

M
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complaints he had to meet, he had full opportunity to defend himself, he

chose to rely on the contents of his letter and affirmation and the evidence

M
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of his witnesses, but he chose not to testify.

O
P
Q

46

There is no substance in ground 9 at all.

47

Ground 10 alleges a material irregularity that is premised on

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Q

the fact that although the Law Society had already stated to the Tribunal
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that it was not going to comment on any specific appropriate penalty, it did
address the Tribunal on the issue of costs while the Tribunal had ruled that

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S

the penalties were to include costs. Mr Allan also prays in aid that the Law
T

A
B

Society was unable to state to the Tribunal what the amount of the costs
was.

48

It is quite clear from the transcript of the proceedings that

there was a misunderstanding on the part of Mrs Pryor of the Tribunals

E

view on costs being part of the penalty. She considered, contrary to the

D
E

Tribunals expressed view, that costs were not included under penalty.
F
G

Eventually, the Tribunal allowed Mrs Pryor to address it on costs. The

Chairman said:
On this question of costs, we accepted Mrs Pryor did not appreciate fully
that we had meant to include costs under the penalties and we, therefore,
think it fair for the Law Society to have a chance to say something about
costs, as well as the Respondent [appellant]. I think it is meant that, Mrs
Pryor, you should have your say first, and if you could keep it as brief as
reasonably possible.

H
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J
K

49

Mr Allan has not been able to submit any authorities to

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G
H
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support his contention that it was prejudicial and unfair to the appellant for
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the Tribunal to have heard Mrs Pryor on costs, either as part of the
penalties, or at all. On the other hand, Mr Westbrook refers us to Attorney-

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Generals Reference No 7 of 1997 (Robert Fearon) [1998] 1 Cr App R 268,

N

where Lord Bingham CJ said at p 272:

It is, however, pertinent to observe that the practice of reticence during
the sentencing process developed in days before the Attorney-General had
power to refer unduly lenient sentences to this Court, at a time when
sentencing provisions were very much less complex than they are today,
and at a time before sentencing decisions were as fully reported as they
now are. Judges should not, we suggest, be slow to invite assistance from
prosecuting counsel in these matters, and counsel should be ready to offer
assistance if asked.

O
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Q
R
S

N
O
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50

I consider that the observation of Lord Bingham applies

equally well to proceedings before a solicitors disciplinary tribunal, whose

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membership consists of solicitors and sometimes a layperson who may not

be too familiar with the kind of penalties normally imposed for the

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A
B
C

complaints proven before them. In such circumstances, the Tribunal was

well justified to seek assistance from counsel for the Law Society as to the
penalties to be imposed. Moreover, in view of the misunderstanding and
confusion referred to above, I do not consider that the Tribunal was acting

B
C
D

unfairly or improperly to have heard Mrs Pryor on costs, even as part of the
E
F

penalties.

Costs not made known to the Tribunal

51
H
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Mr Allan complains that Mrs Pryor was unable to make

known the amount of costs to the Tribunal. He refers us to the judgments

of Rogers VP and Le Pichon JA in Au Wing Lun, William v The

H
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Disciplinary Tribunal, The Law Society of Hong Kong, CACV 4154 of

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2001 (9 September 2002, unreported) in support of this point and for

ground 11 below. Rogers VP said:
3. It would appear to me to be wholly exceptional that a respondent to a
disciplinary complaint should be ordered to pay costs in respect of a
charge of which he was acquitted. The only circumstances where such an
order might be made are where he had raised issues or made allegations
improperly or unreasonably. Disciplinary proceedings are in essence civil
proceedings but, if anything, higher standard of proof are required than
normal civil proceedings. In civil proceedings it is wrong in principle that
a party should be ordered to pay costs where he has succeeded in an action
unless there are very exceptional circumstances.

L
M
N
O
P

52

19. The Tribunal was given no indication as to the likely costs at the
time it made its order. It is surprising that the solicitor appearing on
behalf of the Law Society could not have given at least some indication of
the amount incurred to that time. Had that been done, it would have been
most surprising if the Tribunal had not attempted to put some limit as to
the amount of costs, bearing in mind the penalties which it imposed which
are less than one-tenth of the costs which are now under consideration.

Q
R
S
T
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The Vice President further said:

53

Le Pichon JA stated:

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29. The notion that a professional person who has been cleared of
misconduct under a specific complaint can be saddled with the costs
associated with that complaint on a full indemnity basis is, putting it
mildly, startling and irrational.

B
C

B
C

31. In the present case, (subject to such adjustment as may be

appropriate under the next paragraph) an apportionment exercise is
required at two levels: first, as between the appellant and his clerk and,
second, a further apportionment of the appellants share of the costs as
between Complaint A on the one hand and Complaints B and C on the
other. The appellant should only have to bear such costs as are
apportioned in respect of Complaints B and C.

E
F
G

32. The third matter is the role played by the clerk to the Tribunal in
drafting the findings and the costs associated therewith which form part of
the costs order. I fully agree with what has fallen on that subject from the
Vice President whose judgement in draft I have had the benefit of reading.
I would add that I find the amount of costs (totalling almost three quarters
of a million dollars) run up by the Law Society and the Tribunal which the
appellant had been ordered to pay little short of scandalous and wholly
disproportionate to the penalties imposed.

H
I
J
K
L

54

The point made by Mr Allan that Mrs Pryor was not able to

inform the Tribunal of the amount of costs or any estimate, despite the

D
E
F
G
H
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observation of Rogers VP, in my view does not amount to a material

M
N

irregularity in the procedure before the Tribunal. In actual fact, while Mrs
Pryor did not have the figures at hand at first, the Tribunal asked both

M
N

parties to make written submissions on costs. The estimated costs were

O
P

later disclosed in Mrs Pryors written submissions and Mr Allan had full
opportunity to deal with them. The Tribunal ruled on the subject about a

O
P

month later. Ground 10 fails.

Q

The costs order ground 11

R

55
S
T

This appears to be the main thrust of the appeal against costs,

rather than ground 10 that has been dealt with above. Apart from the
censures against the appellant, the Tribunal imposed monetary penalties on

S
T

him that came to a total of $175,000, but the costs involved (on a full
U

A
B
C

indemnity basis) that the Tribunal ordered the appellant to pay to the
general revenue amount to about $1.2 million before taxation, over six
times of the penalties.
56

The powers of the Solicitors Disciplinary Tribunal (SDT) are

prescribed by section 10 of the LPO, which include the power to inquire

B
C
D
E

into and investigate the conduct of any person in respect of which the SDT
F
G

was appointed, striking off a solicitor from the roll, suspending him from
practice and censuring him. The SDT also has the power to make the

F
G

following orders as its think fit:

H

(2)
I

(c) payment by that solicitor of a penalty not exceeding $500,000

which shall be paid into the General Revenue;

(d) ;
J

(e) payment by any party of the costs of and incidental to the

proceedings of the Tribunal and the costs of any prior inquiry or
investigation in relation to the matters before the Tribunal, to be
taxed by a Master of the High Court on a full indemnity basis, or
payment of an amount that the Tribunal considers as reasonable
contribution towards those costs;

K
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57

Originally at the first hearing of this matter on 12 December

2002, Mr Allan on behalf of the appellant relied on the judgment of

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Rogers V-P and Le Pichon JA cited above to submit that the order for costs
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on a full indemnity basis as ordered by the Tribunal was wrong in

principle, in that at least one complaint was found not substantiated.
Mr Allan also submitted that such large amount of costs could be said as
inhibiting or impairing the appellants basic right to defend himself. This
submission of his involves the consideration of whether section 10(2)(e) of
the LPO (s 10(2)(e)) that confers power on the SDT to order full
indemnity costs is constitutional in light of the Basic Law and the Bill of
Rights.

O
P
Q
R
S
T
U

A
B
C

Constitutionality of s 10(2)(e)
58

The ground of appeal states that the full indemnity costs order

B
C

imposed pursuant to s 10(2)(e) contravened the appellants fundamental

and/or basic human rights including his rights to livelihood. We
E

considered this a very important issue that had not been fully argued at the

D
E

first hearing before us on 12 December 2002. As a result we invited both

F

parties as well as an amicus curiae to address us further on the subject.

59
H
I

Mr Ambrose Ho SC is the amicus whereas the appellant has

now retained Mr Johannes Chan SC to lead Mr Allan to address us on this

issue. Mr Westbrook SC, for the respondent, whilst making his own

H
I

submissions, also shares Mr Hos views on the constitutionality issues.

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N
O
P
Q

60

Mr Chan submits that, to the extent that s 10(2)(e) confers an

unfettered discretion to make a costs order of such magnitude that

disproportionately restricts or impairs a persons right of access to the SDT
and his right to fair hearing before the SDT, s 10(2)(e) is inconsistent with
Articles 35 and 39 of the Basic Law of the Hong Kong Special
Administrative Region (HKSAR) and Article 10 of the Bill of Rights,
and to such extent s 10(2)(e) is unconstitutional and of no effect. However,
it has become clear that Mr Chan is not contending that s 10(2)(e) is
unconstitutional as a statutory provision that ought to be struck down, but
rather that the exercise by the SDT of the powers on costs conferred by the

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N
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Q

provision was unconstitutional for being inconsistent with the Basic Law
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and the Bill of Rights.

61

Mr Chan submits that alternatively, s 10(2)(e) should be

construed in a manner consistent with the Basic Law and the Bill of Rights

R
S
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so that the power under s 10(2)(e) can only be exercised within

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A
B
C

constitutional constraints. A substantial costs order would have the

inhibiting effect of pressurising a defendant not to defend himself before
the SDT. The court and the SDT have to balance the aim to be achieved by
the costs order and its inhibitive effect on the constitutional right of access

B
C
D

to courts and tribunals and the right to a fair hearing so as to ensure that the
E
F
G

costs order is operated only as a proportionate restriction on those rights.

62

Mr Chan further submits that in the alternative, the power

under s 10(2)(e) should, as a matter of common law and in the absence of

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F
G

any contrary intention, be exercised consistently with the states

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international treaty obligations, including Article 14 of the International

Covenant on Civil and Political Rights (ICCPR). Or alternatively, the

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court, on appeal from the SDT, is entitled to take into account international
treaty obligations and to ensure that the SDTs decision is consistent with

such obligations.

63

Last but not least, Mr Chan submits that the right of access to

court is well recognized under the common law. Neither Mr Ho nor Mr

Westbrook gainsays this.

N
O
P

The common law

64

In R v Lord Chancellor, ex parte Witham [1998] QB 575, at

O
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585C-586G, having observed that the common law right of access to court
Q
R

was no less extensive than the right under the European Convention, Laws
J held that the Supreme Court Fees (Amendment) Order 1996 that provided

Q
R

a minimum fee for issuing writs and removed the exemption of litigants in
S
T

receipt of income to pay court fees was ultra vires and constituted an
unjustifiable restriction of the right, which was described as a

S
T

constitutional right that is near to an absolute right.

U

A
B
C

65

I consider that under the common law, the right of access to

court includes the right of access to a tribunal such as the SDT when it
exercises its disciplinary jurisdiction in a quasi-judicial manner over
solicitors and other persons with the power to impose penalty and make

B
C
D

costs orders that have the effect of seriously affecting a solicitors pocket
E
F

and even jeopardising his right to practise and his livelihood. The upshot
is, therefore, that the exercise by the SDT of the power conferred on it by s

E
F

10(2)(e) should be subject to the common law right of access to court, and
G
H

it is unnecessary to decide whether the right is also protected by Article 35

of the Basic Law or the Bill of Rights or the ICCPR. Nevertheless, in

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H

deference to counsels submissions on these instruments, I shall deal with

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the points made briefly.

The Basic Law

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O

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66
L

The relevant provisions of the Basic Law are Articles 8, 18, 35

and 39 which read as follows:

Article 8
The laws previously in force in Hong Kong, that is, the common law, rules
of equity, ordinances, subordinate legislation and customary law shall be
maintained, except for any that contravene this Law, and subject to any
amendment by the legislature of the HKSAR. (Emphasis added)

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Article 18
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The laws in force in the HKSAR shall be this Law, the laws previously in
force in Hong Kong as provided for in Article 8 of this Law, and the laws
enacted by the legislature of the Region.
Article 35
Hong Kong residents shall have the right to confidential legal advice,
access to the courts, choice of lawyers for timely protection of their
lawful rights and interests or for representation in the courts, and to
judicial remedies. (Emphasis added)

P
Q
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Article 39
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The provisions of the International Covenant on Civil and Political Rights,

the International Covenant on Economic, Social and Cultural Rights, and
international labour conventions as applied to Hong Kong shall remain in
force and shall be implemented through the laws of the HKSAR.

B
C

67

Based on the provisions of Articles 8 and 18 of the Basic Law,

B
C
D

Mr Chan submits, and I have no doubt correctly, that the LPO, which was
E
F

enacted before 30 June 1997, falls within the meaning of laws previously
enforced in Hong Kong and it shall be adopted as the laws of the HKSAR

E
F

except for any that contravene the Basic Law.

G
H

68

Since Article 35 of the Basic Law provides that Hong Kong

residents should have the right of access to the courts, if s 10(2)(e)

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disproportionately restricts or impairs such right of access, it is inconsistent

with Article 35. Mr Chan draws our attention to A Solicitor v The Law

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Society of Hong Kong, ex parte The Secretary for Justice, FACV No 7 of

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2003 (19 Dec 2003, unreported), where Bokhary PJ at para 45 described

access to the courts as an arterial right to stress the significance of this

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right.
M
N

69

The bone of contention is whether the term access to the

courts in Article 35 includes a tribunal such as the SDT. Mr Chan submits

O
P

that given a broad and purposive construction that is appropriate to a

constitutional provision, the term should include access to those tribunals

O
P

that exercise a judicial function and whose decision is determinative of the

Q
R

right of a person, such as a right to continue his practice as a professional

member. On the other hand, Mr Ho submits that for a tribunal to be

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included in the ambit of Article 35, it must exercise an adjudicative power

S
T

that belongs to the judicial organs of the state. He submits that the SDT
should only be regarded as exercising a judicial function if the SDT could

S
T

be regarded either as an institution exercising powers and duties delegated

U

A
B
C

by the courts (in other words as agent of the courts) or having succeeded
(as successor) to the powers and duties originally exercised by the courts.
He submits that the SDT would only qualify as a court under Article 35
of the Basic Law if the nature of its jurisdiction can be shown to be

B
C
D

judicial as opposed to extra-judicial/private or domestic.

E

70
F
G

Mr Ho leads us through the history of the relevant legislation

to demonstrate that the SDT is neither an agent nor a successor of the court.
Solicitors, as officers of the court, have always been subject to the

F
G

supervisory jurisdiction of the superior courts of record. The courts

H
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J
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common law power to strike the names of solicitors off the roll has been
repeatedly affirmed by successive statutes. Before 1964, the only
solicitors was to apply direct to the Full Court (the predecessor of the Court
of Appeal) to strike the name of a solicitor off the roll or to require a
solicitor to answer allegations (see for example, Re a solicitor (1936) 28
HKLR 28).

J
K
L
M

71

procedure available in Hong Kong for taking disciplinary action against

M
N

Ordinance No. 16 of 1964 introduced for the first time a

disciplinary procedure for solicitors which operated outside the courts by

establishing the Disciplinary Committee. Appeals from the decisions of the

N
O

Disciplinary Committee lay to the Full Court. Significantly, the

P
Q

establishment of the Disciplinary Committee did not affect the courts

disciplinary jurisdiction over solicitors which remained exercisable by

P
Q

direct application to the Court. The retention of the procedure of applying

R
S

direct to the Court to strike off a solicitors name from the roll after the
establishment of the Disciplinary Committee precludes any argument that

R
S

the Disciplinary Committee had succeeded to powers of the courts.

T
U

While it may be argued that in establishing the Disciplinary Committee, the

T
U

A
B
C

legislature had intended to delegate to the new body some of the

functions hitherto exercised exclusively by the courts, Mr Ho submits that a
better views is that the legislature had intended to set up an alternative
procedure for disciplining solicitors and that the Disciplinary Committee

B
C
D

derived its powers from statute and not as an agent of the courts.
E

72
F
G

The Disciplinary Committee subsequently became the SDT

under the amendments introduced by Ordinance No. 61 of 1992. By

section 10 of the same ordinance, section 14 of Ordinance No. 16 of 1964

F
G

was repealed. Mr Ho submits that section 14 of Ordinance No. 16 of 1964

H
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J
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did no more than to prescribe the procedure to be followed upon an

application direct to the Court to strike off the name of a solicitor from the

H
I

roll. The repeal of section 14 did not have the effect of abdicating the
courts jurisdiction over solicitors, who remain amenable to the courts
jurisdiction as officers of the court. This is borne out by the fact that
section 3(2) and (3) of Ordinance No. 16 of 1964 has never been repealed.
Hence the position of the SDT is exactly the same as its predecessor, the

J
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Disciplinary Committee.

73

Mr Ho also compares of the history of the legislation that led

to the establishment of the Barristers Disciplinary Tribunal and draws the

conclusion that the legislature had clearly intended that the SDT and the
P
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BDT to derive their powers from the statute alone and not as agent or
successor to the courts. He therefore submits that the function and

P
Q

jurisdiction exercised by the SDT (and the BDT) cannot properly be

R
S

regarded as judicial. Hence, so Mr Ho submits, the appellants argument

for the application of Article 35 of the Basic Law on the basis of the SDT

R
S

discharging a judicial function cannot stand. He also draws support from

T
U

section 10 of the LPO whereby the SDT is given the power to impose a fine

T
U

A
B

up to $500,000, which is a new statutory power which the courts have

never had.

74

I am inclined to accept Mr Hos submission that the SDT is

not a court in the term access to the courts in Article 35 of the Basic
E

Law. This proposition can also find support from the Court of Appeals

D
E

decision in Tse Wai Chun Paul v Solicitors Disciplinary Tribunal [2002] 4

F
G

HKC 1 that the SDT is not a court of the classic kind, referred to below.
Moreover, I am also inclined to the view that the exclusion of the word

F
G

tribunal from Article 35 of the Basic Law was deliberate when that word
H
I
J

appears in Article 14(1) of the ICCPR and in Article 10 of the Hong Kong
Bill of Rights Ordinance, Cap 383 (HKBORO), both of which deal with
to in Article 39 of the Basic Law.

J
K

75

the same subject matter, especially when the ICCPR is specifically referred

K
L

However, Mr Chan refers us to the recent decision in Dr Ip

Kay Lo, Vincent v The Medical Council of Hong Kong (No 2) [2003] 3
HKC 579 (28 July 2003), which dealt with the refusal by the Medical

L
M

Council of an application for an adjournment made by the doctor in

N
O

disciplinary proceedings before the Council, for the purpose of enabling

him to obtain legal representation. This Court, differently constituted,

N
O

considered the applicability of the right of choice of lawyers for

P
Q
R
S
T
U

representation in the courts in Article 35 of the Basic Law to those

proceedings before the Council. Cheung JA said:
5. the issue is whether the word courts is confined to courts such
as the Magistracy, District Court, High Court and Court of Final Appeal or
ext4ends to tribunals such as the inquiry of the Council. Mr. Grossman
SC, counsel for the Council, informed the Court that due to the limited
time he had, he was unable to conduct research on this topic (the Court)
invited the parties to address on Article 35 one day before the hearing of
the appeal).

P
Q
R
S
T
U

6.
The Basic Law is an instrument which sets out fundamental
principles rather than detailed provisions like an ordinary statute. One
would not expect the Basic Law to give a detailed definition of courts and
tribunals. The use of tribunals are so prevalent in Hong Kong that it will
need a strong case to justify the exclusion of tribunals from coming under
the general word courts.

B
C

7.
Further, the Basic law being a constitutional document should be
given a purpose interpretation. The purposive approach will provide the
flesh to these principles. Article 35 is clearly an article which is
concerned with the legal rights of a Hong Kong resident. This being the
case, the word courts should not be confined solely to those courts
mentioned above.

E
F

8.
In my view the words courts should extend to the tribunals
performing judicial functions. A judicial decision is made according to
the rules and not policies (see Wade & Forsyth on Administrative Law 8th
Ed. Page 40).

G
H

9.
Without deciding more than it is necessary, my view is that the word
courts extend to statutory tribunals like the inquiry of the Council which
is established by section 21 of the Medical Registration Ordinance (Cap.
161) with the procedures being governed by the Medical Practitioners
(Registration and Disciplinary Procedure) Regulation

I
J
K

10. The inquiry has to make decisions according to legal rules and
principles. The decision of the inquiry affects the rights of the parties. A
medical practitioner subjected to the inquiry faces severe penalties such as
having his name removed from the General Register. This is a situation
where legal representation is most required.

L
M
N

B
C
D
E
F
G
H
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76

Although Cheung JA had intimated that he understandably did

not have assistance of counsel on the topic and therefore one could regard
O
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his decision as per incuriam, his view, based on a very liberal and
purposive approach to interpretation, on the applicability of Article 35 of

O
P

the Basic Law to statutory disciplinary tribunals was clear and forceful.
Q
R

While Yuen JA did not express a view on the subject, Burrell J agreed with
both her and Cheung JA. I feel myself bound by the decision. It follows

Q
R

that the right of access to court enshrined in Article 35 of the Basic Law
S
T
U

applied to the SDT in the exercise of its power relating to costs under s
10(2)(e) of the LPO.

S
T
U

A
B
C

The ICCPR
77

Mr Chan submits that Article 39 of the Basic Law further

confers an entrenched status on the ICCPR as applied to Hong Kong.

Article 35 of the Basic Law itself can also be regarded as an application of
E

Article 14 of the ICCPR and should therefore be construed consistently

D
E

with the ICCPR.

F
G

78

(1) All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and
obligations in the suit of the law, every one shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal
established by law. ...

H
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Article 14(1) of the ICCPR provides:

79

Save in one aspect to which I shall return later, I do not think

it necessary to consider Article 14(1) of the ICCPR. The provision of

G
H
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Article 39 of the Basic Law that the ICCPR as applied to Hong Kong
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shall remain in force and shall be implemented through the laws of the
HKSAR is only referable to those provisions of the ICCPR as applied to

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Hong Kong. The provisions as applied to Hong Kong have been

N
O

incorporated into the laws of Hong Kong by the HKBORO, the short title
of which states:
An ordinance to provide for the incorporation into the law of Hong Kong
of provisions of the International Covenant on Civil and Political Rights as
applied to Hong Kong; and for ancillary and connected matters.

P
Q

S
T
U

O
P
Q

80
R

Article 10 of the HKBORO is identical in terms to the

provision of Article 14(1) of the ICCPR. It reads:

All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by
law.

R
S
T
U

A
B
C

Thus, for present purposes, it is only necessary to see whether Article 10 of

the HKBORO, as opposed to Article 14(1) of the ICCPR, applies to the
issues now raised before us.
81

Pausing here, it is pertinent to mention that the right of access

to the courts is inherent to the right to a fair hearing protected by Article 10

B
C
D
E

of the HKBORO: Golder v United Kingdom (1975) 1 EHRR 524, at 536.

F
G
H

HKBORO is SDT a public authority?

82

Two provisions of the HKBORO are, in my view, pertinent to

G
H

this appeal, namely sections 6 and 7. Section 6 provides as follows:

I

(1) A court or tribunalJ

(a) in proceedings within its jurisdiction in an action for breach of this

Ordinance; and

(b) in other proceedings within its jurisdiction in which a violation or

threatened violation of the Bill of Rights is relevant,

K
L

may grant such remedy or relief, or make such order, in respect of such a
breach, violation or threatened violation as it has power to grant or make
in those proceedings and as it considers appropriate and just in the
circumstances.

M
N

(2) No proceedings shall be held to be outside the jurisdiction of any court

or tribunal on the ground that they relate to the Bill of Rights.

O
P

M
N
O

83

Section 7 provides as follows:

(1) This Ordinance binds onlyQ

R
S

(a) the Government and all public authorities; and

(b) any person acting on behalf of the Government or a public authority.
(2) In this section-

Q
R
S

"person" () includes any body of persons, corporate or unincorporate.

T

A
B
C

84

While Mr Chan argues that HKBORO binds the SDT as a

public authority within the ambit of section 7 of HKBORO, Mr Ho takes

the position that it is difficult to be categorical on this point.
85

The term public authority is not defined in the HKBORO or

B
C
D

the Interpretation and General Clauses Ordinance, Cap 1.

86

Mr Chan submits that as the purpose of the HKBORO is to

incorporate the ICCPR as applied to Hong Kong into domestic law, the

HKBORO should receive a construction, in so far as its language permits,

H
I

that gives effect to the international treaty obligations. Therefore, in

construing the scope of the application of the HKBORO, and in particular,

H
I

the meaning of public authority, it is instructive to consider the

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obligations and responsibilities of the state under the ICCPR. He submits,

therefore, that the state responsibility under international law are not

J
K

confined to acts by the state but extends, in certain circumstances, to the

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acts of bodies either than the formal state organs as long as there is
sufficient state involvement (or lack of involvement) that is sometimes

L
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known as the horizontal effect of treaty obligation.

N
O
P
Q

87

He refers us to cases such as BdB v Netherlands,

Communication No. 273/1989, UN document A/44/40, p 286 (where the

Human Rights Committee held that the Dutch Industrial Insurance Board
for Health and for Mental and Social Interest to which the Netherlands

O
P
Q

Government had delegated some of its state functions, could be attributable

R
S

to the state), Casado Coca v Spain (1994) 18 EHRR 1 (where the European
Court of Human Rights held that the Barcelona Bar Council was a public

R
S

authority), Le Compte v Belgium (1982) 4 EHRR 1 (where the European

T
U

Court held that the Belgian ordre des medecins was part of the state),
Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 (where the

T
U

A
B
C

European Court held that although an individual teacher, in exercising the

power to use corporal punishment, was not exercising a power delegated to
him by the state than a power vested in him by the common law, the state
was still responsible for the act because it had assumed responsibility for

B
C
D

formulating general education policy and because discipline was an

E
F

integral, even an indispensable part of any education system), and Foster

v British Gas PLC [1991] 2 AC 306 (where the House of Lords held that

E
F

the British Gas Corporation was a state so that its retirement policy could
G
H
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be challenged by the applicants placing reliance on an EEC directive).

88

Mr Chan therefore submits that the term state should be

construed broadly to cover not only the classic legislative, executive and
discharging a public function or being subject to governmental control. He
submits that the scope of Government and public authorities in the
HKBORO should be construed in line with the state responsibility under
the ICCPR.

I
J
K
L
M

89

Our attention has also been drawn to some Hong Kong

authorities dealing with the term public authorities in section 7(1) of the

HKBORO.

90

judicial branches of the government, but may include other bodies either

M
N

N
O

In Hong Kong Polytechnic University and others v Next

Magazine Ltd and Another (1996) 6 HKPLR 117, Keith J, as he then was,

P
Q

decided that the Hong Kong Polytechnic University was a public authority
R
S
T
U

within the meaning of section 7(1) of the HKBORO. At p 122I, he said:

In my view, for a body to be a public authority within the meaning of
section 7(1) of the Bill of Rights Ordinance, it is not sufficient for it to be
entrusted with functions to perform for the benefit of the public and not
for private profit: there must be something in its nature or constitution, or
in the way in which it is run, apart from its functions, which brings it into
the public domain. It is unnecessary for me to identify what that might be:

R
S
T
U

it may take the form of public funding, of a measure of governmental

control or monitoring of its performance, or some form of public
accountability. But something which brings it into the public domain
there must be.

B
C

91

While I accept that the university is not subject to government control,

the nature of its functions, the purpose for which those functions are
performed and the fact that it is funded to a great extent from public funds
lead me to conclude that the university is a public authority within the
meaning of section 7(1) of Bill of Rights Ordinance.

E
F
G
H
I

Keith J concluded (at p 124C):

92

On the other hand, in Tse Wai Chun Paul v Solicitors

Disciplinary Tribunal, HCAL 636/2001 (27 August 2001, unreported),

Hartmann J, having referred to the Next Magazine case, came to the

B
C
D
E
F
G
H
I

conclusion that he was not persuaded that the SDT can properly be called a
J
K

public authority in the terms of the HKBORO. The judge had taken into
consideration on the one hand that the SDT has a clear public interest to

J
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perform in ensuring the proper conduct of the legal profession, that the
L
M

legislature is aware of that interest and empowers the administration to give

financial support to the SDT in the discharge of its statutory obligations,

L
M

that the SDT has jurisdiction not only over the private individuals who
N
O

mutually agreed in entering the profession to abide by a code of conduct

but over employees of solicitors and foreign lawyers: conveyancing clerks

N
O

and accountants, messengers and the like, that the SDT receives direct
P
Q

financial support from the public purse for its work, that the SDT is
conferred power to impose financial penalties not exceeding $500,000

P
Q

which are to be paid into the general revenue, and that the SDT is
R
S

empowered to punish for contempt, and on the other hand that the SDT is a
body created by statute to monitor the conduct of a single profession in

R
S

Hong Kong, and concluded that it was not a public authority within the
T
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meaning of section 7(1) of the HKBORO.

T
U

A
B
C

93

There was an appeal from Hartmann Js judgment, reported in

[2002] 4 HKC 11, in which the Court of Appeal held that by its nature
being disciplinary or administrative, the SDT it is not a court of the classic
kind. In her judgment, to which Rogers V-P and Sakhrani J agreed, Le

B
C
D

Pichon JA, when referring to X v United Kingdom (1981) 4 EHRR 188,

E

stated (page 11A):

What is important there is thus to consider whether it is a court of law of
the classic kind integrated within the standard judicial machinery of the
country. Once it is appreciated that the full test entails that the particular
tribunal must be integrated with the standard judicial machinery of the
country it can be seen at once that the tribunal is not so integrated. In The
General Medical Council v British Broadcasting Corporation [1998] 3 All
ER 426 it was held that the General Medical Council in United Kingdom
was not the body which exercised the judicial power of state. Likewise
there, the Tribunal does not exercise the judicial power of the state. It
exercises a disciplinary function over solicitors, foreign lawyers and their
employees.

F
G
H
I
J
K

For that reason, the Court of Appeal affirmed the judgment of Hartmann J

E
F
G
H
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K

that section 9B(4) of the LPO did not contravene either Article 14 of the
L
M

ICCPR or Article 10 of the Bill of Rights. However Le Pichon JA also

stated, at p 14D:
27. In view of my conclusion on the constitutionality issue, it becomes
unnecessary to consider the question whether the Tribunal is a public
authority for the purposes of section 7 of the Bill of Rights and, if not,
whether section 7 constituted an illegitimate restriction of the applicants
rights under the Basic Law. Suffice to say that, for my part, I am not
persuaded that the judges reasoning that the Tribunal is not a public
authority was wrong in any respect.

N
O
P
Q
R

94

While Mr Chan points to a number of matters that support his

submission that the SDT is a public authority within the meaning of

L
M
N
O
P
Q
R

section 7(1) of the HKBORO, Mr Ho counters that none of these matters

S
T

are determinative of the issue. The facts that the SDT is established by
statute and its members, including lay members, are appointed by the Chief

S
T

Justice do not shed any lights on the issue whether it is a public authority
U

A
B
C

because many private bodies are also so established and consist of such
members. While the jurisdiction of the SDT over employees of solicitors
and of foreign lawyers may be indicative of its jurisdiction being wider
than the normal jurisdiction of other domestic tribunals, this alone cannot

B
C
D

be decisive that it is a public authority. Even though the SDT enjoys a

E
F

number of powers and public funding which are not enjoyed by

disciplinary bodies of other professions other than the BDT, these factors

E
F

are again not determinative. The power to punish for contempt does not
G
H

necessarily point to the SDTs discharging judicial functions as it may have

been given to the SDT on the assumption that those who constituted the

G
H

SDT were likely to be of a standing where they could be eligible to be

I
J

appointed judges and thus would be able to know and understand the law
and practice in relation to contempt and it would be safe to entrust them

I
J

with power to commit (see Tse Wai Chun Paul on appeal, at 12G-H per Le
K
L

Pichon JA). The same could be said of the power to summon witnesses
and to impose financial penalties. Public funding cannot be conclusive as

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to whether an organization is a public authority: government funding is

M
N

often given to private enterprises (Tse Wai Chun Paul at first instance,
HCAL 636/2001, paragraph 61). Public funding may be explained by the

M
N

recognition that the discipline of solicitors would contribute towards the

O
P

quality of the administration of justice and hence of particular value to the

public. The payment of fines to the general revenue as opposed to the Law

O
P

Society may be explained by the desire to avoid possible conflict of interest

Q
R

and to treat the fines as a mirror arrangement for the public funding of
the SDT. Moreover, it would be difficult to justify singling out the SDT,

Q
R

which is but a professional disciplinary body, such as other professional

S
T
U

disciplinary bodies generally exercising a domestic jurisdiction, for special

classification.

S
T
U

A
B
C

95

On the other hand, Mr Chan submits that there is a treaty

obligation on the part of the state party to ensure all individuals within its
territory and subject to its jurisdiction the rights recognised in the ICCPR
and to ensure a determination of their rights by competent judicial,

B
C
D

administrative or legislative authorities: Articles 2(1) and (3) of the ICCPR.

E
F

The scope of public authority determines the frontier of the state, and its
interpretation should be commensurate with jurisprudence on state

E
F

responsibility under the international human rights treaty regime. He

G
H

points out that division between the rigid vertical application of the Bill of
Rights (obligations only imposed on the state and its derivative organs) and

G
H

its more liberal horizontal application (the state should be responsible for a
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J

violation by private individuals) can be bridged by making the Bill of

Rights relevant even in litigation involving private individuals, and public

I
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authority should be construed in this light.

K
L
M
N
O
P

96

Mr Chan asks us to adopt the test laid down by Keith J in the

Next Magazine case to decide whether the SDT is a public authority within
the meaning of section 7(1) of the HKBORO. Apart from the nature and
constitution of the body, the way in which it is run, its functions, the
measure of governmental control or monitoring of its performance, and its
public accountability, I think one should also consider its powers and the
effect of their exercise on the public in order to decide if it is such a public

L
M
N
O
P

authority. The SDT is a statutory tribunal with members consisting of

Q
R

solicitors and foreign lawyers and lay persons appointed by the Chief
Justice having the jurisdiction and duty to investigate into the conduct of

Q
R

solicitors and foreign lawyers and their employees. It is independent of the

S
T

Law Society that may be described as a domestic or private body. Its aim
is obviously to ensure the quality of professionals who are an integral part

S
T

of the administration of justice in Hong Kong, and its jurisdiction is

U

A
B
C

coercive and does not rest on the consent of the parties subject to its
jurisdiction. Thus it can be said to be a part of the machinery of the
administration of justice. It makes determinations which are decisive of the
civil rights and obligations of the persons within its jurisdiction, which may

B
C
D

deprive a solicitor of the right to practise and his employee of the right to
E
F

be employed in a solicitors firm. The solicitors right to livelihood may

thus be affected, so may such right of innocent persons under his employ.

E
F

It may impose fines up to $500,000. It may punish for contempt. It has at

G
H

its disposition a full range of government officials, including the police and
gaolers, to enforce its decisions. The procedure of hearing before the SDT

G
H

follows closely that before a court: an adversarial process with a right to

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legal representation. The orders it makes are subject to appeal to the Court
of Appeal, which is a sort of governmental monitor or control. All

I
J

necessary and reasonable expenses incurred for disciplinary proceedings,

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L

not recoverable or recovered from the persons subject to them are funded
by the government and all the penalties imposed by it on such persons are

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L

payable to the general revenue. All these point to the fact that it is a public
M
N

authority. On the other hand, the only basis for it not to qualify as a public
authority is that it is a domestic tribunal exercising power and control over

M
N

persons including mostly its professional members, and that as such it

O

should not be differently treated if other domestic tribunals are not

considered to be public authorities.

97

Mr Ho takes the position that all the above factors pointing to

the SDT being a public authority are not conclusive and that he cannot be

categorical. He submits that it is a matter for policy decision. Mr Chan,

S
T

argues, however, that there is and can be no policy reason or objection why
the SDT should not be a public authority subject to the Bill of Rights

S
T

constraints. I agree. All the above factors point to one and the same
U

A
B
C

direction that the SDT is a public authority, and the mere fact that it is a
domestic tribunal is not sufficient to persuade me to the contrary. I
therefore come to the conclusion that the SDT is a public authority within
the meaning of section 7(1) of the HKBORO.

98

There are, however, two decisions of the Court of Appeal that

B
C
D
E

may pose as a hurdle for my above ruling. The first is the statement of Le
F
G

Pichon JA in Tse Wai Chun Paul on appeal referred to in para 93 above.

But that statement was unnecessary for the Courts decision and was

F
G

therefore obiter and is not binding upon us.

H
I

99

The other authority is Tam Hing-yee v Wu Tai-wai [1992] 1

HKLR 185, in which the Court of Appeal held that the HKBORO did not
J
K

apply to inter-citizen litigation. The difficulty created by Tam Ying-yee is

that even if the SDT were held by this Court to be a public authority, it

J
K

would not resolve the question whether the HKBORO could be applied to
L

the proceedings before it because the parties to the proceedings are private

persons. This will be more conveniently dealt with below.

The Law Society as opposed to the SDT

100

Mr Ho asks us to draw a distinction between the SDT and the

Law Society in that the SDT is the tribunal and not the parties before it, ie,

the Law Society and the solicitor charged. Reliance is placed on Hong
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Kong Bar Association v Anthony Chua (1994) 4 HKPLR 637 in which the
BDT held that the Hong Kong Bar Association was not a public authority

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under the HKBORO. It follows that the Law Society, being a professional
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domestic body similar to the BDT, is not a public authority within the
meaning of section 7 of the HKBORO. This is not challenged by Mr Chan.

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As the Law Society is not a public authority, so Mr Ho submits, on the

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basis of Tam Hing-yee, Article 10 of the HKBORO is not applicable to the

proceedings between the Law Society and the appellant before the
Tribunal, because one is a domestic, as opposed to public, body and the
other is a private person.

101

In Tam Hing-yee, the Court of Appeal was dealing with the

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question whether section 52E(1)(a) of the District Court Ordinance,

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empowering the District Court to make an order to prohibit a judgment

debtor from leaving Hong Kong is inconsistent with the HKBORO so that

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it was treated as being repealed (pursuant to the then section 3 of the

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HKBORO). While accepting that the HKBORO, being in the nature of a

constitution, must be given a generous interpretation or a generous and
the Court, ruled that section 7 of the HKBORO was not subject to section 3
thereof, and stated at p 189(16) that
the clear intention of the legislature, which we take to be, from the
words binds only the government etc. that private individuals should not
be adversely affected by the Ordinance,

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102

While Tam Hing-yee is a decision that apparently binds on us,

Mr Chan directs our attention to the fact that the ruling had been overruled
by the Bill of Rights (Amendment) Ordinance 1997, which came into effect
on 30 June 1997. Section 3 of the HKBORO was amended to introduce the
following subsection:

(3) It is hereby declared to be the intention of the legislature that the

provisions of this Ordinance, including the guarantees contained in the
Bill of Rights, apply to all legislation, whether that legislation affects legal
relations between the Government, public authorities and private persons,
or whether it affects only relations between private persons.

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purposive construction, Sir Derek Cons VP, delivering the judgment of

103

As a result, it is submitted, the ruling in Tam Hing-yee was no

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longer the law previously in force in Hong Kong and was not adopted as
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the law of the HKSAR under Articles 8 and 18 of the Basic Law. Although
the Bill of Rights (Amendment) Ordinance 1997 was suspended on 18 July
1997 and subsequently repealed on 28 February 1998 by the Provisional
Legislative Council, by virtue of section 23(a) and (b) of the Interpretation

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and General Clauses Ordinance, Cap 1, the repeal of section 3 of

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HKBORO as amended does not revive anything not in force or existing at

the time at which the repeal takes effect. In other words, the repeal of the

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amended section 3 does not affect the previous operation of the amended
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provisions. Accordingly, this Court is not bound by the ruling in Tam

Hing-yee.
104

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Notwithstanding, it can be argued that the ruling in Tam Hing-

yee was not an interpretation of the then section 3 of the HKBORO, but
was rather a construction of section 7 of the HKBORO. As such, the
amendment to section 3 in June 1997 did not repeal the ruling in the
context of the construction of section 7 of the HKBORO. Even if it did,
there is no avoiding of this Court being bound by the ruling in the context
of the proper construction of section 7 of the HKBORO, because the
application of the HKBORO to legal relations between private persons
introduced by the amendment to section 3 of the HKBORO, which
amendment should be viewed as widening the scope of section 7, was
repealed and section 7 has remained intact. I am therefore inclined to the

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view that this Court is bound by Tam Hing-yee.

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105
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However, Mr Chan draws support from Cheung Ng Sheong

Steven v Eastweek Publishers Ltd (1995) 5 HKPLR 428, where the Court
of Appeal, at pp 436D-437F per Nazareth VP and 451H-I per Mayo JA,

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considered a jurys excessive award of damages for defamation as posing a

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risk of its constituting an impediment to the principle of freedom of opinion

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and expression enshrined in Article 19 of the ICCPR that is identical to

Article 16 of the HKBORO. The Court reached its decision regardless of
the case before it being a dispute between two private individuals. After
referring to those freedoms and the English decision in Rantzen v Mirror

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Group Newspapers Ltd [1994] QB 670 at 692, Mayo JA said succinctly at

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451H:

I have no doubt that we should adopt a similar approach to this in Hong

Kong notwithstanding that s 7 of the Hong Kong Bill of Rights Ordinance
(Cap 383) binds only the government and all public authorities. It is a
proper function of the court to uphold the Bill so far as this is possible.
This is in accordance with s 6 of the Ordinance.

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106
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Although Nazareth VP recognized, at p 436G, that the

HKBORO binds only the government, public authorities and persons

acting on behalf of them (section 7 of HKBORO) and therefore the

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considerations in Rantzen did not apply in cases between private

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individuals, he considered that the court could rely on Article 19 of the

ICCPR (in terms identical to Article 16 of the HKBORO) in scrutinizing

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the jurys assessment of the damages. He said at 437E:

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I can see no reason, nor has any been brought to the attention of this
court, why we should not be free to interpret the law in accordance with
treaty obligations applying to Hong Kong.

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107

It follows that even if we are precluded by Tam Hing-yee to

apply the HKBORO to inter-citizen litigations, such as the present

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proceedings, Cheung Ng Sheong Steven opens a back door through which

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we are enabled to apply Article 14(1) of the ICCPR (identical to Article 10

of the HKBORO) to the instant case.

108

It is to be noted that the word tribunal is expressly included

in section 6 of HKBORO. While no definition of this word can, however,

be found in HKBORO or the Interpretation and General Clauses

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Ordinance, I am of the view that the SDT, at least when exercising a quasijudicial function in its disciplinary proceedings, must be a tribunal that is
within the meaning of section 6. The SDT as such a tribunal must have
regard and give effect to the provisions of the HKBORO to avoid any

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violation or threatened violation of the relevant Bill of Rights.

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109
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For the above reasons, I hold that the HKBORO applies to and

binds the SDT when it deals with disciplinary proceedings before it in the
exercise of its powers under s 10(2)(e), which should be exercised

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consistently with Article 10 of the HKBORO. The exercise by the SDT of

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the power to make costs orders should not unnecessarily, unreasonably and
disproportionately restrict or impair the right of the litigant to access the

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SDT or to defend himself before the SDT.

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110

Mr Chan emphasises that the SDTs order made under s 10(2)

(e) has an inhibitive effect in that the possibility of the indemnity costs
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order against a solicitor may inhibit him from defending a complaint

against him. This is not necessarily so, because as Mr Chan has accepted,

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the SDT has three options to pick from under s 10(2)(e): (1) not to make
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any order for costs; (2) to order costs on an indemnity basis; and (3) to
adopt an equitable middle course and to assess a contribution towards the

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costs of the inquiry and any prior investigation.

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111

I am not persuaded that in the instance case the mere power

conferred on the SDT to order costs on a full indemnity basis inhibits the
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appellant from accessing the Tribunal or defending complaints against him

before the Tribunal. Indeed, until very recently there had been no evidence

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adduced by the appellant to even state that he was so inhibited.

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112

Moreover, insofar as the costs ordered against the losing party

by the SDT are on a party and party basis, Mr Ho submits that no challenge
can be made that the costs order is not proportional vis--vis the right of
access. Mr Ho refers to X v Sweden (1979) 17 DR 74 and Miloslavsky v

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UK (1995) 20 EHRR 442 in each of which security for costs (normally

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worked on a party and party basis) was held not to be in breach of the right
of access to court, to prove his point. Mr Chan concedes that the

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proposition is correct.
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Construction of s 10(2)(e)
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113

Before examining the manner in which the discretion in

ordering full indemnity costs ought to be exercised, it is necessary to decide

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on the proper construction of s 10(2)(e). All counsel before us have

addressed us on this topic.

114

(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--

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115

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(e) payment by any party of the costs of and incidental to the

proceedings of the Tribunal and the costs of any prior inquiry or
investigation in relation to the matters before the Tribunal, to be
taxed by a Master of the High Court on a full indemnity basis,
or payment of an amount that the Tribunal considers as
reasonable contribution towards those costs; (Emphasis
added)

For its closer examination, s 10(2)(e) is repeated below:

Mr Westbrook contends that there is no inherent power for the

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SDT to order costs or costs on any basis. S 10(2)(e) provides the necessary
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statutory power to the SDT to order costs on a full indemnity basis. He

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argues that s 10(2) gives power to the SDT in three ways: first, to order
costs to be taxed by a High Court Master; second, to order costs to be taxed
on a full indemnity basis; and third, to order reasonable contribution
towards those costs taxed on a full indemnity basis. Full indemnity is,

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therefore, upon proper construction of the provision, the only basis of costs
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order that the SDT is empowered to make, or alternatively it can order a

reasonable contribution towards such costs on that same basis. This

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construction will justify the Law Society, as a party to disciplinary

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proceedings before the SDT, and sometimes the SDT itself describing the
full indemnity costs order as the practice or usual order. Mr

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Westbrook refers us to Lau Wong Chan (a firm) v Famous Investment Co

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Ltd & Ors [1991] HKLR 115 at 121C that indemnity costs would usually
apply to serious contempt cases, which are a special or peculiar kind of

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proceedings, and submits that solicitors disciplinary proceedings are also a

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peculiar kind so that awards of costs on a full indemnity basis on proven

complaints against a solicitor is usual.

116

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Mr Ho differs, and Mr Chan adopts Mr Hos construction of

the provision. Mr Ho traces the history of how the current s 10(2)(e) came
about. Briefly, section 10 of Ordinance No 6 of 1845 (Supreme Court)
confirmed the Supreme Courts power to remove and strike off solicitors.
Section 30 of Ordinance No 3 of 1871 (Barristers, Attornies, and Public

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Notaries) repeated that power of the Supreme Court. Section 33(1) of the
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Legal Practitioners Ordinance, No 37 of 1948, Cap 159, again reiterated

that power of the Supreme Court, but section 33(2) gave further power to

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the Court to refer the matter relating to the removal or striking off solicitors
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to the Committee established under the Ordinance for investigation and

inquiry. Section 33(3) provided that where the Law Society had exercised

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its right of audience over the matter, the Court might award to the Society
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reasonable legal costs. Ordinance 16 of 1964, which was the last ordinance
before its present format, established the Disciplinary Committee and
section 10(2)(e) thereof conferred power on the Committee to make such
order as it thinks fit, including
payment by any party of costs or of such sum as the Disciplinary
Committee may consider a reasonable contribution towards costs;

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117

Mr Ho submits that the power to award costs is not inherent in

inferior courts and tribunals and must be given by statute (see Walton v
McBride (1995) 36 NSWLR 440, 447, per Kirby P, as applied by Rogers
VP in A Solicitor v The Law Society of Hong Kong/The Solicitors
Disciplinary Tribunal, CACV 221 of 2003 (11 Nov 2003, unreported), at

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paras 122-123). Mr Ho proceeds to compare the wording of the former and

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present s 10(2)(e), and submits that the current provision gives further
power to the SDT in three ways, (a) to order taxation of costs by a taxing

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Master of the High Court, (b) to order costs on a full indemnity basis, and
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(c) to order reasonable contribution of an amount of the costs of the

proceedings. He submits that the power in (c) should properly be construed

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as a lump sum order for reasonable contribution towards the costs of the
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proceedings, and those costs are not necessarily to be on an indemnity

basis, whilst the power in (b) to order a full indemnity basis includes the

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power to order costs on a lesser or lower basis, such as the party and party
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basis. He seeks support from the reasonable contribution being by an

amount, which does not include a lesser basis than a full indemnity basis.

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He also submits that according to the history of the legislation, the 1964
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version had already given power to the Disciplinary Committee to award

costs or such sum as a reasonable contribution towards costs. The added

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power given by the current provision is, apart from taxation, costs on a full
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indemnity basis, which must necessarily include costs on lesser bases

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which the SDTs predecessor had already been empowered to order. It

would be unreasonable to construe the current s 10(2)(e) as depriving the
SDT of such power which it already had to make costs orders on lesser
bases.

118

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Mr Chan submits that Mr Hos construction is further justified

by the words the power to make such order as it thinks fit in the body of s
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10(2), which connote that the SDT has a wide discretion to make costs
orders up to the extent of a full indemnity basis that necessarily includes

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costs orders on a lesser basis.

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119

The observation of Stone J in A Solicitor CACV 221 of 2003

at para 113 that indemnity basis (which in my view encompasses the

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power to award costs on the more restricted party and party basis) lends

support to Mr Hos interpretation of s 10(2).

120

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I am persuaded that the proper construction of s 10(2)(e) is that

as submitted by Mr Ho and Mr Chan.

121

Moreover, Mr Westbrooks construction can be said to be a

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design to support the belief held by the Law Society and SDT that costs on
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a full indemnity basis is the usual practice. There is not only a ring of
artificiality about it, but its operation in awarding costs would also be

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clumsy and bring unnecessary undesirable consequences. Mr Westbrook

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submits that the reasonable contribution ordered by a SDT can be an

amount or it can be worked from another basis less than the full indemnity

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basis although it has no power to order costs on that lesser basis. If, for
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example, the SDT considers it reasonable to order costs on a party and

party basis, it can ask the Law Society or the solicitor to submit for its

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information an accurate estimate of the costs involved. With that

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information, the SDT could work out how much contribution the
unsuccessful party should bear by ordering a proportion of the estimated
costs on a full indemnity basis or a lump sum to reflect that proportion.
This operation in accordance with Mr Westbrooks construction is

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awkward, to say the least. First, in every disciplinary proceeding save in

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very simple and exceptional cases, the Law Society would be compelled to
prepare a reasonably accurate bill of costs for the SDT to consider ordering

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an amount for reasonable contribution or ordering an appropriate

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proportion. If the SDT were to consider a party and party basis order being
appropriate, it had to work from a full indemnity basis and order a

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proportion to reflect the appropriate basis. Secondly, where a proportion

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was ordered, there must be taxation and the taxing Master must tax on a
full indemnity basis first and then the person ordered to pay would have to

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pay a proportion of that. The steps to be taken are not only awkward but
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would also involve an increase of costs for the preparation of the estimated
bill as an almost inevitable exercise and for the taxation. I reject Mr

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Westbrooks construction.
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How the discretionary power under s 10(2)(e) is to be exercised

122

S 10(2)(e) confers a discretionary power the exercise of which

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is subject to appeal to the Court of Appeal (section 13 of the LPO). The

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exercise of such discretion is based on principles which must take into

account the intent of the provisions themselves conferring such powers on

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the SDT, the circumstances of the case, including the subject matter and the
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gravity of the complaint which is found to be substantiated, and the conduct

of the proceedings before it by the parties, etc. This exercise of the power

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is similar to the exercise of the courts discretion in making orders for

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costs. There are five bases of taxation available to the courts, namely,

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party and party, common fund, trustee, solicitor and own client, and
indemnity: see generally paras 62/App/5 to 62/App/11 of the High Court
Civil Procedure 2004, Vol 1, pp 926-927. Para 62/App/12 of the same
volume contains a brief summary of the relevant considerations for

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ordering indemnity costs. The SDT can follow the same principles
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involved but the factors for it to order indemnity basis costs are not
necessarily identical to those that the courts consider. In view of my

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judgment that s 10(2)(e) must be applied consistently with the right of

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access to court, be it under the common law, Article 10 of the HKBORO or

Article 35 of the Basic Law, that right must also be considered when the

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SDT makes a full indemnity costs order under s 10(2)(e). It is wrong for
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the SDT or the respondent in this appeal to describe such an order as the
usual order. A balancing exercise will be required and the balance is on

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the one hand the purpose to be achieved by imposing an indemnity costs

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order and on the other hand the impact such an order will have on the

constitutional rights of the appellant.

123

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I agree with Mr Ho that disciplinary proceedings are sui

generis and any comparison with criminal proceedings has to be

approached with caution. I come to the conclusion that the principle of not
awarding costs against an accused unless the way that the defence was
conducted amounted to abuse of process of the court should not apply to

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disciplinary proceedings.
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124
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In response to counsels arguments, I have also examined the

effect of s 25 of the LPO which provides that all necessary and reasonable
expenses that the Law Society has incurred for the investigation leading to

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an inquiry before the SDT and for the inquiry can be recovered from the
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general revenue. In this respect, while the order for costs imposed by the

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SDT must necessarily be compensatory in its main purpose as between the

parties before it, the Law Society is expressly allowed to recoup all
necessary and reasonable expense from the general revenue if it does not or
cannot recoup the entirely of its costs and expenses from the solicitor who

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is ordered to pay. This seems to put the exercise of the costs discretion by
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the SDT in a slightly different light from that in normal civil litigation
where the parties have no recourse to the presumably unlimited resources

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of the general revenue. Having said that, I am not inclined to the view that
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because the general revenue is available to the Law Society, the SDT
should exercise its costs discretion in any way different from that for

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normal civil litigation as between a professional body and its member, save
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in circumstances such as the impecuniosity of the solicitor concerned or

where an indemnity costs order would have the undesired effect of making

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him bankrupt or financially unsound to remain a solicitor. As distinct from

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normal civil litigation, the gravity or seriousness of the complaints and the
gravity of those that are proven against the person subject to the inquiry

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should also be a relevant consideration for the SDT to take into account.
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There are other factors, described below, that should also have a bearing.
125

Mr Chan submits that an award of an indemnity costs order

should be the exception, and should only be made when it is just and
reasonable to do so. In my judgment, this must be right. He further

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submits that in exercising its powers under s 10(2)(e) the SDT should
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consider the following matters:

(1) the purpose and reason for imposing an indemnity costs order;

(2) the conduct of both the prosecution and the respondent and how such

conduct goes beyond the normal incidence of litigation and results

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in incurring extra costs;

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(3) the financial condition of the respondent and the impact of an

indemnity costs order on the livelihood of the respondent;
(4) the size of the indemnity costs vis--vis the gravity of the offence,
and in particular, in relation to the penalty imposed;

(5) whether the purpose to be achieved by the indemnity costs order can
be achieved by a less drastic order, eg, contribution costs order or

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costs for part of the proceedings only.

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Relationship between costs and penalty

126

I accept all the above matters are proper considerations for the

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SDT when exercising its powers under s 10(2)(e), save that I have
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reservation with item (4). Mr Chan relies heavily on the fact that the
statutory power of the SDT to impose a penalty is limited to $500,000,
whereas a costs order on a full indemnity basis, as that in the present case,
involved a sum very much higher than the penalty imposed, and to the
extent of at least doubling the maximum statutorily allowed penalty. He
refers us to R v Jones (1988) Cr App R(S) 95, where the trial court ordered
a fine of 100, the payment of compensation of 115, and prosecution costs
in the sum of 583. In setting aside the costs order, Turner J observed:
It is wrong in principle to award a very heavy order for costs after the
imposition of a small fine. The two orders for fine and costs ought within
reasonable limit to go step by step with each other.

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127

Mr Chan argues that it would defeat the intention of the

legislature to set a maximum penalty if a defendant in a disciplinary

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tribunal may face a substantially disproportionate order for costs. The

prospect of facing such dire financial consequences will put strong pressure

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on a potential defendant not to defend the charges at all, and hence

compromise his right of access to court or right to a fair hearing.

128

It is also pertinent to note the observation of Le Pichon JA in

Au Wing Lun, William, CACV 4154 of 2001:

I find the amount of costs (totalling almost three-quarters of a million
dollars) run up by the Law Society and the Tribunal which the appellant
had been ordered to pay a little short of scandalous and wholly
disproportionate to the penalties imposed.

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129

However, as regards the relationship between costs and

penalty, I accept the submissions of Mr Westbrook and Mr Ho in unison

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that the English Divisional Court in Cozens v Hobbs [1999] COD 24 at

page 26 aptly sums up the position:
The court for its part doubted whether it was proper to regard the
principle of proportionality as a rigid principle to be applied in all
circumstances. The test which the justices had to apply was in the statute,
namely, whether it was just and reasonable to award a particular sum by
way of costs. No doubt generally, it would be right to provide that the
amount of the costs awarded should be proportional, within reasonable
grounds (sic), to the penalty imposed, and if they were not it was the more
possible to argue that the award of costs could not be just and reasonable.
But the court could well envisage circumstances where a lack of
proportionality would be wholly correct. Thus if a defendant deliberately
chose to challenge every possible matter, and so ensured that the
prosecution incurred costs to a far greater extent than was reasonable, the
justices would be wholly entitled to reach a conclusion that he should pay
a larger sum by way of costs, albeit that his offending merited only a
relatively modest penalty. Each case would depend upon its own
circumstances. The mere fact that the amount of costs was considerably
greater than the amount of the penalty could not of itself indicate that the
amount of the costs was not just and reasonable. Although the principle
set out in the Court of Appeal cases might exist, it was not a principle that
must be applied in all circumstances and without regard to the individual
facts of any case. The court noted that in the commentary in R v Jones
[1998] Crim. L. R. 390, the author said:
Logically it is difficult to see why the two orders should be
related to each other. They relate to different matters and the
order for the payment of the costs of the prosecution is not the
penalty for the offence.
There was great force in that commentary

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130

In my judgment, while penalty and costs are not logically

related, consideration should normally be given to their combined effect on

the person who is subjected to the burden of paying both in connection with
his financial capability and the appropriateness of the amounts.

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Other points relating to costs

131

Mr Chan submits that the Tribunal is obliged to inquire into

the appellants means before imposing an indemnity costs order. I do not

think that this suggested obligation should apply as a rule in all cases. It
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should mainly depend on the amount of costs involved. If the costs are of
such an amount that members of the solicitors profession, including

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members of the SDT, can reasonably expect the person found guilty of a
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disciplinary offence would have little difficulty to pay, taking account of

his standing and the general reputation as to the success or otherwise of his

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practice, then it is not incumbent upon the SDT to make any inquiry as to
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his ability to pay. On the other hand, if the amount involved is large by any
standard and the person to bear the costs does not have a number of years

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of successful practice behind him (whether proved by evidence or known to

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the members of the SDT by way of general reputation), then it is at least

advisable for the SDT to inquire of him if he is able to pay the costs, apart

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from the penalty that may have been imposed on him. Otherwise, the SDT
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may have to consider the possibility of bankrupting him and the effect that
bankruptcy may have on his prospect of continuing to practise as a

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solicitor. Failing to make such a consideration may be construed as a

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contradiction as the SDT wishes to strike him off the roll but does not in

fact do so by way of a striking off penalty.

132

It is also submitted that the appellant should not be put in a

situation of double jeopardy, having to pay a heavy fine and then a huge

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C

costs order on top. Mr Chan also relies on the judgment on Dubin JA in the
Canadian case of Re WD Latimer Co Ltd v Bray 60 R. (2d) 125, at 135,
where the Judge said:
With respect to the Divisional Court, I view the obligation of the
Commission towards its registrants as an analogous to a professional body
dealing in disciplinary matters with its members. The duty imposed upon
the Commission of protecting members of the public from the misconduct
of its registrants is, of course, a principal object of the statute, but the
obligation of the Commission to deal fairly with those whose livelihood is
in its hands is also by statute clearly placed upon it, and nothing is to be
gained, in my opinion, by placing a priority upon one of its functions over
the other.

E
F
G
H
I

133

While I agree with Mr Chan that there should be no double

penalty, I am not persuaded that the costs order in the instant case affects

B
C
D
E
F
G
H
I

the livelihood of the appellant as a solicitor. As Mr Westbrook has pointed

J
K

out, despite the Tribunal allowing the appellant to put before the Tribunal
material concerning his financial position, the matter was not taken up

J
K

further. In the circumstances, I am of the view that Mr Chan is ill supported

L
M
N

in his submission that the appellants livelihood would be affected by the

order for costs.
134

I am also of the view that another aspect for the consideration

L
M
N

of the SDT in awarding costs on an indemnity basis is the fact that a

O
P
Q

solicitor as opposed to a layman should normally be more aware of the

significant weight that may be placed on his conduct of the proceedings in
the consideration of the exercise of the discretion.

O
P
Q

The reasons for indemnity costs

135

T
U

imposed:

The Tribunal gave reasons for the indemnity costs order that it

T
U

An order for indemnity costs is appropriate since this is a case where the
proceedings were properly brought by the Law Society of Hong Kong and
substantially all the complaints were proved. The proceedings could have
been considerably shortened if the Respondent [appellant] had admitted
Complaints A(i) and B(i), A(ii) and B(ii), A(iii) and B(iii) and A(iv) and
C(ii) to which there was no real defence. Further time was wasted by the
Respondents failure to produce witness statements and by the
Respondents Counsels attempts to persuade us that these were
effectively criminal proceedings where the criminal standard of proof was
appropriate despite there being decisions to the contrary by the Courts
including the Hong Kong Court of Appeal. The complaint in regard to
legal aid warranted investigation despite the fact that it was not proved.
(p E1199 of the appeal bundle).

B
C

E
F
G

C
D
E
F
G

136
H

In the present case, while the representative of the Law

Society submitted that an indemnity costs order was the usual order, the
fact that the Tribunal gave the above reasons seemed to indicate that it did

H
I

not accept that submission, although the Tribunal had at one stage
J
K

apparently considered penalty to include costs (see what the Chairman said
as cited in para 47 above). It is therefore necessary for this Court to enter

J
K

into a review exercise to the extent of judging whether the Tribunal was
L
M
N
O

justified to make the indemnity costs order against the appellant.

137

Relating to the amount of costs and the costs order imposed by

the Tribunal, Mr Westbrook relies on Hartmann Js judgment in Au Wing

Lun William v The Law Society of Hong Kong HCAL 1942/2001 where the
Judge said that indemnity costs order was not, in essence, punitive, but was

L
M
N
O

intended to do no more than indemnify the Law Society against loss.

138

While Mr Westbrook accepts the passages cited above

regarding costs from the judgments of Rogers VP and Le Pichon JA in Au

Wing Lun, William, CACV 4154 of 2001, he directs our attention to the
S
T
U

reasoning of the Tribunal in making the indemnity costs order against the
appellant, summarised as follows:

S
T
U

A
B

(a) indemnity costs are appropriate where the proceedings properly

brought by the Law Society and substantially all complaints were
proved;

(b) time was wasted by the appellant not admitting the complaints to
which there was no real defence;

E
F

(c) further time was wasted by the appellants conduct in the

proceedings; and

G
H

(d) the complaint in regard to legal aid (ie complaint B(vi)) warranted

B
C
D
E
F
G
H

investigation despite the fact that it was not proved.

I
J

139

Mr Westbrook further submits that the Tribunal would know

how much time was spent on just one out of the 12 charges and whether any
K
L

significant time and costs were expended on it. Costs are for the discretion
of the Tribunal, which discretion was recognised by Rogers VP. While I

K
L

accept that the question of costs is entirely at the discretion of the Tribunal,
M
N

as a power conferred on it by s 10(2)(e), I consider that its reason for

imposing an indemnity costs order against the appellant that it regarded the

M
N

complaint which was not proven as warranting investigation is unsound and

O
P

is against the spirit of the rulings of Rogers VP and Le Pichon JA cited

above. The reasoning in (d) above is of doubtful validity against a test of its

O
P

applicability, eg, to a case where a lengthy investigation that was initiated

Q
R

by an apparently credible complaint that has turned out to be

unsubstantiated: there is no basis whatever to impose any costs order on the

Q
R

person complained of. In my view, a solicitor who faces a complaint

S
T

against him before a tribunal should normally not be mulcted in costs where
the complaint is not made out. The complaint warranting investigation

S
T

should not be a proper basis for awarding costs against the solicitor, unless
U

A
B
C

as Rogers VP said, he had raised issues or made allegations improperly or

unreasonably. I consider that where costs have been incurred for the
investigation and inquiry of an unsubstantiated complaint, no matter how
meritorious it was to engage in the investigation and inquiry, that should

B
C
D

properly be a situation covered by the general revenue under s 25 of the

E
F

LPO. The Law Society can seek reimbursement of such costs as a

necessary expenditure, and unless there are exceptional circumstances

E
F

warranting otherwise it would not be reasonable for the SDT to pass the
G
H
I

burden onto the person who has been cleared of the complaint.
140

Costs can always be apportioned. In this regard, it is pertinent

to note the observation of Le Pichon JA in her judgment:

30. In making the costs order, the Tribunal appeared to have accepted
the assertion of the solicitor for the Law Society who had applied for the
costs that it was going to be incredibly difficult to try to sort out
percentages. (The same solicitor had apparently professed that she didnt
even know what her costs were at that stage.) I find it difficult to
understand how that could have been so. In my judgment, the Tribunal
ought not to have shied away from apportioning costs. Where it is not
possible to carry out detailed calculations, the exercise might call for a
broad-brush approach. See the observations of Neill LJ in the Ronson
case (at 157) where he referred to a rough and ready approach. Not to
embark on the exercise at all was, in my view, fundamentally wrong.

J
K
L
M
N
O

G
H
I
J
K
L
M
N

141

In this case, the Tribunal made the order for costs without the

benefit of the said judgment, and could not therefore have taken heed of the
P
Q
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observations of Roger VP and Le Pichon JA.

142

Regarding whether costs on a full indemnity basis should have

been ordered, Mr Westbrook relies on Au Wing Lun William, HACL

P
Q
R

1942/2001 and stresses that by the Tribunal has a duty imposed upon it by
S
T
U

the Ordinance to make inquiries and as such its inquiry proceedings should
be viewed differently from normal civil litigation in respect of costs. He
draws assistance from the wording of s 10(2)(e), which specifically provides

S
T
U

A
B
C

for the power to make orders for costs on a full indemnity basis before
mentioning reasonable contribution towards those costs. He also
distinguishes such disciplinary proceedings from normal civil proceedings
in that the former are not taken for personal benefit. These contentions have

B
C
D

already been dealt with. As I said before, the practice of treating a full
E
F

indemnity costs order in cases of proven complaints as an usual order is,

in my judgment, wrong. Such a practice would have the effect of inhibiting

E
F

a bona fide defence and compromising the right of the person complained of
G
H

to access to the SDT. Save for those to which I have expressed dissent, I
consider the other submissions of Mr Westbrook correct, and they are

G
H

proper considerations for the Tribunals exercise of its discretion on costs,

I
J

but a major part of the effect of the operation of the SDT for the public
benefit should be considered as offset by the Law Societys ability to have

I
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resort to the general revenue pursuant to s 25 of the LPO.

K
L
M
N
O
P

143

Turning to the decision of the Tribunal, I consider that there is

ample material in support of the Tribunals view that time and thus costs
had been wasted by the appellant in his not admitting complaints to which
there was no real defence. The blatant examples of which are the facts set
out in para 4(3) and (4) above forming the basis of respectively complaints
A(iii) and B(iii) and complaints A(iv), B(iv) and C(ii), which regardless of
explanations that could be proffered by the appellant (on oath or otherwise),

L
M
N
O
P

were clearly borne out by the Affirmation of Mr Akram dated 24 August

Q
R

1998 and, more significantly, the appellants own admissions in his letter of
2 June 1999 and his affirmation of 20 December 1999 that he did not attend

Q
R

the prison on that day. Any possible explanations could only amount to
S
T

mitigation and not a defence. The excuses now proffered by the appellant
that he had a right to have the complaints proven are lame excuses that

S
T

resulted in extra time and costs being incurred before the Tribunal. His
U

A
B
C

status as a solicitor as opposed to a layman is also relevant to the

consideration of the reasonableness of his conduct of the proceedings in this
regard.
144

B
C

On the other hand, I am not at all certain as to whether the

Tribunal had taken into account only the proper considerations for making

D
E

the indemnity costs order against the appellant, especially in view of the
F

wrong views taken by it on the various aspect relating to costs mentioned

above.

Conclusions

I
J
K

145

As I hold in para 39 above, complaints B(v) and C(i) should

have been discharged. Before us, therefore, out of eleven complaints found
by the Tribunal to have been made out, I would discharge two of them. In
the circumstances, out of the twelve complaints originally laid, the Law

I
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K

Society was successful in proving nine.

146

The full indemnity costs order provided for in s 10(2)(e) of the

LPO should not be a usual order. The normal principles for imposing an

indemnity costs order in civil litigation should apply, save that heed must be
O
P

taken not to inhibit the involved persons right of access to the SDT, under
the common law, the Basic Law or the HKBORO, and consideration can be

O
P

made of the gravity of the complaints laid and proven.

Q
R

147

As I am not certain whether the Tribunal had taken into

account only the relevant factors for making the indemnity costs order, I
S
T
U

would remit the question of costs back to the Tribunal for its consideration,
taking into account this judgment.

S
T
U

A
B
C

148

I would for obvious reasons remind future SDTs to state, albeit

not necessarily in detail, the reasons for it to impose a full indemnity costs
order.

Costs of this appeal

E

G
H

D
E

149
F

Regarding the costs of the appeal, in the hope of avoiding

wasting time and costs, I propose to make an order nisi.

150

At the commencement of the hearing before us, there was an

application made by the appellant to add a ground of appeal. That was

F
G
H

based on the statement of the Clerk to the Tribunal made by him in a letter
I
J
K
L
M
N
O
P
Q

that he had spent three hours on the drafting of the Ruling. Close to the
time when the summons was taken out, the Clerk wrote a letter to clarify
that in fact what he did was to check the Ruling drafted by the Tribunal very
carefully for typographical mistakes, wrong references etc, but he played no
part in the drafting. Mr Allan told us that he had not received this
explanatory letter when he prepared the summons and the additional
ground. Two affidavits, one from the Clerk and the other from the
Chairman of the Tribunal were prepared and filed after the summons had
been taken out. We read them de bene esse. We dismissed the summons,
for the additional ground was based merely on a suspicion which had been
cleared up by the Clerks subsequent letter and further cleared up by the
affidavits. We reserved the costs. I think that while it was proper for the

I
J
K
L
M
N
O
P
Q

additional ground as well as the summons to be prepared and filed, there

R
S

was no justification for Mr Allan to have proceeded with the application

before us at the hearing. I would make an order that the costs of the

R
S

summons and the affidavits be borne by the respondent, but the costs of the
T
U

portion of the time of the hearing for our disposal of the summons on 12
December 2002 be borne by the appellant. The basis is party and party.

T
U

A
B
C

151

The appellant is successful in appealing two out of the eleven

complaints. Although his success is partial, he was compelled to launch the

appeal even if he felt aggrieved by only those two complaints, for the appeal
procedure was the only available avenue for him to air his grievance and

B
C
D

obtain a remedy. However, he has failed on the remaining nine complaints.

E
F

Relating to the costs issues, he has succeeded in persuading me that the right
of access under the common law, the Basic Law and the HKBORO applies

E
F

to disciplinary proceedings before the SDT, and his challenge to the

G
H

indemnity costs order has resulted in my remitting the matter for a reconsideration by the Tribunal. I would make an order nisi that apart from

G
H

the costs relating to the disposal of the summons referred to above, the
I

appellant have two-thirds of the costs of this appeal, on a party and party

basis.

152

I
J

I wish to record our gratitude to counsel for their tremendous

effort in dealing with the constitutionality points, and in particular to Mr Ho,

who has so graciously consented to be the amicus to assist us.

K
L
M

Hon Cheung JA:

N
O

153

I agree with the judgment of Woo VP on the merits of the

appeal and the orders he proposed to make.

P
Q

154

As important questions have been raised on the application of

the Basic Law, Hong Kong Bill of Rights Ordinance (HKBORO) and
R
S

International Covenant on Civil and Political Rights (ICCPR), I will give

a separate judgment on this topic.

R
S

A
B
C

Construction of section 10(2)(e)

155

It is apparent that in the past when the Solicitors Disciplinary

B
C

Tribunal (the Tribunal) made a costs order against a solicitor who had
been found guilty of disciplinary offences, it would invariably order that the
E

costs is to be paid on an indemnity basis. This can be seen from the appeal

D
E

cases that came before this Court and from the published reports of the
F
G

Tribunal. Indeed in the present case the solicitor acting for the Law Society
had submitted before the Tribunal that this type of order was the usual

F
G

order.
H
I

156

It is therefore necessary to examine the ambit of section 10(2)

(e) of the Legal Practitioners Ordinance (the Ordinance).

J
K
L
M
N
O

157

Counsel for the Law Society, Mr Westbrook SC, argued that

when the Tribunal imposes a costs order, section 10(2)(e) requires it to be

on an indemnity basis. However, he further argued that the Tribunal can
still exercise its discretion in such a way so that in the end the solicitor will
in effect only be required to pay costs on a party to party basis. Such a
discretion is allowed under the final part of section 10(2)(e) which enables
the Tribunal to order payment of an amount that it considers to be a
reasonable contribution towards those costs.

K
L
M
N
O
P

Indemnity costs not mandatory

Q
R

158

I am unable to accept the argument. Section 10(2) empowers

the Tribunal to make such order as it thinks fit and any such order may, in
S
T
U

particular, include provision for all or any of the following matters. These
matters include section 10(2)(e) which provides that:

S
T
U

payment by any party of the costs of and incidental to the proceedings of

the Tribunal and the costs of any prior inquiry or investigation in relation
to the matters before the Tribunal, to be taxed by a Master of the High
Court on a full indemnity basis, or payment of an amount that the Tribunal
considers is a reasonable contribution towards those costs.

B
C

159
E
F
G
H

The words used in section 10(2) such as as it thinks fit,

may and include clearly point towards an exercise of discretion on

costs which is not fettered by a mandatory requirement that such an order
must be on an indemnity basis. While subsection (e) itself may give the
impression of a mandatory requirement, this impression is dispelled if the
legislative history of the Ordinance and the legal principle on the power of a
tribunal to order costs are considered.

B
C
D
E
F
G
H
I

Legislative history
J
K

160

Section 10 of Ordinance No. 6 of 1845 conferred the power on

the then Supreme Court of Hong Kong to admit, remove and strike off
L
M

solicitors.
161

The express power to remove a lawyer by the Supreme Court

was further provided for in Ordinance No. 3 of 1871.

162

Section 33 of the Legal Practitioners Ordinance of 1948

(Ordinance No. 37 of 1948) further empowered the Supreme Court to

delegate its power to a committee to inquire into the conducts of a solicitor.

Q

The Supreme Court had the power to award the Law Society reasonable

costs and expenses it had incurred in such an inquiry.

163

T
U

Section 9(1) of the Legal Practitioners Ordinance of 1964

(Ordinance No. 16 of 1964) set up a Disciplinary Committee to inquire into

the conduct of a solicitor. Section 10(2)(e) enabled this Committee to

T
U

A
B

make such order as it thinks fit and any such order may, in particular,
include provisions for any or any of the following matters:

(e) payment by any party of costs or of such sum as the Disciplinary

Committee may consider a reasonable contribution towards costs.

B
C
D

E
F
G

164

The current version of the Ordinance expressly provides for the

costs order to be taxed on an indemnity basis. In my view this does no more

than to confer an express power on the Tribunal to make orders on such a
basis. It does not mean that the Tribunal is compelled to make such an
order in every case.

E
F
G
H

A tribunal is not a superior court of record

I
J

165

This express power is necessary because the Tribunal is created

by statute. It is not a superior court of record which has the inherent

K
L
M

jurisdiction to order costs including costs on an indemnity basis.

166

This distinction is fully examined by Kirby P in Walton v

McBride (1995) 36 NSWLR 440. In another decision of this Court (Rogers

K
L
M

VP, Le Pichon JA and Stone J) in A Solicitor v The Law Society of Hong

N
O
P
Q

Kong (CACV 221 of 2003) it was held that the power to order costs on an
indemnity basis encompasses the power to award costs on the more

N
O

restricted party and party basis.

P

167

I would respectfully adopt the same approach. If the Tribunal

considers that the usual costs order must be on an indemnity basis because
R

of section 10(2)(e) then such a view is clearly wrong.

A
B
C

Contribution
168

The Tribunal has the express power to make a contribution

B
C

order against the solicitor. This power will not assist the Law Society in its
argument that an indemnity costs order is mandatory. The power to make
E

contribution covers the situation of the solicitor being ordered to pay a

D
E

certain percentage of the costs such as when only some of the charges are
F

proved against him. Or this may include a fixed sum order where in some

simple cases the costs involved are not really in dispute.

Basic Law

I
J
K
L
M
N

169

If section 10(2)(e) requires the Tribunal to impose a mandatory

indemnity costs order whenever costs are awarded against the solicitor
(which is not the case here), then the constitutionality of this provision
comes into issue. Such a provision in my view is unconstitutional because it
impinges on the fundamental right of access to the courts guaranteed by
Article 35 of the Basic Law.
170

In any event the exercise of the discretion to impose an

I
J
K
L
M
N

indemnity costs must be such that it must not impair the access provision of
O

Article 35.

171
Q
R

I had in Dr Ip Kay Lo, Vincent v The Medical Council of Hong

Kong [2003] 3 HKC 579 held that the word courts in Article 35 is not
confined to the courts in the traditional sense such as the High Court and

Q
R

other courts in Hong Kong but includes tribunals such as the disciplinary
S

tribunal of the Medical Council.

A
B
C

172

The basis of my decision was that the Basic Law is an

instrument which sets out fundamental principles rather than detailed

provisions like an ordinary statute. One would not expect the Basic Law to
give a detailed definition of courts and tribunals. The use of tribunals is so

B
C
D

prevalent in Hong Kong that it will need a strong case to justify the
E
F

exclusion of tribunals from coming under the general word courts. I

maintain the same view in this case.

E
F

Nature of a tribunal under Article 35

173

That the word courts in Article 35 includes tribunals is

accepted by the amicus, Mr Ambrose Ho SC. Mr Westbrook SC has not

submitted any contrary argument.

J
K
L
M
N
O
P
Q

174

It is not necessary to elaborate further on this issue. It is

sufficient to recognize that Article 35 is one of the provisions of the Basic

Law under the heading of Fundamental Rights and Duties of the
Residents. In construing these rights it is in my view permissible and
relevant to take into account the provisions dealing with fundamental rights
in international covenants which are binding on Hong Kong such as the
ICCPR. The principles on human values are universal in nature and the
protection of human rights is based on the rule of law. This Court (Nazareth
VP, Liu and Mayo JJA) in Cheung Ng Sheong Steven v Eastweek Publisher
Ltd and Another (1995) 5 HKPLR 428 recognized that our law should be

K
L
M
N
O
P
Q

developed by taking into consideration the international treaty obligations

R
S
T

imposed on Hong Kong.

175

Article 14 of ICCPR guarantees a right of fair hearing before

courts and tribunals. It is not confined to courts only. This right

R
S
T

obviously includes the right of access to courts and tribunals. Hence it

U

A
B

would be artificial to the extreme to confine the courts in Article 35 to

those in the traditional sense.

B
C

Judicial function
D
E

176

For the purpose of Article 35, a tribunal must exercise judicial

function. This is also accepted by Mr Ho.

F

177
G
H

In my view a tribunal will fall within Article 35 if it exercises a

judicial function and its jurisdiction is not private or consensual. The

exercise of judicial function clearly means that it will make determinations

G
H

affecting the rights of the parties before it and such determination will be
I
J
K

made on the basis of the rules of law and following proceedings conducted
in a prescribed manner. This definition will exclude those organizations
such as private members clubs whose decisions may also affect the rights
of its members in matters such as the removal of membership.

J
K
L

178
M

See also the discussion on the meaning of tribunal under the

European Convention on Human Rights by Grosz Beatson and Duffy in

their work entitled Human Rights : The 1998 Act and The European

M
N

Convention (2000) page 240 and also Wade and Forsyth, Administration
O

Law (8th Ed) pp. 40-41.

179
Q
R

In this case the Tribunal is set up by statute. Its powers include

imposing on a solicitor financial penalty, suspension or removal from

practice. It is inconceivable that the Tribunal does not come into the ambit

Q
R

of a court or tribunal envisaged by Article 35.

S

A
B
C

How is the right of access to be exercised?

180

The Court of Final Appeal per Bokhary PJ in the recent case of

B
C

A Solicitor v. The Law Society of Hong Kong (FACV No 7 of 2003) stated

D

that
Access to the courts, including this Court where appropriate, is in
practical terms the most important right conferred by the Basic Law on
persons in Hong Kong. It is an arterial right, being the avenue through
which all their other fundamental rights and freedoms are enforced by an
independent judiciary giving effective remedies in real life cases.

E
F
G
H

E
F
G

181

The common law itself recognizes the existence of such a

right : R v Lord Chancellor Ex p Witham [1998] QB 575.

H
I

Practicable consideration
J
K

182

The right of access has to be effective in order to ensure the

fundamental rights of a fair hearing are to be properly exercised (Golder v

L
M
N

United Kingdom (1975) 1 EHRR 524). In deciding whether this right has
been infringed a practical approach has to be adopted.
183

Prohibitively high fees required for lodging a claim in court is

L
M
N

an example of how the right of access to the courts can be restricted : Kreuz
O
P

v Poland [2001] ECHR 28249/95. Another example is where a heavy

financial consequence is imposed on a litigant upon exercising the right.

O
P

Such a consequence may in practicable terms deter a litigant from

Q
R
S
T
U

exercising his right of access to the court : Luedicke, Belkacem and Koc v
Federal Republic of Germany (1978) 2 EHRR 149. In that case the
defendants in a criminal trial who were not familiar with the German
language, were ordered to pay for the costs of interpretation following their
conviction. The European Court of Human Rights held that such an order
infringed the right of a fair trial.

Q
R
S
T
U

A
B
C

184

On the other hand, the European Court of Human Rights in

Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442 held that an

order for security for costs of an appeal, which was to ensure that the
respondent would not be faced with an irrecoverable bill for legal costs if

B
C
D

the appellant was not successful in the appeal, did not infringe the right of
E
F

access to courts. See also X v Sweden (1979) 17 DR 74.

Balance to be struck

F
G

185
H

In each case a balance has to be struck. It is not argued by

Mr Johannes Chan SC, counsel for the appellant, that payment of costs
infringes the right of access to courts. The contention is on the indemnity

H
I

aspect.
J
K
L

Civil cases
186

In civil cases party and party costs is the norm. Indemnity

costs is imposed in the rare and exceptional cases where there has been
M
N

reprehensible, scandalous or outrageous conduct on the part of one of the

parties : Lau Wong & Chan v Famous Investment Co Ltd [1991] 1 HKLR

M
N

115, Choy Yee Chun (the representative of the Estate of Chan Pui Yiu) v
O

Bond Star Development Ltd [1997] HKLRD 1327 and Walton v McBride.

187
Q
R

The rationale for imposing an indemnity costs order only in

rare and exceptional cases is the consideration that it would impose a

practicable difficulty for a litigant to access to court. Marshall JA of the

Q
R

Newfoundland Court of Appeal in Canada observed in Newfoundland

S
T
U

Association of Provincial Court Judges v Newfoundland (2000) 191 DLR

(4th) 225 at para 733 that :

S
T
U

The costs of being involved in the judicial process are high enough as it
is. If the prospect of significant additional costs having to be possibly
shouldered by litigants is increased, it is the more marginalized, unable to
court the added cost risk, who will be most affected and for whom
resolution of the justice of their claims will be beyond reach.

B
C

Criminal cases
E

C
D
E

188
F

In criminal cases the Costs in Criminal Cases Ordinance (Cap

492) empowers the court to impose a costs order against a defendant who

has been found guilty of a criminal offence.

189

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Such an order must be exercised judicially and is imposed only

in special circumstances such as the defendant intentionally delaying the

case or insisting on the prosecution proving unimportant facts or undeniable
facts. The court must also consider the financial condition of the defendant
before deciding to impose the costs order : HKSAR v. Chan Kwok Wah

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[1999] 1 HKC 697 per Chan CJHC (as he then was).

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190
M

The rationale is again such an order impinges upon the

defendants constitutional right of access to the court and entitlement to a

fair trial.

Disciplinary proceeding

191

A disciplinary proceeding is neither a civil nor a criminal case.

It is hybrid in nature.

192

The Tribunal is not required to apply the criminal standard of

proof but at the same time the standard of proof must be commensurate with

the gravity of the charge. The more serious the charge, the higher is the
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standard of proof. Further the orders that can be imposed by the Tribunal

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A
B

such as financial penalty, suspension and removal from practice are clearly
punitive in nature.

193

However, the approach taken by the courts towards costs

orders in both civil and criminal cases must be applicable to that of a

E

disciplinary proceeding. It must be in rare and exceptional circumstances

D
E

that an indemnity costs order should be made. The circumstances must

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necessarily entail reprehensible, scandalous or outrageous conduct on the

part of one of the parties.

Access to court is deterred

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M
N

194

If the indemnity costs order is assumed to be mandatory, either

because of a misreading of section 10(2)(e) or because the Tribunal would

as a matter of routine exercise the discretion in making such an order, it
would infringe and is inconsistent with Article 35 because in practical terms
it has the effect of deterring a party from exercising the right of access to the
courts.
195

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It makes no difference that such an order is imposed at the end

of a proceeding because the consideration of the financial consequence of

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defending oneself in disciplinary proceedings may deter a party from

exercising this fundamental right of access to the courts.

196

While the Law Society is entitled to recover the costs of the

proceeding, to require an indemnity costs order to be imposed in every case

is clearly disproportionate to this legitimate aim. It goes beyond the normal

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party and party basis of taxation which already strikes a balance between the
conflicting interests of a party having the right of access to courts and a

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winning party being compensated for its legal expenses. It also ignores
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A
B

totally the additional conditions before an indemnity costs order would be

imposed.

B
C

Bill of Rights Ordinance

D
E

197

Article 10 of the HKBORO provides that a person faced with a

criminal charge or involved in a suit of law which affects his rights and
F
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H

obligations is entitled to a fair and public hearing by a competent,

independent and impartial tribunal established by law.
198

As pointed out earlier this provision must be considered

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together with the access to court provision under the Basic Law.
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Section 7
199

The only issue under this topic is whether the HKBORO is

applicable at all because of section 7 which states that the HKBORO binds
only

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(a)

the Government and all public authorities; and

(b)

any person acting on behalf of the Government or a public

authority.

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Public Authority
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200

I agree with Woo VPs analysis that the Tribunal is a public

authority and hence the HKBORO is engaged between the Tribunal and the
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appellant.

A
B
C

201

However, Mr Ho argued that this is not sufficient for the

purpose of section 7. The parties to the proceedings before the Tribunal

were the Law Society and the appellant. The Law Society is present at the
inquiry to prosecute the disciplinary charges. It is not suggested that the

B
C
D

Law Society is a public authority.

E

202
F
G

The Council of the Law Society referred the complaint to the

Tribunal Convenor (the Convenor) of the Solicitors Disciplinary Tribunal

Panel. The Convenor then appointed members to the Tribunal to conduct

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the inquiry. In view of the unique nature of a disciplinary proceeding, it

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may not be strictly accurate to describe the Law Society as a party to the
proceeding or that the proceeding is concerned simply between the Law

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Society and the appellant, like parties in a civil suit.

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203

However, even if the Law Society can be so treated, a more

fundamental question is whether a persons fundamental right of access to

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courts and fair trial is dependent on the status of the other party as a public
authority? On first principles this should not be the case. If the wording of

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section 7 is capable of being construed both in favour and against such an

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interpretation, then in my view it should be construed in a way in order to

give effect to the application of the HKBORO.

Tam Hing Yee

Q
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204

In Tam Hing Yee v Wu Tai Wai [1992] 1 HKLR 185, the

plaintiff obtained judgment in default of defence on a money claim against

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the defendant. He then applied for a prohibition order under section 52E(1)
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(a) of the District Court Ordinance to restrict the defendant from leaving
Hong Kong. HH Judge Downey refused to grant the order on the ground

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A
B

that section 52E(1)(a) was inconsistent with the right of freedom of

movement provision under Article 8 of the HKBORO.

B
C

205

On appeal, this Court (Sir Derek Cons VP, Clough and

Macdougall JJA) held that the HKBORO was not engaged because of

section 7. The dispute in question was an inter citizen dispute.

Amendments to the Hong Kong Bill of Rights Ordinance

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206

On the eve of the formation of Hong Kong Special

Administrative Region (HKSAR), the Hong Kong Bill of Rights

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(Amendment) Ordinance 1997 came into effect. The amendment provided

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that

Effect on pre-existing legislation

Section 3 of the Hong Kong Bill of Rights Ordinance (Cap. 383) is

amended by adding

(3) It is hereby declared to be the intention of the legislature that the

provisions of this Ordinance, including the guarantees contained in the
Bill of Rights, apply to all legislation, whether that legislation affects legal
relations between the Government, public authorities and private persons,
or whether it affects only relations between private persons.

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N

(4) For the avoidance of doubt, subsection (3) shall come into operation
upon commencement of the Hong Kong Bill of Rights (Amendment)
Ordinance 1997 (107 of 1997).

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207

The purpose of the amendment clearly was to reverse the effect

of Tam Hing Yee. The amendment came into effect on 30 June 1997. From

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N
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that date onwards Tam Hing Yee would no longer be applicable because the
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application of the HKBORO is not excluded in litigation between private

persons. If a similar situation like that in Tam Hing Yee should come to the

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court on 30 June 1997, the defendant obviously cannot invoke Tam Hing
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Yee to prevent the court from even considering the HKBORO.

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A
B
C

208

It follows that when the HKSAR came into existence on 1 July

1997, Tam Hing Yee was no longer part of the law previously in Hong Kong
and was not adopted as the law of the HKSAR under Articles 8 and 18 of
the Basic Law.

Since it is no longer part of the law of Hong Kong as from

B
C
D

st

1 July 1997 the case is no longer binding on this Court and this Court if
E
F
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free to look at the matter afresh.

209

The amendment was subsequently repealed on 28 February

1998 by the Provisional Legislative Council, under the Hong Kong Bill of

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Rights (Amendment) Ordinance 1998. By reason of section 23 of the

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Interpretation and General Clauses Ordinance, the repeal of the

amendment, however, does not revive anything not in force or existing at

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the time at which the repeal takes place. This means Tam Hing Yee is still
not part of the law of Hong Kong.

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The Canadian approach

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N

210

As to the difficult question relating to section 7, the Canadian

approach is instructive. Section 32(1) of the Canadian Charter of Rights

(the Charter) provides that
32.(1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters

within the authority of Parliament including all matters relating to the
Yukon Territory and Northwest Territories; and

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(b) to the legislature and government of each province in respect of all

matters within the authority of the legislature of each province.

N
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211
S

This is very much like the provision of section 7 although the

two sections used different words such as binds and applies. Hogg in
Constitutional Law of Canada, 4th Ed, pages 835-861 discussed the ambit of

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section 32. I will summarise the position as follows :

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A
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C

(1) By reason of section 32, the federal parliament and provincial

legislatives have lost their power to enact laws that are inconsistent
with the Charter. (page 842)
(2) It follows that the application of the Charter will apply to all actions

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taken under statutory authority. (page 846)

(3) A government may act under statutory power. It goes without
saying that such acts are subject to the Charter. (page 848)
(4) A government may also act under common law powers. This

B
C
D
E
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includes power possessed exclusively by the government such as

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prerogative powers and the powers to issue passports. It will also

include powers possessed by everyone, for example, when
government enters into contracts, or buys or sells property. (page
848)

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(5) Section 32 will make the charter applicable to government action

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taken under both kinds of common law powers. (page 848)

(6) The reference to government in section 32 is important only if the
body alleged to have breached the Charter was not relying on a
statutory power. If the body alleged to have breached the Charter

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was relying on a statutory power, the Charter will apply by virtue of

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that fact, and regardless of whether or not the body is within the
term government. (page 850)
(7) As to whether the Charter applies to courts, the Supreme Court of

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Canada has answered the question differently in different cases.

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A
B

(a)

In Retail, Wholesale and Department Store Union v

Dolphin Delivery [1986] 2 SCR 573, it was held that an
injunction granted by the court was not subject to the

Charter right of freedom of expression. The word

B
C
D

government means only the executive branch of the

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F

government and not the judiciary.

(b)

In R v Rahey [1987] 1 SCR 588, a 11 month delay by a

judge to make a decision in a criminal case was held to be in

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breach of the Charter right of a defendant to be tried within

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a reasonable time.

(c)
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In British Columbia Government Employees Union v.

British Columbia [1988] 2 S.C.R. 214 it was held that a
court order was subject to Charter review. An injunction

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was granted by the Chief Justice of British Columbia on his

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own motion and without notice to the parties to stop the

picketing of the courts. On the facts the order was held to

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be justified although it was recognized that it did limit the

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freedom of expression. (pages 850 851)

(8) The reconciliation of these cases will depend on whether the court
order was issued as a resolution of a dispute between private parties
and was based on common law and not statute. If yes then the court

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order is not governmental action to which the Charter applies.

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(page 852)

A
B
C

The proper consideration

212

Hence in deciding whether section 7 applies in this case the

B
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status of the parties is only one factor to be considered. In my view the

HKBORO will be engaged if the dispute is concerned with a legislation
E

which is promulgated by the government through the legislative branch

D
E

which also comes into within the definition of a public authority. After all
F

section 3 clearly requires all pre-existing legislation to be construed

consistent with the Bill of Rights.

213

Further, if the Tribunal, even in the adjudication of disputes of

private individuals, makes an order pursuant to a statute, such an order is

equally subject to the application of the HKBORO because the Tribunal is a

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N
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public authority and is bound by the HKBORO.

214

In my view this is a more comprehensive interpretation of

section 7. The fact that individuals is not mentioned in section 7 does not
mean that the HKBORO is not applicable. Section 7 does not preclude the
application of the HKBORO to the decision of the Tribunal which is a
public authority on a matter of costs based on the Ordinance. For the
reasons given in the discussion of the Basic Law which is equally applicable
to the consideration of the HKBORO, I find that a mandatory indemnity
costs order is further inconsistent with the latter.

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M
N
O
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Q

ICCPR

215
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I would further agree with Woo VPs view on the application

of the ICCPR.

A
B
C

The present case

216

In this case it is apparent from the reasons given by the

B
C

Tribunal that the indemnity costs order was imposed on the assumption that
such an order was the norm. The mere fact that the charges (with the
E

exception of one) had been proved against the appellant would not justify

D
E

such an order. In imposing such an order it overlooked the fact that the
F
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appellant was acquitted of one of its charge. From the approach taken by
the Tribunal, one can say that it had ignored the principle that it is only in

F
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rare and exceptional circumstances that an indemnity costs would be

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imposed. The fact that the appellant had not pleaded to the charges
subsequently proven does not by itself justify the making of an indemnity

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costs order.
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217

It is not clear why the conducts of the appellant came within

the reprehensible, scandalous or outrageous test. Although the Tribunal had

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given the appellant an opportunity to disclose his financial position, the

starting point must be that the grounds for such an order must be in

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existence before the order can be made.

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218

I too would set aside the costs order and remit it back to the

Tribunal for it to reconsider whether the indemnity costs order should be

imposed, bearing in mind the proper test that this Court has decided upon.
Appreciation

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P
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219
S

Finally I would also express my gratitude to the very able

assistance we received from counsel in this case, in particular, I would thank

Mr. Ho who appeared on a pro-bono basis.

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A
B
C

Hon Burrell J:
220

I have had the advantage of reading the judgments of Woo VP

and Cheung JA. I agree with all the final conclusions and orders made

B
C
D

therein in relation to this appeal save for two matters with which I shall deal
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H

briefly.
221

Firstly, in relation to the submissions made on the

constitutionality issue of the indemnity costs order, the learned

Vice-President concluded at paragraph 65 as follows:
The upshot is, therefore, that the exercise by the SDT of the power
conferred on it by s 10(2)(e) should be subject to the common law right of
access to court, and it is unnecessary to decide whether the right is also
protected by Article 35 of the Basic Law or the Bill of Rights or the
ICCPR. Nevertheless, in deference to counsels submissions on these
instruments, I shall deal with the points made briefly.

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222
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What follows in relation to the Basic Law, Bill of Rights and

the ICCPR is therefore obiter dicta. There is one issue therein upon which I

have formed a different opinion.

223

In paragraph 97 the learned Vice-President states I therefore

come to the conclusion that the SDT is a public authority within the
meaning of s 7(1) of the HKBORO. I do not share this view. Between

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paragraphs 82 and 97 the judgment sets out the competing factors both in
support of and against the submission that the SDT be construed as a

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public authority. It is unnecessary to repeat them all.

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224
S
T

It is sufficient for my purposes to express my agreement with

the reasoning of Hartmann J in Tse Wai Chun Paul v. Solicitors

Disciplinary Tribunal, HCAL636/2001, which is summarized in

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paragraph 92 of this judgment. Of that reasoning Le Pichon JA, in the

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A
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Court of Appeal, said I am not persuaded that the judges reasoning that
the Tribunal is not a public authority was wrong in any respect.

225

Put shortly, unlike the learned Vice-President, I am persuaded

that those factors which point towards and suggest that the SDT is not a
E

public authority are compelling. In my judgment, they demonstrate the

D
E

correctness of the proposition that it is not a public authority and they

F
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outweigh the competing factors. The SDT is a statutory tribunal created for
the purpose of exercising control over the conduct of the members of the

F
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Law Society and those who carry out the legal business of solicitors and
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their partnerships in Hong Kong. With that in mind and bearing in mind the
factors referred to above the SDT does not sit well, in my judgment, within
to which s 7(1)(a) of the Ordinance refers.

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226

the category of bodies, namely The Government and all public authorities

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Secondly, on the question of the correctness of the costs order

actually made by the Tribunal, namely the indemnity costs order, I would
not remit it to the Tribunal for reconsideration. I would leave it

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undisturbed.
N
O
P
Q

227

I agree with the observations made by Woo VP at

paragraphs 143 and 146 of his judgment. However, for my own part,
I consider there to be insufficient grounds for interfering with the discretion
exercised by the Tribunal. The seriousness of the case was not, in reality,

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diluted by the charges which were not proven and the Tribunal gave
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reasons, which in my view were sufficient, why it ordered costs on an

indemnity basis. The indemnity costs order was a mark of the Disciplinary

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Tribunals disapproval which, in my judgment, was warranted in this case.

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A
B
C

228

For the sake of completeness, as for the costs of this appeal, my

order nisi would be that the appellant do have one-third of the costs on a
party and party basis.
229

B
C

Subject to these two issues and the consequences which flow

from them, I agree with all other matters dealt with by Woo VP and have

D
E

nothing further to add.

F
G
H

Hon Woo VP:

230

We are unanimous in holding that complaints B(v) and C(i) be

discharged and that there be an order nisi that the costs of and incidental to
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the appellants summons be dealt with in the way as set out in para 150. By
a majority, we make the following orders:
(1)

The costs order made by the Tribunal be set aside, and the
question of costs before the Tribunal be remitted back to it

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for re-consideration, taking into account this judgment.

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(2)

An order nisi that the appellant do have two-thirds of the

costs of this appeal.

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(K H Woo)
Vice-President

(Peter Cheung)
Justice of Appeal

(M Burrell)
Judge of the Court of
First Instance

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Q
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S

Mr Johannes Chan SC (only on 13 and 14 January 2004) and Mr William

Allan, instructed by Messrs Anthony Y L Au & Co, for the Appellant.

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A
B

Mr Simon Westbrook SC, instructed by Messrs Herbert Smith, for the

Respondent.

B
C

Mr Ambrose Ho SC (on 13 and 14 January 2004), amicus curiae.