Au Yuk Lun Anthony (the “Respondent”)

• Principle 6.04 of the Hong Kong Solicitors’ Guide to Professional Conduct Vol.1 2nd ed. (the “Guide”)

Hearing date:
22 - 23 August 2011 and 27 February 2012

Findings:
12 December 2011

Order:
7 March 2012

The Complaint
The Solicitors Disciplinary Tribunal (the “Tribunal”) found the following complaint against the Respondent proved:

Breach of Principle 6.04 of the Guide in that the Respondent failed to give prompt and satisfactory explanations or replies to the Law Society’s enquires by its letters of 13 January 2009, 5 February 2009, 20 February 2009, 17 August 2009 and 23 September 2009 concerning the Respondent’s professional conduct or to explain his conduct when required to do so by the Law Society.

The Findings

The Tribunal first dealt with the question as to the obligation of a solicitor when declining to deal with an inquiry from the Law Society.

The Tribunal was of the view that, in order for a solicitor not to be in breach of Principle 6.04 of the Guide, he should have reasonably arguable grounds for declining to deal with such inquiry. The Tribunal bore in mind that solicitors were professionals and had the ability to obtain, if necessary, expert advice on such question. It would not be enough for the solicitor to have a bona fide belief that his action was correct. On the other hand, it was imposing too high a standard (bearing in mind that a breach of Principle 6.04 constituted professional misconduct) for the solicitor to be clearly correct in declining.

The Respondent relied on “res judicata” and “Privilege against self-incrimination” as the main arguments that he was not in breach of Principle 6.04. The Tribunal rejected the Respondent’s arguments by making the following findings: -

Res judicata

  1. The Law Society requested the Respondent to explain whether he acted for the complainant in a property transaction that took place in the Mainland (the “Property Transaction”) in his capacity as a China Appointed Attesting Officer or as a solicitor (the “Request”). Subsequently, the Law Society asked the Respondent to confirm whether, in his view, he had also acted for the complainant as a solicitor in the Property Transaction (the “Revised Request”).
  2. The Respondent argued that he had answered the Revised Request by stating that the question of whether or not he acted for the complainant as a solicitor in the Property Transaction (the “relevant question”) had already been decided as between himself and the Law Society under the principles of res judicata as a result of the decision by an Investigation Committee in dealing with another complaint against the Respondent in 1997 (the “1997 Complaint”).
  3. The complainant in the 1997 Complaint did not actually raise the relevant question and hence the Investigation Committee did not need to deal with the relevant question.
  4. The decision of the Investigation Committee in the 1997 Complaint could not be said to be a final decision in that the investigation could have been reopened, for instance, by the submission of new evidence. The Investigation Committee did not make a judicial decision since it merely endorsed the result of an investigation rather than acting as a tribunal deciding specific issues between defined parties.
  5. The decision of the British Columbia Court in Visser v. Association of Professional Engineers [2005] BCSC 1402 did not assist the Respondent in establishing that the Investigation Committee’s decision on the 1997 Complaint was res judicata and hence grounds for arguing that the answer to the relevant question was res judicata.
  6. The Respondent has not established a reasonably arguable case that he has dealt with the Revised Request in compliance with Principle 6.04 of the Guide.


Privilege against self-incrimination

  1. The Tribunal did not find that, by answering the Revised Request, the Respondent would expose himself to punishment, penalty or forfeiture. Hence privilege was not available to the Respondent.
  2. Even if the privilege was relevant, on the basis of the English Court of Appeal’s decision on R v. Institute of Chartered Accountants of England and Wales, ex parte Nawaz [1997] PNLR 433 (applied in David Herman Holder v. The Law Society [2005] EWHC 2023 and Allan Macpherson v. The Law Society [2005] EWHC 2837), the Respondent has waived the privilege by being a member of the Law Society and thereby becoming bound by the provisions of the Guide including Principle 6.04.
  3. The Respondent has not established a reasonably arguable case that he has privilege against self-incrimination to decline to answer the Revised Request.

The Tribunal invited the Respondent to provide his answer to the Revised Request to the Law Society within 30 days of receiving the Findings, and remarked that the Respondent would bear in mind that compliance with Principle 6.04 of the Guide is part of a solicitor’s obligations in being part of a self-regulated profession and non-compliance indicates an unwillingness to comply with those obligations.

The Order
After having considered the parties’ submissions, including the fact that the Respondent had answered the Revised Request in accordance with the invitation of the Tribunal, the Tribunal ordered that the Respondent: -

  1. pay a penalty of HK$25,000; and
  2. pay a fixed amount of costs to the Law Society.


Mr. Peter Sit of Messrs. Sit, Fung, Kwong & Shum for the Applicant
Mr. Jonathan Wong of Counsel instructed by Messrs. Keith Lam, Lau & Chan for the Respondent

Tribunal Members:
Mr. R.S. Peard (Chairman)
Mr. Paul Tan
Dr. H.T. Cheng

(The Respondent lodged an appeal against the Findings of the Tribunal and its Order on penalty and costs in CACV 60/2012. On 11 December 2012, the Court of Appeal dismissed the Respondent’s appeal with costs in favour of the Law Society. On 21 December 2012, the Court of Appeal handed down the reasons for its judgment.

The Respondent sought leave to appeal against the judgment of the Court of Appeal to the Court of Final Appeal. On 22 March 2013, the Court of Appeal dismissed the Respondent’s application for leave to appeal to the Court of Final Appeal with costs in favour of the Law Society.

The Respondent then applied to the Court of Final Appeal for leave to appeal against the judgment of the Court of Appeal. On 24 April 2013, the Acting Registrar issued a Summons requiring the Respondent to show cause as to why his application should not be dismissed.

Having considered the Respondent’s application and his written submissions, on 28 October 2013, the Appeal Committee of the Court of Final Appeal dismissed the Respondent’s application for leave to appeal to the Court of Final Appeal on the ground that it discloses no reasonable grounds for leave to appeal. It was further ordered that there be no order as to costs for this application for leave to appeal.)

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