Rules 2(a),(d), (e) and (f), 5(2) and 5(3) of the Solicitors’ Practice Rules (“SPR”)
Rule 8 of the Trainee Solicitors Rules (“TSR”)
Principles 2.03 and 10.03 of the Hong Kong Solicitors’ Guide to Professional Conduct, Vol. 1, 2nd Edition (“Guide”)
Section 2(2) of the Legal Practitioners Ordinance (“LPO”)
Date of the Decisions and Orders: 16 September 2019
The 1st Respondent, being the sole proprietor of Messrs. Victor Chiu Tsang & Partners (“Firm”), had entered into a written contract dated 10 July 2009 with the 2nd Respondent to serve as a trainee solicitor of the Firm (“Written Contract”). This Written Contract was only in the form of an offer letter and was not in the prescribed Form A Trainee Solicitor Contract.
The 1st Respondent and the 2nd Respondent both failed to follow up with the signing of a prescribed form contract and attend to the registration requirements of the Law Society.
Upon the Law Society’s enquiry with the Firm on 22 August 2013 as to why there was no record of registration of the 2nd Respondent’s Trainee Solicitor Contract, a copy of a Trainee Solicitor Contract dated 1 February 2012 (“1st Trainee Solicitor Contract”) was sent to the Law Society and the 1st Respondent confirmed to the Law Society that he was the 2nd Respondent’s principal between 1 February 2011 to 31 January 2013. The 2nd Respondent alleged that he had submitted the 1st Trainee Solicitor Contract to the Law Society in 2011. However, there was no record or proof that it was done as alleged by the 2nd Respondent.
Subsequently, the 2nd Respondent submitted another Trainee Solicitor Contract dated 20 November 2013 (“2nd Trainee Solicitor Contract”) to the Law Society and the 2nd Respondent was registered as a “proper” trainee solicitor for the period from 20 November 2013 to 19 November 2015 (but not prior to or after this period).
Against the 1st Respondent
1st Complaint – breach of Principle 2.03 of the Guide in that the 1st Respondent failed to adequately supervise the 2nd Respondent who had failed to properly register the 1st Trainee Solicitor Contract with the Law Society.
2nd Complaint – breach of Rules 2(a), (d) and (f) of the SPR and Principle 10.03 of the Guide in that :
i. the 1st Respondent allowed the Firm to file various affirmations made by the 2nd Respondent in his purported capacity of a trainee solicitor of the Firm in HCA 550/2010 and DCMP 1951/2009;
ii. the 1st Respondent charged for work done by the 2nd Respondent at the trainee solicitor hourly rate in HCCW 268/2008 and HCCW 293/2011; and
iii. the 1st Respondent permitted the 2nd Respondent to execute in the capacity of trainee solicitor as witness to various conveyancing documents prior to 20 November 2013.
3rd Complaint – breach of Rules 2(a), (d) and (e), 5(2) and 5(3) of the SPR in that 1st Respondent wrongly stated in the respective Employees Return of the Firm for the years from 2009 to 2012 and 2016, and the Firm’s Notification of Changes to a Practice dated 26 August 2009, that the 2nd Respondent was a trainee solicitor at the material time when he was not.
Against the 2nd Respondent
4th Complaint – breach of Rule 8 of TSR in that the 2nd Respondent failed to register the 1st Trainee Solicitor Contract with the Law Society.
5th Complaint – breach of Section 2(2) of the LPO in that the 2nd Respondent’s conduct could be regarded as disgraceful, dishonourable or discreditable by a solicitor of good repute, which shall be deemed as misconduct since he acted as a trainee solicitor of the Firm for the period from 6 August 2009 to 19 November 2013, prior to the registration of the 2nd Trainee Solicitor Contract, with or without knowledge that he was not a trainee solicitor at the relevant times.
The 1st Respondent and the 2nd Respondent had admitted all the Complaints. Their respective written submissions in respect of sentencing, mitigation and costs were filed and considered by the Tribunal.
The Tribunal found all five Complaints proved and made the following orders :
1. the 1st and 2nd Respondent be censured;
2. the 1st Respondent to pay a fine of HK$120,000 for the 1st Complaint, HK$60,000 for the 2nd Complaint and HK$30,000 for the 3rd Complaint;
3. the 2nd Respondent to pay a fine of HK$40,000 for the 4th Complaint and HK$40,000 for the 5th Complaint; and
4. The 1st Respondent and the 2nd Respondent to pay, on a joint and several basis, fixed costs of the Prosecutor, the Law Society and the Clerk to the Tribunal.
Mr. Malcolm Kemp of Messrs. Stephenson Harwood for the Law Society, the Applicant
Mr. Tim Kwok and Ms. Angela Mui, instructed by Messrs. Alex To & Co., as the Counsel for the Respondents.
Mr. Hui Man Kit, Patrick of Messrs. Kenneth Sit, Clerk to the Tribunal
Mr. Fung Chi Man, Henry (Chairman)
Mr. Chiu Chi Wai, Alan
Mr. John Andrew Barnes