A A

B HCAL 8/2014 B

IN THE HIGH COURT OF THE

C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D COURT OF FIRST INSTANCE D
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
E E
NO 8 OF 2014

F
___________________ F
BETWEEN
G G

ZHU LI Applicant
H H

and
I I

J THE LAW SOCIETY OF HONG KONG Respondent J

K K
___________________
L L

Before: Hon Zervos J in Court

M M
Date of Hearing: 16 December 2016
N Date of Judgment: 31 May 2017 N

O O

P JUDGMENT P

Q Q
Introduction
R R
1. This judicial review has had a long history and concerns the

S decision of the Law Society of Hong Kong (the Law Society) not to S
investigate a complaint lodged by the applicant against a partner of a law
T T

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A A

B firm that she was working for at the time who was also a member of the B

Council of the Law Society (the Council).

C C

D
2. The applicant made four allegations of misconduct against D
the partner. It was decided by the Law Society that three of the
E E
allegations were not within the scope of its jurisdiction, and that the

F remaining allegation lacked sufficient evidence. Not satisfied with the F

outcome of her complaint, the applicant sought the intervention of the
G G
Chief Judge of the High Court under the relevant statutory provision but

H he declined to do so, which led her to bring judicial review proceedings H

against the decision of the Law Society. After the present proceedings
I I
had been instituted, the Law Society decided to consider the applicants

J complaint afresh. The result of the fresh investigation was that the J
complaint did not warrant a referral to the Tribunal Convenor of the
K K
Solicitors Disciplinary Tribunal.
L L

The legislative framework

M M

(a) The disciplinary process

N N
3. The establishment of a disciplinary tribunal and the process
O O
for dealing with complaints against a solicitor are provided under sections

P
9, 9A and 9B of the Legal Practitioners Ordinance, Cap 159, (the P
Ordinance), and Articles 18(d) and (e) of the Articles of Association of
Q Q
the Law Society (the Articles of Association). The provisions read as

R follows: R

9. Solicitors Disciplinary Tribunal Panel

S S
(1) The Chief Justice shall appoint a Solicitors Disciplinary
T Tribunal Panel consisting of not more than 120 practising T
solicitors of at least 10 years standing, not more than 10

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A A

B
foreign lawyers and not more than 60 lay persons who are B
not, in the opinion of the Chief Justice, connected in any
way with the practice of law.
C C
(2) A member of the Council is not eligible to be appointed to
or remain on the Panel.
D D
(3) A person appointed to the Panel shall be appointed for a
term specified by the Chief Justice not to exceed 5 years
E E
but may be reappointed for a further term or terms.

F (4) The Chief Justice shall appoint a solicitor as the Tribunal F

Convenor for a 3 year term and he may appoint one or
more solicitors on the Panel and one or more foreign
G lawyers on the Panel as Deputy Tribunal Convenors for 3 G
year terms.
H H
(5) If the Tribunal Convenor is precluded by illness, absence
from Hong Kong or any other cause from exercising his
I functions under this Ordinance, a Deputy Tribunal I
Convenor may act in his place.

J (6) The Tribunal Convenor and a Deputy Tribunal Convenor J

who acts in the place of the Tribunal Convenor in
circumstances mentioned in subsection (5) may be
K K
remunerated by the Society. (Underline added)

L L

9A. Complaint about conduct of solicitor, foreign lawyer,

M etc. M

(1) Where the Council considers that the conduct of a person

N who is, or was at the relevant time, a solicitor, a foreign N
lawyer, a trainee solicitor or an employee of a solicitor or
O
foreign lawyer should be inquired into or investigated as O
a result of a complaint being made to it or otherwise, the
Council shall submit the matter to the Tribunal Convenor
P of the Solicitors Disciplinary Tribunal Panel. P

(1A) Notwithstanding subsection (1), if the conduct involves

Q an alleged breach of- Q

(a) a provision of this Ordinance;

R R
(b) a practice direction issued by the Society; or
S S
(c) a principle of professional conduct contained in The
Hong Kong Solicitors' Guide to Professional
T Conduct, T

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A A

B
prescribed in rules made by the Council, and the Council B
considers that that matter is suitable for disposal by the
Tribunal Convenor under section 9AB, the Council may
C submit the matter to the Tribunal Convenor for such C
disposal subject to the conditions mentioned in
subsection (1) of that section being satisfied.
D D
(1B) In considering whether a matter is suitable for disposal
E by the Tribunal Convenor under section 9AB, the E
Council may take into account the following-

F (a) whether the alleged breach is deliberate; F

(b) whether the alleged breach has been committed with

G a dishonest intent; G

(c) the gravity of the alleged breach;

H H
(d) any other factor it considers relevant.
I I
(2) Where a complaint is made to the Council and the
Council does not submit a matter to the Tribunal
J Convenor under subsection (1) within 6 months after J
receiving the complaint the Chief Judge may, on
application by any person or on his own initiative,
K submit the matter to the Tribunal Convenor if he K
considers that the Council ought to have done so.
L (Underline added) L

M M
9B. Solicitors Disciplinary Tribunal

N (1) On receipt of a submission under section 8A(3) or 9A in N

respect of a person who is, or was at the relevant time, a
solicitor, a trainee solicitor or an employee of a solicitor
O O
the Tribunal Convenor of the Solicitors Disciplinary
Tribunal Panel shall, unless it is a matter that is to be
P disposed of by the Tribunal Convenor under section 9AB, P
appoint from the Panel 2 solicitors and one lay person to
constitute a Solicitors Disciplinary Tribunal to inquire
Q into and investigate the matter. Q

(1A) On receipt of a submission under section 8A(3) or 9A in

R R
respect of a person who is, or was at the relevant time, a
foreign lawyer or an employee of a foreign lawyer the
S Tribunal Convenor of the Solicitors Disciplinary S
Tribunal Panel shall, unless it is a matter that is to be
disposed of by the Tribunal Convenor under section 9AB,
T appoint from the Panel 2 solicitors, one foreign lawyer T

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B
and one lay person to constitute a Solicitors Disciplinary B
Tribunal to inquire into and investigate the matter.

C (2) The Tribunal members shall elect as chairman one of its C

members who is a solicitor.
D (3) The Council may be represented at proceedings before D
the Tribunal.
E E
(4) The Tribunal shall sit in camera in the places and at the
times it directs.
F F
(5) A member of the Tribunal who becomes a member of the
Council may continue as a member of the Tribunal
G notwithstanding section 9(2). G

H H
Article 18:
I I
Without prejudice to the general powers conferred by Article 17
hereof the Council shall have power:-
J J

K (d) To investigate any charge of misconduct against any K

solicitor (whether a Member or not) or employee of a solicitor
and to institute and (if the Council thinks fit) prosecute any
L disciplinary proceedings. L

M
(e) To call upon any Member or Associate Member for an M
explanation of any conduct of such Member or Associate
Member which may, in the opinion of the Council, appear to be
N dishonourable, improper or unprofessional. N

O (b) The investigatory function O

P 4. The Council is empowered to appoint a person as an P

inspector to assist it in a variety of supervisory and investigative tasks in

Q Q
relation to the professional conduct of its members. The appointment
R and powers of an investigator are provided under sections 8AA and R

8AAA of the Ordinance. The provisions read as follows:

S S

T T

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A A

B
8AA. Appointment and powers of inspector B

(1) The Council may appoint a person as an inspector to

C assist the Council C

(a) in verifying compliance by a solicitor, a foreign

D lawyer, a trainee solicitor or an employee of a D
solicitor or foreign lawyer with the provisions of this
Ordinance or any practice direction issued by the
E E
Society;

F (b) in determining for the purpose of section 9A whether F

the conduct of any solicitor, foreign lawyer, trainee
solicitor or employee of a solicitor or foreign lawyer
G should be inquired into or investigated; or G

(c) in relation to an inquiry or investigation

H H
under section 9B.

I (2) For the purposes of subsection (1), an inspector may I

(a) in relation to any person who acts or purports to act

J as an employee of a solicitor in the premises of any J
court or place of lawful detention
K (i) question there and then the person as to his K
name, identity card number, the identity of any
L
client for whom he acts or purports to act on L
that occasion and the name of the firm of
which he acts or purports to act as the
M employee; and M

(ii) require the person to produce for inspection

N there and then all documents in his possession N
that the inspector reasonably suspects to be
O
relevant to any matter referred to in O
subsection (1)(a), (b) or (c) and copy or seize
any of the documents; and
P P
(b) (i) subject to subsection (3), require a solicitor, a
foreign lawyer or an employee of a solicitor or
Q foreign lawyer to produce or deliver to him for Q
inspection, at a time and place specified by
R him, all documents in the possession of the R
solicitor, foreign lawyer or employee of a
solicitor or foreign lawyer that the inspector
S reasonably suspects to be relevant to any S
matter referred to in subsection (1)(a), (b) or (c)
and specifies particularly or generally; and
T T

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B
(ii) copy or seize any of the documents produced B
or delivered under subparagraph (i).

C (3) An inspector shall not exercise his power under C

subsection (2)(b)(i) except under a direction of the
Council to do so.
D D
(4) No liability shall be incurred by any person in respect of
anything done or omitted to be done by him in good faith
E E
in the exercise of any power under this section.

F (5) In this section, identity card () means an identity F

card issued under the Registration of Persons Ordinance
(Cap. 177).
G G

H H
8AAA. Additional powers of an inspector

I (1) In this section inspector () means an inspector I

appointed under section 8AA.

J (2) The Council may direct an inspector to assist it in J

gathering evidence in respect of a matter the Council is
considering for the purpose of deciding whether or not it
K K
should be submitted to the Tribunal Convenor of the
Solicitors Disciplinary Tribunal Panel.
L L
(3) For the purposes of this section, an inspector
may question
M M
(a) persons who are, or were at the material time,
members or employees of any law firm; or
N N
(b) where authorized by the Council, any other persons
O
whom the inspector considers may be able to assist O
the Council.

P P
The legal procedures for handling of a complaint
Q Q
5. The Law Society is the professional and regulatory body for
R solicitors in Hong Kong. It was incorporated in 1907 as a company R

limited by guarantee. The Council is the governing body of the Law

S S
Society and is responsible for the management of its affairs. There are
T 20 members in the Council. They are elected annually on a staggered T

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B basis by the membership. The President and two Vice Presidents are B

elected annually by the Council.

C C

D
6. It is part of the Law Societys function to ensure that D
solicitors, foreign lawyers, trainee solicitors and employees of solicitors
E E
and foreign lawyers (which I will refer to collectively as solicitors or

F members) comply with all relevant laws, codes, regulations, practice F

directions and professional conduct obligations.
G G

H
7. The Council meets twice monthly, and receives and H
considers reports from six Standing Committees. One of the Standing
I I
Committees is the Standing Committee on Compliance (SCOC), which

J
deals with the regulatory and administrative aspects of the profession. J

K 8. The Council is empowered under section 9A(1) of the K

Ordinance, and Articles 18(d) and (e) of the Articles of Association to

L L
consider complaints against its membership, who in various capacities
M perform the services as a solicitor. M

N N
9. The Chief Justice is required to appoint a Solicitors
O Disciplinary Tribunal Panel (the Panel) consisting of 120 practising O

solicitors, 10 foreign lawyers, and 60 lay persons: section 9(1). The

P P
term of the appointment of a member of the Panel is for a period not
Q exceeding 5 years, although a member can be reappointed for a further Q

term or terms: section 9(3). The Chief Justice is also required to appoint
R R
a Tribunal Convenor, although he may appoint from the Panel, one or
S more Deputy Tribunal Convenors for three year terms: section 9(4). It S

T T

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A A

B is to be noted that section 9(2) stipulates that a Council member is not B

eligible to be appointed to or remain on the Panel.

C C

D
10. The members of the Solicitors Disciplinary Tribunal (the D
Tribunal) are selected from the Panel: section 9B(1) and (1A). However,
E E
curiously under section 9B(5) a Tribunal member who becomes a Council

F member may continue as a member of the Tribunal notwithstanding F

section 9(2). Otherwise, no Council member can be a member of the
G G
Solicitors Disciplinary Tribunal.

H H
11. It is suggested by Au J in his decision on a security of costs
I I
application by the Law Society against the applicant that the underlying

J
reason for section 9(2) is in order to avoid any apparent conflict of J
interest as the Council may be represented before the Solicitors
K K
Disciplinary Tribunal: section 9B(3).1 I would add that there is also the

L
apparent conflict of interest by the fact that the Council after L
consideration of the complaint submits it to the Tribunal Convenor for
M M
inquiry or investigation: section 9A(1).

N N
12. Au J observed that given the important professional roles
O solicitors play in society and the trust the public has generally placed on O

the legal profession, it must be of public interest for the Law Society to
P P
properly and fairly discharge its statutory regulatory and disciplinary
Q Q
function and its (in its own words) frontline responsibility to ensure

R
compliance by solicitors with the rules.2 R

S S
1
Zhu Li v The Law Society of Hong Kong, HCAL 8/2014, 12 April 2016, unreported, [27].
2
T At [30]. T

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A A

B 13. As provided under section 9A(1), when the Council receives B

a complaint, and it considers that the conduct of the complained solicitor

C C
should be inquired into or investigated, it must refer it to the Tribunal
D Convenor. D

E E
14. The Councils power to investigate professional misconduct

F of its members is delegated to the Conduct Section, the Investigation F

Committee and the SCOC, which perform the functions of investigating,
G G
deciding and reviewing the decision of the complaint respectively.

H H
15. Ms Margot Tung Yin Ka, the Director of the Compliance
I I
Department of the Law Society, in her evidence has explained the role

J
and responsibilities of the investigatory bodies when dealing with a J
complaint against a solicitor. As she explains it, the process works as
K K
follows.

L L
16. After the Council has received a complaint, it is the SCOC
M effectively through the Investigation Committee, based on a report M

submitted by the Investigation Counsel, which decides as to whether the

N N
complaint should be further inquired into or investigated. If it decides it
O should, the Council would exercise its power under section 9A(1) to refer O

the complaint to the Tribunal Convenor.

P P

Q 17. The Conduct Section is responsible for investigating Q

complaints and preparing investigation reports. Included in its staff are

R R
a number of Investigation Counsel, who are solicitors responsible for
S investigating complaints and preparing investigation reports for the S

Investigation Committee and the SCOC.

T T

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A A

B 18. The Investigation Committee is an ad hoc sub-committee of B

the SCOC. Each Investigation Committee is made up of three persons,

C C
who are elected from members of the SCOC according to their expertise
D and language skills. At any given time, there may be a number of D

different Investigation Committees considering different complaints and

E E
reports prepared by Investigation Counsel. The role of the Investigation
F Committee is to consider any report submitted by the Investigation F

Counsel and to consider and decide on a complaint. The Investigation

G G
Committee does not meet with the parties to the complaint. As a matter
H of policy, the Law Society does not disclose the identities of the three H

members of the Investigation Committee to the public or to the parties to

I I
the complaint. The decision of an Investigation Committee may not be
J final, in the sense that it may involve referral to the SCOC to consider J

whether the Solicitors Disciplinary Tribunal should be convened or to

K K
review the decision at the request of any aggrieved party.
L L

19. The SCOC consists of 19 practising solicitors, 10 of whom

M M
are Council members, with the remaining 9 being Non-Council members.
N The composition of the SCOC is public knowledge and the members of N

the SCOC are identified in the Law Societys website. The SCOC
O O
monitors the work of the Conduct Section and will refer appropriate
P disciplinary matters to the Tribunal Convenor. P

Q Q
20. A final matter that should be mentioned is that under section

R 9A(2) the Chief Judge of the High Court is empowered to directly submit R
a complaint to the Tribunal Convenor in certain circumstances. It would
S S
appear that the Councils jurisdiction is wider than that of the Chief Judge.

T The Council considers whether or not to submit to the Tribunal Convenor T

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A A

B the conduct of a solicitor as a result of a complaint being made to it or B

otherwise. The Chief Judge can only exercise his power in relation to
C C
a complaint made to the Council. The reference to otherwise means
D that the conduct of a solicitor may come to the attention of the Council D

other than through a complaint having been made to it.

E E

F Background facts F

G 21. The applicant is a qualified lawyer in mainland China who G

was formerly an employee of a major law firm in its Beijing office from
H H
2003 to 2010. Thereafter, she was seconded to the law firms Hong

I Kong office from September 2010 to March 2012. I

J J
22. On 9 October 2011, the applicant lodged a complaint with

K
the Law Society against a partner of the law firm in Hong Kong. She K
made four allegations of misconduct against the partner. The first was
L L
that the partner conspired with his clients mainland Chinese lawyers to

M
make illegal monies. The second was that he practised law in the M
Peoples Republic of China (the PRC) when he was not qualified to do so.
N N
The third was that he acted for clients regardless of an apparent conflict

O
of interest in a criminal case in mainland China. The fourth was that he O
had private meetings with arbitrators in an arbitration case in Shenzhen.
P P
At the time of the complaint, the partner was a Council member of the

Q
Law Society. Q

R R
23. On 3 February 2012, the Director of Compliance for the

S
Investigation Committee wrote to the applicant and informed her that the S
Investigation Committee had considered and decided to withhold the
T T

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A A

B investigation of the complaint in light of the ongoing investigations by B

the PRC authority and the law firm.

C C

D
24. The applicant then requested the Law Society to review that D
decision by an email dated 28 February 2012.
E E

25. On 26 April 2012, the Law Society wrote to the applicant

F F
and informed her that it would withhold the investigation as the applicant
G G
had issued civil proceedings in the District Court against the law firm

H
claiming it had breached her secondment contract on the ground that it H
had wrongly terminated her services in March 2012.
I I

26. On 16 August 2012, the applicant wrote to the Chief Judge

J J
of the High Court of Hong Kong asking him to exercise his power under
K section 9A(2), to directly submit the complaint to the Tribunal Convenor. K

L L
27. On 4 October 2012, the Law Society wrote to the clerk of the
M Chief Judge and informed him that the applicants civil claim in the M

District Court had been struck out and that it would resume the
N N
investigation into her complaint including her request for a review of the
O Investigation Committees decision on 28 February 2012. This O

information was passed on to the applicant by the clerk of the Chief

P P
Judge in a letter dated 8 October 2012.
Q Q

28. On 11 December 2012, the Law Society informed the

R R
applicant that the SCOC, after considering the complaint afresh, resolved
S that the matters complained of by her were not within the scope of the S

T T

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A A

B jurisdiction of the Law Society and the complaint was unpursuable, the B

Law Society would not take any further action in this matter.
C C

D
29. On 17 December 2012, the applicant wrote again to the D
Chief Judge, informing him of the latest decision of the Law Society, and
E E
asking that he exercises his statutory power to directly submit the

F complaint to the Tribunal Convenor. There was a further letter on the F

matter from the applicant to the Chief Judge on 1 August 2013.
G G

H
30. On 30 August 2013, the Chief Judge wrote to the Law H
Society, noting the SCOCs decision not to investigate the matters for
I I
want of jurisdiction, and asked for elaboration in relation to the second

J
allegation which concerned the partner without proper qualification J
advising clients on PRC law in Hong Kong.
K K

31. On 16 September 2013, the Law Society wrote to the Chief

L L
Judge and informed him of the resolution of the SCOC on 9 November
M 2012 that the first, third and fourth allegations were unpursuable M

because they were not within the scope of jurisdiction of the Law Society
N N
and that the second allegation was unpursuable because the applicant
O had not provided evidence to support her allegation. O

P P
32. The Chief Judge by letter dated 11 October 2013 informed
Q the applicant of the contents of the Law Societys latest letter. The Q

Chief Judge also noted that his discretion under section 9A(2) to submit a
R R
complaint to the Tribunal Convenor was exercisable if he considered that
S the Council of the Law Society ought to have done so. He went on to S

state that in general terms only when the Council had considered the
T T

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A A

B complaint on its merits but had decided not to submit it to the Tribunal B

Convenor, and he disagreed with that decision, that he may, in his

C C
discretion, submit it instead. He noted that in the present case the
D Council had not considered the complaint on its merits, but decided not to D

submit it to the Tribunal Convenor for other reasons. He stated that he

E E
did not think it was an appropriate case for him to consider exercising the
F statutory power available to him. He also noted that there were other F

forms of legal redress available to an aggrieved complainant.

G G

H 33. On 16 January 2014, the applicant sought leave to judicially H

review the decision of the SCOC made on 9 November 2012. Leave
I I
was granted by Au J on 9 July 2014.

J J
34. At the first directions hearing of the present judicial review
K K
on 13 and 14 August 2014 before Au J, the Law Society informed the

L
Court and the applicant that having reviewed the matter, it accepted L
jurisdiction over the complaint and would proceed to investigate it.
M M

35. Sometime later, an application was made by the Law Society

N N
for security for costs against the applicant. It was heard on 27 October
O 2015 by Au J who refused the application in his decision dated 12 April O

2016.
P P

Q The grounds for judicial review Q

R 36. The applicant challenges the decision of the Law Society not R

to invoke its power under section 9A(1) to submit her complaint to the
S S
Tribunal Convenor.
T T

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A A

B 37. The initial relief sought was for an order that the Law B

Society submit her complaint to the Tribunal Convenor. The grounds

C C
for relief were that the Law Society had failed to perform its statutory
D duty under section 9A(1) to investigate her complaint and refer it to the D

Tribunal Convenor and therefore the decision was illegal; that the Law
E E
Society erred in denying its own jurisdiction over three of the allegations
F of complaint; that the Law Society failed to have due regard to the F

circumstances of the allegation in finding no supporting evidence in

G G
relation to the remaining allegation of complaint and therefore the
H decision was irrational; that the Law Societys decision was tainted by H

conflict of interest; that the procedure of making the decision was

I I
unlawful, unfair and improper; that the Law Society showed bias in
J making the decision; and that the Law Society failed to give reasons or J

sufficient reasons for its decision.

K K

L 38. After the Law Society had reconsidered its position and L

decided to investigate the applicants complaint, the applicant on 8

M M
November 2016 sought to amend her application by including additional
N relief that if the initial order was not possible both in fact or in law, for an N

order that the Law Society investigate the complaint afresh by due
O O
procedure; and a declaration that the Law Societys complaint handling
P procedure is defective to the extent that it fails to ensure independent and P

impartial handling of complaints against a Council member.

Q Q

R 39. The grounds for additional relief are that the fresh R
investigation was arbitrary, unfair and unlawful, and that inherent
S S
bias and conflict of interest exist in the Law Societys complaint

T handling procedure when the complained solicitor is a Council member. T

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A A

B 40. The general grounds of procedural irregularities alleged are B

that (1) the complained solicitor has been a Council member for more
C C
than 10 years and was still serving on the Council; (2) all or some of the
D members of the Investigation Committee might well be also Council D

members, but the applicant as the complainant was not made aware of the
E E
composition of the Investigation Committee; (3) the Chairman of the
F Standing Committee on Compliance at the time of the decision was also a F

Council member; (4) members of the Council have been meeting

G G
regularly and dealing closely with each other in relation to Council affairs;
H and (5) in the premises, there is actual conflict of interest for the Standing H

Committee on Compliance in making the decision relating to complaints

I I
made against a senior Council member, and in the alternative there is at
J least apparent bias since an objective and reasonable person in the J

position of a complainant, such as the applicant, would be of the view

K K
that there is a real risk of bias, in particular when the composition of the
L three member Investigation Committee is kept confidential. L

M M
Amending the application
N N
41. The applicant seeks to amend her application pursuant to
O Order 53, rule 6(2) of the Rules of the High Court. It is within the O

Courts discretion to grant an amendment to an application, whether by

P P
specifying different or additional grounds or relief or otherwise as it
Q thinks fit. A court will normally permit such amendments as may be Q

required to ensure that the real dispute between the parties can be
R R
determined, but fundamentally on the basis that it is fair and appropriate
S to do so in all the circumstances.3 S

T T
3
See Chu Woan Chyi v Director of Immigration [2006] 4 HKLRD 280, [34].

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A A

B 42. The applicant seeks the amendment in order to address what B

she says has now become the real issue in this judicial review following
C C
the Law Societys decision to conduct a fresh investigation, namely,
D whether the complaint handling procedure is inherently biased against a D

complainant and in favour of a Council member who is the subject of

E E
complaint, and whether there is a real risk of conflict of interest in the
F Law Societys handling of a complaint against a Council member. F

G G
43. Mr Abraham Chan, counsel for the Law Society, submits

H that the challenge to the original decision has been superseded by the H
fresh investigation and is wholly academic, and further that the new
I I
challenge to the complaint handling procedure is out of time and also

J wholly academic. J

K K
44. He points out that under the Law Societys updated policy,

L
complaints against Council members are to be handled only by L
Investigation Committees comprising only of Non-Council members.
M M
Whilst this is a welcomed initiative, it came about because of the

N
applicants judicial review. N

O 45. There has been in recent times extensive and critical O

commentary about the judicial review jurisdiction, but all in all it

P P
provides a very important and highly effective means by which an
Q Q
aggrieved citizen can seek and obtain legal redress and relief in relation to

R
a decision or act of a public body or entity. Due to the nature and R
subject of the jurisdiction, judicial intervention will only be warranted to
S S
the extent necessary and proportionate to achieve a just and practical

T
outcome in public administration. It is important to bear in mind that T

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 - 19 -
A A

B judicial intervention does not seek to supplant public administration, but B

rather to ensure it operates fairly, properly and efficiently in the exercise

C C
of its functions and duties to and for the public.
D D
46. Given the diversity and breadth of public administration,
E E
with its numerous structures and layers, the courts judicial review

F jurisdiction needs to be put in perspective and kept in check. The F

administrative courts finite resources necessitate that it will focus its
G G
efforts on truly necessary interventions and practical outcomes. This

H was stressed by Au J in Kwok Cheuk Kin v Chief Executive of Hong H

4
Kong, where he said:
I I
save in exceptional circumstances, the court would not by
J way of judicial review entertain challenges of intermediate J
decisions, which are not of final and substantive nature.
Moreover, the court would also not decide questions that had
K become or been rendered academic.5 K

L 47. It is well recognised that only in exceptional circumstances, L

and by that I mean where there is good reason in the public interest, will
M M
the courts entertain a question that is hypothetical or academic. The
N reason for this is obvious. The courts should be more concerned with N

cases which involve real and pressing disputes that through the
O O
intervention of the courts bring about a practical and meaningful outcome
P to public administration. P

Q Q
48. I do not agree with Mr Chan that the applicants amendment
R is out of time and academic. The amendment seeks to elaborate upon an R

S 4 S
[2015] 6 HKC 22.
5
At [20]. See also Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465, [20]
T (Ma CJHC) (as the Chief Justice then was). T

U U

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 - 20 -
A A

B issue that was always present and apparent in the applicants application. B

The central theme of her complaint has been the appearance of the lack of
C C
impartiality in the complaint handling procedure when the Council has to
D consider a complaint against a Council member. This has always been a D

live issue in these proceedings. Furthermore, the amendment has to

E E
some extent come about in consequence of the Law Societys decision to
F conduct a fresh investigation and shifts the emphasis in the applicants F

challenge to the complaint handling procedure.

G G

H 49. I therefore do not see that the amendment is either out of H

time, or addressing matters that are academic. It still remains to be
I I
resolved whether there is substance to the applicants arguments as to the

J fairness or propriety of the Law Societys disciplinary process when it J

concerns a Council member.
K K

L
50. No doubt the courts have to guard against a public authority L
taking corrective action in the face of a judicial review challenge, in order
M M
to avoid judicial intervention or scrutiny of the decision or act under

N
review. Where there is a public interest consideration, as will often arise N
in public law challenges, a court once seized of a matter is obliged to
O O
ensure that any wider public interest implication is appropriately

P
addressed.6 Obviously, a public authority taking appropriate corrective P
action as a result of a judicial review challenge is to be encouraged.
Q Q

R R

S S

6
T See the procedure in relation to a settlement of judicial review proceedings under Practice T
Direction SL, [23].

U U

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 - 21 -
A A

B Disclosure application B

C
51. Prior to the hearing of the substantive application, the C
applicant sought broad disclosure from the Law Society of all papers and
D D
files that it had in its possession in relation to her complaint. Unlike

E
private civil litigation, there is no automatic right of discovery or E
production of documents in judicial review proceedings. This is mainly
F F
due to two factors. First, a court in judicial review is concerned about

G whether some recognisable public wrong has taken place, and not about G
the merits of the decision or action under review. Secondly, the public
H H
authority whose decision or action is under review has a duty of candour

I to be full and frank with the applicant and the court. I

J J
52. For a court to order disclosure in judicial review, it must be

K
satisfied that such disclosure is necessary for disposing the critical issues K
7
fairly and justly, particularly, where resolution of the critical issues
L L
requires that the court be provided with adequate disclosure.8 Obviously,

M
any failure to discharge the duty of candour would weigh heavily in M
deciding whether to grant an order of disclosure if sought in such
N N
circumstances.

O O
53. By the time the disclosure application was made, the Law
P Society had filed, what can be fairly described as a full account of the P

history and the issues of the matter together with relevant background
Q Q
information. Having considered the nature and circumstances of the
R R
application and the written submissions from the parties on the issue, I

S S
7
Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650, [31] (Lord Carswell).
8
T Chu Woan Chyi & Ors v Director of Immigration [2009] 6 HKC 77, [14(7)] (Ma CJHC) (as the T
Chief Justice then was).

U U

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 - 22 -
A A

B was minded not to grant the application. However, I left the issue open B

if it emerged that disclosure of some kind was necessary and justified.

C C

D
54. At the conclusion of the hearing, I found no basis to change D
my mind on the issue. Moreover, there was no necessity or justification
E E
to order any disclosure, let alone the broad disclosure sought by the

F applicant. F

G G
The Law Societys duty under section 9A(1)

H H
55. The applicants main argument centres on the Law Societys

I
statutory duty under section 9A(1) which I have already set out. I

J 56. When the conduct of a practitioner comes to the attention of J

the Council, whether by complaint or otherwise, and it considers that

K K
the conduct of the practitioner should be inquired into or investigated, it
L is obliged to submit the matter to the Tribunal Convenor. L

M M
57. The key to this provision is that the Council is required to
N consider whether the conduct in question should be inquired into or N

investigated. If the Council does so decide, it must submit the matter to

O O
the Tribunal Convenor.
P P

58. It would appear that the decision requires a collective view

Q Q
of the Council according to its articles and procedures. As I have
R already noted, the Council consists of 20 members who are elected on a R

staggered basis by the membership. The Articles of Association of the

S S
Law Society govern the conduct and voting requirements of meetings of
T the Council. T

U U

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 - 23 -
A A

B 59. The applicant argues that the Councils function at this B

preliminary stage in handling complaints against solicitors, is to sift out

C C
wholly unmeritorious ones.
D D
60. The applicant submits, relying on a similar Scottish
E E
provision under section 2(4)(a) of the Legal Profession and Legal Aid

F (Scotland) Act 2007, that the Council should refer a complaint to the F
Tribunal Convenor if it is not frivolous, vexatious or totally without
G G
merit. The quoted phrase is the language of the Scottish provision. It

H is not the language of the Hong Kong provision. Whilst I have no doubt H
that the Council at this stage should sift out wholly unmeritorious
I I
complaints, according to the language of the statutory provision the

J Council is obliged to submit the matter to the Tribunal Convenor if it J

considers that the conduct in question should be inquired into or
K K
investigated. To consider something is to think carefully about it.
L In other words, the Council is obliged to think carefully about whether L

the conduct in question should be inquired into or investigated.

M M

N
61. As I have already noted, a regime is in place to deal with N
complaints against solicitors. The Conduct Section is given
O O
responsibility to investigate complaints and prepare a report which is

P
submitted to the Council for its ultimate decision under section 9A(1). P
The investigative work is carried out by Investigation Counsel who are
Q Q
employed by the Conduct Section. An Investigation Committee is

R established, consisting of three members of the SCOC, to oversee the R

investigation and to make a recommendation on the complaint. The
S S
recommendation of the Investigation Committee may be further

T considered by the SCOC before it is submitted to the Council. It is T

U U

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 - 24 -
A A

B primarily at this stage of the process that the applicant argues is defective B

when dealing with a complaint against a Council member.

C C

D
62. The SCOC consists of 19 practising solicitors, 10 of whom D
are Council members. Whilst the composition of the SCOC is made
E E
public, the identities of the three members of the Investigation Committee

F is not. So it is quite possible that an Investigation Committee could F

consist of one, two or even three Council members, which would not be
G G
disclosed, in relation to a complaint against a Council member. It is for

H this reason that the applicant argues that a reasonable observer may view H
the disciplinary process against a Council member with scepticism
I I
because of the likelihood of the complaint being handled by a fellow

J Council member or members. J

K K
63. The applicant further argues that the threshold that the

L
Council has to meet in making a referral is not high, and is lower than a L
prima facie case. She bases her argument on Rule 6 of the Solicitors
M M
Disciplinary Tribunal Proceedings Rules, Cap 159C, which provides that

N
when a complaint has been referred to the Solicitors Disciplinary N
Tribunal, it can dismiss the complaint summarily on the papers if it finds
O O
that there is no prima facie case of professional misconduct. The rule

P
reads: P

6. Dismissal without answer by respondent

Q Q
(1) If upon consideration of any such documents transmitted
R to the Solicitors Disciplinary Tribunal under rule 4, the R
Solicitors Disciplinary Tribunal is of the opinion that no
prima facie case is shown for any disciplinary action, the
S Solicitors Disciplinary Tribunal may dismiss the S
application without requiring the respondent to answer
the allegations, and without hearing the applicant.
T T

U U

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 - 25 -
A A

B
(2) If required so to do either by the applicant, the Society or B
the respondent, the Solicitors Disciplinary Tribunal shall
make a formal order dismissing such application and the
C clerk shall file the order pursuant to section C
10(3) and section 12(2) of the Ordinance.
D D
64. Relying on the test in Rule 6, the applicant submits by
E reverse logic that the threshold the Council needs to meet is less than a E

prima facie case. I do not agree. The test that the Council has to apply
F F
is as I have stated one that follows the language of section 9A(1), namely
G that it considers whether the conduct in question should be inquired G

into or investigated.
H H

I 65. Clearly the function of the Council at this stage of the I

disciplinary process is to determine whether or not to submit the conduct

J J
in question for inquiry or investigation. It is a referral function, not a
K proper investigatory one. However, it does require the Council to K

examine and evaluate the conduct in question, whether by complaint or

L L
otherwise, bearing in mind it is a referral function, warranting a prompt
M and informed decision. M

N N
The fresh investigation cannot supersede the decision or the decision-
O making process O

P
66. I have difficulty understanding the applicants argument P
under this ground. It appears she is complaining that the fresh
Q Q
investigation does not satisfy the alternative relief sought. She argues

R
that the decision-making process is tainted by procedural unfairness, bias R
and conflict of interest, and therefore the original decision is unlawful and
S S
irrational, and the fresh investigation is arbitrary, unfair and unlawful.

T T

U U

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 - 26 -
A A

B 67. The problem with this argument is that it is based on B

unsubstantiated assertions that the Council members (all 20 of them) have

C C
acted in concert to protect the partner, the subject of the complaint. It is
D also inconsistent with the general relief sought by the applicant. The D

present proceedings were brought by the applicant against the Councils

E E
decision not to submit her complaint to the Tribunal Convenor through an
F independent and impartial process. The relief sought was that the F

Council should do so. The Council has arranged for the applicants
G G
complaint to be investigated by a specially appointed Investigation
H Counsel and a three-member Investigation Committee, who have no H

previous involvement in the applicants case, nor any connection with the
I I
Council. Even though this is essentially the relief the applicant sought,
J she challenges the referral as arbitrary, unfair and unlawful. J

K K
68. As I understand the applicants argument and the position
L that she now takes, is that the existing decision-making process is L

defective for the reasons she has submitted, and therefore the decision or
M M
any further decision of her complaint is tainted. Her argument rests on
N whether the existing decision-making process is defective as she has N

submitted. Although her argument does not necessarily mean that a

O O
subsequent decision is tainted because of a previous decision. It will
P depend upon the circumstances of the case. P

Q Q
69. The applicant also argues that there is no guarantee that her

R complaint will be handled independently and impartially. She notes R

that the Law Society has a statutory duty to regulate solicitors to ensure
S S
they act according to professional standards and in the public interest.

T She argues that this public responsibility conflicts with the Law Societys T

U U

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 - 27 -
A A

B private responsibility as a representative of the interests of solicitors in B

Hong Kong.
C C

D
70. Whilst the Law Society has these dual responsibilities, it D
does not mean they are in conflict as the applicant argues. As long as
E E
there are appropriate checks and balances, the two responsibilities can co-

F exist. It is in the interests of the legal profession and all its members F
that improper or unfit practitioners are appropriately dealt with after it is
G G
found that they have misconducted themselves or are no longer fit to

H practice. This is substantially reflected by the regulations and rules that H

have been promulgated, and the guidelines and mechanisms in place to
I I
address any violation or breach of them.

J J
71. The applicant complains of the resistance to her application
K K
from the Law Society and the applications it has made against her in the

L
course of these proceedings. She alleges that this evidences the Law L
Society covering up an embarrassing complaint against a Council
M M
member and avoiding to address the sensitive subject of the complaint

N
concerning the practice of mainland China laws by Hong Kong solicitors. N

O 72. I find no substance to these allegations. As far as I am O

concerned the Law Society has taken a principled approach in dealing

P P
with this application and there is nothing to suggest that anything
Q untoward has taken place. Q

R R
73. I should add that this Court has been informed by the Law
S Society that the new investigation has been conducted and completed. S

The investigation was carried out by an Investigation Counsel from the

T T

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 - 28 -
A A

B Conduct Section with no prior involvement in the case. The B

Investigation Counsels findings and relevant supporting material were

C C
thereafter provided to an Investigation Committee comprised of three
D Non-Council members for their consideration and decision. The D

Investigation Committee reviewed and considered the procedure and

E E
findings of the Investigation Counsel and agreed with her conclusion that
F the matter did not warrant referral to the Tribunal Convenor. F

G G
Whether the complaint handling process is defective
H H
74. Au J in his decision on security for costs noted that one of

I the fundamental grounds the applicant raised in the judicial review is that I
there is procedural unfairness in the process of the investigation of the
J J
complaint relating to the partner as a senior member of the Council. He

K observed that the critical elements in this ground were that (a) there is an K

appreciable chance for all or some of the three-member Investigation

L L
Committee appointed to investigate a complaint relating to a Council
M member to be comprised of also Council members; (b) Council members M

share a close and regular working relationship; and (c) the complainant is
N N
not informed as to whether the Investigation Committee comprised of any
O Council member. O

P P
75. Au J observed that in light of the allegations of procedural

Q
unfairness which is inherent in the process, the mere fact that the Law Q
Society had decided to reconsider the complaint afresh did not by itself
R R
remove any defects that may be present.9 I agree with this observation.

S S

9
T Zhu Li v The Law Society of Hong Kong, HCAL 8/2014, 12 April 2016, unreported, [28]. T

U U

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 - 29 -
A A

B 76. The applicants argument that the complaint handling B

process is defective is mounted on the proposition that it fails to ensure

C C
independence and impartiality in handling of complaints against a
D Council member. It is primarily based on the perception, whether D

correct or not, that self-regulatory bodies have a tendency to look after

E E
their own. Such perception is brought into sharp focus when the
F member allegedly being looked after is in high office and well connected F

within the body. It is therefore of vital importance that self-regulatory

G G
bodies especially professional bodies or the like, that serve the public
H interest or have public responsibilities, are open, transparent and H

accountable in regulating and disciplining its members. It achieves

I I
these objectives in a number of ways, principally by putting in place a
J regime of guidelines, rules and procedures that seek to ensure that the J

Council is open and accountable, and fair and impartial, in the exercise of
K K
its disciplinary functions. I note that the Law Society has guidelines
L concerning conflict of interest and procedures for declaring an interest. L

M M
77. The main point that the applicant makes in her application is
N that there is an apparent conflict of interest when Council members have N

to consider a complaint against a fellow Council member. She argues

O O
that the complaint handling procedure is defective because it does not
P differentiate complaints concerning a Council member from other P

complaints. She submits that a good complaint handling procedure in

Q Q
this case should have appropriate safeguards and an independent
R checkpoint to ensure that complaints against a Council member are R

handled independently and fairly. There can be no disagreement with

S S
this proposition. The question for this Court is whether this is the case.
T T

U U

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 - 30 -
A A

B Whether the relief is justified in the circumstances B

C
78. The applicant takes issue with the reasons given by the Law C
Society for not referring her complaint to the Tribunal Convenor. She
D D
argues that the suggestion that there was a lack of evidence as to one of

E
her allegations was not a proper reason for not referring the case. She E
makes three points. First, the Law Society had not sought any further
F F
evidence or comments from her. Secondly, the Tribunal Convenor has

G the power to summarily dismiss the case if there is no prima facie case of G
misconduct and during its proceedings the parties are given the
H H
opportunity to adduce evidence (or any further evidence). Thirdly, on

I the evidence she provided by letter dated 9 December 2011 there was a I
prima facie case for referral.
J J

K
79. As I have explained, the Law Society in the face of this K
judicial review referred the applicants complaint for fresh
L L
investigation. The applicant argues that the decision by the Law

M
Society not to refer her complaint to the Tribunal Convenor meant it did M
not find a prima facie case. And yet she suggests, the decision to
N N
conduct a fresh investigation proves that the threshold for referral had

O
been met. I do not think that that logically follows. O

P 80. It seems to me that the Law Society is standing by its P

original decision but in order to allay and address the concerns raised by
Q Q
the applicant, it has nevertheless referred her complaint for independent
R R
investigation and consideration. Although the applicant questions the

S
method employed by the Law Society in seeking to consider her S
complaint afresh, she submits that in the circumstances it would be more
T T
suitable for the Tribunal Convenor to decide whether there is a prima

U U

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 - 31 -
A A

B facie case of misconduct. In practical terms, the applicant has had her B

complaint independently assessed, and in any event, it seems to me that

C C
the method employed by the Law Society was, in the circumstances, an
D entirely appropriate and acceptable one. D

E E
The systemic challenge
F F
81. The applicants complaint is that the Law Societys

G procedure was not only unfair in her case but systemically lacking in G
fairness and impartially. The systemic challenge was further
H H
particularised in the amended application.

I I
82. The Law Societys complaint handling procedure can only
J J
be systemically unlawful if there is some unfairness or other procedural

K
defect that is inherent in the system. Mr Chan points out that even K
where a statutory procedure is said to contravene constitutional rights,
L L
true systematic incompatibility must be shown. This was emphasised

M
by Ribeiro PJ in Lam Siu Po v Commissioner of Police10 where in the M
circumstances of that case the burden was discharged because the
N N
impugned procedural provisions imposed a blanket restriction, and

O
wholly precluded the Tribunal from allowing professional legal O
representation in any individual case.
P P

83. Mr Chan rightly points out that absent any inherent defect,
Q Q
any alleged unfairness arising from the operation of the procedure in a
R R
given instance would be case specific. He submits that assuming the

S
particular allegation is proven, this may give rise to a specific remedy in S

T T
10
(2009) 12 HKCFAR 237, [142].

U U

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 - 32 -
A A

B that case, such as quashing the particular decision concerned, but would B

not be the basis for a sweeping declaration that the procedure and the
C C
system overall are generally defective. It has to be shown that there is
D an inherent defectiveness in the system that will spawn unfairness in its D

various manifestations.
E E

F 84. Mr Chan argues that at its highest, the applicants case is that F
the original decision was unfair to the extent that it resulted from
G G
deliberation by an Investigation Committee comprising one or more

H Council members. He submits that the applicant cannot point to any H

ingrained feature of the Law Societys procedure that might make the
I I
general procedure inherently unfair. He gives as an example of such

J possible unfairness where the procedure was to include a standard J

direction or formal arrangement for complaints against Council members
K K
to be handled by an Investigation Committee made up of one or more
L other Council members. It seems to me that this example tends to L

support the applicants argument for her complaint that there is no

M M
measure in place to prevent Council members sitting on the Investigation
N Committee in relation to a complaint against a fellow Council member. N

O O
85. By this example, it seems to be acknowledged that fellow

P
Council members, who know and deal with each other on a regular basis, P
should not be sitting in judgement of each other as to whether a complaint
Q Q
against one of their members should be referred for inquiry or

R investigation. Such a close association or connection would be an R

apparent conflict of interest that would normally be declared and/or
S S
disqualify the person from being involved in the matter concerned. The

T composition of a decision making body may give rise to the risk of T

U U

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 - 33 -
A A

B unfairness. This was a matter that Au J mentioned in his decision on the B

security for costs.

C C

D
86. It is appropriate to refer more fully to the principles as stated D
by the Court of Final Appeal in Lam Siu Po, even though the Court
E E
examined the issue of systemic incompatibility in the context of a

F constitutional challenge. The Court explained that it would consider the F

fairness of a procedure or process having regard to its entirety. This
G G
would include the availability of judicial review. Accordingly, where a

H potentially unfair situation arising from the operation of a challenged H

procedure in a given case can be remedied by access to judicial review,
I I
then the Court would not find the procedure itself to be systemically

J defective. The Court emphasised that systemically, the availability of a J

case specific remedy by judicial review makes the general process itself
K K
public law compliant.
L L
87. Whilst the general process is public law compliant, there is
M M
an anomaly when dealing with a complaint against a Council member.

N
There is in my view an inherent defect in the general process to the extent N
when the complaint relates to a Council member. It is not an
O O
insignificant or case specific defect for it is inherent in the procedures

P
when dealing with complaints against Council members. Having said P
that, the issue can be remedied with appropriate administrative
Q Q
arrangements and guidelines to ensure that a complaint against a Council

R member is handled properly and fairly, without fear or favour. The R

solution is a simple one.
S S

T T

U U

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 - 34 -
A A

B Challenge to the fresh investigation B

C
88. The applicant comes under strong criticism from the Law C
Society on her submission to this ground which consists of the bare
D D
assertion that the fresh investigation was arbitrary, unfair and unlawful.

E
I can understand the Law Societys response that the applicant has made E
no attempt to particularise or substantiate the allegation. As far as I am
F F
concerned, the Law Society sought to address the complaints made by the

G applicant in relation to the original decision by conducting the fresh G

investigation, although maintaining that no unfairness or impropriety
H H
had taken place in the first instance.

I I
89. Section 9A(1) leaves it to the Council to consider whether
J J
the conduct of a solicitor should be inquired into or investigated as a

K
result of a complaint or otherwise. This confers a discretion on the K
Council which it delegated to the Conduct Section and Investigation
L L
Committee.

M M
90. Mr Chan argues that the Councils discretion is akin to a
N prosecutorial discretion. I do not agree. A prosecutorial discretion is N

set in a completely different context, and the nature and exercise of it is

O O
governed by a different body of principles and laws.
P P

91. He further argues that the impugned decision falls within a

Q Q
wider discretion to the Law Society, and that the courts are generally
R reluctant to interfere with the judgment of professional bodies on matters R

of professional conduct, unless plainly wrong. He cites the cases of

S S
Re A Solicitor [1988] 2 HKLR 137 per Barker JA at 144A-E; A Solicitor
T v The Law Society of Hong Kong [1997] HKLRD 63 per Nazareth VP at T

U U

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 - 35 -
A A

B 69B-C and per P. Chan J (as he then was) at 72E; Tong Pon Wah v Hong B

Kong Society of Accountants [1998] 2 HKLRD 427 per Liu JA at 443I;

C C
and Hong Kong Civil Procedure 2017 at paragraph 106/0/2.
D D
92. These are cases dealing with the principle that the propriety
E E
of the conduct of a professional person is best judged by his or her peers.

F This is not the principle in issue in this case. It is a question of whether F

procedures are fair when dealing with a complaint against a Council
G G
member. Indeed, the Law Society seems to acknowledge that the

H procedures it employed in the past when dealing with a complaint against H

a Council member were open to criticism, and as a result it changed and
I I
improved the procedures to address the issue. I have already expressed

J my view as to how the matter can be remedied and this is something that J
the Law Society may need to address further in light of this judgment.
K K

L Conclusion L

M
93. By the present proceedings, the applicant sought the Law M
Society to investigate her complaint against the partner. She specifically
N N
sought that the Law Society submit her complaint to the Tribunal

O
Convenor pursuant to section 9A(1). The Law Society instead had her O
complaint investigated by an Investigation Counsel and an Investigation
P P
Committee consisting of members that were not previously involved in

Q
her case and not members of or connected with the Council. Q

R R
94. The applicant complained that the Law Society had a duty to

S
investigate her complaint and refer it to the Tribunal Convenor. The S
duty imposed under section 9A(1) is to consider whether the conduct of a
T T
solicitor should be inquired into or investigated, and if it does, it must

U U

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 - 36 -
A A

B submit the complaint to the Tribunal Convenor. The applicants B

allegations that the Law Society had erred in denying jurisdiction over
C C
three of the allegations of complaint and finding that there was
D insufficient evidence in relation to the remaining allegation of complaint D

were addressed in the sense that the Law Society conducted a fresh
E E
investigation in relation to the allegations of complaint.
F F
95. The applicant further complained that the Law Societys
G G
decision was tainted by a conflict of interest, that the procedure it

H employed was unlawful, unfair and improper, and that it showed a bias H
in making the decision. These matters were not made out and the Law
I I
Societys corrective action in conducting a fresh investigation dispelled

J any suggestion of impropriety or bias. It was shown that there was an J

anomaly in the disciplinary process when the complaint under
K K
consideration concerns a Council member.
L L
96. The stage in the disciplinary process at which the Council
M M
makes its decision pursuant to section 9A(1) does not require that formal

N
reasons should be given. It is at the formative stage of the disciplinary N
process where the Council considers whether or not the conduct of the
O O
solicitor should be inquired into or investigated. In any event, there was

P
an exchange of correspondence where reasons were given. P

Q Q
97. The applicant amended her grounds for review to allege that

R
the fresh investigation was arbitrary, unfair and unlawful and that R
inherent bias and conflict of interest exist in the Law Societys
S S
complaint handling procedure in relation to a Council member. I found

T
that there is no substance to these grounds. There is as I said an T

U U

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 - 37 -
A A

B anomaly in the disciplinary process when the complaint under B

consideration concerns a Council member. I agree with Mr Chan that

C C
this does not render the whole disciplinary process defective. It seems
D to me that the matter can be properly addressed by putting in place a D

regime that ensures that a complaint against a Council member is dealt

E E
with properly and fairly.
F F

Costs
G G
98. I have given the question of costs anxious consideration.
H H
The applicant by this application has caused the Law Society to

I reconsider its decision and to investigate her complaint as she had I

initially sought. She has nevertheless continued her challenge, and
J J
refined her grounds of review. She has unfortunately at times used

K extreme language and made unsubstantiated allegations in advancing her K

case. Her allegations against the Law Society of collusion and bias in
L L
relation to this complaint were unsubstantiated, and quite frankly without
M foundation, bearing in mind the structure and the composition of the M

Council and the manner in which it conducts its affairs and business.
N N

O
99. From my assessment of the case, I have no doubt that the O
Law Society initially stood its ground on principle but later in a genuine
P P
effort to resolve the dispute with the applicant agreed to reconsider its

Q
decision. The applicant has succeeded in identifying an anomaly in the Q
complaint handling procedures when a complaint is made against a
R R
Council member. The Law Society has addressed the matter in the

S present case, and no doubt it has general guidelines concerning conflict of S

interest and procedures for declaring an interest in relation to its ordinary
T T
affairs and business. It would seem to me that the Law Society needs to

U U

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 - 38 -
A A

B specifically address this issue with appropriate guidelines and measures. B

However, the applicant has not been successful in advancing arguments

C C
against the fresh investigation, and unfortunately has resorted to
D making allegations against the Law Society that are without foundation. D

E E
100. Therefore, on the question of costs, I am inclined to award

F the applicant 60 percent of her costs. Such costs would be limited F

because the applicant has acted in person but in any event she may have
G G
incurred costs of some sort. I therefore make an order nisi that the Law

H Society pay 60 percent of the applicants costs, to be taxed if not agreed. H

I I

J J
(Kevin Zervos)
K Judge of the Court of First Instance K
High Court
L L

The applicant appeared in person

M M

Mr Abraham Chan, instructed by Lipman Karas, for the respondent

N N

O O

P P

Q Q

R R

S S

T T

U U

V V