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HCMP 1304/2016
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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 1304 OF 2016

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IN THE MATTER OF section 6(9) of

the Legal Practitioners Ordinance
(Cap. 159)

and

IN THE MATTER OF the appeal of

Cheung Yick Hung also known as
Cheung Yick Hung Jackie against the
Law Society of Hong Kong under
section 6(9) of the Legal Practitioners
Ordinance (Cap. 159)
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BETWEEN

Appellant

and
THE LAW SOCIETY OF HONG KONG
Respondent

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CHEUNG YICK HUNG also known as

CHEUNG YICK HUNG JACKIE

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HCMP 1305/2016
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_______________

IN THE MATTER OF section 6(9) of

the Legal Practitioners Ordinance
(Cap. 159)

IN THE MATTER OF the appeal of

CHUNG SZE YUEN against the Law
Society of Hong Kong under section
6(9) of the Legal Practitioners
Ordinance (Cap. 159)
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BETWEEN
CHUNG SZE YUEN
Appellant

THE LAW SOCIETY OF HONG KONG

Respondent

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Before : Hon Poon JA in Chambers

Date of Written Submissions : 2 November 2016

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Date of Judgment : 9 November 2016

and

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and

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 1305 OF 2016

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J U D G M E N T (NO. 2)
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A.
1

INTRODUCTION
This judgment should be read together with the judgment

that I handed down on 5 October 2016 (the Main Judgment). For

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present purposes, I will adopt the same abbreviations and nomenclatures

used in the Main Judgment.

I found that the Law Societys view that the appellants were responsible

principal basis for the Law Society making the Decisions had not been

90.

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was not borne out sufficiently by evidence. I therefore held that the

For the reasons that I gave at Part E5 of the Main judgment,

established. But I went on to observe :

for supervision and management of the TST Office and the YMT Office
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Mr Chan submitted that the appellants indisputably did

undertake work and serve clients under the auspices of
the Firm. In so doing, their clients were, at minimum,
exposed to the risk of substantial harm by reason of the
systemic failings in the Firms administration, including
its parlous accounting and client-fund handling
practices. There is no suggestion that the appellants
took steps to ensure that the Firms general
administration was sound before exposing their clients
to it. Instead, all objective facts suggest that the
appellants themselves were, at best, cavalier, and
indifferent as to the Firms managerial and
administrative practices. Thus from a public protection
perspective, all this more than suffices to warrant the
imposition of the conditions by way of the Decisions.
And given the appellants fundamental failure to be alert
to and protect their clients against the Firms deep and
manifold problems, each of the conditions is appropriate
for the purposes of safeguarding the appellants conduct
as practising solicitor and the interests of the public.

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91.

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I can see considerable force in Mr Chans submissions.

The appellants conduct, even on their own case,
viewed against the systemic failings in the Firms
practice, as reasoned by counsel, may justifiably call for
immediate disciplinary action by the Law Society by
imposing conditions on their practising certificate. The
Law Society should approach the matters afresh
accordingly to see if that is in fact the case for each of
the appellants and if so what conditions should be
imposed on each of their practising certificate.

I then indicated that I was minded to remit the matters to the

Law Society for reconsideration in accordance with my observations.

But I took the view that the parties might well wish to be heard before I
actually made an order to that effect. So I directed them to lodge their

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dispose of the outstanding matters on paper. The parties have duly placed

the appeals and costs as follows.

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B.

DISPOSAL OF THE APPEALS

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B1.

Parties stance
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Section 6(11) of the LPO provides :

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On an appeal to the Chief Judge under subsection (9) or (10) he

may
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affirm the decision of the Society or Council;

(b)

direct the Society to issue a practising certificate to the

appellant free from conditions or subject to such
conditions as he thinks fit; or

(c)

2016. Having carefully considered their submissions, I will dispose of

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submissions on how to dispose of the appeal and costs. I would then

before me their written submissions, both of which are dated 2 November

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remit the matter to the Society or Council for

reconsideration with such directions as he thinks fit.

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Both the Law Society and the appellants take the view that

the interests of justice militate against the court remitting the matters back
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my discretion under section 6(11) of the LPO, although they differ as to

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Mr Chan for the Law Society submitted that I should affirm

the Decisions under section 6(11)(a).

Mr Deng for the appellants

Decisions. With respect, I think he has misunderstood the effect of the

Main Judgment. I have not made any order to that effect. And that is
the appeals. Mr Deng next submitted that under section 6(11)(b), I may
direct the Law Society to issue practising certificates to the appellants
12 months from the date of the Decisions.
My view

In light of my finding that the principal basis enabling the

Law Society to impose the conditions in question on the appellants

practising certificate had not been established by evidence, the Decisions
must be set aside.

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Mr Chan submitted that I can affirm the Decisions by reason

of the considerations highlighted at [90] and [91] of the Main Judgment.

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B2.

exactly why I invited for the parties submissions on how to dispose of

submitted that I have already by the Main Judgment quashed the

either free from conditions or with conditions 2, 3 and 4 in Schedule 1 for

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to the Law Society for reconsideration. They both invite me to exercise

the actual order that I should make.

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Mr Chans submission is based on the premise that I would exercise my

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discretion under section 6(11)(b) by directing the Law Society to issue

practicing certificates to the appellants with the same conditions imposed

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Society for reconsideration. However, for the reasons to be given below,

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The Law Society is the primary decision maker on

disciplinary matters.

professional practice rather than the court : Miller v Law Society of Hong
Kong [2014] 3 HKLRD 1, per Lam VP at [29]. Although both parties

materials are required, it remains the case that the Law Society had not
approached the matters in accordance with what I consider to be the
the Decisions. Mr Chan submitted that his submissions as summarized at
[90] of the Main Judgment represent the current view of the Law Society.
appellants arguments as set out in Mr Dengs written submissions. (Both
Mr Chans and Mr Dengs written submissions are dated 2 November
in fairness, the appellants should be given the opportunity to present to
the Law Society, who is the primary decision maker, their case as per Mr
Dengs written submissions or any further necessary submissions as to

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why no conditions should be imposed or only conditions 2, 3 and 4 of

Schedule 1 should be imposed for 12 months on their practising
certificate. The Law Society can then assess the matters afresh with their

accept that all the relevant evidence is before the court and no further new

2016 and Mr Chan has not made any submissions on Mr Dengs.) I think
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It is normally in a better position to assess

However, the Law Society has apparently not taken into account the
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correct basis as set out at [90]-[91] of the Main Judgment when it made
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despite the parties common stance in this regard.

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by way of the Decisions without remitting the matters back to the Law
I am of the view that I should remit the matters back to the Law Society,

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full case in mind and determine if and, if so, what conditions should be
imposed on their practising certificates. I have considered the option of

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holding a further oral hearing. Eventually I decided that the better course

there are good reasons why the legislation entrusted the Law Society with

that primary task to the Law Society and will only review its decisions on
appeal, if necessary.

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Accordingly, I make the following orders to dispose of the

(1)

The appeals are allowed;

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(2)

The Decisions are set aside;

(3)

The matters are remitted back to the Law Society for

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at [91] of the Main Judgment.

Orders

reconsideration in accordance with the courts observations

appeals :

imposed on a solicitors practising certificate. I should therefore leave

For as Lam VP observed in Miller v Law Society of Hong Kong, ibid,

the task of making a primary decision on whether conditions should be

directing Mr Chan to lodge further submissions in reply to Mr Dengs and

to take is to remit the matters back to the Law Society for reconsideration.

COSTS

Subject to one point, costs of the appeals should follow

event. The point is this. In the Main Judgment, I identified two main
issues for determination.

Issue 1 was on statutory construction.

Considerable time and submissions had been devoted to it.

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eventually it was resolved in favour of the Law Society. That being the
case, the appellants are not entitled to have their costs in full. Rather,

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appellants 50% of their costs, to be taxed if not agreed.

(Jeremy Poon)
Justice of Appeal

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Mr Earl Deng, instructed by Tang, Wong & Chow, for the appellants
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Mr Abraham Chan, instructed by Deacons, for the respondent

they should have 50% only. I therefore order the Law Society to pay the

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