Solicitor Clifton Wong Guilty of Professional Misconduct (黃澤林律師專業失當罪成)

事務律師黃澤林專業失當罪成 (Lawyer Clifton Wong Guilty of Professional Misconduct)

Findings and order:
27 May 2011

The Solicitors Disciplinary Tribunal found the following complaint against the Respondent Solicitor Clifton Wong proved on his own admission:

Breach of Principle 14.02 of the Hong Kong Solicitors’ Guide to Professional Conduct Vol 1, 2nd Edition in that the Respondent, being a partner of Messrs Li, Wong, Lam & WI Cheung and the solicitor-in-charge of a conveyancing transaction, failed to honour the undertaking to send to the vendor’s solicitors the conveyancing documents as stated in the letter from the vendors’ solicitors dated 29 September 2009 within the stipulated time which was imposed on him in the said letter.

The Tribunal, having considered: (i) that the Respondent had expressed no remorse in his breach of the undertaking and a heavy fine may not change his attitude in honouring undertakings; and (ii) his admission of the charge and his plea of mitigation, ordered that:

1. the Respondent be censured;
2. the Respondent be fined HK$20,000.00;
3. with effect from 2 July 2011, the Respondent’s practice as a solicitor be subject to the following conditions for two years:
   1. that he cannot practise as a sole proprietor or partner of a solicitors firm; and
   2. that his practice as a solicitor be subject to the supervision of a full-time solicitor of no less than 15 years’ standing and also of good standing.
4. the Respondent pay the costs of these proceedings, including the costs of the Clerk and the Law Society in investigating into the matter, such costs to be taxed, if not agreed, on a party-and-party basis.

 

(Source 1: http://www.hk-lawyer.org/en/article.asp?articleid=430&c=121)

(Source 2: http://www.hk-lawyer.org/tc/article.asp?articleid=430&c=121)

鄭子駒律師專業失當罪成 - Solicitor T K Cheng Guilty of Professional Misconduct

Lawyer Cheng Tze Kui Guilty of Professional Misconduct - 事務律師鄭子駒專業失當罪成

 

Findings and order:
6 September 2011

The Respondent, at all the material times, was the sole proprietor of Messrs TK Cheng & Co (‘the Firm’) and the Firm had two offices with the main office at Mongkok (‘Mongkok Office’) and a branch office at Central, Hong Kong (‘Hong Kong Office’).

On 18 May 2011, the Solicitors Disciplinary Tribunal found the following 11 complaints against the Respondent proved on his own admission:

1st ComplaintBreach of Rule 10(1) of the Solicitors’ Accounts Rules in which the Respondent, on 27 April 2006, had failed to keep properly written up client ledgers in the Hong Kong Office in that transactions of payments of client’s money paid by the Mongkok Office on behalf of clients of Hong Kong Office were not recorded in the client ledgers of the Hong Kong Office resulting in a debit balance of HK$324,889 recorded under ‘TEMP-HK OFFICE CLT’.

2nd ComplaintBreach of Rule 10(1) of the Solicitors’ Accounts Rules in which the Respondent, on 27 April 2006, had failed to keep properly written up client ledgers in the Mongkok Office in that transactions of payments of client’s money paid by the Hong Kong Office on behalf of clients of Mongkok Office were not recorded in the client ledgers of the Mongkok Office resulting in a credit balance of HK$246,043.06 recorded under ‘MK-CLT’S A/C’.

3rd ComplaintBreach of Rule 10(1) of the Solicitors’ Accounts Rules in which the Respondent, on 29 January 2007 had failed to keep properly written up client ledgers in the Hong Kong Office in that transactions of payments of client’s money paid by the Mongkok Office on behalf of clients of Hong Kong Office were not recorded in the client ledgers of the Hong Kong Office resulting in a debit balance of HK$308,729 recorded under ‘TEMP-HK OFFICE CLT’.

4th ComplaintBreach of Rule 10(1) of the Solicitors’ Accounts Rules in that, on 29 January 2007, the total clients’ money recorded in the client ledgers was greater than the total clients’ money recorded in the clients’ cash books by HK$733,707.

5th ComplaintBreach of Rule 10(1) of the Solicitors’ Accounts Rules in that the Respondent, on 29 January 2007, failed to ensure no debit balance occurred in clients’ account in the Mongkok Office. There were a total of 13 debit entries.

6th ComplaintBreach of Rule 10(1) of the Solicitors’ Accounts Rules in that the Respondent, on 29 January 2007, had failed to keep properly written up client ledgers in the Mongkok Office in that transactions of payments of client’s money paid by the Hong Kong Office on behalf of clients of Mongkok Office were not recorded in the client ledgers of the Mongkok Office resulting in a credit balance of HK$508,145.95 recorded under ‘MK-CLT'S A/C’.

7th Complaint Breach of Rule 10(1) of the Solicitors’ Accounts Rules in that the Respondent, on 29 January 2007, failed to ensure no debit balance occurred in clients’ account in the Hong Kong Office. There were a total of five debit entries.

8th ComplaintBreach of Rule 10(1) and 10(2) of the Solicitors’ Accounts Rules in that the Respondent, on 29 January 2007, upon making 62 entries of transfer of money from the clients’ bank accounts in the total sum of HK$733,707 to the office bank account, failed to record any entries of transfer in the corresponding client ledgers and as a result the total clients’ money recorded in the client ledgers was greater than the total clients’ money recorded in the clients’ cash books by HK$733,707.

9th ComplaintThe Respondent, on 23 April 2007 was in persistent failure to comply with Principle 4.10 of the Guide and Rule 2(e) of the Solicitors’ Practice Rules in that the bills prepared by the Firm did not contain sufficient information to identify the matters to which the bills related or contain erroneous information.

10th ComplaintBreach of Section 8(1) of the Legal Practitioners Ordinance (Cap 159) in that the Respondent had failed to deliver to the Council of the Law Society on or before 31 October 2006 an Accountant’s Report of the Firm for the accounting period from 1 August 2005 to 31 July 2006 and the said report was late for one year and 29 days.

11th ComplaintBreach of Section 8(1) of the Legal Practitioners Ordinance (Cap 159) in that the Respondent had failed to deliver to the Council of the Law Society on or before 31 October 2008 an Accountant’s Report of the Firm for the accounting period from 1 August 2007 to 31 July 2008 and the said report was late for one month and 16 days.

The Tribunal, having considered the Respondent&’s mitigation, ordered that:

1. the Respondent be censured;
2. the Respondent be fined HK$5000 in relation to the 1st Complaint;
3. the Respondent be fined HK$5000 in relation to the 2nd Complaint;
4. the Respondent be fined HK$5000 in relation to the 3rd Complaint;
5. the Respondent be fined HK$5000 in relation to the 4th Complaint;
6. the Respondent be fined HK$5000 in relation to the 5th Complaint;
7. the Respondent be fined HK$5000 in relation to the 6th Complaint;
8. the Respondent be fined HK$5000 in relation to the 7th Complaint;
9. the Respondent be fined HK$5000 in relation to the 8th Complaint;
10. the Respondent be fined HK$10,000 in relation to the 9th Complaint;
11. the Respondent be fined HK$10,000 in relation to the 10th Complaint;
12. the Respondent be fined HK$15,000 in relation to the 11th Complaint;
13. the Respondent is to pay the amounts above totalling HK$75,000 by monthly instalments with a first instalment of HK$5000 to be paid on 1 October 2011 and the balance of HK$70,000 by 14 monthly instalments of HK$5000 each to be paid on the first day of each month; and
14. the Respondent shall pay HK$160,000 to the Law Society and HK$27,000 to the Clerk in full and final settlement of costs of these proceedings, the said sum of HK$187,000 shall be paid by monthly instalments with a first instalment of HK$7000 be paid on 1 October 2011 and the balance of HK$180,000 by 18 monthly instalments of HK$10,000 each to be paid on the first day of each month. In the event that the Respondent fails to pay any instalment on time, the outstanding amount of costs becomes due and payable by him immediately.

 

(Source 1: http://www.hk-lawyer.org/en/article.asp?articleid=425&c=121)

(Source 2: http://www.hk-lawyer.org/tc/article.asp?articleid=425&c=121)

譚大偉律師專業失當罪成 (Solicitor Tam Tai Wai Guilty of Professional Misconduct)

Lawyer Tam Tai Wai Guilty of Professional Misconduct (譚大偉律師專業失當罪成)

聆訊日期：
2013年3月12日，2013年6月6日

裁決及頒令：
2013年10月3日

根據答辯人所作的承認、經由答辯人和檢控人員簽署的「同意事實」以及由律師會呈交的證據，律師紀律審裁組(下稱「審裁組」)裁定三項針對答辯人的投訴全部證明成立。審裁組作出下述裁斷﹕

第一項投訴

違反《法律執業者條例》(第159章)第8AA條及《律師執業規則》第2(d)及(e)條,理由為答辯人未有遵守日期為2009年12月23日的查閱通知，該通知要求答辯人出示關於答辯人於2002年至2004年期間從高院民事訴訟2008年第2503號的各名原告人收取的各筆款項的所有收款紀錄(包括收據、憑單及分類帳)，以供查閱。

第二項投訴

違反《律師執業規則》第2(d)及(e)條，理由為答辯人未有完全遵守律師會理事會於2010年3月23日通過的決議,即未有立即採取步驟，把答辯人的姓名從該人獨資經營的譚大偉律師行(下稱「答辯人的律師行」)的所有客戶銀行帳戶的授權簽署人名列中移除，以及未有委任一名律師成為上述所有客戶銀行帳戶的唯一授權簽署人。

第三項投訴

違反《操守指引》原則6.04，理由為答辯人未有從速處理律師會藉着日期為2011年11月2日的信函而作出的查詢，該等查詢涉及要求答辯人就律師會對該人及答辯人的律師行進行的調查而提供進一步資料。

於2013年6月6日舉行的聆訊上，答辯人透過其代表大律師作出求情方面的陳詞。

審裁組下令﹕

1. 答辯人須受譴責﹔
2. 答辯人須支付下列罰款﹕(i)就第一項投訴,港幣30,000元﹔(ii)就第二項投訴,港幣10,000元﹔及(iii)就第三項投訴,港幣30,000元﹔
3. 答辯人須支付本紀律程序的費用，包括律師會的調查費用、律師會的代表律師的費用及審裁組書記的費用﹔假如各方未能就該等費用的金額達成協議，則須按訴訟各方對評基準評定。

 

 

Hearing date:
12 March 2013, 6 June 2013

Findings and Order:
3 October 2013

Based on the Respondent’s admission, the Agreed Facts signed by the Respondent and the Prosecutor and the evidence presented by the Law Society, the Solicitors Disciplinary Tribunal (the “Tribunal”) found that all three complaints were proved against the Respondent. The Tribunal’s findings were as follows: -

The 1st Complaint

Breach of Section 8AA of the LPO and Rule 2(d) & (e) of the SPR in that the Respondent had failed to comply with the Notice of Inspection dated 23 December 2009 requiring him to produce for inspection all receipt records (including receipts, vouchers and ledgers) in relation to the various amounts received from the Plaintiffs in HCA 2503 of 2008 over the period from 2002 to 2004.

The 2nd Complaint

Breach of Rule 2(d) and (e) of the SPR in that the Respondent had failed to comply with the Council’s resolution on 23 March 2010 in full in that he had failed to take immediate steps to remove his name from the authorized bank signatories of all the client bank accounts of Messrs. John Ku, Tam & Ho of which he is the sole proprietor (the “Respondent’s firm”) and to appoint a solicitor as the sole signatory of all such client bank accounts.

The 3rd Complaint

Breach of Principle 6.04 of the Guide in that the Respondent had failed to deal promptly with inquiries from the Law Society in its letter dated 2 November 2011 concerning the request for further information relating to the Law Society’s investigation against him and the Respondent’s firm.

At the hearing on 6 June 2013, there were mitigation submissions made on behalf of the Respondent by his Counsel.

The Tribunal ordered that:

1. the Respondent be censured;
2. the Respondent be fined: (i) HK$30,000 for the 1st Complaint; (ii) HK$10,000 for the 2nd Complaint; and (iii) HK$30,000 for the 3rd Complaint; 
3. the costs of these proceedings, including the costs of investigation by the Law Society, the Solicitor for the Law Society and the Clerk to the Tribunal, be paid by the Respondent, to be taxed on a party and party basis if not agreed.

(Source 1: http://www.hk-lawyer.org/tc/article.asp?articleid=1733&c=121)
(Source 2: http://www.hk-lawyer.org/en/article.asp?articleid=1733&c=121)

Solicitor Anthony Au Found Guilty of Professional Misconduct (區玉麟律師專業失當罪成)

區玉麟律師專業失當罪成 - Solicitor Au Yuk Lun Anthony Found Guilty of Professional Misconduct

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.)

 

(Source 1: http://www.hk-lawyer.org/en/article.asp?articleid=1821&c=121)
(Source 2: http://www.hk-lawyer.org/tc/article.asp?articleid=1821&c=121)