Download - Law Society of Hong Kong v a Solicitor
-
7/30/2019 Law Society of Hong Kong v a Solicitor
1/2
Constitutional Law | Freedom of Expression
Law Society of Hong Kong v. Solicitor[2004] HKEC 1423 CA
Facts:o solicitor was demonstrating in the street with only swimming trunks (no clothes)o First complaint: He held a banner over his lower part with a template that stating in both English
and Chinese, "Legal rights are inborn mine too"o Second complaint: Published a circular with his name, inviting a protest against 'unfair and unfair'
conduct of Law Society at disciplinary hearing, against having the hearings held in camerao Discrediting remarks against Law Society
Held:o Appeal dismissed
Judges agreed with SDT's (Solicitor's Disciplinary Tribunal) decision Costs of $90,000 for first complaint, and $40,000 of second complaint + legal costs
Reasoning:o Solicitor's arguments:
1. Right to freedom of expression (freedom of speech) & Principle 1.02 should not infringe onthis fundamental right under
Basic Law: 27, 39 27 - HK residents shall have freedom of speech, of the press and of publication;
freedom of association, of a assembly, of procession and of demonstration; and
the right and freedom to form and join trade unions, and to strike
ICCPR: 19 everyone shall have the right to hold opinions without interference Everyone shall have the right to freedom of expression
Bill of Rights: 16 Everyone shall have right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds
regardless of forntiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice Subject to certain restrictions, but these shall only be such as provided by law
and are necessary: -
a. For respect of the rights or reputation of others; orb. For the protection of national security, or public order (ordre public), or of
public health or morals
Principle 1.02, Hong Kong Solicitors' Guide to Professional Conduct issued by the LawSociety
Conduct subject to discipline Solicitor is an officer of the court, and should conduct himself
appropriately in professional and private matters
Rule 2(d), Solicitors' Practise Rules, Cap.159 solicitor should not, in the course of practicing as solicitor, impair:
His own reputation or the reputation of the profession; Difference between Principle 1.02 & Rule 2(d):
1.02 - conduct in both professional and private matters 2(d) - conduct in professional matters only
2. Principle 1.02 is too vague of a provision to limit fundamental right of expression Principle is not prescribed by law, within the meaning of Article 39, Basic Law
o Courts' Reasoning:
-
7/30/2019 Law Society of Hong Kong v a Solicitor
2/2
Constitutional Law | Freedom of Expression
Granted leave for appeal - additional ground Tribunal erred in law, not entitled (as it did) to find solicitor guilty in breach of
Principle 1.02 after finding that Rule 2(d) did not apply The freedom of expression and its limits in relation to professional discipline
Freedom of expression is a parallel legal right not absolute, restricted only when it isprovided by law and necessary
Limitation reflects the balance between individual rights and general interest ofcommunity
Not public authority Whether Principle 1.02 satisfies "prescribed by law" test - 2 requirements
Respect the rights and reputation of others - 1.02 intended preserve solicitors'reputations/standing/dignity
a. The two complaints alleged that his conduct would 'likely bring the professioninto disrepute"
b. Limitation is necessary for respect of solicitors in communityc. Protection against defamatory remarks
Ordre public (public order)a. Lawyers hold a central role in the administration of justiceb. European Court of Human Rights, justified placing restrictions on lawyers
because they hold a special position
a. For public interest, there are necessary rules/principles of conduct forlawyers
b. 'law society would fail its public duty without these rules Does not mean 1.02 is an unjustifiable limitation on the freedom of expression, only
when inappropriate conduct is involved
Is Principle 1.02 'prescribed by law' or too vague? 1.02 provides precise description for a solicitor to regulate his conduct
a. Foresee to a reasonable degree consequences for his actionsb.
Provides certainty
c. Appropriately addresses their status in society (lawyer, administrator of justice) First complaint (demonstrating without clothes, banner)
Judge: "behavior was unbecoming, undignified, and completely inappropriate givenhis position as an officer of the court and member of honorable profession"
Second compliant (circular inviting protest contrary to the hearing held in camera) Judge: Expected to abide by rules made by court/ statutory tribunal (SDT) Should have proceeded with appellate/ review measures Cannot flout rulings made