Hong v Auckland Standards Committee No 3
[2015] NZHC 2521
•14 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-3006 [2015] NZHC 2521
BETWEEN BOON GUNN HONG
Plaintiff
AND
AUCKLAND STANDARDS COMMITTEE NO 3
First Defendant
LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Second Defendant
Hearing: 6 August 2015 Counsel:
Plaintiff in person
P N Collins for First Defendant
No appearance for Second Defendant (abides outcome)Judgment:
14 October 2015
JUDGMENT OF THE HON JUSTICE KÓS
[1] The Ocean Star was an Auckland restaurant. For many years it was successful. In 2005 its owner, a Mr Bill Chan, renewed the lease for eight years. But times changed. Financial difficulties developed. The rent ended up in arrears. Notice of cancellation of the lease was given. In February 2009 the landlord made the first of four attempts to re-enter the premises and evict Mr Chan. Mr Chan was advised by his solicitor, the plaintiff, Mr Hong. The fourth attempt was successful. During it Mr Chan assaulted two of the landlord’s agents.
[2] In convicting Mr Chan the District Court Judge criticised advice given by Mr Hong. He referred Mr Hong’s conduct to the Law Society. Its Auckland Standards Committee No. 3 found the conduct unsatisfactory. It said Mr Hong’s conduct with Mr Chan was “imprudent” and “incited or could have the potential to
incite his clients into criminal actions”.
HONG v AUCKLAND STANDARDS COMMITTEE NO 3 [2015] NZHC 2521 [14 October 2015]
[3] Mr Hong now seeks judicial review of the Committee's determination. Was that determination lawful?
Background
[4] Mr Hong has practised property and commercial law in New Zealand since
1990, and on his own account since 1992. He has acted for Mr Chan since 1996. He did not act on the criminal charges brought against Mr Chan.
[5] On 19 January 2009 the landlord served a notice of intention to cancel the lease, requiring payment of the arrears within 10 days. The arrears were not met.
[6] According to the response to the complaint he filed with the Committee, Mr Hong received a call from Mr Chan on 4 February 2009. Mr Chan said the landlord was at the restaurant premises with a locksmith, seeking to evict him. An employee had prevented the locks being changed. That was the first attempt at eviction.
[7] Mr Chan told Mr Hong that some customers owed the restaurant substantial sums. Given time to collect outstanding sums, he could clear the arrears and stave off eviction.
[8] At first Mr Hong advised that Mr Chan could allow the landlord to re-enter and subsequently apply for relief against termination of the lease. Mr Chan was not attracted to this course of action. Any discontinuity would destroy his business. So Mr Hong devised some alternative advice.
[9] He advised Mr Chan that the landlord could not forcibly re-enter the premises if Mr Chan would not peaceably give them up. The landlord would need a possession order from this Court to re-enter in those circumstances.1 He told Mr Chan to secure the premises to prevent the landlord entering it. This would, Mr Hong thought, avoid physical confrontation and any altercation. Mr Hong knew
that Mr Chan had a fiery temper. He said he was concerned to avoid a physical confrontation that might lead to an altercation.2
[10] The same day Mr Hong received a copy of a notice of termination of the lease from the landlord’s solicitors. He replied immediately, advising that his client:
(a) would shortly be able to meet the arrears;
(b) was “not prepared to give up the premises peacefully” in the
meantime; and
(c) would secure the premises by posting “manpower to be on the premises twenty four hours, 7 days a week, to repel any attempts to re-enter.”
The letter was explicit that this strategy was to “buy [his] client the few days it needed to be put in funds”.
[11] Mr Hong says he met Mr Chan that evening and advised that violence had to be avoided. Such behaviour could lead to criminal charges. Mr Hong’s strategy required that someone remain on the premises at all hours. Because a landlord may not use force to evict a tenant, and because the tenants would not acquiesce to non- forcible attempts to get them out, the landlord would be compelled to seek an order for possession.
[12] Mr Hong told the Committee that he counselled Mr Chan against confrontation or violence:
46.As I was worried physical confrontation and altercations would take place, I advised him that landlords will usually attempt at re-entries at odd hours during twilight when the place is quiet. I wanted him to secure the Premises so as to prevent the landlord and its security agents entering the Premises as then the parties would meet physically and altercations could ensue.
47. Bill instructed he will post man-power to secure the premises 7 days
24 hours to prevent the landlord re-entering and to repel any forcible re-entry attempts by the landlord.
…
51.Later that evening Bill came up with Lee, his manager, to my office and in our meeting, I again advised them:-
a. Of the requirement to avoid any physical violence;
b. Either party who commits such violence could be charged;
c.The need to secure the Premises particularly twilight so the two parties do not meet (to prevent physical altercations) and as such either Bill or Lee, must be present at all times. Bill and Lee will take turns;
d.To contact me if there were any such attempts during business hours;
e.If they were forcibly evicted, such as being carried away, they must repel that by shrugging off such attempts and hanging on to whatever they could to prevent being carried away and under no circumstances must they hit anyone unless physically hurt (with proof of bruises) in which case they can use similar force in self-defence to prevent such assault on them.
[13] Passing over an intermediate and inconclusive exchange of correspondence, the next day, 5 February 2009, Mr Hong received a call from Mr Chan informing him that the landlord was again at the premises. Again the landlord sought to evict Mr Chan, but this time with the aid of the police. Mr Hong had Mr Chan hand the phone over to a member of the police in attendance. He warned them off from assisting the landlord.
[14] He then sent the following fax to the restaurant, which was handed to the attending officers:
To NEW ZEAALAND (sic) POLICE On-site at 201 Victoria Street Auckland
RE: VICTORIA 2033 LIMITED – SKY OCEAN CHINESE RESTAURANT LIMITED
1. I refer to my telephone conversation with the Police Constable.
2.This is to confirm my advice that the Landlord’s attempt to forcibly re-enter yesterday is illegal and did nto (sic) succeed as my client tenant is still in possession.
3.In order to gain re-possession of the premises the Landlord must seek an order from the High Court.
4.The New Zealand Police does not have the authority and power to assist the Landlord unless it is served with such an order from the High Court.
5. I have been instructed that the Landlord is now attempting to change
the locks with the assistance of the Police’s presence.
6.This too is illegal. Locks could not be changed whilst my client remains in possession. These locks will be removed if changed.
7. I trust the Police will not intervene in this civil matter. Yours faithfully
B.G. HONG
[15] The landlord and police left without evicting Mr Chan.
[16] That afternoon Mr Hong wrote again to the landlord’s solicitors:
RE: VICTORIA 2003 LIMITED-SKY OCEAN CHINESE RESTAURANT LIMITED
1. I refer to your earlier fax.
2. I do not accept your views at all.
3.My client has remained in possession of the premises at all times. As advised earlier, there will be manpower on the premises 24 hours 7 days a week from hereon until this lease termination issue has been resolved.
4. The locks will be reverted in due course.
5.You ought to be totally aware, the High Court will, on application reinstate the lease if your client refuses to rescind its termination.
…
11. I have written to the Police and served notice on them that they do not have the authority to evict my client other than pursuant to an order to do so from the High Court. They have left the premises with my client still in possession of the Premises.
[17] The next day Mr Hong received another call about another eviction attempt. Someone had knocked on the door of the premises at 3am. Mr Chan’s own entry was prevented at 7am by a group of people. Possibly the same group which visited at 3am. The police arrived, summoned by a passerby. Police were shown the fax of
5 February. The visitors and the police left.
[18] Some months then passed peacefully. This was the calm before the ensuing storm. Taking a leaf from Sun Tzu, the landlord appreciated that the supreme art of war is to defeat the enemy without fighting.
[19] On 14 May 2009, the landlord again sought to re-enter the premises. This time it prevailed. Mr Chan was not present. Security guards employed by the landlord persuaded the remaining staff to quit the premises.3 Mr Chan then arrived. An altercation took place. The Judge found Mr Chan punched a security guard while trying to get past him, and he hit another with a neon light tube. His conduct was very much in excess of the peaceable occupation Mr Hong says he counselled.
[20] Mr Chan was convicted by the Judge on two counts of assault.
The District Court judgment
[21] A detailed treatment of the District Court Judge’s decision is unnecessary.
The Judge acknowledged that Mr Hong’s conduct was not a matter for that Court:
[34] It is unnecessary, and therefore inappropriate for the purposes of the present case, to come to any concluded view as to Mr Hong’s conduct, but the fax that he sent to be given to the Police was obviously intended to be accepted by them as a correct statement of the law, and indeed of the facts, which it was not. Serious issues are raised as to Mr Hong’s competence and integrity. Those are not for this Court to determine by may need to be considered by the appropriate body.
[22] Despite that, and despite the fact that (1) Mr Hong was not before the Court, and (2) the Court had no evidence before it as to the advice Mr Hong had given Mr Chan,4 the judgment contains serious criticism of Mr Hong’s advice. For
instance:
3 There were allegations that Mr Chan’s staff were assaulted by the landlord’s.
4 The Judge did not have the information set out in [6]–[9] and [11]–[12] above.
[21] ... The lawyer who cynically advises a client, who cannot realistically assert any claim of right, to respond to a notice of termination of the lease and associated statement of an intention to re-enter, to act in in a manner which breaches s 91(2) risks being prosecuted as well, particularly where that lawyer is so incompetent and unwise as to be the vehicle by which a landlord is advised that any attempt at lawful re-entry would be resisted in ways which would constitute a breach of the peace.
…
[32] … Lawyers giving the patently bad advice that Mr Hong obviously gave here would, particularly if they trumpeted their advice to the other side, be at risk of prosecution.
[23] The Judge directed the Registrar to forward the judgment to the Law Society for it to decide what if any action should be taken about the advice.
Standards Committee process and determination
[24] The Committee resolved in February 2012 to conduct an own-motion investigation into whether there had been misconduct or unsatisfactory conduct by Mr Hong. The subject matter of the complaint was worded somewhat curiously:
Your communications with NZ Police with statements of law and fact that were inaccurate.
Reference was also made to the District Court judgment.
[25] Mr Hong was notified of that investigation. He was invited to file a written response. This he did. It included the passages quoted above.
[26] The matter then came back before the Committee on 2 November 2012. It resolved to set it down for an on-the-papers hearing under s 153(1) of the Lawyers and Conveyancers Act 2006. Mr Hong was advised he could file further submissions. He did not take up that invitation.
[27] The hearing was postponed until February 2013. The Committee’s
determination was issued on 14 February 2013.
[28] The deputy convenor of the Committee gave affidavit evidence as to the
Committee’s reasoning process. Apparently “the hearing focussed on the terms of
the [District Court] judgment itself and the response the plaintiff had given after the judgment was referred to him for comment”. The deputy convener proceeds to recount several points made by the District Court Judge. Strangely he does not refer to the plaintiff’s response beyond the passing reference just noted. He concludes:
On the basis of the plaintiff’s correspondence disclosed in the [District Court] judgment, to the lessor’s solicitor and to the Police, which the plaintiff did not deny, the Standards Committee formed the view that His Honour’s description of the irresponsible lawyer, advising a client to resist a lawful re-entry, accurately described the plaintiff in his actions on behalf of his lessee client. The Standards Committee considered that the plaintiff’s correspondence with the Police had promoted an unnecessarily and irresponsibly provocative and confrontational situation and amounted to unsatisfactory conduct.
[29] The Committee’s notice of its determination, the formal record of its reasons, is brief. It summarised the incident and quoted the District Court Judge’s opinion on the possible criminality of the advice:
8.The alleged conduct of Mr Hong took place in the context of property leasing transactions and ensuing criminal litigation proceedings. The charges considered by the Court arose from events on 14 May 2009, when the landlord re-entered premises occupied by a friend of Mr Hong. The rent was in arrears. Mr Hong sent a fax to the NZ Police and another to the landlord’s solicitors; in both faxes he asserted that the landlord required a High Court order to enable re-entry. [The Judge] stated in paragraph 33 of his judgment:
“…the only basis on which Mr Hong’s written statement to the Police …. could be correct was that Mr Hong’s client intended to act unlawfully to force that result, indeed the threats by Mr Hong may well have constituted a completed offence. It is difficult to understand how legal advice to breach the law, and with it the peace of the community, can be within the scope of proper professional conduct.”
[30] It then touched very briefly on Mr Hong’s written response:
9.… In his response he canvassed the authorities on forfeiture of leases and indicated that he was trying to assist the Police by providing the advice that he gave to which the learned Judge objected. He pointed out that he was trying to provide assistance to someone who could not afford legal advice and his motives were altruistic.
[31] The Committee’s evaluative reasoning is found in one paragraph:
13.The Committee considered Mr Hong’s submissions about the law of forcible entry and his letter to the police. The Committee considered that his advice was robust in that he warned the landlord’s solicitor
regarding re-entry and disputed the landlord’s solicitor’s right to re- enter. The Committee however noted the comments of the learned Judge and considered that Mr Hong’s conduct with his own client was imprudent and incited or could have the potential to incite his clients into criminal actions (which eventuated). The Committee considered that a prudent and responsible practitioner would have acted differently by questioning the client and calming the situation in more moderate terms.
[32] What is important to note is that although the complaint – set out at [24] above – focused on Mr Hong’s communications with the police only, the determination focused on his communications with his client.
[33] The Committee concluded that Mr Hong’s conduct was unsatisfactory in terms of s 6 of the Lawyers and Conveyancers Act 2006, reprimanded him, fined him $1,000, imposed costs of $1,000 and required him to at his own expense attend a seminar on equitable remedies.
Subsequent events
[34] Mr Hong applied for review from the Legal Complaints Review Officer, under s 194 of the Act. But not in time. The Officer declined jurisdiction.
[35] Perhaps misguidedly, Mr Hong did not comply with the Committee’s decision. He says he did not receive a copy of the decision until after the requisite seminar had taken place. He declined an invitation to an alternative seminar. The Committee resolved on 2 August 2013 to refer his non-compliance to the Lawyers and Conveyancers Disciplinary Tribunal.
[36] The Tribunal conducted a hearing and rejected Mr Hong’s claim that he had not received the decision until it was too late to attend the seminar. This was disgraceful and dishonourable and amounted to misconduct. The Tribunal suspended Mr Hong from practice for 10 months.
[37] Mr Hong appealed the penalty to Gilbert J in this Court, under s 253 of the Act. Gilbert J allowed the appeal, substituting a suspension of four months. A very substantial costs order of $26,121 against Mr Hong was left intact. Gilbert J
accepted the costs were large in part because of the sheer volume of material
Mr Hong submitted.
[38] On 11 November 2014 Mr Hong filed his statement of claim in these proceedings. It includes separate judicial review claims against both the Committee and the Tribunal, and a tortuous misfeasance claim for damages against the Committee.
[39] Two further events should be noted here:
(a) the Committee applied unsuccessfully to strike out Mr Hong’s claims
before Woolford J;5 and
(b)in April 2015 Ellis J directed that only the judicial review claims be set down for hearing at this juncture.
Application for judicial review against the Committee
[40] Mr Hong’s statement of claim is an overpacked Cook’s Tour of judicial review. Its sheer breadth, and absence of coherent discrimination, made it entirely unhelpful. At the hearing I had to tell Mr Hong that his pleading was hopeless. I told him I would instead focus on his best evident point. If that was unavailing, I would look at his next best point. And so forth.
Mr Hong’s best point: failure to take account of relevant evidence
[41] Mr Hong’s best point (in his own view, and mine) is that the Committee
failed adequately to take into account Mr Hong’s written response.
[42] Mr Hong pleaded at paragraphs 29 and 30 of his statement of claim:
29.[The Committee] had deliberately or recklessly or by negligent omission, ignored and gone against the factual evidential statements in the Plaintiff’s LCS Response relevant, in favour of the Plaintiff, that went against the Unsatisfactory Advice conduct verdict and as such had acted ultra vires. …
5 Hong v Auckland Standards Committee No. 3 [2015] NZHC 667.
30.In delivering the Unsatisfactory Advice conduct verdict, against the Plaintiff, [the Committee] had merely taken the Judge’s comments in the Judgment as evidence, had failed to properly inquire into and investigate into the Plaintiff’s advice to Mr Chan, had failed to call Mr Chan to give evidence …
Inept as this pleading is, it embraces an allegation of failure to take account of relevant considerations. At paragraph 46 Mr Hong pleads reliance on the judgment as a mistake of fact in a way that is an alternative framing of the relevant considerations ground. Paragraphs 32 and 47-49 explicitly plead failure to take into account relevant facts, in particular Mr Hong’s account of the advice he in fact had given:
Had [the Committee] inquired into the Plaintiff’s advice as he had given to Mr. Chan and had called Mr. Chan to give evidence thereon, it would have elicited the true facts and evidence of the Plaintiff’s advice to Mr. Chan … that would have rendered the Unsatisfactory Advice conduct verdict against the Plaintiff untenable.
[43] Mr Collins resisted the allegation of failure to consider relevant considerations. He accepted that the Committee was exercising a statutory power of decision, was amenable to judicial review and had an explicit duty to conform to the principles of natural justice in s 142(1) of the Act.
[44] However, he submitted, the investigation was concerned with undisputed correspondence recorded in the District Court judgment. It was, he said, a “compelling inference” that “the correspondence reflected the advice [Mr Hong] had given [Mr Chan] about the lessor’s intended re-entry of the premises”, and that the actions of Mr Chan (amounting to a barricade of the premises against re-entry) were “encouraged by and consistent with [Mr Hong]’s advice”. The investigations emphasis was predominantly on Mr Hong’s actions, rather than his advice.
Analysis
[45] I start by reminding myself of the sage observations of Brewer J in Dorbu v
Lawyers and Conveyancers Disciplinary Tribunal:6
6 Dorbu v Lawyers and Conveyancers Disciplinary Tribunal HC Auckland CIV-2009-404-7381,
11 May 2011.
[5] It is important to set out clearly the Court’s jurisdiction in this matter. In particular, it must be emphasised that the applicant’s challenge to the [Disciplinary Tribunal’s] findings is not by way of general appeal. The Court’s role is not to look at the charges afresh and make its own determination of them on the merits. It is more limited than that. The Court’s role is to ensure that the decisions challenged by the applicant were made according to law. It has no jurisdiction to overturn a decision of [the Disciplinary Tribunal] which was made within its power and according to due process.
[46] Before addressing the relevance of Mr Hong’s response, it is necessary to dwell on the content of Mr Hong’s advice, and associated communications to the landlord’s solicitors and the police. The District Court Judge called those communications “inaccurate”. With respect to him, it is far from clear that they were.
[47] Mr Chan’s breach of covenant to pay rent was a breach of the lease of course. But it did not mean Mr Chan’s lease was at an end, or that Mr Chan lost all rights to occupy the premises. Notice of cancellation of the lease had been given and had expired.7 The landlord was thereupon entitled either to re-enter peaceably (without committing the offence of forcible entry under s 91(1) of the Crimes Act 1961) or to apply to the Court for an order for possession.8 The tenant, equally, enjoyed the right to apply to the Court for relief against cancellation.9
[48] In the absence of agreement to quit, the more common course adopted by landlords is to seek an order for possession. That is because s 244(1)(b) of the Property Law Act and s 91 of the Crimes Act are rather calculated to create what might be termed a Mexican stand-off. They read:
244 Cancellation of lease for breach of covenant or condition:
general
(1) A lessor who wishes to exercise a right to cancel a lease because of a breach by the lessee of a covenant or condition of the lease may—
(a) apply to a court for an order for possession of the land; or
(b) re-enter the land peaceably (and without committing forcible entry under section 91 of the Crimes Act 1961).
7 Property Law Act 2007, s 245.
8 Section 244(1).
9 Section 253.
91 Forcible entry and detainer
(1) Every one commits forcible entry when, by force or in a manner that causes or is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, he enters on land that is in the actual and peaceable possession of another for the purpose of taking possession, whether or not he is entitled to enter.
(2) Every one commits forcible detainer when, being in actual possession of land without claim of right, he detains it, in a manner that causes or is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, against another who is entitled by law to possession of the land.
(3) Whether there was actual possession, or claim of right, is a question of fact.
(4) Every one who commits forcible entry or forcible detainer is liable to imprisonment for a term not exceeding one year.
The landlord’s difficulty is that it may not re-enter (and risk committing an offence) if the tenant simply refuses to leave (so that ensuing manhandling may result in a breach of the peace). The tenant’s opportunity therefore is to simply refuse to leave, asserting either claim of right (on the basis that relief against cancellation would be sought) or the absence of likely breach of the peace. As Adams notes, mere refusal to leave is not enough to offend s 91(2) and constitute unlawful forcible detainer by
the tenant.10 On the other hand, maintaining possession with sufficient persons to
constitute a show of force may be.11 Importantly for present purposes, whether Mr Chan’s conduct in this case actually amounted to forcible detainer was never tested. He was not charged with that offence.
[49] Plainly it was just that potential statutory stand-off that Mr Hong’s strategy was calculated to exploit. As a strategy it was, as the Committee observed, “robust”. Whether the Committee meant that adjective as a commendation or a condemnation is not altogether clear. But in my view it does not deserve either. Many firm-minded but respectable property practitioners might also have advised peaceable occupation
as a response to a threatened re-entry in these circumstances. The objective would
10 Sir Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [CA91.02].
11 R v Robinson [1971] 1 QB 156 (CA) at 162. That case concerned repossession of a “squat” on Piccadilly. The occupants had barricaded it inside and out, and assembled at least 30 persons present to deter repossession (although not in an otherwise menacing manner).
be to force the issue into Court, buying time and (in the meantime) gathering funds with which to negotiate resumption of the lease or secure relief against cancellation.
[50] Was Mr Hong’s assertion to the police that forcible re-entry by the landlord in these circumstances would be “illegal” inaccurate? Not at all. Was it inaccurate to say the landlord must seek a Court order? Not at all. Was it inaccurate to say the landlord could not change the locks? That point was arguable at least. Was it inaccurate to say the police lacked lawful power to assist the landlord? Again, arguable. Was Mr Hong foolish to use the word “repel” in his email to the landlord’s solicitor? Yes, but it does not capture the actual advice Mr Hong says he gave Mr Chan.
[51] The District Court Judge might have thought the correspondence bad. But Mr Hong was not before him. Neither as party nor as witness. Nor was the Judge privy to the advice Mr Hong had given Mr Chan. The Judge said it was not his task to reach a concluded view about Mr Hong’s conduct. I am bound to say the Judge’s therefore unconcluded views on Mr Hong’s conduct seem both overstated and unfair.
[52] As to the Committee’s task, the first point is that the Judge’s observations must be understood as unavoidably limited by the realities just listed. Those observations were speculative, meriting further investigation. That was the function of the Committee. The observations of the Judge were certainly contestable. And Mr Hong, not being a party to the prosecution, was certainly entitled to contest them. In my view most of the points Mr Hong makes as to the legal character of the rights of a tenant in Mr Chan’s position are sound. Mr Hong should not of course have used the word “repel”. That could have connoted unlawful forcible detainer. But the context, in particular the actual advice given, needed to be examined. And no charge of unlawful forcible detainer was actually brought.
[53] Secondly, in those circumstances it was not appropriate for the Committee to rely almost solely on the suspicions of the complainant, particularly where the complainant has made (and could only have made) purely provisional observations. A failure to consider evidence submitted in the process of the investigation, and to
prefer the content of the complaint without considering that evidence, is a failure to take account of relevant considerations.
[54] Thirdly, it is difficult to understand how the Committee could conclude – as the deputy convener deposed – that Mr Hong “had promoted an unnecessarily and irresponsibly provocative and confrontational situation” (amounting to unsatisfactory conduct) without examining his evidence as to the advice he had given. Likewise as regards the Committee’s essential conclusion that Mr Hong’s conduct with Mr Chan was “imprudent” and “incited or could have the potential to incite his clients into criminal actions”. The correspondence with the police and the landlord’s solicitors was less than half the story.
[55] Fourthly, if the evidence given in Mr Hong’s response was doubted, the Committee should have convened a hearing rather than proceeding on the papers as it did. Section 153(1) is clear that the Committee must consider whether an on the papers hearing is appropriate. Due reflection here would have resulted in a direction for an oral hearing. That the Committee did not so order also suggests that it had not addressed that evidence properly.
Conclusion
[56] The Committee’s determination relied on the judgment and Mr Hong’s third party correspondence, to the exclusion of his evidence of the advice he in fact gave Mr Chan. In doing so the Committee failed to have regard to a very relevant consideration.
[57] In light of that finding, the determination must be set aside.
[58] In further light of that outcome, I resist any additional examination of
Mr Hong’s pleaded case against the Committee.
Application for judicial review against the Tribunal
[59] I have set out at [35] to [36] the circumstances of the Tribunal’s hearing and
determination that Mr Hong was guilty of misconduct, resulting in his temporary
suspension from practice. As I have noted, the Tribunal found that Mr Hong’s denial of timely receipt of the Committee’s determination was false, on the balance of probabilities. As I have noted also, Gilbert J ultimately reduced the term of suspension.
[60] In these circumstances it might perhaps have been open to me to sustain the determination of the Tribunal, on the basis that it was effectively independent of the determination of the Committee. The fact remains, however, that the foundation for the penalty imposed by the Committee on Mr Hong has now been quashed. The Tribunal abided my decision. In these circumstances I consider the most just outcome is to set aside the determination of the Tribunal also.
[61] Nothing in that aspect of this decision should be seen as any commendation of Mr Hong’s failure to comply with what remained at the time a formal determination of the Committee. If Mr Hong was minded to challenge that determination, he should have issued his judicial review proceedings and negotiated or obtained a stay. His insolent disregard of the Committee’s determination was deplorable.
Result
[62] The decisions of the Committee and the Tribunal are quashed.
[63] It is a matter for the Law Society as to whether it re-initiates its own-motion investigation. But given that Mr Hong’s untried second cause of action sues the Committee for damages on the basis of misfeasance, any further investigation would need to be undertaken by a different standards committee.
[64] Nothing in this judgment is to be taken by anyone, in particular Mr Hong, as any sort of endorsement of the merits (whatever they may be, if any) of his second cause of action.
[65] Costs must follow the event. If not agreed, brief memoranda may be submitted within 14 and 21 days respectively. They are not to exceed five pages.
Stephen Kós J
Solicitors:
New Zealand Law Society, Auckland Branch for First Defendant
5