Hong v Auckland Standards Committee No. 3

• Jurisdiction: New Zealand
• Judge: Gilbert J
• Judgment Date: 18 November 2014
• Neutral Citation: [2014] NZHC 2871
• Docket Number: CIV 2014-404-001962
• Court: High Court
• Date: 18 November 2014

Under the Lawyers and Conveyancers Act 2006

In the matter of an Appeal Against a Decision of the Lawyers and Conveyancers Disciplinary Tribunal

BETWEEN

Boon Gunn Hong

Appellant

and

Auckland Standards Committee No. 3

Respondent

[2014] NZHC 2871

CIV 2014-404-001962

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Appeal against an order suspending appellant from practice for 10 months for failing to comply with an order of a Standards Committee requiring him to pay a fine of $1,000, costs of $1,000 and attend a continuing legal education seminar — appellant claimed that the Standards Committee decision, which hadbeen sent by DX mail, had not reached him until it was emailed to him after the seminar had been presented — declined to attend an alternativeseminar andsaid he would apply for review of the Committee's decision — application for review was out of time — Committee meantime charged him with misconduct or, alternatively, unsatisfactory conduct in failing to comply with the Committee's orders — Committee said that appellant's three previous disciplinary offences over a 17 year period showed an ongoing pattern of professional failings — whether the penalty was manifestly excessive and not consistent with the penalties imposed in comparable cases — whether the Tribunal overstated the seriousness of H's disciplinary history.

Appearances:

Appellant in person

P Collins for the Respondent

JUDGMENT OF Gilbert J

Introduction

1 Mr Hong appeals against an order of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal suspending him from practice for 10 months for failing to comply with an order of a Standards Committee requiring him to pay a fine of $1,000, costs of $1,000 and attend acontinuing legal education seminar. 1 Mr Hong contends that 10 months' suspension was manifestly excessive for not complying with the Committee's orders, particularly given that by the timeof the penalty hearing he had paid the fine and the costs and had viewed two Auckland District Law Society webinars.

Background

2 Mr Hong has been in practice for over 24 years. He was admitted to the bar in July 1990 and has been practising on his own account since 1992. Apart from the events leading to the current penalty, Mr Hong has been disciplined on three occasions in relation to his professional conduct.

3 The first of these related to a letter Mr Hong wrote to a member of the public on behalf of his clients in November 1996 which did not meet the standards of courtesy and fairness expected of a practitioner. Mr Hong admitted a charge of misconduct in relation to this letter in November 1997. He was censured, fined $500 and ordered to pay costs. Mr Hong was also directed to take advice from another practitioner regarding the management of his practice.

4 The second disciplinary matter concerned Mr Hong's failure to honour an undertaking he gave in April 2003 to pay outstanding water rates of $55.00. Mr Hong was found guilty of conduct unbecoming a barrister or solicitor in relation to this in November 2004. He was censured and ordered to pay costs.

5 The third matter concerned two certificates Mr Hong provided to clients' financiers during 2010 certifying that he held professional indemnity insurance when he did not. Instead, he had devised a scheme of self-insurance. Mr Hong was found

guilty of unsatisfactory conduct in relation to this. He was fined $1,500 and ordered to pay costs

6 The present appeal has its genesis in advice Mr Hong gave to a client facing eviction from commercial premises for non-payment of rent in May 2009. Mr Hong wrote to the landlord's solicitors and the police asserting that a court order would be required for them to obtain lawful re-entry to the premises.

7 Criminal proceedings were subsequently brought against Mr Hong's client arising out of his conduct at the time of re-entry to the premises. Judge L H Moore, who dealt with the matter, considered that Mr Hong's advice was incorrect and he directed that a copy of his judgment be forwarded to the New Zealand Law Society so that it could consider whether any action should be taken against Mr Hong.

8 In its decision dated 14 February 2013, the Standards Committee concluded that Mr Hong's conduct was unsatisfactory for the following reasons:

The Committee considered Mr Hong's submissions about the law of forcible entry in 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 Mr Hong's conduct in the matter was unsatisfactory.

9 Mr Hong was reprimanded, fined $1,000 and ordered to pay costs. He was also ordered to attend a continuing legal education seminar, Equitable Remedies, on 19 April 2013.

10 This decision was sent to Mr Hong by DX but he claims that he did not receive it until it was emailed to him on 2 May 2013, after the Equitable Remedies seminar had been presented. The New Zealand Law Society suggested that he attend an alternative seminar on 12 June 2013, entitled Tricky Issues in the Life of a Lawyer. Mr Hong declined this invitation and said that he intended to apply to the Legal Complaints Review Officer (LCRO) for a review of the Committee's decision. He maintains that the advice he gave his client, which was described by the Committee as “robust”, was correct.

11 On 13 June 2013, Mr Hong applied to the LCRO for a review. The LCRO declined jurisdiction on 5 August 2013 because the application was brought more than 30 working days after the date the determination was made. In the meantime, on 2 August 2013, the Committee resolved that Mr Hong's failure to comply with its orders should be considered by the Lawyers and Conveyancers Disciplinary Tribunal.

12 Mr Hong was charged with misconduct or, alternatively, unsatisfactory conduct in failing to comply with the Committee's orders. After reciting the background, the offence was detailed in the charge as follows:

A lawyer has fundamental obligations to uphold the rule of law and facilitate the administration of justice (s 4 of the Act and r 2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care Rules 2008)). The practitioner has acted contrary to his obligations as a lawyer by failing to comply with the orders of the Committee without good cause.

13 Following a hearing on 2 April 2014, the Tribunal rejected Mr Hong's evidence that he did not receive the determination until 2 May 2013. The Tribunal considered that it was disgraceful and dishonourable for Mr Hong not to comply with the Committee's order without taking proper steps to challenge it. The Tribunal found that this went beyond unsatisfactory conduct and amounted to misconduct. 2

14 Mr Hong was not expecting this outcome. As soon as he became aware that the Committee intended to seek an order suspending him from practice, he attempted to recover his position by paying the fine and the costs and viewing two other educational webinars.

The decision under appeal

15 The Tribunal considered that Mr Hong's breach of the Committee's orders was flagrant and that a significant periodof suspension was required to ensure that the profession's disciplinary processes are not undermined:

[26] Both counsel are agreed that the misconduct is serious. The Tribunal's concern is that this type of offending needs to be marked with a firm response in order that the institutions of professional discipline are not undermined.

…

[33] In this type of offending there must be an element of deterrence in the penalty …

16 The Tribunal took into account that Mr Hong showed a lack of contrition:

[27] While we accept that the practitioner has finally complied with the orders, the proximity to the penalty hearing is such that it seriously undermines his plea of proper contrition or understanding of his professional obligations.

17 The Tribunal was particularly concerned that Mr Hong had been disciplined on earlier occasions:

[29] Mr Hong has been given a number of opportunities to reflect on his professional standards and behaviour over the course of 17 years of disciplinary findings. He has been given the opportunity of censure and fine and further education. He does not appear to have learned from these opportunities and we consider that a further opportunity cannot be justified.

[30] It is the Tribunal's view that anything less than a significant period of suspension would be an insufficient response to a flagrant breach of orders as against the history of disciplinary offending over a 17 year period (albeit at the lower end).

18 The Tribunal considered that Mr Hong had misled it by claiming that he did not receive the Committee's decision when it was sent to him by DX and by claiming that no client had ever complained about him. The Tribunal also considered that Mr Hong had misled a differently constituted Tribunal in February 2013 by claiming that he had not previously faced disciplinary charges:

[31] The practitioner has not assisted himself in the misleading statements made to this Tribunal and the Tribunal chaired by Mr Mackenzie in February 2013.

…

[35] We accept that Mr Hong's manner of conduct of his defence cannot be regarded as an aggravating feature, however his lack of judgment and insight into his behaviour are certainly matters which can be taken into account in assessing overall fitness to practice [sic] …

19 Against this background, the Tribunal considered that a...