Legal Complaints Review Officer v Hong

• Jurisdiction: New Zealand
• Judge: D F Clarkson
• Judgment Date: 12 November 2015
• Neutral Citation: [2015] NZLCDT 37
• Docket Number: LCDT 025/12
• Court: Lawyers and Conveyancers’ Disciplinary Tribunal
• Date: 12 November 2015

In the Matter of the Lawyers and Conveyancers Act 2006

Between

Legal Complaints Review Officer

Applicant

and

Boon Gunn Hong

Practitioner

[2015] NZLCDT 37

CHAIR

Judge D F Clarkson

LCDT 025/12

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal as to penalty following a prosecution by the Legal Complaints Review Officer (LCRO) and a finding of misconduct — H had been involved in a dispute with another lawyer — the matter had been referred to the LCRO by a High Court Judge — the findings included the making of threats and discourtesy to the other lawyer — the practitioner had previously been found guilty of misconduct in a separate matter for breach of a Standards Committee Order and the practitioner had served a four month suspension — this had been quashed on judicial review — whether the four months' suspension on the quashed decision could be taken into account when setting this penalty — whether striking off was appropriate and consistent with similar cases involving threats and discourtesy.

COUNSEL

Mr P Collins for the Legal Complaints Review Officer

Mr B Hong, respondent in person

MEMBERS OF TRIBUNAL

Ms S Fitzgerald

Mr K Raureti

Ms C Rowe

Mr I Williams

DECISION OF THE TRIBUNAL AS TO PENALTY

1 Mr Hong was prosecuted by the Legal Complaints Review Officer (“LCRO”) for misconduct, which the Tribunal found to be established in our decision of 19 August 2015.

2 Having heard submissions on penalty, we indicated to counsel that we did not intend to impose the “ultimate” sanction of strike-off, which had been sought by the LCRO. We also said that a period of suspension was in contemplation, the length of which and supporting reasons, would be given in a reserved decision. This is that decision.

Submissions for the LCRO

3 Mr Collins, for the LCRO, presented cogent and persuasive submissions. Other than as to final outcome, and some minor matters, we accept them in their entirety.

4 We do not consider, however, in all the circumstances, the level of offending is such as to compel us to the unanimous view that Mr Hong is no longer a fit and proper person to practice as a lawyer.

Relevant information subsequent to the hearing

5 After the hearing had concluded, Mr Hong made available to the Tribunal a decision of His Honour Kos J, which had been released immediately following the penalty hearing. 1 This decision was as a result of the judicial review proceedings brought by Mr Hong in relation to a determination of the Standards Committee on 14 February 2013. That decision found unsatisfactory conduct on Mr Hong's part and made four consequential orders. One of these orders was attendance at an education course. Mr Hong did not attend that course and subsequently a charge was laid by the Standards Committee against Mr Hong for breach of the Standards Committee Order.

6 That charge came before this Tribunal in April 2014 and the Tribunal found Mr Hong guilty of misconduct. In June 2014 the Tribunal imposed a penalty upon Mr Hong of 10 months suspension.

7 Mr Hong appealed that penalty and on appeal the suspension was reduced to the four months which had already been served by Mr Hong while awaiting the hearing of the appeal.

8 On the same day of his High Court appeal Mr Hong then filed an application for judicial review against the Standards Committee and the Tribunal. It is that judicial review which is the subject of the decision on 14 October last. The review was successful and as a result both the Standards Committee finding and the Tribunal finding and the subsequent finding of the Tribunal were set aside. Thus, Mr Hong has served a period of suspension of four months for offending in respect of which the finding has been set aside.

9 We note that His Honour commented 2:

“[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.”

10 Notwithstanding those comments and notwithstanding the fact that we are dealing with a different charge entirely, the Tribunal considers that justice demands that the period of suspension served, wrongly as it transpires, be taken into account.

11 We consider the most principled way of doing so, is to take account of it as a mitigating factor in the overall assessment of penalty.

Assessment of penalty

12 In summary the Tribunal proceeds to consider penalty as follows:

• 1. The starting point is the seriousness of the offending.

• 2. Aggravating features, including disciplinary history are then taken into account.

• 3. Mitigating features including the manner of response to the process are also weighed.

• 4. The Tribunal then undertakes a comparison with other penalties imposed for similar offending.

• 5. Finally, there is an overall assessment of the fitness of the practitioner and a consideration of the least restrictive penalty to be imposed.

13 The guiding principles are found in a number of authorities but primarily the decision of Daniels, 3 Sisson, 4 Dorbu 5 and Hart. 6

1. Seriousness of the offending

14 We do not propose to repeat the findings made in our liability decision. Mr Collins has highlighted a number of these in his submissions and we note that we used words such as “ inappropriate threats”, “ thinly veiled threat”, “ threat that he would contact his former clients directly …”, “ extraordinary arrangement”, “… little insight”, “ troubling lack of insight into his professional obligations in relation to his former clients”, “ flagrant breach of rules” and “ thoroughly demonstrated his discourtesy and disrespect for a fellow practitioner”.

15 In summary we respectfully concurred with the view of Her Honour Winkelmann J, in remitting this matter to the LCRO for further consideration, 7 that this conduct was serious in its reflection on the standing of the profession in general rather than being regarded as a mere spat between lawyers.

16 On the other hand this is not offending which involves serious risk or damage to clients, or any form of dishonesty and thus is not at the high end of misconduct, such as to demand the penalty sought by the LCRO.

2. Aggravating features

17 In this matter we considered that the aggravating features are that the attacks were, as described by Mr Collins, “ persistent and wilful”. They continued over a lengthy period and were not just a moment's aberration or loss of control.

18 Mr Collins has also referred to Mr Hong's lack of insight and remorse. Whilst this cannot be considered an aggravating feature it certainly can be taken into account in the overall assessment of the practitioner's fitness and in assessing the likelihood of reoffending.

19 The other possible aggravating feature is the practitioner's disciplinary history. We take careful account of the comments of His Honour Gilbert J 8 in relation to this history to the effect that Mr Hong has been in practice for many years (over 20 years) and the previous findings against him would be considered to be at the lower level of professional failings. Indeed this is even more so with the removal of two of the previous findings as a result of the outcome of the judicial review proceedings referred to previously.

20 We have placed little weight on Mr Hong's previous offending particularly given that there is no previous offending of a similar nature to that under consideration.

3. Mitigating features

21 There was no direct harm to clients in the manner in which Mr Hong conducted himself. No dishonesty was involved.

22 We accept that Mr Hong felt strongly provoked by Mr Deliu, however that cannot be permitted to excuse Mr Hong's behaviour, which was intemperate, as found.

23 The strongest factor which we can take into account for Mr Hong is that he has served a period of four months suspension unnecessarily. The difficulty is that it was in connection with an entirely separate matter, but we do consider that this period must be taken into account in the overall interests of justice.

24 Finally, Mr Hong submitted that his health had suffered and he had been highly stressed as a result of these proceedings and the numerous other proceedings which have involved him, arising out of his disagreement with Mr Deliu. We have no difficulty in accepting that this is the case, given the number of proceedings, although we note we have no specific medical evidence about Mr Hong's current health.

4. Consistency with other decisions relating to suspension

25 In his submissions Mr Hong referred us to 18 decisions of the Tribunal. None are on all fours with Mr Hong's conduct and we note that in a number of instances the practitioners admitted the offending and were highly cooperative in the course of the...