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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

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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