Constitutional Law | Freedom of Expression Law Society of Hong Kong v.

Solicitor [2004] HKEC 1423 CA Facts:

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solicitor was demonstrating in the street with only swimming trunks (no clothes) 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" 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 camera Discrediting remarks against Law Society

Held: 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 on this 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; or b. 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 Law Society 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:
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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 is provided by law and necessary Limitation reflects the balance between individual rights and general interest of community 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 profession into disrepute" b. Limitation is necessary for respect of solicitors in community c. Protection against defamatory remarks Ordre public (public order) a. Lawyers hold a central role in the administration of justice b. 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 for lawyers 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 actions b. 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 given his 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