HONG v LEGAL COMPLAINTS REVIEW OFFICER [2016] NZCA 501

HONG V LEGAL COMPLAINTS REVIEW OFFICER [2016] NZCA 501 [14 October 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA340/2016[2016] NZCA 501BETWEEN BOON GUNN HONGApplicantAND LEGAL COMPLAINTS REVIEWOFFICERRespondentHearing: 3 October 2016Court: Kós P, Harrison and Asher JJCounsel: Applicant in personP N Collins for RespondentJudgment: 14 October 2016 at 10.00 amJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Asher J)Introduction[1] The applicant, Boon Gunn Hong, is a lawyer practising in Auckland. He seeks special leave to appeal under s 254(1) of the Lawyers and Conveyancers Act 2006 (the Act) against a decision of Faire J dismissing Mr Hong's appeal against afinding of misconduct by the Lawyers and Conveyancers Disciplinary Tribunal, while quashing a suspension of two months.1Background[2] The behaviour that has been the subject of the allegations of misconduct by Mr Hong, arose out of civil proceedings in which Mr Hong was a defendant, and where he became locked in a dispute with his former clients, their solicitor, and the barrister briefed, Mr Frank Deliu.[3] Mr Hong then sent two letters and an email to the solicitor for the plaintiffs. As Faire J summarised,2 in this correspondence he:(a) made allegations of incompetence against Mr Deliu and the junior barristers at his Chambers;(b) told the solicitor to withdraw the action against him or he would file a strike out action, seek full costs against the lawyer personally, file a claim for defamation and make a complaint to the Law Society that the solicitor was incompetent; and(c) warned the solicitor that he had better get what he promised for the clients or they would turn against him.[4] Mr Deliu made a complaint against Mr Hong to the Lawyers Complaints Service. Mr Hong sent three letters and two emails to the Lawyers Complaints Service in which he made a number of statements referring to Mr Deliu and the junior barristers. The Legal Complaints Review Officer claimed the statements were abusive and unprofessional.[5] The complaint then had a long history, which is summarised in Faire J'sjudgment3 and which we do not propose traversing. The Tribunal found misconduct1 Hong v Legal Complaints Review Officer [2016] NZHC 184.2 At [4].3 At [10]–[28].established in relation to some of the statements in Mr Hong's letters.4 The statements were not privileged and were in connection with the provision of regulated services. In a separate penalties decision the Tribunal:5(a) ordered that Mr Hong be suspended from practice for a period of two months;(b) ordered Mr Hong to pay $27,000 of the total costs claimed of $32,832; and(c) ordered that Mr Hong meet the full costs of the Tribunal by reimbursement to the New Zealand Law Society of $12,331.[6] Mr Hong then appealed the decision to the High Court under s 253 of the Act. It is the appeal decision of Faire J that is the subject of this application.[7] After traversing the history of the matter and the allegations made against Mr Hong, Faire J determined that the appeal against the liability decision should be dismissed. However he quashed the penalty of two month's suspension. This leftMr Hong with a liability finding, and costs orders. He applied to Faire J for leave to bring a second appeal, as required by s 254(1) of the Act. Faire J declined to give leave6 and Mr Hong now applies to this Court.Appeal[8] Section 254 provides:254 Appeal to Court of Appeal on question of law(1) Any party to an appeal under section 253(1) who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that court, or, if the High Court refuses leave, with the leave of the Court of Appeal, appeal to the Court of Appeal against the determination; and section 66 of the Judicature Act 1908 applies to any such appeal.4 Legal Complaints Review Officer v Hong [2015] NZLCDT 27.5 Legal Complaints Review Officer v Hong [2015] NZLCDT 37.6 Hong v Legal Complaints Review Officer [2016] NZHC 1358.(2) In determining whether to grant leave to appeal under this section, the Court of Appeal must have regard to whether the question of law involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.[9] Mr Hong in his original application to Faire J for leave to appeal listed 34 legal errors that he alleged had been made. Of these he claimed that 28 were questions of law. He attached the original application as an appendix to his application for leave in this Court. In a minute of 24 August 2016 Winkelmann Jcommented on the "scattergun" approach he had taken and advised him to focus hisapplication on the best points.7 Mr Hong has since filed submissions attempting to focus on what he submits are the errors of law. As best we can interpret his submissions he makes three broad points.[10] First he submits that the "rule of law" has been breached. He says that hiscommunications had nothing to do with the provision of regulated services. Therefore he asserts he could not be convicted of misconduct in his professional capacity. He also submits that he has been penalised for his communications to others which is a breach of his human rights.[11] Second, Mr Hong says his communications could not amount to misconduct as defined in s 7 of the Act. Under this heading, he again takes the point that, since his communications had nothing to do with regulated services, he could not be convicted of misconduct. He also says various aspects of his conduct mean it was wrong to convict him of misconduct.[12] Third, Mr Hong says he was deprived of affirmative defences. His primary complaint here is that the double jeopardy principle has been breached in these proceedings. This point concerns the factual narrative where the Tribunal's originaldecision, in relation to Mr Hong's conduct, found no misconduct.87 Hong v Legal Complaints Review Officer CA340/2016, 24 August 2016.8 Re Hong [2013] NZLCDT 9.Decision[13] We are unable to see any genuine alleged errors of law in these submissions. To use Mr Hong's own phraseology, his primary concerns appear to be with"improper arbitrary findings of fact without evidential foundation". The detail heputs forward in support of his various claims all turns on factual matters.[14] Insofar as some of the submissions do touch on questions of law, none of them are of general or public importance, and there is no reason for them to come before this Court. In relation to the claim that the impugned communications were not susceptible to professional discipline, the point has no merit. Impugned communications from one practitioner to another, whether or not the practitioner is acting on behalf of clients, are capable of supporting an allegation of professional misconduct.[15] We can understand Mr Hong's concern that his reputation and standing isimpugned by the finding of misconduct. However any examination of the circumstances of the complaint would show that the ultimate penalty was only costs, thereby signalling that his misconduct was towards the lowest end of a scale of gravity. The fact is that Mr Hong's integrity has not been in any way impugned by the findings. They relate rather to his professional judgement, when he became involved in a matter that concerned him personally, and fell into the error of making highly intemperate remarks.[16] Mr Hong expresses his general dissatisfaction with the result in the Tribunal and the High Court. He wants to continue to present the arguments he has already presented to the Tribunal and the High Court, to contest the misconduct allegation. He has now had two full hearings in this most recent procedural round on that topic where he has fully aired his position. The appeal does not give rise to a question of law that, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision.99 Lawyers and Conveyancers Act 2006, s 254(2).Result[17] The application for leave to appeal is declined.[18] Costs must follow the event. Mr Hong must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.Solicitors:Legal Complaints Review Officer, Auckland for Respondent