Chung Sze Yuen v The Law Society Of Hong Kong

CourtHigh Court (Hong Kong)
Judgment Date05 October 2016
Citation[2016] 5 HKLRD 466
Subject MatterMiscellaneous Proceedings
Judgement NumberHCMP1305/2016
HCMP1304/2016 CHEUNG YICK HUNG also known as CHEUNG YICK HUNG JACKIE v. THE LAW SOCIETY OF HONG KONG

HCMP 1304/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1304 OF 2016

_______________

IN THE MATTER OF section 6(9) of the Legal Practitioners Ordinance (Cap. 159)
and
IN THE MATTER OF the appeal of Cheung Yick Hung also known as Cheung Yick Hung Jackie against the Law Society of Hong Kong under section 6(9) of the Legal Practitioners Ordinance (Cap. 159)

_______________

BETWEEN

CHEUNG YICK HUNG also known as CHEUNG YICK HUNG JACKIE Appellant

and

THE LAW SOCIETY OF HONG KONG Respondent

AND

HCMP 1305/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1305 OF 2016

_______________

IN THE MATTER OF section 6(9) of the Legal Practitioners Ordinance (Cap. 159)
and
IN THE MATTER OF the appeal of CHUNG SZE YUEN against the Law Society of Hong Kong under section 6(9) of the Legal Practitioners Ordinance (Cap. 159)

_______________

BETWEEN

CHUNG SZE YUEN Appellant

and

THE LAW SOCIETY OF HONG KONG Respondent

Before : Hon Poon JA in Chambers
Date of Hearing : 19 August 2016
Date of Judgment : 5 October 2016

_______________

J U D G M E N T

_______________

A. INTRODUCTION

1. On 14 April 2016, the Law Society intervened into the practice of Messrs Alan Ho & Co (“the Firm”) pursuant to section 26A(1)(c) of the Legal Practitioners Ordinance, Cap 159 (“LPO”) after receiving complaints by its clients. The purpose of the intervention was to wind up the irregular practice of the Firm.[1] The intervention is said to be the largest ever taken by the Law Society against a firm of solicitors.

2. The appellants, Mr Cheung Yick Hung and Mr Chung Sze Yuen, were at the time of the intervention consultants of the Firm. Based on its investigations, the Law Society took the view that both of them had failed to supervise and manage the respective law offices for which they were supposedly responsible. Thus, the Consents Committee of the Law Society on 22 April 2016 resolved to exercise the powers under section 6(5)(e) of the LPO and sections 7(1) and (2) of the Practising Certificate (Special Conditions) Rules, Cap 159Y (“the Rules”) to impose Conditions 1 to 5 in Schedule 1 of the Rules (“Schedule 1”) against the practicing certificates of the appellants (“the Decisions”) :

(1) The solicitor shall complete a period of practice (not exceeding 24 months) as specified by the Council under the supervision of a solicitor holding an unconditional practising certificate.

(2) The solicitor may only practise in an employment that has been approved by the Council.

(3) The solicitor may only practise in a partnership that has been approved by the Council.

(4) The solicitor may only practise on his own account with the approval of the Council.

(5) The solicitor shall not sign cheques on a client account.

In respect of condition (1), the period of supervision is 24 months for both appellants.

3. The appellants were informed of the Decisions on 26 April 2016. They then brought these appeals pursuant to section 6(9) of the LPO. Pursuant to section 36 of the High Court Ordinance, Cap 4, the power of the Chief Judge can be exercised by any judge of the High Court. Consequently, these appeals were listed and heard together by me sitting as a judge of the High Court.

B. Overview of the submissions

4. Mr Deng, for the appellants, raised two principal arguments.

5. First, he argued that the Decisions are ultra vires sections 7(1) and (2) of the Rules because, on a proper construction, the Law Society’s power to amend an extant practising certificate by imposing any of the conditions in Schedule 1 is exercisable only if there is a pending application by the solicitor for a practising certificate at any time during the period for which the extant practicing certificate is in force (“the Condition”). Since the appellants did not make any application to renew their practicing certificates at the time when the Law Society made the Decisions, the Condition was not met. The Law Society had therefore acted ultra vires section 7(1) and (2) of the Rules.

6. Mr Chan, for the Law Society, submitted that sections 7(1) and (2) of the Rules, on a proper construction, empower the Law Society to amend an extant practising certificate at any time during its currency. As an alternative, Mr Chan argued that even if the Condition exists, sections 7(1) and (2) of the Rules are inconsistent with section 6(5) of the LPO and should be disregarded : see section 28(1) of the Interpretation and General Clauses Ordinance, Cap 1. The Law Society is still entitled to make the Decisions under section 6(5)(e) of the LPO, the primary legislation. As a further alternative to overcome Mr Deng’s ultra vires argument, Mr Chan submitted pursuant to section 6(11) of the LPO, the court has the power to and should direct the Law Society to issue a practicing certificate to each of the appellant with the same conditions as imposed by way of the Decisions.

7. The second argument raised by Mr Deng is that the Decisions are disproportionate because they disregard the appellants’ personal and private rights. Mr Chan disagreed, contending that having regard to the overall circumstances, the Decisions were proportionate.

C. Two main issues

8. Arising from the parties’ submissions are two main issues.

9. The first main issue is jurisdictional : are the Decisions ultra vires? (Issue 1) Its determination involves two sub-issues :

(1) Whether on a proper construction of sections 7(1) and (2) of the Rules, the exercise of the power to amend an extant practising certificate is subject to the Condition? (Issue 1(1))

(2) If yes, is section 7(1)(a) of the Rules ultra vires section 6(5) of the LPO to the extent of impermissibly subjecting the Law Society’s exercise of the power to impose the conditions set out in Schedule 1 to an already issued practicing certificate to the Condition? (Issue 1(2))

10. The second main issue concerns the merits of the Decisions : whether they are disproportionate as the appellants complained? (Issue 2)

11. I will consider them in turn.

D. Issue 1 – Are the Decisions ultra vires?

12. Issues 1(1) and (2) depend on a proper interpretation of the relevant provisions, which must be understood in the overall context of their legislative scheme.

D1. The legislative scheme

13. Section 6 of the LPO relevantly provides :

“ (1) The Society, on an application in writing by a solicitor in the month of November in any year … shall, subject to subsection (3), issue to the applicant a practising certificate as a solicitor for the period of one calendar year from 1 January next following the date of the application.

...

(4) Notwithstanding subsection (1), the Society may, upon such conditions as it thinks fit, permit an application for a practising certificate to be made under this subsection at any time and upon such application may issue to the applicant a practising certificate for any period not exceeding one calendar year and ending on 31 December in the year in which it is issued.

(5) Notwithstanding subsection (1), the Society may –

(a) refuse to issue a practicing certificate on such grounds as may be prescribed by the Council;

(b) issue a practising certificate to an applicant subject to such conditions as may be prescribed by the Council;

(e) amend an already issued certificate by adding such conditions as may be prescribed by the Council.”

14. For present purposes, the following points arising from section 6 should be noted.

15. First, pursuant to section 6(1) ordinarily a solicitor applies for a practicing certificate in November every year and, if approved, the Law Society issues the practicing certificate to the solicitor for one calendar year from 1 January in the next year. The practicing certificate is only valid for one year and the solicitor has to apply for another one during its currency in November of the year.

16. Second, pursuant to section 6(4) the Law Society may entertain an application for a practicing certificate to be made at any time of the year and, if approved, issue a practising certificate for the remainder of the year. A ready example where section 6(4) is invoked is the issuance of practicing certificates to newly admitted solicitors whose admission may take place at any time of the year.

17. Third, pursuant to section 6(5)(b) the Law Society may impose conditions as may be prescribed by the Council when it issues a practicing certificate.

18. Fourth, pursuant to section 6(5)(e) the Law Society may amend an already issued certificate by adding such conditions as may be prescribed by the Council.

19. Previously, the grounds and conditions, as the case may be, referred to in section 6(5)(a), (b) and (e) were made by the Chief Justice. In 2002, amendments were made to those subparagraphs to change the authority from the Chief Justice to the Law Society as we now find in the current provisions. It is common ground that the legislative intent of the amendments is contained in the Legislative Council Brief – Statute Law (Miscellaneous Provisions) Bill 2001 dated June 2001 :[2]

“ 34. Under section 6(5)(b) of [the LPO], the Law Society may issue a practicing certificate subject such conditions may be prescribed by the Chief Justice. To date, the Chief Justice has not prescribed any conditions for the issue of a practicing certificate. This created a loophole that has been exploited by some solicitors. If the Law Society is empowered under section 6(5)(a) (b) and (e) to make appropriate rules, it would be able...

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