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Douglas Stephen Clark v The Bar Council And Another

Judgment Cited authorities 4 Cited in 1 Precedent Map Related
Vincent
Judgment Date29 April 2011
Year2011
Citation[2011] 3 HKLRD 122
Judgement NumberCACV273/2010
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV273/2010 DOUGLAS STEPHEN CLARK v. THE BAR COUNCIL AND ANOTHER

CACV 273/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 273 OF 2010

(ON APPEAL FROM A DECISION OF THE BAR COUNCIL
REGARDING AN APPLICATION FOR CERTIFICATE OF
ELIGIBILITY FOR PUPILLAGE)

(IN THE MATTER OF an Appeal pursuant to Section 18(2) of
the Barristers (Qualification for Admission and Pupillage Rules),
Chapter 159AC, Laws of Hong Kong)

_____________

BETWEEN
DOUGLAS STEPHEN CLARK Appellant

and
THE BAR COUNCIL 1st Respondent
SECRETARY FOR JUSTICE 2nd Respondent
_____________

Before: Hon Le Pichon, Fok JJA and Saunders J in Court

Date of Hearing: 12 April 2011

Date of Judgment: 12 April 2011

Date of Handing Down Reasons for Judgment: 29 April 2011

______________________

REASONS FOR JUDGMENT

______________________

Hon Le Pichon JA:

1. This was an appeal from the decision of the Bar Council of 24 November 2010 refusing to issue the appellant (Mr Clark”) a certificate of eligibility for pupillage. At the conclusion of that hearing, the appeal was dismissed with written reasons to be handed down.

2. The court also heard oral argument on costs and gave directions for further written submissions. The written reasons appear below together with this court’s judgment on costs.

The statutory framework

3. Section 72AA(g) of the Legal Practitioners Ordinance, Cap. 159 conferred on the Bar Council, subject to the prior approval of the Chief Justice, power to make rules “regulating the serving of pupillage”. The Barristers (Qualification for Admission and Pupillage) Rules, Cap. 159AC comprising 19 sections (“the principal provisions”) and 2 Schedules (collectively “the Rules”) were made pursuant to that power.

4. Section 11 of the Rules provides:

“ 11. Application for pupillage in Hong Kong

(1) A person seeking to become a pupil in Hong Kong shall apply to the Bar Council for a certificate of eligibility for pupillage in accordance with subsection (2) not less than 3 weeks before he proposes to commence pupillage.

(2) An application under subsection (1) shall be made in accordance with Form 5 in Schedule 2.”

Form 5 of Schedule 2 contains the declarations and undertakings to be given. They include the following:

“1. I am a fit and proper person to be a barrister. In particular–

…

(3) I am not currently engaged, and during my pupillage undertake not to engage, in any occupation which is incompatible with pupillage.

…

3. I am not currently in practice as a solicitor either on my own account or as a partner or salaried employee in a firm of solicitors practising in Hong Kong.

…”

5. Under section 12, the Bar Council “shall approve the application for pupillage” and issue a certificate in accordance with Form 6 if satisfied that the applicant is not ineligible by virtue of section 14.

6. Section 14 which deals with ineligibility reads:

“14. Ineligibility for pupillage

(1) A person shall not be eligible to become a pupil for the purposes of these Rules if he–

…

(c) is engaged in any occupation which, in the opinion of the Bar Council, is incompatible with pupillage; …”

7. Form 6 prescribes the form of the certificate to be issued upon approval of the application:

“THIS IS TO CERTIFY THAT [full name in English and, if applicable, Chinese] of [current residential address]–

1. on the ……. day of ……. 20 …. applied under section 11(2) of the Barristers (Qualification for Admission and Pupillage) Rules (Cap. 159 sub. leg. AC) (“Rules”) for the issue of a certificate of eligibility for pupillage;

2. has satisfied the Council of the Hong Kong Bar Association that he–

…

(3) is not ineligible for pupillage by virtue of section 14 of the Rules; and

…

3. is eligible for pupillage.”

The background facts

8. On 11 October 2010, Mr Clark submitted an application dated 7 October 2010 to the Bar Council for a certificate of eligibility for pupillage (“a section 12 certificate”), with a view to commencing pupillage on 1 January 2011. On the date of his application, Mr Clark was a practising solicitor, a status he retained until 31 December 2010. He was thus unable to submit a Form 5 in the prescribed form. What he submitted was a modified Form 5. In pertinent part, it read:

“ 1. I am a fit and proper person to be a barrister. In particular-

…

(c) I am not currently engaged, and during my pupillage undertake not to engage, in any occupation which is incompatible with pupillage.

…

3. I am currently a partner in a firm of solicitors practising in Hong Kong (namely Messrs Hogan Lovells). I will cease to be a partner in Messrs Hogan Lovells on or before 31 December 2010. I undertake that during my period of pupillage I will not be a partner or employee of a firm of solicitors practicing in Hong Kong.

…”

9. On 15 October 2010, the Bar Council’s Special Committee on Pupillage and Limited Practice refused his application for a section 12 certificate. It took the view that the Form 5 submitted was not in the prescribed form. It invited Mr Clark to consider submitting another Form 5 when he was in a position to make the necessary declarations.

10. Mr Clark was dissatisfied with that decision and requested a review by the Bar Council pursuant to section 18(1) of the Rules.

11. On 24 November 2010, the Bar Council affirmed the decision of the Special Committee, stating that being in current practice as a solicitor either on his own account or as a partner or salaried employee in a firm of solicitors practising in Hong Kong is incompatible with pupillage. It considered the declaration at paragraph 3 of Form 5 an important one and the applicant’s inability to make such a declaration an important and substantive variation from the statutory form which was unacceptable. It further noted that the wording of Form 6 did not permit the scenario of an applicant only becoming eligible on a date in the future.

12. After filing a notice of motion/appeal on 10 December 2010, on 6 January 2011, Mr Clark made a new application for a certificate of eligibility for pupillage for four months, commencing 27 January 2011. (He had been granted a reduction in his pupillage of 8 months by the Chief Judge). He was informed that his pupillage would commence on 28 January 2011, that being 3 clear weeks after the date of submission of his application as mandated by section 11(1).

13. Mr Clark’s application was approved on 24 January 2011. He was notified of the approval letter on 26 January 2011. The certificate issued was dated 28 January 2011, the date of commencement of his pupillage.

14. The relief Mr Clark sought on this appeal was a retrospective order that he be issued a section 12 certificate with effect from 1 January 2011 and that the commencement of his pupillage from 10 January 2011 to 9 May 2011 be approved. He also sought a declaration that solicitors in private practice who provide an undertaking to cease practice before commencement of pupillage are eligible to be issued with a certificate.

15. In practical terms, if Mr Clark were successful on this appeal, the completion of his pupillage of 4 months would be brought forward by 18 days, from 27 May 2011 to 9 May 2011.

This appeal

16. Mr Clark’s position is that on a proper interpretation of section 12(1)(a)(iii) and section 14(c), a practising solicitor is eligible to apply for a section 12 certificate to become a pupil and that statutory forms only provide a form of wording that can be amended as necessary. It was said that the Bar Council’s interpretation that a practising solicitor is not eligible to apply for a certificate to become a pupil places unjustifiable barriers to commencing pupillage, breaches fundamental common law rights, namely, the right to work, the right to choice of occupation, the right to choice of lawyers and is unfairly discriminatory.

17. It is important to bear in mind the nature of the present proceedings since a number of Mr Clark’s submissions which are pertinent in the context of a judicial review may convey the impression that these are judicial review proceedings which are governed by a entirely different procedural regime involving remedies not available under section 18(2). This appeal was brought under section 18(2) of the Rules. That section defines and limits the court’s jurisdiction: it may only “confirm, vary or quash the decision or remit it to the Bar Council for reconsideration”. Considerations relevant to judicial review proceedings are not engaged on this appeal.

18. I agree with Mr Dykes SC who appeared for the Bar Council that the sole issue that arises is whether the Rules are intra vires the Ordinance.

19. The Forms set out in Schedule 2 are intended to give effect to the principal provisions and, unless they contradict or are inconsistent with them, they constitute part of the subsidiary legislation which must be read as a whole. Form 5 clearly contemplates that a person applying for a section 12 certificate is required to demonstrate his eligibility to become a pupil at the date of his application to the satisfaction of the Bar Council and to undertake not to engage in any occupation which is incompatible with pupillage during his pupillage. The question that arises is whether the inclusion of such a requirement is consistent with the principal provisions and within the powers conferred by section 72AA(g).

20. Section 11 is...

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