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HCMP 1439/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 1439OF 2012
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IN THE MATTER OF the Application of YOUH, Alan Chuen Po (郁存寶) for admission as a Barrister of the High Court of the Hong Kong Special Administrative Region.
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and
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IN THE MATTER OF Section 27 of the Legal Practitioners Ordinance, Cap. 159.
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| Before: |
Hon Lam JA in Court |
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(Sitting as an additional Judge of the Court of First Instance) |
| Date of Hearing : |
8 February 2013 |
| Date of : |
1 March 2013 |
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J U D G M E N T
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1. In most cases, admission proceedings are happy occasions where the hard work and efforts of those who aspired to join the legal profession is publicly acknowledged and recognized when they are admitted. However, there are cases where such proceedings are opposed. When this happens, the court must adjudicate upon the merits of such applications. We come across such situation mostly in the context of the admission of overseas lawyers specifically for one case. In our experience, it is rather unusual for opposed application coming up for adjudication in other contexts. But it does happen and the present case is, perhaps unfortunately, one of those rare occasions. And the outstanding issue that calls for determination by the court is the question of costs. Though I am only concerned with costs, the exercise of the discretion of the court involves some discussions on the spirit and underlying principles in the statutory scheme for admission of barristers.
A contested application for local admission: the “fit and proper person” criterion
2. I shall start by reciting some salient facts. I do not intend to go through every detail in the factual matrix. But I shall need to describe at some length what had happened at what I shall regard as the critical period for the purpose of my decision in this case.
3. The present case is an application for admission as a barrister by the Applicant who had undergone the requisite academic training, passed the relevant examinations and completed his pupillage with three practising members of the Bar. Initially, the application was supported by a certificate of qualification for admission issued by the Bar Council on 10 April 2012 [“the Certificate”]. That certificate is an essential document for admission under s2(3)(a) of the Barristers (Admission) Rules Cap 159AA [“the Admission Rules”]. The Notice of Motion was issued on 12 July 2012. Originally, the application was scheduled to be heard on 11 August 2012.
4. After the Department of Justice had been served with the papers, the Government Counsel raised some concerns and requested for some information from the Applicant. I shall not go into the details of those concerns. Suffice to say that the Bar was alerted and a more extensive request for information was made by the Bar to enable it to come to a view on the “fit and proper person” criterion.
5. I hasten to say immediately that the concerns raised have nothing to do with the personal integrity of the Applicant. However, the “fit and proper person” criterion requires consideration being given to other aspects regarding the suitability of a person to become a barrister as well. I do not intend to say more about the personal circumstances of the Applicant in this judgment beyond what is absolutely necessary. As I said at the hearing, I have much sympathy with the Applicant regarding the difficulties he encountered. On the whole the concerns raised by the Secretary for Justice and the Bar related to an unfortunate condition which the Applicant cannot be morally blamed. Notwithstanding that, the concerns are legitimate ones and the Bar has a public duty to investigate and bring them to the attention of the court.
6. In a letter of 7 August 2012, the Bar reminded the Applicant of its duty in assisting the court as regards this criterion and its power to revoke the Certificate. The Bar also referred to the Applicant’s duty to make full and frank disclosure to the Bar of all relevant circumstances in his application. The Applicant was informed that a solicitor has been appointed to act for the Bar in the matter. A notice to act was filed by that firm on 8 August 2012.
7. The “fit and proper person” criterion is one of the requirements that an applicant seeking admission to the Bar must satisfy. The court has to be satisfied that an applicant is “a fit and proper person to be a barrister” and that he has complied with other requirements set out in s27(1) of the Legal Practitioners Ordinance Cap 159 [“the Ordinance”] before it may admit that person as a barrister. In the prescribed form of application for a certificate of qualification, an applicant has to certify that he or she is a fit and proper person, see para 5 of Form 3 in the Barristers (Qualification for Admission and Pupillage) Rules [“the Qualification Rules”], Cap 159AC. Likewise, in the prescribed form for a certificate of qualification for admission issued by the Bar, it contains a certification as to the applicant as a fit and proper person to be called to the Hong Kong Bar under para 6 of Form 4 in the Qualification Rules.
8. The Bar relies on certificates from pupil masters in giving such a certification. After the completion of the relevant part of pupillage, s10(4)(a)(ii) of the Qualification Rules requires a certificate from the pupil master certifying that the pupil is, in the opinion of the pupil master, a fit and proper person to practise as a barrister in Hong Kong. Without such certification, the relevant pupillage would not be regarded as a period of approved pupillage. In giving such a certificate, a pupil master performs an important public duty and he has to give a responsible opinion on the suitability of a pupil in such certificate. It may not be an easy task in some cases. Yet it is a task which the public is entitled to expect a pupil master to perform conscientiously. As mentioned above, the Applicant has been certified as a fit and proper person by three pupil masters.
9. The “fit and proper person” criterion is an important one. It is a criterion which an applicant has to satisfy beyond meeting the academic and legal training requirements. There is a considerable degree of public trust and confidence placed upon a barrister. A person admitted as a barrister has the privilege of practising as a member of one the most respected professions in our society. Members of the public, the Judiciary and other members of the legal profession expect members of the Bar to have integrity, honour, high professional standard, reasonably sound judgment and competence in their practice. In Hong Kong, the Bar can say with justifiable pride that by and large such expectation is met.
10. The conduct of a barrister in his or her professional practice often has immense ramifications in the life of a client beyond the immediate outcome of a case. Such ramifications can be financial, emotional, political or social. What happens in litigation could affect the physical, emotional or psychological well-being of a client or those closed to him or her. It is therefore necessary for the law to place importance on the “fit and proper person” criterion. Given that we have an adversarial system, unless the court and members of the public can have confidence that those practise at the Bar are fit and proper persons, the administration of justice under our system will be severely hampered and the rule of law, a core value in our society, will be tarnished. See also the judgment of Moffitt P in Re B [1981] 2 NSWLR 372 at p.381-2 where it was emphasized that a barrister has to be a person that can be trusted to perform his duty to uphold the law as a barrister and conduct himself in a manner which will serve the proper and fair administration of justice including duty performed when what he does is unlikely to be subject to scrutiny. In L v Canterbury District Law Society [1999] 1 NZLR 467 at 474, the Full Court of New Zealand applied the following test in considering whether a person should be regarded as a person of good character and fitness for admission as a barrister and solicitor in New Zealand,
“…the appellant must establish affirmatively that he is a person of unquestionable integrity, probity and trustworthiness …”
11. It is therefore right and proper that both the Secretary for Justice and the Bar should discharge their responsibilities diligently in assisting the court to assess whether an applicant for admission as a barrister can satisfy this criterion. The present case highlights the importance of such responsibility and it also illustrates that the Secretary for Justice and the Bar have been up to the task.
12. Coming back to the facts of the present case, given the concerns of the Department of Justice, solicitors for the Applicant wrote to the court seeking to adjourn the hearing of 11 August. The application was adjourned by the court to a date to be fixed and a new hearing date of 22 September 2012 was given. In respect of the requests raised by the Bar, solicitors for the Applicant supplied some requested documents on 13 August and indicated updated documents would be furnished later.
13. By a letter dated 7 September 2012, in view of the lack of further progress, solicitors for the Bar wrote to solicitors for the Applicant making some further requests. The upshot was that after some correspondence, the Bar was not satisfied with the answers given and on 15 September 2012, the Bar through its solicitors informed the solicitors of the Applicant that the Bar decided to withdraw the Certificate.
14. The Applicant challenged the solicitors for the Bar on various grounds, including a...
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