FACV No. 20 of 1998
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 20 OF 1998 (CIVIL)
(ON APPEAL FROM CACV No. 4 OF 1998)
|THE LAW SOCIETY OF HONG KONG
|ROBERT JAMES BROOK
|Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ,
Mr Justice Bokhary PJ and Lord Cooke of Thorndon NPJ
Date of Hearing: 18 September 1998
Date of Judgment: 28 September 1998
J U D G M E N T
Chief Justice Li :
1. The courts are vested with the power to admit solicitors to practise in Hong Kong. The legislation, primary and subsidiary, lays down the requirements that have to be satisfied by applicants, including those seeking admission on the basis of qualifications acquired outside Hong Kong. The Law Society ("the Society"), which regulates the profession subject to the courts' supervision, is given certain duties in relation to admission by the legislation. The essential question in this appeal is what is the proper scope of such duties.
The statutory scheme
2. I should first set out the statutory scheme.
The Legal Practitioners Ordinance ("the Ordinance")
3. Section 4(1)(b) of the Ordinance provides :
"4. Qualifications for admission
(1) The Court may, in such manner as may be prescribed by the Chief Justice, admit as a solicitor of the Supreme Court a person who the Court considers is a fit and proper person to be a solicitor and who -
(b) in the case of a person who seeks admission on the basis of qualifications acquired outside Hong Kong, qualifies for admission under requirements prescribed by the Council [of the Society]."
4. Section 4(1A) provides that the Court shall not admit a person unless it has received from the Society a certificate to the effect that it is satisfied that the person has complied with the residential requirement set out therein.
Overseas Lawyers (Qualification for Admission) Rules ("the Rules")
5. The Council has prescribed the requirements in the Rules made under section 73(da) of the Ordinance with the prior approval of the Chief Justice. The Rules refer to the rules therein as sections and references to sections will be to sections in the Rules unless otherwise stated.
6. Section 2 provides that a person is qualified for admission under section 4(1)(b) of the Ordinance if - (a) he is an overseas lawyer; (b) he is a person of good standing in his jurisdiction of admission and (c) he satisfies the requirements specified in section 4 or 5.
7. Section 5 deals with non-common law jurisdictions. We are concerned with section 4 which specifies requirements for applicants from common law jurisdictions. For persons from such a jurisdiction with less than 5 years' experience in the practice of law, section 4(2) provides that unless the Society otherwise determines, he must satisfy three requirements. First, the educational requirements. See section 4(2)(a). Secondly, professional experience requirements as follows, see section 4(2)(b) :
"(i) he has completed at least 2 years of service as a trainee solicitor or articled clerk in that jurisdiction [i.e. the jurisdiction of his admission];
(ii) he has had not less than 2 years of post-admission experience in the practice of law; or
(iii) he has completed part of the period of service mentioned in ... (i) and had part of the period of experience mentioned in ... (ii), and the aggregate of those periods is not less than 2 years."
Thirdly, he must pass all written subjects in the overseas lawyers qualification examination provided for in the Rules ("the examination"). The Rules set out the subjects assessed by the examination which is held at such times as the Society may determine.
8. Section 4 gives the Society a power to exempt a person from its requirements by virtue of the opening words "unless the Society otherwise determines". Section 6(1) provides that in making a determination under section 4, the Society
"shall have regard to the nature and extent of the applicant's practical experience in the law of Hong Kong and any academic or other qualification."
9. Section 3 is crucial to this appeal. I shall set it out in full :
"3. Society to issue certificate if applicant appears to be qualified
(1) A person wishing to seek admission as a solicitor pursuant to section 4(1)(b) of the Ordinance ("applicant") must provide to the Society such evidence as the Society may require showing that he is a person who appears to be qualified for admission in accordance with these Rules except as regards any requirement to have passed any part of the Examination.
(2) If the Society is satisfied that an applicant appears to be so qualified it must issue a certificate to that effect stating any subjects in the Examination which the applicant is required to pass under these Rules.
(3) A certificate issued under subsection (2) shall remain current for 12 months from the date of its issue by the Society, unless the Society determines otherwise or the certificate is revoked before the expiry of that period under section 10.
(4) A person who does not hold a current certificate issued under subsection (2) may not take the Examination."
10. Section 9 provides for an appeal procedure. A person seeking the issue of a certificate under section 3 may ask his application to be reviewed by the Society and thereafter may take the matter to the Court.
11. Section 10(1) provides :
"10. Unsuitability of prospective solicitor
(1) If the Society at any time is not satisfied as to the suitability to become a solicitor of any person to whom it has issued a certificate under section 3 it may on such terms as it determines, impose any of the following sanctions, that is it may -
(a) prohibit an attempt at the Examination; or
(b) revoke a certificate issued under section 3; or
(c) oppose admission as a solicitor."
12. Section 10(2) provides for an appeal procedure similar to section 9 in relation to the imposition of a sanction. Section 10(3) enables a person to apply to the Society for removal of the sanction and thereafter he may apply to the Court.
The Admission and Registration Rules
13. The Admission and Registration Rules were made by the Chief Justice under section 72(a) of the Ordinance as contemplated by section 4(1) of the Ordinance. Rule 3 provides that a person seeking to be admitted on the basis of compliance with section 4(1)(b) of the Ordinance shall apply to the Society for the issue of a certificate in accordance with rule 3(5).
14. By virtue of rule 3(2), such an application to the Society shall be in accordance with Form 1C. By that form, the applicant has to depose to three matters with supporting documentation. First, the fulfillment of the residential requirement. Secondly, the admission in the overseas jurisdiction. Thirdly, the passing of the examination under the Rules.
15. The Society's duty under rule 3(5) is of crucial importance. It provides :
"The Society, if it is satisfied that a person making an application under subrule (1) is eligible for admission as a solicitor on the basis of compliance with section 4(1)(b) of the Ordinance and has satisfied the requirements of section 4(1A) of the Ordinance, shall issue to him a certificate in accordance with Form 3 in the Schedule."
Form 3 certifies that the applicant has satisfied the Society that (a) he has been admitted in the overseas jurisdiction; (b) his name remains on the roll in that jurisdiction and is not suspended from practising there; (c) he has fulfilled the residential requirement in the manner set out and (d) is in other respects fit to be a solicitor.
16. Mr Brook, the respondent, is an Australian national. He obtained a law degree there in 1992. He then worked in New York for 9 months as a para-legal in a firm of attorneys in the field of commercial litigation involving trademark, patent and copyright law. In 1993 he passed the New York State Bar examination. On 31 October 1994, he was admitted as a member of the Bar of that State. In November 1993, he had already moved to Hong Kong. Since January 1994, he has been working as a para-legal for the firm of Pam Baker & Co. His work has been mainly in administrative law litigation including cases relating to asylum-seekers from Vietnam.
17. Mr Brook wished to pursue admission as a solicitor. In early 1995, he obtained from the Society an information package concerning the overseas lawyers qualification examination. This had been prepared by the Society in December 1994 following the making of the Rules in August 1994.
18. After preliminary inquiries of the Society in February 1995, Mr Brook applied to the Society in July 1995 for a certificate under section 3(2) and paid the required fee of $3,000.
19. By a letter dated 10 July 1995, the Society enclosed a certificate dated 8 July ("the July 1995 certificate"). It was headed "Certificate of Eligibility to Sit or be Exempt from All or Portions of the Overseas Lawyers Qualification Examination" and read :
"This is to certify that ...Brook ... has applied to sit or be exempt from all or parts of the Overseas Lawyers Qualification Examination. It has been determined that he will be required to sit and pass the following examination(s) before assessment of eligibility for admission to the Roll of Solicitors of Hong Kong may proceed." (emphasis added)
The four subjects and the next sitting dates are then set out.
20. The letter advised Mr Brook that for the purpose of rule 4(2)(b) he must satisfy the Society that he has...