RE LAU WING SZE CISSY

HCMP229/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 229 of 2003

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J U D G M E N T

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1. This is an application by Lau Wing Sze Cissy under rule 13 of the Admission and Registration Rules of the Legal Practitioners Ordinance (Cap. 159) to exempt her from the formality of submitting the Form 4s relating to her training under her former principals Mr Kenneth Lam and Mr Peter Wong. In addition, this morning an application has been made to amend the Notice of Motion to include an application that the applicant be exempted from submitting the Deed of Release from her former principal Mr Peter Wong.

2. The applicant is a trainee solicitor. She commenced her training on 1 August 2000 with Messrs Hui & Lam with Mr Kenneth Lam as her principal. In September 2001, Mr Kenneth Lam joined Messrs Peter Wong & Partners. The applicant also joined Messrs Peter Wong & Partners as a second year trainee solicitor. From 3 September 2001 to 31 December 2001 Mr Kenneth Lam remained as the applicant's principal. Mr Peter Wong became the applicant's principal as from 1 January 2002.

3. The working relationship between Mr Peter Wong and the applicant had not been entirely cordial. The applicant experienced difficulties in the latter part of her training with Mr Wong. Nevertheless, the applicant managed to complete all the work assigned to her by her principal.

4. On 29 May 2002, Mr Wong scolded the applicant for having left the office early the previous evening and the applicant was emotionally upset. As a result she consulted a Dr Peter Yu who recommended she should take 10 days sick leave. A second consultation with psychiatrist Dr Ip Yan Ming revealed that she was suffering from severe situational depression. Dr Ip recommended she should withdraw from her then working environment. Following that advice, the applicant resigned from Messrs Peter Wong & Partners on 10 June 2002.

5. The applicant resumed her training at Messrs Haldanes with Mr Christopher Morley as her principal on 26 August 2002 and completed her two full years training on 20 October 2002.

6. The applicant applied for admission as a solicitor under section 4(1)(a) of the Legal Practitioners Ordinance. Under rule 3(2)(b) of the Admission and Registration Rules, a person seeking admission has to apply to the Law Society for a Certificate of Eligibility in accordance with the prescribed Form 4. The declarations in Form 4 must be completed and signed by the applicant and her principal, otherwise the requirement of rule 3 is not complied with.

7. The applicant had on several occasions approached her former principals Mr Kenneth Lam and Mr Peter Wong to sign the relevant Form 4s in respect of the 22 months of training under both principals but both principals had refused to execute the Form 4s.

8. On 4 November 2002, the Law Society wrote to Mr Wong to enquire if he would sign the outstanding Form 4. The two principals replied that they were not aware of the applicant seeking admission. They maintained that the applicant had left the traineeship of her own accord and refused to execute the document. The Law Society on 18 November 2002 wrote to Mr Wong again asking the two principals to sign the documents. The two principals again refused to do so.

9. In the meantime, Mr Morley had signed the relevant Form 4 in respect of the applicant's training at Messrs Haldanes and had also written to the Law Society in support of the applicant's admission. Mr Morley stated in the letter that the applicant had acquired sufficient skills and experience and was fit to be a solicitor.

10. The Law Society also tried to mediate between the applicant and the two principals, but failed to achieve any result. In the circumstances, the Law Society stated that it was unable to form any views as to the dispute between the two parties.

11. With the Form 4s from Mr Wong and Mr Lam still outstanding, the applicant was unable to proceed with her application for admission.

12. The applicant now asks this court to exercise its discretion under rule 13 of the Admission and Registration Rules to exempt her from the requirement to submit the relevant Form 4s on the ground that Mr Wong and Mr Lam had unreasonably refused to provide her with them.

13. The Law Society through Mr Kwan this morning informed me that the Law Society has no objection to the application.

14. Mr Lam in his affidavit filed on 12 March 2003 pursuant to the order of Suffiad J, stated that he received the amended Form 4 on 9 July 2002 but he considered it was premature for him to sign the form at that stage. He considered that until the applicant completed the two full year training and until there was evidence to show that the applicant had completely recovered from her mental illness, he would not sign the document. He also stated that he was not aware of the applicant seeking admission nor had he any knowledge that the applicant had recovered from her illness. He stated that he had not been provided with the information regarding the final period of the applicant's training and he felt it prudent not to affirm that the applicant was now fit to be a solicitor. Therefore he was unable to sign the relevant Form 4.

15. Mr Wong in his affidavit stated the same and also that because the applicant left the firm on 29 May 2002, he considered it more prudent for him not to sign the Form 4.

16. The question here is not whether the court should require Mr Wong and Mr Lam to sign the relevant Form 4s. The question is having regard to all the circumstances of the present case, whether I should exercise my discretion to exempt the applicant from the requirement of the relevant Form 4s.

17. Mr Choi for the applicant submits that I should adopt a reasonable approach in view of the following :

1. The Law Society does not oppose the application.

2. Mr Morley who supervised the applicant's work affirmed that the applicant has acquired the necessary skill and experience required of a solicitor and is a person fit to enter the profession.

3. Both Mr Wong and Mr Lam have not provided any reasons as to why the applicant is not fit to become a solicitor.

4. Both Mr Wong and Mr Lam have unreasonably withheld their signatures and it would be inappropriate to allow such obstacles to prevent the applicant from qualifying as a solicitor.

5. The training record of the applicant shows that the applicant had through out her traineeship conscientiously completed all her assigned work and there was no sustained complaint against her.

18. Mr Kwan in his very helpful submission submits that, on a reasonable interpretation of the Rules relating to Form 4s, a principal is required to make a declaration relating to the period when the trainee was under his supervision. A principal should therefore consider the fitness of the trainee as at the cessation of the period of training under him. Mr Kwan submits that Mr Wong and Mr Lam only raised the applicant's psychiatric condition but made no mention of the standard, competence, character and integrity of the applicant. It would appear that both principals considered that the applicant's psychiatric condition was sufficient reason for them to refuse to declare the fitness of the applicant. Now that the applicant has fully recovered, the Court may consider there is special ground to exempt her from the requirement of the relevant Form 4s.

19. The applicant in her second affidavit filed pursuant to the order of Suffiad J stated that she had recovered from her illness. She consulted Dr Ip on 17 March 2003 and Dr Ip confirmed that she is now fully recovered and is suitable to perform the duties of her profession.

20. When the applicant left her principal Mr Wong on 29 May 2002, she was emotionally distressed and subsequently she suffered situational depression. No doubt the working relationship between her and Mr Wong could have been better but I am not in a position to judge whether that had contributed to the applicant's final break down of emotion. However, in the light of these circumstances, when Mr Wong and Mr Lam were asked to sign the relevant Form 4s, it would not be unreasonable for Mr Wong and Mr Lam to be concerned about the applicant's medical condition before they would declare that the applicant was fit to qualify as a solicitor. But that was in June/July 2002, nearly a year ago.

21. Dr Ip's unchallenged medical report dated 17 March 2003 gives a different picture of the applicant's condition now. It states :

"I have seen and managed Cissy between 31.5.2002 and 5.10.2002 for Severe Situational Depression. On both 5.10.2002 and today, mental state examinations found that Cissy had been fully remitted and was free from any psychiatric symptoms. Further, evidence by her performance history in past few months, I am of the medical opinion that Cissy is currently fully recovered and free of any psychiatric disorder. She is mentally fit to perform the duties of her profession."

22. Therefore, it is no doubt that the applicant is now mentally fit to be a solicitor and the fears of Mr Wong and Mr Lam have now been totally allayed.

23. The training records of the applicant under Mr Lam, Mr Wong and Mr Morley show that the applicant had throughout her traineeship, worked diligently and completed all the required training work. There is no evidence that the applicant's quality of work is not up to the required standard. That being so, there is no reason why the lack of Mr Wong and Mr Lam's declarations in Form 4s should prevent her from seeking admission. The Law Society's consent to the present application would indicate that the Law Society is of the same view. I would have thought now that the applicant's mental condition is no longer in doubt, Mr Wong and Mr Lam would have agreed to sign the necessary documents. Their refusal to do so in these circumstances appears to be less than reasonable. However, it is not the purpose of these proceedings to decide on that issue.

24. I am satisfied that this is an appropriate case for me to exercise my discretion under rule 13 to exempt the applicant from complying with the requirement to submit the Form 4s for the relevant period of training under her former principals Mr Wong and Mr Lam. The Law Society is aware of these proceedings and as I said earlier, it has no objection to this application. As to the application for release, I do not see any reason to refuse that application.

25. Accordingly, I grant the application in terms of the Notice of Motion as amended and I would now hear submission on costs.

26. After hearing submissions from Mr Choi and Mr Kwan, I consider that in the particular circumstances of this case, I should make no order as to costs and I make such order accordingly.