XCHRX In re SHANE FREDERICK WEIR

MP No. 2653/92

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H E A D N O T E

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Legal Practitioners Ordinance, Cap. 159 - Section 6(6) and (6A) - Practising Certificate - Conditional - "Substantial experience in the law, either in Hong Kong or in the United Kingdom" - meaning of.

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NO. 2653 OF 1992

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J U D G M E N T

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Hon Yang, CJ:

1. This is an appeal brought under S.6(10) of the Legal Practitioners Ordinance, Cap. 159, against the decision of the Council of the Law Society, refusing to disapply Sub-s.(6), on the ground that the Appellant had acquired substantial experience in the law, in Hong Kong or in the United Kingdom, over a considerable period of time.

2. Sub-s.(6) provides that it shall be a condition of a practising certificate issued for the first time on or after 1 August 1976 to any solicitor who does not satisfy the Council that since being admitted as a solicitor in Hong Kong for at least two years prior to his application for such practising certificate, that he shall not practise as a solicitor on his own account or in partnership until he satisfied the Council that since being admitted as a solicitor he has been bona fide employed in the practice of a solicitor in Hong Kong for at least two years.

3. The appeal is based on Sub-s.(6A), which reads: -

"(6A) Notwithstanding subsection (6), if the Council considers that an applicant has acquired substantial experience in the law, either in Hong Kong or in the United Kingdom, over a considerable period of time the Council may reduce the period of 2 years to a period of -

(a) one year; or

(b) ....."

4. The Appellant is a Canadian citizen born in Canada. He has been residing in Hong Kong since February 1985. In 1978 he was admitted as a barrister and solicitor to the Law Society of Saskatchewan. In 1992 he was admitted as a solicitor in England and Wales, and later in the same year he was admitted as a solicitor in Hong Kong. From 1979 to 1985 he practised as a partner or sole proprietor in Saskatchewan. From early 1985 to mid-1986 he was a law lecturer at the City Polytechnic of Hong Kong. He then joined the Hong Kong Office of an international law firm as an associate solicitor. In early 1989 he joined the L & D Property Group as a director in Hong Kong. He was also one of the two internal legal advisers of the company. He worked there till 30 March 1992. There is no evidence that whilst in Hong Kong he has gained experience in Hong Kong law.

5. In his statutory declaration made to the Law Society of Hong Kong, he stated: -

"I make this request for an abridgement of time in view of my fourteen years legal experience since qualifying in Canada in 1978, and in particular my exposure to most aspects of Hong Kong law. I therefore wish to apply to the Law Society for an unconditional practising certificate or alternatively to have the two years period reduced to the minimum requirement. ....."

6. As Huggins V-P said in Re Alexander Adamovich (1983) HKLR 270, at 272H - 273C, the intention of the legislature was to ensure that, before a practitioner was allowed to practise without supervision and to have control of, and responsibility for, his client's funds, he should not only have a knowledge of the substantive law but also have gained a knowledge of legal practice, either in Hong Kong or in the United Kingdom, and it is reasonable to assume that the Council was intended to disapply Sub-s.(6) only where an applicant had, in the opinion of the Council, acquired such a knowledge of the law and legal practice as he might otherwise be likely to acquire during two years' limited practice.

7. The chronology of events is as follows: -

(1) On 22 September 1992, the Appellant wrote to the Law Society applying for an unconditional practising certificate or alternatively to the two-year period reduced to a minimum requirement on the basis of his "substantial experience" in Canada and in Hong Kong.

(2) On 25 September 1992, the Law Society wrote and stated that as the Appellant had been recently admitted in Hong Kong and in the United Kingdom, he was not eligible for an unconditional practising certificate.

(3) On 7 October 1992, the Appellant wrote to the Law Society, arguing that his application came within the intention of S.6(6A) and asked that the two-year period contemplated under S.6(6) and S.6(6A) be reduced to one year.

(4) On 12 October 1992, the Law Society issued a practising certificate subject to a two-year conditional period whereunder the Appellant was not permitted to practise on his own account or in partnership during such period.

(5) On 10 November 1992, the Law Society wrote to the Appellant, refusing his application for an unconditional practising certificate.

(6) On 20 November 1992, the Appellant wrote to the Law Society again asking for the two-year conditional period be reduced.

(7) On 17 December 1992, the Law Society wrote and stated that the original decision to refuse to issue an unconditional practising certificate to the Appellant was confirmed.

8. From this final decision of the Law Society, the Appellant now appealed.

9. In the course of correspondence and at the hearing before me, two circulars issued by the Law Society were considered, viz., Circular 173 of 1992 and Circular 33 of 1990. I do not think it necessary for the purpose of this appeal to analyse the appropriateness or otherwise of the terms in which the circulars were drafted. I shall confine myself to S.6(6) and S.6(6A) of the Ordinance and, in so doing, I am content to adopt, with respect, the judgment of Huggins V-P in Re Alexander Adamovich (supra).

10. It is common ground that the word "applicant" in Sub-s.(6) is not confined to a solicitor. As Mr Yu for the Law Society pointed out, it could refer to a barrister. The Appellant argues that the words "substantial experience in the law" do not require the experience to be in Hong Kong or English law. In my view, reading the judgment of Huggins V-P in its proper context, the law must refer to Hong Kong or English law. It would be absurd to say that experience in French or Chinese law will suffice so long as the applicant has been physically in Hong Kong or the United Kingdom.

11. Quite clearly, the Appellant has not acquired the required experience in law. His experience as a law lecturer in Hong Kong and in his other experience here is not relevant for present purpose, nor was his legal experience in Canada.

12. The appeal is dismissed.