RE TAN KOK CHENG

Headnote

Legal Practitioners Ordinance Cap. 159 - Sec. 27(2)(b) - interpretation of - members of English Bar ordinarily residing abroad - desire ordinarily to reside in Hong Kong - have not practised in United Kingdom - whether court has discretion to admit as barristers generally in Hong Kong.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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Hon. Yang, C.J.:

1. Two members of the English Bar, one a Singaporean residing in Singapore and the other a Malaysian residing in Sabah, wish to be admitted to the Hong Kong Bar. Both intend to be ordinarily resident in Hong Kong.

2. In 1988, both made arrangements with counsel who were practising in Hong Kong to serve their pupillage here, commencing January 1990.

3. Prior to 21st July 1989, they would have had no difficulties in being admitted as barristers of the Supreme Court in Hong Kong, as (a) they would soon be called to the Bar in England, and (b) they would be able to satisfy the Court that they intended to be ordinarily resident in Hong Kong: vide Section 27 subsection (1)(a)(i) and (e) of the Legal Practitioners Ordinance, Cap. 159.

4. However by an amendment to Section 27 which came into effect on 21st July 1989, namely subsection (1A), certain requirements in addition to subsection (1)(a)(i) became necessary, namely, the person desiring admission must also (a) have practised as a barrister or advocate in the United Kingdom for at least three years; or (b) be a Hong Kong permanent resident as defined in the Immigration Ordinance, Cap. 115; or (c) have been ordinarily resident in Hong Kong for at least seven years.

5. The only way now for them to be admitted is for the Court to exercise its discretion (if a discretion exists) under Section 27 subsection (2)(b). Prior to 21st July 1989, that subsection provided that the Court might admit a person as a barrister either generally or for the purpose of any particular case or cases and may impose on a person so admitted restrictions and conditions as the Court may see fit, notwithstanding that such person does not satisfy the reguirements of subsection (1)(e). On the 21st July 1989 the words "and subsection (1A)" were added after the words "subsection (1)(e)".

6. It is contended on behalf of the two applicants and the Bar that this Court has a discretion under Section 27 subsection (2)(b) and it should exercise the discretion in the two applicants' favour. The Attorney General's contention is that this Court has no discretion to admit them, but if it has, he does not say such discretion should not be exercised in their favour. It is fair to say here that it is entirely in the interest of the public and in his desire to assist the Court that he takes the stance he does.

7. The sole issue, then, turns on the interpretation of Section 27(2)(b).

8. It is argued on behalf of the Attorney General that I should, in interpreting the relevant subsection, also consider, inter alia, the Legal Practitioners Ordinance of 1968, the legislative history of that Ordinance and of the Ordinance now under consideration. The so-called informed interpretation rule is also relied on: vide Bennion on Statutory Interpretation (1984), Part X, at p. 513 et seg.

9. Numerous authorities on interpretation of statutes have been cited. I need only make brief references to two of them.

10. In Jones v Wrotham Park Estates (1980) A.C. 84, Lord Diplock had the occasion to discuss what was there described as a purposive construction. He observed (at p. 105C - 106A) that he would not be reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the statute. But in order to adopt a purposive construction, three conditions must be satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the act was to be achieved, and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsmen and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed.

11. On a careful reading of Section 27(2)(b), I am unable to say that it falls within that category of statutory provision envisaged by Lord Diplock.

12. In Farrell v Alexander (1977) A.C. 59 it was held that consideration of legislative antecedents was unnecessary when the wording of a statute is clear. This case deals with a consolidation Act, which the Ordinance now under consideration is not. Even so, the words of Lord Wilkerforce are helpful (at p. 73B):

"But unless the process of consolidation, which involves much labour and careful work, is to become nothing but a work of mechanical convenience, I think that this tendency should be firmly resisted; that self-contained statutes, whether consolidating previous law, or so doing with amendments, should be interpreted, if reasonably possible, without recourse to antecedents, and that the recourse should only be had when here is a real and substantial difficulty or ambiguity which classical methods of construction cannot resolve."

13. If this is true of a consolidation Act, the dictum above applies with even greater force to a statute which is not one that consolidates other statutes. Lord Edmund-Davies, in the same case, made the point (at p. 97B) that only if the statute's wording is ambiguous and its ambit obscure is one permitted to consider its legislative ancestry.

14. Bennion's work, which has been extensively referred to on behalf of the Attorney General, is helpful in highlighting some of the difficult problems that might arise but cannot be said to contain authoritative statements of the law.

15. At the end, it seems to me that the only sensible course for me to adopt is to examine the wording of Section 27(2)(b) without resort to extraneous materials.

16. Counsel for both sides helpfully submitted skeleton arguments from which I have derived much assistance. It is therefore not out of disrespect that I do not refer to them in detail save to say that I am unable to agree with the Attorney General's position that the function and purpose of Section 27(2)(b) was to allow continuance of the practice whereby non-resident United Kingdom admitted barristers and advocates were able to supplement the forensic expertise available at the Hong Kong Bar by visiting for the purpose of a case or cases. By "non-resident" it is meant "those that do not satisfy the reguirements of Section 27(1)(e)".

17. I cannot find the suggested function and purpose from my reading of the statute.

18. Then it was argued that exercise of the Court's discretion is limited to those who are unable to satisfy the reguirements in subsection (1)(e) as well as subsection (1A). Here the applicants have failed to satisfy only one of the two subsections. Subsection (2)(b) refers to the requirements of both subsections, therefore the failure to satisfy only one does not enable the Court to exercise its discretion.

19. I think the position may be tested in this way. If the Attorney General's stance is correct, then one would have the strange situation whereby a person who has a genuine intention to reside in Hong Kong or has a substantial connection with Hong Kong will be excluded whilst a total stranger who wishes to come here to appear in one case is included. This would be a fundamental departure from the spirit of the Ordinance as it stood prior to the 1989 amendment. I simply do not discern such a departure in the Ordinance.

20. In my view the Court does have a discretion in this case.

21. There is no dispute that the applications for admission to the Hong Kong Bar are bona fide and that both applicants have a genuine intention to ordinarily reside in Hong Kong. I have no hesitation in exercising my discretion in their favour and admit them to the Hong Kong Bar generally.