RE DAVID ROLAND NELSON

M.P. No. 1896 of 1992

HEADNOTE

Barrister - admission of - practise as an employed barrister in England - whether recognized in Hong Kong as a practising barrister - Sec.27(1) and (1A) of the Legal Practitioners Ordinance, Cap.159

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NO. 1896 OF 1992

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J U D G M E N T

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Hon. Yang, CJ:

1. This is the application of Mr. David Roland Nelson for admission as a barrister of the Supreme Court of Hong Kong. The application is opposed by the Hong Kong Bar Association, represented at the hearing by Mr. Andrew Liao, QC, and Mr. J.M.Y. Yan. The applicant acts in person.

2. The Attorney General expresses no view and has been excused further attendance.

3. The applicant was called to the Bar by the Honourable Society of the Inner Temple on the 26th November 1985 and is therefore a barrister of England and Wales. Having completed his pupillage he worked as the legal adviser to Banque Indosuez, a French merchant bank in London, from 1987 to 1991. By the Code of Conduct of The Bar of England and Wales, 4th ed., effective from 1st February 1989, he was, during the time he was employed by that bank, a practising barrister in the sense that he was an employed barrister.

4. Since arriving in Hong Kong in July 1991, he has been working as a consultant to a firm of solicitors in Hong Kong.

5. It is the applicant's contention that he has satisfied the requirements of s. 27 of the Legal Practitioners Ordinance, Cap. 159, to qualify for admission as a barrister of the Supreme Court of Hong Kong. Firstly, he has been called to the Bar in England: s. 27(1)(a)(i). Secondly he has been ordinarily resident in Hong Kong since 13th July 1991 and intends to remain ordinarily resident here: s. 27(1)(a)(e). Thirdly, he has practised as a barrister in the United Kingdom for at least three years: s. 27(1A)(a). It is this third requirement that gives rise to dispute.

6. The concept of what constitutes a "practising barrister" in England differs from that in Hong Kong.

7. The Hong Kong position, since 21st January 1983, as published in the Code of Conduct for the Bar of Hong Kong, has always been as follows -

Para. 20. Subject to paragraph 32, a practising barrister is a barrister who has been admitted to practise in Hong Kong and who is entitled and holds himself out as willing to appear in a Court on behalf of a client or to give legal advice or services to a client; but is not an employed barrister.

Para. 21. A practising barrister is bound to accept any brief to appear before a court in the field in which he professes to practise at his usual fee having regard to the type, nature, length and difficulty of the case. Special circumstances such as a conflict of interest or the possession of relevant and confidential information may justify his refusal to accept a particular brief.

8. By the Code of Conduct for the Bar of England and Wales, effective from 1st January 1981 (3rd ed.), it was stipulated.-

Para. 20. Subject to paragraphs 31-34 of this Code, a practising barrister is a barrister who holds himself out as willing to appear in a Court on behalf of a client or to give legal advice or services to a client; but is not an employed barrister.

Para. 21. A practising barrister is bound to accept any brief to appear before a Court in the field in which he professes to practise at a proper professional fee having regard to the length and difficulty of the case. Special circumstances such as a conflict of interest or the possession of relevant and confidential information may justify his refusal to accept a particular brief.

9. Hong Kong and England had therefore adopted the concept. However, a new English Code was adopted by the Bar Council on 12th November 1988 and replaced all earlier codes. It came into effect on 1st February 1989.

By para. 4.2 it is provided that -

10. A practising barrister is either;

(a)    a barrister in independent practice, i.e. a barrister who holds himself out to the public generally in England and wales as willing, in return for the payment of fees, to render legal services to clients; or

(b)    an employed barrister, i.e. a barrister who, in return for the payment of a salary, is employed wholly or primarily for the purpose of providing legal services to his employer either under a contract of employment or by virtue of an office under the Crown or in the institutions of the European Communities.

11. By an amendment to the English Code effective from 31st March 1990, "practising barrister" means a barrister who is either a barrister in independent practice or an employed barrister.

12. Hong Kong has continued to follow the provisions in our own 1983 Code.

13. Thus we have the strange situation whereby the applicant was a practising barrister according to the English Code but not so according to the Hong Kong Code.

14. The first point that has to be made is that the interpretation by a Hong Kong Court of a word or a term in a Hong Kong statutory provision cannot depend on the changing meanings given to that word or term in England. If Hong Kong wishes to alter its interpretation of that word or term to bring ourselves in line with England, then this could be achieved by the legislature. Any suggestion that we should interpret s. 27(1A)(a) by reference to the changes in the English code would mean the abandonment of certainty of the law in favour of uncertainty.

15. I suspect that when s. 27(1A)(e) was drafted it must have been the intention of the legislature to follow the old meaning given in England to the concept of "practising barrister" and not to include an employed barrister. Section 27(1A)(e) clearly excludes an employed barrister. In my judgment, the subsection refers to a person who has practised as a barrister in the sense given to it in para. 20 of the 1983 Hong Kong Code.

16. There is no anomaly here. It is simply that Hong Kong has not followed England and still does not wish to classify an employed barrister as a practising barrister.

17. For these reasons, I must refuse the application.

18. I do not think it necessary to decide whether para. 4.2 of the 1989 English Code has retrospective effect as suggested by the applicant.