THE LAW SOCIETY OF HONG KONG v. ROBERT JAMES BROOK

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)

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J U D G M E N T

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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.

The facts

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 completed at least 2 years of service as a trainee solicitor or articled clerk in his jurisdiction of admission [i.e. New York State] or had not less than 2 years of post-admission experience in the practice of law [i.e. post 31 October 1994 when he was admitted in that jurisdiction] or a combination of the two for not less than 2 years "before you will be eligible for admission as a solicitor in Hong Kong, having also passed the requisite Heads of the Examination" (emphasis added).

21. The letter stated that ordinarily the requirement for post-admission experience would be satisfied by working as a lawyer in his jurisdiction of admission or as a registered foreign lawyer in Hong Kong. The letter went on to note that the Society was in the course of making transitional arrangements to enable overseas qualified lawyers to satisfy this requirement by working as para-legals in local firms and gaining experience similar to that of trainee solicitors.

22. It should be observed at once that the certificate issued did not certify as to the matters contemplated by section 3(2). Section 3(2) envisaged that at that stage the Society would consider whether it is satisfied that an applicant appears to be qualified for admission in accordance with the Rules except as regards the passing of the examination. If so satisfied, it has a duty to issue a certificate to that effect stating the subjects in the examination he is required to pass. But the July 1995 certificate did not state that the applicant appears to be so qualified for admission except as regards passing the examination. On the contrary it stated that the sitting and passing of the examination would take place before assessment of eligibility for admission may proceed. The accompanying letter also made plain that after passing the examination, Mr Brook would have to satisfy the Society of completion of the professional experience requirements in section 4(2)(b) before he would be eligible for admission as a solicitor.

23. The reason why the July 1995 certificate was issued in these terms was because the Society had since October 1994 adopted the practice of allowing applicants to sit the examination before assessing whether the professional experience requirements were fulfilled. The rationale was to assist the applicants since the examination was only held once a year. The Society's good faith in adopting what it regarded as a flexible approach was not questioned. But this practice was outside the statutory scheme, as Mr Denis Chang SC appearing for the Society accepted. It was not contemplated by the Rules.

24. Mr Brook sought without success exemption from some of the subjects. He took the examination in the required subjects paying fees of $8,000. Just before the examination, he received the Society's circular dated 4 September 1995 with the transitional guidelines foreshadowed in the letter of 10 July 1995 dealing with recognition of work as a para-legal in Hong Kong for the purposes of satisfying the professional experience requirements in the Rules. (This circular was superseded by a later circular dated December 1996).

25. In December 1995, Mr Brook was notified that he had passed the examination. He applied for approval of his post admission experience. In March 1996, the Society decided that in respect of his time spent working in Hong Kong, he should only be credited with 4 months for the purposes of the professional experience requirements and he would be required to obtain experience in other areas of the law referred to in the transitional guidelines over the next 20 months and to attend continuing legal education courses.

26. Mr Brook did not accept this decision. He applied for a certificate under rule 3(5) of the Admission and Registration Rules so as to enable him to apply to the Court for admission. He relied on the July 1995 certificate and his passing the examination as entitling him to that certificate. In June 1996, the Society refused to issue it. Mr Brook applied for judicial review seeking to quash that refusal and an order that it be issued.

The judge

27. Keith J held in favour of the Society. He held that as a matter of construction, the Society in issuing a certificate under section 3(2) only needs to be satisfied that a person appears to be qualified for admission under the Rules. It can address at a later stage whether the person has in fact satisfied the professional experience requirements. On the facts, he held that the July 1995 certificate did not certify what it was supposed to certify. He further held that the Society had not waived the professional experience requirements under its power conferred by the words "unless the Society otherwise determines". What the Society did was to issue the July 1995 certificate without considering whether Mr Brook appeared to satisfy such requirements.

28. Before the judge, Mr Brook advanced the alternative argument of legitimate expectation. Even if the Society were entitled to defer a final decision on whether he had satisfied the professional experience requirements until after he had taken the examination, he had a legitimate expectation that if he passed it, the issue of the certificate under rule 3(5) of the Admission and Registration Rules would be automatic. The judge found against Mr Brook on this issue on the facts.

The Court of Appeal

29. The Court of Appeal (Mortimer VP, Godfrey and Leong JJA) allowed Mr Brook's appeal. They differed from the judge on construction and held that once a section 3(2) certificate was issued, the Society cannot "back track" and consider again the question whether the professional experience requirements had been satisfied. They granted him a declaration :

"that on the true construction of the relevant legislative provisions and in the events which happened, the Law Society, having expressed itself satisfied that the Appellant appeared to be qualified for admission as a solicitor, was not entitled to refuse the Appellant a certificate of eligibility on the ground that he had not satisfied the professional requirements of section 4(2)(b) of the Overseas Lawyers (Qualification for Admission) Rules."

30. The Court of Appeal (Mortimer VP, Godfrey and Rogers JJA) granted leave to appeal to this Court on the basis that the question involved is one which by reason of its great general or public importance ought to be submitted. The conditions they imposed included that the costs of the appeal to this Court will be paid by the Society. This condition was accepted by the Society.

Construction

31. The crucial issue is the proper construction of the Rules. In essence, whether the judge or the Court of Appeal was right. There is an issue as to whether the July 1995 certificate was a certificate issued under section 3(2). But for the purpose of considering construction, I shall assume that the July 1995 certificate was such a certificate.

32. Section 3(1) refers to a person "wishing to seek admission". This indicates that we are here at an early stage of the process. It provides that he must provide evidence to show that "he is a person who appears to be qualified for admission in accordance with the Rules" (emphasis added) except as regards any examination requirement. Under section 3(2), the Society must issue the certificate if it is satisfied that he "appears to be so qualified". In my view, the words used, "appears to be qualified", is the language of provisionality and not finality, as was submitted by Mr Denis Chang SC for the Society.

33. They are in contrast to words which do suggest finality which we find in the Rules themselves and in the Admission and Registration Rules which form part of the statutory scheme. In the Rules themselves, we find the words "a person is qualified" in section 2 defining the qualifications for admission and the words in section 2(c), "he satisfies the requirements specified in section 4 or 5 of these Rules". In the Admission and Registration Rules which deal with the later stage when a person is "seeking" to be admitted, the words used in rule 3(5) are that "the Society if it is satisfied". (The emphasis has been added in the foregoing quotations).

34. In my view, the plain meaning of section 3(2) is that the Society has to take a preliminary view at this stage of the person's qualifications including the question of the professional experience requirements. Under section 3, it is only when it forms a preliminary view which is favourable that a person is issued with a certificate which enables him to proceed to take the examination. This he must do within 12 months since the certificate is only current for 12 months.

35. As the view taken by the Society in issuing a certificate under section 3(2) is only a preliminary view, the Society would not be bound by it as if it were a final conclusion when at the later stage an applicant seeking admission applies to the Society for a certificate under the Admission and Registration Rules to enable him to apply to the Court for admission. At that stage, the Society has a duty under rule 3(5) to consider whether it is satisfied that the applicant (i) is eligible for admission on the basis of compliance with section 4(1)(b) of the Ordinance (that is, whether the requirements in the Rules including those relating to professional experience are satisfied) and (ii) has satisfied the residential requirements in the statute. If it is satisfied, it has a duty to issue that certificate. Correspondingly, if it is not, it is duty bound to refuse. I therefore think the judge was correct in his approach on construction.

36. I should deal with sections 9 and 10 on which some reliance was placed by Mr Philip Dykes SC for Mr Brook as pointers supporting the contrary construction.

37. Section 9 provides for an appeal procedure for a person seeking the issue of a certificate. It is argued that the provision of such an appeal procedure indicates that the section 3(2) certificate is intended to have the effect of finality, especially when there is no appeal procedure in relation to a decision on an application for the issue of a certificate under rule 3(5) of the Admission and Registration Rules. I do not think this point is of any real assistance. The provision of an appeal procedure in this situation is merely a pointer to the importance of the certificate for its purpose, namely to enable the applicant to take the examination. One can readily understand the certificate's importance since without it, the person concerned would not be able to progress at all in the process.

38. Section 10 provides that if the Society at any time is not satisfied as to the suitability of any person to whom it has issued a section 3 certificate, it may prohibit an attempt at the examination, revoke the certificate or oppose his admission. It is argued that the existence of these sanctions point to the section 3 certificate having the effect of finality since the Society can invoke them when not satisfied at any time as to suitability. I do not think this takes the matter any further. Section 10 is not intended to be exhaustive of the Society's duties and does not deal with its duty under rule 3(5) of the Admission and Registration Rules. As was pointed out by Mr Chang, in a situation such as the present where the person concerned has taken and passed the examination but the Society is not satisfied as to the professional experience requirements, it would be absurd if on its proper construction, the statutory scheme obliges the Society to blow hot and cold in that it has to issue the certificate under the Admission and Registration Rules to enable the person concerned to apply to Court for admission and yet has to oppose his admission pursuant to section 10.

39. Mr Dykes accepts that if the Society's argument on construction is right as I have held, the legitimate expectation issue does not arise.

40. Mr Chang had a second string to his bow in support of the Society's appeal. He advances the further argument that even if he fails on the construction issue and a section 3 certificate is held to have the effect of finality, the July 1995 certificate was not in fact a section 3 certificate having regard to its terms and what was stated in the accompanying letter. In the absence of a section 3 certificate, so the argument goes, the Society can consider whether the professional experience requirements have been fulfilled in this case at the later stage when Mr Brook applied for a certificate under the Admission and Registration Rules. Having regard to my conclusion on construction, it is unnecessary to decide this issue. I note that the Society has, quite rightly, accepted that Mr Brook cannot be denied the benefit of having taken and passed the examination.

41. I would observe that where the Society has taken a favourable preliminary view that the professional experience requirements have been fulfilled and has issued a section 3 certificate, one would expect that the Society would not normally change its mind in the absence of good reason. The trouble in this case was that it did not form any preliminary view on that question but operating what it regarded as a flexible scheme, left assessment to after the examination. As I have observed, the flexible scheme was not contemplated by the Rules.

Conclusion

42. Accordingly, I would allow the Society's appeal and discharge the orders made by the Court of Appeal. As to costs (i) the costs of the appeal to this Court must be paid by the Society in accordance with the condition the Court of Appeal imposed when leave to appeal was granted (this condition having been accepted by the Society); (ii) there should be no order as to costs of the appeal to the Court of Appeal; and (iii) the judge's order that there be no order as to the costs of the application should not be disturbed. There should be legal aid taxation of Mr Brook's costs.

Mr Justice Litton PJ :

43. I agree.

Mr Justice Ching PJ :

44. I also agree.

Mr Justice Bokhary PJ :

45. It is fair to say that the circumstances of this case are unusual. And I can understand the Court of Appeal's thinking. But at the end of the day I am driven to the conclusion set out in the Chief Justice's judgment, in which I concur.

46. As the Chief Justice points out, the Law Society rightly accepts that Mr Brook cannot be denied the benefit of having taken and passed the examination. So although not as fruitful as Mr Brook had hoped, the exercise which he has gone through is not entirely fruitless either.

Lord Cooke of Thorndon NPJ :

47. I agree with the Chief Justice.

Chief Justice Li :

48. The Court, being unanimous, allows the Society's appeal, discharges the orders made by the Court of Appeal and makes the orders as to costs set out in the conclusion to my judgment.