XCHRX Re Robert Neville Thomas Q.C.

1994,No. MP 387

Legal Practitioners Ordinance Cap. 159: construction of s. 44 - practising or acting as a barrister - application to s. 44 Buildings Ordinance Cap. 123.

(Published with consent of the parties).

1994, No. MP 387

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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DECISION

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1. The Applicants sought a declaration that they are entitled to be represented by Mr. Robert Neville Thomas, Q.C. from England before the Buildings Appeal Tribunal (the Tribunal) without the prior admission of Mr. Thomas to the Hong Kong Bar. At the conclusion of the hearing on 17th February, I granted the declaration in favour of the Applicants. I said I would give my reasons later. This I now do.

2. Pursuant to Section 44 of the Buildings Ordinance, Cap 123 (the Ordinance) the Applicants have instituted appeals against a decision of the Building Authority to the Tribunal established under Section 43 of the Ordinance. The Applicants intend to engage the services of Mr. Thomas for the conduct of their appeal. The Tribunal indicated that it has no objection to the appearance of Mr. Thomas but urged the Applicants to consult the Bar Association. Contrary to the view of the Applicants that there is no such requirement, the Bar Association contends that Mr. Thomas needs to be admitted as a barrister in Hong Kong under Section 27 of the Legal Practitioners Ordinance Cap 159 (the LPO).

3. The procedures of the Tribunal are provided by the first schedule to the Ordinance. Clause 3 (1) reads :

"(1) The tribunal shall permit the appellant and such other persons as it considers to be prejudiced by the decision, which is the subject of the appeal, to appear and to be heard at the inquiry, to be assisted in the presentation of their cases by other persons and to take such part in the proceedings as the tribunal may think proper:

Provided that no person shall be entitled as of right in the capacity of counsel, solicitor or other paid advocate to conduct the case for the appellant or such other persons by addressing the tribunal or examining or cross-examining witnesses."

4. For the Applicants, Miss Eu said that subject to the leave of the Tribunal an appeal can be conducted by any person on behalf of an appellant. The words "other persons" are not limited or qualified by the words "counsel, solicitor or other paid advocate" which appear in the proviso. The words in the proviso, Miss Eu argued, are to make it clear that the persons there referred to will not enjoy any particular rights or privileges which they might otherwise expect. They can play only such part in the appeal as the Tribunal is prepared to allow. Accordingly, a barrister admitted in Hong Kong and appearing before the Tribunal in that capacity could not as of right address the Tribunal without the Tribunal's permission. In other words, said Miss Eu, it is not admission as a barrister under Section 27 of the LPO that allows a Hong Kong barrister to conduct a case before the Tribunal but rather the permission of the Tribunal.

5. Mr. Mitchell, who represented the Bar Association, said that Clause 3(1) comprehends 2 categories of person; first, paid advocates, second, unpaid helpers or representatives. Because of the requirement that the Tribunal "shall permit the appellant... to be assisted ... by other persons", a person in the second category must be allowed to assist as of right. A person in the first category, however, has no such right to act in the capacity of counsel, solicitor or unpaid advocate. Mr. Mitchell argued that, if Miss Eu is right, a Q.C. from England or any other jurisdiction who has not been admitted in Hong Kong would have an absolute right to appear as an "other person". A Q.C. admitted in Hong Kong, however, would not have such right. He said that Mr. Thomas is in fact a paid advocate of a specific kind, namely, counsel.

6. I am quite satisfied that the construction for which Miss Eu contends is correct. It is plain that the legislature intended to set up an informal tribunal and that the tribunal, no doubt subject to the rules of natural justice, could lay down and have control over its practice and procedure. The legislature further provided that an appellant shall have, if he so desires, the assistance of another person or persons. In case the appellant should choose to pay the person assisting him, the proviso was inserted to emphasize that the paid advocate, whoever or whatever he might be, could claim no particular rights or privileges before the tribunal. The object clearly was to ensure that appeals would not become bogged down by arguments over procedure and precedence or by long winded submissions.

7. Section 27 of the LPO provides for the admission of a person as a barrister in Hong Kong. It does not impose a requirement for admission simply because a person happens to have the qualifications of a barrister. However, if a person wishes to practise or act as a barrister in Hong Kong he must be admitted-under Section 27. If he fails to be admitted then he is in contravention of Section 44 of the LPO which provides :

"Any person -

(a) not being a qualified barrister, either directly or indirectly, practises or acts as a barrister;

(b) not being a qualified notary public, either directly or indirectly, practises or acts as a notary public.

shall be guilty of an offence and shall be liable on summary conviction to a fine of $10,000."

8. The crucial issue, said Miss Eu, is whether Mr. Thomas will be practising or acting as a barrister in Hong Kong when he appears before the Tribunal. She said a barrister has certain rights and privileges and a range of rights of audience. Before some courts and tribunals, a barrister has an exclusive right of audience. In others, he has that right concurrently with a solicitor or other representative. Some tribunals, as the Tribunal in this case, have a discretion as to whether a barrister may appear or not; while in others, such as the Small Claims Tribunal, a barrister may not appear at all.

9. Miss Eu argued that where a tribunal has a discretion to permit another person to represent the party before it, the appearance by that other person is not by virtue of his possible status as a barrister but rather by virtue of the permission given by the tribunal. The Tribunal in this case is an example of such a tribunal. Although the Tribunal undoubtedly has a residual discretion to refuse an appellant the assistance of a particular person for good cause, any person may otherwise assist an appellant. If that person happens to be a barrister in Hong Kong, he assists the appellant by virtue of Clause 3(1) of the schedule and not because he is a barrister having a right to appear before the Tribunal.

10. The question then is: when is a barrister not a barrister. According to Miss Eu, a person does not act as a barrister simply because he does an act or acts commonly done by a barrister. She said that the point is clearly made in Piper Double Glazing Ltd v. D.C. Contracts (1992) (1994) 1 AII ER 177. The proceedings arose out of an arbitration award in which the successful claimant had been assisted by a firm of claims consultants who held themselves out as offering:

"a complete range of professional services to, inter alia, the construction industry including claims appraisal and resolution of disputes up to and including their resolution by arbitration. To this end they employ a multi-disciplinary staff qualified in various specialties. These include qualified surveyors, non-practising barristers and arbitrators, some of whom have dual qualifications. Any or all of these may exercise their various roles and functions in the course of providing arbitration services including the giving of legal advice, settling pleadings, the provision of expert testimony and advocacy services at interlocutory and substantive hearings before arbitrators, all as part of the package provided."

11. The claimant was awarded his costs to be taxed if not agreed by a Taxing Master under Order 62 of the Rules of the Supreme Court. An issue then arose as to whether the consultants had been acting as solicitors within the meaning of Section 25(1) of the Solicitors Act 1974 which reads:

"No costs in respect of anything done by any unqualified person acting as a solicitor shall be recoverable by him, or by any other person, in any action, suit or matter."

12. At page 186, the judge, Potter J. said:

"While it also appears to be the position that acts done by representatives of Knowles in this context were acts by 'unqualified persons' so far as the Solicitors Act is concerned, it does not appear to me that they were 'anything done by [such persons] acting as a solicitor.'

So far as I am aware, Knowles have not any stage held themselves out as solicitors, but have at all times acted specifically as 'claims consultants' in relation to their representation of the claimant. Section 25 of the 1974 Act is linked and, in my view, falls to be construed with the sections which precede it. Those sections are penal in nature and relate to unqualified persons acting as solicitors (s 20), pretending to be solicitors (s 21), drawing or preparing instruments of transfer of charge etc, the drawing of which is limited to solicitors and certain other exempted professions (s 22), and preparing papers for probate etc (s 23). By s 24 those penal provisions are applied to bodies corporate. In these circumstances, it seems clear to me that the words 'acting as a solicitor' are limited to the doing of acts which only a solicitor may perform and/or the doing of acts by a person pretending or holding himself out to be a solicitor. Such acts are not to be confused with the doing of acts of a kind commonly done by solicitors, but which involve no representation that the actor is acting as such. On that basis, it seems plain to me that Knowles did not 'act as a solicitor' in conducting the arbitration on behalf of the claimant."

13. In contrast is the decision in In re Ainswoth (1905) 2K.B. 103 where the question was whether an unqualified person, who gave as agent for a defendant notice of appearance to a writ, had acted in contravention of Section 2 of the Solicitors Act 1843, which prohibited any unqualified person from acting as a solicitor or carrying on any proceedings in the superior courts. The court came to the conclusion that Mr. Ainsworth had taken a step in the action which could properly only be taken by a solicitor, if not taken by the defendant himself, and was in contravention of the statute.

14. By analogy, Miss Eu said that a person only practises or acts as a barrister if he pretends or holds himself out to be a barrister, or does an act or acts which can only properly be done by a barrister. She said that, if a wider interpretation is adopted, it will encroach upon acts often done and legitimately done by many persons in Hong Kong who are not admitted as barristers or solicitors here. She said many people give what amounts to legal advice on documents and other matters. Provided that such people do not hold themselves out to be a barrister or solicitor, no offence is committed because what they are doing does not fall within the exclusive purview of a barrister or solicitor. She said the same test must be applied to any person whether or not he has qualifications which may entitle him to admission as a barrister in Hong Kong. The nature of the act does not depend upon whether the person is a barrister admitted in Hong Kong, a law student, a retired barrister, a person who has nothing with the legal profession, or a person who qualifies for admission under Section 27 of the LPO but chooses not to seek admission.

15. Miss Eu said that there is no question of Mr. Thomas practising or holding himself out as a barrister admitted in Hong Kong. Whilst accepting that Mr. Thomas' experience as a Q.C. in England is no doubt one of the reasons for the applicants wishing to engage him, that alone does not mean that he will act as a barrister when conducting the appeal. She pointed out that the applicants could have sought the assistance of a surveyor or architect, or an attorney or lawyer from some other jurisdiction. Had that been the case, there could have been no argument about admission under the LPO. A person whose assistance is sought by an appellant before the Tribunal should not be put in a special and disadvantaged position by virtue of his status as a barrister in England. She pointed out that many barristers have additional qualifications including those of a surveyor. If such a person is retained to appear before the Tribunal, it would be wholly inappropriate to conduct an enquiry to decide in which capacity he is appearing for the purpose of determining whether he should first be admitted as a barrister in Hong Kong.

16. Mr. Mitchell said that the authorities cited by Miss Eu are of no assistance, dealing as they do with an English provision which is not drawn as broadly as Section 44 of the LPO which includes the words "directly or indirectly". I recognise the differences. In my view, however, the additional words do no more than give effect to the distinction rightly drawn by Potter J. between the doing of an act which only a solicitor may perform and the doing of other acts involving a representation or pretence that the person is a solicitor. For my part, I respectfully agree with construction adopted by Potter J. and find that it is a construction and approach which may properly be adopted in relation to Section 44 of the LPO.

17. Mr. Mitchell further argued that it is proper to look at the whole picture in order to see what Mr. Thomas is or will be doing. This was an approach which initially commended itself to me. Mr. Mitchell pointed out that Mr. Thomas is a barrister in England, an expert advocate and experienced in the particular field. Instructed by Hong Kong solicitors for Hong Kong clients, Mr. Thomas will come to Hong Kong to appear before a Hong Kong tribunal to deal with a Hong Kong factual situation and apply Hong Kong law. Looked at in that context, argued Mr. Mitchell, Mr. Thomas is plainly acting or practicing as a barrister.

18. While I accept that there may be cases in which the overall picture will demonstrate that a person, perhaps indirectly, is acting or practising as a barrister in Hong Kong, I do not think the picture demonstrates that in this case. It is more important, in my view, to focus upon the scope of Mr. Thomas' function before the Tribunal. He will be doing no more than any 'other person' can do. The 'other person' might be no more than an appellant's next-door-neighbour who happens to be more literate and articulate than the appellant himself. Even if he is present at the hearing of the appeal, Mr. Thomas, for all his undoubted virtues and experience, cannot necessarily expect to be heard. He is there to render assistance. That assistance may be limited simply to sitting beside the appellant and doing no more than prompt him. Clause 3(1) makes it plain, as I have already said, that it entirely at the discretion of the Tribunal whether an advocate plays any part in the actual presentation of an appellant's case. In coming to Hong Kong and presenting himself before the Tribunal, Mr. Thomas will be undertaking what may be an extremely limited role and a role which may be performed by any person however humble his station in life.

19. I came to the conclusion that Mr. Thomas is or will not be acting or practising either directly or indirectly as a barrister and granted the declaration sought.

20. I now make an order nisi that the applicants have their costs with a certificate for two counsel.