RE AMBROSE NG

HCMP874/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 874 of 2006

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J U D G M E N T

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1. There is before me an application made by motion in which the Applicant seeks an order that the Registrar of the High Court restore his name to the roll of solicitors (“the Roll”).  The application is made pursuant to section 5(3) of the Legal Practitioners Ordinance, Cap.159 (“the LPO”).

2. Section 5 of the LPO states : -

“5.  Roll of solicitors

(1) The Registrar shall keep a roll of all solicitors admitted by the Court under section 4 and shall have the custody of the roll of solicitors and of all documents relating thereto and shall allow any person to inspect the roll during office hours without payment.

(2) The Registrar, upon production of a certificate of admission signed by a judge and upon payment to the Registrar and to the Society of such fees as may be prescribed by the Chief Justice, shall enter on the roll of solicitors the name of the person admitted.

(3) The Chief Judge may, if he thinks fit, at any time order the Registrar to replace on the roll of solicitors the name of a solicitor whose name has been removed or struck off the roll of solicitors.”

3. The Applicant has filed an affidavit in support of the Notice of Motion, in which he deposes to the following facts : -

(1) The Applicant was admitted as a solicitor on 11 July 1998 and practised as such from September 1998 to December 1999.  He then applied for voluntary removal from the Roll to pursue a career at the Bar.  His name was removed from the Roll on 4 January 2000 and he was called to the Bar on 16 March 2000.

(2) After completing a year’s pupillage, the Applicant commenced full practice as a barrister on 14 February 2001 and did so until 29 April 2006.  He has decided to resume practice as a solicitor.

(3) On 30 April 2006, his name was removed from the roll of barristers following an order to this effect on 20 April 2006 by Suffiad J.

4. The application for restoration to the Roll is not resisted.  I have been provided with copies of letters from both the Law Society of Hong Kong and the Secretary for Justice indicating that they have no objection to the application.

5. There has not in the past been any uniform approach to applications for restoration to the Roll.  For example, applications have been made to judges of the Court of First Instance rather than the Chief Judge of the High Court.  Various forms of application have also been used.  In some cases, queries have been raised as to whether such an application involves formal legal proceedings or merely an administrative act.

6. I take this opportunity to set out what is in my judgment the applicable procedure for applications of this kind : -

(1) Applications for restoration to the Roll are made under section 5(3) of the LPO.  It is there expressly stipulated that only the Chief Judge of the High Court has the jurisdiction to make such an order (prior to legislative amendments introduced in 2002, this power lay with the Chief Justice).  Nowhere in the LPO or any other Ordinance is it stated that this jurisdiction can be delegated.  In other words, all orders for restoration can only be made by the Chief Judge.

(2) The application involves formal judicial proceedings rather than just an administrative act.  The rationale for the Roll and the public interests involved here (both these aspects were discussed in Re Cole (Amendment of name on Roll of Solicitors) [2005] 3 HKC 190 strongly suggest that a restoration to the Roll requires a formal application to court.  Just as an application for admission as a solicitor, and therefore entry of the solicitor’s name on the Roll, (section 4 of the LPO) or an application to alter a solicitor’s name on the Roll (see Re Cole) involve formal proceedings, so too in my view does an application for restoration.  I should also add that the true construction of section 5(3) of the LPO supports this.  If restoration were merely an administrative act, there would be no need for an order to be made by the Chief Judge directing the Registrar to restore; if it was only an administrative act, the Registrar could simply do this himself.

(3) Applications to restore will in most cases (such as the present) be uncontroversial but it is important that the Law Society and the Secretary for Justice are served in such proceedings.  As was said in Re Cole at paragraph 21 : -

“It is evidently a sensible course as well given the interests (and the potential conflicts that may arise from the participation) of the Law Society and the Secretary for Justice.  The former represents the interests of solicitors, the latter representing a wider public interest.”

(4) Like an application to amend a name on the Roll, the application to restore should be made by originating summons in the expedited form.  Re Cole sets out the applicable procedure in relation to applications to amend the Roll (see paragraph 22) and applications to restore should be no different.  The application should be accompanied by an affidavit setting out the material facts.  The matter should then be listed for hearing before the Registrar.  If the matter proceeds without objection from or with the consent of the Secretary for Justice and the Law Society, a consent order can be filed whereupon an order for restoration will be made.  If, however, there is any objection, the matter should then be heard by the Chief Judge.

(5) Where appropriate, conditions may be imposed.  In most cases, it will only be necessary to impose a condition that the public be informed of the restoration to the Roll.  In this regard, therefore, it will be appropriate for the court in most cases to impose a condition that within a specified period, the fact of restoration be posted by the Law Society on its notice board or website to which the public has access or that the restoration be made known to the public by some other means.

7. In the present case, as I have said earlier, there is no controversy.  I therefore make an order that the Applicant’s name be restored on the Roll and also that within 14 days of today, this fact be posted by the Law Society on its notice board or website to which the public has access.  If there is any difficulty regarding this, I give leave to all parties concerned to apply to me for further directions.