Au Kar Man v. The Law Society of Hong Kong

HCMP 852/2018

[2018] HKCFI 1901

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 852 OF 2018

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J U D G M E N T

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1.This is an application made under rule 13 of the Admission and Registration Rules (Cap 159B) for exemption from a formality requirement under rule 3(2)(b)(i) of the Rules.

2.Put in a simplified way, rule 3(1) of the Rules provides that a person seeking to be admitted as a solicitor on the basic of compliance with section 4(1)(a) of the Legal Practitioners Ordinance (Cap 159) has to apply to the Law Society for the issue of a certificate of eligibility for admission as a solicitor (in the statutory Form 2 in the Schedule to the Rules).  Rule 3(2)(b)(i) provides that the application has to be made in accordance with Form 4 in the Schedule.  Rule 13 gives the Chief Judge of the High Court a discretion to grant, on special grounds and upon such conditions as he may consider necessary, an exemption to any person from any of the formalities prescribed by the Rules.  The present application for exemption relates to the use of the statutory Form 4 to make the application under rule 3(1) for the issue of the certificate of eligibility.

3.Amongst other things, Form 4 requires an applicant to declare and confirm that he has been employed under a trainee solicitor contract by a principal, and that during the period of his employment as a trainee solicitor he has learned in the office of the principal the principles of professional conduct and various basic skills associated with the practice and profession of a solicitor.  The form also requires, relevantly, the principal to confirm and declare that what has been declared by the trainee solicitor in the form to be true to the best of his knowledge, information and belief, and that he considers that the applicant is fit to be a solicitor.

4.Rule 3(4) provides that the Law Society, if it is satisfied that an applicant making an application by Form 4 is eligible for admission as a solicitor on the basis of compliance with section 4(1)(a) and has satisfied the requirements of section 4(1A) of the Ordinance, shall issue to him the certificate of eligibility.  Armed with the certificate of eligibility, the applicant seeking to be admitted as a solicitor may do so by means of a motion paper filed with the Registrar of the High Court to move the court for such admission.  The certificate of eligibility is a document required to be filed together with the motion paper: rule 4(1) and (2).

5.This application arose because the applicant, a former trainee solicitor in the employ of KY Woo & Co with Mr Woo Kwok Yin as her principal, is now in litigation in the District Court with her former principal in relation to the premature termination of her trainee solicitor contract and various matters pertaining to her employment under the principal’s firm (DCCJ 2391/2017).  As the litigation is ongoing, I would be brief with the facts.  Suffice it to say, there are allegations and counter‑allegations regarding what happened during the applicant’s employment under the trainee solicitor contract, which I would not go into. The upshot of this dispute between the two is that, given the statutory content of Form 4, the principal was reluctant to complete and sign the applicant’s Form 4, lest his position in the litigation would be affected.  At one stage, he was agreeable to do so on conditions, but eventually he withdrew his conditional offer to sign the Form 4, and thus the present application.  Pursuant to directions that I gave, the Law Society has indicated that it consents to the present application for exemption, whereas the Secretary for Justice (representing the public interest) has replied that she does not object to it.  On the other hand, citing the dispute he is having with the applicant as reason, Mr Woo opposes the application for exemption.  He maintains that the applicant is not fit to be a solicitor – a matter that Form 4 requires a principal to confirm and declare.

6.All parties concerned are agreed that this application for exemption can be dealt with on paper without an oral hearing.

7.The power of exemption under rule 13, in the context of making an application to the Law Society for the certificate of eligibility by means of a Form 4, is a power given to the Chief Judge to cater for situations where for some special reasons, a completed and signed Form 4 cannot be obtained in the normal course of events as envisaged by the Rules.  An obvious example is where the principal has passed away or has left the jurisdiction and can no longer be contacted.  Another example encountered from time to time is where the applicant and his principal have fallen out with each other and there is a complete breakdown in relationship.  Ma CJHC (as the Chief Justice then was) has explained in Fu Sze Ying Mabel v The Law Society of Hong Kong, HCMP 908/2008, 17 June 2008, that there are essentially two enquiries to be made in an application for exemption under rule 13:

(1)  that the underlying objective or purpose of Form 4, being in particular, a satisfactory traineeship and the applicant being a fit and proper person to be admitted as a solicitor, is in fact fulfilled; and

(2)  there is a cogent reason as to why he is unable to produce a Form 4 to the Law Society.

8.In the present case, it is important to note that despite their dispute, Mr Woo was, as mentioned, at one stage prepared to complete and sign the Form 4 for the applicant, on the condition that the same would not be used against him in the pending litigation in the District Court in support of her claim that she had been unfairly dismissed by Mr Woo’s firm.  It is true that Mr Woo has since changed his stance and now says that the applicant is not fit to be a solicitor.  He gives essentially two grounds for so saying:

“It should be evident from the outset to any reasonable member of society why the Applicant is not fit to be a solicitor in accordance with requirement (b)5 of the Form 4. The Applicant, by virtue of her current action against my firm and previous or ongoing actions against other firms, is a very litigious person. In my almost 50 years in the legal profession I have never come across anybody, be they layman or fellow lawyers, who is as litigious as the Applicant. It is an attitude that the legal profession does not need. It is dangerous for any person, especially those who have had legal training, to be so litigious. It does not do society any good, nor does it serve the legal system and rule of law any good.

Further, the Applicant’s skills and aptitude to act as a lawyer is also highly questionable.  It is evident from the papers furnished by the Applicant throughout the present litigation the level of lawyering skills and aptitude she possesses.”

9.As for the first ground, I do not consider the commencement of the District Court action by the applicant against her former principal’s firm for unfair dismissal renders her a “litigious” person or someone unfit to be a solicitor.  I say so without expressing any views on the allegations and counter‑allegations in the action.  The applicant may or may not be an easy person to work with or to employ.  Her actions may or may not have sufficient merits.  And her claims (or some of the heads of damages claimed) may or may not be sustainable at law.  But it does appear that she has or believes she has some genuine grievances to ventilate in court and like everyone else in society, she is entitled to have her day in court.  I do not think the material before me entitles me to conclude that she is a “litigious” person or that she is not fit to be a solicitor by reason of the litigation she is involved in with Mr Woo and his firm.  It is not entirely fair to judge how well a person will work as a solicitor serving clients by how he conducts his own litigation in person pursuing a claim which at least he himself considers to be justified.  Essentially, the same observations apply to the applicant’s other litigation with another former principal concerning the latter’s qualification as principal to take on the applicant as trainee solicitor and other matters relating to her employment in the principal’s firm (DCCJ 2392/2017).

10.As for the second reason given, having read the material placed before me, including the court papers in the litigations in which she acts in person, I do not consider the applicant’s “level of lawyering skills and aptitude” is such that she should not be regarded as fit to be a solicitor.

11.This brings me to another highly relevant matter that emerges from the material before me.  That is, the Law Society consents to, and the Secretary for Justice does not oppose, the application for exemption by the applicant, even after considering Mr Woo’s objection. The Law Society has specifically pointed out in its letter that it has fully borne in mind the guidance given in Fu Sze Ying Mabel and has reached its conclusion after considering the material and information available.

12.On the material before me, I am satisfied that the underlying objective or purpose of Form 4, being in particular, a satisfactory traineeship and the applicant being a fit and proper person to be admitted as a solicitor, is in fact fulfilled.  I am further satisfied there is a cogent reason as to why she is unable to produce a completed and signed Form 4 to the Law Society, given her complete breakdown in relationship with Mr Woo.

13.For these reasons, I have come to the conclusion that the application for exemption should be granted to the extent that the Form 4 to be used by the applicant for making her application to the Law Society for the certificate of eligibility need not be completed or signed by Mr Woo.  I also impose the condition that the grant of this exemption shall not be used by the applicant for any purpose other than her intended application for admission as a solicitor, and in particular it shall not be used for her litigation in DCCJ 2391/2017 or DCCJ 2392/2017 or any other litigations concerning substantially the same disputes respectively.

14.I so order.  I make no order as to costs.

The applicant acting in person

The respondent acting in person

The Department of Justice for the Secretary for Justice

Mr Woo Kwok Yin acting in person