Kim Min Ju v. The Law Society of Hong Kong

HCMP 2290/2019

[2020] HKCFI 2367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2290 OF 2019

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J U D G M E N T

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A.      Introduction

1.Section 6(6) of the Legal Practitioners Ordinance, Cap 159 (“the LPO”) enjoins the Law Society to impose a two-year requirement when issuing a practising certificate to a solicitor in these terms:

“(6) It shall be a condition of a practising certificate issued for the first time on or after 1 August 1976 to any solicitor who does not satisfy the Council that since being admitted as a solicitor he has been bona fide employed in the practice of a solicitor in Hong Kong for at least 2 years prior to his application for such practising certificate, that he shall not practise as a solicitor on his own account or in partnership until he satisfies the Council that since being admitted as a solicitor he has been bona fide employed in the practice of a solicitor in Hong Kong for at least 2 years.”

2.The two-year requirement may, however, be waived by the Council of the Law Society (“the Council”) under section 6(6A) of the LPO:

“(6A) If the Council considers that an applicant has acquired substantial experience in the law either in Hong Kong or elsewhere, the Council may waive the 2 year employment requirement in subsection (6) or it may reduce the period of 2 years to a period it considers appropriate.”

3.If an applicant is denied such a waiver, he may appeal to this Court pursuant to section 6(10) of the LPO.[1] 

4.Two principal issues arise from this appeal:

(1)     What is the meaning of “substantial experience in the law” for the purpose of section 6(6A) of the LPO?  (1^st Issue)

(2)     Did the Law Society erred in its assessment that the plaintiff did not have “substantial experience in the law” within the meaning of section 6(6A) of the LPO so that the two-year requirement cannot be waived?  (2^nd Issue)

Having considered the written submissions lodged by the parties, I consider it appropriate to determine the appeal on papers without an oral hearing.

B.      Background

5.The plaintiff was formerly a barrister.  He was admitted on 30 April 2011 and had since practised mainly in commercial and criminal litigation for about 7 years.  In April 2018, he applied to be removed from the roll of barristers in order to be qualified as a solicitor.  Between 17 April 2018 and 21 January 2019, he was employed by Shum & Co as a legal manager, involving mainly with commercial and criminal litigation.  On 17 November 2018, he was admitted as a solicitor and was issued his first practising certificate on 21 January 2019.  He has since been working as an assistant solicitor with Shum & Co, practising mainly in commercial and criminal litigation, corporate finance, matrimonial law, probate and administration and intellectual property.

6.On 29 October 2019, that is, about 9 months after he commenced practice as a solicitor, the plaintiff applied to the Consents Committee of the Law Society (“the Consents Committee”) for a waiver of the two-year requirement under section 6(6A) of the LPO.  In the supporting statutory declaration, the plaintiff set out his education and employment history and his experience in handling litigation.  Referring to his experience as a barrister for 7 years including receiving instructions from various solicitors in respect of different contentious and non-contentious matters, appearance in courts on weekly basis and handling cases with solicitors from the outset until conclusion, the plaintiff said that he had garnered significant “solicitor” experience throughout his practice as a barrister.  He went on to say that during his employment with Shum & Co as legal manager and assistant solicitor, he had exhibited the ability to practise successfully as a partner of a law firm or as a sole-proprietor by successfully introducing new clients, associates and contacts in the legal industry to the firm.

7.The Consents Committee rejected the plaintiff’s application on 15 November 2019.  In the letter dated 20 December 2019, the Consents Committee stated that as he had no formal training in a solicitors’ firm because of the exemption from employment as a trainee solicitor granted to him under rule 20(1) of the Trainee Solicitors Rules and he only commenced practice as an assistant solicitor with Shum & Co since 21 January 2019, the Consents Committee was not satisfied that he had acquired substantial experience in his practice as a solicitor for the purpose of section 6(6A).

8.On 7 January 2020, the plaintiff sought to review the decision before the Standing Committee on Compliance of the Law Society (“the Standing Committee”).  By a letter dated 16 April 2020, the plaintiff set out his working experience to show that he possessed the knowledge of law and legal practice equivalent to that which would be acquired by a solicitor in the course of two years of practice of a qualified solicitor. He said that during his tenor as a legal manager, he directly assisted the partner in a wide range of litigation matters.  Once he became an assistant solicitor, he handled a broad range of files with a high degree of autonomy. He also engaged in commercial and corporate finance matters.  As legal manager and assistant solicitor, he handled various aspects of litigation matters, such as taking clients’ instructions; conducting conflict checks, client identification and verification; conducting due diligence on client’s funds; obtaining retainers; drafting letters before action and advice at the pre-action stage; drafting pleadings and court documents; directing his staff to issue interim bills to clients; and handling clients’ funds and monies on account after commencement of court actions.

9.By a letter dated 21 May 2020, the Standing Committee informed the plaintiff that it upheld the Consents Committee’s decision.  In her affidavit dated 17 June 2020, Ms Margot Yin Ka Tung, the secretary to the Consents Committee and Standing Committee explained:

“The members of [the Standing Committee] considered the Written Representations in light of the type of experience in legal practice required of a partner who is running a solicitors’ firm.  Normally, such experience would include, for example, supervising qualified and unqualified staff members of a firm, establishing and maintaining proper accounting systems and proper internal controls over those systems to ensure compliance with the Solicitors’ Accounts Rules and keeping proper accounting records to show accurately the position with regard to the money held for such client and each trust.  The members of [the Standing Committee] considered the applicability of [the Law Society’s Guidelines for Applications under section 6(6A) of the LPO (“the Guidelines”)] in this situation, the inapplicability of the Plaintiff’s experience as a Legal Manager (i.e. as an unqualified staff member) in Shum & Co., and the Traineeship Exemption.  The members of [the Standing Committee] indicated that they were not satisfied that the Plaintiff had gained sufficient experience of legal practice as a solicitor similar to that of a solicitor who has experienced two years of full-time practice in law in Hong Kong.”

In gist, the Law Society took the view that the plaintiff had not acquired sufficient experience in the law as a solicitor to qualify for a waiver of the two-year requirement under section 6(6A) of the LPO.

C.      Parties’ submissions

C1.    The plaintiff’s submissions

10.Mr Toby Brown, for the plaintiff, submitted that the reasons provided by the Consents Committee that the plaintiff had not acquired “substantial experience in his practice as a solicitor for the purpose of section 6(6A) of the LPO application” was a misunderstanding of his application and the statute.  He contended that section 6(6A) requires that an applicant should have acquired “substantial experience in the law” rather than substantial experience in the practice as a solicitor.

11.Mr Brown further argued that if the plaintiff was required to acquire substantial experience in his practice as a solicitor, then in doing so he would have completed at least two years of employment as a solicitor and he would have satisfied the two-year requirement under section 6(6) of the LPO and would not need a waiver.  It is the plaintiff’s position that the term “in the law” should mean something other than experience as a solicitor operating in private practice.  Further, for the words “in Hong Kong” to have any meaning, it must refer to experience other than a solicitor operating in private practice.  It is therefore the plaintiff’s position that his time practising as a barrister together with the time he worked in Shum & Co. as legal manager assistant solicitor should be qualified as “substantial experience in the law” in Hong Kong as stipulated under section 6(6A) of the LPO.

12.Turning to the Law Society’s assertion that the plaintiff lacked the experience in supervision of qualified and unqualified staffs and maintaining proper accounting systems in compliance with the Solicitors’ Accounts Rules, Mr Brown submitted that the said requirements are fanciful and unrealistic.  Regarding the supervision experience requirement, Mr Brown submitted that it is doubtful if a two-year qualified or junior solicitor would be placed in a supervision role over qualified or unqualified staff and many junior solicitors may complete their two-year practice without the chance of supervising a more junior solicitor and unqualified staff.  Regarding the accounting experience requirement, Mr Brown submitted that as a matter of fact only senior partners assisted by trained accounting staff members would be in the position to establish and maintain proper accounting system and it is to the exclusion of junior solicitors.  The Law Society is in effect demanding the plaintiff to possess the experience of a partner in order to remove the exemption to become a partner.  Mr Brown further contended that the need to obtain accounting experience would undermine the Guidelines on in-house or government lawyer attaining at least 5 years of practice to fail to obtain a wavier as these groups of legal professionals will not have any experience in dealing with and maintaining client trust accounts.

C2.    The Law Society’s submissions

13.Messrs Howse Williams (“HW”), solicitors for the Law Society, submitted that the Law Society had duly considered and recognized the plaintiff’s litigation experience as a barrister and his knowledge of the substantive laws of Hong Kong.  Its main concern was and remains on the plaintiff’s knowledge and experience in the legal practice as a solicitor.

14.HW submitted that both the Consents Committee and the Standing Committee formed the view that as the plaintiff had been waived the two years of training, his experience as a legal manager was inapplicable and he was not bona fide employed in the practice of a solicitor in Hong Kong for at least two years, he had not gained sufficient experience of the legal practice similar to that of a solicitor who had experienced two years of limited practice in the law in Hong Kong.

15.On law, HW submitted that when reading sections 6(6) and 6(6A) together, substantial experience as provided under section 6(6A) must represent knowledge of both substantial law and legal practice in Hong Kong that the applicant is otherwise likely to acquire during the two years’ full time practice as a solicitor.  Such interpretation is in line with Huggins VP’s view in Re Alexander Adamovich, a solicitor [1983] HKLR 270 at 272H-J and adopted by Yang CJ in Re Shane Frederick Weir,HCMP 2653/1992, unreported, 16 March 1993.

16.HW further submitted that since solicitors are fiduciaries, placed in the positions of trust with regard to their clients and with control of and responsibility for their client’s funds, the Law Society is obliged and expected to carefully uphold the two-year requirement to protect the public from being put at risk of solicitors who still require supervision in their practice.  The two-year requirement is the minimum amount of experience required of an unsupervised solicitor.

17.In response of the plaintiff’s argument that his experience satisfied the requirement of “substantial experience in the law”, HW contended that the plaintiff failed to appreciate the difference between the practice of a barrister and a solicitor and that even an experienced barrister cannot simply by virtue of their practice as a barrister, begin to practise as a solicitor without supervision.  Further, the Standing Committee was not satisfied that the plaintiff had provided satisfactory evidence as to what a two-year qualified solicitor should know in handling client and trust funds nor how his practice as a barrister would equivalent to the practice of a solicitor.  Therefore, the Law Society did not err in refusing the plaintiff’s application.

D.      My views

18.As already alluded to, the parties’ submissions give rise to two principal issues as identified at [4] above.  I will deal with them in turn.

D1.    The 1^st Issue

19.The 1^st Issue concerns the meaning of “substantial experience in the law” for the purpose of section 6(6A) of the LPO. It is a matter of statutory construction.  The answer is in my view plain and obvious.

20.Section 6 of the LPO empowers the Law Society to issue practising certificates to solicitors to practise qua solicitors in accordance with the various requirements set out in the subsections.  The two-year requirement in section 6(6) ensures that no solicitor can practise as a solicitor on his own or in partnership for at least 2 years.  In considering if a waiver of the two-year requirement should be granted under section 6(6A), the whole purpose is to determine if the applicant has “substantial experience in the law” so that he can, without supervision, practise as a solicitor.  Construed with this purpose in mind, “substantial experience in the law” must mean substantial experience in the law as a solicitor.

21.Given the nature of the practice of a solicitor, substantive experience in the law as a solicitor encompasses both the substantive law and the legal practice as a solicitor.  As explained by Huggins VP in Re Alexander Adamovich, a solicitor, supra, at p.272H-J when he expounded the legislative intent of section 6(6A):

“I accept that the intention of the legislature was to ensure that, before a practitioner was allowed to practise without supervision and to have control of, and responsibility for, his client’s funds, he should not only have a knowledge of the substantive law but also have gained a knowledge of legal practice, either in Hong Kong or in the United Kingdom, and it is reasonable to assume that the Council was intended to disapply sub.s.(6) only where an applicant had, in the opinion of the Council, acquired such a knowledge of the law and legal practice as he might otherwise likely to acquire during two years’ limited practice.”

Properly understand in context, Huggins VP’s reference to “legal practice”, must mean the legal practice of a solicitor.

22.Accordingly, on a proper construction of section 6(6A), an applicant would have acquired the requisite substantial experience in the law if he has, in the opinion of the Council, acquired knowledge of both (1) the substantive law and (2) the legal practice of a solicitor in Hong Kong, as he might otherwise likely to acquire during two years’ limited practice as a solicitor.  The contrary submissions by Mr Brown are all rejected.

D2.    The 2^nd Issue

23.The 2^nd Issue involves the Law Society’s assessment that the plaintiff lacked the requisite substantial experience for the purpose of section 6(6A).  Here, the court is asked to determine if the primary decision of the Law Society is erroneous.

24.In this regard, a few words about the general approach to be adopted in dealing with an appeal brought under section 6(10) of the LPO is apposite.   In Re Alexander Adamovich, a solicitor, supra, Huggins VP at pp. 273J-274A took the view that the court should interfere with the Council’s decision only if persuaded that it was one which could not reasonably be reached on the evidence.  This is, however, not a test of irrationality as applied in judicial review.  As Li CJ explained in Yau Chung Wo Jeremiah v Law Society of Hong Kong, unreported, HCMP 425/1999, 30 June 1999, at p.8:

“The test [Huggins VP] applied was that he should interfere with the Council’s decision only if persuaded that it was on which could not reasonably be reached on the evidence. If he were applying the judicial review test of irrationality, that would, in my view, be an incorrect test on a statutory right of appeal. But if he meant only that on appeal, the Chief Justice should accord proper weight to the decision of the regulatory body, that would be unexceptional and appropriate.”

25.The reason why the court should give proper weight to the primary decision made by the Law Society when approaching an appeal under section 6(6A) is self-evident.  The Law Society is entrusted by the legislature under the LPO with the primary obligation to ensure that solicitors must have sufficient experience both in terms of legal knowledge and legal practice as a solicitor before they are permitted to practise without supervision.  As the regulatory body of the profession armed with the collective experience and expertise of the members of the Council and its committees, the Law Society is plainly in the best position to assess and determine if an applicant has acquired the requisite substantive experience in the law to qualify for the waiver of the two-year requirement: see Re Alexander Adamovich, a solicitor, supra, per Huggins VP at pp. 273J; see also Lam VP’s observations in Roderick Miller v Law Society of Hong Kong [2014] 3 HKLRD 1 at [27].

26.Here, as explained by Ms Margot Tung, the Law Society did pay regard to the plaintiff’s experience while practising as a barrister and thus was satisfied that he had acquired sufficient knowledge in the substantial law in Hong Kong.  His application was however rejected for his failure to demonstrate that his experience in the legal practice of a solicitor was similar to the experience that a solicitor would obtain during two-years’ limited practice: see her explanation in her affidavit quoted at [9] above.

27.Having considered the evidence in totality, I am of the view that the Law Society is well justified in concluding that the experience and knowledge exhibited by the plaintiff only shows that he has a wide range of practice and substantial experience on the substantive law but in terms of the legal practice of a solicitor, his knowledge and experience acquired for 9 months since practising as an assistant solicitor (as at the time of his waiver application) could hardly be regarded as sufficient to meet the threshold in section 6(6A).  Neither his past experience as a barrister nor that as a legal manager of the firm has little, if any, weight in assessing his experience in terms of the legal practice as a solicitor for the purpose of section 6(6A).  I can see no basis to disturb the Law Society’s assessment.  I reject Mr Brown’s submissions to the contrary.

E.      Dispositions

28.In consequence, I affirm the Law Society’s decision in rejecting the plaintiff’s application for a waiver under section 6(6A) of the LPO.

29.On costs, I make an order nisi that the plaintiff do pay the costs of this appeal to the Law Society to be taxed if not agreed.

Mr Toby Brown, instructed by Lee Law Firm, for the Plaintiff

Messrs Howse Williams, for the Defendant