So Chin Wang v. The Law Society of Hong Kong

HCMP 254/2021

[2021] HKCFI 617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 254 OF 2021

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Before:  Hon Poon CJHC in Court

Date of Judgment:  10 March 2021

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J U D G M E N T

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1.By a notice of motion dated 10 November 2020 in HCMP 2037/2020, the applicant seeks admission as a solicitor in Hong Kong. Instead of attending the hearing of the motion in person, the applicant applies under rule 13 of the Admission and Registration Rules, Cap 159B (“the Rules”) to attend by way of video-conferencing facilities (“VCF”). Alternatively, he applies to be exempted from attending the hearing if VCF are not available. He also applies to make the required affirmation[1] by VCF, alternatively by paper disposal, and to sign on the roll of solicitors outside of the court.

2.The reasons in support of his application have been fully set out in the applicant’s affirmation dated 19 February 2021. The Law Society takes a neutral stance and the Secretary for Justice has no objection to the application.  Having considered the applicant’s affirmation, I take the view that this application can be properly disposed of without further submission or an oral hearing.

Factual background

3.The applicant completed his traineeship with Simmons & Simmons LLP in August 2020.  He was issued the requisite certificate of eligibility by the Law Society on 3 November 2020[2].  The motion for his admission as a solicitor in HCMP 2037/2020 is fixed to be heard on 20 March 2021.

4.Meanwhile, the applicant travelled to the United Kingdom and joined the London office of Simmons and Simmons on 16 November 2020, in the capacity of an associate, awaiting official admission as a solicitor in Hong Kong.  At the time, it was his intention to attend in person the hearing of the motion in Hong Kong on 20 March 2021[3]. 

5.On 24 December 2020, due to the coronavirus pandemic, the Hong Kong Government imposed restrictions for persons entering Hong Kong from the United Kingdom, namely:

“all persons who have stayed in the UK for more than two hours on the day of boarding or during the 21 days before that day are not be [sic.] allowed to board for Hong Kong; Persons arriving at Hong Kong (either via the airport or land boundary control points) who have stayed in the UK on the day of arrival at Hong Kong or during the 21 days before that day have to undergo compulsory quarantine for 21 days in designated quarantine hotels.”[4]

6.On 4 January 2021, the applicant applied by a letter to the presiding judge of the hearing on 20 March 2021 for directions regarding attendance by VCF.  On 8 January 2021, he was directed to make an application by summons to the Chief Judge, which he did on 26 February 2021.

7.The above entry restrictions imposed by the Hong Kong Government are still in place at present, and it is uncertain how long they will continue.

Grounds for the application

8.The applicant stated that as a result of the entry restrictions, in order to attend the hearing of the motion in person, he would need to leave the United Kingdom for another country for 21 days, before being permitted to fly to Hong Kong, and then to observe quarantine in Hong Kong in a designated hotel for another 21 nights.  This would make his attendance in person impractical and onerous.  He would need to incur considerable accommodation costs.  He pointed out that the costs of 21 nights in quarantine in Hong Kong would be at least HK$8,400, subject to room availability.  In addition, there would be costs of accommodation in another country outside the United Kingdom before coming to Hong Kong.  In this connection, the applicant is also concerned about visiting another country in the midst of the pandemic.  He further relied on general uncertainties arising from the pandemic, and that similar entry restrictions could be imposed at short notice on other places, leading to the possibility that he would not be able to board for Hong Kong even if he were to go to another country.

9.The applicant then stated that he would need to work remotely upon leaving the United Kingdom, and that there would be an eight-hour time difference between Hong Kong and London where his work is based.

10.Lastly, the applicant pointed out that, by requirement of the United Kingdom Government, upon returning to the United Kingdom, he would have to quarantine for 10 days and incurred another £210 (about HK$2,273.68) for a travel test package, as well as the cost of a test 3 days prior to travelling.

The law and practice relating to the admission of solicitors

11.Admission of solicitors is regulated by the Legal Practitioners Ordinance, Cap 159 (“the LPO”) and the Rules.  Section 4 of the LPO provides for the admission of solicitors by the court.  Section 5 of the LPO provides that the Registrar of the High Court is to keep a roll of all solicitors admitted.  Rule 3 of the Rules deals with the application for a certificate of eligibility to be issued by the Law Society.  Rule 4 provides that a person seeking admission as a solicitor is to file a motion paper, in the case of the Applicant, to be accompanied by a certificate of eligibility (Form 2 under the Rules). 

12.Rule 5(1) and (2) of the Rules provide that:-

“(1) On the date of hearing of the motion … or any adjournment thereof by the Court, the Secretary for Justice, or a member of the Society or Counsel shall move the Court that the person concerned be admitted and enrolled as a solicitor.

(2) The Court … upon being satisfied that the applicant is eligible for admission as a solicitor, may order that the applicant be admitted as a solicitor or, if the Court is not so satisfied, may dismiss the application upon such terms as regards costs or otherwise as the Court may deem appropriate.”

13.Rule 6 provides that:-

“Before a person who has been ordered to be admitted as a solicitor in accordance with rule 5(2) is so admitted, he shall subscribe the oath following—

‘I, A.B., do swear (or solemnly, sincerely and truly declare and affirm) that I will truly and honestly conduct myself in the practice of solicitor, according to the best of my knowledge and ability. So help me God.’:

Provided that in the case of a declaration or affirmation the last 4 words of such oath shall be omitted.”

14.Rule 13, relied on by the applicant, provides that:-

“The Chief Judge on special grounds and upon such conditions as he may consider necessary may exempt any person from any of the formalities prescribed by these rules, either absolutely or for any specified period, and may reduce or abridge any of the periods of notice prescribed by these rules upon any such conditions …”

15.As implicitly accepted by the applicant, it is the practice of the court to require attendance in person at the hearing of a motion for admission of a solicitor.  Upon being moved and satisfied that an applicant is eligible for admission, the court would ordinarily order him to be admitted.  By rule 6 he is not admitted unless and until he has subscribed the oath (or affirmation) as set out in the same rule.  Subscribing the oath is to be undertaken in person at the hearing.  The person to be admitted is required to sign on the roll of solicitors at the hearing.

My views

16.Rule 13 empowers the Chief Judge to exempt a person from formalities prescribed by the Rules on special grounds.  What amounts to a formality is however not defined.  The issue arises as to whether personal attendance to subscribe the oath (or affirmation) under rule 6, and to sign on the roll of solicitors, are matters of formality.

17.In Fu Sze Ying Mabel v The Law Society of Hong Kong HCMP 908/2008, 17 June 2008, unreported, Ma CJHC (as he then was) applied rule 13 to exempt an applicant from submitting a Form 4 to the Law Society.  Ordinarily, a Form 4 contains details of an applicant’s traineeship and is signed by his principal.  The applicant is to submit this Form 4 to the Law Society in order for a certificate of eligibility to be issued.  With regard to the application of rule 13, Ma CJHC at [6] held:-

“(1) It must be shown that the underlying objective or purpose of the ‘formality’ or step (for which exemption is sought) is in fact fulfilled such that the failure to comply with that formality becomes then merely a technicality. In other words, the spirit or substance of the formal requirement must be shown to exist or be satisfied, leaving unfulfilled only the form. For example, under rule 12F of the Rules, a person who wishes to be registered as a notary public must produce to the Registrar of the High Court a certificate of appointment issued under rule 12E. If that person is unable to produce a certificate on account, say, of its being lost or destroyed, he or she may nevertheless obtain an exemption if it is shown that there was a certificate in existence and that the person was in fact duly qualified as a notary public.

(2) Cogent reasons must be given as to why the formal requirement cannot be fulfilled.”

18.His Lordship further held that the underlying objective or purpose of Form 4 was in fact fulfilled, which was that the applicant was a fit and proper person to be admitted as a solicitor and had completed a satisfactory traineeship.  As for the reasons for the applicant’s inability to produce the Form 4, he at [16] said:-

“In the past, reasons which have been found acceptable by the court included the falling out between principal and trainee solicitor leading to an unreasonable refusal on the principal’s part to comply with the relevant formality. The present case is little different. It is clear from the facts … that the only reason why the Applicant has been unable to provide a Form 4 to the Law Society was the refusal of Mr David Chan to release one in circumstances which I regard as being unreasonable.”

19.Here, rule 6 clearly states that an applicant cannot be admitted unless and until he has subscribed the oath.  Unlike submission of Form 4, this appears to be a prerequisite to admission.  The court’s practice further requires this to be done in person at the hearing.  The same applies to signing on the roll.  It is questionable whether personal attendance at the hearing to subscribe the oath and sign on the roll are merely matters of formality.  The applicant simply proceeded on the assumption that they are but has not made any submissions in support.

20.In any event, assuming but without deciding that subscribing the oath and signing on the roll at the hearing in person are matters of formality, exemption can still only be given on special grounds.  Admission of a solicitor is a solemn process where personal attendance at the hearing is normally required.  Exemptions are not to be granted lightly.  Cogent reasons must exist.  Here, although entry restrictions due to the pandemic could be regarded as extraordinary circumstances, the applicant accepts that he could still make arrangements to travel.  The matters relied on for exemption in truth are the inconvenience and additional costs involved in making the arrangements.

21.The applicant has not given a complete estimate of the additional costs for attending the hearing of his motion.  He has only given estimates for 2 items, namely, the cost of quarantine accommodation in Hong Kong (which could be arranged at the lower end for about HK$8,400) and a test package after returning to the United Kingdom (about HK$2,273.68).  There is no evidence of the means available to the applicant.  There is no evidence to show that the overall costs of the necessary travel arrangements would be prohibitive or unduly onerous for him.

22.The applicant also accepted that remote work arrangements could be made while he is away from the United Kingdom.  Although it would be inconvenient for him as there would be a time difference of 8 hours when he is in Hong Kong, there is no evidence that his employer in the United Kingdom would not or could not provide suitable work arrangements for his situation or that it was a difficulty which he could not reasonably be expected to overcome.

23.While I am prepared to accept that, if he were to attend the hearing of the motion in person, the applicant would incur additional expenses and inconvenience, his situation is not in the same category as the Form 4 cases where the applicants were unable to submit a Form 4 because their principals were unreasonably withholding their signature and could not be compelled to sign.

24.Having carefully considered the matters relied on by the applicant, I am not satisfied that special grounds justifying exemption from his personal attendance at the hearing on 20 March 2021 have been made out.

Conclusion

25.In consequence, I refuse the present application.

Simmons & Simmons, for the applicant

The respondent, acting in person