Robert James Brook v. The Law Society of Hong Kong

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 4
(Civil)

-------------------------------------

Coram: Mortimer, V.-P., Godfrey and Rogers, JJ.A. in Court

Date of Judgment: 3 July 1998

----------------------

J U D G M E N T

----------------------

Mortimer, V.-P. (giving the judgment of the Court) :

1. The Law Society applies for leave to appeal against an order of this Court made on 16 April 1998 reversing a decision of Keith J of 14 July 1997.

2. The Law Society regulates the solicitor's profession in the public's interest under a statutory scheme. If an overseas lawyer wishes to be admitted to practise in Hong Kong - among other things - he must have certain qualifications and experience both overseas and in Hong Kong under the provisions of the Overseas Lawyers' (Qualification for Admission) Rules, and he must pass the local examination. He cannot take that examination unless he has a certificate from the Law Society that he "appears to be qualified except for having passed the examination". That certificate is issued under s.3 of the Overseas Lawyers Rules.

3. The case turned on the true interpretation of the words "appears to be qualified". The Law Society adopted what it called a flexible approach to the issue of certificates. The purpose was to assist candidates to take examinations earlier than they otherwise would be able to do. That was achieved by issuing a certificate in cases where the candidate was not actually qualified. It was referred to in an affidavit of Belinda Rose MacMahon which was before this Court. She said:

"On 28 October 1994, this Committee resolved that it would adopt a flexible approach in allowing applicants to sit the Qualification Examination, before they had actually satisfied the requirements of rule 4(2)(b) of the Rules, but that they would not be eligible for admission until they had both passed the Qualification Examination and obtained the requisite experience. The rationale behind this approach was to assist the applicants, bearing in mind that the Qualification Examination was held only once a year. ..."

The question was whether that "flexible approach" was within the statutory framework.

4. This Court, having decided the case against the Law Society, made an order allowing the appeal, giving the appellant liberty to apply to the Court of First Instance for further or other consequential relief and making an appropriate declaration.

5. The question now is whether we will exercise our discretion to grant leave to appeal under the Hong Kong Court of Final Appeal Ordinance, s.22(1)(b) - whether there is a question involved in the appeal which by reason of its great general or public importance ought to be submitted to the Court of Final Appeal for its decision.

6. We are of the view that there is such a question. The question is -

"Whether, on the true construction of the relevant legislative provisions and in the event which happened, the Law Society, having expressed itself, satisfied that the appellant appeared to be qualified for admission as a solicitor, was entitled to refuse the appellant a certificate of eligibility on the ground that he had not satisfied the professional requirements of s.4(2)(b) of the Overseas Lawyers (Qualification for Admission) Rules?'

However, we are only prepared to give leave on certain conditions:

(1) That the costs of the appeal to the Court of Final Appeal will be paid by the Law Society;

(2) That the timetable is expedited so that the appellant's case will be provided within 21 days of today; and

(3) That the respondent shall have 14 days thereafter to respond.

7. There remains the question of costs of the appeal before this Court and below. The proper order which we make is that Mr Brook shall have the costs both here and below.

8. Mr Brook's costs shall be taxed under the Legal Aid Regulations.

Representation:

Mr Philip J. Dykes SC and Mr Anthony Watson-Brown (M/s Pam Baker & Co) for Applicant/Appellant

Mr Denis Chang SC and Mr Russell Coleman (M/s Deacons, Graham & James) for Respondent/Respondent