Robert James Brook v. The Law Society of Hong Kong

1998, No. 4
(Civil)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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Coram : Hon. Mortimer, V.-P., Godfrey and Leong, JJ.A. in court

Date of hearing : 12 March 1998

Date of handing down judgment : 16 April 1998

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. This is an appeal from Keith J., who, on 14 July 1997, dismissed an application by Robert James Brook ("Mr. Brook") for a judicial review of a decision of the Law Society of Hong Kong ("the Law Society"). Mr. Brook seeks admission to the roll of solicitors in Hong Kong on the basis of qualifications acquired by him outside Hong Kong, and the Law Society's decision (which I shall describe later) obstructs him in his attempt to attain this object. Mr. Brook now appeals against Keith J.'s dismissal of his application for judicial review.

The legislative background

2. It will be convenient, before dealing with the particular circumstances of Mr. Brook's case, to consider the legislative background against which his attempt to obtain admission to the roll of solicitors in Hong Kong must be considered; I refer to the Legal Practitioners Ordinance, Cap. 159 and some of the subsidiary legislation made under its provisions.

3. The power to admit a solicitor to the roll of solicitors in Hong Kong is conferred on the court : see section 3 of the Ordinance. The court may so admit a person who it considers to be a fit and proper person to be a solicitor and, in the case of a person who seeks admission on the basis of qualifications acquired outside Hong Kong, who qualifies for admission under requirements prescribed by the Council of the Law Society : see section 4(1)(b). The Chief Justice is given power to make rules in general relating to the admission of solicitors : see section 72. The Council is given power to make rules in particular relating to the admission of persons under section 4(1)(b), including qualifications for admission, examinations, and the fees to be paid for applications and examinations : see section 73(1)(da).

4. The Admission and Registration Rules, made under section 72, require a person seeking to be admitted as a solicitor on the basis of compliance with section 4(1)(b) of the Ordinance to apply to the Law Society for the issue of a "certificate of eligibility" : see Rule 3(1).

5. The applicant must apply for this certificate using a prescribed form, which contains a declaration that he has passed such examinations as the Law Society may have required him to pass. If the Law Society is satisfied that such a person is eligible for admission as a solicitor and has satisfied certain residence requirements, it must issue to him a "certificate of eligibility" in the prescribed form; such a certificate indicates that the applicant has satisfied the Law Society that he has been admitted in some other jurisdiction; that his name remains on the roll there; that he is not suspended from practising in that jurisdiction, and that he is in other respects fit to be a solicitor : see Rule 3(5).

6. The applicant's application for admission as a solicitor must be made by motion, within a prescribed time after the issue of his "certificate of eligibility", a copy of which certificate must accompany his motion paper : see Rule 4.

7. The court, on being satisfied that the applicant is eligible for admission as a solicitor, may order that the applicant be so admitted : see Rule 5.

8. The Overseas Lawyers (Qualification for Admission) Rules, made under s.73, provide that a person is qualified for admission as a solicitor under section 4(1)(b) of the Ordinance if (a) he is a person entitled to practise the law of a foreign jurisdiction; (b) he is a person of good standing in his jurisdiction of admission; and (c) he satisfies the requirements (in the case of a lawyer whose jurisdiction of admission is a common law jurisdiction) specified in Rule 4 : see Rule 2.

9. An applicant for admission under section 4(1)(b) must provide to the Law Society such evidence as it may require showing that he is a person who "appears to be qualified" for admission in accordance with the Rules, except as regards any requirement to have passed any part of the Overseas Lawyers Qualification Examination (emphasis added). If the Law Society is satisfied that an applicant appears to be so qualified it "must" issue a certificate to that effect, stating any subjects in the examination which he is required to pass: see Rule 3(2).

10. Without such a certificate, which remains current for 12 months, an applicant is not permitted to take the Examination : see Rules 3(3) and (4).

11. In the case of an applicant who has not had 5 years of experience in the practice of law, he must, unless the Law Society otherwise determines, satisfy one of the following requirements :

(i) completion of at least 2 years service as a trainee solicitor or articled clerk in that jurisdiction; or

(ii) not less than 2 years of post-admission experience in practice of law; or

(iii) a combination of (i) and (ii),

and must have passed the Examination in all written subjects : see Rule 4(2)(b).

12. On making a determination under Rule 4, the Law Society must have regard to the nature and extent of the applicant's practical experience in the laws of Hong Kong and any academic or other qualification : see Rule 6(1).

13. There is an avenue of appeal for an applicant who is refused the certificate without which he cannot take the examination : see Rule 9.

14. The Law Society, if at any time it is not satisfied as to the suitability to become a solicitor of any person to whom it has issued such a certificate, may prohibit him from attempting the examination; or revoke the certificate; or oppose his admission as a solicitor : see Rule 10.

15. I need not (I am glad to say) refer to any other of the provisions of this convoluted primary and secondary legislation. I would however note and emphasise one point; the certificate to be issued by the Law Society under Rule 3(2) of the Overseas Lawyers (Qualification for Admission) Rules may be issued only to an applicant who has satisfied the Law Society that he "appears to be qualified" to proceed to examination. The legislation contains no provision authorising the issue by the Law Society of such a certificate to an applicant who has not satisfied the Law Society that he appears to be qualified to proceed to examination.

Mr. Brook's case

16. The judge summarised Mr. Brook's position as follows, and I gratefully adopt his summary :-

"Mr. Robert Brook is an Australian national. He obtained a law degree in 1992. He then went to live in New York, where he was employed as a para-legal for 9 months for a firm of attorneys. His work consisted of commercial litigation involving trademark, patent and copyright law. In 1993, he passed the examination for the New York State Bar, and he was admitted as a member of the New York State Bar on 31st October 1994. However, he had moved to Hong Kong in November 1993, and since January 1994 he has been working as a para-legal for the firm of Pam Baker & Co. His experience there has been mainly in the field of litigation, in particular administrative law cases relating to asylum-seekers from Vietnam.

Mr. Brook wishes to be admitted as a solicitor of the High Court of Hong Kong."

17. On 8 July 1995, the Law Society issued to Mr. Brook the certificate, or what purported to be the certificate, which, under Rule 3(2) of the Overseas Lawyers (Qualification for Admission) Rules, he needed in order to attempt the Overseas Lawyers Qualification Examination. It had no power to issue that certificate to Mr. Brook unless it was satisfied (except in relation to the examination) that Mr. Brook appeared to be qualified for admission as a solicitor. It could not, or could not properly, have been so satisfied if it harboured reservations about Mr. Brook's qualifications, subject to passing the examination, to be admitted as a solicitor.

18. Mr. Brook took the examinations he was required to take, and passed them. But, by a letter dated 1 July 1996 (the "decision" to which Mr. Brook objects), the Law Society rejected his application for a "certificate of eligibility", asserting that Mr. Brook had not satisfied a necessary qualification, i.e. the requirements of Rule 4(2) of the Overseas Lawyers (Qualification or Admission) Rules, relating to professional experience. Mr. Brook says that, under the scheme for the admission of overseas lawyers as solicitors constituted by the legislation (primary and secondary) to which I have referred, the Law Society, when it certified that it was satisfied that Mr. Brook appeared (except for the matter of examination) to be qualified for admission as a solicitor; when it took its fees; and when it allowed him to take the examination, passed a point of no return, and was not entitled, on the ground of his want of the necessary professional experience, to refuse him the "certificate of eligibility" for which, by virtue of passing the examination, he had now qualified.

The Law Society's case

19. The Law Society says that the scheme allows it to re-visit the matter of an applicant's professional experience even after it has issued its certificate to the effect that it has satisfied itself that (subject to the matter of examination) the applicant appeared to be qualified to be admitted as a solicitor. It fastens on the words "appears to be qualified", which, it contends, do not mean "is qualified". It contends, as I understand its argument, that in issuing its certificate to Mr. Brook on 8 July 1995, it did not express itself satisfied that Mr. Brook was so qualified; only that he appeared to be so qualified. Its certificate (as indeed its form indicated) was, in effect, provisional rather than final.

The judgment below

20. The judge accepted the Law Society's argument. He rejected Mr. Brook's submission that, on the true construction of the relevant legislation, the Law Society was required, before issuing its certificate allowing an applicant to go forward to the examination stage, to make a final decision whether the applicant had satisfied what the judge called "the professional requirements of section 4(2)(b)".

Conclusion

21. I find myself constrained to differ from the judge. As it seems to me, the legislative scheme cannot work unless a foreign lawyer's application to be admitted as a solicitor is allowed to proceed from step to step, stage to stage, as the legislation clearly contemplates. There can be no back tracking. The Law Society's duty is to operate the scheme according to its provisions. It cannot lawfully adopt what it calls "a flexible approach" to the operation of the legislative scheme, however well-intentioned (it seems that the Law Society has adopted its "flexible approach" so as to mitigate the difficulties involved in operating the statutory scheme in accordance with the time limits imposed by its provisions for the currency of its certificates because the Law Society has elected to hold the necessary examinations only once a year). If the legislation needs amendment, this must be done formally, not by the informal substitution, by the Law Society, of some different scheme of its own in place of the statutory scheme. The Law Society's apparent practice of issuing certificates to enable foreign lawyers to take the examination without considering at that stage whether they appear, among other things, to have satisfied the professional requirements of section 4(2)(b) is in breach of its statutory duty and must now change unless the legislation is amended so as to legitimise it.

22. I would allow this appeal, and declare that on the true construction of the legislative provisions to which I have referred, and in the events which happened, the Law Society, having expressed itself satisfied that Mr. Brook appeared to be qualified for admission as a solicitor, was not entitled to refuse Mr. Brook a certificate of eligibility on the ground that he had not satisfied the professional requirements of section 4(2)(b). I would not at this stage grant Mr. Brook any further or other relief. The Law Society is the regulatory authority, and I would leave it to the Law Society in the first instance to take such steps as may be necessary and appropriate to right the wrong it did to Mr. Brook here in refusing him a certificate of eligibility after it had (1) expressed itself satisfied that Mr. Brook appeared to be qualified for admission as a solicitor; (2) taken his fees; and (3) allowed him to take (and pass) its examinations. I would provide in the order to be made on the appeal that Mr. Brook is to be at liberty to apply to the Court of First Instance for further or other consequential relief if so advised.

Leong, J.A.:

23. I have the opportunity of reading the judgments of my Lords Mortimer, the Vice President and Godfrey, J.A. I am also of the opinion the Law Society having issued the certificate under Rule 3(2) of the Overseas Lawyers (Qualification for Admission) Rules indicating that the appellant "appears to be qualified for admission" except as regards examination requirements and the appellant having complied with those requirements, cannot now refuse his application for a certificate of eligibility. I agree that the appeal should be allowed and a declaration be granted. I also agree to the order proposed to be made by my Lord Godfrey, J.A.

Mortimer, V.-P.:

24. I agree that this appeal should be allowed. But as I am differing from the judge below, I would add a few words of my own.

25. I gratefully adopt Godfrey JA's outline of the statutory scheme for the admission of foreign lawyers. The case turns upon the effect of the words "appears to be qualified" in rule 3(1) of the Overseas Lawyers (Qualification for Admission) Rules (Cap 159) which provides:

"3. Society to issue certificates if applicant appears to be qualified

(1) A person wishing to seek admission as a solicitor pursuant to section 4(1)(b) of the Ordinance ("applicant") must provide to the Society such evidence as the Society may require showing that he is a person who appears to be qualified for admission in accordance with these Rules except as regards any requirement to have passed any part of the Examination."

Sub-section (2) provides that if the Society is so satisfied it must issue a certificate to that effect and stating the examination subjects the applicant is required to pass.

26. In the absence of the certificate, an applicant is not permitted to take the examination. More importantly, if an applicant provides evidence to the Society which shows that he is a person who appears to be qualified save for the examination requirement and he is refused a certificate by the Society, he may appeal. Initially, he may ask the Society to review their decision and failing that, he may apply to the High Court. See rule 9.

27. This is a clear indication that the provisions under s.3(1)(a) are not wholly informal and discretionary. The Society is required to consider the evidence and decide whether but for the examination, the applicant has shown that he appears to be qualified. If the evidence produce by the applicant clearly satisfies that test, a certificate must be issued failing which he may, as a last resort, apply to the High Court to so order.

28. That is the regulatory scheme laid down in the rules. In these circumstances, may the Society, having issued a certificate on the evidence put forward, then demand further requirements under rule 4(2)(b) on the basis that the applicant was not in fact qualified save for the examination?

29. In my judgment, it cannot, although further proof of the facts relied upon to obtain the certificate under rule 3 may be required before the Certificate of Eligibility is issued.

30. In late 1994 the Law Society changed its admission procedure under this regulatory scheme. See the affidavit of Belinda Rose MacMahon paragraph 7:

"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 difficulty is that the so-called "flexible approach" is not a procedure which complies with the rules.

31. In these circumstances, I also would allow the appeal and grant declaration on the true construction of rule 3(1) but decline further relief. The Law Society must regulate the profession in accordance with the law but there is a public interest. If the Law Society were to issue a certificate under rule 3(1) in error of either law or fact, the result could be that an unqualified person is admitted to practise. In such a circumstance the application would be remitted to the Law Society so that it could follow the rules. In this case, no difficulty is likely to arise once the declaration has been made. But I agree that there should be liberty to apply to the Court of First Instance in the unlikely event of further relief being required.

Representation:

Mr. Philip Dykes, S.C. & Mr. Anthony Watson-Brown (M/s. Pam Baker & Co.) for the Appellant/Applicant

Mr. Geoffrey Ma, S.C. & Mr. Russell Coleman (M/s. Deacons Graham & James) for the Respondent/Respondent

Remarks:
Appeal allowed. Orders made by the Court of Appeal discharged. Please refer to appeal Judgment FACV000020/1998.