Re Lee Gu Lan Francesca

HCMP 1698/2021

[2021] HKCFI 3335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1698 OF 2021

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Before:  Hon Coleman J in Chambers (Open to Public)

Date of Submission: 1 November 2021

Date of Ruling: 12 November 2021

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R U L I N G

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A.   Introduction

1.By an originating notice of motion dated 1 November 2021, the applicant seeks admission and enrolment as a solicitor in Hong Kong, following the completion of her traineeship with the firm of ONC.  The date of 5 February 2022 has been allocated as the date for the admission application hearing (or admission ceremony).

2.Prior to the issue of the notice of motion, ONC (on behalf of the applicant) had invited me by letter dated 9 September 2021 to consider using the Court’s video conferencing facilities (“VCF”) to permit the family and friends of the applicant to attend/witness her admission ceremony, though the applicant herself would still attend it in person.

3.By my letter of 12 October 2021, I indicated my preliminary view that, as a matter of case management, I would not make the proposed order.  As the suggested order had only been put forward on an informal basis in correspondence, however, I made no formal order.  I indicated that, should there be any intention to pursue the matter, a formal application should be issued, within the actual admission proceedings once filed.  I stated that any such application would be dealt with on paper.

4.By summons dated 1 November 2021, the applicant has now made formal application that her admission application be conducted by way of a remote hearing, in the sense that whilst the applicant shall attend the remote hearing in person, her family and friends shall attend by VCF.  The summons also seeks further relevant consequential directions.  The summons is supported by the applicant’s affirmation made on 2 September 2021.

5.In prior correspondence with ONC, both the Law Society and the Department of Justice indicated being neutral on any such application, essentially because it is a matter of case management within the discretion of the Court.

6.However, though the summons gives rise to a matter of case management directly applicable only to this admission application, Mr Joshua Allen Chu of ONC in his skeleton submissions now invites the Court (a) in effect to introduce the use of VCF as a potential option for all future applications for admission as a barrister or solicitor, as well as (b) to consider putting in place recommended procedures and policy to enable events such as admission applications to continue via the use of technology, despite the applicant himself or herself being located overseas.

7.This is my Ruling.

B.   The Basis of the Applicant’s Summons

8.In her affirmation, the applicant points to her understanding that, according to the circular dated 29 June 2021, each applicant for admission may be accompanied by not more than eight persons (including the person moving the admission) at the admission hearing.

9.However, though that is a relaxation of previously more restrictive requirements, the applicant herself is unable to benefit from them because, she says:

(1)  all of her relatives currently reside outside of Hong Kong, and if they were to come to Hong Kong they would face mandatory quarantine requirements ranging from 14 to 21 days;

(2)  moreover, there are legitimate health risk concerns associated with plane travel, especially for the elderly population, so that legitimate concerns go beyond the mere inconvenience of quarantine;

(3)  further, the applicant regards it as part of her own civic duty to limit the risk to the greater public by any encouragement of travel from countries which have a higher incidence of Covid-19 cases;

(4)  her romantic partner (with whom she sees her future) is also in Canada, and the 14-day mandatory quarantine requirement renders it impracticable within his own work schedule for him to be able to come to Hong Kong for the admission hearing;

(5)  the applicant’s childhood friend (with whom she maintains almost daily contact), who lives in the United States, is unable to travel for similar reasons, and is disappointed that at present she could not even virtually witness the admission ceremony, even though it has been the practice to conduct virtual admission ceremonies for attorneys in the United States.

10.Therefore, whilst emphasising that she would herself follow all the law and practice relating to admission of solicitors in Hong Kong and attend the admission hearing in person, the use of VCF would enable more of her family members and friends to witness what is an important and ‘once-in-a-lifetime’ event for her.  Otherwise, most of those closest to her would be absent from her admission.

C.   Mr Chu’s Submissions

11.Mr Chu acknowledges that the summons for use of VCF gives rise to a case management question within the discretion of the Court.

12.But he emphasises the importance of such an auspicious event as the formal admission as a solicitor or barrister, perhaps akin to other ‘big days’ in a person’s life.  As proof of that, he reminds the Court of the pre-Covid era, when it was not uncommon that crowds of friends and family members would be ‘shoehorned’ into the single court room – with those attending often standing around the edges of the court room, or even sitting in the dock – to witness the multiple admissions dealt with at each hearing.

13.However, with the public health concerns arising from the pandemic, the format of admission hearings has been changed. Essentially, the hearing days are divided into ‘tranches’, deal with only three applicants at a time, and curb the number of attendees.  This can mean that applicants for admission have to choose certain family members and/or friends over others, to keep within the permitted number of attendees.  At the same time, international travel restrictions and concerns have in practical terms prevented people who would otherwise have wished to attend the hearing from so doing.

14.Therefore, Mr Chu submits, technology is the “solution”.  He points to recent decisions at first instance and in the Court of Appeal where the grounds for real concern arising from international travel have been accepted.  This has given rise to a greater degree of flexibility, and the greater use of VCF for the conduct of trials.

15.But, Mr Chu submits that whilst the Court has made great strides to lay the foundation for the use of technology for litigating parties in contentious proceedings, there is yet to be groundwork for other “stakeholders” (his word), specifically attendees.  He suggests that attendees at admission hearings are “important stakeholders”, and permitting attendance using VCF would promote transparency and hearings open to the public.  He also submits that adopting such a course would achieve the underlying objectives in RHC Order 1A rule 1, and that accommodating attendance by those both locally and abroad achieve far greater and more efficient capacity while at the same time upholding public health policies.

16.In that regard, Mr Chu points to a number of other common law jurisdictions in which virtual or remote admission hearings/ceremonies have been conducted over the last two years or so during the pandemic.  So Mr Chu submits that by introducing the use of VCF as a potential option for future applicants, the Court “need not be faced with crowd control concerns” and applicants with larger families and/or social networks “will be in a position to accommodate all interested parties”.

D.   This Application

17.I accept that the applicant understandably regards her forthcoming admission hearing as a ‘big day’, which she would very much prefer could be attended by her close family and friends.

18.But it is a simple, if unfortunate, fact of the current pandemic and related public health concerns that the decision has been taken to limit participation in admission hearings, as well as slightly to reformat such hearings.  I accept that the restrictions may conceivably impact people in different ways.  For example, a person from a large and close family or with a large group of close friends may feel more restricted than a person from a small family or with fewer close friends.  But the steps adopted seek to achieve a reasonable balance in permitting admission hearings to go ahead physically in a court room with some meaningful level of attendance by family and/or friends.

19.Whilst one can be sympathetic to family and friends missing out on a number of events and gatherings, which in different times they might not have missed, the fact that some persons who might in different circumstances have attended an admission hearing presently are, or feel, unable to do so is just one impact of the current public health situation.

20.Mr Chu has referred to open justice.  However, I think that an admission hearing is a little different from most litigation dealt with in the Courts.  That is why they are frequently referred to as admission ceremonies.  Therefore, though admission hearings are dealt with in ‘open court’, it may be that the principles of open justice do not apply with quite such force as they do to other forms of litigation.  In any event, that the hearings are held in ‘open court’ does permit persons other than the applicant and the mover of the application to attend; it is simply that current public health concerns necessitate some limitation on the numbers of those attending.

21.Another practical problem arises in relation to remote attendance by persons of what is in effect only part of the period of the hearing (though I suppose it might be said that they could witness the whole of the hearing, as do people attending in person).

22.Overall, on balance, it seems to me that the case management discretion should be exercised by refusing the application.

E.   Other Potential Applications or Wider Picture

23.Mr Chu’s invitation to approach to the wider picture gives rise to two separate matters: (1) allowing people generally to attend or witness admission hearings using VCF; (2) allowing the person being admitted to attend remotely using VCF.

24.As to the second point, the Chief Judge of the High Court has only recently rejected that idea in So Chin Wang v Law Society of Hong Kong [2021] HKCFI 617.  For reasons with which I respectfully agree, the CJHC thought it questionable whether personal attendance at the hearing to subscribe the oath/affirmation and to sign on the roll are merely matters of formality.  But in any event, where admission of a solicitor is a solemn process where personal attendance at the hearing is normally required, there would have to be cogent reasons existing to exempt personal attendance.  I would add that where a person seeks admission as a barrister or solicitor in Hong Kong, ordinarily that would be in order to enter general practice in Hong Kong, and it does not seem to me to be in any way unreasonable to expect and insist upon that person’s presence in the Court in the jurisdiction of intended practice.

25.As to the first point, I am not sure that reference to the conducting of virtual or remote admission ceremonies in other jurisdictions is necessarily helpful, if focus is upon the Hong Kong context. Numerous differences exist between jurisdictions.

26.Admission as a barrister or solicitor in Hong Kong takes the form of a formal application made on notice of motion to a Court, and takes place in a Court.  That is frequently not the position elsewhere. For example, admission as a barrister in England and Wales occurs when persons are called to the Bar by their Inn of Court (in a ceremony perhaps more like a degree conferment ceremony).

27.Further, the very concept of what constitutes a remote hearing varies between jurisdictions.  In most other jurisdictions, for example in England and Wales or Australia, a remote hearing ordinarily means that none of the Judge, the parties or other participants are physically present in the court room.  Often, this has taken account of the fact that, as a result of public health-triggered restrictions in many such jurisdictions, it has simply not been possible for people, including judges, to attend physically in a court room.  But, in Hong Kong, even a remote hearing currently ordinarily means that at least the judge or judges (or, in an appellate context, the majority of judges) are physically present in the court room, even if no other participant in the hearing is physically present but attends only through the use of VCF.  That, no doubt, in part reflects the fact that Hong Kong is a geographically small area, which has suffered a relatively low incidence of Covid cases, meaning that it has not been impossible for Judges (or usually for other participants) to reach and attend at the court rooms.

28.I anticipate that the Hong Kong approach as to what constitutes a remote hearing will be kept under close review, not least as the impact of the pandemic and the public health crisis has continuing and lengthening effect.  But I do not think it falls to me, in dealing with this particular application, to offer views as to how the current approach might be varied after any review, if at all.

29.More fundamentally, Mr Chu’s first point in effect suggests some form of general broadcast of admission hearings.  I am not personally attracted to such a suggestion.  But, more importantly, that is the kind of suggestion which may have significant knock-on effect, and would clearly require significant thought and consultation, before it might ever be implemented.

F.   Result

30.In the exercise of my case management discretion, I decline the relief sought by the summons, with no order as to costs.

Mr Joshua Allen Chu, of ONC Lawyers, for the applicant