In the Matter of Barrister and The Inherent Jurisdiction of the Court

HCMP003758/1993

1993, M.P.No.3758

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: Hon. Jerome Chan, J. in Court

Date of hearing: 8 November 1993

Date of delivery of decision: 8 November 1993

Date of handing down reasons: 23 December 1993

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REASONS FOR DECISION

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1. The applicant was originally called to the Bar on 29th August 1986 under s.27 of the Legal Practitioners Ordinance. On 13th November 1992, he applied under the inherent jurisdiction of the court for an order that his name be "voluntarily removed from the roll of barristers" of the court. It was expressly stated in the order itself that the order was granted "having regard to the applicant's intention to practise as a solicitor in Hong Kong" The Bar Association did not seek to oppose the application at the time. Subsequent to the order and on 16th January 1993, the applicant was admitted as a solicitor. He practised as a solicitor for less than a year before he applied on 12th October 1993 for re-admission under s.27 of the Legal Practitioners Ordinance. His application for re-admission as a barrister was set down to he heard on 13th November 1993. However, on 28th October 1993, the applicant took out the present summons seeking the determination by the court on two questions of law, and relief consequential to such determinations. In essence, the applicant is seeking, under the present summons, restoration to the roll of barristers. The circumstances leading to the applicant's sudden change of mind to seek restoration instead of re-admission to the roll of barristers are not relevant to the determination of the present application, suffice it for me to mention that it was probably due to the difficulties the applicant was encountering in his attempt to secure the retention of his seniority and position in the seniority list issued by the Bar. In the light of the Bar's representation, the Attorney General did not wish to be represented at the hearing of the present summons as indicated by his letter dated 5th November 1993. The Bar was represented and indicated that it is the Bar's view that the questions ought not be determined in favour of the applicant. Nevertheless, the Bar very helpfully did present arguments both for and against the case of the applicant.

2. The applicant seeks a determination by the court of the following questions, namely :-

"1. Whether this court has inherent jurisdiction to restore to the roll of barristers of this court ('the roll') the name of a former barrister who had previously obtained an order pursuant to the inherent jurisdiction of this court for the voluntary removal of his name from the roll to enable him to practise as a solicitor of this court; and

2. If the preceding question is determined in the negative, whether the seniority of the said barrister must, following his re-admission as barrister of this court, invariably be reflected in the seniority list of the Bar by reference to the date of his re-admission as opposed to the date of his original admission."

3. The applicant further seeks, in the event that the court determines the question in paragraph 1 in the affirmative, an order that the name of the applicant be restored on the roll. In the event, at the hearing the court was requested by the parties not to determine the question embodied in paragraph 2; the Bar adopting the stance that questions relating to the position and seniority of a barrister on the seniority list is entirely a matter for the Bar and not the court. At the end of the hearing I determined the question in paragraph 1 in the affirmative and ordered that the name of the applicant be restored on the roll of barristers. I now hand down the reserved reasons.

4. It is the applicant's case that in supplement to the statutory provisions in the Legal Practitioners Ordinance, the court has an inherent jurisdiction to voluntarily remove the names of barristers from the roll at their own requests and has actually exercised such jurisdiction in a number of cases. The court had indeed exercised such inherent jurisdiction in the removal of the name of the applicant from the roll in 1992. The applicant submits that if the court has an inherent jurisdiction to do an act, by the same token it must have a like inherent jurisdiction to undo the same act. It is thus submitted that the power to restore a barrister's name on the roll is an inherent power concomitant to the court's inherent power to remove him from the roll at his own request.

Legal Practitioners Ordinance

5. Pursuant to s.27 of the Legal Practitioners Ordinance the court may admit as a barrister any person who satisfies the requirements set out in s.27A. Upon admission, his name will be entered upon the roll of barristers pursuant to s.29(1). The admitted barrister can then apply for a practicing certificate pursuant to s.30.

6. A barrister will be disqualified to practise if he comes under one or more of the circumstances set out in s.31(1). Subsequent to the applicants voluntary removal from the roll and admission to practice as a solicitor in 1992, he was disqualified to practise as a barrister pursuant to s.31(1)(b) and (e).

7. At the time the applicant obtained the order of voluntary removal, the old s.29(3) and s.32 were still very much in force. Those provisions were only repealed by the Legal Practitioners (Amendment) No.2 Ordinance 1992 which took effect, insofar as it relates to those two provisions, on 30th April 1993. Section 29(3) provided that "the Chief Justice may, if he thinks fit, at any time order the Registrar to replace on the roll of barrister the name of a barrister whose name has been removed or struck off the roll of barrister."

8. Under the repealed s.32, the court had express power to remove, strike off or suspend a barrister for misconduct or where he does not commence practice as a barrister within 12 months of his admission. Under the new scheme brought into being by the amendment in 1992, the disciplinary jurisdiction of barristers has been transferred from the court to the Disciplinary Tribunal set up under the new law. Furthermore, in substitution of the power to restore under the old s.29(3), the Barristers Disciplinary Tribunal can, upon application, discharge the order of suspension or the order striking the name of the barrister off the roll (s.38). Prima facie, the Barristers Disciplinary Tribunal is not conferred with the same power to restore on the roll of barristers the name of a barrister whose name has been removed or struck off the roll of barrister comparable to the old s.29(3).

Inherent Jurisdiction

9. In presenting arguments against the existence of an inherent jurisdiction to restore a barrister to the roll subsequent to his voluntary removal pursuant to the inherent jurisdiction of the court, the Bar submits that inherent jurisdiction of the court has been defined as being "the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so; in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial." (see Jacob's "The Inherent Jurisdiction of the Court" (1970) 23 Current Legal Problems at 51). It is submitted that since there is jurisdiction for the court to re-admit the applicant under s.27, there is no necessity to have resort to the inherent jurisdiction of the court. It is further submitted that once the applicant's name was removed from the roll, he was no longer a barrister within the meaning of the Ordinance. And he has not been a barrister since that time. To become a barrister again he must be enrolled again as a barrister on the roll. And to get on the roll again he would have to be admitted under s.27 afresh. Emphasis was placed on s.2 of the Ordinance which provides that "barrister" means a person who is enrolled as a barrister on the roll of barristers and who, at the material time, is not suspended from practice.

10. The applicant, however, submits that when he was removed at his own request he does not thereby ceased to be qualified as a barrister under the requirements upon which he was previously admitted. He ceased to be qualified to practise by reason only of s.31. In the premises, it is submitted that when removed from the roll, he is deprived, not of his qualifications as a barrister, but his privileges for the time being including the right to practise.

11. It can hardly be argued that a person whose name is not on the roll of barristers can be a "barrister" for the purposes of the Ordinance. But this cannot be relied upon to disqualify a person from coming within the meaning of the term when dealing with matters outside the Ordinance. Thus, I do not find the definition of the term in the Ordinance helpful at all to the determination of the existence or otherwise of the court's inherent jurisdiction outside the Ordinance.

12. The inherent powers of the court to award the right of audience to any person attending before it to appear in any particular capacity has long been well recognised. The Ordinance was enacted to regulate the existing inherent powers of the High Court in the admission and registration of, inter alia, barristers; rather than to confer non-existing powers on the High Court. Such powers of the High Court owed its origin to the common law of the land and not to statutes. "By the common law of England, the judges have the right to determine who shall be admitted to practise as barristers and solicitors : and, as incidental thereto, the judges have the right to suspend or prohibit from practice." (per Lord Denning in Attorney General of theGambia v. N'Jie [1961] AC 617 at 630). And by virtue of s.12 of the Supreme Court Ordinance, Cap.4, our High Court was established with an origin jurisdiction "of a like nature and extent" as the High Court of Justice of England. Furthermore, a statute will not cut down the common law unless there is clear legislative intent shown. "In my opinion where the courts have established a general principle of law or equity, and the legislature steps in with particular legislation in a particular area, it must, unless showing a contrary intention, be taken to have left cases outside that area where they were under the influence of the general law. To suppose otherwise involves the conclusion that an existing jurisdiction has been cut down by implication, by an enactment moreover which is positive in character ...... rather than negative." (per Lord Wilberforce in Shiloh Spinners Ltd. v. Harding [1973] AC 691 at 725). It cannot, therefore, be doubted that the court did have inherent jurisdiction to remove the name of a barrister off the roll. The Bar's stance at the time the Applicant applied for his voluntary removal, as well as when other applicants made similar applications, is a clear indication of their recognition of the existence of such inherent jurisdiction. But, is it necessarily the case that the court must have a concomitant inherent jurisdiction to restore such a barrister to the roll?

13. I am of the opinion that it is not necessarily the case that whenever the court has an inherent power to do an act, it must in all such cases have a concomitant power to undo the act. Whether it does have such a concomitant power would, at least, depend on the nature of the act and the consequences arising from the doing of the act, as well as the necessity for the existence of such a concomitant power, if not also on a variety of other matters.

14. My attention has been drawn to a number of Australian cases where it had been held that the court has an inherent jurisdiction to restore the name of an advocate to the roll. Some of the cases appear to involve certain disadvantage, or even predicament, to the applicant if there existed no such power to restore. They are cases where it was necessary for such inherent jurisdiction to exist in Australia in the interest of justice. Other cases involved re-admissions though the judgments referred to restoration to the roll. I do not find the Australian experience helpful to the issue at hand.

15. In England, the judges have delegated such powers to the Inns of Court (see Re S (A Barrister) [1970] 1 QB 160 at 170). It is therefore futile to look for direct authorities on this issue amongst the English cases. However, it is of help to look at the practice of the Inns of Court in this regard as set out in an undated letter from Mr Anthony Scrivener Q.C. :-

"In England and Wales this matter is controlled by the applicant's Inns of Court and they have a wide discretion as to any question of seniority in such circumstances : in particular they take into account the seniority upon leaving the Bar and the period away .....

The likely practice here for someone who had been away for around a year would be no loss of seniority. It would be considered probably as equivalent to maternity leave or a sabbatical."

It appears to be the position in England that the Inns of Court considered themselves to be vested with the power to restore a barrister to the roll subsequent to his voluntary removal. Further, such powers appear to have been exercised rather liberally in favour of such restoration.

16. I have also been referred to the statement of Blair-Kerrr, J in Brentwood Wig Manufactory Ltd. v. Poncher [1965] HKLR 1042 that :"By common law as well as statute, it is for the Judges of this Court to say who shall practise before the Court and who for cause may strike the name of any barrister from the roll, or suspend him from practice".

17. Having considered the scheme under the statutory provisions as at the time when the Applicant voluntarily removed his name from the roll, and the necessity of the situation; I am convinced that the High Court did have a concomitant inherent jurisdiction to restore the name of such of barrister to the roll.

18. I am further of the opinion that such concomitant inherent jurisdiction has not been taken away by the repeal of s.29(3). Section 29(3) was not the source of the High Court's jurisdiction to restore such a barrister to the roll, it was a statutory confirmation of an existing inherent jurisdiction. As it was not an enabling provision as such, its repeal would not have the effect, in the absent of clear words, of removing an inherent jurisdiction of the court in common law. Quite apart from Lord Wilberforce's statement in Shiloh Spinners Ltd., there are ample judicial opinions in support of such a proposition of law. It was said by Lord Oliver in A.G. v. Brotherton [1992] 1 ALL ER 230 that : "except in so far as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make alterations in the common law (at 249) ..... such alteration must, in the absence of clear words to the contrary, be assumed to be such as to alter the common law no further than was necessary to remedy the perceived mischief (at 256)".

19. The 1992 amendments were enacted with the object of making "amendments to the Legal Practitioners Ordinance respecting the disciplinary procedures for barristers and solicitors". It seeks, inter alia, to transfer the court's inherent jurisdiction to discipline barristers to the Barristers Disciplinary Tribunal. It has never been evinced in any form to be the legislative intent to remove any part of the court's inherent jurisdiction over barristers in non- disciplinary matters. The voluntary removal of a barrister's name from the roll at his own initiation and the subsequent restoration of his name to the roll are beyond doubt non-disciplinary matters. I am therefore clearly of the opinion that the High Court has always been vested with an inherent jurisdiction to removal the name of a barrister from the roll at his own request, and to restore his name to the roll upon subsequent application by him; and that such inherent jurisdiction has not been taken away by the 1992 amending ordinance.

The Exercise of the Discretion

20. It is common ground that the exercise of the inherent jurisdiction is a matter of discretion for the court. The Bar's position is that if the court does have such a concomitant inherent jurisdiction, the court should exercise it liberally. It is the Bar's view that a relatively free flow between the two branches of the profession should be liberally permitted, if not also encouraged.

21. Whilst I can readily understand the Bar's position in the present application, I cannot endorse what appears to be the Bar's general position as regards an unrestricted and unregulated free flow between the two branches of the profession. In respect of the Applicant's application, taking into consideration the circumstances he voluntarily removed his name from the roll and the relatively short period he practised as a solicitors, the most favourable views of a number of leading members of the Bar as to his likely contribution to the profession and the public upon a restoration, and his other personal circumstances; I have come to the view that it is a suitable case for the discretion to be exercised in his favour.

22. It has been conceded that whilst the position of the Applicant on the seniority list issued by the Bar may well be a matter entirely at the Bar's discretion, it is open to the court to impose conditions upon the granting of the restoration of a barrister's name to the roll. Such conditions may include requiring an undertaking from the Applicant that he would not allow his name to be published in the seniority list issued by the Bar without an appropriate endorsement against his name indicating the period of his absence from the roll of barristers. This would keep the public informed not only of the true extent of the barrister's seniority; but, more importantly, of his actual experience. A barrister who has left the Bar after a short period of practice, and having gained experience as a conveyancer for a long period returns to practise criminal law for a year should not be put in a position whereby the public can be misled as to his experience in his current criminal practice when examining the seniority list. Whilst it can be safely assumed that the Bar would take adequate steps to ensure the public would not be so misled, the court would be failing in its duty to regulate the restoration and to protect the interest of the public if it fails to impose safeguards upon the restoration in the absence of comparable safeguards offered expressly by the Bar at the hearing of the application.

23. No safeguards were offered by the Bar in the present application. On the contrary, there was a joint application to me not to determine the second question in respect of the position of the Applicant on the seniority list in the event of a re-admission. I can well understand the reasons for such a joint application in view of the narrow ambit of the second question as framed. However, I wish it to be put beyond any doubt that the court has a discretion in a suitable case to impose conditions upon such a restoration that may effectively affect the seniority list. In view of the short period of absence from the roll by the Applicant, this is not a case in which any condition should be imposed. However, when the Registrar administratively ? name of the Applicant to the roll kept by him, it should be done in such a way that any member of the public searching the roll would not be misled as to the true position as regards the period of his absence from the roll.

Representation:

Mr Denis Chang, Q.C. leading Mr P.J. Dykes inst'd by M/s Baker & McKenzie for Applicant

Mr Arjan Sakhrani, Q.C. leading Mr Alan Leong inst'd by M/s C.Y. Kwan & Co. for The Bar Council