Re Colin John Wright

HCMP003023/1992

1992 No. MP 3023

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon Sir T L YANG, CJ in Court

Dates of Hearing: 10 and 17 December 1992

Date of Judgment: 6 January 1993

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J U D G M E N T

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Hong Yang, CJ:

1. The applicant seeks admission as a barrister of the Supreme Court of Hong Kong under S.27 of the Legal Practitioners Ordinance, Cap. 159 ("the Ordinance").

2. His application is opposed by the Bar Council.

3. The Attorney General's Chambers take a neutral stance.

4. He was called to the Bar in England in July 1986. He was called to the Bar of New South Wales of Australia in September 1987. Between October 1987 and September 1988 he served a period of pupillage; thereafter he practiced as a barrister in New South Wales until January 1990. From June 1990 to May 1991 he was in chambers in England, first serving a three-month non-practicing pupillage, followed by another three months of practicing pupillage, and then practicing as a barrister for five months.

5. According to his affidavit filed on 29 September 1992, between 1 September 1992 to 3 July 1992 he "worked as an employee of Messrs Ince & Co., Solicitors, 16/F EIE Tower, Bond Centre, 89 Queensway, HONG KONG". Ince and Co. is of course a firm of solicitors specialising in admiralty and maritime matters.

6. His total period of practice in England and Australia was therefore three years and three months including periods of pupillage.

7. On 12 June 1992, the applicant wrote to the Bar Council seeking a ruling as to his eligibility to apply for general admission under S.27(2) of the Ordinance. On 19 June 1992, the Secretary of the Bar Council wrote in reply and said:

"Section 27(2) is mainly used for the admissions of London silks to conduct a particular case or cases in the jurisdiction or, to a very limited extent, for general admission under very exceptional circumstances of which the Bar Council does not consider your case as one."

8. On 19 October 1992, the Secretary of the Bar Council wrote to Ince and Co., Solicitors acting for the applicant in his application for admission. He said:

"Mr Wright's qualifications do not meet the requirements of Section 27(1A) of the Legal Practitioners Ordinance in that he has not practiced as a barrister in the United Kingdom for at least 3 years. As stated in our previous letter to Mr Wright dated 19 June 1992, the Bar Council feels unable to support his application for admission under Section 27(2) of the Legal Practitioners Ordinance. The Bar Council shall wish to be heard at the hearing on 31 October 1992.

I also draw to your attention that paragraph 7 of the supporting Affidavit does not comply with sub-section 27(1)(c) of the Legal Practitioners Ordinance."

9. By an undated letter the applicant wrote to the Secretary of the Bar Council and explained what his duties would be when working with Ince and Company:

"I would be grateful if the Bar Council would indicate the circumstances in which a barrister may accept instructions to attend Court to take a note of proceedings.

The reason for this request is that I have been asked by Messrs Ince and Co to attend and take a note of proceedings at the trial of Mr Choi Yung Kan (H.C. No. 235 of 1992).....

..... Since I would receive remuneration according to the number of days spent at Court rather than a salary, I do not anticipate that this would constitute practice as a salaried employee of a firm of solicitors. I would, however, be grateful if you would advise whether keeping a note of proceedings constitutes practice as a barrister within the meaning of section 31 of the Legal Practitioners Ordinance, Cap. 159, which I would not be entitled to undertake until after completing the prescribed qualifying period of active practice."

10. The trial of Mr Choi is still continuing. On 19 November 1992, the applicant filed another affidavit, the relevant paragraphs read:

"8. I have been ordinarily resident in Hong Kong since 28th August 1991. Between 1st September 1991 and 3rd July 1992 I worked as an employee of Messrs. Ince & Co., 16th Floor, Bond Centre, 89 Queensway, Hong Kong and during this time obtained experience in admiralty and maritime law as applied in Hong Kong. I refer to the letter from Messrs. Ince & Co. to the Hong Kong Bar Association dated 29th September 1992 ("CJW-4", p10), wherein the opinion is expressed that I have obtained sufficient experience of shipping and admiralty matters to be competent to appear as an advocate, to advise and to draft pleadings in such matters in Hong Kong. If this Honourable Court were to grant my application and admit me as a barrister, I would seek to specialise in such matters.

9. I am at present employed by Messrs. Ince & Co. for the purpose of  attending and observing proceedings at the hearing of H.C. No. 235 of 1992. I do not intend while enrolled as a barrister in Hong Kong to practise as a solicitor either on my own account or as a partner or salaried employee in a firm of solicitors practising in Hong Kong."

11. The evidence thus far raises a question as to whether the applicant had satisfied the requirement in S.27(1)(c) of the Ordinance, namely, that "he is not in practice as a solicitor either on his own account or as a partner or salaried employee in a firm of solicitors practising in Hong Kong and does not intend while enrolled as a barrister in Hong Kong to so practise."

12. In addition to the requirements set out under Subsection (1)(a)(i) or (ii) of S.27, the applicant must also under Subsection (1A)(a) have practised as a barrister or advocate in the United Kingdom for at least three years; (b) be a Hong Kong permanent resident; or (c) have been ordinarily resident in Hong Kong for at least seven years.

13. He has satisfied the requirement in Subsection (1)(e) of S.27 by having been ordinarily resident in Hong Kong for a period of at least eight consecutive months immediately prior to the date of his application, by having been ordinarily resident here since 28 August 1991. I am prepared to accept, upon his affidavit, that he intends to be ordinarily resident in Hong Kong.

14. As the application for admission is made under S.27(2), it is necessary to set out its terms in full:

(2) The Court may admit a person as a barrister under this section -

(a) (Repealed 58 of 1976 s.7)

(b) either generally or for the purpose of any particular case or cases and may impose on a person so admitted restrictions and conditions as the Court may see fit, notwithstanding that such person does not satisfy the requirements of subsection (1)(e) and subsection (1A).

15. This Subsection however only assists the applicant if he is not in practice as a solicitor. This question must therefore be resolved before any consideration could be given as to whether this Court should exercise its discretion in favour of the applicant.

16. It was to this end that the hearing was adjourned to enable the applicant to file yet another affidavit explaining more fully the nature of his "employment" with Ince and Co., though he ought, to have done this well before his application came to Court, he having had ample warning and notice from the Bar Secretary on this very issue. The burden is on him to show that he has satisfied S.27(1)(c).

17. In his third affidavit, filed on 15 December 1992, the applicant stated, inter alia, that he was not and had not been at the time of his application in practice as a solicitor. The affidavit elaborates his previous affidavits as to what his duties with Ince and Co. were.

18. At the adjourned hearing, Counsel representing the Bar Council intimated to this Court that he no longer wished to pursue the point about the applicant's service to that firm of solicitors.

19. The remaining questions which call for consideration are therefore whether or not the applicant was a specialist in the field of admiralty and maritime law, and whether or not there is a shortage of such lawyers amongst the junior Bar in Hong Kong. It is upon these considerations that I may exercise my discretion under S.27(2) of the Ordinance.

20. The paramount consideration is of course the public interest that there should be a strong and independent local Bar.

21. Briefly, the applicant's case is that he is a specialist in maritime and admiralty law. Hong Kong is a centre for the resolution of disputes relating to maritime and admiralty matters both in the Courts and in arbitration. The number of counsel with the necessary experience and expertise is small. It is therefore in the interest of Hong Kong that we should have a strong team of specialists in this field in order to maintain our present position as a leading forum for the determination of maritime and admiralty disputes.

22. The applicant's case is supported by a number of solicitors dealing with such matters. One such firm's letter is worth quoting at some length:

"So far as we can tell, there are three reasons for the shortage of such counsel; first, a number are not interested in what they regard as difficult and complex litigation. This is particularly true in areas such as shipping and letters of credit where detailed knowledge of a fairly specialist area of the law is required. The writer has on three occasions instructed junior counsel who have initially expressed an interest in developing a shipping practice only to have the papers returned in due course because upon looking into the matter those counsel have found the matter too complex. All three individuals are very able, but they simply do not wish to practise this type of law.

The second problem which compounds the situation is the number of lengthy commercial actions in Hong Kong which result in junior counsel becoming committed for long periods of time to one particular matter.

A third reason, is that in commercial and shipping matters, it is often common for a number of parties to be involved, each of whom needs to be separately represented by counsel. The smaller the pool of counsel available, the greater the chance that one or more parties will not be properly represented."

23. I have no reason to doubt those words.

24. The considered opinions of solicitors referred to above must of course be given considerable weight: vide Re John Uff, QC (1985) HKLR 484, 487E.

25. In Re David B. Johnson, MP No. 1610 of 1990 (unreported), I took the view that "very few, except for a few juniors, could truly claim to be experts in shipping law". Nothing which has been said before me at this hearing indicates that there has been a significant increase in the number of experts in this field over the past two and a half years.

26. The number of cases in the Admiralty List has grown from 208 in 1988 to about 400 in 1992. It was 421 last year. The difficulty of solicitors in obtaining the services of admiralty lawyers is described in a letter from another firm of solicitors:

"One of the difficulties we have encountered in practising maritime law in Hong Kong is the limited number of barristers who are genuinely possessed of the appropriate degree of knowledge and experience in the field. We need to work with counsel in relation to appearances on hearings, general advice and settling pleadings. Those barristers that do possess genuine specialist skills in this area are extremely busy with the result that it is often difficult to progress matters swiftly and efficiently as a result of congested diaries. We believe the interests of the international trading and maritime community in Hong Kong would be served by an increase in the number of junior counsel of the Hong Kong Bar with experience in maritime matters."

27. I accept what is stated in the letter.

28. In my judgment, there is a shortage of junior counsel specialising in this field.

29. The next question is whether the applicant is a specialist. By para. 8 of his affidavit of 19 November 1992 (supra), he stated that it was during his time of "employment" with Ince and Co. that he obtained experience in admiralty and maritime law as applied in Hong Kong. His period with Ince and Co. lasted from 1 September 1991 to 3 July 1992. In their letter of 29 September 1992, Ince and Co. say:

"Colin Wright was employed by Messrs. Ince & Co. from 1st September 1991 until 3rd July 1992 and under the supervision of the solicitors and partners of the firm, assisted in a number of matters involving admiralty and maritime law. These matters included cargo claims, charterparty disputes, claims relating to bills of lading and personal injury claims arising out of accidents on board vessels. He was also involved in a range of interlocutory applications including applications to set aside the service of In Rem proceedings and applications for Mareva Injunctions. He worked together with solicitors from this firm, assisting both senior and junior counsel in preparing matters for hearing and assisted in the preparation of written submissions and the drafting of affidavits and other documents. It is the opinion of this firm that Mr. Wright has, following the period of his employment with us, gained sufficient experience of the specialist concepts which arise in shipping and admiralty matters for him to be able to specialise in such matters should he be admitted as a barrister of the Supreme Court of Hong Kong.

We are informed and believe that Mr. Wright practised as a barrister in New South Wales, Australia between October 1987 and January 1990 and that he also practised as a barrister in England between June 1990 and May 1991. In all the circumstances, we believe that Mr. Wright has experience of legal practice at least equivalent to three years practice as a barrister in the United Kingdom. We also believe, for the reasons given above, that he has acquired sufficient experience of commercial and shipping law in Hong Kong to be competent to appear as an advocate, to advise and to draft pleadings in such matters in Hong Kong.

The admission of Mr. Wright would, in our view, assist in meeting the demands being made on the Bar by the commercial and shipping communities. In our opinion, Mr. Wright would be able to undertake matters of greater complexity than those appropriate for newly admitted barristers and Mr. Wright's admission would not discourage young Hong Kong persons from entering the profession."

30. Ince and Co. are the only solicitors who have direct experience of the applicant's work.

31. I accept the contention in the Skeleton Argument submitted on behalf of the Bar Council (at para. 12):

"12. Although Ince & Co. opined that if admitted the applicant would be able to undertake matters of greater complexity than those appropriate for newly admitted barristers, the basis of such opinion is doubtful. It predicates on what Ince believed to be the previous experience of the applicant in England and Australia. The opinions of other solicitors are of little probative value as it is not clear as to on what basis they expressed their opinions on the ability of the applicant. In any case, we submit that the evidence before the Court is not sufficient to satisfy the Court that the applicant is already of sufficient skill and experience to meet the immediate demand (if any) of the alleged shortage of experienced barrister in shipping field."

32. I agree.

33. With respect to the applicant, I feel quite unable to say that his experience with one firm of solicitors had furnished him with the expertise which is claimed he now possesses.

34. The discretion under S.27(2) is only to be exercised in an applicant's favour in very exceptional cases. This is not one of them.

35. I must therefore refuse the application.

Representation:

Mr J Griffiths QC and Miss M Rattigan (Ince & Co) for Applicant

Mr Edward Chan QC and MR Felix Pao (C Y Kwan & Co) for Bar Council

Ms Drake for Attorney General