Re Arjan Heera Sakhrani

HCMP000168/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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MISCELLANEOUS PROCEEDINGS NO. 168 OF 1968

Coram: Hogan, C.J.

Date of Judgment: 7 August 1968

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RULING

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1. This is an application for admission as barrister which was filed on the 2nd of July 1968, and filed in accordance with the requirements of the law in force at that date, which means that the documents prescribed at that time by Section 28 of the Legal Practitioners Ordinance and by the relevant provision of the Admission and Registration Rules were also filed. Between the filing of the application and the hearing this morning the law has been altered by amendments to the Ordinance which came into effect on the 12th of July, 1968. These amendments now require applicants to satisfy additional conditions which were not in force at the time when the application was filed.

2. Mr. Ching, on behalf of the applicant, argues that the application falls to be determined in accordance with the earlier law on general principles and as a result of the provisions contained in Section 23 of the Interpretation and General Clauses Ordinance, particularly Section 23 paragraph (c) and paragraph (e). He has further supported his argument by reference to cases including Lauri v. Renad⁽¹⁾, where he placed reliance on an observation by Lord Justice Lindley, appearing on page 421 which reads:-

"It is a fundamental rule of English law that no statute shall be construed so as to have a retrospective operation unless its language is such as plainly to require such a construction; and the same rule involves another and subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.".

3. Mr. Ching went on to the case of Ward v. British Oak Insurance Company Limited⁽²⁾, placing particular reliance on that portion of Lord Justice Scrutton's judgment where he refers to the case of Beadling v. Goll⁽³⁾ in the following terms:-

"The actions were brought in reliance on s.2 of the Gaming Act, 1835. After the writs had been issued the Gaming Act, 1922, was passed, which after repealing s.2 of the Act of 1835, went on to provide that 'no action for the recovery of money under the said section shall be entertained in any Court.' After the passing of that Act the case came on for hearing before my brother Greer J. The plaintiff contended that the sum claimed was recoverable under the express words of the Act. The defendant argued that the Act did not refer to matters occurring before it was passed. Greer J. felt himself precluded by the Act of 1922 from giving judgment in favour of the plaintiff. The Court of Appeal took a different view and, applying the presumption that an Act of Parliament does not affect proceedings commenced before the Act was passed, held that the money claimed could be recovered.".

4. Beadling's⁽³⁾ case is, I see, referred to in Volume 36 of Halsbury's Laws of England (3rd Edition p.424) on the question of Statutes in the footnote to a sentence which reads:-

"And the view that existing obligations were not intended to be affected has been taken in varying degrees even of provisions expressly prohibiting proceedings.".

5. Mr. Ching contends that on the strength of these cases, his client's interest crystallised when he filed his application for admission and he thereby acquired a right to have that application considered and determined in accordance with the law in force at the date when it was filed.

6. Mr. Gittins who, with Mr. Mills-Owens, has appeared on behalf of the Bar Association, supports the argument that the application falls to be considered under the law in force on the 2nd of July 1968. And in addition to the cases mentioned by Mr. Ching, he has directed attention to the case of Bowling v. Camp⁽⁴⁾, again a case which concerned the Gaming Acts, where Mr. Justice McCardie, sitting at first instance, referred to three possible situations - the case where a cause of action had accrued and a writ had been filed; the case where a cause of action had accrued but no writ had been filed; and the case where not only had the plaintiff issued a writ but judgment had been given.

7. An example of the third kind may be found in the Full Court's decision In the matter of Chow Yu Ching (M.P.No.232 of 1967) but I would emphasise in the present instance we are concerned with the first type of case, where an application had been made and the necessary papers had been filed and put before the court but not adjudicated upon prior to the change in the law. Anything that I say on this application is intended to refer only to such circumstances.

8. Mr. Gittins also directed attention to a reference in Craies on Statute Law (6th Edition, pp.398, 399) to Beadling v. Goll⁽³⁾ and also to a case on Landlord and Tenant Legislation, Hutchison v. Jauncey⁽⁵⁾, where the Master of the Rolls, although holding that, because the provisions of the Landlord and Tenant (Rent Control) Act 1949, with which they were dealing, particularly Section 10, had a retrospective effect, the case fell to be determined by the later legislation, quoted a passage from the 9th Edition of Maxwell on the Interpretation of Statutes, which appears in similar terms in the current (11th) edition and says:-

"In general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights.".

9. It seems to me that the present application falls within that general statement as to the effect of legislation passed during the pendency of an action, and there is nothing in the Ordinance which indicates an intention, in so far as pending actions are concerned, that the provisions relevant to the application should have a retrospective effect. Consequently the present application falls, I think, to be determined in accordance with the law in force on the 2nd of July, 1968.

10. Giving it the consideration to which it is entitled under those provisions, I order that it be granted and that the applicant be admitted as a member of the Bar.

Representation:

Ching (Helen A. Lo and Co.) for Applicant.

Gittins Q.C. and Mills-Owens (Stewart & Co.) for the Bar Association.

(1) (1892) 3 Ch. D. p.421

(2) (1932) 1 K.B. p.392

(3) 39 T.L.R. p.128.

(4) 39 T.L.R. 31 at p.33.

(5) (1950) 1 K.B. p.579