Robert James Brook v. The Law Society of Hong Kong

1997 A.L. No. 12

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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Coram: The Hon. Mr. Justice Keith in Court

Date of hearing: 27 June 1997

Date of handing down judgment: 14 July 1997

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[The issue by the Law Society of what purported to be a certificate under section 3(2) of the Overseas Lawyers (Qualification for Admission) Rules that an applicant for admission as a solicitor appears to be qualified for admission (except as regards any requirement to have passed any part of the Overseas Lawyers Qualification Examination) does not prevent the Law Society from subsequently considering whether the applicant was in fact qualified for admission.]

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J U D G M E N T

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INTRODUCTION

1. 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.

2. Mr. Brook wishes to be admitted as a solicitor of the High Court of Hong Kong. In due course, he applied to the Law Society for a certificate of eligibility for admission as a solicitor. The Law Society decided not to issue him with such a certificate. He now applies for judicial review of that decision. In this judgment, two sets of rules made under the Legal Practioners Ordinance (Cap. 159) will be referred to. The most important are the Overseas Lawyers (Qualification for Admission) Rules ("the OLR") made by the Council of the Law Society. The individual rules in the OLR are not referred to as rules, but as sections. Accordingly, all references to sections in this judgment are references to sections of the OLR, unless otherwise stated. The other set of rules are the Admission and Registration Rules ("the ARR") made by the Chief Justice (as he then was). The individual rules in the ARR are referred to as rules. Accordingly, all references in this judgment to rules are references to rules of the ARR, unless otherwise stated.

THE STATUTORY FRAMEWORK

3. In the case of a person who seeks admission as a solicitor on the basis of qualifications acquired outside Hong Kong, section 4(1)(b) of the Legal Practioners Ordinance provides that the person has to have qualified for admission under requirements prescribed by the Council of the Law Society. The Council's requirements have been prescribed by the OLR. The requirements for a person whose jurisdiction of admission is a common law jurisdiction, but who has not had 5 years post-admission experience in the practice of law, are set out in section 4(2)(b). He must

(i) have completed at least 2 years' service as a trainee or articled clerk in the jurisdiction of his admission, or

(ii) have had at least 2 years' post-admission experience in the practice of law, or

(iii) have completed part of the period of service in (i) and have had part of the period of experience in (ii) so that the aggregate of those periods was at least 2 years.

In addition, he must have passed the Overseas Lawyers Qualification Examination ("the Examination") in all written subjects. The Law Society has power to waive these requirements in a particular case because section 4(2) begins: "Unless the Society otherwise determines..."

4. There are two certificates which a person who seeks admission on the basis of qualifications acquired outside Hong Kong must obtain. The first is provided for in sections 3(1) and 3(2). They provide:

"(1) A person [who seeks admission on the basis of qualifications acquired outside Hong Kong] 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.

(2) If the 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 the applicant is required to pass under these Rules." (My emphasis.)

Without such a certificate, an applicant for admission cannot take the Examination: section 3(4). In this judgment, I shall refer to this certificate as a Certificate of Apparent Eligibility. Section 9 of the OLR provides for a right of appeal to the Court of First Instance for anyone who is refused a Certificate of Apparent Eligibility.

5. The second certificate which a person who seeks admission on the basis of qualifications acquired outside Hong Kong must obtain is provided for by the ARR. Rules 3(1) and 3(5) provide:

"(1) A person seeking to be admitted as a solicitor on the basis of [qualifications acquired outside Hong Kong] shall apply to the Society for the issue of a certificate in accordance with subrule...(5)...

(5) The Society, if it is satisfied that [such] a person... is eligible for admission as a solicitor on the basis [that he has qualified for admission under requirements prescribed by the Council] and has satisfied [certain residential requirements], shall issue to him a certificate in accordance with Form 3 in the Schedule."

In this judgment, I shall refer to this certificate as a Certificate of Eligibility, because the certificate in Form 3 is headed "Certificate of Eligibility for Admission as a Solicitor".

THE PRACTICE OF THE LAW SOCIETY

6. The language of the OLR suggests that what is contemplated is a preliminary assessment of whether the applicant has satisfied the professional requirements of section 4(2)(b). If he appears to have satisfied them, he will be permitted to take the Examination. Once he has taken the Examination, a final assessment will then be made as to whether he has by then satisfied the professional requirements of section 4(2)(b).

7. However, that is not the practice which the Law Society has adopted. The Examination takes place once a year. If an applicant could only take the Examination once he appeared to have satisfied the professional requirements of section 4(2)(b), his admission would be deferred if he then had to wait for some time to take the Examination. Accordingly, it was decided to permit applicants to take the Examination without considering whether they appeared to have satisfied the professional requirements of section 4(2)(b). Whether they had in fact satisfied the professional requirements of section 4(2)(b) would be decided after they had passed the Examination and when they applied for a Certificate of Eligibility.

8. No announcement was made about this change of practice. However, it was reflected in the language of the Certificate of Apparent Eligibility which the Law Society issued. That certificate did not certify that the applicant appeared to be qualified for admission as a solicitor. It merely certified that the applicant had "applied to sit or be exempt from all or parts of the... Examination". The fact that the applicant's eligibility for admission as a solicitor had not yet been assessed was apparent from the certificate itself. It identified the subjects which the applicant would have to pass in the Examination "before assessment of eligibility for admission [as a solicitor] may proceed".

MR. BROOK'S DEALINGS WITH THE LAW SOCIETY

9. On 22nd February 1995, Mr. Brook wrote to the Law Society. He wanted to know whether his experience was such that he was eligible to take the Examination. Since (a) he could not take the Examination until he had been issued with a Certificate of Apparent Eligibility, and (b) he did not think that he could be issued with a Certificate of Apparent Eligibility until he had satisfied the professional requirements for admission, he was in effect asking whether his experience was such that he satisfied the professional requirements of section 4(2)(b). He was informed over the telephone the following day that he would have to take all four written papers in the Examination unless he was exempted from doing so, and that he would have to ask the Law Society's Foreign Lawyers Committee ("the Committee") whether it would recognise his pre-admission experience.

10. I have two comments to make about Mr. Brook's enquiry and the answer he got:

(i) Mr. Brook must have appreciated that there was at that stage no chance of him appearing to the Law Society to have satisfied the professional requirements for admission. His only experience in the practice of law in his jurisdiction of admission was before his admission. That consisted of 9 months' experience only, and it was questionable whether that would have been treated as "service as a trainee or articled clerk". His only post-admission experience had been less than 4 months' experience as a para-legal with Pam Baker & Co. from 1st November 1994 to 22nd February 1995. He could only have hoped for the Law Society to waive the professional requirements in his case pursuant to its power to do so by virtue of the introductory words to section 4(2).

(ii) The reply he received from the Law Society was not as helpful as it might have been. He was not told that his eligibility to sit the Examination was no longer subject to him appearing to the Law Society to satisfy the professional requirements for admission. Nor was he told that the question whether he satisfied the professional requirements for admission would be decided only after he had taken the Examination and when he applied for the Certificate of Eligibility.

11. On 6th July 1995, Mr. Brook submitted to the Law Society the application form which persons who were seeking to be admitted as a solicitor had to complete. Two days later on 8th July, the Law Society issued to Mr. Brook what purported to be the Certificate of Apparent Eligibility. It did not certify that which the Certificate of Apparent Eligibility was supposed to certify, namely that Mr. Brook appeared to be qualified for admission as a solicitor. In accordance with the practice which the Committee had decided to adopt, it merely certified that Mr. Brook had applied to sit, or be exempt from, all or part of the Examination. Far from certifying that he appeared to be qualified for admission as a solicitor, it asserted that he would be required to sit the Examination "before assessment of eligibility for admission [as a solicitor] could proceed".

12. The certificate of 8th July was sent to Mr. Brook under cover of a letter dated 10th July. In that letter, he was reminded of the requirements of section 4(2)(b). The letter concluded:

"Ordinarily, the requirement for post-admission experience will be satisfied by working as a lawyer in your jurisdiction of admission, or as a registered foreign lawyer in Hong Kong. The Foreign Lawyers Committee has approved in principle transitional arrangements to enable overseas qualified lawyers to satisfy this requirement by working as paralegals in local firms and gaining experience similar to the training experience undertaken by trainee solicitors. The transitional arrangements are yet to be approved by Council, but it is anticipated that employment with a Hong Kong firm will have to be approved by the Committee in order for it to count toward this requirement. I shall write to you further regarding this aspect of your application."

On 19th September, the Law Society sent Mr. Brook a copy of its circular setting out its transitional guidelines covering applications for approval of post-admission experience in the practice of law gained in Hong Kong for lawyers whose applications for admission as a solicitor were based on qualifications acquired outside Hong Kong.

13. In due course, Mr. Brook took the Examination. He passed in all the subjects which he was required to take. He took the view that having been issued with the Certificate of Apparent Eligibility and having passed the Examination he was automatically eligible for admission as a solicitor. However, he did not want to enter into a legal debate with the Law Society, and that would be avoided if the Law Society was prepared to treat his pre- and post-admission experience in the practice of law as satisfying the requirements for admission as a solicitor. Accordingly, on 19th February 1996, he requested the Law Society to approve that experience. On 6th March 1996, the Committee decided not to give Mr. Brook any credit for his pre-admission experience. Accordingly, he had to have had at least 2 years' post-admission experience in the practice of law. The Committee decided to treat 4 months of his experience in civil litigation as a para-legal with Pam Baker & Co. as counting towards the requirement of 2 years' post-admission experience. Accordingly, he was required to gain sufficient experience in other areas of law for a further period of 20 months.

14. On receipt of this letter, Mr. Brook took stock of his position. He remained of the view that having been issued with the Certificate of Apparent Eligibility and having then passed the Examination, he was "eligible for admission as a solicitor as of right". He therefore applied for a Certificate of Eligibility. On 24th June 1996, the Consents Committee of the Law Society rejected his application for a Certificate of Eligibility. The Consents Committee took the view that the issue of the Certificate of Apparent Eligibility did not release Mr. Brook from the requirements of section 4(2)(b). Since he had not satisfied those requirements, he was not entitled to a Certificate of Eligibility. That is the decision which is challenged in these proceedings.

THE CONSTRUCTION OF SECTION 3(2)

15. It is important to emphasise what Mr. Brook's challenge is not about. He does not seek to challenge the transitional guidelines for approval of post-admission experience in the practice of law. Nor does he seek to challenge the Committee's decision not to give him any credit for his pre-admission experience, or to give him credit for only 4 months of his post- admission experience. His case is simply that having been issued with what purported to be a Certificate of Apparent Eligibility, and having passed the Examination, the Law Society could not in law withhold issuing him with a Certificate of Eligibility. That is because by issuing him with what purported to be the Certificate of Apparent Eligibility, the Law Society must be treated, to use the words of rule 3(5), as having been "satisfied that [he was] eligible for admission as a solicitor", subject to him having passed the Examination. That turns on the proper construction of the OLR.

16. Mr. Philip Dykes S.C. for Mr. Brook argues that, on a proper construction of section 3(2), the Law Society was required at that stage to make a final decision on whether Mr. Brook had satisfied the professional requirements of section 4(2)(b). Any other construction of section 3(2) would result in two significant anomalies:

(i) The right of appeal provided by section 9 against the refusal of a Certificate of Apparent Eligibility can only be exercised by a person "seeking the issue" of such a certificate. That right is useless for someone in Mr. Brook's position because he was not such a person: he had already been issued with such a certificate. Accordingly, if section 3(2) is construed as requiring the Law Society to be satisfied that the professional requirements of section 4(2)(b) have been satisfied before a Certificate of Apparent Eligibility can be issued, the right of appeal has some value: it will enable the Law Society's views as to whether the professional requirements of section 4(2)(b) have been satisfied to be considered by the Court of First Instance.

(ii) Persons who seek admission on the basis of qualifications acquired outside Hong Kong need to know, before they embark on the course of study necessary to enable them to sit and pass the Examination, whether they have satisfied the professional requirements of section 4(2)(b), or whether they need further post-admission experience in the practice of law. Only then can they make an informed judgment whether it is worth their while spending the time necessary to study for the Examination. Accordingly, if section 3(2) does not require the Law Society to be satisfied that the professional requirements of section 4(2)(b) have been satisfied before a Certificate of Apparent Eligibility can be issued, someone in Mr. Brook's position does not know where he stands. Even if he decides to spend the time necessary to study for the Examination, he may still not be regarded as eligible for admission if the Law Society subsequently decides that he has not satisfied the professional requirements of section 4(2)(b).

17. I cannot go along with this argument. It is inconsistent with the language of sections 3(1) and 3(2). As Mr. Raymond Faulkner S.C. for the Law Society points out, section 3(1) requires the applicant for admission to show that he is a person who appears to be qualified for admission, and section 3(2) empowers the Law Society to issue a Certificate of Apparent Eligibility if it is satisfied that he appears to be so qualified. The language of sections 3(1) and 3(2) suggests that whether the applicant for admission has in fact satisfied the professional requirements of section 4(2)(b) is a question which the Law Society can address at a later stage. Mr. Dykes' construction gives no effect to the words "aperson who appears to be" in section 3(1), and reads the words "appears to be" in section 3(2) as if they mean "is". That was the provisional view I took at the leave stage (see Form ALL-1 dated 15th April 1997), and it is my concluded view now.

18. As it is, I do not think that Mr. Faulkner's construction of sections 3(1) and 3(2) is as anomalous as Mr. Dykes suggests. It is true that the right of appeal under section 9 is of no use to Mr. Brook, but even on Mr. Faulkner's construction the right of appeal still has a purpose to serve. It affords a right of appeal to those persons who do not even appear to the Law Society to have satisfied the professional requirements of section 4(2)(b) and who are not issued with a Certificate of Apparent Eligibility for that reason. It is true that the Law Society's practice of not considering whether an applicant for admission appears to have satisfied the professional requirements of section 4(2)(b) before issuing a Certificate of Apparent Eligibility means that a Certificate of Apparent Eligibility is far less likely to be refused, if ever. But on an issue of construction, one looks at what the OLR contemplates, not at the practice which has in fact been adopted.

19. Nor do I think that there is anything anomalous in permitting the applicant for admission to take the Examination and deciding later whether he has satisfied the professional requirements of section 4(2)(b). If it were otherwise, an applicant for admission would have to gain the post-admission experience in the practice of law which he needs to satisfy the professional requirements of section 4(2)(b) before being able to sit the Examination. That could defer his eligibility for admission for up to a year.

"UNLESS THE SOCIETY OTHERWISE DETERMINES"

20. The argument which persuaded me to give Mr. Brook leave to apply for judicial of review was this. It was on 6th July 1995 that Mr. Brook submitted to the Law Society his application for admission as a solicitor. There was no question of him having satisfied the professional requirements of section 4(2)(b) at that stage. I have already referred to the fact that his only experience in the practice of law in his jurisdiction of admission was 9 months' pre-admission experience, and that there was no certainty that it would have been treated as "service as a trainee or articled clerk". His only post-admission experience had been 8 months' experience as a para-legal with Pam Baker & Co. from 1st November 1994 to 6th July 1995. Despite the fact that the Law Society would have been able to tell from his application form that he had not satisfied the professional requirements of section 4(2)(b), he was nevertheless issued with a Certificate of Apparent Eligibility. As I said in the judgment which I gave on the application for leave:

"The most obvious reason is that the Law Society decided that the Applicant's lack of the requisite professional experience should not stand in the way of his admission. After all, the Law Society has the power to waive the lack of such experience, because section 4(2) begins with the words: 'Uless the Society otherwise determines'... If the Law Society has determined that a particular applicant does not need to satisfy the professional requirements of section 4(2), it is arguable that the issue of the certificate under section 3(2) means that his lack of professional experience cannot subsequently be relied on by the Law Society as a ground for refusing a certificate of eligibility for admission as a solicitor under rule 3(5) of the Admission and Registration Rules."

21. This argument is no longer open to Mr. Brook in the light of the Law Society's evidence about its practice. It did not make a determination in Mr. Brook's case that the lack of professional requirements under section 4(2)(b) should not stand in the way of his admission. It issued him with a Certificate of Apparent Eligibility without considering whether he appeared to satisfy the professional requirements. In effect, what it decided was that, even if at that time he did not appear to satisfy the professional requirements, that should not stand in the way of his taking the Examination. Accordingly, no determination was made to waive the professional requirements of section 4(2)(b) for admission in Mr. Brook's case.

LEGITIMATE EXPECTATION

22. Mr. Brook's case is put on an alternative basis. It assumes that the Law Society was entitled to defer a final decision on whether Mr. Brook had satisfied the professional requirements in section 4(2)(b) until after he had taken the Examination. His case is that, even on that assumption, the Law Society had led him to believe that the issue of the Certificate of Apparent Eligibility to him would have meant that a final decision on whether he had satisfied the professional requirements had already been made, and that it was no longer open to the Law Society subsequently to resile from that position. He had, in other words, a legitimate expectation that if he passed the Examination the issue of a Certificate of Eligibility would be automatic.

23. There are two things which Mr. Brook claims the Law Society did which made him think what he did: the OLR themselves and an Information Package which he received from the Law Society in February 1995. As for the OLR, Mr. Brook affirms that he "interpreted the...Rules to mean that the Certificate of [Apparent] Eligibility...would not issue until the Law Society was satisfied that [he] was eligible for admission subject to successfully undertaking the Examination". I do not doubt that that was how Mr. Brook interpreted the OLR, but I have concluded that that interpretation was wrong. To the extent, therefore, that the OLR induced Mr. Brook's expectation, his expectation was not a legitimate one.

24. I turn to the Information Package. Mr. Brook refers in his first affirmation to a passage in the introductory letter of the Information Package. That sentence reads:

"If you meet the citeria for admission you will be issued a Certificate of Eligibility stating any subjects in the Examination which you will be required to sit."

This is a reference to the Certificate of Apparent Eligibility under section 3(2), and not the Certificate of Eligibility under rule 3(5), because the Certificate of Apparent Eligibility identifies the subjects in the Examination which an applicant for admission will be required to sit, whereas the Certificate of Eligibility does not. If that sentence had stood alone, I think Mr. Brook would have been on stronger ground. The sentence did not read: "If you appear to meet the criteria for admission..."

25. However, there were other passages in the Information Package which should have given Mr. Brook a different impression. In that part of the Information Package described as "Information Package for Overseas Qualified Lawyers", this passage appears:

"If the Society is satisfied that you appear to be qualified for admission except as regards any requirement to have passed any part of the Examination, it will issue a "hertificate of Eligibility to sit or be exempt from all or part of the Overseas Lawyers Qualification Examination'."

I make two comments about that passage. First, it used the language of the OLR by referring to the appearance of being qualified for admission, rather than actually meeting the criteria for admission. Secondly, the certificate which would be issued would not be a certificate of the kind contemplated by the OLR, namely a certificate that the applicant appeared to be qualified for admission, but a certificate that the applicant was eligible to sit the Examination. Moreover, included in the Information Package was a sample of that certificate. It referred to the fact that the applicant for admission would be required to sit and pass various subjects in the Examination "before assessment of eligibility for admission [as a solicitor] may proceed".

26. Accordingly, the Information Package contained conflicting messages, and it cannot be said that it contained so clear and unambiguous a statement of the effect of the issue of the Certificate of Apparent Eligibility that Mr. Brook could reasonably think that, provided that he passed the Examination, he would be entitled to be admitted as a solicitor. It follows that he had no legitimate expectation of that.

27. In the interests of completeness, I should add that even if Mr. Brook's expectation had been a legitimate one, it would have been disabused by the letter of 10th July 1995 which accompanied the Certificate of Apparent Eligibility. I appreciate that by that time he had relied on what the Law Society had represented to him, and had paid the prescribed non-refundable fee of $3,000.00. But if, as a result of the letter of 10th July 1995, Mr. Brook had decided that he did not want his application for admission as a solicitor to proceed (because he did not want to embark on the course of study necessary to enable him to sit and pass the Examination in view of the fact that passing the Examination did not in fact guarantee him admission as of right), and if he had sought the return of the $3,000.00 on the basis that he had been misled by the passage in the introductory letter in the Information Package to which he referred in his affirmation, it may be that the Law Society would have been prepared to refund the $3,000.00 to him. In these circumstances, I doubt whether I would have granted him any relief for the thwarting of such legitimate expectations as he would have had.

CONCLUSION

28. For these reasons, Mr. Brook has not established any grounds to justify the quashing of the decision of the Law Society not to issue him with a Certificate of Eligibility under rule 3(5) of the Admission and Registration Rules. Accordingly, I need not address the other arguments advanced by Mr. Faulkner (including the issue of delay and the effect of section 10 of the OLR) as to why, in the exercise of my discretion, I should refuse relief to Mr. Brook. In the circumstances, this application for judicial review must be dismissed.

29. In the normal run of things, costs would have followed the event. However, the basis on which Mr. Brook was granted leave to apply for judicial review - namely, the likelihood that the Law Society had determined that Mr. Brook did not have to satisfy the professional requirements of section 4(2)(b) in order to be admitted - has turned out to be unsound only because of the practice which the Law Society adopted. I do not criticise the Law Society for introducing this practice: it has the merit of enabling qualified persons to be admitted as a solicitor as soon as possible. But since the practice which the Law Society has adopted was neither publicly announced nor contemplated by the OLR, I can understand why Mr. Brook's application for judicial review was proceeded with. In the circumstances, the order nisi which I make as to costs is that there be no order as to the costs of the application, save that there be legal aid taxation of Mr. Brook's costs.

30. Finally, the OLR should, I think, reflect the practice which the Law Society adopted. Consideration should be given by the Council of the Law Society to amending sections 3(1) and 3(2). That might be achieved, for example, by substituting the words "appears to be capable of being" for the words "appears to be". In addition, since section 9 is of limited value only, and cannot be relied on to challenge the Committee's judgment as to whether an applicant has satisfied the professional requirements of section 4(2)(b), consideration should be given by the Chief Judge to amending the ARR to provide for an appeal to the Court of First Instance against the Law Society's refusal to issue a Certificate of Eligibility under rule 3(5).

Representation:

Mr. Philip Dykes S.C., instructed by Messrs. Pam Baker & Co., for the Applicant.

Mr. Raymond Faulkner S.C., instructed by Messrs. Deacons, Graham & James, for the Respondent.