Re John Howard Neville Bleach

HCMP000447/1975

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

MISCELLANEOUS PROCEEDINGS NO.447 OF 1975

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Coram: Geoffrey Briggs, Chief Justice

Date of Judgment: 15 November 1975

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DECISION

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1. This is an application made by a barrister to be admitted to practise as a barrister of the Supreme Court of Hong Kong.

2. The applicant was called to the Bar in the United Kingdom on the 18th July, 1974 by the Inner Temple. He served the customary period of one year's pupillage in England and left England arriving in Hong Kong on the 8th October, 1975.

3. On the 18th October, 1975, ten days after his arrival he filed the Notice of Motion now before me. The Bar Association and the Attorney General both opposed this motion.

4. In support of his motion the applicant filed two affirmations in which he clearly deposes that he intends to practise as a full-time barrister in Hong Kong and to be ordinarily resident in Hong Kong.

5. The applicant relies on section 27(1)(e) of the Legal Practitioners Ordinance. The relevant portion of this reads as follows:-

"27. (1) The court may ..... admit as a barrister of the Supreme Court of Hong Kong any person who ............................

The two provisions contained in paragraph (e) are, of course disjunctive.

6. The affidavits of the applicant disclose certain other indications of the intention of the applicant to be ordinarily resident in Hong Kong but the most important point made by the applicant is that he has deposed on oath that that is his intention.

7. Mr. Litton has pointed out that the burden of proof to satisfy the court lies on the applicant. The Bar Association wrote a letter to the applicant in which they said they would oppose this application. They also asked him whether he would continue to assert that he had an intention permanently to become ordinarily resident in Hong Kong if his motion for admission to practise was dismissed. The applicant has not answered that query, perhaps because of certain phrases contained in that letter which were unfortunately worded. Be that as it may, Mr. Litton's argument, and I think it is an attractive argument, is that the applicant must do more than swear an affirmation that he has the intention ordinarily to reside in Hong Kong. He says that a perfectly fair way of testing this question of intent would be to answer the question posed in the letter of the Bar Association. If this were answered in the affirmative, the court might well conclude that the intention was ordinarily to reside in Hong Kong, but not, if the question were answered in the negative.

8. Mr. Penlington, for the Attorney General, argued that paragraph (e) of section 27(1) of the Ordinance should not be construed so as to add to the words of that paragraph the words "provided the application is successful". He argued that an English barrister should not be allowed to say "my intention is to be ordinarily resident in Hong Kong provided I am allowed to practise at the Hong Kong Bar but not otherwise."

9. There is merit in both the arguments of Mr. Litton and Mr. Penlington but my task is to construe the words of the paragraph in question. I think those words clearly cover the case of a person who has the intention of coming to live permanently in Hong Kong provided and provided only that he can practise at the Hong Kong Bar. The intention of a person to reside in a certain place is almost always bound up with his intended occupation. A barrister desirous of practising at the Hong Kong Bar will normally wish to reside in Hong Kong. The words of the paragraph seem to me to cover every case where a barrister has the intention ordinarily to reside in Hong Kong whether that intention is based on an ability to practise or on some other ground.

10. As to the evidence, as I have already said, I have before me to affidavits in which most clearly the applicant has sworn that his intention is to be ordinarily resident in Hong Kong and there has been no counter-affidavit filed. Neither has any application been made to cross-examine the applicant upon his affidavits. I think that an affidavit made in an application of this nature by a barrister-at-law can be, and indeed should be, accepted by the court, especially where there is no question as to the bona fides of the applicant and where it has not been suggested that the affidavit is not genuine or that the statement contained in the affidavit is not genuine. Indeed, the words of the paragraph "or satisfies the Court that he intends to be ordinarily resident in the Colony" would be unnecessary if a person has to reside in Hong Kong for eight months before making an application.

11. The motion will therefore be granted.

Representation:

Jackson-Lipkin, Q.C., M. Lee & W. Waung (J.S.M.) for applicant.

Litton, Q.C. & Bokhary for Bar Committee.

Penlington & P.C. Yu for Attorney General.