Re Alexander Adamovich
Read the full judgment text of HCMP 830/1983 on BabelCite. This High Court CFI judgment.
1. The Appellant was admitted as a solicitor of the Supreme Court on 30th October 1982. He applied for a practising certificate on 1st November 1982 and on 12th January 1983 the Law Society issued to him a practising certificate for the period 1st January 1983 to 31st December 1983 This certificate contained the condition prescribed by s.6(6) of the Legal Practitioners Ordinance,
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HCA000830/1983 Solicitor - issued with practising certificate containing condition prescribed by s.6(6) of Legal Practitioners Ordinance - appeal against condition - Appellant contending that his experience (a) as Australian solicitor practising as such in Hong Kong, (b) as a visiting lecturer in law and (c) as a post-graduate student in United Kingdom constituted "substantial experience in the law" - "Guidelines" issued by Council of Law Society - Held: (1) The "Guidelines" were not an attempt to substitute words different from those of the statute; (2) The object of the statute was to ensure an adequate knowledge not only of the law but also of legal practice, before a solicitor was allowed to practise without supervision; (3) The Legislature had made the Council the judge of what experience was likely to give such a knowledge; (4) The Chief Justice should interfere only if the Council's decision was such that no reasonable body could have made it;(5) The Council's decision was not unreasonable.
IN THE SUPREME COURT OF HONG KONG HIGH COURT MISCELLANEOUS PROCEEDINGS ________
__________ Coram: Sir Alan Huggins, V.- P. Date of Judgment: 4th June 1983 __________ JUDGMENT __________ Sir Alan Huggins, V.- P, 1. The Appellant was admitted as a solicitor of the Supreme Court on 30th October 1982. He applied for a practising certificate on 1st November 1982 and on 12th January 1983 the Law Society issued to him a practising certificate for the period 1st January 1983 to 31st December 1983 This certificate contained the condition prescribed by s.6(6) of the Legal Practitioners Ordinance,
The Appellant objected to the inclusion of the condition and by his solicitors applied on 9th February 1983 "for a declaration that s.6 (6) of the Legal Practitioners Ordinance does not apply to him". By a letter dated 16th March 1983 the Law Society replied that his "application for an unconditional practising certificate has been refused". Pursuant to s 6(10) of the Ordinance the Appellant appeals to the Chief Justice, and in the absence through indisposition of the Chief Justice the matter has been placed before me. 2. It is desirable to set out in extenso the provisions of sub. ss. (6), (10) and (11) of s.6:
It will thus be seen that prima facie a solicitor admitted as recently as the Appellant is not entitled to an unconditional practising certificate: he must bring himself within the proviso to sub. s.(6). The Appellant contends that on the evidence the Council of the Law Society must have erred in law when it expressed itself not to be satisfied that the Appellant had satisfied the proviso, and that it had no discretion to refuse the certificate sought. In the alternative, if there was a discretion to refuse, the Council acted unreasonably in declining to exercise that discretion in his favour. 3. The Appellant was born in December 1944. He was admitted as a solicitor in New South Wales in February 1971 and practised there until September 1976, first as an assistant solicitor and then for four and a half years either as a partner or in single practice. He then went to England to obtain a Master of Laws degree before returning to practise in New South Wales for 16 months. In 1979 he took up residence in Hong Kong and practised as the resident partner and sole representative in Hong Kong of a firm of Australian solicitors. In 1980 he became a consultant for the Hong Kong office of that firm. From 1979 to June 1981 he was a visiting lecturer at the Hong Kong University in company law. The evidence is that thereafter he was
He was admitted as a solicitor of the Supreme Court of Judicature of England and Wales on 15th October 1981. 4. On behalf of the Appellant Mr. Keane says that it is not clear on what basis the Council refused to declare that sub. s. (6) should not apply - whether because it thought there was no evidence capable in law of establishing the necessary qualification or because it though that, although there was such evidence, it still had a discretion to refuse. His contention was that I had to substitute my judgment for that of the Council in deciding whether the Appellant had "acquired substantial experience in the law, either in Hong Kong or in the United Kingdom, over a considerable period of time" Only in respect of the discretion (if it existed at all) should I adopt the approach that the decision of the Council must stand unless I am satisfied that no reasonable body could have decided in the way it did. Mr. Keane went on to argue that there were indications that the Council had held that the Appellant failed at the first stage, with the result that it had never purported to exercise a discretion at all, so that, if there was a discretion and if he established error at the first stage, I would have to exercise the discretion myself. 5. The words of the proviso give no indication of what was intended by the ambiguous phrase "substantial experience in the law" or the phrase "over a considerable period of time". Bearing in mind the timely warning of Sir John Donaldson, M.R. in Carrington v Therm- a- stor Ltd. 1983 1 W.L.R. 138, 142 about the dangers of a "purposive construction", I therefore ask myself what is the mischief that the Legislature was intending to prevent. The answer suggested by Mr. Keane was to the effect that the public should not be put at risk by a solicitor's being allowed to practise on his own or as a partner when his experience of the law was such that prudence required that he still needed supervision. He said that "experience of the law" meant experience which would lead not only to a knowledge of the law but also of legal practice Mr. Yu put it that the object of sub. s. (6) was "that a person shall acquaint himself with the practice of a solicitor" and that the proviso should be construed in the light of that provision. 6. I do not think there is any real difference between counsel as to the purpose of the legislation, although they are far from agreed as to how that purpose can be achieved. I accept that the intention of the Legislature was to ensure that, before a practitioner was allowed to practise without supervision and to have control of, and responsibility for, his client's funds, he should not only have a knowledge of the substantive law but also have gained a knowledge of legal practice, either in Hong Kong or in the United Kingdom, and it is reasonable to assume that the Council was intended to disapply sub. s.(6) only where an applicant had, in the opinion of the Council, acquired such a knowledge of the law and legal practice as he might otherwise be likely to acquire during two years' limited practice. It was common ground between the parties that time spent in undergraduate studies for a law degree would not constitute material "experience in the law". That was as far as the consensus went. Mr. Keane submitted that any other experience in Hong Kong or the United Kingdom involving contact with legal matters was relevant. He therefore would include as relevant the Appellant's experience in Hong Kong as an Australian solicitor engaged in advising on international matters, his experience as a visiting lecturer at the Hong Kong University and, possibly, his post graduate study in the United Kingdom. I think Mr. Yu's approach can best be described as requiring that knowledge of legal practice can be obtained only "on the job". He thus distinguished between experience gained, for example, by an unqualified judge's clerk or magistrate's clerk and experience gained by a teacher of law, for practice was the prime, though not the only, consideration. He then submitted that practice as an Australian lawyer in Hong Kong did not require a knowledge of Hong Kong practice. Equally, time spent in education - by which I understood him to mean formal education at a university or college - was not relevant experience. He referred to the "Guide-lines to Applicants seeking exemption from Conditional Practising Certificates pursuant to the provisions contained in Sub. Section (6)" which have been issued by the Law Society. The material paragraph is:
Mr. Yu submits that the Council was entitled to follow its guidelines and that the Appellant has not brought himself within them. Mr. Keane argued that the Law Society could not, by issuing guidelines, limit the matters which might properly be regarded in deciding whether an applicant had "substantial experience in the law". He described the guidelines as "guidelines to discretion". 7. I am satisfied that the Council was entitled to issue the guidelines and to follow them. That does not mean that the Council was entitled to refuse exemption to the Appellant on the ground that he "had not been continuously engaged in some form of legal practice for a period of not less than 5 years" (that would have been, in effect, to alter the words of the statutory provision), but it was entitled to do so if not satisfied that his experience was equivalent to continuous engagement in some form of legal practice for a period of not less than five years and, therefore, (since this is the effect of the guidelines) not satisfied that his experience was such as was likely to have produced a knowledge of the law and legal practice equivalent to that which would be acquired in the course of two years limited practice. 8. There is no reason to believe that the Council treated the guidelines as though they constituted a part of the statutory provisions or that it failed to appreciate that the guidelines were expressed to be applicable only "in a normal case". I see no reason to suspect that the Council disregarded any of the Appellant's experience in Hong Kong and in the United Kingdom. The question is, therefore, whether the Council was wrong in deciding that the Applicant had not acquired "substantial experience in the law, either in Hong Kong or in the United Kingdom, over a considerable period of time", which was the same thing as deciding that such experience as he did have was not, in its opinion, likely to have produced a knowledge of the law and of legal practice equivalent to that which would be acquired in the course of two years limited practice. That was a decision which the proviso to sub. s (6) expressly left to the Council and it was so left for the good reason that the Council was in the best position to know the answer. Whether or not it is properly called an issue of "discretion", I am satisfied that I should interfere with the Council's decision only if persuaded that it was one which could not reasonably be reached on the evidence. I am told that that was the view which was taken by Briggs, C.J. in In the Matter of Kevin Suen Hoi Shuen H.C.M.P. 1978 No. 751, where a former barrister, with less than five years' practice as such, who sought an unconditional certificate to practise as a solicitor was refused exemption and the Chief Justice declined to interfere with the Council's decision on appeal. 9. I am not prepared to say that the Council could not reasonably come to the conclusion which it did as to the experience of the Appellant. Having reached a conclusion on that issue the Council, in my view, had no discretion whether to grant or refuse the application. 10. The appeal must be dismissed. 4th June 1983 Representation: Keane, Q.C. & Clayton(Hampton, Winter & Glynn) for Appellant B. Yu(Deacons) for Respondent | ||||||||||||||||||||||