Re Ma Wai Lam

HCMP761/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.761 OF 2005

---------------------------

---------------------------

---------------------------

Before : Hon Waung J sitting with Deputy Registrar in Chambers

Date of Hearing : 27 April 2005

Date of Judgment : 27 April 2005

------------------------

J U D G M E N T

------------------------

1.I have before me an application, of a kind which has been made many times in the past by various solicitors, namely an application for an amendment to the roll of solicitors as a result of a change of name by Deed Poll by the solicitor.  Here I have an application by a solicitor who was admitted in the year 2000.  As a result of a change of name by Deed Poll of that solicitor recently, the identity card of that solicitor has been changed and the solicitor in question has sought the order of the court to amend the roll of solicitors, so that the new name would appear.  The new name, apart from the surname, is totally different from the former name.

2.Two questions cause me concern which has therefore prompted me to seek the assistance of the Law Society and the Department of Justice and I am sitting here today with Master Ho to hear that application.  

3.The two concerns are :

(1)	jurisdictional, and
(2)	the procedural aspect and discretional aspect.

I will first deal with the jurisdictional aspect. 

4.The statute whereby the name of an admitted solicitor is entered into the roll of solicitors is set out in section 5 of the Legal Practitioners Ordinance :

“	(1)	The Registrar shall keep a roll of all solicitors admitted by the Court under section 4 and shall have the custody of the roll of solicitors and of all documents relating thereto and shall allow any person to inspect the roll during office hours without payment.
	(2)	The Registrar, upon production of a certificate of admission signed by a judge and upon payment to the Registrar and to the Society of such fees as may be prescribed by the Chief Justice, shall enter on the roll of solicitors the name of the person admitted.
	(3)	The Chief Judge may, if he thinks fit, at any time order the Registrar to replace on the roll of solicitors the name of a solicitor whose name has been removed or struck off the roll of solicitors.”

It is to be observed that there is nothing in section 5 about an amendment of the roll of solicitors.  

5.Under section 19, there is also a reference to the removal from the roll but that is in relation to when the name of a solicitor has been removed from the roll.  Again it is to be observed there is nothing under section 19 of the Ordinance in respect of the amendment of the roll of solicitors. 

6.The application is brought under the inherent jurisdiction.  It is very clear to me as well as to everyone here that there is no express provision in the statute about the change or the amendment of the roll as a result of the change by Deed Poll of the name of a solicitor.

7.This is not an easy question.  For the purpose of today’s hearing, I am prepared to assume that there is jurisdiction and power of the court to amend the roll in the way suggested.  I have however great reservation as to whether this is correct in law.  I will therefore order that the next application for the amendment of the roll that is to be brought to the court should be brought by way of notice of motion with the Law Society and the Department of Justice attending, and before the Chief Judge so that that question can be properly canvassed.  So the marker that I put down is : the order that I am making (in the absence of full argument) provides no precedent authority that there is statutory jurisdiction conferred on the court to amend the roll of solicitors. 

8.I now turn to the second question which has caused me concern.  Underlying that concern is the proposition that a professional name of a solicitor is generally considered an asset to be protected and not a liability to be discarded.  The court therefore must always regard any change of the name of a solicitor with great care.

9.What is sought to be done is to amend the roll of solicitors by deleting the present name and substitute on the roll with a new name which bears no reference externally to the previous name.  What is envisaged is that after the order is made, the solicitor would then be practising under a totally new name and no one in the world would ordinarily know that the solicitor had been practising under a previous name. 

10.In the roll of solicitors kept by the court there is, under the existing practice a crossing out of the old name and the writing in of a new name.  There is in addition an endorsement under the original entry with a reference to the new order that the court has made.  I would suggest that at the least the court should adopt a practice of keeping an alphabetical index where the names of all the solicitors admitted on the roll are shown and where there is cross-referencing of the names (old and new).

11.So far as the Law Society is concerned, my understanding is that the Law Society has a web-site whereby any member of public can search the web-site for the name of a solicitor.  The present practice seems to be there is no cross-referencing.  I would suggest that the Law Society should adopt a new practice where there is cross-referencing so that the new name as well as the old name will refer to each other and anyone taps into the web-site looking for the new name will find that there is a reference to that particular solicitor practising under his old name and when the name was changed and vice versa.

12.As far as the public is concerned, it seems to me that the least safeguard that the court should insist upon in this case is that there should be a publication by newspaper of the change of name.  Therefore my order is that : the order would be made only on condition that the applicant causes to be published in three prominent newspapers in Hong Kong (in form satisfactory to the Registrar) on two separate days, for example on two successive Mondays, giving full notice of the order made by this court of the change of name, showing the old name and the new name.

13.Therefore the order I make granting the application sought is on the condition I have set out earlier.

Mr Tony Harrod, solicitor of The Law Society of Hong Kong

Mr Herbert Li, SGC of Department of Justice

Applicant, appeared in person