Re Mr John Charles Cole, Jr.

HCMP1311/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1311 of 2005

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Before : Hon Ma CJHC in Court

Date of Hearing : 14 July 2005

Date of Judgment : 14 July 2005

Date of Handing Down Reasons for Judgment : 25 July 2005

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REASONS FOR JUDGMENT

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1.By an originating motion dated 23 June 2005, the Applicant sought leave to change his name on the roll of solicitors (“the Roll”) kept by the Registrar of the High Court (“the Registrar”) from “John C. Cole Jr.” to “John Charles Cole”.  At the conclusion of the hearing, I made an order that the Roll be amended to change the entry of the Applicant in this way and also indicated that the reasons for judgment would be handed down.

2.I emphasize at the outset that an application to amend the Roll in this way has in the past and remains on the whole an uncontroversial matter.  Mr Lester Huang (who appeared for the Law Society of Hong Kong) informed me that although the Law Society has always been put on notice of all applications for leave to amend the name of a solicitor on the Roll, it has never in the past seen the need to make representations, much less resist.  The same position applies to the Secretary for Justice.  Nevertheless, this application raises the following questions that should be clarified : -

(1)	Does the Court have the jurisdiction to amend the Roll in the first place?  (Jurisdiction).
(2)	If jurisdiction to amend exists, what is the extent, if any, of the Court’s discretion?  (Discretion).
(3)	If jurisdiction exists, what is the applicable procedure when applying for leave to amend?  (Procedure).

3.The Roll is a document that is kept by the Registrar under the provision of section 5 of the Legal Practitioners Ordinance, Cap.159 (“the Ordinance”).  That section provides : -

“	5.	Roll of solicitors
		(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.”

4.From this provision, it can readily be seen that the function of the Roll is to list out the names of all solicitors who have been admitted as solicitors of the High Court under section 4 of the Ordinance.  The Registrar is obliged to enter the name of all admitted solicitors onto the Roll upon production of a certificate of admission signed by a judge and upon payment of all requisite fees.  The Roll indeed shows the names of solicitors who have been admitted to practice as solicitors of the High Court (before 1 July 1997, they were admitted to practice as solicitors of the Supreme Court of Hong Kong).  Against the name of the solicitor is a record of the date of admission and the relevant action number of the application for his admission.  Where a solicitor has changed his name, the original name on the Roll has been crossed out (by a line through the name) and the new name inserted against the signature of the Registrar.  The date of the order, the relevant action number, the name of the Judge who made the order and the compliance with any conditions imposed, are all annotated.  The Roll is nowadays a book headed “SOLICITORS’ ROLL” containing the above information.  The form of the Roll is regulated by rule 7 of the Admission and Registration Rules, Cap.159 and by Form 7 of the Schedule thereto.  The Roll is open to inspection by any member of the public during office hours without any payment having to be made.

5.I should now briefly describe the events leading up to the present hearing in which, I should add, I have been much assisted by Mr José –Antonio Maurellet (for the Applicant), Mr Huang and Mr Wesley Wong (for the Secretary for Justice).

6.On 27 April 2005, in Re Ma Wai Lam (formerly known as Ma Lai Yin), unreported, HCMP No. 761 of 2005, Waung J sitting with Master Ho in Chambers questioned the existence of the Court’s jurisdiction.  There, a solicitor had applied for the alteration of her name on the Roll.  She had changed her name by deed poll and wished this to be reflected on the Roll.  It was, unlike the present case, one in which the new name was quite different to the old.  In his judgment, Waung J said the question of the Court’s jurisdiction to amend was not an easy one and though he assumed there was jurisdiction in that case, he expressed “great” reservations as to whether this was correct in law.  Accordingly, he directed that the next application for the amendment of the Roll by change of name should be brought by way of notice of motion before the Chief Judge of the High Court, with the Law Society and the Secretary for Justice attending.  The present application was therefore taken out for hearing before me.

7.I now deal with the three questions earlier posed.

Jurisdiction

8.It will be fairly apparent from the query as to jurisdiction raised by Waung J that the Ordinance does not contain any express provisions for the amendment of the Roll by alteration of name.  There are, however, provisions that deal with the amendment of the Roll in other specified circumstances : -

(1)	Where a person who has been admitted as a solicitor on the basis of an intention to reside in Hong Kong for at least three months immediately after his admission but fails to do so, the Court may, on the application of the Law Society, order that that person’s name be removed from or struck off the Roll : - section 4(3).
(2)	The Chief Judge of the High Court 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 : - section 5(3).
(3)	Where disciplinary proceedings have been concluded against a solicitor, a Solicitors Disciplinary Tribunal may order that his name be struck off the Roll : - section 10(2)(a).  The practice here, as I understand it, is that once such an order is made and duly signed, it is then forwarded to the Registrar who will then strike off the name of the solicitor concerned from the Roll.
(4)	Section 16 of the Ordinance provides as follows : -
	“	16.	Restrictions on powers to strike names off roll
			(1)	No solicitor shall be liable to have his name struck off the roll of solicitors on account of any failure to comply with such requirements with respect to employment as a trainee solicitor as may be prescribed by the Chief Justice or on account of any defect in his admission and enrolment, unless the application to strike his name off the roll of solicitors is made within 12 months after the date of his enrolment:
					Provided that this subsection shall not apply in any case where fraud is proved to have been committed in connection with the failure or defect.
			(2)	No solicitor shall be liable to have his name struck off the roll of solicitors by reason only that –
				(a)	a solicitor who employed him or acted as his principal for the whole term or such part of a term of a trainee solicitor contract as may be prescribed by the Chief Justice has neglected or omitted to take out a practising certificate in accordance with the provisions of section 6; or
				(b)	the name of a solicitor who employed him as a trainee solicitor or acted as his principal for any period has after the termination of that period been struck off the roll of solicitors.”
				As can be seen from this provision, it enumerates situations in which a solicitor will not be liable to have his name struck off the Roll (section 16(2) mirroring section 4(2) of the Ordinance) although an exception is made where fraud is proved in relation to any failure or defect as stated in section 16(1).  It is, I think, implicit from section 16 that there are therefore situations in which a solicitor may be liable to have his name struck off from the Roll other than those expressly stipulated elsewhere in the Ordinance.  It is not necessary, however, in this judgment to set out the situations in which this may happen.
			(5)	Upon reasonable cause being shown to the Council of the Law Society by a solicitor, the Council may direct the Registrar to remove the name of such solicitor from the Roll : - section 19(1).

9.The foregoing provisions, particularly section 16, strongly point to the ability of the Court, in situations not expressly contained in statutory provisions, to amend the Roll where the need arises.  This apart, there are three other reasons why the Court should have the jurisdiction to amend, and in particular, the jurisdiction to amend by altering the name of a solicitor : -

(1)	First, one needs to examine the rationale for the Roll.  The Roll is intended to allow members of the public to find out at any given time whether a person is a solicitor.  Where he has been struck off, he no longer remains a solicitor.  The key consideration here is that a member of the public is able to discover whether a person of a given name is a solicitor at the time he inspects the Roll.  Thus seen, it becomes necessary for the actual and current name of the solicitor to be entered onto the Roll.  After all, section 5(2) refers to the obligation of the Registrar, after certain conditions have been fulfilled, to enter onto the Roll the “name” of the solicitor.  Section 5(3) similarly refers to the “name” of the solicitor.
(2)	As an aside, I should just point that while the Roll will inform the reader as to who is qualified to be a solicitor, it does not give any indication as to whether the solicitor is entitled to practice.  For example, in order to be able actually to practice, a solicitor must possess a practising certificate (see sections 6 and 7(c) of the Ordinance).  Yet the Roll gives no indication as to whether a solicitor at any given time possesses a practising certificate.  While one of the requisite qualifications to practice is that a solicitor should have his name on the Roll (section 7(a)), there are other qualifications : - see sections 7(b), (c) and (d).
(3)	The second reason why there is jurisdiction to amend a name on the Roll is connected to the first reason.  Solicitors are officers of the Court (see section 3(2) of the Ordinance) and there is accordingly a well recognized inherent jurisdiction of the Court to regulate all affairs relating to solicitors in this capacity.  In Ma So So v Chin Yuk Lun & Another (2004) 7 HKCFAR 300 (a case dealing with the wasted costs jurisdiction against solicitors), Li CJ said at 307 (paragraph 1) : -
	“	They [solicitors] are officers of the court and owe duties to the court in the conduct of proceedings.  The court has an inherent jurisdiction to supervise their conduct and to impose sanctions where the solicitor concerned has acted in breach of his duties to the court”.
	In re a Barrister, unreported, HCMP No. 3758 of 1993, 23 December 1993 (a case dealing with the amendment of the roll of barristers (see section 29 of the Ordinance) by reinstatement), Jerome Chan J referred to the inherent jurisdiction of the Court to deal with legal practitioners, whether barristers or solicitors.  This, he noted, was the position both in Hong Kong and the United Kingdom.  In the United Kingdom, there exists of course an inherent jurisdiction to exercise control over officers of the Court : - see Halsbury’s Laws of England (4th Ed Reissue) Volume 37 at paragraph 12.  A similar position exists in Australia : - see for example Re A Solicitor [1952] VLR 385 (where the Full Court discussed this jurisdiction from a historical point of view) and New South Wales Bar Association v Cummins [2001] NSWCA 284.
(4)	I should also add that the inherent power of the Court to regulate the conduct and activities of solicitors is implicitly recognized in section 3(3) of the Ordinance.
(5)	There is therefore no doubt of the existence of an inherent jurisdiction in the Court to exercise control over solicitors as officers of the Court and to regulate all matters ancillary thereto.  Given the status and purpose of the Roll as stated above, there is accordingly clearly in my judgment an inherent jurisdiction of the Court to amend it.
(6)	The third reason is a simple one.  Logically, if the Court has the power to order the insertion of a name on the Roll, there must be power to remove or alter it.

10.In arriving at my view, I have not ignored the potential argument that as the Ordinance has expressly set out certain situations in which the Roll can be amended, it must therefore somehow follow that the inherent jurisdiction must accordingly have been cut down.  I do not accept this argument (which, incidentally, was not run by any party).  As Jerome Chan J observed in Re a Barrister, a statute will not cut down the common law unless a clear legislative intent is shown.  Reference was made by him to the speech of Lord Wilberforce in Shiloh Spinners Ltd v Harding [1973] AC 691 where he said at 725A-B : -

“In my opinion where the courts have established a general principle of law or equity, and the legislature steps in with particular legislation in a particular area, it must, unless showing a contrary intention, be taken to have left cases outside that area where they were under the influence of the general law.  To suppose otherwise involves the conclusion that an existing jurisdiction has been cut down by implication, by an enactment moreover which is positive in character … rather than negative”.

11.The conclusion I have reached on the jurisdiction question is one that was supported by all parties before me.  Had Waung J been supplied with the material with which I have been provided, he would no doubt have reached the same view without the reservations he expressed.

Discretion

12.In his judgment in Ma Wai Lam, Waung J said this at paragraphs 8 and 9 : -

“	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.”

13.Underlying these paragraphs was the concern of the Judge that in the event of a change of name (this being it should be noted the change of the professional name of a solicitor), the public was entitled to be fully informed of this change.  I share this concern.  I of course accept immediately the fact that in the overwhelming majority of cases, the change of name is for wholly understandable and uncontroversial reasons, such as in the present case or where a solicitor simply wishes to change names after marriage.  Nevertheless, it should be recognized that where a change is sought, the change is not just to reflect a personal preference (for this can be done without resort to amending the Roll) but indicates a wish to change the professional name by which the solicitor wants to be known.  Here, in my view, the public is entitled to be informed of this.  Mr Huang submitted there were two conflicting points of view that should be considered by the Court in this context : - the public interest to which I have alluded and also the interest of the solicitor who may not want to have personal matters brought out in public.  The latter consideration carries very little, if any, weight in my view.  What is required to be notified to the public are not the reasons for the alteration in name but the fact of it.  If a solicitor regards it as perhaps an invasion of his privacy to disclose the change in name, then the simple answer to this is that the solicitor should not in these circumstances change his or her professional name at all.  After all, many legal practitioners retain their pre-marriage name.

14.Now how should the public be informed of the change?  Waung J in Ma Wai Lam took the view that the “least safeguard” that should be insisted upon by the Court was that the solicitor should publish this fact in a newspaper.  In the case before him, Waung J ordered that the change of name be published in three prominent newspapers in Hong Kong (in a form satisfactory to the Registrar) on two separate days.

15.I am of the view that while the public is entitled to know of a change of name, an insistence that on every occasion there must be at least be newspaper advertisement is too inflexible and in some instances, unnecessary.  For example, it was unnecessary in the present case so to order; the change of name was not a significant one.

16.In the course of argument, I inquired of Mr Huang whether the Law Society posted on a notice board or website, to which the public had access, any changes in names of solicitors.  Apparently, this is not in existence at the moment but he said it would be seriously considered by the Law Society, particularly if the Court were to so suggest.  It seems to me that the Law Society should seriously consider such a course.  The prominent display on a notice board or website, to which the public has easy access, may well in most cases satisfy the notice requirements that the Court will insist on in all applications to amend.  As I say, in the present application, it was unnecessary to make an order as to notice but where there is a substantial change of name (even a change to a married name), the Court may well insist on advertisement by newspaper unless the Law Society has put in place a reasonable system of giving notice to the public, for example in the way I have suggested above.  I therefore urge the Law Society to consider this matter as soon as possible.

17.Naturally, there may be other conditions that the Court may in any case wish to consider imposing.  Much of course depends on the facts.  For example, if a solicitor wishes to change his name to one that resembles the name of an existing solicitor, the Court may consider imposing a condition that that solicitor be informed of the application so that he is given an opportunity to make submissions should he so desire.

18.In all applications to amend (as we shall see when I come to discuss the applicable procedure to be followed for such applications), the Law Society and the Secretary for Justice must be made parties so that they are provided with an opportunity to make their positions known.  In most cases, I daresay they would consent but they must be allowed to present arguments should they wish to do so.

19.In a case where there is consent and satisfactory conditions can be imposed by the Court (whether as to notice or some other aspect), I cannot conceive of many situations in which the Court will not make the order sought.  As far as the present application was concerned, there was no reason at all not to make the order allowing amendment.

Procedure

20.Mr Wong suggested that the power to amend may only be an administrative rather than a judicial function of the Court.  Here he pointed to a number of functions of the Court which are clearly administrative.  I accept that in relation to the Roll, a number of the Registrar’s functions can be said to be administrative : - see for example sections 5 and 19(1) of the Ordinance.  By contrast, in some other instances where the alteration of the Roll is sought, an application to Court is necessary : - see for example section 4(3).

21.I am of the view that an application for the amendment of the Roll by a change of name is a judicial proceeding that requires an order of the Court.  This, incidentally, has hitherto been the position in Hong Kong and was the assumption made by the Court in Ma Wai Lam.  It is evidently a sensible course as well given the interests (and the potential conflicts that may arise from the participation) of the Law Society and the Secretary for Justice.  The former represents the interests of solicitors, the latter representing a wider public interest.

22.In my view, all applications for the amendment of the Roll by changing the name of a solicitor should be by way of originating summons in the expedited form, with the applicant as the plaintiff and the Secretary for Justice and the Law Society as defendants.  There must of course be an accompanying affidavit setting out the material facts (for example the fact that the applicant’s identity card or passport has been changed, the fact of marriage etc).  The matter should then be listed for hearing initially before the Registrar.  If the matter proceeds without objection from the Secretary for Justice and the Law Society, a consent order can be filed whereupon an order for amendment will be made by the Registrar and the Roll will accordingly be amended.  Where there is objection, the matter should be heard by a judge of the Court of First Instance or, where possible, by the Chief Judge of the High Court.

Mr José-Antonio Maurellet instructed by Messrs Simmons & Simmons for the Applicant

Mr Lester Garson Huang of Messrs P C Woo & Co for the Law Society of Hong Kong

Mr Wesley W C Wong of the Department of Justice for the Secretary for Justice