Re Peter David Lange

HCMP 3335/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3335 OF 2004

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Before: Hon Reyes J in Court

Date of Hearing: 3 July 2006

Date of Judgment: 3 July 2006

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J U D G M E N T

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I.  Introduction

1.Mr. Lange applies for admission to the Hong Kong Bar under Legal Practitioners Ordinance (Cap.159) (LPO) s.74C.  The section stipulates that, despite the repeal and replacement of LPO s.27, persons meeting certain conditions may apply to be admitted as a barrister under the terms of the old LPO s.27.  Mr. Lange says that he is such a person referred to in LPO s.74C. 

2.Mr. Lange accepts that he literally does not meet all the conditions specified in LPO s.74C.  But he suggests that the Court retains a discretion to waive those conditions which he does not meet.  This discretion (Mr. Lange submits) derives from the now repealed LPO 27(2)(b).  Mr. Lange contends that, on a proper construction, the conditions identified in the current LPO s.74C remain subject to the discretion formerly conferred by LPO s.27(2)(b).

3.The Bar Council and the Secretary for Justice oppose Mr. Lange’s application.  They say that Mr. Lange is not qualified for admission under LPO s.74C.

II.  BACKGROUND

A.  Relevant statutory provisions

4.LPO s.74C provides:

“Notwithstanding the repeal and replacement of section 27 [of the LPO] by section 7 of the Legal Practitioners (Amendment) Ordinance 2000 (42 of 2000) (‘the amending Ordinance’), where a person, on the day the amending Ordinance is published in the Gazette, is enrolled or registered in, or has been offered a place:-

(a) ...

(b) in the Bar Vocational Course in the United Kingdom; or

(c) ...

the person may, instead of complying with the requirements established under section [of the current LPO] for admission as a barrister, elect to be admitted under section 27 as that section existed before its repeal by the amending Ordinance, provided he:-

(i) has been called to the Bar in England or Northern Ireland or admitted as an advocate in Scotland;

(ii) qualifies for admission under the other criteria established under the repealed section 27(1)(b), (c) and (e) and (1A); and

(iii) applies for admission not later than 31 December 2004.”

5.In aid of his construction of LPO s.74C, Mr. Lange refers to LPO s.74D.  It is convenient to set out that section here.  LPO s.74D concerns lawyers employed in the Department of Justice.  It provides:

“(1) Notwithstanding the repeal of section 27A by section 8 of [the amending Ordinance], where a person, on or before the date appointed by the Secretary for Justice by notice in the Gazette for the coming into operation of section 8(2) of the amending Ordinance, meets the requirements in section 27A(1)(a) to (d), as that section existed before its repeal, the Court may at any time admit such person as a barrister of the High Court of Hong Kong in accordance with the said section 27A(1).

(2) ...

(3) For the avoidance of doubt, section 27A(1)(e) and (3) does not apply to admission as a barrister under this section.”

6.Prior to its repeal and replacement by the amending Ordinance, LPO s.27 provided as follows:

“(1) The Court may, in such manner as may be prescribed by the Chief Justice, admit as a barrister of the Supreme Court in Hong Kong, any person who satisfies the following requirements, that is to say:-

(a) (i) he has been called to the Bar in England or Northern Ireland; or

(ii) he has been admitted as an advocate in Scotland; or

(iii) he is a bachelor of Laws of the University of Hong Kong and has obtained the Postgraduate Certificate in Laws awarded by that University; or

(iv) he has obtained the Postgraduate Certificate in Laws awarded by the University of Hong Kong and he is a Hong Kong permanent resident within the meaning of the Immigration Ordinance (Cap. 115), or is a Commonwealth citizen or citizen of the Republic of Ireland who has been ordinarily resident in Hong Kong for a period of at least 7 years;

(b) he is not at the time of application disbarred or removed from the roll of advocates in Scotland or suspended from practice as such barrister or advocate;

(c) he is not in practice as a solicitor either on his own account or as a partner or salaried employee in a legal firm in any country where a qualified person is able to practise both as a barrister and solicitor at the same time and does not intend whilst enrolled as a barrister in Hong Kong to practise as a solicitor either on his own account or as a partner or salaried employee in a legal firm in any such country;

(d) (Repealed 58 of 1976 s.7)

(e) he has been ordinarily resident in Hong Kong for a period of at least 8 consecutive months immediately prior to the date of his application for admission or satisfies the Court that he intends to be ordinarily resident in Hong Kong.

(1A)  In addition to the requirements under subsection 1(a)(i) or (ii), a person must also:-

(a) have practised as a barrister or advocate in the United Kingdom for at least 3 years;

(b) be a Hong Kong permanent resident as defined in the Immigration ordinance (Cap.115); or

(c) have been ordinarily resident in Hong Kong for at least 7 years.

(2)     The Court may admit a person as a barrister under this section:-

(a) (Repealed 58 of 1976 s.7)

(b) either generally or for the purpose of any particular case or cases and may impose on a person so admitted restrictions and conditions as the Court may see fit, notwithstanding that such person does not satisfy the requirements of subsection (1)(e) and subsection (1A).

(3) ....

(4) ....”

B.  Mr. Lange’s particulars

7.Mr. Lange is Australian.  He appears to have no connection with Hong Kong and does not seem to have ever resided here.

8.He holds law degrees from London University, Columbia University (New York), Oxford University and Ludwig-Maximilians University (Munich).

9.At the time when the amending Ordinance was gazetted, he had been offered a place on the Bar Vocational Course of the Inns of Court School of Law in London.  Having completed the course, he was called to the Bar at the Inner Temple on 26 July 2001.

10.Mr. Lange has also been admitted to:

(1)     the New York Bar on 12 April 1999;

(2)     the Queensland Bar on 10 September 2001;

(3)     the New South Wales Bar on 18 September 2001; and

(4)     the New Zealand Bar on 21 September 2001.

11.Mr. Lange was admitted to the Munich Law Society as a foreign lawyer on 6 August 2002.  He qualified as an expert on Australian law before the Amtsgericht in Munich on 28 January 2003.

12.Mr. Lange has practised law in New York, Australia and England. 

13.In his Affirmation dated 17 December 2004 he stated:

“I practised at the bar in England and Wales for approximately one year, where I have been appointed to the Crown Prosecution Service and Serious Fraud Office lists of counsel, who may be instructed by the Crown.”

14.In a later Affirmation dated 8 June 2006, Mr. Lange deposed:

“I have practised at the Bar in England and Wales for over three years and still currently practise from Great James Street Chambers (Chambers of Alun Jones, Esq., QC). I have been appointed to the Crown Prosecution Service and Serious Fraud Office lists of counsel, who may be instructed by the Crown.”

15.Before me, Mr. Lange has noted that the reference in his later affirmation to “over three years” practice in England and Wales is a typing error.  The “three years” should read “two years”. 

16.Mr. Lange applied for admission to the Hong Kong Bar by Notice of Motion dated 30 December 2004.

III.  Discussion

A.  The construction of LPO s.74C

17.Mr. Lange concedes that he does not meet the criteria stipulated in old LPO ss.27(1)(e) and (1A).  It follows that he is ineligible for admission under the proviso to LPO s.74C which requires that a person meet old LPO ss.27(1)(b), (c), (e) and (1A).

18.But Mr. Lange argues that, as a matter of construction, the proviso to LPO s.74C is subject to the old LPO s.27(2)(b).  He submits that by the latter provision the Court has a discretion to admit him, even though he does not meet all relevant criteria.  He suggests that it is in the public interest that he should be admitted generally to the Hong Kong Bar under the discretion conferred by old LPO s.27(2)(b).

19.In my view, LPO s.74C is clear.  To qualify for admission under that section, Mr. Lange must satisfy all the requirements mentioned (including old LPO ss.27(1)(e) and (1A).  The proviso to LPO s.74C is not expressed to be (and therefore is not) subject to the old LPO s.27(2)(b).  I accordingly have no discretion in the matter.

B.  The argument that LPO s.74C subject to old LPO s.27(2)(b)

20.Mr. Lange advances 3 arguments in support of the contention that LPO s.74C is subject to the discretion in the old LPO s.27(2)(b).

21.First, Mr. Lange points out that LPO s.74C(ii) refers to “the other criteria established under the repealed section 27(1)(b), (c) and (e) and (1A)”.  In contrast, LPO s.74D(1) refers to “the requirements in section 27A(1)(a) to (d)”.

22.The reference to “criteria” in LPO s.74C is less emphatic (Mr. Lange says) than the reference to “requirement” in LPO s.74D(1).  The legislature (Mr. Lange submits) must have deliberately chosen to use “criteria” in LPO s.74C to signal that the Court retained its discretion under old LPO s.27(2)(b).

23.I do not see any real distinction between “criteria” and “requirements”.  I do not accept that the former expression is “less emphatic” than the latter.  I am consequently unable to draw any inference from the use of “criteria” in S.74C and “requirements” in s.74D.

24.Second, Mr. Lange focuses on the fact that LPO s.74C provides that a person “may ... elect to be admitted under section 27 as that section existed before its repeal”.  He argues that the blanket reference to the entire of s.27 before repeal must mean that the discretion under the old LPO s.27(2)(b) was retained by LPO s.74C.

25.I am not persuaded by the argument. 

26.The first half of LPO s.74C gives a qualifying person the option to be admitted by the procedure in the old LPO s.27. The second half of LPO s.74C makes it clear that the only persons who qualify for the option are those who meet specific requirements, including the old LPO ss.27(1)(e) and (1A).  I do not see how the reference to the entire of the old LPO s.27 process in the first half can affect the construction of the unambiguous wording of the proviso in the second half of LPO s.74C.

27.Third, Mr. Lange notes that LPO s.74D(3) expressly excludes the application of certain sections of the old LPO.  But LPO s.74C does not explicitly state that LPO s.27(2)(b) is excluded.  This (Mr. Lange reasons) suggests that LPO s.27(2)(b) is still applicable.

28.Again I am not convinced by the argument.

29.LPO s.74D(3) expressly states that certain sections are not applicable “for the avoidance of doubt”.  But there is no need for LPO s.74C explicitly to exclude the application of the old LPO s.27(2)(b).  There can be no doubt in relation to s.74C. It is plain from the wording of the proviso to LPO s.74C that the old LPO s.27(2)(b) is inapplicable.

C.  The exercise of a discretion

30.Assume that I am wrong in believing that I have no discretion.

31.If I retained a discretion under the old LPO s.27(2)(b) to waive compliance with the former LPO ss.27(1)(e) and (1A), how would I have exercised such discretion?  I shall also assume (as Mr. Lange urges) that the paramount consideration in an exercise of discretion would be the public interest.  In Re James [2001] 2 HKLRD 521 (at para.21) Leong CJHC suggests that, to justify resort to the discretion in the old LPO s.27(2)(b) in the public interest, “there must be exceptional circumstances”.

32.Mr. Lange relies on the following factors in support of his general admission to practise in the Hong Kong Bar under LPO s.27(2)(b):

(1) The fact that Mr. Lange has practised in England, New York and Australia (all common law jurisdictions) for over 7 years in total.

(2) The fact that Mr. Lange was asked:-

(a)   to give evidence to the International Commission of Jurists’ Eminent Jurist Panel on Terrorism, Counter-Terrorism and Human Rights on the practical application of terrorist legislation in Australia; and,

(b)   to report on the same subject to the United Nations Special Rapporteur on the Protection and Promotion of Human Rights and Fundamental Freedoms While Countering Terrorism.

(3) The fact that Mr. Lange has been commissioned by Lexis-Nexis to write a book on extradition and mutual legal assistance.

(4) The fact that Mr. Lange has conducted professional development seminars on various legal topics.

(5) The fact that there are few counsel in Hong Kong who have also been admitted in Australia and New York.

(6) The fact that Mr. Lange has experience of the civil law legal system in Germany.

33.In my view, although Mr. Lange is to be commended for his accomplishments, the qualifications which he cites are not sufficiently exceptional to merit exercise of a discretion under the old LPO s.27(2)(b).

34.The mere fact that Mr. Lange has qualified in a number of common (or even civil) law jurisdictions cannot by itself call for the exercise of the discretion in his favour. 

35.Mr. Lange does not give detailed particulars of his experience in any specialised area of the common law in which he claims expert knowledge.  He seems to have general knowledge of various areas of the law (including the law relating to terrorism) and has been asked to give seminars and write books on such subjects. But that does not demonstrate that he has substantial specialist expertise, especially advocacy experience, in a specific legal field or fields which are lacking or unavailable in Hong Kong.

36.I accordingly do not believe that a case for Mr. Lange’s admission in the public interest has been made out.  Thus, even if I had a discretion, I would have declined to exercise it in Mr. Lange’s favour.

IV.  Conclusion 

37.Mr. Lange’s motion is dismissed.

Applicant in person

Mr. Andrew Mak, instructed by Messrs T.S. Tong & Co. for the Hong Kong Bar Association

Mr. Louie Wong, SGC of the Department of Justice, for the Interested Party