Fu Sze Ying Mabel v. The Law Society of Hong Kong

HCMP 908/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 908 of 2008

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Before : Hon Ma CJHC in Court

Date of Hearing :   6 June 2008

Date of Judgment  :   6 June 2008

Date of Handing Down Reasons for Judgment  :   17 June 2008

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REASONS FOR JUDGMENT

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Introduction

1.By a Notice of Motion dated 13 May 2008, the Applicant applied under rule 13 of the Admission and Registration Rules, Cap.159B (“the Rules”) for an exemption from compliance with the requirement of submitting what is known as a Form 4 under the Rules.  That Form is required to be submitted to the Law Society in order to obtain a certificate of eligibility to enable a person to apply to court to be admitted as a solicitor.  If exempted, the Applicant in these proceedings will be able to obtain the necessary certificate from the Law Society to enable her to apply for admission.

2.After hearing submissions from Mr C Y Li (for the Applicant) and Mr Ronald Tang (for the Respondent, the Law Society of Hong Kong), an order for exemption was made.  No order was made as to costs.  I also indicated that the Reasons for Judgment would be handed down in due course.

The statutory scheme

3.The statutory scheme under the Legal Practitioners Ordinance, Cap.159 (“the LPO”) for admission as a solicitor for persons like the Applicant (that is, persons who seek admission on the basis of qualifications obtained in Hong Kong and who are not formerly barristers) is as follows : -

(1)    The court may admit a person who the court considers a fit and proper person to be a solicitor, and who has “complied with requirements prescribed by the Council [of the Law Society] with respect to employment as a trainee solicitor, the passing of examinations and the completion of courses” : section 4(1)(a) of the LPO.

(2)    Apart from the examination and course requirements (which do not concern the present application but which are partly contained in the Trainee Solicitors Rules, Cap.159J), the requirements regarding employment as a trainee solicitor are contained in the Rules.

(3)    Rule 3(2)(b) requires a person like the Applicant who seeks admission on the basis of section 4(1)(a) of the LPO to submit to the Law Society a document known as Form 4 as well as any other documents as may reasonably be requested by the Law Society.

(4)    We are concerned only with the Form 4 requirement.  This is a reference to the form as set out as Form 4 of the Schedule to the Rules.  The Form requires residence details of an applicant as well as, importantly, the provision of details going to that applicant’s traineeship.  It is a document that should be signed both by an applicant and the principal with whom the applicant has undertaken his or her traineeship as a solicitor.  Three schedules are contained in the Form in which details of an applicant’s residence (First Schedule), other employment (Second Schedule) and periods of absence during traineeship (Third Schedule) must be provided.

(5)    The submission to the Law Society of Form 4 (as well as any other documents as may be reasonably requested) is required under rule 3 to enable a person to apply for a certificate of eligibility, that is, a certification that the applicant has satisfied the Society that he or she is eligible for admission as a solicitor complying with section 4(1)(a) of the LPO.

4.However, where any of the formal requirements just set out cannot be complied with, rule 13 of the Rules provides as follows : -

“13.    Exemption

The Chief Judge on special grounds and upon such conditions as he may consider necessary may exempt any person from any of the formalities prescribed by these rules, either absolutely or for any specified period, and may reduce or abridge any of the periods of notice prescribed by these rules upon any such conditions:

Provided that no order shall be made by the Chief Judge under this rule in respect of a person applying to be admitted as a solicitor unless the Society shall have been given such notice thereof and of the date of hearing as the Chief Judge may consider appropriate in the case and shall have been given an opportunity of being heard thereon.”

5.The present application was made under rule 13.  As stated above, the effect of the exemption having been granted from compliance with rule 3(2)(b) of the Rules in the provision of Form 4 to the Law Society, will have the practical effect of enabling the Law Society, all other matters satisfied, to issue a certificate of eligibility to enable the Applicant to apply to be admitted as a solicitor in Hong Kong.  Mr Tang confirmed during the hearing that the exemption was indeed the final step required before the Applicant can apply to be admitted as a solicitor.

6.Under rule 13, the court may grant relief upon “special grounds” being shown.  This is a term not defined in the Rules.  However, where, as in the present case, an absolute exemption (rather than an exemption for a limited period of time) is sought, it must, I think, be tolerably clear that the following ought generally be demonstrated to the court : -

(1)    It must be shown that the underlying objective or purpose of the ‘formality’ or step (for which exemption is sought) is in fact fulfilled such that the failure to comply with that formality becomes then merely a technicality.  In other words, the spirit or substance of the formal requirement must be shown to exist or be satisfied, leaving unfulfilled only the form.  For example, under rule 12F of the Rules, a person who wishes to be registered as a notary public must produce to the Registrar of the High Court a certificate of appointment issued under rule 12E.  If that person is unable to produce a certificate on account, say, of its being lost or destroyed, he or she may nevertheless obtain an exemption if it is shown that there was a certificate in existence and that the person was in fact duly qualified as a notary public.

(2)    Cogent reasons must be given as to why the formal requirement cannot be fulfilled.

The issues

7.Translated to the context of the present case, the court had to be satisfied by the Applicant of the following matters : -

(1)    That the underlying objective or purpose of Form 4, being in particular, a satisfactory traineeship and her being a fit and proper person to be admitted as a solicitor, was in fact fulfilled; and

(2)    There was a cogent reason as to why she was unable to produce a Form 4 to the Law Society.

Factual background

8.Before stating my conclusions on these two issues, I should briefly set out the factual background.  The Applicant is a graduate of the City University of Hong Kong.  Since secondary school, she has wanted to become a lawyer.  On attaining her LLB degree and completing the PCLL course in 2005, she sought a traineeship with a solicitors firm.  She secured a traineeship with Mr Chan Wah Tsang, David (“Mr David Chan”) who is the sole proprietor of David W T Chan & Co (“DWTC”).  The period for which the Applicant was to be a trainee solicitor was from 1 July 2005 to 30 June 2007.  In March 2007, the Applicant was offered by Mr David Chan the position of assistant solicitor with DWTC upon completion of her traineeship and admission as a solicitor.  However, in May 2007, for reasons which I shall presently go into, the Applicant abruptly left the employment of DWTC and curtailed her traineeship with Mr David Chan.  She eventually managed to secure the final part of her traineeship with Mr Victor Chan of Messrs Tang, Wong & Cheung (Mr Victor Chan has incidentally signed a Form 4 relating to the Applicant’s period of traineeship with him from 20 July 2007 to 7 September 2007).

9.Up to May 2007, it appears from the evidence before me that the Applicant was progressing well in her traineeship and that she enjoyed a cordial relationship with Mr David Chan.  Although in her Trainee Solicitor Contract, the Applicant’s salary was stated to be $9,000 a month, this was at some stage increased to $9,450 and then in December 2006, to $11,000.  The last increment amounted to a 16.4% rise and this was to be compared with the 10% increases given to other staff in the firm.  On 5 May 2007, however, a sudden change in the relationship between the Applicant and Mr David Chan occurred.  The situation worsened to such an extent that on 12 May 2007, the Applicant left the employment of DWTC (even though at that stage, there were only just six weeks left in her traineeship with Mr David Chan).

10.According to the Applicant, since early 2006, Mr David Chan had, with increasing frequency and intensity, been sexually harassing the Applicant.  It is unnecessary to go into details of this but merely to record that, according to the Applicant, this came to a head on 5 May 2007 when the Applicant scolded him for his unacceptable behaviour.  It was from that point that the relationship between the two soured.

11.It is not necessary either for me to make factual findings in relation to the sexual harassment claims (as both Mr Li and Mr Tang submitted).  This may be a matter for further investigation by the Law Society.  It is enough that I am satisfied that there was clearly a breakdown in the relationship between the Applicant and Mr David Chan through no fault of hers, and that the Applicant had abruptly left the employment of DWTC.

12.I would also highlight another event that took place on 12 May 2007.  After the Applicant had informed him that day of her resignation from DWTC, both she and Mr David Chan then completed a Form 4 in respect of her period of traineeship.  Mr David Chan certified on the Form that the Applicant was fit to be a solicitor.  Again for reasons that are unnecessary to detail, although the Form 4 was duly completed by both of them, she forgot to take the Form away and despite a number of requests, Mr David Chan has refused to provide it either to the Applicant or her solicitors.  It is clear from the correspondence that there is little prospect of Mr David Chan releasing a Form 4 for the Applicant at all.  This is perhaps hardly surprising, given that the Applicant complained about his behaviour to the Law Society, the police and the Equal Opportunities Commission.  Hence, the necessity for the present application for exemption.

13.I now deal with the two issues (referred to in paragraph 7 above) that had to be resolved in the present application.

Fulfillment of the underlying objective or purpose of Form 4

14.As mentioned above, the important aspects covered by Form 4 relate to traineeship and fitness to be a solicitor.  In relation to the former, details are required to be provided, for example, of the work that the trainee solicitor has undertaken and of any periods when the trainee solicitor was absent during his or her term of traineeship (this latter requirement is important to ensure that the full period of two years training has taken place).  On the fitness to be a solicitor, this is a critical assessment of the trainee solicitor that must be given by the principal.

15.In the present case, I am of the view that all the requirements of Form 4 have been satisfied as far as the Applicant is concerned.  Much evidence has been placed before the court going to the Applicant’s training and, although this aspect was challenged by Mr David Chan in correspondence, there was also compelling evidence regarding the attendance of the Applicant in DWTC during her traineeship.  The effect of what Mr David Chan was alleging in correspondence was that the Applicant was neither competent nor fit to be a solicitor.  In the absence of any real evidence in support of these allegations (I note that Mr David Chan was served with the papers in the present proceedings and also notified of the hearing date), I reject them as being unfair allegations without any real foundation.  Indeed many of the allegations have been disproved by documents.  I have also taken into account the following facts : -

(1)    Up until the time when the relationship between the Applicant and Mr David Chan turned sour, it is clear that he was more than satisfied with the Applicant’s progress as a trainee solicitor.  I have already mentioned the generous salary increase in December 2006 (see paragraph 9 above).  Furthermore, evidence has been placed before me from a number of sources that Mr David Chan openly praised the Applicant’s work and ability in front of other staff; indeed to such an extent that he informed them that the Applicant was to be regarded as second in charge whenever he was absent.

(2)    Of some importance also is the uncontradicted fact that Mr David Chan did complete Form 4 on 12 May 2007 and this could only mean that he was satisfied with the Applicant’s work and her ability to be a solicitor.

(3)    The assessment of the Applicant given by Mr Victor Chan, who has provided an affidavit in these proceedings, is that she is intelligent, hardworking, conscientious and honest.  His view is that she is fit to practice as a solicitor and this is confirmed in the Form 4 signed by him.  Mr Li informed me at the hearing that, if admitted, the Applicant will be offered a contract as an assistant solicitor with Messrs Tang, Wong & Cheung.  It will be recalled that in March 2007, she was also offered the post of assistant solicitor by Mr David Chan.

(4)    Quite clearly then in these circumstances, the Applicant has performed up to the required standard during her traineeship and is fit to be a solicitor.  It is to be noted that the allegations and accusations levelled at her by Mr David Chan were only made after she had left the employment of DWTC and after complaints were lodged by her to various bodies.

Reasons for the inability to produce Form 4

16.In the past, reasons which have been found acceptable by the court included the falling out between principal and trainee solicitor leading to an unreasonable refusal on the principal’s part to comply with the relevant formality.  The present case is little different.  It is clear from the facts I have outlined that the only reason why the Applicant has been unable to provide a Form 4 to the Law Society was the refusal of Mr David Chan to release one in circumstances which I regard as being unreasonable.

Conclusion

17.For the above reasons, the exemption was granted.

18.Finally, I should add as a postscript that the application was in the end effectively consented to by the Law Society.  I say ‘in the end’ because until Mr Tang made his submissions, the position of the Law Society was somewhat ambiguous and non-committed, and therefore unsatisfactory.  The duty on the Law Society in applications such as the present is to arrive at a firm view (whether to consent, oppose or be neutral) after a careful consideration of the application.  I would emphasize that the assistance to be provided to the court should be a considered view from the standpoint of the body which governs and regulates the solicitors profession, and which represents the interests of solicitors, bearing in mind always the public interest.

Mr C Y Li, instructed by Messrs Tang, Wong & Cheung for the Applicant

Mr Ronald Tang Hon Bui, instructed by the Law Society of Hong Kong for  the Respondent