Pang Lai Yin v. The Law Society of Hong Kong

HCMP 1719/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1719 OF 2010

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BETWEEN

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Before: Hon Tang Ag CJHC in Court (Sitting as an additional Judge of the Court of First Instance)

Date of Hearing: 2 November 2010

Date of Decision: 2 November 2010

Date of Reasons for Decision: 16 November 2010

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REASONS FOR DECISION

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1.This is Mr Pang Lai Yin’s application for exemption from producing a Form 4 by virtue of Rule 13 of the Admission and Registration Rules (Cap. 158B) (“Rule 13”) of the Legal Practitioners Ordinance (Cap. 159) in respect of the training period from 1 February 2010 to 5 July 2010, which he served under Mr Chan Kin Fung, Phil, the sole proprietor of Messrs Phillips.

2.The Law Society of Hong Kong (“the Law Society”), in fulfillment of its proper role under Rule 13, has conducted its own investigation to decide whether the applicant is a fit and proper person to be admitted, and has reported to me its considered view that it should consent to the application.

3.There is, however, also, an application by Mr Chan Kin Fung to intervene in this proceeding as well as, inter alia, to strike out the affirmation of Mr Ng Kai Pong, which was filed in support of Mr Pang’s application and certain paragraphs in Mr Pang’s affirmation, which he claimed to be scandalous and irrelevant to the proceedings.  He also asked that the proceedings be adjourned with an extension of time of 28 days from the date of the summons for him to file a further affirmation.  

4.As Ma CJHC (as he then was) has explained in Fu Sze Ying Mabel v. The Law Society of Hong Kong, HCMP 908/2008 (unreported, dated 17 June 2008), in Rule 13 proceedings, the court has to be satisfied:

“ (1) That the underlying objective or purpose of Form 4, being in particular, a satisfactory traineeship and [the applicant] 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 [the applicant] was unable to produce a Form 4 to the Law Society.”

5.When a principal refuses to provide a Form 4, that is often the result of a breakdown in the relationship between a trainee and a principal.  Here, from the respective allegations made by the parties, it is quite clear that the relationship has completely broken down.

6.One of the complaints made by Mr Pang against Mr Chan is that he was withholding a Form 4 because he was dissatisfied with Mr Pang’s decision not to continue to work for his firm after qualification. 

7.The allegations made by Mr Chan against Mr Pang are serious.  They led to the summary termination of Mr Pang’s traineeship on 5 July 2010 by Mr Chan.  However, they were first made in writing after Mr Pang had informed Mr Chan in writing that he did not wish to work for Mr Chan after qualification.  I must say given the seriousness of Mr Chan’s allegations, if they were true, it is surprising that Mr Chan’s traineeship was only terminated after Mr Chan had in writing declined an offer to continue working for Mr Chan after qualification.  Indeed, as the affidavit of Tung Margot, Yin Ka filed on behalf of the Law Society noted:

“12(b) The Applicant’s salary was increased a few days before he tendered his resignation from Messrs Phillips.”

8.Mr Pang has of course denied Mr Chan’s allegations. 

9.In this case, the Law Society has concluded that Mr Pang is a fit and proper person to be admitted as a solicitor after complaints made by Mr Chan against Mr Pang were found to be unsubstantiated. 

10.Mr Pang served the 1^st period of his training (7 August 2008 to 31 January 2010) with Ms Au Miu Po of Messrs C. P. Lin & Co. The last period (6 July 2010 to 6 August 2010), after Mr Chan has summarily terminated his traineeship, with Mr Lam Kwok Ming of Messrs P. C. Woo & Co.  Both those principals, and the firms in which they were partners are of the highest reputation and standing.  The fact that these other principals were satisfied with Mr Pang gives further support to the Law Society’s view.

11.I am of course not in the position to adjudicate on Mr Ng’s allegations, nor am I in a position to adjudicate upon the allegations made by Mr Pang against Mr Chan.  Nor is it necessary for me to do so.  Although the Law Society may wish to investigate into those allegations, for, if they were substantiated, they may call into question Mr Chan’s fitness as a solicitor.

12.However, I doubt whether it would ever be right to permit intervention by a third party in Rule 13 proceedings.  The possibility for abuse is obvious.  The ensuing delay can be substantial.  A promising career could be nipped in the bud by a vindictive principal.  On the facts of this case, I was satisfied that Mr Chan’s application must be dismissed.  Ms Lee, who appeared by Mr Chan, correctly accepted, that if I refused leave to Mr Chan to intervene it would unnecessary to deal with the rest of Mr Chan’s application.

13.For the above reasons, I have allowed Mr Pang’s application and dismissed Mr Chan’s.  In relation to Mr Chan’s application I have ordered Mr Chan to pay Mr Pang’s costs summarily assessed at $31,200.  As for the Law Society’s costs in relation to Mr Chan’s application, the Law Society has subsequently to the hearing submitted a skeleton bill for summary assessment.  By letters dated 10 and 11 November 2010, Mr Chan opposed my costs order in favour of the Law Society.  Mr Chan relied on O. 62 r. 6A which concerns “costs order in favour of or against non party” and submitted that he was a non party and that the Law Society had failed to warn him that it would apply for costs.  But I am concerned with Mr Chan’s application to be joined as a party to proceedings in which the Law Society is a natural party.  In the circumstances, I see no reason why the Law Society should not be given costs in relation to the application for joinder. However, the costs of the drafting of Margot Tung’s affidavit predated Mr Chan’s application and it seems to me that it would be fairer not to order Mr Chan to bear such costs.  In all circumstances, I order Mr Chan to pay the Law Society’s costs of $20,600 in relation to Mr Chan’s application.

Mr. Alex Y. H. Lai instructed by Messrs Shaw & Ng for the Applicant

Ms. Ricky S. P. Ng represented by the Law Society of Hong Kong

Ms. Connie Lee counsel instructed by Messrs Phillips for Chan Kin Fung, Phil

Please refer to HCMP190/2011 for the relevant appeal(s) to the Court of Appeal.