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 Chambers (Sitting as an additional Judge of the Court of First Instance)

Date of Hearing: 7 January 2011

Date of Decision: 26 January 2011

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DECISION

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1.Mr Chan Kin Fung, Phil, is the sole proprietor of Messrs Phillips. The Applicant, Mr Pang Lai Yin was his trainee from 1 February 2010 to 5 July 2010. Mr Chan has refused to provide the Applicant with a Form 4 with respect of his traineeship.

2.By an originating summons filed on 10 September 2010, the Applicant applied to this Court for an exemption to be granted to him 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.  That application was supported, inter alia, by the affirmations of the Applicant, as well as by an affirmation of Mr Ng Kai Pong, which was affirmed on 6 September 2010.  Mr Ng was a previous employee of Messrs Phillips as well as Wallbanck Brothers Securities (Hong Kong) Ltd which was controlled by Mr Chan. 

3.As is usual in such cases, there were mutual recrimination.  Indeed, Mr Chan has made complaints to the Law Society against the Applicant.  The Law Society has concluded, after investigation, that Mr Chan’s complaints were unsubstantiated.  Furthermore, the Law Society has reported to me in fulfillment of its proper roles in such proceedings that the Applicant was a fit and proper person to be admitted as a solicitor and consented to the application.

4.By a summons filed on 28 October 2010, Mr Chan sought the following orders:

“1. Leave be granted to the above-named CHAN KIN FUNG, PHIL trading as PHILLIPS, the 2^nd Principal of the Applicant referred to in the Applicant's Affirmation in support of his Originating Summons filed herein, to intervene in these proceedings as intervener;

2. The Affirmation of Ng Kai Pong be struck out on the ground that the contents thereof are scandalous and irrelevant to the issues of these proceedings;

3. The following paragraphs in Pang Lai Yin's Affirmation be struck out on the ground that the contents thereof are scandalous and irrelevant to the issues of these proceedings:-

(1) Paragraph 6,

(2) Paragraph 8 (specifically from ‘I have been exploited and have had to continually call into question the 2^nd Principal's propriety’),

(3) Paragraph 16 (specifically from ‘in view of the unfavourable experience of his outgoing employees, as to which I crave leave to refer to the Affirmation of Ng Kai Pong filed herein’),

(4) Paragraphs 19, 35, 39, 42, 44, 45,

(5) Paragraph 50 (specifically from ‘I suspect he uttered this only as a pretext to spare him the costs of paying an outgoing employee’);

(6) Paragraphs 56, 59, 61

4. These proceedings be adjourned with an extension of time of 28 days from the day of this Summons be granted for the above-named CHAN KIN FUNG, PHIL trading as PHILLIPS to file a further affirmation in reply to the Applicant's and Mr. Ng Kai Pong's Affirmation;

5. Leave be granted for this application to be heard in chambers, and not in open court;”

5.The Applicant’s application as well as Mr Chan’s application came for hearing before me on 2 November 2010.  At the hearing, Mr Alex Y. H. Lai, counsel, appeared for the Applicant, Ms Ricky S. P. Ng for the Law Society of Hong Kong, and Ms Connie Lee, counsel, for Mr Chan.  At the conclusion of the hearing, I made an order in favour of the Applicant and dismissed Mr Chan’s application.  In relation to Mr Chan’s application, I ordered Mr Chan to pay the Applicant’s costs summarily assessed at $31,200.  I also ordered Mr Chan to pay the Law Society’s costs of $20,600 in relation to Mr Chan’s application. The Reasons for Decision was handed down on 16 November 2010 (“the Reasons”).

6.By summons filed on 16 November 2010, Mr Chan applied for leave to appeal.  This is what Mr Chan sought by his summons.

“1. Leave be granted to the above-named CHAN KIN FUNG, PHIL trading as PHILLIPS, the 2^nd Principal of the Applicant referred to in the Applicant's Affirmation in support of his Originating Summons filed herein, to appeal to the Court of Appeal from the Judgment herein of His Honourable Mr. Tang J (Ag. CJHC) given on the 2^nd day of November 2010, whereby it was ordered that the application on the part of CHAN KIN FUNG, PHIL trading as PHILLIPS to intervene as intervener be dismissed with costs;

2. Leave be granted to the above-named CHAN KIN FUNG, PHIL trading as PHILLIPS to appeal against the costs order made against him;

3. Costs of and incidental to the applications made in this Summons and the appeal be provided for.”

7.In a draft notice of Appeal, the following were stated to be the grounds of appeal. 

“And further take notice that the grounds of this appeal are that

1. The judgment did not take into account the right of CHAN KIN FUNG, PHIL to protect his reputation in accordance with Article 14 of the Bills of Rights Ordinance;

2. The judgment did not take into account the right of CHAN KIN FUNG, PHIL to a fair and public hearing in the determination of his rights and obligations in accordance with Article 10 of the Bills of Rights Ordinance;

3. The judgment did not take into account the right of CHAN KIN FUNG, PHIL to equality before and equal protection of law against discrimination on any grounds including other opinion that he may hold in accordance with Article 22 of the Bills of Rights Ordinance;

4. The judgment did not take into account the right of CHAN KIN FUNG, PHIL to equality before the law in accordance with Article 25 of the Basic Law;

5. The judgment did not take into account the right of CHAN KIN FUNG, PHIL to freedom of speech in accordance with Article 27 of the Basic Law;

6. The judgment did not take into account the right of CHAN KIN FUNG, PHIL to confidential legal advice and access to the court for timely protection of his lawful rights and interests or for representations in the courts, and to judicial remedies in accordance with Article 35 of the Basic Law;

7. The above rights are inalienable rights and shall be protected by law;

8. The judgment did not take into account the right of CHAN KIN FUNG, PHIL as a non-party of the proceeding in accordance with RHC O.62, r.6A.”

8.It appears from the summons filed on 16 November 2010 and the draft Notice of Appeal that Mr Chan does not seek to appeal from my order made in favour of the Applicant dispensing with the production of a Form 4 in respect of the training period.

9.For the application for leave to appeal, Mr Chan has supplied the court with written submissions.  He also addressed the Court.  With respect to Mr Chan, I will not deal with the grounds relied on individually.  They are self-explanatory.  They concern what Mr Chan regarded as an attack on his reputation.  It appears that Mr Chan wishes to intervene in order to clear his name.  But as I have explained in the Reasons, I made no adjudication on any of the allegations.  Moreover, the Applicant’s application was not concerned with the reputation of Mr Chan, the Applicant only sought an exemption from producing a Form 4 in respect of his training period with Mr Chan. 

10.As for the Applicant’s reliance on O. 62 r. 6A, I have already dealt with that in para. 13 of the Reasons, and will not repeat them.

11.For the above reasons, I refuse leave to appeal.

12.In connection with this application, the Applicant asked for costs to be summarily assessed under O. 62 r. 9A.  A statement of costs showing a total sum of $28,000 was produced for that purpose.  Mr Chan asked for and was given 7 days to make representations on the statement of costs.  Mr Chan’s representations were made by letter dated 13 January 2011.  He queried the quantum and asked that the costs be taxed.  I believe this is a suitable case for summary assessment.  Having considered Mr Chan’s response, I have come to the conclusion that the proper amount of costs which Mr Chan should be ordered to pay to the Applicant is $28,000.  And I so order.

Mr. Chan Kin Fung, Phil, in person

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

The Law Society of Hong Kong, appearance excused