Hong Kong Court Refuses Admission by “Remote Hearing”

SUMMARY

Against the backdrop of the challenges of the COVID-19 pandemic and the Judiciary Administration’s consultations on the greater use of remote hearings for court proceedings, the recent case of So v The Law Society of Hong Kong [2021] HKCFI 617 should be of interest to the profession – particularly, to principals whose trainees spend time on overseas secondments as part of their training. The applicant, who at the time had been working in London, applied to attend the hearing of his application to be admitted as a solicitor in Hong Kong by way of video-conferencing facilities. That application was refused by the Court of First Instance, despite the severe COVID-19 travel restrictions between Hong Kong and the United Kingdom.

BACKGROUND

The applicant completed his traineeship with an international law firm in August 2020. He travelled to the United Kingdom to work in the firm’s London office in November 2020. His application to be admitted as a solicitor was due to be heard on 20 March 2021 and it appears that he intended to return to Hong Kong to attend his admission hearing. However, stringent travel restrictions were imposed by the Hong Kong government, such that if the applicant wished to return to Hong Kong he would have to be out of the United Kingdom for at least 21 days before arriving in Hong Kong, followed by quarantine on arrival for the same period of time.

In those circumstances, the applicant applied to the Chief Judge of the High Court:

  • to attend the hearing of his application to be admitted by video-conferencing facilities or to be exempted from attending if such facilities were not available;
  • to make the affirmation in support of his admission by video-conferencing facilities or by paper disposal, and to sign the roll of solicitors “outside of the court”.

In support of his application, the applicant relied on Rule 13 (“Exemption”) of the Admission and Registration Rules (Cap. 159B), which gives the Chief Judge “on special grounds and upon such conditions as he may consider necessary” the power to exempt an applicant from any of the “formalities” prescribed by the rules. It was not in doubt that physical attendance at the hearing of an application for admission is the normal practice, as it is for making the oath (or affirmation) in support and signing the roll. However, these are not normal times.

It is important to note that the Law Society’s position as regards the application was neutral and the Secretary for Justice raised no objection. However, the court oversees the application of the relevant rules and the court process.

DECISION

The court refused the application. First, the court doubted whether personal attendance at the hearing to make the oath (or affirmation) and sign the roll are matters of “formality” for the purposes of Rule 13 (Fu v Law Society of Hong Kong, HCMP 908/2008, 17 June 2008, explained and distinguished).

Second, assuming (but without deciding) that making the oath (or affirmation) and signing the roll in person at the hearing are matters of formality, an exemption could only be granted on “special grounds”. The court noted (at para. 20) that:

“Admission of a solicitor is a solemn process where personal attendance at the hearing is normally required.  Exemptions are not to be granted lightly.  Cogent reasons must exist.”

While it does not appear to have been doubted that travelling to Hong Kong would cause great inconvenience to the applicant, it also appears to have been accepted that (ultimately) he could have made travel arrangements.

GOING FORWARDS

Obviously, the case is highly topical. Many will have sympathy for the predicament in which the applicant found himself as a result of the extraordinary travel restrictions in place. However, the outcome in the case is not surprising given the wording and spirit of the rules. Further, even assuming that the court’s power to grant an exemption is engaged, an applicant will have a high threshold to overcome to persuade the court to grant an exemption to the practice of requiring attendance in person at the hearing of an application for admission.

In addition to the consultations on the wider use of video-conferencing facilities for civil proceedings, consideration should also be given to whether admissions could be disposed of on the papers – for example, in cases of “no objection” and where applicants opt for paper disposal. In any event, it is also an opportune time to consider how best to shorten the time between an applicant’s completion of their traineeship and their admission. The period of limbo between completion of a training contract, formal admission and issue of a practising certificate is unsatisfactory.

Jurisdictions

Partner, RPC

Senior Consultant and Accredited Mediator, RPC

A commercial disputes lawyer with over 35 years' experience, David has extensive experience in handling the defence of professional indemnity, financial lines and other special risks claims as well as advising insurers in relation to such claims.

David has worked on the defence of claims in various jurisdictions including England, Hong Kong, Singapore, Malaysia, the PRC, Taiwan, Bermuda and the BVI.  He also has significant experience in handling regulatory and disciplinary matters.

He has considerable experience providing general risk management advice to professionals such as accountants, solicitors, insurance brokers, surveyors and stock-brokers. 

Most recently, he has been developing a practice as a commercial mediator. David is accredited as a mediator by both the Centre for Effective Dispute Resolution (CEDR) and the Hong Kong Mediation Accreditation Association Limited (HKMAAL).