Kim Min Ju v Law Society of Hong Kong
Court of First Instance
HCMP 2290/2019
Presiding Judge: Jeremy Poon CJHC
11 September 2020

Introduction

Section 6(6) of the Legal Practitioners Ordinance, Cap 159 ("the LPO") enjoins the Law Society to impose a two-year requirement when issuing a practising certificate to a solicitor. in these terms:

(6) "It shall be a condition of a practising certificate issued for the first time on or after 1 August 1976 to any solicitor who does not satisfy the Council that since being admitted as a solicitor he has been bona fide employed in the practice of a solicitor in Hong Kong for at least 2 years prior to his application for such practising certificate, that he shall not practise as a solicitor on his own account or in partnership until he satisfies the Council that since being admitted as a solicitor he has been bona fide employed in the practice of a solicitor in Hong Kong for at least 2 years."

The two-year requirement may, however, be waived by the Council of the Law Society ("the Council") under section 6(6A) of the LPO:

(6A) "If the Council considers that an applicant has acquired substantial experience in the law either in Hong Kong or elsewhere, the Council may waive the 2 year employment requirement in subsection (6) or it may reduce the period of 2 years to a period it considers appropriate."

If an applicant is denied such a waiver, he may appeal to this Court pursuant to section 6(10) of the LPO. 1

Two principal issues arise from this appeal:

(1) What is the meaning of "substantial experience in the law" for the purpose of section 6(6A) of the LPO? (1st Issue)
(2) Did the Law Society erred in its assessment that the plaintiff did not have "substantial experience in the law" within the meaning of section 6(6A) of the LPO so that the two-year requirement cannot be waived? (2nd Issue)

Having considered the written submissions lodged by the parties, I consider it appropriate to determine the appeal on papers without an oral hearing.

Background

The plaintiff was formerly a barrister. He was admitted on 30 April 2011 and had since practised mainly in commercial and criminal litigation for about 7 years. In April 2018, he applied to be removed from the roll of barristers in order to be qualified as a solicitor. Between 17 April 2018 and 21 January 2019, he was employed by Shum & Co as a legal manager, involving mainly with commercial and criminal litigation. On 17 November 2018, he was admitted as a solicitor and was issued his first practising certificate on 21 January 2019. He has since been working as an assistant solicitor with Shum & Co, practising mainly in commercial and criminal litigation, corporate finance, matrimonial law, probate and administration and intellectual property.

On 29 October 2019, that is, about 9 months after he commenced practice as a solicitor, the plaintiff applied to the Consents Committee of the Law Society ("the Consents Committee") for a waiver of the two-year requirement under section 6(6A) of the LPO. In the supporting statutory declaration, the plaintiff set out his education and employment history and his experience in handling litigation. Referring to his experience as a barrister for 7 years including receiving instructions from various solicitors in respect of different contentious and non-contentious matters, appearance in courts on weekly basis and handling cases with solicitors from the outset until conclusion, the plaintiff said that he had garnered significant "solicitor" experience throughout his practice as a barrister. He went on to say that during his employment with Shum & Co as legal manager and assistant solicitor, he had exhibited the ability to practise successfully as a partner of a law firm or as a sole-proprietor by successfully introducing new clients, associates and contacts in the legal industry to the firm.

The Consents Committee rejected the plaintiff's application on 15 November 2019. In the letter dated 20 December 2019, the Consents Committee stated that as he had no formal training in a solicitors' firm because of the exemption from employment as a trainee solicitor granted to him under rule 20(1) of the Trainee Solicitors Rules and he only commenced practice as an assistant solicitor with Shum & Co since 21 January 2019, the Consents Committee was not satisfied that he had acquired substantial experience in his practice as a solicitor for the purpose of section 6(6A).

On 7 January 2020, the plaintiff sought to review the decision before the Standing Committee on Compliance of the Law Society ("the Standing Committee"). By a letter dated 16 April 2020, the plaintiff set out his working experience to show that he possessed the knowledge of law and legal practice equivalent to that which would be acquired by a solicitor in the course of two years of practice of a qualified solicitor. He said that during his tenor as a legal manager, he directly assisted the partner in a wide range of litigation matters. Once he became an assistant solicitor, he handled a broad range of files with a high degree of autonomy. He also engaged in commercial and corporate finance matters. As legal manager and assistant solicitor, he handled various aspects of litigation matters, such as taking clients' instructions; conducting conflict checks, client identification and verification; conducting due diligence on client's funds; obtaining retainers; drafting letters before action and advice at the pre-action stage; drafting pleadings and court documents; directing his staff to issue interim bills to clients; and handling clients' funds and monies on account after commencement of court actions.

By a letter dated 21 May 2020, the Standing Committee informed the plaintiff that it upheld the Consents Committee's decision. In her affidavit dated 17 June 2020, Ms Margot Yin Ka Tung, the secretary to the Consents Committee and Standing Committee explained: "The members of [the Standing Committee] considered the Written Representations in light of the type of experience in legal practice required of a partner who is running a solicitors' firm. Normally, such experience would include, for example, supervising qualified and unqualified staff members of a firm, establishing and maintaining proper accounting systems and proper internal controls over those systems to ensure compliance with the Solicitors' Accounts Rules and keeping proper accounting records to show accurately the position with regard to the money held for such client and each trust. The members of [the Standing Committee] considered the applicability of [the Law Society's Guidelines for Applications under section 6(6A) of the LPO ("the Guidelines")] in this situation, the inapplicability of the Plaintiff's experience as a Legal Manager (i.e. as an unqualified staff member) in Shum & Co., and the Traineeship Exemption. The members of [the Standing Committee] indicated that they were not satisfied that the Plaintiff had gained sufficient experience of legal practice as a solicitor similar to that of a solicitor who has experienced two years of full-time practice in law in Hong Kong."

In gist, the Law Society took the view that the plaintiff had not acquired sufficient experience in the law as a solicitor to qualify for a waiver of the two-year requirement under section 6(6A) of the LPO.

Issue(s)

  • Issue 1: The 1st Issue concerns the meaning of "substantial experience in the law" for the purpose of section 6(6A) of the LPO. It is a matter of statutory construction.

The answer is in my view plain and obvious. Section 6 of the LPO empowers the Law Society to issue practising certificates to solicitors to practise qua solicitors in accordance with the various requirements set out in the subsections. The two-year requirement in section 6(6) ensures that no solicitor can practise as a solicitor on his own or in partnership for at least 2 years.

In considering if a waiver of the two-year requirement should be granted under section 6(6A), the whole purpose is to determine if the applicant has "substantial experience in the law" so that he can, without supervision, practise as a solicitor. Construed with this purpose in mind, "substantial experience in the law" must mean substantial experience in the law as a solicitor. Given the nature of the practice of a solicitor, substantive experience in the law as a solicitor encompasses both the substantive law and the legal practice as a solicitor.

As explained by Huggins VP in Re Alexander Adamovich, a solicitor, supra, at p.272H-J when he expounded the legislative intent of section 6(6A): "I accept that the intention of the legislature was to ensure that, before a practitioner was allowed to practise without supervision and to have control of, and responsibility for, his client's funds, he should not only have a knowledge of the substantive law but also have gained a knowledge of legal practice, either in Hong Kong or in the United Kingdom, and it is reasonable to assume that the Council was intended to disapply sub.s.(6) only where an applicant had, in the opinion of the Council, acquired such a knowledge of the law and legal practice as he might otherwise likely to acquire during two years' limited practice." Properly understand in context, Huggins VP's reference to "legal practice", must mean the legal practice of a solicitor.

Accordingly, on a proper construction of section 6(6A), an applicant would have acquired the requisite substantial experience in the law if he has, in the opinion of the Council, acquired knowledge of both (1) the substantive law and (2) the legal practice of a solicitor in Hong Kong, as he might otherwise likely to acquire during two years' limited practice as a solicitor. The contrary submissions by Mr Brown are all rejected.

  • Issue 2: The 2nd Issue involves the Law Society's assessment that the plaintiff lacked the requisite substantial experience for the purpose of section 6(6A). Here, the court is asked to determine if the primary decision of the Law Society is erroneous.

In this regard, a few words about the general approach to be adopted in dealing with an appeal brought under section 6(10) of the LPO is apposite. In Re Alexander Adamovich, a solicitor, supra, Huggins VP at pp. 273J-274A took the view that the court should interfere with the Council's decision only if persuaded that it was one which could not reasonably be reached on the evidence. This is, however, not a test of irrationality as applied in judicial review. As Li CJ explained in Yau Chung Wo Jeremiah v Law Society of Hong Kong HCMP 425/1999, unreported, 30 June 1999, at p.8: "The test [Huggins VP] applied was that he should interfere with the Council's decision only if persuaded that it was on which could not reasonably be reached on the evidence. If he were applying the judicial review test of irrationality, that would, in my view, be an incorrect test on a statutory right of appeal. But if he meant only that on appeal, the Chief Justice should accord proper weight to the decision of the regulatory body, that would be unexceptional and appropriate."

The reason why the court should give proper weight to the primary decision made by the Law Society when approaching an appeal under section 6(6A) is self-evident. The Law Society is entrusted by the legislature under the LPO with the primary obligation to ensure that solicitors must have sufficient experience both in terms of legal knowledge and legal practice as a solicitor before they are permitted to practise without supervision. As the regulatory body of the profession armed with the collective experience and expertise of the members of the Council and its committees, the Law Society is plainly in the best position to assess and determine if an applicant has acquired the requisite substantive experience in the law to qualify for the waiver of the two-year requirement: see Re Alexander Adamovich, a solicitor, supra, per Huggins VP at pp. 273J; see also Lam VP's observations in Roderick Miller v Law Society of Hong Kong [2014] 3 HKLRD 1 at [27].

Here, as explained by Ms Margot Tung, the Law Society did pay regard to the plaintiff's experience while practising as a barrister and thus was satisfied that he had acquired sufficient knowledge in the substantial law in Hong Kong. His application was however rejected for his failure to demonstrate that his experience in the legal practice of a solicitor was similar to the experience that a solicitor would obtain during two-years' limited practice: see her explanation in her affidavit quoted at [9] above.

Having considered the evidence in totality, I am of the view that the Law Society is well justified in concluding that the experience and knowledge exhibited by the plaintiff only shows that he has a wide range of practice and substantial experience on the substantive law but in terms of the legal practice of a solicitor, his knowledge and experience acquired for 9 months since practising as an assistant solicitor (as at the time of his waiver application) could hardly be regarded as sufficient to meet the threshold in section 6(6A). Neither his past experience as a barrister nor that as a legal manager of the firm has little, if any, weight in assessing his experience in terms of the legal practice as a solicitor for the purpose of section 6(6A). I can see no basis to disturb the Law Society's assessment. I reject Mr Brown's submissions to the contrary.

Dispositions

In consequence, I affirm the Law Society's decision in rejecting the plaintiff's application for a waiver under section 6(6A) of the LPO.

On costs, I make an order nisi that the plaintiff do pay the costs of this appeal to the Law Society to be taxed if not agreed.

1Section 6(10) of the LPO reads: "Where the Council refuses to disapply subsection (6) in the case of an applicant who claims to have acquired substantial experience in the law, either in Hong Kong or elsewhere, the applicant may appeal to the Chief Judge against the decision of the Council within 1 month of being informed of that decision."

Catherine Leung, Partner, Lewis Silkin

Jurisdictions: 

Legal Director, Lewis Silkin Hong Kong