Re Youh, Alan Chuen Po 2013

HCMP 1439/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1439OF 2012

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	IN THE MATTER OF the Application of YOUH, Alan Chuen Po (郁存寶) for admission as a Barrister of the High Court of the Hong Kong Special Administrative Region.
	and
	IN THE MATTER OF Section 27 of the Legal Practitioners Ordinance, Cap. 159.

______________________

Before:	Hon Lam JA in Court
	(Sitting as an additional Judge of the Court of First Instance)

Date of Hearing :	8 February 2013
Date of :	1 March 2013

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J U D G M E N T

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1.  In most cases, admission proceedings are happy occasions where the hard work and efforts of those who aspired to join the legal profession is publicly acknowledged and recognized when they are admitted. However, there are cases where such proceedings are opposed. When this happens, the court must adjudicate upon the merits of such applications. We come across such situation mostly in the context of the admission of overseas lawyers specifically for one case. In our experience, it is rather unusual for opposed application coming up for adjudication in other contexts. But it does happen and the present case is, perhaps unfortunately, one of those rare occasions. And the outstanding issue that calls for determination by the court is the question of costs. Though I am only concerned with costs, the exercise of the discretion of the court involves some discussions on the spirit and underlying principles in the statutory scheme for admission of barristers.

A contested application for local admission: the “fit and proper person” criterion

2.  I shall start by reciting some salient facts.  I do not intend to go through every detail in the factual matrix.  But I shall need to describe at some length what had happened at what I shall regard as the critical period for the purpose of my decision in this case.

3.  The present case is an application for admission as a barrister by the Applicant who had undergone the requisite academic training, passed the relevant examinations and completed his pupillage with three practising members of the Bar.  Initially, the application was supported by a certificate of qualification for admission issued by the Bar Council on 10 April 2012 [“the Certificate”].  That certificate is an essential document for admission under s2(3)(a) of the Barristers (Admission) Rules Cap 159AA [“the Admission Rules”].  The Notice of Motion was issued on 12 July 2012.  Originally, the application was scheduled to be heard on 11 August 2012.

4.  After the Department of Justice had been served with the papers, the Government Counsel raised some concerns and requested for some information from the Applicant.  I shall not go into the details of those concerns.  Suffice to say that the Bar was alerted and a more extensive request for information was made by the Bar to enable it to come to a view on the “fit and proper person” criterion.

5.  I hasten to say immediately that the concerns raised have nothing to do with the personal integrity of the Applicant.  However, the “fit and proper person” criterion requires consideration being given to other aspects regarding the suitability of a person to become a barrister as well.  I do not intend to say more about the personal circumstances of the Applicant in this judgment beyond what is absolutely necessary.  As I said at the hearing, I have much sympathy with the Applicant regarding the difficulties he encountered.  On the whole the concerns raised by the Secretary for Justice and the Bar related to an unfortunate condition which the Applicant cannot be morally blamed.  Notwithstanding that, the concerns are legitimate ones and the Bar has a public duty to investigate and bring them to the attention of the court.      

6.  In a letter of 7 August 2012, the Bar reminded the Applicant of its duty in assisting the court as regards this criterion and its power to revoke the Certificate. The Bar also referred to the Applicant’s duty to make full and frank disclosure to the Bar of all relevant circumstances in his application.  The Applicant was informed that a solicitor has been appointed to act for the Bar in the matter.  A notice to act was filed by that firm on 8 August 2012.

7.  The “fit and proper person” criterion is one of the requirements that an applicant seeking admission to the Bar must satisfy. The court has to be satisfied that an applicant is “a fit and proper person to be a barrister” and that he has complied with other requirements set out in s27(1) of the Legal Practitioners Ordinance Cap 159 [“the Ordinance”] before it may admit that person as a barrister. In the prescribed form of application for a certificate of qualification, an applicant has to certify that he or she is a fit and proper person, see para 5 of Form 3 in the Barristers (Qualification for Admission and Pupillage) Rules [“the Qualification Rules”], Cap 159AC. Likewise, in the prescribed form for a certificate of qualification for admission issued by the Bar, it contains a certification as to the applicant as a fit and proper person to be called to the Hong Kong Bar under para 6 of Form 4 in the Qualification Rules.

8.  The Bar relies on certificates from pupil masters in giving such a certification.  After the completion of the relevant part of pupillage, s10(4)(a)(ii) of the Qualification Rules requires a certificate from the pupil master certifying that the pupil is, in the opinion of the pupil master, a fit and proper person to practise as a barrister in Hong Kong.  Without such certification, the relevant pupillage would not be regarded as a period of approved pupillage.  In giving such a certificate, a pupil master performs an important public duty and he has to give a responsible opinion on the suitability of a pupil in such certificate.  It may not be an easy task in some cases.  Yet it is a task which the public is entitled to expect a pupil master to perform conscientiously.  As mentioned above, the Applicant has been certified as a fit and proper person by three pupil masters.    

9.  The “fit and proper person” criterion is an important one.  It is a criterion which an applicant has to satisfy beyond meeting the academic and legal training requirements.  There is a considerable degree of public trust and confidence placed upon a barrister.  A person admitted as a barrister has the privilege of practising as a member of one the most respected professions in our society.  Members of the public, the Judiciary and other members of the legal profession expect members of the Bar to have integrity, honour, high professional standard, reasonably sound judgment and competence in their practice.  In Hong Kong, the Bar can say with justifiable pride that by and large such expectation is met.

10.  The conduct of a barrister in his or her professional practice often has immense ramifications in the life of a client beyond the immediate outcome of a case.  Such ramifications can be financial, emotional, political or social.  What happens in litigation could affect the physical, emotional or psychological well-being of a client or those closed to him or her. It is therefore necessary for the law to place importance on the “fit and proper person” criterion.  Given that we have an adversarial system, unless the court and members of the public can have confidence that those practise at the Bar are fit and proper persons, the administration of justice under our system will be severely hampered and the rule of law, a core value in our society, will be tarnished.  See also the judgment of Moffitt P in Re B [1981] 2 NSWLR 372 at p.381-2 where it was emphasized that a barrister has to be a person that can be trusted to perform his duty to uphold the law as a barrister and conduct himself in a manner which will serve the proper and fair administration of justice including duty performed when what he does is unlikely to be subject to scrutiny.  In L v Canterbury District Law Society [1999] 1 NZLR 467 at 474, the Full Court of New Zealand applied the following test in considering whether a person should be regarded as a person of good character and fitness for admission as a barrister and solicitor in New Zealand,

“…the appellant must establish affirmatively that he is a person of unquestionable integrity, probity and trustworthiness …”

11.  It is therefore right and proper that both the Secretary for Justice and the Bar should discharge their responsibilities diligently in assisting the court to assess whether an applicant for admission as a barrister can satisfy this criterion.  The present case highlights the importance of such responsibility and it also illustrates that the Secretary for Justice and the Bar have been up to the task.

12.  Coming back to the facts of the present case, given the concerns of the Department of Justice, solicitors for the Applicant wrote to the court seeking to adjourn the hearing of 11 August.  The application was adjourned by the court to a date to be fixed and a new hearing date of 22 September 2012 was given.  In respect of the requests raised by the Bar, solicitors for the Applicant supplied some requested documents on 13 August and indicated updated documents would be furnished later.

13.  By a letter dated 7 September 2012, in view of the lack of further progress, solicitors for the Bar wrote to solicitors for the Applicant making some further requests.  The upshot was that after some correspondence, the Bar was not satisfied with the answers given and on 15 September 2012, the Bar through its solicitors informed the solicitors of the Applicant that the Bar decided to withdraw the Certificate.

14.  The Applicant challenged the solicitors for the Bar on various grounds, including a challenge as to the authority of the solicitors to say that the Certificate was revoked.  On 17 September 2012, he indicated that he would proceed with his application for admission.

15.  Due to the impendency of the hearing of 22 September, solicitors for the Bar wrote to the court on 18 September informing the presiding judge of the developments.  In view of the contested nature of the matter, the Bar invited the court to consider whether it should not be heard together with other uncontested admission applications and to give directions for filing of written submissions.  The letter was copied to the Applicant’s solicitors and the Department of Justice.

16.  At the same time, on 18 September the Applicant himself wrote to the Bar as well as solicitors for the Bar and Department of Justice challenging the revocation of the Certificate and he said in that letter,

“… I am of the view that I have proved on the balance of probabilities that I am more likely than not to be a fit and proper person to be admitted as a barrister …”

17.  He further indicated that unless he heard any objection from the Bar and the Department of Justice, he would proceed with his application for admission on 22 September.

18.  On 19 September, after reading the letter from the solicitors for the Bar to the court, the Applicant himself wrote to the solicitors alleging that,

(a)        The letter breached legal professional privilege;

(b)       The letter contravened Data Protection principle 3;

(c)        The letter constitutes private communication with the judge which may be a contempt of court;

(d)       He has proved that he is a fit and proper person on the balance of probabilities.

19.  Solicitors for the Bar refuted those allegations in a letter of 20 September and enquired whether the Applicant would agree to an adjournment of the matter on 22 September for argument.

20.  On 20 September, the Secretary for Justice also indicated that he would wish to be heard in the matter and it would not be appropriate to deal with the matter together with other uncontested applications.

21.  On the same day, the Chief Judge directed the matter be adjourned to a date to be fixed in consultation with counsel’s diaries. Directions for submission of agreed list of directions relating to the filing of evidence and lodging of written submissions were also given.

22.  On 20 September, the Bar Council resolved to revoke the Certificate.  On 21 September, the Bar wrote to the Applicant informing him that “it was unanimously resolved that [the Certificate] is hereby revoked” pursuant to s17(1) of the Qualification Rules.  Reasons for revocation were given in that letter.                

23.  Also on 20 September, the Applicant filed a notice to act in person.  According to what he told this court at the hearing, he had all along been undertaking all the drafting (including letters) and filing of documents in these proceedings even during the time when he was represented by a firm of solicitors.  The firm acted for him on a complimentary basis.

24.  He also informed this court that he had not consulted his pupil masters with regard to the difficulties he encountered in his admission.  This is perhaps unfortunate.  As I observed during the hearing, it is the good tradition of the Bar that a pupil master should be ready and willing to offer advice, assistance and guidance to his pupil in a situation like this. Indeed, I believe the same can be said with regard to senior members of the Bar in the same chambers where a pupil served his pupillage.  Had the Applicant sought advice from some senior members with regard to his predicament, it is likely that the matter would have been handled differently.  Sometimes, a pupil may not seek the necessary help for various reasons.  I venture to suggest that it would be in line with this good tradition if a pupil master can foster a relationship of mutual care and assistance between his pupil and other members of the chambers.     

25.  As it happened, the Applicant was virtually on his own when he had to deal with a rather difficult situation.

26.  On 25 September, the Applicant sent an email to the solicitor who acted for the Bar in which he said he did not know that a Notice to Act had been filed by that firm.  He further said the letter of the Bar of 7 August only notified him that the solicitors would write and receive correspondence for the Bar.  Citing para 18 of the Rules and Regulations of the Hong Kong Bar Association, he said the solicitor had no statutory authority to make decision for the Bar Council.

27.  On 26 September, the Applicant wrote to the Chief Judge saying, amongst other things,

“As the Certificate is now revoked on 21 September 2012, I intend to apply in writing for the decision to be reviewed by the Bar Council pursuant to s 18(1) of the Rules. Moreover, I intend to furnish further information, on a without prejudice basis, so as to satisfy both the Bar Council and the Secretary for Justice to come to a view that I am a fit and proper person to be admitted as a barrister.”

28.  He further said, “… I do not intend to litigate for the captioned case …”.  He invited the Chief Judge to direct the Notice of Motion be adjourned to a date to be fixed pending the result for review pursuant to s18(1).

29.  In a letter of 4 October, the Applicant confirmed he had sent a copy of the letter of 26 September to the solicitors for the Bar and the Department of Justice.

30.  The Bar and the Department of Justice agreed with the proposal.  On 12 October, the Chief Judge directed that the proceedings be adjourned sine die with liberty to restore for further directions or (where appropriate) hearing.  Costs were reserved.

31.  The time limit for review under s18(1) of the Qualification Rules is one month.  Despite his intimation to the Chief Judge on 26 September, the Applicant did not make any application for review.  No further material was placed before the Bar as to his satisfaction of the fit and proper criterion.

32.  On 13 December, solicitors for the Bar wrote to the Applicant commenting on the absence of any review.  They also asked the Applicant to confirm if he agreed to have the proceedings dismissed with an order that he shall pay the costs of the Bar.

33.  The Applicant replied on 21 December.  The substance of it was a rejection of the proposal.

34.  The Bar therefore issued a Summons on 27 December [“the Summons”] for the striking out of the Notice of Motion on the ground that the Certificate had been revoked and there had not been any application for review.  In the Summons, the Bar also asked for costs of the proceedings. The Summons was returnable on 8 February 2013.

35.  On 7 January 2013, the Applicant phoned the solicitor acting for the Bar requesting a meeting with him.  According to what was subsequently set out in a letter of the same date by the solicitor, the Applicant said he did not intend to litigate and sought to have a meeting with the solicitor.  The solicitor declined to have a meeting and wrote in the letter, “… for the sake of good record, all future communication should be conducted in writing”.

36.  On 9 January, the Applicant acting in person filed a Notice of Withdrawal [“the Notice”].  In the Notice, the Applicant intimated that he “wholly withdraws the Notice of Motion dated 12 July 2012 and … all proceedings thereof”.  He also stated that he “does not contest the Summons” (for striking out).

37.  After receipt of the Notice, solicitors for the Bar wrote to the Applicant inviting him to sign a consent summons which provided for, amongst other things, costs of the proceedings to be paid by the Applicant.

38.  In response, the Applicant wrote an email to the solicitor on 21 January taking the stance that there should be no order as to costs.  He further said he had no means to pay any costs.

39.  On 25 January, the clerk of the Chief Judge wrote to the parties setting out some provisional views and concerns of His Lordship given that the only outstanding issue between the parties was costs. No doubt, the letter was written and the views were expressed with the good intention of avoiding unnecessary additional costs and time be spent on the matter.  The Chief Judge also stated clearly at the very end of the letter,

“… the above provisional views and concerns merely represent his present thinking without having the benefit of hearing arguments from the parties. The Court keeps an entirely open mind on the issues involved and is wholly open to persuasion if the matter cannot be disposed of without resorting to a hearing.”

Further, the Chief Judge did not say that if the issue of costs had to be decided by the court, the proper order should be no order as to costs.

40.  I shall need to come back to these provisional views and concerns later because the parties understandably made reference to them in their submissions.  However, it is right that I should repeat here what I have said at the hearing.  What the Chief Judge said in that letter is not binding on me and I have to resolve the issue of costs between the parties by reference to the materials placed before me and the submissions advanced by the parties.  I have to apply my own thinking to the issues canvassed and form my own independent judgment. Whatever is the outcome and whether it is favourable to the Applicant or the Bar, parties should be left in no doubt that this court has reached a decision based on the legal merits of each party’s case and nothing else. 

41.  On 28 January, solicitors for the Bar wrote to the Applicant stating that they would confine to seek costs which have been incurred as result of his unreasonable conduct and attitude in these proceedings.  Such costs was quantified at $97,800 with a breakdown as follows,

(a)        Leading counsel: complimentary

(b)       Junior counsel: $17,800

(c)        Solicitor: $80,000.

At the hearing, counsel for the Bar told the court that it was the costs between 12 September and 9 January.

42.  In the same letter, the solicitor also put forward an offer to accept $50,000 as agreed costs to resolve the matter.  The offer was open up to 31 January.

43.  It should be mentioned that the costs incurred by the Bar in these proceedings are much higher than $97,800.  According to the fee note and narrative bill placed before me, the total costs incurred by the Bar are $52,400 for junior counsel and $170,333 for the solicitor.  Leading counsel has all along been acting on complimentary basis.

44.  In addition, costs were incurred for the hearing before this court.  I was told that the brief for junior counsel is $8,000 and the charges of the solicitor are $16,000.

45.  After reading that letter, the Applicant repeated what he had said earlier in an email of 28 January.

46.  On 29 January, the Secretary for Justice acceded to the request of the Applicant that there be no order as to costs between him and the Applicant having regard to the following factors,

(a)     The nature of the proceedings;

(b)    The Applicant’s history;

(c)     The application has not been heard and it was withdrawn well before the date fixed for hearing;

(d)    The Applicant is more or less acting in person;

(e)     The financial position of the Applicant;

(f)      No substantial costs have been incurred.

47.  The Secretary for Justice also expressed agreement with the provisional views of the Chief Judge.  But one must not put the Bar in the same position as the Secretary for Justice.  First, the Bar has taken up the primary task once issues relating to the fit and proper person criterion were raised.  The Bar has incurred much more costs than the Secretary for Justice in the matter.  Second, the Bar does not receive any funding from the Government and it has to provide for the costs of this litigation on its own resources.  

48.  On 30 January, the Applicant wrote to solicitors for the Bar stating his agreement with the provisional views of the Chief Judge and that there should be no order as to costs.

49.  On 4 February, the Applicant wrote to the Bar Chairman and Secretary and the Bar Council explaining about his personal financial circumstances.  In a nutshell, due to his personal situation, he said he had “forfeited” his application for admission as a barrister and he had no means to pay any costs.

50.  At the hearing, the Applicant informed the court that he is currently living on the support of his parents and he is unemployed.  If a costs order is made against him, he has no means to pay for the same.

The disposal of the application for admission and the dispute on costs

51.  As I said at the outset of the hearing, the Notice did not have the effect of disposing the application for admission. This is not a matter falling within the scope of Order 21 Rule 2 and it could not be withdrawn or discontinued without leave.  With the agreement of the parties, I treat the Notice as an application for leave to discontinue.

52.  There is no dispute that leave should be granted for discontinuance given that the Applicant no longer wishes to pursue his application for admission.  The only question is what terms the court should impose by way of costs order.

53.  Under Order 21 Rule 3, the court has a discretion in this respect.  Though the starting point is that the party who seeks to discontinue should pay costs, the court may order otherwise if it is appropriate to do so in the circumstances of the case.

54.  In this instance, the Bar sought costs against the Applicant on the basis that he has been acting in such a way that occasioned substantial costs being incurred by the Bar beyond those usually incurred in the Bar’s discharge of its public duty in admission proceedings.  Notwithstanding the non-acceptance of the offer of 28 January by the Applicant, Mr Fung SC told the court that the Bar is prepared to ask for $50,000 plus the costs of this hearing, viz. $24,000.  Thus, the total is $74,000.

55.  Mr Fung also told the court that the Bar seeks costs in this case as a matter of principle.  If a costs order is made, whether the Bar would enforce such costs order in light of the personal circumstances of the Applicant is another matter. That would be a matter which the Bar will give a separate consideration.

56.  The Applicant resisted the Bar’s application for costs.  

Nature of the proceedings and the court’s power to award costs

57.  Admission proceedings are not ordinary adversarial litigation. There is a strong element of public interest in this type of proceedings. The point was made by the High Court of Australia in Wentworth v New South Wales Bar Association [1992] 176 CLR 239 at p.250-1,

“… disciplinary and admission proceedings are alike in that they are not ordinary legal proceedings. Admission proceedings are not directed to the resolution of some contest as to the private rights of disputing parties, as is usually the case with civil proceedings. … Disciplinary proceedings and admission proceedings are ‘sui generis’. Disciplinary proceedings have been described as proceedings concerned with the protection of the public. And it has been said that, because they have the protection of the public as one of their primary objects, they cannot necessarily be determined on the same basis as adversarial proceedings. That is also true of admission proceedings… In any event, the right to practise in the courts is such that, on an application for admission, the court concerned must ensure, so far as possible, that the public is protected from those who are not properly qualified and … from those who are not ‘suitable for admission’. …”

58.  Given the importance of the “fit and proper person” criterion in the context of admission proceedings, the Bar plays an important role in assisting the court to scrutinize whether an applicant satisfies such criterion.  Under the scheme of the Qualification Rules and the Admission Rules, though the ultimate decision rested upon the court, an applicant has to obtain the certificate of qualification for admission from the Bar before he could make an application for admission.  Thus, the Bar owes a duty to the court as well as the society as a whole when it issues a certificate in respect of an applicant.  In cases of doubt, the Bar must be allowed to raise queries and seek further information to satisfy itself as to fitness and the probity of an applicant.  The Bar must also be allowed to place before the court the relevant information in this respect even after a certificate has been issued if such information comes to light later.  In so doing, the Bar is discharging its public duty.  It would be wholly wrong for an applicant to adopt an adversarial approach when the Bar raises queries to his application based on the “fit and proper person” criterion.  The proper attitude of an applicant facing with such requests from the Bar is to respond to such requests co-operatively with full and frank disclosure.

59.  Whilst the Secretary for Justice also plays a part in scrutinizing the fitness and probity of an applicant, the Bar bears a heavier responsibility because it is the statutory authority for issuing a certificate of qualification for admission.  This is reflected in what happened in the present case: after the initial alert raised by the Secretary for Justice, the Bar has undertaken the role of the primary investigator. It is also appropriate for the Bar to play the primary role because it is in a better position to take up the matter with the pupil masters of an applicant.  As mentioned, the pupil masters owe the public as well as the Bar a duty to certify on the fitness of a pupil conscientiously.  The responsibility of the Bar as to the suitability of persons practising as barristers is also reflected in the statutory role played by the Bar in disciplinary proceedings.

60.  Unlike the Secretary for Justice, the Bar does not receive any public funding for the performance of its function in the admission process. Thus, unless an order for costs is made against a party, the Bar would have to absorb its own costs arising out of the proceedings including the costs of putting relevant information before the court in a doubtful application.  Mr Fung SC has cited several overseas authorities showing that there is nothing wrong in principle for such a costs order to be made: Re S [1985] VR 343; Singh v Auckland District Law Society [2002] 3 NZLR 392.

61.  In Ex p Lenehan [1949] 77 CLR 403, the High Court of Australia awarded costs to be paid by a successful appellant to the Law Institute of New South Wales even though the appeal was allowed and the appellant was held to be a fit and proper person to be admitted as a solicitor.  At p.425, in the judgment of Latham CJ, Dixon J and Williams J, it was said,

“The Incorporated Law Institute of New South Wales has taken part in these proceedings for the purpose of assisting the courts in elucidating the facts and applying appropriate principles in the decision upon the appellant’s application. … it would not be right to require the Institute to bear the cost of performing this duty to the public as well as to the legal profession. …”

62.  To the credit of the Hong Kong Bar, as it will be discussed further below, it is not taking the stance that Hong Kong should follow the same approach.  The Bar is prepared to bear the usual costs arising from the protection of public interest.  If I may say so, it is a very respectable and laudable stance to take.

63.  In a sense, the Bar is also doing itself a service (in terms of maintaining the credibility and the reputation of the Bar as a whole) in the performance of such duty.  However, this is incidental to the performance of its public duty.  The legislature recognizes that there are cases where the court should order costs in admission proceedings.  Thus, it is provided under s3(2) of the Admission Rules,

“The Court … upon being satisfied that the applicant is eligible … may order the applicant be admitted … or, if ... not so satisfied, may dismiss the application upon such terms as regards costs …”

64.  It has been held the effect of that section is that the court may order costs against an unsuccessful applicant in admission proceedings whilst it may not order costs against the Bar in favour of a successful applicant: see Re Englehart QC HCMP 2758/95, 22 April 1996; Re Potts QC HCMP 5047/2001, 19 Dec 2001; Clark v The Bar Council [2011] 3 HKLRD 112.

65.  I am satisfied that in admission proceedings the court does have the power to order costs against an applicant in favour of the Bar as a matter of jurisdiction.  The real issue is whether such power should be exercised as a matter of discretion in the present case.

The principles governing the exercise of discretion as to costs in local admission proceedings

66.  Though the starting point, as I have said above, is that the party who discontinued his action should pay the costs of the other side, the court has an unfettered discretion to order otherwise when the circumstances warrant.

67.  Though admission proceedings are sui generis, I believe Order 62 Rule 5 is relevant in terms of the matters that the court should take into account in the exercise of its discretion. In the present context, amongst the matters set out in Order 62 Rule 5(1), the most relevant ones are (aa) the underlying objectives in Order 1A and (e) the conduct of the parties.

68.  As far as conduct is concerned, Rule 5(2) says,

“(2) For the purpose of paragraph (1)(e), the conduct of the parties includes-

(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d)   conduct before, as well as during, the proceedings. (L.N. 152 of 2008)”

69.  I agree with Mr Fung that there is a material distinction between admission proceedings for local barrister and those for overseas barrister.  In the latter kind of case, the public interest involved is not about the suitability of the person to be admitted to practise as a barrister. Rather the public interest is to strike a proper balance between admitting overseas talent to argue a particular case in Hong Kong (and in so doing contributing to the development of law in Hong Kong) and maintaining a strong and healthy local Bar.  In the former case, the public interest lies in ensuring that only suitable persons are admitted to the local Bar practising generally in Hong Kong.

70.  Therefore, the practice of the Bar in not seeking costs in overseas admission cases cannot automatically be applied to local admission proceedings.

71.  Having said so, Mr Fung informed the court it is the stance of the Bar that even in contested local admission cases, the Bar would not seek costs if such costs were within those usually incurred in the protection of public interest in a contested setting.  In other words, the Bar accepted that insofar as the costs incurred falls within what the Bar would have usually incurred in the protection of public interest, such costs would be absorbed by the Bar.  But there is a practical issue: how does the court decide whether an item of costs is within those usually incurred in the protection of public interest.

72.  Mr Fung cannot give me a more concrete formulation.  In my judgment, the answer lies in Order 62 Rules 5 and 7.  I have already referred to Rule 5.  Rule 7 gives the court the power to order costs in respect of any thing done or omission made “improperly or unnecessarily”.  Rule 7(2) further sets out the matters that the court should have regarded to for the purpose of Rule 7(1). The matters are,

“(2) Without prejudice to the generality of paragraph (1), the Court shall for the purpose of that paragraph have regard in particular to the following matters, that is to say-

(aa) the underlying objectives set out in Order 1A, rule 1; (L.N. 152 of 2008)

(a) the omission to do any thing the doing of which would have been calculated to save costs;

(b) the doing of any thing calculated to occasion, or in a manner or at a time calculated to occasion, unnecessary costs;

(c) any unnecessary delay in the proceedings.”

73.  It is also common ground that the nature of proceedings and role of the Bar in these proceedings must be relevant factors.  Taking these into account, and having regard to the stance of the Bar and these statutory provisions, I am of the view that I should approach the present application by asking whether the Applicant did any thing or made any omission improperly or unnecessarily.  In principle, the court should also have regard to Order 62 Rule 5, in particular the conduct set out in Rule 5(2).  However, on the facts of the present case, given the arguments advanced before me, I do not think the application of Rule 5 would lead to a different result from the application of Rule 7. 

74.  I think this approach is consistent with the stance of the Bar. Bearing in mind the usual contingency in contested proceedings, it often happens that there were excessive display of adversarial language and tactics in correspondence as well as forensic steps taken.  In the overall scheme of Order 62, the line is drawn by Rule 7 by which the court will sanction such excesses by a costs order.  Rule 5(2) is also relevant in the overall assessment of the circumstances. 

75.  Though Mr Fung hesitated to bind the Bar in relation to future cases, I understand he was happy to adopt the approach by reference to Order 62 Rule 7 in the present case.

Exercise of discretion in the present case

76.  Mr Fung referred to four aspects which the Bar relied upon to contend that the Applicant should bear part of the costs of the Bar.  The first one is that the Applicant had adopted an unhelpful and uncooperative attitude in his response to the Bar’s request for information.  Specifically, counsel referred to the correspondence between 7 September and 17 September.

77.  I have read such correspondence with care.  It is correct that the Applicant could have responded in a more forthcoming manner.  The way he replied demonstrates he did not fully appreciate the role of the Bar in these proceedings.  Faced with such requests, avoidance and assertions based on burden of proof were not conducive to the assessment of the Applicant’s suitability to be admitted as a barrister.  It is not for the Bar to prove that he is not suitable.  It is for him to satisfy the Bar and the court that he is suitable.  The Applicant had obviously lost sight of this.

78.  To be fair to the Applicant, apart from such unhelpful stance, he did make some points of substance in the correspondence, e.g. the reference to the certifications by his three pupil masters and the updated report of his condition.  Whether those points could further his cause at the end of the day is a matter of judgment.  But I would not characterize them as frivolous and vexatious.

79.  I also have some reservations about the intimation by the solicitors for the Bar in the letter of 15 September as to the withdrawal of the Certificate.  As we now know, the Bar Council did not meet to resolve upon the revocation of the Certificate until 20 September.  The solicitors should have been more circumscribed on 15 September in communicating to the Applicant the intention of the Bar to consider the revocation. Further, as I observed at the hearing, there might be an issue on procedural fairness in that the Bar did not give any notice to the Applicant about the revocation proceedings.

80.  I am not saying that the Bar had acted wrongly. I do not regard the revocation of the Certificate as critical.  Even without such revocation, it is in my view perfectly legitimate and proper for the Bar to bring to the attention of the court of any relevant information on the issue of “fit and proper person” criterion which the Bar did not know at the time of the issue of the Certificate.  The Bar can also inform the court that it is considering the possibility of revocation.

81.  What I wish to point out is that allowance has to be given for imperfections.  The Applicant reacted to the letter of 15 September by challenging in a letter of 17 September (from his solicitors) the authority of the solicitors to assert that a decision had been made to withdraw the Certificate.  Though he might have over-reacted by questioning the authority of the solicitor to represent the Bar, he did point out that no written notice had been given to him from the Bar about the revocation.  He also advanced arguments based on the training he had undergone during his pupillage including the Pupils ALE Programmes and the certifications by his pupil masters.

82.  He further explained in a letter of 18 September the reason for his belief that no Bar Council meeting had yet been held concerning the revocation by reference to the schedule of Bar Council meetings set out in a Bar circular.  In that respect, he was correct as a matter of fact.  Thus, I do not think his challenge to the assertion of revocation was made without any basis.

83.  To his credit, shortly after the Applicant received the letter of 21 September from the Bar informing him of the revocation, he conceded on 26 September that he could only proceed with his application after persuading the Bar (with further information from him) that he was a fit and proper person.  Thus his request for the adjournment of his Notice of Motion pending the result of the review.  That was a sensible course and the matter was adjourned accordingly.

84.  I do not overlook other correspondence during this period and no doubt the Applicant did advance some bad points in trying to put forward his case.  However, on the whole, bearing in mind his experience and lack of support, I do not consider he had done any thing or made any omission so improperly or unnecessarily that a costs sanction should be imposed against him under the criteria of Order 62 Rule 7.  No doubt the Applicant was acting unwisely in handling the queries from the Bar. As illustrated by his concession on 26 September, with the benefit of hindsight, he would probably have acted differently had he been given the chance to deal with the same situation again.  There are some valid criticisms by the Bar with regard to his arguments advanced in the correspondence.  But one must give allowance for inexperience and the difficult situation facing the Applicant in early September.  One should understand we are dealing with an applicant who had no doubt been working very hard over the years in his study and training to get to the stage of having satisfied the other requirements for admission.  Viewed in this light, though some of his responses may not be valid as a matter of law, they are quite understandable.

85.  I can understand why the Bar finds his attitude to be uncooperative and unhelpful.  But I do not think he was positively obstructive.  He did provide some documents to the Bar. Actually, he had produced all the documents he had.  Though such documents were not sufficient to persuade the Bar, I do not regard his response as improper. Nor do I regard it as causing substantial costs to be incurred unnecessarily over and above those have to be incurred in usual contested litigation.

86.  I am not saying that his response could assist him in terms of satisfying the test of fit and proper person.  Plainly this could not in light of what I said above as to the importance of this criterion and the duty of the court and the Bar to protect public interest.  But on the costs aspect, insofar as the Bar said that the Applicant had caused the Bar to incur additional costs over and above what the Bar would usually incur in the defending the public interest, I respectfully disagree.

87.  Mr Fung’s second head of complaint was about the challenge mounted by the Applicant with regard to the authority of the solicitor.  I have already explained why I do not consider the complaint of the Applicant as utterly without any basis. 

88.  The third head of complaint was about the unfounded criticisms made by the Applicant in the letter of 19 September in respect of the letter dated 18 September from the solicitors for the Bar to Pang J.  I agree that the Bar acted quite properly in the circumstances and the letter was not written with a view to prejudice the judge behind the back of the Applicant.  The criticisms levelled by the Applicant have no merit in law. The materials produced to the court were not covered by legal professional privilege.  Since they were information relevant to an issue in the proceedings, the Bar did not act in breach of any data protection principle. There is also no question of the Bar’s letter constituted any contempt of court.  The Bar only alerted the court as to the contentious nature of the proceedings and requested for directions to be given so that the issues could be debated in court with full opportunity to be given to the Applicant to present his case and his arguments.

89.  I was told by Mr Fung that the Bar had to incur costs to respond to these criticisms and counsel had been involved.  I confess it is a borderline case but on reflection I do not think I should order costs against the Applicant in respect of this letter.  Perhaps unfortunately, it is a common occurrence that bad points were made in correspondence in the course of litigations.  It is rare that the court will deem it appropriate to visit such mistakes alone with costs consequences.  On the facts of the present case, I do not think I should single out this aspect of the course of correspondence for an adverse costs order against the Applicant.

90.  The fourth aspect of Mr Fung’s attack is the prolongation of the matter after the abandonment of review by the Applicant.  Though the Applicant can be criticized for not taking any initiative to conclude his application for admission, it is fair to observe that the disagreement between him and the Bar after the expiry of the review period was primarily the question of costs.  Based on my above analysis, the court is not minded to order any costs against the Applicant in respect of what happened prior to 26 September.  Though the Bar had to incur extra costs in respect of the Summons, a substantial part of it has to be the costs related to the argument on costs.  Looking the matter in the round and having regard to the approach for awarding costs in proceedings of this nature discussed above, I do not think substantial costs had been incurred by the Bar after 26 September over and above what it would have to incur usually in the protection of public interest.  I do not think the conduct of the Applicant between 26 September and 9 January warrants any sanction under Order 62 Rule 7.

91.  I shall now turn briefly to the provisional views of the Chief Judge.  I have already dealt with the comparison with the practice in admission of overseas counsel and the court’s jurisdiction and approach to costs in contested admission of local counsel.  I have also dealt with the role of the Bar.  I endorse the Bar’s suggested approach to costs in admission proceedings regarding local counsel and develop it by reference to Order 62 Rules 5 and 7.

92.  I have taken into account of the Notice in concluding that the main dispute between the Applicant and the Bar was costs after the expiry of the review period.

93.  As regards the other matters mentioned in the provisional views, I do not think they have much bearing on my conclusions. Of course, the Chief Judge did not have the benefit of the arguments of the parties when such provisional views were expressed and the issues had yet to be identified by them.

Order

94.  I grant leave to the Applicant to withdraw the Notice of Motion and I make no order on the Summons.  I also make no order as to costs in respect of the proceedings, including the costs of the hearing on 8 February.

95.  I understand the Bar proceeds with its application for costs as a matter of principle.  I was told that this is the first case in which the Bar appeared in contested local admission proceedings.  There are indeed important points of principle and practice at stake with regard to proceedings of this nature. I have tried to set out those points in this judgment, not only for the benefit of the parties but also for future guidance.  As I have observed, it is important to the rule of law that the high standard of the local Bar should be maintained.  One facet in the maintenance of the standard is the importance attached by the Bar to its role in ensuring that fit and proper persons are admitted as barristers.  The court and members of the public in Hong Kong are indebted to the Bar for fulfilling that role in a conscientious manner.

96.  Though the Bar did not get its costs in this application, it does not mean other applicants could adopt the same unhelpful and uncooperative attitude as the Applicant.  They should bear in mind what has been said in this judgment with regard to the proper approach in dealing with enquiries from the Bar and there will no longer be any excuse for not having the benefit of any guidance in terms of local jurisprudence.  If necessary, this will be taken into account in assessing whether it is a case coming within Order 62 Rule 7.

97.  Lastly, I thank Mr Fung and Ms Ling for their valuable assistance. I also wish the Applicant well in whatever career he pursues in the future.

  

	(M H Lam)
	Justice of Appeal

Applicant in person.

Mr Eugene Fung, SC, Ms Ebony Ling, instructed by Kwok Ng & Chan, for   the Hong Kong Bar Association.

Attendance of the Secretary for Justice be excused.