Council of the Law Society of Hong Kong v Christopher Paul Erving
Court of First Instance
No. 2402 of 2014
Deputy Judge Le Pichon
Legal Profession
6 February 2015

Intervention by Law Society into practice of firm – Ordinance did not provide mechanism to challenge validity of intervention

Pursuant to s. 26A(1)(c) of the Legal Practitioners Ordinance (Cap.159) (the “LPO”), the Council of the Law Society (the “Council”) resolved orally inter alia to intervene in the practice of the firm of D, a solicitor (the “Firm”); and that client accounts and office accounts be vested in the Council under Sch. 2 (the “Intervention”). The Council’s then Secretary General recorded the resolution; and issued a document certifying that the meeting took place on the date stated; the Council was satisfied of D’s non-compliance with specified rules of the Solicitors’ Accounts Rules (Cap. 159F, Sub. Leg.) made by virtue of s. 73(1) of the LPO; and set out 10 resolutions which were passed at the meeting (the “Document”). The Secretary General informed D by letter with the Document enclosed as required by s. 26A of the Ordinance, that inter alia the powers conferred by Sch. 2 were exercisable; and that under s. 2(3) of Sch. 2 of the LPO, D was prohibited from paying out any monies held by him or the Firm in connection with his practice. The Council sought directions for the distribution of money in the Firm’s client and office accounts and disposal of its old files and accounting documents. D disputed the validity of the Intervention, arguing that the powers conferred by s. 2 of Sch. 2 of the LPO were conditional on compliance with the two requirements in s. 2(3), namely service on D of a certified copy of the Council’s resolution and a notice prohibiting the payment out of monies.

Held, granting the directions sought, that:

  • D’s challenge was wholly misconceived and devoid of merit. The Intervention was entirely justified and the directions reasonable.
  • The LPO including Sch. 2 does not provide any mechanism to challenge the validity of an intervention. Non-compliance with s. 2(3) of Sch. 2 of the LPO could not invalidate an intervention. Section 2(3) of Sch. 2 does not state the consequences of non-compliance.
  • A resolution was nothing more than a decision made or taken by the relevant person/entity relating to a particular matter. There was nothing in the LPO which required the Council’s resolution to be in writing. Here, the Document was a copy of the resolutions passed by the Council and had been certified by the Secretary General. Thus, the Council had complied with the requirements of s.2(3).
  • Even if the document did not constitute a certified copy of the resolution, it did not render the Intervention invalid. Once the requirements of s. 26A(1) and (2) had been met, the Sch. 2 powers were engaged and became exercisable.
  • If there had been any non-compliance with the twin requirements of s. 2(3), D’s only recourse would have been to apply to the Court under s. 2(4) within eight days of the notice being served for the Council to withdraw it. However, “withdrawal” would not invalidate the Intervention. Further, D had made no such application. His challenge came more than 2¾ years out of time and he had no prospect of obtaining a time extension.

Thomson Reuters – Sweet & Maxwell are the publishers of the Authorised Hong Kong Law Reports & Digest ("HKLRD") and the Authorised Hong Kong Court of Final Appeal Reports ("HKCFAR"), and providers of Westlaw HK (www.sweetandmaxwell.com.hk / www.westlaw.com.hk).