Having "Substantial Experience in the Law" to Practise as a Sole Proprietor or in Partnership

In Kim Min Ju v Law Society of Hong Kong [2020] HKCFI 2367, the Chief Judge of the High Court affirmed the respondent's decision to reject an application for a waiver pursuant to s. 6(6A) of the Legal Practitioners Ordinance (Cap. 159). In short, a solicitor shall not practise on his own account or in partnership unless he has been employed in the practice of a solicitor in Hong Kong for at least two years (s. 6(6)). The respondent's Council may waive the "two-year requirement" (or reduce the period of two years) if it considers that an applicant has acquired "substantial experience in the law" (s.6(6A)).

Having rejected the application for a waiver of the two-year requirement, the applicant appealed to the Chief Judge pursuant to s. 6(10) of the Ordinance. Two main issues arose for determination. First, the meaning of "substantial experience in the law" for the purpose of s. 6(6A) – an issue of statutory construction. Second, whether the respondent had erred in its assessment that the applicant did not have the requisite "substantial experience in the law" and, therefore, the two-year requirement could not be waived – an issue that required the court to determine whether rejection of the application was erroneous.

In passing, it is worth noting that the applicant had formerly been a barrister who had practised as such for about seven years. Having applied to remove his name from the roll of barristers in order to qualify as a solicitor, the applicant had worked as a legal manager in a law firm between April 2018 to January 2019. He was admitted as a solicitor on 17 November 2018 and issued with his first practising certificate on 21 January 2019. About nine months after having commenced practice, the applicant applied for a waiver of the two-year requirement. That application was rejected by the respondent's Consents Committee, whose decision was upheld by its Standing Committee on Compliance.

The gist of the respondent's position appears to have been that the applicant did not have sufficient experience in the law as a solicitor to qualify for a waiver of the two-year requirement.

With respect to the two issues for determination, the court held as follows. First, in considering whether to grant a waiver of the two-year requirement the purpose was to determine whether an applicant had "substantial experience in the law" so that he or she could practise as a solicitor without supervision. Therefore, with this purpose in mind, "substantial experience in the law" meant substantial experience in the law as a solicitor. Explaining the leading judgment in Re Alexander Adamovich, A Solicitor [1983] HKLR 270 (Huggins VP), the court stated (at para. 21):

"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". (emphasis added)

Second, the court's role in dealing with statutory appeals pursuant to s. 6(10) of the Ordinance is to determine whether the respondent's decision (to reject an application for a waiver of the two-year requirement) was one that could not reasonably be arrived at – this was not tantamount to a test of irrationality as applied to judicial review. Based on the evidence, the court considered that the respondent had been justified in concluding that while the applicant had a wide range of practice and experience, as a solicitor he did not meet the threshold to come within s. 6(6A) of the Ordinance.

The judgment of the court is noteworthy and important.

  • Based on the controlling case law, to have the requisite substantial experience for the purpose of s. 6(6A) of the Ordinance an applicant must have acquired knowledge of both – (i) the substantive law and (ii) the legal practice of a solicitor as he or she might be likely to have acquired during two years of practice as a solicitor (para. 22 of the judgment).
  • As the relevant regulatory body with the requisite experience and expertise, the respondent (including, its Council and committees) is in the best position to determine whether an applicant qualifies for a waiver of the two-year requirement. Given the nature of the court's role on an appeal, an applicant faces a significant hurdle – for example, he or she would have to show that rejection of an application for waiver by the respondent's Consents Committee was a decision that could not reasonably have been reached.
  • The judgment includes an interesting overview of the role of the Consents Committee and the Standing Committee on Compliance in such matters.
  • Statutory appeals like these turn on their facts. The few precedents that there are set out the general legal principles but each application for a waiver (pursuant to s. 6(6A) of the Ordinance) is different. If the outcome in the case (thus far) is a disappointment for the applicant he might take some comfort from having contributed to the common law of Hong Kong.

– Antony Sassi, Partner, and David Smyth, Senior Consultant, RPC

Editorial Note: The full decision can be found on P. 52 of this issue.

Jurisdictions: 

Partner, RPC

Senior Consultant and Accredited Mediator, RPC