Ng Wing Hung v Council of The Law Society of Hong Kong

Coleman J
11, 19 February 2021

Facts

X, the sole equity partner and managing partner of a firm of solicitors, applied for leave to apply for judicial review of four decisions by the Council of The Law Society. The first decision was the decision to exercise its powers to intervene in the practice of the firm (the Intervention Decision) pursuant to s.26A(1)(a)(ii) and s.26A(1)(c) of the Legal Practitioners Ordinance (Cap.159) (the LPO). The letter notifying X of the Intervention Decision drew his attention to ss.2(4) and 7(8) of Sch.2 of the LPO which respectively permits him to make an application to the Court within an eight-day period for an order to withdraw the intervention notice and for an order that the documents taken by the Council be delivered elsewhere. X made no such application. The other three decisions were decisions to reject or ignore X’s proposals to deal with the Council’s concerns in a less apparently draconian way (the 2nd, 3rd and 4th Decisions).

Held, refusing leave to apply for judicial review of all four decisions, that:

Exclusive statutory scheme in Sch.2

1) Schedule 2 provided a complete statutory scheme or code, a specific and exclusive mechanism for judicial consideration of intervention decisions, permitting the Court a wide range of orders. This judicial process included the power to declare the validity or invalidity of the decisions to exercise any of the powers under Sch.2. The judicial process was at least as wide, and the potential range of orders probably wider than those applicable in an application for judicial review under O.53 of the Rules of the High Court (Cap.4A, Sub.Leg.)

2) Dismissing X’s leave application did not infringe his constitutional right of access to the courts, because X’s right of access was expressly built into the LPO scheme relating to intervention. X was reminded of that right when he was notified of the Intervention Decision, and must be taken to have chosen not to exercise it. X did not give any good reason as to why he did not exercise his right by making an application under either s.2(4) of s.7(8) of Sch.2 (Miller v Law Society [2002] 4 All ER 312 applied).

3) While the LPO scheme afforded to the person served with the intervention notice the considerable benefit of applying to the Court as of right without the need to seek leave, it provided for an eight-day period within which this judicial process of consideration could be sought. There was no mechanism for any time extension. To permit an alternative method of judicial intervention which may be as late as the “long-stop” period under the judicial review mechanism, would improperly interfere with the clear legislative intent for speed, certainty and finality as regards the legal status of an intervention.

4) This proper interpretation of the statutory scheme was not affected by the fact that the intervention also affected interests of the firm’s clients (Tse Wai Chun Paul v Solicitors Disciplinary Tribunal (HCAL 636/2001, [2001] HKEC 1012) distinguished).

Scope of Sch.2

5) The statutory scheme excluded any challenge made outside the provisions of the scheme by the person served with the notice or notices pursuant to ss.2(3) and 7(1) of Sch.2. It prevented the solicitor served with the notice from seeking judicial interference with the intervention decision and the triggered powers relating to money and documents, except by the right of access to the Court of First Instance provided for as part and parcel of that scheme. Thus, the statutory scheme did not necessarily act to exclude other persons from seeking assistance from the Court as regards an intervention in a solicitor’s practice. (See paras.68–69.)

6) It was at least arguable that The Law Society’s decisions made during the course of the intervention could be subject to review on public law grounds. The particular exercise of the statutory powers triggered by an intervention in a solicitor’s practice was unlikely to be exercised, or all exercised, within the period of eight days following giving notice of intervention (Miller v The Law Society [2002] 4 All ER 312, Re Ahmed & Co (2005-6) 8 ITELR 779 considered).

Alternative remedy

7) The LPO established the exclusive self-contained remedy. There was no residual discretion to entertain the application for leave to apply for judicial review. (See paras.74–75.)

The 2nd, 3rd and 4th Decisions

8) The 2nd, 3rd and 4th Decisions amounted to little more than the failure of The Law Society to accede to X’s request in effect to reverse the Intervention Decision. Even assuming those failures amounted to “decisions”, it was not an exercise of the powers under Sch.2 as might be amenable to review on public law grounds. X was in effect asking the Council to reverse or withdraw its Intervention Decision, when he could have and should have asked the Court to order that under the statutory scheme.

Application

This was an application for leave to apply for judicial review against four decisions made by the Council of The Law Society in respect of its intervention in a solicitors’ firm.

Jurisdictions