LEGAL PRACTITIONERS ORDINANCE
Title
LEGAL PRACTITIONERS ORDINANCE
Description
LAWS OF HONG KONG
LEGAL PRACTITIONERS ORDINANCE
CHAPTER 159
CHAPTER 159
LEGAL PRACTITIONERS ORDINANCE
ARRANGEMENT OF SECTIONS
Section.................................... Page
PART I
SHORT TITLE AND INTERPRETATION
1. Short title ........................................................ 5
2. Interpretation ..................................................... 5
PART II
SOLICITORS
3. Power of Court to admit solicitors 7
4. Qualifications for admission 9
5. Roll of solicitors 9
6. Practising certificates-solicitors 10
7. Qualifications for practising as solicitor ............. 11
7A.Solicitors may exercise functions of commissioner for oaths 12
8.Accountant's reports 12
9.Appointment of Disciplinary Committee .......................................... 13
10.Powers of a Disciplinary Committee 13
11.Ancillary powers of a Disciplinary Committee .......................................... 14
12.Findings of a Disciplinary Committee is
13.Appeal and saying 16
14.Applications to Court 16
is.Application with respect to allegations 17
16.Restrictions on powers to strike names off roll .......................................... 17
17.Council may inspect proceedings in bankruptcy 17
18.Winding-up, etc. of business of solicitors struck off or suspended 18
19.Removal from roll 18
20.Restrictions on taking articled clerks ............. 18
21.Power to prohibit taking articled clerks 19
22.Power to discharge articles in certain cases 20
23.Discharge of articles in cases of bankruptcy, etc. 20
24.Society's general right of audience 20
25.Expenses of Disciplinary Committee and of Society 21
26.Statutory provisions to prevail over Society's articles 21
26AA. Abolition of enrolled student status 21
Section Page
PART IIA
CONTROL OF SOLICITORS PROPERTY IN
CERTAIN CASES
26A.Power of Council to deal with property of certain solicitors 22
26B.Solicitors guilty of undue delay in certain matters 23
26C.Control of deceased solicitor's practice in certain circumstances 23
26D.On death of solicitor practising on his own account Council to deal with
banking accounts of practice 24
PART 111
BARRISTERS
27. Power of Court to admit barristers 24
27A. Additional power of Court to admit barristers 26
28. Formalities for admission of a barrister 26
29. Roll of barristers 27
30. Practising certificates-barristers 27
31. Qualifications for practising as barrister 28
32. Power of Court to strike off or suspend barrister 28
33. Bar Committee-general right of audience 29
34. Establishment of Committee of Inquiry 29
35. Function of Committee of Inquiry 29
36. Powers of Committee of Inquiry 30
37. Powers of the Court of Appeal 31
38. Variation of order of the Court of Appeal 31
39. Expenses of Committee of Inquiry and of Bar Committee 32
PART IV
NOTARIES PUBLIC
40. Registration of notaries public 33
41. Register of notaries public 33
42. Power of Court to strike off or suspend a notary public 33
43. Restoration of name of notary public 33
PART V
PRIVILEGES, RESTRICTIONS AND OFFENCES IN CONNECTION WITH PRACTISE
44. Penalty for unlawfully practising as a barrister or notary public 33
Section Page
45. Unqualified person not to act as solicitor 34
46. Penalty for pretending to be a solicitor 34
47. Unqualified person not to prepare certain instruments, etc . 35
48. Unqualified person not to act in preparation of papers for probate, etc. 35
49. Solicitor not to act as agent for unqualified person 36
50. No costs for unqualified person 36
50A. Recovery of moneys in certain cases 36
51. Application of penal provisions to body corporate 36
52. Solicitors not to commence or defend actions while in prison 37
53. Employment by solicitors of persons struck off or suspended 37
54. Penalty on failure to disclose fact of having been struck off, etc. 38
55. Time limit for commencement of certain proceedings 38
PART VI
REMUNERATION OF SOLICITORS
Non-contentious Business
56. Agreement for remuneration for non-contentious business 39
57. Remuneration of a solicitor who is a mortgagees 39
Contentious Business
58. Power to make agreements 40
59. Mistellaneous provisions ......................................................... 40
60........................................Enforcement of agreements in respect of contentious business 41
61........................................Death, incapability, or change of solicitor, etc . 42
62........................Agreement excludes taxation ...............................
..........................43
63........................................Form of bill of costs for contentious business 43
General Provisions regarding Remuneration
64.......................General provisions as to remuneration
................................................ 44
65.......................Power of Court to order delivery of bill, etc . ................................ 44
66.......................Action to recover costs ..... 45
67.......................................Taxation of bills on application of party chargeable on solicitor 46
68.....................Taxation on application of third parties .......................
......................................47
Section.................................... Page
69. General provisions as to taxations ....48
70. Charging orders .......................48
71. Revival of order for payment of costs .48
PART VII
ROLES
72.......................................Power of Chief Justice to make rules 49
72A......................................Rules for barristers in Hong Kong 50
72B......................................Legislative Council may amend Schedule 1 50
73.......................................Power of the Council to make rules 51
73A......................................Indemnity rules 52
74.......................................Costs Committee 54
PART VIII
GENERAL
74A.......................................Advisory Committee on Legal Education 55
75........................................Saving 56
Schedule 1 . .............................56
Schedule 2. Property in the control or possession of certain solicitors and other
persons
.................................................................................................... 57
CHAPTER 159
LEGAL PRACTITIONERS
Tomake amended provision for the admission and registration of legal
practitioners and their employees, and of notaries public, and for purposes
connected therewith.
[1August 1964] L.N.107of.1974
Originally 16 of 1964 35 of 1966, 25 of 1968, 14 of 1970, 32 of 1972, 68 of 1973, 92 of 1975,
58 of 1976, 29 of 1977, 22 of 1979, L.N. 290 of 1979, 52 of 1980, 75 of 1980, L.N. 371 of
1980, 1 of 1981,14 of 1981, R. Ed. 1981, 79 of 1981,50 of 1982,80 of 1982,31 of 1987,
L.N. 153 of 1988, 46 of 1989
PART 1
SHORT TITLE AND
INTERPRETATION
1. Short title
This Ordinance may be cited as the Legal Practitioners Ordinance.
2. Interpretation
(1) In this Ordinance, unless the context otherwise requires-
,,accountant's report' means a report delivered in accordance with the provisions of
section 8; (Replaced 25 of 1968 s. 2)
,,articles' means any contract in writing, whether entered into before or after the
commencement of this Ordinance, whereby any person is bound to serve an
apprenticeship as clerk for the purpose of being admitted as a solicitor;
(Replaced 50 of 1982 s. 2)
'Bar Committee' means the Committee of the Hong Kong Bar Association;
'barrister' means a person who is enrolled as a barrister on the roll of barristers and
who, at the material time, is not suspended from practice;
'client' except in relation to non-contentious business, includes any person who as
principal or on behalf of another person retains or employs, or is about to retain
or employ, a solicitor, and any person who is or may be liable to pay a
solicitor's costs;
'Committee of Inquiry' means a Committee of Inquiry appointed under section 34;
'contentious business' includes any business done by a solicitor in any court,
whether as a solicitor or as an advocate;
'costs' includes fees, charges, disbursements, expenses and remuneration;
'Costs Committee' means the Costs Committee appointed under section 74;
'Council' means the council of the Society elected in accordance with the
provisions of its articles of association; (Added52of 1980s.2)
'Court means the High Court; (Amended 92 of 1975 s.59)
'Disciplinary Committee' means a Disciplinary Committee appointed by the Council
in accordance with the provisions of section 9; (Amended 52 of 1980s.2)
,,employee' includes a former employee; (Added 25 of 1968 s.2)
'non-contentious business' includes any business connected with sales,
purchases, leases, mortgages and other matters of conveyancing;
'notary public' means a person who is registered on the register of notaries public
and who, at the material time, is not suspended from practice;
'practising certificate' means
(a) a certificate issued by the Society under section 6; and
(b)a certificate issued by the Registrar under section 30; (Replaced 58
of 1976 s. 2)
'qualified person' means a person qualified for admission as a solicitor; (Added 50
of 1982 s. 2)
'register of notaries public' means the register kept by the Registrar in accordance
with the provisions of section 41;
'Registrar' means the Registrar of the Supreme Court and any deputy registrar or
assistant registrar of the Supreme Court;
'roll of solicitors' means the roll kept by the Registrar in accordance with the
provisions of section 5;
'roll of barristers' means the roll kept by the Registrar in accordance with the
provisions of section 29;
'Society' means The Law Society of Hong Kong; (Replaced 14 of 1970 s. 2)
,,solicitor' means a person who is enrolled on the roll of solicitors and who, at the
material time, is not suspended from practice;
'unqualified person' means a person who is not a solicitor.
(2) For the avoidance of doubt, it is hereby declared that any conduct of
an articled clerk or employee of a solicitor which would reasonably be regarded
as disgraceful, dishonourable or discreditable by a solicitor of good repute shall
be deemed misconduct. (Added 25of 1968s.2. Amended] of 1981 s.2)
(3) Any rules made under section 73(1)(d) or (f) shall, subject to sec
tion 73(3) and unless the context otherwise requires, apply to a qualified person
as they apply to a solicitor.(Added50 of 1982 s.2)
PART 11
SOLICITORS
3. Power of Court to admit solicitors
(1) The Court may, in such manner as may be prescribed by the Chief Justice,
admit as a solicitor of the Supreme Court of Hong Kong any person who is qualified
for admission in accordance with this Ordinance and who
(a) is a Commonwealth citizen; or (Amended 80 of 1982 s. 2)
(b) has been ordinarily resident in Hong Kong for a total period of
not less than 7 years. (Amended 58 of 1976s.3)
(IA) For the purposes of subsection (1), a person shall be treated as ordinarily
resident in any one year if he is present in Hong Kong for a period of not less than
180 days in that year. (Added 58 of 1976s.3)
(1AA) The Court shall not admit a person under section 4(1)(a)(ii) unless
(a) he has resided in Hong Kong for at least 3 months immediately
before his admission;
(b) he is a Hong Kong permanent resident as defined in the
Immigration Ordinance (Cap. 115); or
(c) he has been ordinarily resident in Hong Kong for at least 7 years.
(Added46 of 1989 s. 2)
(1AB) In addition to the powers conferred on it by subsection (1) and
notwithstanding section 4(1), but subject to subsection (1AE), the Court may, after
the Chief Justice has consulted the Attorney General and the Council, admit a
person as a solicitor of the Supreme Court of Hong Kong, in such manner as may be
prescribed by the Chief Justice, if
(a) the Court is satisfied that he
(i) has been admitted as a solicitor in a jurisdiction listed in
Schedule 1 or if there is no admission of solicitors in such
jurisdiction, as a legal practitioner in that jurisdiction;
(ii) has been employed for at least 7 years in the public service of
the Government as a legal officer;
(iii) has been so employed-
(A) for a period of at least 3 years; and
(B)either immediately or recently before the date of his
application for admission,
on work similar to that usually undertaken by a solicitor in Hong
Kong in the course of his practice;
(iv) intends, if admitted, to commence practice as a solicitor; and
(y) is a fit person to be a solicitor; and
(b)he has passed an examination in solicitor's accounts specified for the
purposes of this paragraph by the Council. (Added46 of 1989 s.2)
(1AC) Subsection (1AB)(b) shall not apply in any case where the Chief Justice,
after consultation with the Council, is satisfied that the applicant concemed has
previously passed an examination in solicitor's accounts.
(Added46 of 1989 s. 2)
(1AD) Notwithstanding subsection (1) and section 4(1), the Court may, in such
manner as may be prescribed by the Chief Justice, admit a person as a solicitor of
the Supreme Court of Hong Kong if the Court is satisfied that he
(a)is a teacher in a course leading to a Postgraduate Certificate in Laws
and is employed and has been employed for at least one year as a full
time law lecturer at the Department of Professional Legal Education of
the University of Hong Kong or at any other institution approved for
the purposes of this paragraph by the Chief Justice after consultation
with the Attorney General and the Council;
(b)has been admitted in a jurisdiction listed in Schedule 1 as a solicitor,
or if there is no admission of solicitors in such jurisdiction, as a legal
practitioner in that jurisdiction;
(c)has in that jurisdiction been engaged for at least 2 years in work that
would, if undertaken in Hong Kong, be similar to that usually
undertaken by a solicitor in Hong Kong in the course of his practice;
and
(d) is a fit person to be a solicitor. (Added46 of 1989 s. 2)
(1AE) The Court shall not admit under subsection (I AB) more than 10 persons
in any period of 12 months. (Added46of 1989s. 2)
(1AF) In this section 'legal officer' means
(a)a legal officer within the meaning of the Legal Officers Ordinance
(Cap. 87);
(b)a person appointed under section 3 of the Legal Aid Ordinance (Cap.
91); and
(c)any person deemed to be a legal officer for the purpose of the Legal
Officers Ordinance (Cap. 87), by virtue of section 2(3) of the Registrar
General (Establishment) Ordinance (Cap. 100). (Added46 of 1989 s. 2)
(IB) The Court may, when admitting a person as a solicitor, sit in chambers.
(Added 58 of 1976 s. 3)
(2) Every solicitor shall be an officer of the Court and shall be subject to the
jurisdiction thereof in accordance with the provisions of the Supreme Court
Ordinance (Cap. 4) and of this Ordinance.
(3) Subject to the provisions of this Ordinance, the Court or any judge thereof
may exercise the same jurisdiction in respect of any person admitted to
practise as a solicitor therein as may be exercised by the High Court, the Crown
Court and the Court of Appeal respectively, or any division or judge thereof, in
England, by virtue of section 50(2) of the Solicitors Act 1974 (1974 c. 47 U.K.),
in respect of any solicitor or attorney admitted to practise therein. (Amended
58 of 1976 s. 3)
4. Qualifications for admission
(1) No person shall be admitted as a solicitor unless the Court is
satisfied-
(a) either-
(i) that he has complied with such requirements as may be
prescribed by the Council with respect to service under
articles and to passing of examinations; or
(ii) upon such evidence as may be prescribed by the Council,
that he has been admitted as an attorney or solicitor in any
part of the United Kingdom and has neither been struck off
the rolls thereof nor is under suspension from practice as
such at the time of his application for admission under this
Ordinance; and
(b) that he is a fit person to be a solicitor.
(2) A person shall not he disqualified from admission as a solicitor by
reason only that-
(a)a solicitor whom he has served for the whole or such part of such
term of articled service as may be prescribed by the Council has
neglected or omitted to take out a practising certificate; or
(b)the name of the solicitor whom he has served for any period has
after the termination of that period been removed from or struck
off the roll of solicitors.
(Amended50 of 1982 s. 3)
[cf. 1957 c. 27 s. 3 U.K.]
5. Roll of solicitors
(1) The Registrar shall keep a roll of all solicitors admitted by the Court
under section 3 and shall have the custody of the roll of solicitors and of all
documents relating thereto and shall allow any person to inspect the roll during
office hours without payment.
(2) The Registrar, upon production of a certificate of admission signed by
the Chief Justice and upon payment to the Registrar and to the Society of such
fees as may be prescribed by the Chief Justice, shall enter on the roll of
solicitors the name of the person admitted.
(3) The Chief Justice may, if he thinks fit, at any time order the Registrar to
replace on the roll of solicitors the name of a solicitor whose name has been
removed or struck off the roll of solicitors.
[cf. 1957 c. 27 ss. 6, 7 8 U.K.]
6. Practising certificates-solicitors
(1) The Society, on application in writing by a solicitor in the month of
November in any year in such form as may be prescribed by the Council and on
payment of such fee as may be so prescribed, shall, subject to subsection (3), issue
to the applicant a practising certificate as a solicitor for the period of one calendar
year from 1 January next following the date of the application.
(IA) A practising certificate issued to a solicitor admitted under section 3(1AD)
is subject to the condition that the solicitor shall not practise on his own account or
in partnership. (Added46of 1989s. 3)
(2) A practising certificate issued under subsection (1) shall be in such form as
may be prescribed by the Council.
(3) A practising certificate shall not be issued under subsection (1) unless the
applicant has, where necessary, delivered to the Council an accountant's report
under section 8, complied with any indemnity rules made by the Council under
section 73A or is exempt from them and has paid to the Society the membership
subscription in respect of the year for which the practising certificate is to be issued.
(Amended 75 of 1980 s. 2)
(4) Notwithstanding subsection (1), the Society may, upon such conditions as
it thinks fit, permit an application for a practising certificate to be made under this
subsection at any time and upon such application may issue to the applicant a
practising certificate for any period not exceeding one calendar year and ending on
31 December in the year in which it is issued.
(5) Notwithstanding subsection (1), the Society may
(a)refuse to issue a practising certificate on such grounds as may be
prescribed by the Chief Justice; or
(b)issue a practising certificate to an applicant subject to such
conditions as may be prescribed by the Chief Justice.
(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. (Amended 22 of 1979s. 2; 46of 1989s. 3)
(6A) Notwithstanding subsection (6), if the Council considers that an applicant
has acquired substantial experience in the law, either in Hong Kong
or in the United Kingdom, over a considerable period of time the Council may reduce
the period of 2 years to a period of
(a) one year; or
(b)where immediately before his admission as a solicitor, the applicant
was working in the office of a solicitor in Hong Kong, one year less
one day for each day of the period he so worked, but the Council shall
not reduce the period of 2 years to less than 9 months. (Added46 of
1989 s. 3)
(7) Where the name of a solicitor is removed from or struck off the roll of
solicitors or where a receiving order in bankruptcy is in force against him, the
practising certificate of that solicitor shall automatically determine and in any such
case no part of the fee paid in respect thereof shall be repayable.
(8) The publication in the Gazette by the Society of a list of the names and
addresses of those solicitors who have obtained practising certificates for the period
stated therein shall, until the contrary is proved, be evidence that each person
named therein is a person qualified under section 7 to act as a solicitor and to whom
a practising certificate for the period stated in such list has been issued under this
section; and the absence from any such list of the name of any person shall, until the
contrary is proved, be evidence that such person is an unqualified person.
(9) Where the Society, in the exercise of the powers conferred on it under
subsection (5), refuses to issue a practising certificate or issues a certificate subject
to conditions, the applicant may appeal to the Chief Justice against the decision of
the Society within 1 month of being notified of it.
(10) 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 in the United Kingdom, over a considerable period of time, the
applicant may appeal to the Chief Justice against the decision of the Council within 1
month of being informed of that decision.
(11) On an appeal to the Chief Justice under subsection (9) or (10) he may
(a) affirm the decision of the Society or Council; or
(b)direct the Society to issue a practising certificate to the applicant free
from conditions or subject to such conditions as he thinks fit.
(Replaced 58 of 1976 s.4. Amended52 of 1980s.2)
7. Qualifications for practising as solicitor
No person shall be qualified to act as a solicitor unless-
(a) his name is for the time being on the roll of solicitors;
(b) he is not suspended from practice;
(c)he has in force a current practising certificate; and (Replaced`46 of
1989 s. 4)
(d)he is complying with any indemnity rules made by the Council under
section 73A or is exempt from them. (Added 75 of 1980 s.3)
[cf. 1975 c. 27 s. 1 U.K.]
7A. Solicitors may exercise functions
of commissioner for oaths
(1) For the purpose of administering and receiving an oath, affidavit or
affirmation any solicitor who is in practice in Hong Kong and who holds a current
practising certificate shall possess and may exercise all the powers of a
commissioner for oaths that are conferred by or under any law.
(2) A document containing an oath, affidavit or affirmation administered and
received under subsection (1) and purporting to be signed by a solicitor shall be
admitted in evidence without proof of the signature of the solicitor, and without
proof that he is a solicitor who is in practice in Hong Kong or that he holds a current
practising certificate.
(Added29 of 1977s. 2)
8. Accoutant's reports
(1) Every solicitor shall once in each period of 12 months ending with 31
October or such other date as may be prescribed by the Council, unless he satisfies
the Council that owing to the circumstances of his case it is unnecessary so to do,
deliver by post or otherwise to the Council a report signed by an accountant
(hereinafter referred to as 'an accountant's report') and containing such information
as may be prescribed by rules made by the Council under section 73(1)(b):
Provided that an accountant's report shall be delivered to the Council not more
than 6 months (or such other period as any rules made under section 73(1)(b) may
prescribe) after the end of the accounting period specified in that report. (Replaced
25 of 1968 s.4) [cf.1965c.31s.9U.K.]
(2) Subject as may be prescribed by the Council, the accounting period for the
purposes of an accountant's report shall
(a)begin at the expiry of the last preceding accounting period for which
an accountant's report has been delivered;
(b) cover not less than 12 months;
(c)terminate not more than 6 months, or such lesser period as may be
prescribed by the Council, before the date of the delivery of the
report to the Council; and
(d)where possible, consistently with paragraphs (a), (b) and (c),
correspond to a period or consecutive periods for which the
accounts of the solicitor or his firm are ordinarily made up.
(Amended25of 1968s.4) [cf. 1957c.27s.30 U.K.]
(3) If a solicitor fails to comply with the provisions of this section or any
requirements relating to accounts which may be prescribed by the Council any
person may make a complaint in respect of that failure to the Council or the Court.
(Amended 58 of 19 76 s. 5; 52 of 1980 s. 2)
9. Appointment of Disciplinary Committee
(1) There shall be a Disciplinary Committee Panel which shall consist of not less
than 11 members of the Society, each of whom shall have been in practice as a
solicitor in Hong Kong for a period of not less than 10 years and shall be appointed
by the Chief Justice after consultation with the Society.
(Amended50 of 1982 s. 8)
(2) Where it appears necessary or desirable to the Council that the conduct of a
solicitor, an employee of a solicitor or an articled clerk should be investigated as a
result of a complaint being made to it or otherwise, the Council for the purpose of
such investigation may appoint a Disciplinary Committee consisting of not less than
3 members of the Disciplinary Committee Panel. (Replaced 25 of 1968 s. 5. Amended 52
of 1980 s. 2; 1 of 1981 s. 3)
(3) A Disciplinary Committee shall have power to appoint its own Chairman and
shall sit in camera in such place and at such time as the Disciplinary Committee may
direct.
10. Powers of a Disciplinary Committee
(1) A Disciplinary Committee shall have power to inquire into and investigate
the conduct of any person in respect of which it was appointed.
(2) Subject to the provisions of this Ordinance, upon the hearing of any
complaint as aforesaid or upon any investigation as aforesaid, a Disciplinary
Committee shall have power to make such order as it thinks fit and any such order
may, in particular, include provision for all or any of the following matters
(a)striking off the roll of solicitors the name of the solicitor to whom the
complaint or investigation relates;
(b)suspending that solicitor from practice for such period as the
Disciplinary Committee shall think fit;
(c)payment by that solicitor of a penalty not exceeding $50,000 which
shall be paid into the general revenue;
(d)censure of that solicitor or, if the complaint or investigation relates to
a solicitor's employee or articled clerk, of such employee or articled
clerk; (Amemded L.N. 153 of 1988)
(e)payment by any party of costs or of such sum as the Disciplinary
Committee may consider a reasonable contribution towards costs;
cancellation or suspension of the articles of any articled clerk to
whom the complaint or investigation relates; and
(g)prohibition of employment by any solicitor of any solicitor's
employee or articled clerk, to whom the complaint or investigation
relates, for such period as the Disciplinary Committee may decide.
(3) Every order made under subsection (2) shall be filed with the secretary of
the Society and shall be available for inspection by any solicitor during such hours
as the Council may prescribe. (Amended52 of 1980 s. 2)
(4) A Disciplinary Committee appointed by the Council shall hear and determine
every application by a solicitor to procure the removal from the roll of solicitors of
his own name. (Amended52 of 1980s.2)
11. Ancillary powers of a Disciplinary Committee
(1) For the purpose of conducting any such inquiry or investigation, a
Disciplinary Committee shall have all such powers as are vested in the Court or in
any judge in the course of any action or suit in repsect of the following matters
(a)enforcing the attendance of witnesses and examining them upon oath
or otherwise;
(b) compelling the production of documents;
(c) punishing persons guilty of contempt;
(d) ordering an inspection of any property;
(e) conducting the examination of witnesses; and
(1)adjourning any meeting from time to time and from one place to
another,
and a summons under the hand of the Chairman of a Disciplinary Committee may be
substituted for and shall be equivalent to any form of process capable of being
issued in any action or suit for compelling the attendance of witnesses or the
production of documents and any warrant of committal to prison issued for the
purpose of enforcing any such powers as aforesaid shall be under the hand of such
Chairman and shall not authorize the imprisonment of any offender for a period
exceeding 1 month.
(2) The Commissioner of Police and all police officers, officers of the court,
gaolers and bailiffs of the court are required to give their utmost assistance to every
Disciplinary Committee and to every chairman thereof, in the enforcement of
documents, warrants and orders issued in accordance with subsection (1) or
otherwise.
(3) Every member of a Disciplinary Committee shall have the like protection and
privileges, in relation to any action or suit brought against him for any act done or
omitted to be done in the execution of his duties as such member, as is given by any
law to a magistrate acting in the execution of his office.
(4) All proceedings of a Disciplinary Committee and any order made in
accordance with the provisions of section 10 shall be privileged.
12. Findings of a Disciplinary Committee
(1) Every order made by a Disciplinary Committee shall be prefaced by a
statement of its finding in relation to the facts of the case and shall be signed by the
Chairman or by some other member authorized by the Disciplinary Committee in that
behalf.
(2) A signed copy of every order in relation to a solicitor shall be filed with the
Registrar who shall forthwith enter a note of the order on the roll of solicitors in
connection with the name of the solicitor, and where the order so directs shall
remove or strike out the same, and shall cause every order for suspension or striking
out to be published in the Gazette within 14 days of his receipt of a copy of the order.
(3) Payment of any penalty or costs ordered to be paid by the Disciplinary
Committee may, on the application of any member of the Disciplinary Committee or,
in the case of costs, by the party in whose favour the order is made, be enforced by
writ of execution issued out of the Court on the production of a copy of the order
signed by the Chairman or other authorized member of the Disciplinary Committee
and the rules of the Court shall, so far as applicable, apply to any such execution.
(4) A Disciplinary Committee, on the application of any party against whom an
order for payment of a penalty or costs is made, may order that the same may be paid
by instalments or that payment may be deferred for such period as the Disciplinary
Committee shall think fit.
(5) (a)Every application for an order for payment by instalments, or for the
deferring of payment, may be made at the hearing or, within 14 days
after the date of the order for payment of penalty or costs, by notice
in writing to the Disciplinary Committee and to all parties who were
represented at the hearing.
(b)Upon receipt of any such notice, the Disciplinary Committee shall,
within 14 days, notify the applicant and all such other parties of the
date upon which such application will be heard by the Disciplinary
Committee.
(c)There shall be no right of appeal from the decision of the Disciplinary
Committee on any such application.
13. Appeal and saying
(1) Subject to the provisions of section 12(5)(c), an appeal against any order
made by a Disciplinary Committee shall lie to the Court of Appeal and the provisions
of Order 59 of the Rules of the Supreme Court (Cap. 4 sub. leg.) shall apply to every
such appeal save that the time for serving notice of motion of appeal shall be 21
days from the date of the decision and not 6 weeks as provided in the said Order and
the decision of the Court of Appeal on any such appeal shall be final.
(2) In any appeal under subsection (1) the Society shall be the respondent.
(3) Nothing herein contained shall affect the jurisdiction of the Court under
sections 3(2), 14 and 45.
(4) The hearing of every appeal under this section shall be in camera unless,
and to the extent to which, the Court of Appeal may otherwise direct.
(Amended 92 of 1975 s. 59)
14. Applications to Court
(1) Where an application to strike the name of a solicitor off the roll of solicitors
or to require a solicitor to answer allegations contained in an affidavit is made to the
Court, subject to the provisions of subsection (3)
(a)the Court shall not entertain the application except upon production of
an affidavit showing that the applicant has served upon the Society
not less than 21 clear days' notice of his intention to make the
application, together with copies of all affidavits intended to be used
in support thereof,
(b)the Society may apply to the Court to make absolute any order nisi
which may have been made by the Court in the matter of the
application, or to make an order that the name of the solicitor with
respect to whom the application is made be struck off the roll of
solicitors, or such other order as the Court may think fit; and
(c)the Court may order that the costs of the Society of or relating to any
such matter aforesaid be paid by the solicitor against whom, or by the
person by whom, the application was made, or was intended to be
made, or partly by one and partly by the other of them.
(2) Where an order, whether nisi or absolute, has been made by the Court upon
a motion to remove from or strike off the roll of solicitors the name of a solicitor, or to
require the solicitor to answer allegations contained in an affidavit, and has not been
drawn up by the applicant within 1 week after it was made, the Society may cause
the order to be drawn up, and all future proceedings thereon shall be taken as if the
motion had been made by the Society.
(3) Where an order is made by the Court that the name of a solicitor be struck
off the roll of solicitors, or that the solicitor be suspended from practice, the
Registrar shall enter a note thereof on the roll of solicitors in connection with the
name of the solicitor and, where the order so directs, shall remove or strike off the
name.
[cf. 1957 c. 27 ss. 51, 52 53 U.K.]
15. Application with respect to allegations
For the avoidance of doubt, it is hereby declared that an application by any
person to require a solicitor to answer allegations contained in an affidavit, whether
the application is made to the Society or to the Court, may be treated as an
application to strike the name of that solicitor off the roll of solicitors on the grounds
of the matters alleged.
[cf. 1957 c. 27 s. 55 U.K.]
16. Restrictions on powers to strike names of roll
(1) No solicitor shall be liable to have his name struck off the roll of solicitors on
account of any failure to comply with such requirements with respect to service
under articles as may be prescribed by the Chief Justice or on account of any defect
in his admission and enrolment, unless the application to strike his name off the roll
of solicitors is made within 12 months after the date of his enrolment:
Provided that this subsection shall not apply in any case where fraud is proved
to have been committed in connection with the failure or defect.
(2) No solicitor shall be liable to have his name struck off the roll of solicitors by
reason only that
(a)a solicitor whom he has served for the whole or such part of the term
of articled service as may be prescribed by the Chief Justice has
neglected or omitted to take out a practising certificate in accordance
with the provisions of section 6; or
(b)the name of a solicitor whom he has served for any period has after the
termination of that period been struck off the roll of solicitors.
[cf. 1957 c. 27 s. 54 U.K.]
17. Council way inspect proceedings in bankruptcy
The Council shall be entitled, without payment of any fee, to inspect the file of
proceedings in bankruptcy relating to any solicitor against whom proceedings in
bankruptcy have been taken, and to be supplied with office copies of the
proceedings on payment of the usual charges for such copies.
(Amended52 of 1980 s. 2)
[cf. 1957 c. 27 s. 83 U.K.]
18. Winding-up, etc. of business of solicitors
struck off or suspended
(1) The Court may make an order for the winding-up of the business of any
solicitor who is struck off the roll of solicitors in such terms and appointing such
solicitor or firm of solicitors or the Official Receiver under the Bankruptcy Ordinance
(Cap. 6) or both as it thinks fit for that purpose.
(2) The Court may make an order appointing any solicitor or firm of solicitors or
the Official Receiver or both to manage the business of any solicitor, whose
practising certificate is suspended, for the duration of such suspension.
19. Removal from roll
(1) Upon reasonable cause being shown to the Council by a solicitor the
Council may direct the Registrar to remove the name of such solicitor from the roll of
solicitors and the Registrar shall thereupon remove such name from the roll of
solicitors. (Amended52 of 1980 s. 2)
(2) With effect from the date of removal of a name under this section the person
whose name is so removed shall cease to be a solicitor. (Amended 46 of 1989s.5)
(3) Upon application being made for removal as aforesaid the Council may
advertise or require the solicitor to advertise the application inviting any person who
objects thereto to make objection to the Council. (Amended52 of 1980s.2)
(4) Where the Registrar is satisfied that a person who was admitted as a
solicitor under section 3(1AD) is no longer qualified under paragraph (a) of that
section, he shall, unless the person has become qualified otherwise under this
Ordinance, remove his name from the roll of solicitors. (Added46 of 1989 S.5)
(5) Without prejudice to the generality of subsection (1), where a person
admitted under section 3(1AB) does not commence practice as a solicitor within a
period of 12 months after his admission, it shall be a cause for the removal of his
name from the roll of solicitors under this section. (Added46of 1989s. 5)
20. Restrictions on taking articled clerks
(1) No person who has not at some time been in continuous practice as a
solicitor in Hong Kong for a period of 5 years shall, without the special leave in
writing of the Society, take any articled clerk. (Amended 25 of 1968 s. 6)
(2) No person shall have more than 2 articled clerks at the same time.
(3) No person shall take or retain any articled clerk unless
(a) he is practising as a solicitor; and
(b) he is not employed as an assistant by another solicitor.
(4) If any solicitor takes, retains or has an articled clerk in contravention of any
of the provisions of subsection (1), (2) or (3), the Council may discharge the articles
of that clerk upon such terms, including terms as to return of premium, as it thinks fit.
(Amended52 of 1980s.2)
(5) Any
(a) solicitor; or
(b) qualified person,
serving in the
(i) Legal Department; or
(ii) Registrar General's Department; or
(iii) Legal Aid Department, of the Government shall, for the purpose of this
section, be deemed to be practising as a solicitor; and this subsection shall apply in
relation to periods before as well as periods after the commencement of the Legal
Practitioners (Amendment) Ordinance 1982 (50 of 1982). (Added 50 of 1982 s.4)
(6) Rule 6(3) of the Articled Clerks Rules (Cap. 159 sub. leg.) is deemed to be
and always to have been valid and is revoked. (Added 50 of 1982 s.4)
(7) Where at any time after 15 September 1972 and before the commencement of
the Legal Practitioners (Amendment) Ordinance 1982 (50 of 1982) a person purported
to enter into articles with another person ('the principal') those articles shall not be
invalid and that person shall not be deemed to be or to have been disqualified from
admission as a solicitor, by reason only that the principal was not practising as a
solicitor if the principal was at that time--
(a) a solicitor; or
(b) a person qualified for admission as a solicitor,
serving in the
(i) Legal Department; or
(ii) Registrar General's Department; or
(iii) Legal Aid Department, of the
Government. (Added 50 of 1982 s. 4)
(Amended50 of 1982 ss. 4 8)
[cf. 1957 c. 27 s. 41 U.K.]
21. Power to prohibit taking articled clerks
(1) Where the Society refuses to issue a practising certificate to a solicitor
under section 6, the Council may by notice in writing to that solicitor prohibit
him from taking an articled clerk.(Amended52 of 1980 s. 2)
(2) If a solicitor contravenes a notice given to him under subsection (1) a
complaint may be made in respect thereof to the Society or to the Court under
section 9 or 14,
(Replaced 58 of 1976 s. 6)
22. Power to discharge articles in certain cases
If either
(a)during the term of any articles a clerk has been continuously absent
from the place of business of his principal for a period of 3 months or
such longer period as may be prescribed by the Council except for
such reason as may be prescribed by the Council; or
(b)the Council is for any other reason of the opinion that any articles
ought to be discharged,
the Council may, on application of the solicitor, the articled clerk or any other
person, discharge the articles upon such terms, including terms as to return of
premium, as it shall think fit and may determine what, if any, of the service by the
clerk under the articles shall be deemed good service.
(Amended 52 of 1980 s. 2)
23. Discharge of articles in cases of bankruptcy, etc.
If a solicitor to whom a clerk is articled becomes bankrupt before the expiration
of the term or executes a trust deed for the benefit of his creditors under any law
relating to bankruptcy or is imprisoned for debt and remains in prison for the space
of 21 days, the Court, on the application of any person, may order the articles to be
discharged or to be assigned to another solicitor on such terms and in such manner
as the Court thinks fit.
24. Society's general right of audience
The Society shall have a general right of audience by any member of the
Society appointed for that purpose by the Society or by any counsel, before
(a) a Disciplinary Committee; and
(b) the Court on the hearing of-
(i) any application to the Court for admission as a solicitor; and
(ii) any proceedings in the Court relating to, affecting or touching
any matter affecting the qualification, service or examination of
articled clerks or the removal from or
restoration to the roll of solicitors or the suspension from
practice of a solicitor or affecting any privilege, restriction or
misconduct in connection with the professional practice,
conduct and discipline of a solicitor, a solicitor's employee or an
articled clerk,
and in any such case, whether the Society has or is seeking audience or not, the
Society shall be served with a copy of every necessary document filed with the
Registrar.
25. Expenses of Disciplinary Committee and of Society
(1) The expenses incurred by
(a) a Disciplinary Committee; and
(b)the Society, in connection with proceedings before a Disciplinary
Committee and any appeal under section 13,
may be paid to the Society out of general revenue upon a certificate issued by the
Attorney General.
(2) The Attorney General shall only issue a certificate under subsection (1) if he
is satisfied that
(a)the expenses were necessarily incurred by the Disciplinary
Committee or the Society, as the case may be, in exercise of the
powers or duties conferred or imposed by this Ordinance;
(b) the amount of such expenses is reasonable; and
(c)the expenses could not reasonably be recovered from the person
whose conduct is the subject of the proceedings before the
Disciplinary Committee or the Court of Appeal, as the case may be.
(Amended92of1975s.59;46 of 1989s.6)
(3) In this section, 'expenses' includes witnesses' expenses and fees, counsel's
fees, solicitor's fees, auditor's fees and other charges and disbursements.
26. Statutory provisions to prevail over Society's articles
In the case of any inconsistency between the provisions of this Ordinance and
the Memorandum and Articles of Association of the Society the provisions of this
Ordinance shall prevail.
26AA. Abolition of enrolled student status
(1) A person who immediately before the commencement of the Legal
Practitioners (Amendment) Ordinance 1981 (1 of 198 1) was an enrolled
student under Part 11 of the Articled Clerks Rules (Cap. 159 sub. leg.) shall cease
to be an enrolled student for all purposes and his enrolment shall be of no effect on
the commencement of the Legal Practitioners (Amendment) Ordinance 1981 (1 of
1981).
(2) Any rights or privileges of an enrolled student subsisting immediately
before the commencement of the Legal Practitioners (Amendment) Ordinance
1981 (1 of 1981) shall cease to have effect on the commencement of that
Ordinance.
(Replaced 1 of 1981 s. 4)
PART IIA
CONTROL OF SOLICITOR'S PROPERTY IN CERTAIN CASES
26A. Power of Council to deal with
property of certain solicitors
(1) If the Council has reasonable cause to believe that a solicitor, or any
solicitor's employee or articled clerk, has been guilty of dishonesty in
connection with that solicitor's practice as a solicitor or in connection with any
trust of which that solicitor is a trustee, the provisions of Schedule 2, except
paragraph 7 thereof, and, if the Council is satisfied that the solicitor, employee
or articled clerk has been guilty as aforesaid, the said paragraph 7, shall apply
in relation to that solicitor.
(2) Where the name of the solicitor is removed from or struck off the roll
or a solicitor is suspended from practice, that solicitor shall within 21 days from
the material date satisfy the Council that he has made suitable arrangements for
making available to his clients or to some other solicitor or solicitors instructed
by his clients or by himself-
(a)all deeds, wills, documents constituting or evidencing title to any
property, papers, books of accounts, records, vouchers and other
documents in his or his firm's possession or control, or relating to
any trust of which he is the sole trustee or co-trustee only with
one or more of his partners, clerks or servants; and
(b)all sums of money due from him or his firm to, or held by him or
his firm on behalf of, his clients or subject to any such trust as
aforesaid,
and if he fails so to satisfy the Council, Schedule 2 shall apply in relation to
him.
(3) In subsection (2), the expression 'the material date' means whichever
is the latest of the following dates, that is to say-
(a)the date when the order of the Disciplinary Committee or of the
court by or in pursuance of which the solicitor's name is removed
from or struck off the roll, or the solicitor is suspended from
practice, is to take effect;
(b) the last date on which an appeal against that order may be lodged;
(c) the date on which any such appeal is dismissed or abandoned.
(4) In this section and in Schedule 2, the expressions 'trust' and -trusteeshall
extend to implied and constructive trusts and to cases where the trustee has a
beneficial interest in the trust property and to the duties incident to the office of a
personal representative and trustee, where the context includes a personal
representat(Added25of1968s.7. Amended52 of 1980s. 2; 46of 1989s. 7) [cf.
1957 c. 27 s. 31 U.K.]
26B. Solicitors guilty of undue delay in certain matters
(1) Where-
(a)a complaint is made to the Council that there has been undue delay
on the part of a solicitor in connection with any matter in which he or
his firm has been instructed on behalf of a client or any matter which
relates to the administration of a trust of which that solicitor is the
sole trustee or co-trustee only with one or more of his partners,
employees or articled clerks; and
(b)the Council has by notice in writing invited the solicitor to give an
explanation in respect of that matter; and
(c)the solicitor has, within a period of not less than 8 days specified in
the said notice, failed to give an explanation in respect of that matter
which the Council regards as sufficient and satisfactory; and
(d)the solicitor has been notified in writing by the Council that he has so
failed,
the provisions of Schedule 2, other than paragraphs 7 and 8 thereof, shall apply in
relation to that solicitor, but as regards the documents specified in paragraph 1, and
the sums of money specified in paragraph 10, of Schedule 2, only in so far as they
relate to the matter complained of.
Provided that for the purposes of the proviso to paragraph 6 of Schedule 2, the
Council may take copies of, or extracts from, documents which relate to the matter
complained of or to that matter and to other matters in the solicitor's practice.
(Amended52 of1980s. 2;46of 1989s. 7)
(2) In this section the expressions 'trust' and 'trustee' have the same
meanings as in section 26A.
(Added 25 of 1968 s. 7)
[cf. 1965 c. 31 s. 11
U.K.]
26C.Control of deceased solicitor's practice
in certain circumstances
(1) Where-
(a)the Council has reasonable cause to believe that the representatives
of a deceased solicitor who immediately before his
death was practising as a solicitor in his own name, or as a sole
solicitor under a firm name, have been guilty of dishonesty or undue
delay in administering the affairs of that solicitor's practice or in
connection with any trust of which that solicitor was the sole trustee
or co-trustee only with one or more of his clerks or servants; or
(Amended52 of 1980 s. 2)
(b)a solicitor dies and immediately before his death the provisions of
Schedule 2 applied to him,
the provisions of Schedule 2, other than paragraph 7 thereof, shall apply in relation
to such personal representatives and shall continue to apply to the personal
representatives of the solicitor last mentioned as they apply or applied, as the case
may be, in relation to the solicitor referred to in those provisions and as if the words
'the personal representatives' were, with the necessary adaptations, substituted for
the words 'the solicitor' wherever these words occur in those provisions.
(Amended 46 of 1989 s. 7)
(2) In this section the expressions 'trust' and 'trustee' have the same
meanings as in section 26A.
(Added 25 of 1968 s. 7)
[cf. 1965 c. 31 s. 13
U.K.]
26D. On death of solicitor practising on his own account
Council to deal with banking accounts of practice
On the death of a solicitor who immediately before his death was practising as a
solicitor in his own name or as a sole solicitor in a firm name the right to operate on
or otherwise deal with any banking account in the name of the solicitor or his firm,
being an account in the title of which the word 'client' appears, shall,
notwithstanding anything in this Ordinance or otherwise to the contrary, vest in the
Council to the exclusion of any personal representatives of such solicitor and shall
be exercisable as from the death of the solicitor.
(Added25of1968s.7.Amended52 of 1980s.2)
[cf. 1965 c. 31 s. 14
U.K.]
PART III
BARRISTERS
27. Power of Court to admit barristers
(1) The Court may, in such manner as may be prescribed by the Chief Justice,
admit as a barrister of the Supreme Court in Hong Kong, any person who satisfies
the following requirements, that is to say
(a) (i) he has been called to the Bar in England or Northern
Ireland; or
(ii) he has been admitted as an advocate in Scotland; or
(iii)he is a Bachelor of Laws of the University of Hong Kong and has
obtained the Postgraduate Certificate in Laws awarded by that
University; or
(iv) he has obtained the Postgraduate Certificate in Laws awarded by
the University of Hong Kong and he is a Hong Kong permanent
resident within the meaning of the Immigration Ordinance (Cap.
115), or is a Commonwealth citizen or citizen of the Republic of
Ireland who has been ordinarily resident in Hong Kong for a
period of at least 7 years; (Replaced 32 of 1972s. 2. Amended
58of1976s.7,14 of 1981 s. 2; 31 of 1987 s. 28)
(b)he is not at the time of the application disbarred or removed from the
roll of advocates in Scotland or suspended from practice as such
barrister or advocate;
(e)he is not in practice as a solicitor either on his own account or as a
partner or salaried employee in a legal firm in any country where a
qualified person is able to practise both as a barrister and solicitor at
the same time and does not intend whilst enrolled as a barrister in
Hong Kong to practise as a solicitor either on his own account or as a
partner or salaried employee in a legal firm in any such country;
(Amended50 of 1982 s. 8)
(d) (Repealed 58 of 1976 s. 7)
(e)he has been ordinarily resident in Hong Kong for a period of at least 8
consecutive months immediately prior to the date of his application for
admission or satisfies the Court that he intends to be ordinarily
resident in Hong Kong. (Amended50 of 1982 s.8)
(IA) In addition to the requirements under subsection (1)(a)(i) or (ii), a person
must also
(a)have practised as a barrister or advocate in the United Kingdom for at
least 3 years;
(b)be a Hong Kong permanent resident as defined in the Immigration
Ordinance (Cap. 115); or
(e)have been ordinarily resident in Hong Kong for at least 7 years.
(Added46 of 1989 s. 8)
(2) The Court may admit a person as a barrister under this section
(a) (Repealed 58 of 1976 s. 7)
(b)either generally or for the purpose of any particular case or cases and
may impose on a person so admitted restrictions and conditions as the
Court may see fit, notwithstanding that such
person does not satisfy the requirements of subsection (1)(e) and
subsection(1A). (Amended46of1989s.8)
(3) The Court may, when admitting a person as a barrister, sit in chambers.
(Added58of 1976s. 7)
(4) In this section-
'Commonwealth citizen' means a person who is recognized by the law of a
Commonwealth country as being a citizen of that country;
'Commonwealth country' means a country that is an independent sovereign
member of the Commonwealth. (Added 14 of 1981 s. 2)
(Replaced 25 of 1968 s. 8)
27A. Additional power of Court to admit barristers
(1) In addition to the powers conferred on it by section 27, but subject to
subsection (2), the Court may, after the Chief Justice has consulted the Attorney
General and the Bar Committee, admit a person as a barrister of the Supreme Court of
Hong Kong, in such manner as may be prescribed by the Chief Justice, if the Court
is satisfied that he
(a)has been admitted as a barrister in a jurisdiction listed in Schedule 1 or
if there is no admission of barristers in such jurisdiction, as a legal
practitioner in that jurisdiction;
(b) has experience in advocacy;
(c)has been employed for at least 7 years in the Legal Department of the
Government as a legal officer within the meaning of the Legal Officers
Ordinance (Cap. 87);
(d) has been so employed-
(i) for a period of at least 3 years; and
(ii) either immediately or recently before the date of his application
for admission,
on work similar to that usually undertaken in the course of his
practice by a barrister in Hong Kong of 10 years seniority; and
(e)intends, if admitted, to practise as a barrister in Hong Kong within 12
months after his admission.
(2) The Court shall not admit as barristers, under subsection (1), more than 4
persons in any period of 12 months.
(Added46 of 1989 s. 9)
28. Formalities for admission of a barrister
Save as may be prescribed by the Chief Justice, no person shall be admitted as
a barrister unless he has deposited with the Registrar his certificate of call to the Bar
in England or Northern Ireland, his certificate of admission as an advocate in
Scotland or his Postgraduate Certificate in Laws awarded by the
University of Hong Kong, as the case may be, and has filed in the Court an affidavit
of identity in such form as may be prescribed by the Chief Justice together with an
affidavit showing the manner in which he satisfies the requirements set out in
section 27(1).
(Amended 25 of 1968 s. 9; 58 of 1976 s. 8)
29. Roll of barristers
(1) The Registrar shall keep a roll of all barristers admitted by the Court under
section 27 and shall have custody of the roll of barristers and of all documents
relating thereto and shall allow any person to inspect the roll of barristers during
office hours without payment.
(2) The Registrar, upon production of a certificate of admission signed by the
Chief Justice and upon payment to the Registrar of such fee as may be prescribed by
the Chief Justice, shall enter upon the roll of barristers the name of the person
enrolled.
(3) The Chief Justice may, if he thinks fit, at any time order the Registrar to
replace on the roll of barristers the name of a barrister whose name has been
removed or struck off the roll of barristers.
30. Practising certificates-barristers
(1) The Registrar, upon application in writing by a barrister in the month of
November in a year and upon payment of such fee as may be prescribed by the
Chief Justice and upon being satisfied in such manner as may be prescribed by the
Chief Justice that the person to whom the application relates is qualified to practise
as a barrister or is qualified to practise to a limited extent under section 31(2), shall
issue to the applicant a practising certificate as a barrister in such form as may be
prescribed by the Chief Justice for the period of one calendar year from 1 January
next following the date of the application: (Amended 25 of 1968 s. 10; 58 of 1976 s. 9)
Provided that
(a)the Registrar, in his absolute discretion and upon such condition as
he may consider necessary, may permit the application for a
practising certificate to be made under this subsection at any time
and upon such application may issue to the applicant a practising
certificate for any period not exceeding one calendar year and ending
on 31 December in any year; and
(b)where the name of a barrister is removed from or struck off the roll of
barristers, the practising certificate of that barrister shall
automatically determine without any entitlement to any refund of the
prescribed fee or of any part thereof.
(2) The publication in the Gazette by the Registrar of a list of the names and
addresses of those barristers who have obtained practising certificates for the
period therein stated shall be prima facie evidence that each person named therein is
a person qualified under section 31 to practise as a barrister and to whom a
practising certificate for the period specified in such list has been issued under this
section and the absence from any such list of the name of any person shall be prima
facie evidence that such person is not so qualified.
31. Qualifications for practising as barrister
(1) A barrister shall not be qualified to practise as such
(a)subject to subsection (2), unless he has completed the prescribed
qualifying period of active practice;
(b) unless he holds a valid practising certificate;
(c)having qualified for admission as a barrister by virtue of section
27(1)(a)(i) or (ii), unless he continues to be a barrister in England or
Northern Ireland or an advocate in Scotland and is not there
suspended from practice as such;
(d) if he is suspended from practice under section 32 or 37;
(e)if he is a solicitor on his own account or a partner or a salaried
employee of a firm of lawyers in a country where a person is able to
practise both as a barrister and as a solicitor at the same time.
(2) After the expiry of the first 6 months of the prescribed qualifying period of
active practice, a barrister shall be qualified to practise as a barrister to such limited
extent as the Bar Committee may determine.
(Replaced 58 of 1976 s. 10)
32. Power of Court to strike of or suspend barrister
(1) The Court shall have power on reasonable cause being shown to remove
from or strike off the roll of barristers or to suspend from practice any barrister who
has been guilty of such misconduct as to make him unfit to practise, whereupon the
Registrar shall enter a note of the Court order on the roll of barristers in connection
with the name of the barrister and where the order so directs, shall remove or strike
off the name. (Amended 46 of 1989 S.10)
(2) Without affecting the generality of subsection (1), where a person admitted
as a barrister under section 27A does not commence practice as a barrister in Hong
Kong within 12 months after his admission, it shall be a cause for removal of his
name from the roll of barristers under this section. (Added 46 of 1989 s. 10)
33. Bar Committee-general right of audience
The Bar Committee shall have a general right of audience, by any member of the
Bar Committee appointed for that purpose by the Bar Committee or by any other
counsel
(a) before a Committee of Inquiry; and
(b) before the Court on the hearing of
(i)any application to the Court for admission and enrolment as a
barrister; and
(ii) any proceedings in the Court relating to, affecting or touching
any matter affecting the qualification or examination of a person
seeking to be a barrister or the removal from or restoration to the
roll of barristers or suspension from practice of barristers or
affecting the privileges, restrictions or offences in connection
with the professional practice, conduct and discipline of a
barrister,
and in any such case, whether the Bar Committee has or is seeking audience or not,
the Bar Committee shall be served with a copy of every necessary document filed
with the Registrar.
34. Establishment of Committee of Inquiry
(1) Without derogating from the right of the Court to act on its own motion
under section 32, the Chief Justice, upon application being made in writing by the
Attorney General or by the Bar Committee, may appoint a Committee of Inquiry to
exercise the function set out in section 35.
(2) A Committee of Inquiry shall consist of
(a)one of Her Majesty's Counsel for Hong Kong, being a practising
barrister, unless the Chief Justice is of the opinion that in the
circumstances of the case such an appointment is impracticable or
inadvisable; and
(b)not less than 2 nor more than 4, or in the event of no appointment
being made under paragraph (a) not less than 3 nor more than 5,
practising barristers of not less than 5 years standing.
(3) The Chairman of a Committee of Inquiry shall be appointed by the Chief
Justice.
(4) A Committee of Inquiry shall sit in camera in such place and at such time as
the Committee of Inquiry may direct.
35. Function of Committee of Inquiry
(1) A Committee of Inquiry shall inquire into any complaint against a barrister
laid before it by the Attorney General or by the Bar Committee and shall
(a)submit its findings in the form of a report to the Registrar, which
report shall include its findings of fact and law and shall be open
to the inspection of the barrister concemed, of his counsel and
solicitor and of the Attorney General and of the Bar Committee
when the complaint is laid by it, but shall not be open to public
inspection; and
(b)where it is the opinion of the Committee of Inquiry that a prima
facie case of misconduct has been made out, in addition to
submitting its report to the Registrar, forward a signed copy of
such report to the Chief Justice, together with a transcript of the
evidence taken and copies of the documents put in evidence at the
hearing.
(2) The laying of a complaint before a Committee of Inquiry shall be in
the discretion of the Attorney General or of the Bar Committee, as the case
may be:
Provided that where a judge refers any complaint to the Attorney General
or to the Bar Committee, the same shall be laid before a Committee of Inquiry.
36. Powers of Committee of Inquiry
(1) For the purpose of conducting any such inquiry or investigation, a
Committee of Inquiry shall have all such powers as are vested in the Court or in
any judge in the course of any action or suit in respect of the following matters-
(a)enforcing the attendance of witnesses and examining them upon
oath or otherwise;
(b) compelling the production of documents;
(c) punishing persons guilty of contempt;
(d) ordering an inspection of any property;
(e) conducting every examination of witnesses; and
(j)adjourning any meeting from time to time and from one place to
another,
and a summons under the hand of the Chairman of a Committee of Inquiry
may be substituted for and shall be equivalent to any form of process capable of
being issued in any action or suit for compelling the attendance of witnesses or
the production of documents and any warrant of committal to prison issued for
the purpose of enforcing any such powers as aforesaid shall be under the hand
of such Chairman and shall not authorize the imprisonment of any offender for
a period exceeding 1 month.
(2) The Commissioner of Police and all police officers, officers of the
court, gaolers and bailiffs of the court are required to give their utmost
assistance to every Committee of Inquiry and to every chairman thereof, in the
enforcement of documents, warrants and orders issued in accordance with
subsection (1) or otherwise.
(3) Every member of a Committee of Inquiry shall have the like protection and
privileges, in relation to any action or suit brought against him for any act done or
omitted to be done in the execution of his duties as such member, as is given by any
law to a magistrate acting in the execution of his office.
(4) All proceedings of a Committee of Inquiry and every report made in
accordance with the provisions of section 35 shall be privileged.
37. Powers of the Court of Appeal
(1) Where a report is forwarded to the Chief Justice under section 35(1)(b) the
Chief Justice shall cause the matter to be set down for hearing before the Court of
Appeal and the Registrar shall give not less than 14 days' notice of the date of such
hearing to the barrister concerned, to the Attorney General and to the Bar Committee
and at the same time shall forward to each a copy of the report of the Committee of
Inquiry.
(2) At a hearing set down under subsection (1)-
(a)the Bar Committee shall be the Applicant and shall move the Court of
Appeal to take disciplinary action against the barrister concemed upon
the findings of fact and law of the Committee of Inquiry;
(b)counsel may appear on behalf of the barrister concerned and the Bar
Committee may be represented by counsel or by the Attorney General.
(3) The Court of Appeal shall at such hearing consider the report of the
Committee of Inquiry and such submissions upon the findings of fact and law of the
Committee of Inquiry as may be made on behalf of the Bar Committee and the
barrister concemed and may call for the original record of the evidence taken and any
document put in evidence before the Committee of Inquiry.
(4) The Court of Appeal may, upon special grounds being shown, consider any
additional evidence not adduced before the Committee of Inquiry.
(5) Every hearing under this section shall be in camera unless, and to the extent
to which, the Court of Appeal may otherwise direct.
(6) On completion of the hearing the Court of Appeal may
(a) censure the barrister; or
(b) suspend him from practising for such period as it may specify; or
(e) order that his name be struck off the roll of barristers; or
(d) make such other order as the Court of Appeal may think fit.
(7) Any order made under subsection (6) shall be published in the Gazette
unless the Court of Appeal shall otherwise direct, and may be published in such
manner as the Court of Appeal may direct.
(Amended 92 of 1975 s. 59)
38. Variation of order of the Court of Appeal
(1) Without derogating from the power of the Chief Justice under section 29(3)
to order the replacement on the roll of the name of a barrister who
has been struck off the same, and subject to the provisions of subsection (2), any
barrister who has been suspended from practising or whose name has been struck
off the roll may apply to the Court of Appeal for an order to vary or discharge the
order suspending him or striking his name off the roll.
(2) No application shall be made under subsection (1)-
(a)in the case of an order of suspension, until the expiration of 2 years
from the date of such order or of half the period of suspension,
whichever is the less; or
(b)in the case of an order striking the name of the barrister off the roll,
until the expiration of 2 years from the date of such order,
and in either case where such an application has been made and determined, no
further application shall be made until the expiration of 2 years from the date of such
determination:
Provided that the barrister may at any time apply to a judge in chambers for
permission to make such application on the grounds that new material facts have
come to light since the making of the order which it is sought to vary or discharge,
and where the judge is of the opinion that such facts should be placed before the
Court of Appeal, he shall grant such application.
(3) At the hearing of the application the Court of Appeal may
(a) reduce the period of suspension; or
(b)discharge the order of suspension or the order striking the name of
the barrister off the roll, as the case may be; or
(c) confirm the original order; and
(d) make such order as to costs as it shall see fit.
(Amended 92 of 1975 s. 59)
39. Expenses of Committee of Inquiry
and of Bar Committee
(1) The expenses incurred by-
(a) a Committee of Inquiry; and
(b)the Bar Committee, in connection with proceedings before a
Committee of Inquiry and any proceedings under section 37,
may be paid to the Bar Committee out of general revenue upon a certificate issued
by the Attorney General.
(2) The Attorney General shall only issue a certificate under subsection (1) if he
is satisfied that
(a)the expenses were necessarily incurred by the Committee of Inquiry or
the Bar Committee, as the case may be, in exercise of the powers or
duties conferred or imposed by this Ordinance;
(b) the amount of such expenses is reasonable; and
(c)the expenses could not reasonably be recovered from the barrister
whose conduct is the subject of the proceedings before the Committee
of Inquiry or the Court of Appeal, as the case may be.
(3) In this section, 'expenses' includes witnesses' expenses and fees, counsel's
fees, solicitor's fees, auditor's fees and other charges and disbursements.
PARTIV
NOTARIES PUBLIC
40. Registration of notaries public
The Registrar shall register every notary public who, to the satisfaction of the
Registrar, produces to the Registrar his notarial faculty and who files in the Court an
affidavit of identity in such form and pays such enrolment fee as may be prescribed
by the Chief Justice.
41. Register of notaries public
The Registrar shall keep a register of notaries public registered by him under
section 40 and shall have custody of the register of notaries public and of all
documents relating thereto and shall allow any person to inspect the register of
notaries public during office hours without payment.
42. Power of Court to strike off or suspend a notary public
(1) The Court, upon reasonable cause being shown, may remove from or strike
off the register of notaries public or suspend from practice any notary public.
(2) Upon the making of any order by the Court under subsection (1) the
Registrar shall enter a note of the order on the register of notaries public in
connection with the name of the notary public and, where the order so directs, shall
remove or strike off the name.
43. Restoration of name of notary public
The Chief Justice may, if he thinks fit, at any time order the Registrar to replace
on the register of notaries public the name of a notary public whose name has been
removed or struck off therefrom.
PART V
PRIVILEGES, RESTRICTIONS AND OFFENCES
IN CONNECTION WITH PRACTICE
44. Penalty for unlawfully practising
as a barrister or notary public
Any person who
(a)not being a qualified barrister, either directly or indirectly, practises
or acts as a barrister;
(b)not being a qualified notary public, either directly or indirectly,
practises or acts as a notary public,
shall be guilty of an offence and shall be liable on summary conviction to a fine of
$10,000. (Amended 46 of 1989 s. 11)
45. Unqualified person not to act as solicitor
(1) A person who, by virtue of section 7, is not qualified to act as a solicitor shall
not act as a solicitor, or as such sue out any writ or process, or commence, carry on
or defend any action, suit or other proceeding, in the name of any other person or in
his own name, in any court of civil or criminal jurisdiction or act as a solicitor in any
cause or matter, civil or criminal, to be heard or determined before any court,
magistrate or justice. (Amended 46 of 1989s.12)
(2) Any person who contravenes the provisions of this section shall
(a)be guilty of contempt of the court in which the action, suit, cause,
matter or proceeding in relation to which he so acts is brought or
taken and may be punished accordingly;
(b)be incapable of maintaining any action for any costs in respect of
anything done by him in the course of so acting;
(c)be guilty of an offence and shall be liable on summary conviction to a
fine of $10,000 and to imprisonment for 2 years; and (Amended 46of
1989 s. 11)
(d)in addition to any other penalty or forfeiture and any disability to
which he may be subject, be liable for each such offence to a penalty
of $25,000 to be recovered, with full costs of action, by action brought
in the Court, by the Society with the sanction of the Attorney
General. (Amended 46of 1989 s.13)
(3) Any penalty recovered under this section shall be deemed to be a penalty
due to the Crown and shall be paid into the general revenue of Hong Kong.
(Amended50 of 1982 s. 8)
[cf. 1957 c. 27 s. 18
U.K.]
46. Penalty for pretending to he a, solicitor
Any unqualified person who wilfully pretends to be, or takes or uses any name,
title, addition or description implying that he is qualified or recognized by law as
qualified to act as, a solicitor shall be guilty of an offence and shall be liable on
summary conviction to a fine of $10,000. (Amended 46of 1989 s.]])
[cf. 1957 c. 27 s. 19
U.K.]
47. Unqualified person not to prepare
certain instruments, etc.
(1) Any unqualified person, not being a barrister or a notary public, who, unless
he proves that the act was not done for or in expectation of any fee, gain or reward,
either directly or indirectly
(a)draws or prepares any instrument relating to movable or immovable
property or to any legal proceeding; or
(b)draws or prepares any memorial or other document for the purposes
of the Land Registration Ordinance (Cap. 128), or the New Territories
Ordinance (Cap. 97) or makes any application or lodges any
testimony for registration under either of those Ordinances at the
Land Office or at any District Land Office,
shall be guilty of an offence and shall be liable on summary conviction to a fine of
$50,000. (Amended 46 of 1989 s. 14)
(2) This section shall not extend to
(a)any public officer drawing or preparing instruments in the course of
his duty; or
(b)any person employed merely to engross or copy any instrument or
proceeding.
(3) For the purposes of this section, instrument does not include
(a) a will or other testamentary instrument; or
(b) an agreement under hand only; or
(c) a letter of power of attorney; or
(d) a transfer of stock containing no trust or limitation thereof.
[cf. 1957 c. 27 s. 20 U.K.]
48. Unqualified person not to act in preparation
of papers for probate, etc.
Any unqualified person, not being a barrister or a notary public, who, either
directly or as an agent of any person, whether or not that other person is a solicitor,
barrister or notary public, takes instructions for or draws or prepares any paper on
which to found or oppose a grant of probate or of letters of administration shall,
unless he proves that the act was not done for or in expectation of any fee, gain or
reward, be guilty of an offence and, without prejudice to any other liability or
disability to which he may be subject under this Ordinance or any other enactment,
shall be liable on summary conviction to a fine of $50,000: (Amended 46of 1989 s.14)
Provided that this section shall not apply to any public officer drawing or
preparing any such papers in the course of his duty.
[cf. 1957 c. 27 s. 21 U.K.]
49. Solicitor not to act as agent for unqualified person
(1) No solicitor shall wilfully and knowingly
(a)act as agent in any action or in any matter in bankruptcy for any
unqualified person; or
(b)permit his name to be made use of in any such action or matter upon
the account or for the profit of any unqualified person; or
(c) send any process to any unqualified person; or
(d)do any other act enabling any unqualified person to appear, act or
practise in any respect as a solicitor in any such action or matter.
(2) Where it appears to a Disciplinary Committee or to the Court that a solicitor
has acted in contravention of this section, the Disciplinary Committee or the Court
shall order his name to be struck off the roll of solicitors.
(3) Where the Court orders the name of a solicitor to be struck off the roll in
respect of an offence under this section, it may further order that the unqualified
person who was enabled by the conduct of the offender to act or practise as a
solicitor shall be imprisoned for any period not exceeding 1 year.
[cf. 1957 c. 27 s. 34 U.K.]
50. No costs for unqualified person
No costs in respect of anything done by an unqualified person acting as a
solicitor shall be recoverable in any action, suit or matter by any person
whomsoever.
[cf. 1957 c. 27 s. 23 U.K.]
51A. Recovery of moneys in certain cases
Nothing in section 45(2)(b) or in section 50 shall prevent the recovery of
moneys paid or to be paid by a solicitor on behalf of a client in respect of anything
done by the solicitor while acting for the client without holding a practising
certificate in force provided that such moneys would have been recoverable if that
solicitor had held such a certificate in force when so acting.
(Added 25 of 1968 s. 12)
[cf. 1965 c. 31 s. 7 U.K.]
51. Application of penal provisions to body corporate
(1) If any act is done by a body corporate, or by any director, officer or servant
thereof, of such a nature or in such a manner as to be calculated to imply that the
body corporate is qualified or recognized by law as qualified to act as a solicitor, the
body corporate shall be guilty of an offence and shall be
liable on summary conviction to a fine of $25,000, and, in the case of an act done by
a director, officer or servant of the body corporate, such person shall also be guilty
of an offence and shall be liable on summary conviction to a fine of $10,000.
(Amended 46 of 1989ss.11&13)
(2) For the avoidance of doubt, it is hereby declared that in sections 45, 46, 47,
48, 49 and 50, references to unqualified persons and to persons include references to
a body corporate.
[cf. 1957 c. 27 s. 22 U.K.]
52. Solicitors not to commence or defend
actions while in prison
(1) No solicitor whilst a prisoner in any prison shall as a solicitor, in his own
name or in the name of any other solicitor, sue out any writ or process, or commence,
prosecute or defend any action or any matter in bankruptcy.
(2) Any solicitor commencing, prosecuting or defending any such action or
matter in contravention of this section shall be incapable of maintaining any action
for the recovery of any costs in respect of any business done by him whilst so
confined as aforesaid, and he and any solicitor permitting him to commence,
prosecute or defend any such action or matter in his name shall be guilty of
contempt of the court in which such action or matter was commenced or prosecuted
and may be punished accordingly.
[cf. 1957 c. 27 s. 35 U.K.]
53. Employment by solicitor of persons
struck off or suspended
(1) No solicitor shall, in connection with his practice as a solicitor, without the
written permission of the Society which may be given for such period and subject to
such conditions as the Society thinks fit, employ or remunerate any person who, to
his knowledge, is disqualified from practising as a solicitor by reason of the fact that
his name has been struck off the roll of solicitors or is suspended from practising as a
solicitor or whose practising certificate has been determined by virtue of section 6(7)
in consequence of a receiving order in bankruptcy being in force against him.
(Amended 25 of 1968s.13)
(2) No solicitor shall in connection with his practice as a solicitor employ or
remunerate any person who, to his knowledge, is the subject of an order made by a
Disciplinary Committee under section 10(2)(g) whereby the employment of such
person by any solicitor is prohibited, while such order is in force.
(3) No solicitor shall, in connection with his practice as a solicitor, without
written permission of the Society, which may be given for such period
and subject to such conditions as the Society may think fit, employ or remunerate
any person, who, to his knowledge, has been convicted of a criminal offence
involving dishonesty. (Replaced 25 of 1968 s. 13)
(4) A solicitor aggrieved by the refusal of the Society to grant any such
permission as aforesaid, or by any conditions attached by the Society to the grant
thereof, may appeal to the Chief Justice, in such manner as may be prescribed by the
Chief Justice, and on any such appeal the Chief Justice may confirm the refusal or
the conditions, as the case may be, or may, in lieu of the Society, grant such
permission for such period and subject to such conditions as he thinks fit.
(5) If any solicitor acts in contravention of the provisions of this section or of
the conditions subject to which any permission has been given thereunder, his name
shall be struck off the roll or he shall be suspended from practice for such period as a
Disciplinary Committee or as the Court may think fit.
(6) Any person who, while there is in force in respect of him an order made
under section 10(2)(g) prohibiting his employment by any solicitor, seeks or accepts
any employment by or remuneration from a solicitor in connection with his practice
as a solicitor without previously informing the solicitor of that order shall be guilty
of an offence and shall be liable on summary conviction to a fine of $25,000.
(Amended 46 of 1989 s. 13)
[cf. 1957 c. 27 ss. 36 38 U.K.]
54. Penalty on failure to disclose fact
of having been struck off, etc.
(1) Any person who, whilst he is disqualified from practising as a solicitor by
reason of the fact that he has been struck off the roll or is suspended from practising
as a solicitor, seeks or accepts employment by a solicitor in connection with that
solicitor's practice without previously informing him that he is so disqualified shall
be guilty of an offence and shall be liable on summary conviction to a fine of
$10,000. (Amended 46of 1989 s.]])
(2) No proceedings under this section shall be commenced except by or with
the consent of the Attorney General.
[cf. 1957 c. 27 s. 37 U.K.]
55. Time limit for commencement of certain proceedings
Notwithstanding anything in the Magistrates Ordinance (Cap. 227),
proceedings in respect of any offence against section 46, 47, 48 or 54 may be
brought at any time within 2 years next after the commission of the offence or within
6 months after the first discovery thereof by the prosecutor, whichever period
expires first.
[cf. 1957 c. 27 s. 24 U.K.]
PART VI
REMUNERATION OF SOLICITORS
Non-contentious Business
56. Agreement for remuneration for
non-contentious business
(1) Whether or not any rules made under section 74 are in force, a
solicitor and his client may, either before or after or in the course of the
transaction of any non-contentious business by the solicitor, make an
agreement as to the remuneration of the solicitor in respect thereof.
(2) The agreement may provide for the remuneration of the solicitor by a
gross sum, or by commission or percentage or by salary, or otherwise, and it
may be made on the terms that the amount of the remuneration therein
stipulated for either shall or shall not include all or any disbursements made by
the solicitor in respect of searches, plans, travelling, stamps, fees or other
matters.
(3) The agreement shall be in writing and signed by the person to be
bound thereby or his agent in that behalf.
(4) The agreement may be sued and recovered on or set aside in the
like manner and on the like grounds as an agreement not relating to the
remuneration of a solicitor:
Provided that if on any taxation of costs the agreement is relied on by the
solicitor and objected to by the client as unfair or unreasonable, the taxing
officer may inquire into the facts and certify them to the Court, and if on that
certificate it appears just to the Court that the agreement should be cancelled,
or the amount payable thereunder reduced, the Court may order the agreement
to be cancelled, or the amount payable thereunder to be reduced, and may give
such consequential directions as it thinks fit.
[cf. 1957 c. 27 s. 57 U.K.]
57. Remuneration of a solicitor who is a mortgagee
(1) If a mortgage is made to a solicitor, either alone or jointly with any
other person, he, or the firm of which he is a member, shall be entitled to
recover from the mortgagor in respect of all business transacted and acts done
by him or them in negotiating the loan, deducing and investigating the title to
the property, and preparing and completing the mortgage, such usual costs as
he or they would have been entitled to receive if the mortgage had been made to
a person who was not a solicitor and that person had retained and employed
him or them to transact that business and do those acts.
(2) If, whether before or after the commencement of this Ordinance, a mortage
has been made to, or has become vested by transfer or transmission in, a solicitor,
either alone or jointly with any other person, and if any business is transacted or
acts done by that solicitor, or by the firm of which he is a member, in relation to that
mortgage, or the security thereby created or the property comprised thereunder,
then he or they shall be entitled to recover from the person on whose behalf the
business was transacted or the acts were done, and to charge against the security,
such usual costs as he or they would have been entitled to receive if the mortgage
had been made to and had remained vested in a person who was not a solicitor and
that person had retained and employed him or them to transact that business and do
those acts.
(3) In this section, 'mortgage' includes any charge on any property for
securing money or money's worth.
[cf. 1957 c. 27 s. 58 U.K.]
Contentious Business
58. Power to make agreements
A solicitor may make with his client an agreement in writing as to his
remuneration, in respect of any contentious business done or to be done by the
solicitor for the client, which provides that the solicitor shall be remunerated either
by a gross sum or by salary, or otherwise, and at either a greater or a less rate than
that at which he would otherwise have been entitled to be remunerated.
[cf. 1957 c. 27 s. 59 U.K.]
59. Miscellaneous provisions
(1) An agreement such as is referred to in section 58
(a)shall not affect the amount of, or any rights or remedies for the
recovery of, any costs payable by the client to, or to the client by,
any person other than the solicitor, and that person may, unless he
has otherwise agreed, require any such costs to be taxed according
to the rules for the time being in force for the taxation thereof.
Provided that the client shall not be entitled to recover from any
other person under any order for the payment of any costs to which
the agreement relates more than the amount payable by him to his
solicitor in respect thereof under the agreement;
(b)shall be deemed to exclude any claim by the solicitor in respect of the
business to which it relates other than
(i) a claim for the agreed costs; or
(ii) a claim for such costs as are expressly excepted therefrom.
(2) A provision in any such agreement that the solicitor shall not be liable
for negligence, or that he shall be relieved from any responsibility to which he
would otherwise be subject as a solicitor, shall be void.
[cf. 1957 c. 27 s. 60 U.K.]
60. Enforcement of agreements in respect
of contentious business
(1) No action shall be brought upon any such agreement as is referred to
in section 58, but the court may, on the application of any person who is a party
to, or the representative of a party to, the agreement, or who is, or who is
alleged to be, liable to pay. or who is or claims to be entitled to be paid, the
costs due or alleged to be due in respect of the business to which the agreement
relates, enforce or set aside the agreement and determine every question as to
the validity or effect thereof.
(2) On any such application the court-
(a)if it is of opinion that the agreement is in all respects fair and
reasonable, may enforce it;
(b)if it is of opinion that the agreement is in any respect unfair or
unreasonable, may declare it void and may order it to be given up
to be cancelled and may order the costs covered thereby to be
taxed as if the agreement had never been made;
(c)in any case, may make such order as to the costs of the
application as it may think fit.
(3) If the business covered by any such agreement is business done, or to
be done, in any action, the amount payable under the agreement shall not be
received by the solicitor until the agreement has been examined and allowed by
a taxing officer of the court, and, if the taxing officer is of opinion that the
agreement is unfair or unreasonable, he may require the opinion of the court to
be taken thereon and the court may reduce the amount payable thereunder, or
order the agreement to be cancelled and the costs covered thereby to be taxed as
if the agreement had never been made.
(4) When the amount agreed for under any such agreement has been paid
by or on behalf of the client or by any person entitled so to do, the person
making the payment may at any time within 12 months after payment apply to
the court and the court, if it appears to it that the special circumstances of the
case require the agreement to be reopened, may, on such terms as may be just,
reopen the agreement and may order the costs covered thereby to be taxed and
the whole or any part of the amount received by the solicitor to be repaid by
him.
(5) Where any such agreement is made by the client as the guardian or
committee of, or as a trustee under a deed or will for, any person whose
property will be chargeable with the whole or any part of the amount payable
under the agreement, the agreement shall, before payment, be laid before the
taxing officer of the court, and that officer shall examine the agreement and may
disallow any part thereof, or may require the opinion of the court to be taken
thereon.
(6) Any such client as is mentioned in subsection (5), who pays the whole
or any part of the amount payable under the agreement without the agreement
having been allowed by the taxing officer or by the court, shall be liable at any
time to account to the person whose property is charged with the whole or any
part of the amount so paid for the sum so charged, and the solicitor who
accepts the payment may be ordered by the court to refund the amount received
by him.
[cf. 1957 c. 27 s. 61 U.K.]
61. Death, incapability, or change of solicitor, etc.
(1) If, after some business has been done under an agreement made in
pursuance of the provisions of section 58 but before the solicitor has wholly
performed it, the solicitor dies or becomes incapable of acting, any party to, or
the representative of any party to, the agreement may apply to the court and
the court shall have the same jurisdiction as to enforcing the agreement so far as
it has been performed, or setting it aside, as it would have had if the solicitor
had not died or become incapable of acting:
Provided that the court may, notwithstanding that it is of opinion that the
agreement is in all respects fair and reasonable, order the amount due in respect
of the business done thereunder to be ascertained by taxation, and in that
case-
(a)the taxing officer, in ascertaining that amount, shall have regard
so far as may be to the terms of the agreement; and
(b)payment of the amount found by him to be due may be enforced
in the same manner as if the agreement had been completely
performed.
(2) The provisions of subsection (1) shall apply in the event of the client
changing his solicitor (as, notwithstanding the agreement, he shall be entitled to
do) before the conclusion of the business to which the agreement relates in the
same manner as they apply when the solicitor dies or is incapacitated, with this
modification, that if an order is made for the taxation of the amount due to the
solicitor in respect of the business done under the agreement the court shall
direct the taxing officer to have regard to the circumstances under which the
change of solicitor has taken place, and the taxing officer, unless he is of
opinion that there has been no default, negligence, improper delay or other
conduct on the part of the solicitor affording to the client reasonable ground for
changing his solicitor, shall not allow to the solicitor the full amount of the
remuneration agreed to be paid to him.
(3) In this section and in sections 60 and 63, 'court' means-
(a)in relation to an agreement under which any business has been
done in any court having jurisdiction to enforce and set aside
agreements, any such court in which any of that business has
been done;
(b)in relation to an agreement under which no business has been
done in any such court, and under which more than the sum
mentioned in section 32 of the District Court Ordinance (Cap.
336) is payable, the High Court; (Amended 35 of 1966 Schedule;
68 of 1973 s. 5; 79 of 1981 s. 3)
(c)in relation to an agreement under which no business has been
done in any such court, and under which not more than the sum
mentioned in section 32 of the District Court Ordinance (Cap.
336) is payable, the District Court. (Amended 35 of 1966
Schedule; 68 of 1973 s. 5; 79 of 1981 s. 3)
[cf. 1957 c. 27 s. 62 U.K.]
62. Agreement excludes taxation
Subject to the provisions of sections 59, 60 and 61, the costs of a solicitor
in any case where any agreement has been made in pursuance of the provisions
of section 58 shall not be subject to taxation, nor to the provisions of section 66
with respect to the signing and delivery of a solicitor's bill.
[cf. 1957 c. 27 s. 63 U.K.]
63. Form of bill of costs for contentious business
Where the remuneration of a solicitor in respect of contentious business
done by him is not the subject of such an agreement as is mentioned in section
58, the solicitor's bill of costs may at the option of the solicitor either contain
detailed items or be for a gross sum:
Provided that-
(a)at any time before service upon him of a writ or other originating
process for the recovery of costs included in a gross sum bill and
before the expiration of 3 months from the date of the delivery to
him of the bill, the party chargeable therewith may require the
solicitor to deliver to him in lieu thereof a bill containing detailed
items, and the gross sum bill shall thereupon be of no effect;
(b)where an action is commenced on a gross sum bill, the court
shall, if so requested by the party chargeable therewith before the
expiration of 1 month from the service on that party of the writ
or other originating process, order that the bill shall be taxed;
(c)if a gross sum bill is referred to taxation, whether under this section
or otherwise, nothing in this section shall prejudice any rules of court
with respect to taxation, and the solicitor shall furnish the taxing
officer with such details of any of the costs covered by the bill as the
taxing officer may require.
[cf. 1957 c. 27 s. 64 U.K.]
General Provisions regarding Remuneration
64. General prvisions as to remuneration
(1) Nothing in section 58, 59, 60, 61 or 62 shall give validity to
(a)any purchase by a solicitor of the interest, or any part of the interest,
of his client in any action, suit or other contentious proceeding; or
(b)any agreement by which a solicitor retained or employed to prosecute
any action, suit or other contentious proceeding stipulates for
payment only in the event of success in that action, suit or
proceeding; or
(c)any disposition, contract, settlement, conveyance, delivery, dealing
or transfer which is under the law relating to bankruptcy invalid
against a trustee or creditor in any bankruptcy or composition.
(2) A solicitor may take security from his client for his costs to be ascertained
by taxation or otherwise.
(3) Subject to the provisions of any rules of court, upon every taxation of costs
with respect to any contentious business, the taxing officer may
(a)allow interest at such rate and from such time as he thinks just on
moneys disbursed by the solicitor for the client, and on moneys of
the client in the hands of, and improperly retained by, the solicitor;
(b)in determining the remuneration of the solicitor, have regard to the
skill, labour and responsibility involved in the business done by him,
the general complexity of the matter and the amount or value of the
matter in issue.
[cf. 195 7 c. 27 s. 65 U.K.]
65. Power of Court to order delivery of bill, etc.
(1) The jurisdiction of the Court to make orders for the delivery by a solicitor of
a bill of costs and for the delivery up of, or otherwise in relation to, any deeds,
documents or papers in his possession, custody or power is hereby declared to
extend to cases in which no business has been done by him in the Court.
(2) If a mortgage has been made to, or has become vested by transfer or
transmission in, a solicitor, either alone or jointly with any other person, and any
business is transacted or acts are done by that solicitor, or by the firm of which he is
a member, in relation to that mortgage or the security thereby created or the property
comprised thereunder, then he or they shall be entitled to recover from the person
on whose behalf the business was transacted or the acts were done, and to charge
against the security, such usual costs as he or they would have been entitled to
receive if the mortgage had been made to and had remained vested in a person who
was not a solicitor and that person had retained and employed him or them to
transact that business and do those acts.
(3) In this section and in sections 66, 67 and 68, 'solicitor' includes the
executors, administrators and assignees of the solicitor in question.
[cf. 1957 c. 27 s. 67 U.K.]
66. Action to recover costs
(1) Subject to the provisions of this Ordinance, no action shall be brought to
recover any costs due to a solicitor until 1 month after a bill thereof has been
delivered in accordance with the requirements of this section:
Provided that, if there is probable cause for believing that the party chargeable
with the costs is about to quit Hong Kong, or become a bankrupt, or to compound
with his creditors, or to do any other act which would tend to prevent or delay the
solicitor obtaining payment, the Court may, notwithstanding that 1 month has not
expired from the delivery of the bill, order that the solicitor be at liberty to commence
an action to recover his costs and may order those costs to be taxed. (Amended50 of
182 s. 8)
(2) The said requirements are as follows
(a)the bill must be signed by the solicitor, or if the costs are due to a firm
by one of the partners of that firm, either in his own name or in the
name of the firm, or be enclosed in, or accompanied by, a letter which
is so signed and refers to the bill; and
(b)the bill must be delivered to the party to be charged therewith, either
personally or by being sent to him by post to, or left for him at, his
place of business, dwelling house or last known place of abode,
and where a bill is proved to have been delivered in compliance with those
requirements, it shall not be necessary in the first instance for the solicitor to prove
the contents of the bill and it shall be presumed, until the contrary is shown, to be a
bill bona fide complying with this Ordinance.
[cf. 1957 c. 7 s. 68 U.K.]
67. Taxation of bills on application of
party chargeable on solicitor
(1) On the application, made within 1 month of the delivery of a
solicitor's bill, of the party chargeable therewith the Court shall, without
requiring any sum to be paid into court, order that the bill shall be taxed and
that no action shall be commenced thereon until the taxation is completed.
(2) If no such application is made within the period mentioned in
subsection (1), then, on the application either of the solicitor or of the party
chargeable with the bill, the Court may, upon such terms, if any, as it thinks fit
(not being terms as to the costs of the taxation), order-
(a) that the bill shall be taxed;
(b)that, until the taxation is completed, no action shall be
commenced on the bill, and any action already commenced be
stayed:
Provided that-
(i) if 12 months have expired from the delivery of the bill, or if the
bill has been paid, or if a verdict has been obtained or a writ of
inquiry executed in an action for the recovery of the costs covered
thereby, no order shall be made on the application of the party
chargeable with the bill except in special circumstances and, if an
order is made, it may contain such terms as regards the costs of
the taxation as the Court may think fit;
(ii) in no event shall any such order be made after the expiration of
12 months from the payment of the bill.
(3) Every order for the taxation of a bill shall require the taxing officer to
tax not only the bill but also the costs of taxation and to certify what is due to
or by the solicitor in respect of the bill and in respect of the costs of the
taxation.
(4) If after due notice of any taxation either party thereto fails to attend,
the taxing officer may proceed with the taxation ex parte.
(5) Unless-
(a)the order for taxation was made on the application of the
solicitor and the party chargeable does not attend the taxation; or
(b) the order for taxation otherwise provides,
the costs of the taxation shall be paid according to the event of the taxation,
that is to say, if one-sixth or more of the amount of the bill is taxed off, the
solicitor shall pay the costs, but otherwise the party chargeable shall pay the
costs:
Provided that-
(i) if, in the case of a bill for non-contentious business, not less than
half of the amount of the bill before taxation consists of
costs for which no scale charge is prescribed, for the reference in
this subsection to one-sixth of the amount of the bill there shall
be deemed to be substituted a reference to one-fifth thereof,
(ii) the taxing officer may certify any special circumstances relating to
the bill or the taxation thereof to the Court, and the Court may
make thereon any such order as it thinks fit respecting the
payment of the costs of the taxation.
[cf. 1957 c. 27 s. 69 U.K.]
68. Taxation on application of third parties
(1) Where a person other than the person who is the party chargeable
with the bill for the purposes of section 67 has paid, or is or was liable to pay,
the bill either to the solicitor or to the party chargeable with the bill, that person
or his executors, administrators or assignees may apply to the Court for an
order for the taxation of the bill as if he were the party chargeable therewith,
and the Court may make thereon the same order, if any, as it might have made
if the application had been made by that party:
Provided that, in cases where the Court has no power to make an order
except in special circumstances, the Court may, in considering whether there are
special circumstances sufficient to justify it in making an order, take into
account circumstances affecting the applicant but which do not affect the party
chargeable with the bill.
(2) If a trustee, executor or administrator has become liable to pay a bill
of a solicitor the Court may, upon the application of any person interested in
any property out of which the trustee, executor or administrator has paid, or is
entitled to pay, the bill, and upon such terms, if any, as it thinks fit, order the
bill to be taxed, and may order such payments, in respect of the amount found
due to or by the solicitor and in respect of the costs of the taxation, to be made
to or by the applicant, or to or by the solicitor, or to the executor, administrator
or trustee as it thinks fit:
Provided that in considering any such application the Court shall have
regard to-
(a)the provisions of section 67 as to applications by the party
chargeable with taxation of a solicitor's bill so far as they are
capable of being applied to an application made under this
subsection;
(b) the extent and nature of the interest of the applicant.
(3) If an applicant under subsection (2) pays any money to the solicitor,
he shall have the same right to be paid that money by the trustee, executor or
administrator chargeable with the bill as the solicitor had.
(4) On an application made under this section-
(a)except in special circumstances, no order shall be made for the
taxation of a bill which has already been taxed;
(b)the Court may, if it orders taxation of the bill, order the solicitor
to deliver to the applicant a copy of the bill upon payment of the
costs of that copy.
[cf. 1957 c. 27 s. 70 U.K.]
69. General provisions as to taxations
(1) Every application for an order for the taxation of a solicitor's bill or
for the delivery of such a bill and the delivering up of any deeds, documents and
papers by a solicitor shall be made in the matter of that solicitor.
(2) The certificate of the taxing officer by whom any bill has been taxed
shall, unless it is set aside or altered by the Court, be final as to the amount of
the costs covered thereby, and the Court may make such order in relation
thereto as it thinks fit, including, in a case where the retainer is not disputed, an
order that judgment be entered for the sum certified to be due with costs.
[cf. 1957 c. 27 s. 71 U.K.]
70. Charging orders
Any court in which a solicitor has been employed to prosecute or defend
any suit, matter or proceeding may at any time declare the solicitor entitled to a
charge on the property recovered or preserved through his instrumentality for
his taxed costs in reference to that suit, matter or proceeding and may make
such orders for the taxation of the said costs and for raising money to pay, or
for paying, the said costs out of the said property, as it thinks fit, and all
conveyances and acts done to defeat, or operating to defeat, that charge shall,
except in the case of a conveyance to a bona fide purchaser for value without
notice. be void as against the solicitor:
Provided that no order shall be made if the right to recover the costs is
barred by any statute of limitations.
[cf. 1957 c. 27 s. 72 U.K.]
71. Revival of order for payment of costs
Whenever any judgment or order has been made for payment of costs in
any action and such action afterwards becomes abated, it shall be lawful for
any person interested under such judgment or order to revive such action, and
thereupon to prosecute and enforce such judgment or order, and so from time
to time as often as any such abatement may happen.
[cf. 1870 c. 28 s. 19 U.K.]
PART VII
RULES
72. Power of Chief Justice to make rules
The Chief Justice may make rules-
(a) in relation to the admission of solicitors and of barristers and the
registration of notaries public--
(i) regulating the manner in which applications for admission under
sections 3, 27 and 27A shall be made and the forms to be
employed in respect thereof; (Amended 46 of 1989 s. 15)
(ii)regulating the procedure and constitution of the Court at the
hearing of applications under sections 3, 27 and 27A; (Amended
46 of 1989 s. 15)
(iii) regulating the manner in which applications for registration under
section 40 shall be made and the forms to be employed in
respect thereof;
(iv) exempting, in any particular case, a person seeking admission
under section 3 or 27 or registration under section 40 from
compliance with all or any of the conditions prescribed for
such admission or registration by this Ordinance, subject to
such conditions as may appear necessary;
(v) providing for the duties of the Registrar in connection with such
admissions and registrations;
(vi) providing for the forms of the roll of solicitors, the roll of
barristers and the register of notaries public, the mode in which
they shall be kept and the contents thereof,
(vii) prescribing any fees payable in connection with such admissions
and registrations;
(viii) regulating the issue to barristers of practising certificates and the
fees payable for, the conditions of issue of, the manner of
applying for, the period and form of, the publication of the issue
and the suspension of such practising certificates and generally
in relation thereto; (Replaced 58 of 1976s.11)
(ix) (Repealed 58 of 1976 s. 11)
(x) regulating the granting of exemption from the provisions of any
of such rules and of the compliance with any terms imposed
upon the grantees of such exemption and prescribing the form of
any statutory declaration evidencing such compliance;
(b) in relation to the conduct of barristers, to provide for-
(i) the laying of a complaint before the Committee of Inquiry;
(ii) the conduct of proceedings before a Committee of Inquiry;
(iii) the submission of the report of a Committee of Inquiry to the
Court of Appeal and its consideration by the Court of Appeal;
and
(iv)the procedure for making an application, under section 38, to vary
or discharge an order of the Court of Appeal and for hearing any
such application; and (Amended 92 of 1975 S.59)
(c) generally to prescribe or provide for
(i) any other certificate, form or other document required under this
Ordinance;
(ii)any other fee which is required to be prescribed under this
Ordinance;
(iii)the better carrying into effect of the provisions of this Ordinance;
and
(iv) anything which under this Ordinance is to be or may be
prescribed by the Chief Justice.
72A. Rules for barristers in Hong Kong
The Chief Justice may make rules in relation to the admission of persons who
seek to qualify or have qualified as barristers in Hong Kong
(a) regulating the enrolment of students seeking to become barristers
in Hong Kong;
(b) regulating the manner in which pupillage may be served, including
applications for pupillage, disqualifications in respect of pupillage,
approval and termination of pupillage and the period and
requirements of pupillage; (Replaced 58 of 1976 s.12)
(ba) regulating the examinations to be passed by students seeking to
become barristers in Hong Kong; (Added 58 of 1976 s. 12)
(bb) prescribing the qualifying period of active practice for the
purposes of section 31, which period may include such periods of
active practice served before admission as a barrister in Hong
Kong or before call to the Bar in England or Northern Ireland
or admission as an advocate in Scotland as may be prescribed;
(Added 58 of 1976 s. 12)
(c) generally for the better control of such students.
(Added 32 of 1972 s. 3)
72B. Legislative Council may amend Schedule 1
The Legislative Council may by resolution amend Schedule 1.
73. Power of the Council to make rules
(1) The Council may make rules-
(a) providing for
(i)the conduct and discipline of solicitors, solicitor's employees and
articled clerks; (Replaced 25 of 1968 s. 14. Amended 1 of 1981 s. 5)
(ii)the restriction of payment of commission to unqualified persons;
and
(iii) for the purpose of harmonizing the relationship of solicitors inter
se and, with the prior approval of the Bar Committee, governing
the relationship of solicitors and barristers;
(aa) regulating the issue to solicitors of practising certificates and the
fees payable for, the conditions of issue of, the manner of
applying for, the period and form of, the publication of the issue
and the suspension of such practising certificates and generally in
relation thereto; (Added 58 of 1976s.13)
(b) in relation to the keeping by solicitors of accounts, providing
for-
(i) the opening and keeping by solicitors of accounts at banks of
clients' money;
(ii)the keeping by solicitors of accounts containing particulars and
information as to moneys received, held or paid both for or on
account of their clients;
(iii) empowering the Council to take such action as may be necessary
to enable them to ascertain whether or not such rules are being
complied with;
(iv)regulating the manner in which solicitors shall deal with money
held by them in a fiduciary capacity and the books of accounts to
be kept in respect thereof and for the auditing of such accounts;
(v)the qualifications to be held by an accountant by whom an
accountant's report may be given; (Amended 25 of 1968 s.14)
(vi)the nature and extent of the examination to be made by the
accountant of the books and accounts of a solicitor or of his firm
and of any other relevant documents with a view to the signing
of a report to be delivered by the solicitor under section 8;
(Amended 25 of 1968 s. 14)
(vii)the form of an accountant's report and the information to be
contained therein in accordance with section 8(1); (Replaced 25 of
1968 s. 14)
(viii)the evidence, if any, which shall satisfy the Council that the
delivery of an accountant's report is unnecessary and the cases
in which such evidance is or is not required; (Amended 25 of
1968 s. 14)
(ix)specifying in such circumstances as may be set forth in the rules
a different accounting period from that specified in section 8(2);
and
(x) regulating any matters of procedure or matters incidental,
ancillary or supplemental to the provisions of section 8;
(c) providing for the conduct of inquiries, or investigations by a
Disciplinary Committee under section 9;
(d) regulating articles and examinations, and in particular, without
prejudice to the generality of the foregoing, providing for-
(Amended32of 1972s. 4)
(i) the manner in which any person shall qualify for admission under
section 4(1)(a)(i) including, in particular, the period of articles, if
any, to be served in any particular case, the examination or
examinations to be passed and notices and forms to be used in
connection therewith; and
(ii)the manner in which application for admission under section
4(1)(a)(ii) shall be made and the documents to be filed in
connection therewith; (Amended 1 of 1981 s. 5)
(e) enabling the Council to exempt any person from compliance with
the provisions of any such rules and to impose and enforce
conditions upon which such exemption may be granted in any
particular case; and
prescribing any thing which, under this Ordinance, is to be or
may be prescribed by the Council. (Amended 52 of 1980 s. 2)
(2) Every rule made by the Council under this section shall be subject to the
prior approval of the Chief Justice. (Amended52 of 1980s.2)
(3) No rule made under subsection (1)(b), (c) or (d) shall apply to a person to
whom section 75 applies insofar as such person is acting in the course of the
employment which gives rise to the application of that section. (Amended50 of 1982
s. 5)
73A. Indemnity rules
(1) The Council may make rules (in this Ordinance referred to as indemnity
rules') concerning indemnity against loss arising from claims in respect of any
description of civil liability incurred
(a) by a solicitor or former solicitor in connection with his practice
or with any trust or of which he is or formerly was a trustee;
(b)by an employee of a solicitor or former solicitor in connection
with that solicitor's practice or with any trust of which that
solicitor or the employee is or formerly was a trustee.
(2) For the purpose of providing such indemnity, indemnity rules-
(a)may authorize or require the Society to establish and maintain a
fund or funds;
(b)may authorize or require the Society to take out and maintain
insurance with authorized insurers;
(c)may require solicitors or any specified class of solicitors to take
out and maintain insurance with authorized insurers.
(3) Without prejudice to the generality of subsections (1) and (2), in-
demnity rules-
(a)may specify the terms and conditions on which indemnity is to be
available, and any circumstances in which the right to it is to be
excluded or modified;
(b)may provide for the management, administration and protection
of any fund maintained by virtue of subsection (2)(a) and require
solicitors or any class of solicitors to make payments to any such
fund;
(c)may require solicitors or any class of solicitors to make payments
by way of premium on any insurance policy maintained by the
Society by virtue of subsection (2)(b);
(d)may prescribe the conditions which an insurance policy must
satisfy for the purposes of subsection (2)(c);
(e)may authorize the Society to determine the amount of any
payments required by the rules, subject to such limits, or in
accordance with such provisions, as may be prescribed by the
rules;
may specify circumstances in which, where a solicitor (not being a
solicitor who is exempt from complying with the rules) for whom
indemnity is provided has failed to comply with the rules, the
Society or insurers may take proceedings against him in respect
of sums paid by way of indemnity in connection with a matter in
relation to which he has failed to comply;
(g)may specify circumstances in which solicitors are exempt from
the rules;
(h)may empower the Council to take such steps as they consider
necessary or expedient to ascertain whether or not the rules are
being complied with; and
(i) may contain incidental, procedural or supplementary provisions.
(4) If any solicitor (not being a solicitor who is exempt from complying
with indemnity rules) fails to comply with the rules any person may make a
complaint in respect of that failure to the Disciplinary Committee.
(5) The Society shall have power, without prejudice to any of its other powers,
to carry into effect any arrangements which it considers necessary or expedient for
the purpose of indemnity under this section.
(6) Every rule made by the Council under this section shall be subject to the
prior approval of the Chief Justice.
(7) No rule made under this section shall apply to a person to whom section 75
applies in so far as such person is acting in the course of the employment which
gives rise to the application of that section. (Amended50 of 1982 s. 6)
(Added 75 of 1980 s. 4)
74. Costs Committee
(1) There is hereby established a Costs Committee consisting of the following
persons
(a)a judge of the High Court appointed by the Chief Justice as
Chairman; (Replaced 52 of 1980 s. 2)
(b) the Registrar or a deputy registrar of the Supreme Court;
(c)the Registrar General or such representative of the Registrar General
as is approved by the Chief Justice; and
(d)the President and the Vice-President of the Society and one member
of the Society nominated by the Society and approved by the Chief
Justice.
(2) The quorum for the Costs Committee shall be the Chairman and 2 members
under subsection (1)(d).
(3) The Costs Committee may make rules
(a)providing for the remuneration of solicitors in respect of non-
contentious business;
(b)prescribing that, as regards the mode of remuneration, it shall be
according to the scale of rates or percentage varying or not in
different classes of business, or by a gross sum, or by a fixed sum for
each document prepared or perused, without regard to length, or in
any other mode, or partly in one mode and partly in another;
(c)regulating the amount of remuneration with reference to all or any of
the following, among other, considerations, that is to say
(i)the position of the party for whom the solicitor is concemed in
the business, that is, whether as vendor or purchaser, lessor or
lessee, mortgagor or mortgagee, and the like;
(ii)the place where, and the circumstances in which, the business
or any part thereof is transacted;
(iii) the amount of the capital money or rent to which the
business relates;
(iv) the skill, labour and responsibility involved therein on the
part of the solicitor;
(v)the number and importance of the documents prepared or
perused, without regard to length;
(d) authorizing and regulating the taking by a solicitor from his
client of security for payment or otherwise, which may become
due to him under any such rule; and
(e) authorizing and regulating the allowance of interest on costs and
expenses.
(4) Every rule made under this section shall be subject to the prior
approval of the Chief Justice.
(5) So long as any rules made under this section are in operation, taxation
of bills of costs of solicitors in respect of non-contentious business shall, subject
to the provisions of section 5, be regulated by such rules.
PART VIII
GENERAL
74A. Advisory Committee on Legal Education
(1) There is established an Advisory Committee on Legal Education to
advise the Governor on-
(a) legal education and training in Hong Kong; and
(b)the future demand in Hong Kong for persons with legal
education or training and the means by which that demand may
be met.
(2) The committee shall consist of-
(a) the Chief Justice or his representative, who shall be the chairman;
(b) the Attorney General or his representative;
(c) the Secretary for Education and Manpower or his representative;
(d) 10 other members appointed by the Governor, of whom-
(i) 3 shall be nominated by the Society;
(ii) 2 shall be nominated by the Bar Committee;
(iii) 2 shall be nominated by the Vice-Chancellor of the
University of Hong Kong; and
(iv) one shall be nominated by the Director of the City
Polytechnic of Hong Kong; and
(e) other persons the committee may co-opt.
(3) A member of the committee who is unable to attend a meeting of the
committee may, on 7 days' notice to the chairman, send a substitute who shall be
deemed to be a member of the committee.
(4) A member of the committee appointed under
(a) subsection (2)(d) shall hold office for a 3 year term; and
(b)subsection (2)(e) shall hold office for a term, not exceeding 2 years,
specified by the committee.
(5) A member appointed under
(a)subsection (2)(d) may at any time resign from the committee by
notice in writing to the Governor; or
(b)subsection (2)(e) may at any time resign from the committee by notice
in writing to the chairman.
(6) Notice of the appointment or termination of membership of a member
appointed under subsection (2)(d) may be published in the Gazette.
(7) The Registrar of the Supreme Court shall be secretary to the committee.
(8) The committee shall report its advice at least annually to the Governor or
more often as the Governor requests.
(9) The committee may determine its own procedure.
(Replaced 46 of 1989 s. 17)
75. Saving
Nothing in this Ordinance shall-
(a)prejudice or affect any rights or privileges of any member of Her
Majesty's Overseas Judiciary, any legal officer within the meaning of
section 2 of the Legal Officers Ordinance (Cap. 87), any person to
whom the provisions of the Registrar General (Establishment)
Ordinance (Cap. 100) apply ',any person holding an appointment
under section 3(1) of the Legal Aid Ordinance (Cap. 9 1), or require
any such person or any clerk or officer appointed to act for him to be
admitted in any case where it would not have been necessary for him
to be admitted if this Ordinance had not been enacted; or (Amended
1 of 1981 s. 6; 50 of 1982 s. 7)
(b)affect any enactment empowering any person, whether or not a
solicitor or a barrister, to conduct, convene or otherwise act in
relation to any legal proceedings.
SCHEDULE 1 [ss. 3 27A]
1. The States and Territories of the Commonwealth of Australia.
2. The Territories and Provinces of Canada, except Quebec.
3. New Zealand.
4. The Republic of Ireland.
5. Zimbabwe.
6. Singapore.
(Schedule 1 added 46 of 1989 s.
19)
SCHEDULE 2 [ss. 26A, 26B 26C]
PROPERTY IN THE CONTROL OR POSSESSION OF CERTAIN SOLICITORS AND OTHER
PERSONS
SOLICITORS AND OTHER PERSONS
1. The Council may require the production or delivery to any person appointed by the Council at
a time and place to be fixed by the Council, and may take possession, of all deeds, wills,
documents constituting or evidencing the title to any property, papers, books of account,
records, vouchers and other documents in the possession or control of the solicitor or his firm, or
relating to any trust or which he is the sole trustee or is co-trustee only with one or more of his
partners, employees or articled clerks.
2. If any person having possession or control of any such documents fails to comply forthwith
with any such requirement
(a)he shall be guilty of an offence and be liable on summary conviction to a fine of
$5,000;and. (Amended 46of 1989s. 18)
(b)the High Court or a judge thereof may, on the application of the Council, order that
person to comply with the requirement within such time as may be specified in the
order, and may at the same time further order that on that person's failure to
comply with such requirement one or more members of the Council, or one or more
persons appointed by the Council for the purpose, may forthwith enter upon any
premises (using such force as is reasonably necessary for the purpose) to search for,
and take possession of, the documents referred to in paragraph 1.
3. Upon taking possession of any such documents, the Council shall serve upon the solicitor and
every person from whom those documents were received, or from whose premises they were
taken by virtue of an order made under paragraph 2, a notice giving particulars and the date of
taking possession thereof.
4. Any requirement of notice under this Schedule shall be made in writing under the hand of such
person as may be appointed by the Council for the purpose and may be served on any person
either by personal service or by being sent by registered post addressed to his last known place of
business or residence.
5. Within 14 days after the service of a notice under paragraph 3, the solicitor or other person
upon whom the notice was served may apply to ajudge of the High Court in chambers for an
order directing the Council to return those documents to the person from whom they were
received, or from whose premises they were taken, as the case may be, by the Council, or to such
other person as the applicant may require; and on the hearing of any such application the judge
may make such order with respect to the matter as he may think fit.
6. If no application is made under paragraph 5, or if the judge to whom any such application is
made directs that the documents shall remain in the custody or control of the Council, the
Council may make inquiries to ascertain the person to whom those documents belong and may
deal with those documents in accordance with the directions of that person:
Provided that, before dealing with such documents, the Council may take copies of, or
extracts from, any such documents.
7. The High Court or a judge thereof may, on the application of the Council, order that no
payment shall be made without the leave of the High Court or ajudge thereof by any banker
named in the order out of any banking account in the name of the solicitor or his firm.
8. (1) The High Court or a judge thereof, on the application of the Council, may from time to
time order that for such time not exceeding 18 months as the Court or judge, as the case may be,
thinks fit, postal packets (as defined by section 2 of the Post Office Ordinance (Cap. 98)
addressed to the solicitor or his firm at any place or places mentioned in the order for re-
direction shall be re-directed, sent or delivered by the Postmaster General or the officers acting
under him to a person appointed under paragraph 1 or otherwise as the Court or judge, as the case
may be, directs, and the same shall be done accordingly.
(2) Where such an order is made under sub-paragraph (1), the Council shall pay to the
Postmaster General the like charges (if any) as would have been charged and payable
(a)in respect of an application or instructions by the addressee, in the case of a
permanent change of his place of business, for the re-direction or delivery of postal
packets to which the order relates to him at the address of the person to whom they
are to be re-directed, sent or delivered under the order, during the time specified in
the order; and
(b)in respect of the re-direction or re-transmission of any individual postal packet in
accordance with the order, if the packet had been redirected or re-transmitted in
accordance with such application or instructions as aforesaid.
9. In any case where the Council has taken possession of documents under paragraph 1, and has
not been required to return them by virtue of paragraph 5, the following paragraphs shall apply,
but without prejudice to the application of paragraph 16 so far as it affects any of the preceding
paragraphs.
10. The Council may, by resolution in that behalf, take control of all sums of money due from
the solicitor or his firm to, or held by him or his firm on behalf of, his or his firm's clients or
subject to any trust of which he is the sole trustee or co-trustee only with one or more of his
partners, employees or articled clerks, and for that purpose the Council shall serve on the
solicitor or his firm, and, except where the provisions of section 26D apply, on any banker and
on any other person having possession or control of any such sums of money a notice together
with a certified copy of such resolution, prohibiting the payment out of such sums of money
otherwise than pursuant to paragraph 12or 13. (Amended 58 of 1976 s.14)
11. Within 14 days of the service of a notice under paragraph 10 the solicitor or his firm, or the
banker or other person upon whom the notice was served, may apply to a judge of the High Court
in chambers for an order directing the Council to withdraw the notice and on the hearing of any
such application the judge may make such order with respect to the matter as he may think fit.
12. Subject to the service of any notice under paragraph 10, and to any application that may be
made under paragraph 11, the Council or any person in that behalf appointed by the Council may
withdraw the moneys, or from time to time any part of the moneys, in any banking account in
the name of the solicitor or his firm, and any moneys in the office of the solicitor or his firm due
to or held on behalf of his clients, and pay them into a special account or special accounts in the
name of the Council or such person appointed as aforesaid and may operate on, and otherwise
deal with, such special account or accounts as the solicitor or his firm might have operated on, or
otherwise dealt with, the said banking account:
Provided that a banker with whom such special account or accounts is or are kept shall be
under no obligation to ascertain whether that account or those accounts is or are being so
operated on or otherwise dealt with.
13. (1) Subject to paragraphs 11 and 12, the Council may serve a notice on the solicitor, or his
firm or banker or other person upon whom a notice has been served under paragraph 10, directing
that, immediately after the expiration of 8 days from the service of the first-mentioned notice,
such moneys as are referred to in that notice be transferred in accordance with the directions of
the Council:
Provided that-
(a)no such directions shall be given by the Council except with the approval of the
person to whom the said moneys belong, being in the case of a trust the trustee, and,
where the solicitor is the sole trustee of a trust or a co-trustee thereof only with one
or more of his partners, clerks or servants, the person beneficially entitled to such
moneys; and
(b)the person upon whom such first-mentioned notice has been served as aforesaid shall
be under no obligation to ascertain whether such approval has been obtained.
(2) In any case where the Council is unable to ascertain the person to whom the said moneys
belong or where the Council otherwise thinks it expedient so to do, the Council may apply to the
High Court or a judge thereof for directions as to the transfer of such moneys.
14. If any person fails to comply with the requirements of any notice given under paragraph 10
or 13
(a)he shall be guilty of an offence and be liable on summary conviction to a fine of
$5,000;and (Amended 46of 1989s. 18)
(b)the High Court or a judge thereof may, on the application of the Council, order that
person to comply with the requirements of the notice within such time as may be
specified in the order.
15. Subject to any order for the payment of costs, that may be made on an application under
paragraph 2, 5, 7, 8, 11, 13(2) or 14, any costs incurred by the Council for the purposes of this
Schedule shall be paid by the solicitor and shall be recoverable from him as a debt owing to the
Council.
16. The Council may make rules with respect to the procedure to be followed in giving effect to
the provision of paragraphs 1, 3, 4, 6, 10, 12 and 13(1) and with respect to any matters
incidental, ancillary or supplemental to those provisions.
(Schedule 2added25of 1968s. 16. Amended9of1975s.59;52of 1980s.2)
[cf. 1965 c. 31 Sch. 1
U.K.]
Abstract
Identifier
https://oelawhk.lib.hku.hk/items/show/2716
Edition
1964
Volume
v12
Subsequent Cap No.
159
Number of Pages
60
Files
Collection
Historical Laws of Hong Kong Online
Citation
“LEGAL PRACTITIONERS ORDINANCE,” Historical Laws of Hong Kong Online, accessed April 24, 2025, https://oelawhk.lib.hku.hk/items/show/2716.
