FAMV No. 270 of 2023

[2023] HKCFA 34

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 270 OF 2023 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 394 OF 2020)

_______________________

_______________________

__________________________________

REASONS FOR DETERMINATION

__________________________________

Mr Justice Fok PJ:

1. Having heard counsel for the applicant, we dismissed this application for leave to appeal without calling on counsel for the respondent, indicating that we would hand down the reasons for our determination in due course, which we now do.

2. The applicant is a solicitor and notary public, who has practised as such in Hong Kong since 1987 and 1995 respectively. He joined the respondent society (“the Society”) in 2005. The Society has powers under its articles of association, which apply to its members, to prescribe the conditions of membership and rules for the renewal of membership.

3. By virtue of s.40D(1)(d) and (2) of the Legal Practitioners Ordinance ( Cap.159 ), a solicitor who holds a practising certificate from the Law Society of Hong Kong and a membership certificate from the Society may practice as a notary public.

4. The applicant sought to practice as a notary public for 2019 on the strength of his holding a practising certificate as a solicitor and a membership certificate of the Society. Under the requirements prescribed by the Society, similar to those applicable in previous years, the deadline for applying for a membership certificate from the Society for 2019 was 5.30 pm on 30 November 2018. By that time, practising certificates from the Law Society would not have been issued for 2019 and so the Society’s membership application form included an undertaking to provide a member’s practising certificate as a solicitor by 12 noon on 11 January 2019. The circular, dated 18 September 2018, advising members of the process for membership renewal for 2019, included a condition that, in the event a member failing to honour the undertaking to provide his solicitor’s practising certificate by noon on 11 January 2019, an additional administrative charge of HK$3,000 would be payable. The circular also stated that, in that event, the member might be subject to disciplinary proceedings for breach of undertaking, as the Society’s Council might decide.

5. The applicant objected to the administrative charge and sought the Society’s agreement to waive it. The Society considered his request but declined to waive the administrative charge. The applicant eventually paid the administrative charge under protest. Thereafter, the applicant brought judicial review proceedings to challenge the decision of the Society to impose the administrative charge and to make renewal of his practising certificate as a notary public conditional on payment of that charge, in the sense that the Society would consider revoking his practising certificate if he did not pay the administrative charge. The applicant contended that the administra