Re Mark Taylor Simpson Qc

CACV 543/2019

[2021] HKCA 22

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 543 OF 2019

(ON APPEAL FROM HCMP NO 1013 OF 2019)

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Before: Hon Lam VP, Kwan VP and Barma JA in Court

Date of Hearing: 30 November 2020

Date of Judgment: 8 January 2021

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J U D G M E N T

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Hon Lam VP:

1.I respectfully agree with the judgment of Kwan V-P. The submission that the grant of higher right of audience to solicitor advocate should carry with it the right for such solicitor advocate to appear with overseas leader without engagement of a local barrister as junior is, if I may respectfully say so, beguilingly palatable. However, as explained by Kwan V-P, it is a fallacious proposition. Notwithstanding the legislative change in 2012, there are still important distinctions in the practice of a solicitor advocate and that of a barrister. Relevantly for present purposes, the Bar remains a referral profession and a barrister is expected to be uncompromisingly independent whilst solicitor advocate would usually practise in a solicitor firm which, in most cases, also acts as the instructing solicitor. Even though there are instances where a solicitor advocate is instructed by another firm of solicitors, in Hong Kong they are rare and special occasions. Thus, the availability of the service of a solicitor advocate to the general public is not the same as that of a barrister. Further, a solicitor advocate will not be deprived of the opportunity to work together with the overseas leader in cases where his firm is the instructing solicitor. Pitching a case of equality based on equal right of audience alone without regard to other facets is to ignore such material distinctions which, as my Lady shall elaborate, are highly germane in the assessment of the public interest that informs how the discretion to impose condition for admission of overseas counsel should be exercised. When all the material factors are taken into account, I agree that for the reasons given by Kwan V-P there is no ground for this Court to disturb the exercise of discretion by the Chief Judge. The appeal has to be dismissed accordingly.

Hon Kwan VP:

2.This is the appeal of Mr Mark Taylor Simpson, QC against the order made by Poon Ag CJHC (as the Chief Judge of the High Court then was) dated 31 October 2019 on his application for ad hoc admission as a barrister of the High Court pursuant to section 27(4) of the Legal Practitioners Ordinance, Cap 159.  The applicant appeared by Mr Jason Karas, a solicitor advocate.  The appeal is not against the refusal to admit overseas counsel but against the condition attached to the admission of the applicant.

3.By the order made by the judge, the applicant was admitted as a barrister for the purposes of advising and appearing on behalf of the plaintiffs in HCCL 9/2019 at the trial of the action before the Court of First Instance as well as advising the plaintiffs generally in respect of the trial “on condition that he should appear with a local barrister”.  The applicant had sought admission on the basis that if admitted, he would only appear with the solicitor advocates who had been having the conduct of HCCL 9/2019, namely Mr Karas and Mr Tim Kentish, both of Lipman Karas, without instructing a local barrister.  This was rejected by the judge for the reasons in his judgment of 31 October 2019 (“the Judgment”)^[1].

4.In the supplementary notice of appeal, the applicant sought to set aside the condition aforesaid and replace it with a condition that “he should appear together with local counsel (whether a barrister or a solicitor advocate)”.  In the oral submission of Mr Karas, he indicated that he would adopt the position of the Secretary for Justice and seek a variation of the judge’s condition such that the applicant be admitted on the condition that he should appear at trial together with Mr Karas.

5.The Secretary for Justice (appearing by Mr Jin Pao, SC and Ms Carmen Siu, SGC) and the Law Society (appearing by Mr Charles Manzoni, SC and Mr Simon Chapman, solicitor advocate) supported the applicant in his appeal.  The Bar Council (appearing by Ms Gladys Li, SC, Mr Stewart Wong, SC and Mr Anthony Chan) opposed this appeal.

Background

6.The relevant background matters are not controversial and may be stated as follows.

7.The plaintiffs in HCCL 9/2019 (previously entitled HCA 1094/2016) are China Forestry Holdings Co Limited (in official liquidation; “China Forestry”) and some of its subsidiaries.  The action was brought against KPMG, the former auditor of China Forestry, and is a substantial negligence claim.  The plaintiffs alleged that KPMG negligently failed to identify they were the victims of a serious and pervasive false accounting by the former management who falsified the substantial majority of China Forestry’s assets and revenue in the financial statements for the year ended 31 December 2009.  They claimed loss and damages in excess of $1.3 billion.  The trial has been set down for ten weeks commencing in June 2021.

8.Lipman Karas have represented the plaintiffs since the outset of the action.  Mr Karas and Mr Kentish have had the conduct of the proceedings, and no barrister has been engaged.

9.It is common ground that the action in HCCL 9/2019 is of unusual difficulty and complexity.  KPMG had obtained the ad hoc admission of Mr Justin Fenwick, QC, for the purpose of advising and appearing on their behalf at the trial.  No issue was taken that Mr Fenwick should appear with a local barrister and he will appear with a local Senior Counsel at the trial.

10.On 8 November 2018, Lipman Karas wrote to the Bar Council seeking consent to the applicant’s ad hoc admission.  In answer to the Bar Association’s Checklist on Ad Hoc Admission of the same date, these are the relevant answers provided on behalf of the applicant:

“I. Basis of Application

A. – “unusual difficulty or complexity”

3. Is suitable local Counsel unavailable?

Local solicitor advocates (Mr Jason Karas and Mr Tim Kentish) have been engaged. …

II. Mechanics of Application

2. Has local Counsel been briefed?

Yes. Local solicitor advocates have been briefed.

3. Are there details of the name or names of local Counsel briefed to appear?

Yes. Solicitor advocates of the Law Society of Hong Kong, namely Mr Jason Karas and Mr Tim Kentish have both had substantial involvement in this matter over the last 2 years. It is envisaged that Mr Karas and Mr Kentish will appear as junior counsel at trial.

4. Has local Counsel been actively involved in the case from an early stage?

Yes. Local solicitor advocates Mr Jason Karas and Mr Tim Kentish have both been actively involved in their capacity as solicitor advocates at Lipman Karas from an early stage.

5. What details as to date or dates briefed and his or their involvement in the case thus far?

Mr Jason Karas and Mr Tim Kentish have been involved in the case since February 2016.

6. When was the decision made that overseas Counsel would be briefed to appear?

Mr Simpson QC has not yet been briefed and will not be briefed unless and until the issues concerning his ad hoc admission in Hong Kong have been resolved^[2].

…

9. What evidence of attempts to look for suitable local Counsel with appropriate skill and experience, and the results of such attempts?

Local solicitor advocates Mr Jason Karas and Mr Tim Kentish are instructed to appear for the Plaintiffs. …

…

14. Viewed objectively, has the attempt to instruct local Counsel been “reasonable, serious and genuine”?

Yes, local solicitor advocates have already been retained in these proceedings and continue to be instructed.

… it is not our position that there is no Senior Counsel in Hong Kong suitable or able to do the case. However, a case of this magnitude and complexity would benefit greatly from the involvement of leading counsel with a specialisation and expertise in large scale insolvencies and audit negligence cases. Given that large audit negligence claims have traditionally been settled before trial in Hong Kong, it is not realistic to expect to find similar levels of expertise locally.”

11.From the answers provided, it is clear that Lipman Karas regarded Mr Karas and Mr Kentish as local counsel for the purposes of the trial and the applicant’s ad hoc admission.  Further, Lipman Karas had not made any enquiry to see if any suitable local Senior Counsel was available to take up the case, having taken the position that they are not asserting there is no Senior Counsel in Hong Kong suitable or able to do the case, and their view is simply that a case of this magnitude and complexity would benefit greatly from the involvement of overseas leading counsel with the relevant specialisation and expertise.

12.The Bar Council replied by letter dated 10 December 2018. Whilst the Bar Council considered the matter to be of sufficient unusual difficulty and complexity, it did not consider it to be in the public interest for the applicant to be admitted when he will not be instructed together with local barrister(s).  The Bar Council referred to provisions of the Bar’s Code of Conduct^[3] by which the applicant will be bound if he is admitted under section 27(4) and indicated that it is only prepared to consent to the admission if the applicant is instructed to advise and appear with suitable local barrister(s) who is/are instructed otherwise than on a nominal basis.

13.On 12 July 2019, the notice of originating motion in these proceedings was filed seeking the applicant’s admission on an ad hoc basis, with the supporting affidavit of Cosimo Borrelli, one of the joint and several liquidators of China Forestry.  Mr Borrelli deposed that it is his intention to retain Mr Karas and Mr Kentish to act as junior counsel at the trial and this is because (a) they have been involved in the action from the outset and have “extensive accumulated knowledge” of the complex legal and factual issues in the action; (b) they are experienced advocates and have “extensive accumulated specialist knowledge” in the conduct of audit negligence proceedings generally; and (c) to additionally engage a member of the local bar would result in “additional unnecessary costs” being incurred^[4].  He asserted that the public interest considerations underlying an application for ad hoc admission of overseas leading counsel may be equally satisfied when solicitor advocates are retained as when members of the local Bar are retained^[5].

14.The contested hearing for admission took place before the judge on 28 August 2019 and the Judgment was handed down on 31 October 2019.

The Judgment

15.The court has an unfettered discretion to admit overseas counsel under section 27(4).  In exercising that discretion, public interest is the paramount consideration.  The task of the court is to “identify the relevant facets of the public interest engaged, carefully balance them in a flexible and sensible way in order to arrive at a decision that best suits the public interest arising in the application.”^[6]

16.The judge identified two primary issues for determination:

“(1)  whether in the circumstances of the present case, the applicant should be admitted on the condition that he acts together with a local barrister or whether he can instead act with Mr Karas and Mr Kentish, the two solicitor advocates with conduct of the Action from the outset, without instructing a local barrister (“First Issue”); and

(2)  whether in the circumstances of the present case, [Lipman Karas] should have made enquiries of the availability of suitable local senior counsel (“Second Issue”).”^[7]

17.On the First Issue, the judge identified the maintenance of a strong and independent local Bar as an aspect of the public interest that is plainly engaged^[8]. There must be appropriate safeguards to ensure that the admission of overseas counsel will not inhibit the growth and development of the local Bar.  “It mandates that overseas leading counsel, if admitted, normally do not appear alone or with other overseas junior counsel, save in very exceptional cases … It requires a usual condition to be imposed that overseas counsel, if admitted, should appear together with local counsel.”^[9]  And the same public interest considerations also explain why before an ad hoc admission of overseas counsel is made, it is a requirement to make enquiry to see if suitable local counsel is available to take up the case^[10].

18.The judge then considered whether a new aspect of the public interest has arisen with the introduction in 2012 of solicitor advocates who can exercise higher rights of audience as barristers do.  He had regard to the legislative materials leading to their introduction^[11] (with the enactment of Part IIIB of the Legal Practitioners Ordinance), and the Law Society’s Code of Advocacy for Solicitor Advocates (“the SA Code”)^[12].  He noted from the available data that the role and number of solicitor advocates in Hong Kong is still “a relatively nascent development”^[13].

19.The judge took the view that the introduction of solicitor advocates was only to remove the monopoly that barristers had in respect of rights of audience in higher courts, thereby increasing the pool of available qualified advocates in litigation and advocacy work and services.  It was not a step to cut at the heart of a divided legal profession and there are still two material distinctions between solicitor advocates and barristers, being the application of the “cab-rank” rule to the acceptance of instructions by barristers, and the larger degree of independence of barristers from clients under the referral practice and hence much greater freedom from conflicts of interests^[14].

20.The judge reasoned that if overseas counsel can be admitted to appear with a solicitor advocate without instructing a local barrister, the facets of public interest in favour of such admission “inevitably compete with those for maintaining a strong and independent local Bar”^[15]. “Accordingly, the public interest in having a strong and independent local Bar for the extremely important purpose of maintaining and enhancing an effective and meaningful access to justice must definitely be accorded much greater weight than those in favour of admitting overseas counsel to appear with solicitor advocates only in the overall balancing exercise.”^[16]

21.The judge therefore held that “in the prevailing circumstances”, overseas counsel should only be admitted “on the usual condition that he appears together with a local barrister”.  He also made clear that he “[does] not rule out the possibility that with further and more mature development of solicitor advocates in the future, the circumstances might materially change to such an extent that the public interest considerations in favour of admitting overseas counsel to appear with them alone might attract enough weight to justify the admission.”^[17]

22.Turning to the present application, the judge did not consider the plaintiffs’ preference to retain Mr Karas and Mr Kentish, who have had the conduct of HCCL 9/2019 from the outset without the involvement of local counsel, and the concern about additional costs if required to instruct local counsel, to be weighty factors in the balancing exercise.  Nor did he think the immediate benefits that the two solicitor advocates would be able to reap by working with the applicant and how those benefits might possibly help the development and growth of solicitor advocates in the longer run sufficiently weighty considerations to tilt the balance in favour of the applicant’s admission without instructing local counsel^[18].

23.As for the Second Issue, the judge rejected the argument of Mr Karas that the requirement to make enquiry if any suitable local Senior Counsel would take up the case is not triggered just because there is no dispute as to the appropriateness of overseas counsel being admitted. Even in cases of unusual difficulty which may justify the admission of overseas counsel, the duty to make enquiry of available suitable local counsel still applies.  Nor does it absolve the solicitor acting for an applicant from making the requisite enquiry simply because another overseas counsel has been admitted to act for the other party to the same proceedings.  This is to enable the court to make an informed decision, taking into account all relevant facts whether to admit overseas counsel for any particular case^[19].

This appeal

24.The applicant filed a notice of appeal against the Judgment on 26 November 2019, which was amended by a supplementary notice of appeal filed on 13 May 2020.  The applicant did not seek leave to adduce fresh evidence in this appeal to update the court on any material change since the Judgment was given.

25.The Secretary for Justice filed a respondent’s notice out of time on 10 June 2020 with leave granted by the court.  The affirmation in support of this application^[20] in which the deponent gave an account of the development of solicitor advocates in England and Wales (which has a much longer history) and in Hong Kong was included in the appeal bundle and was referred to in Mr Pao’s submissions without the objection of any party.

26.The Bar Council filed a respondent’s notice out of time on 16 June 2020 with the leave of the court.

27.The Law Society was granted leave on 11 August 2020 to join in the appeal as an intervener.  In the supporting affirmation,^[21] the deponent deposed to public interest considerations to justify why the Law Society should be heard in this appeal.  Other than this affirmation, which was included in the appeal bundle without the objection of any one, the Law Society did not seek to adduce any further evidence in this appeal.

The arguments in support of this appeal

28.In this appeal, it was contended that the judge erred in the exercise of his discretion by failing to balance fairly various competing factors and was thereby plainly wrong in his conclusion.  The arguments advanced on appeal are largely the same as those raised before the judge and were rejected by him.  The salient arguments in support of the appeal may be summarised as follows.

29.First, it was contended that the Judgment undermines the equality between barristers and solicitor advocates, which has been recognised by the legislature in conferring equal rights of audience.  The plain legislative intention in the enactment of Part III of the Legal Practitioners Ordinance is that solicitor advocates and barristers would have equal standing. The law does not permit discrimination between them or that they should be treated differently in the ad hoc admission of overseas counsel.  The legislative process made after extensive public consultation had already determined that solicitor advocates can be granted higher rights of audience without creating an unacceptable risk to the sustainability of a separate referral Bar.  The judge erred in re-visiting the consultation and debate which led to the legislative amendment.  There is no evidence to suggest that the position of junior barristers has changed materially after 2012.

30.Second, in prohibiting the admission of overseas counsel appearing with a solicitor advocate rather than a barrister until “further and more mature development of solicitor advocates in the future”, the Judgment denies the public interest in having a strong body of advocates in Hong Kong, which is best served by securing the benefits of cross‑fertilisation flowing from the admission of overseas counsel to the entire pool of qualified local advocates, regardless of whether they are barristers or solicitor advocates.  Since the introduction of solicitor advocates in 2012, the public interest in maintaining a strong and independent local Bar should be read as maintaining a strong and independent local body of advocates.  There is no good reason to deny solicitor advocates the benefit of working with overseas counsel until there are more solicitor advocates.  The small number of solicitor advocates at present is immaterial to the public interest considerations.  And to require litigants to bear the costs of engaging a local barrister in addition to a solicitor advocate where the admission of overseas counsel is anticipated may discourage litigants from engaging a solicitor advocate at the start.

31.Third, there are no valid or material distinctions between barristers and solicitor advocates relevant to the exercise of the court’s discretion.  There is no evidence to support the judge’s conclusion that “in terms of their availability to the general public, solicitor advocates are far more restrictive than barristers”^[22].  The distinctions identified by the judge do not render either branch of the profession more important than the other in the overall administration of justice or in enhancing access to justice, and it was wrong for the judge to conclude that “solicitor advocates play a significantly less important role than barristers in enhancing access to justice”^[23].  Besides, the legislature had already considered the “cab‑rank” rule and independence from clients and conflicts of interest in determining that solicitor advocates should be granted higher rights of audience.

32.Fourth, the judge erred in fettering his discretion as he has failed to balance the competing public interest considerations on a case by case basis and with reference to the specific facts of this case.  He has propounded a rigid rule of general application in holding that “in the prevailing circumstances, overseas counsel should only be admitted on the usual condition that he appears together with a local barrister”.  His exercise of discretion is plainly wrong, as permitting the applicant in the present case to appear solely with a solicitor advocate can pose no meaningful threat to the strength or independence of the local Bar, considering that the number of solicitor advocates in Hong Kong is less than 4% of the total number of barristers and many of those solicitor advocates exercise their higher rights of audience infrequently, or not at all.

33.Fifth, the differential treatment of barristers and solicitor advocates is contrary to Article 35 of the Basic Law^[24]. The judge should take into consideration Article 35 in exercising his discretion, as well as the public interest concern whether litigants are allowed to engage suitably qualified legal representatives of their own choice to appear at a trial.  The requirement that at least one local counsel actively involved in the case from an early stage be usually briefed together with the overseas counsel was not meant to be a protection of the local Bar against competition from solicitor advocates.

34.Sixth, there is no utility in requiring an applicant to make enquiries of local Senior Counsel when it has been accepted by the applicant that there were available local Senior Counsel.

Discussion

35.As the judge has recognised, the relevant facets of the public interest engaged in the context of ad hoc admissions are an elastic concept which takes into account and, where appropriate, reflects the changing circumstances or development in the legal system^[25].  “From time to time, depending on change of circumstances, a new aspect may emerge or one aspect may become more important than the others.” (Re Flesch QC [1999] 1 HKLRD 506 at 511E; Re Mably [2014] 1 HKLRD 627 at §44)  In laying down the condition for the admission of the applicant, the judge has sought to “identify the relevant facets of the public interest engaged, carefully balance them in a flexible and sensible way in order to arrive at a decision that best suits the public interest arising in the application.”^[26]

36.This is an appeal against the exercise of discretion of the judge. Under well-established principles, in reviewing the judge’s exercise of discretion, the Court of Appeal must defer to the judge and not interfere merely because it would have exercised the discretion differently.  The appeal court would not interfere unless the judge had misdirected himself with regard to the principles or the evidence in accordance with which his discretion had to be exercised, or had wrongly taken into account irrelevant matters or failed to take into account relevant matters, or that his exercise of discretion was plainly wrong.  It is only if and after the appeal court has reached the conclusion that the judge’s exercise of discretion must be set aside for one or other of these reasons that it becomes entitled to exercise an original discretion of its own. (Re Mably at §§38, 39 and 51; Excel Courage Holdings Ltd v Wong Sin Lai [2014] 3 HKLRD 642 at §55)

37.The first three arguments advanced in support of this appeal may be considered together.

38.The contention that the legislative intention in enacting the amendments is to confer equal standing on barristers and solicitor advocates such that they should be equated for all intents and purposes including applications for ad hoc admission of overseas leading counsel is not borne out by the legislative history, and was rightly rejected in the Judgment^[27]. The Final Report recommended that “it is in the public interest to enlarge the pool of advocates” and that “the talent for and interest in advocacy likely to be found in some solicitors should be tapped to enlarge that pool of advocates, provided that it can be done without creating an unacceptable risk to the sustainability of a separate referral Bar.”  The Working Party took the view that “solicitors can be granted higher rights of audience without creating that risk” and proposed a scheme “which grants solicitors higher rights of audience while ensuring that standards of advocacy before the courts are maintained (or enhanced), and does not threaten the continued viability of the Bar”, with sufficiently strict criteria for eligibility “to ensure that only competent advocates qualify, and that viability of the Bar (particularly the junior Bar) is not compromised” ^[28] (emphasis supplied).

39.The Chief Justice accepted the recommendations in the Final Report and requested the Administration to take the matter forward by appropriate legislation.  This resulted in a bill adding a new Part IIIB to the Legal Practitioners Ordinance to provide for the legal framework. The Bar Association accepted the proposals in the Legal Practitioners (Amendment) Bill 2009 “for the sake of public interest, notwithstanding the adverse effect on the prospects of young barristers.”^[29]

40.In enacting the amendments in the Bill, the legislature did not discuss or decide that the professions of barristers and solicitor advocates should be fused.  It is wrong to infer that with the amendments to legislation, henceforth the public interest to be safeguarded in the ad hoc admission of overseas counsel should be altered to that of maintaining a strong body of local advocates.  The sustainability and the continued viability of a separate referral Bar was clearly recognised in the process of legislating for change.  The introduction of solicitor advocates was only to remove the monopoly of barristers in respect of the rights of audience in the higher courts.  The Bar remains a referral profession.  The development and maintenance of a strong and independent local Bar remain an aspect of public interest that would be engaged in the ad hoc admission of overseas counsel, as rightly recognised in the Judgment.  It is wrong to assert there is a policy of equality and non-discrimination in the legislative amendments that would be undermined by the judge in this ad hoc admission in seeking to safeguard and maintain a strong and independent local Bar.

41.The judge has identified two material distinctions between barristers and solicitor advocates relevant to the exercise of his discretion for treating them differently for present purpose.

42.In respect of the “cab-rank” rule on the acceptance of instructions, a practising barrister is bound to accept any instruction to appear before a court in the field in which he professes to practise at his usual fee having regard to the type, nature, length and difficulty of the case, provided there are no special circumstances such as conflict of interest which justify him in refusing to accept instructions^[30]. In contrast, there is no positive duty on a solicitor advocate to accept any instructions.  What is required of a solicitor advocate is that he must not decline to accept instructions on any of the grounds as stated in §§2.4.2(a) to (d) of the SA Code^[31]. Whilst there is a distinction between the two as pointed out by the judge on a careful comparison of §6.1 of the Code of Conduct of the Bar and §§2.4.2(a) to (d) of the SA Code ^[32], I respectfully differ from his assessment that the differences are material for present purpose.  I am more inclined to agree with the submissions in support of the appeal in this respect.

43.The other distinction, being the higher level of independence enjoyed by barristers as compared to solicitor advocates, is valid and material.  Unlike barristers, solicitor advocates may form partnerships or be employed by solicitors’ firms. They cannot represent different interests in the same matter if they are in the same firm with someone already advising another party on the matter, or having a general or long-term relationship with another client, or even potential clients whose interests may conflict with any of the litigants.  It is fair to say that being a member of a firm, a solicitor advocate is affected by conflicts of his entire firm and his services may be denied to a litigant if any member of his firm is conflicted.  In contrast, a barrister’s practice is bound by a set of rules that demand personal and professional independence, such as by forbidding partnerships and incompatible employments^[33]. The general distancing of barristers from clients under the referral system helps to maintain the barristers’ objectivity and allows for specialisation^[34]. The referral practice also works for the benefit of solicitors who can resort to the services of suitable counsel through referral and this is of particular importance to the practice of sole proprietors and small firms^[35]. 

44.The higher level of independence of barristers significantly impacts on the access by the public to a wide pool of counsel from which real and meaningful choice of suitable counsel can be made and is extremely important to the administration of justice.  While solicitor advocates enjoy the same rights of higher audience, there is a material distinction from barristers in terms of that level of independence and the degree of freedom from conflicts of interests.  In stating that solicitor advocates “play a significantly less important role than barristers in enhancing access to justice” and that they are “far more restrictive than barristers” “in terms of their availability to the general public”, the judge was not seeking to belittle the role of solicitor advocates in the administration of justice.  When these statements are read properly and in context, they do no more than reflect that solicitor advocates are generally not as readily accessible to the general public as compared to barristers. 

45.On behalf of the Law Society, Mr Manzoni contended that there is no evidence to support the conclusion at §55 of the Judgment that “in terms of their availability to the general public, solicitor advocates are far more restrictive than barristers”.  He submitted that this was just an “impressionistic assumption” and “may be wrong”.

46.The judge’s conclusion at §55 was derived from the statements of fact in §54^[36], in which he described the business set-ups of the practice of solicitors and the situations in which conflicts of interests might occur within such arrangements.  The factual premises have not been challenged by the Law Society, nor has it adduced any evidence to rebut the facts, which accord with our own experience.  The judge’s inference is based on fact and is sound.

47.Mr Manzoni and Mr Pao argued that solicitor advocates are reasonably accessible or even more accessible to the public, as members of the public can have direct access to them, unlike barristers who must be instructed by solicitors.  The fact that a solicitor advocate may be approached directly to obtain his legal services does not detract from the position that he is less likely to be available due to the greater restriction in the acceptance of instructions arising from conflicts of interests of one kind or other.

48.From the list of solicitor advocates published in the Law List of the Law Society in June 2019, it would appear that the vast majority are members of solicitors’ firms.  It was submitted by the Bar Council that for practical and commercial reasons, it is unlikely that solicitor advocates from other firms would be regarded as available advocates that other firms would consider instructing.  The Law Society has not adduced statistics to assist the court of the number of instances in which a solicitor advocate was retained by another firm to appear in court.

49.As for Mr Pao’s submission that it may discourage litigants from engaging solicitor advocates to appear from day one if they have to bear the additional costs of instructing also a local barrister where the admission of overseas counsel is sought, this is entirely speculative and has no evidential basis.  Costs are within the control of lay clients with the proper advice of solicitors.

50.In support of this appeal, it was argued that an important facet of the public interest is the development of local advocates, which include both barristers and solicitor advocates, and solicitor advocates should not be denied the benefits of cross-fertilisation in working with overseas advocates.  Mr Manzoni and Mr Pao argued that as solicitor advocates in Hong Kong are still a “relatively nascent” development, they need nurturing and exposure in the cross-fertilisation to acquire the requisite skill and experience so as to develop their potential.  It was submitted that the judge failed to direct his mind to this material consideration and so his decision was wholly wrong because he has not balanced the various factors fairly in the scale.

51.It is incorrect to say that the judge’s condition (that the applicant should appear with a local barrister) would prevent Mr Karas (or any other solicitor advocate of his firm) from working or continuing to work on the case with the applicant.  The wording of the condition does not preclude the involvement of any solicitor advocate.  Furthermore, this is not the kind of situation in which the solicitor advocate of a firm of solicitors is to be engaged by a different firm that instructs the overseas counsel.

52.There is nothing to suggest that Lipman Karas will not remain as the instructing solicitors, or that Mr Karas will drop out of the case if a junior barrister is to be engaged.  Quite clearly, Mr Karas can still benefit from working with the applicant on the case, whether as the second junior counsel (as he had done in three instances in which overseas counsel were admitted) or as the instructing solicitor.  In contrast, if overseas counsel should be admitted with the condition that only solicitor advocates are to be engaged, this would exclude local barristers entirely and deny them the benefits of working together with overseas counsel.

53.As submitted by Ms Li, the judge’s condition is merely to ensure that the benefits of cross-fertilisation would be made available to the Bar as well as to solicitor advocates, thereby promoting wider cross‑fertilisation.  The public interest in facilitating the growth and development of solicitor advocates would not be excluded by the judge’s condition.  As noted by the judge,^[37] the solicitor advocates involved in the case would be able to reap immediate benefits by working with the applicant, it is just that these considerations are not weighty enough to tilt the balance in favour of the applicant’s admission without instructing a local barrister.

54.For all the above reasons, the judge did not err in principle in not treating barristers and solicitor advocates on an equal footing for the purpose of ad hoc admission of overseas counsel.  In balancing the competing facets of the public interest, the judge cannot be rightly criticised for giving great weight to the maintenance of a strong and independent local Bar.  As stated by Cheung CJHC (as he then was) in Re Mably [2013] 3 HKLRD 738 at §13: “This is not protectionism for the sake of protectionism. Rather, it is a strategic measure to develop and maintain a strong and independent local Bar.”

55.Mr Pao pursued the fourth argument that the condition is too rigid and that the judge should have considered the matter on a case by case basis.  This is not an argument of substance.

56.One should start with whether there is justification for imposing the condition of admitting overseas counsel on condition that he appears with a local barrister.  The justification for the condition, as has been mentioned, is the great weight to be given to the development and maintenance of a strong and independent local Bar in the overall balancing exercise, and the exposure of local barristers to cross-fertilisation has been considered helpful and conducive to that end.  If overseas counsel could be admitted on the basis that they appear with solicitor advocates alone, this would enable those solicitors’ firms with in-house solicitor advocates to by-pass the local Bar completely and directly instruct overseas counsel to conduct what they perceive as cases of unusual difficulty and complexity before the Hong Kong courts.  This would enure to the benefit of a sector of the solicitors’ profession but would inhibit the growth and development of the local Bar and thereby undermine the access to justice.

57.The condition as imposed by the judge has long been regarded as a usual condition and it would be “extremely rare” for the court to consider an application where no local counsel or only a nominal local counsel was briefed together with overseas counsel (Re Perry QC [2016] 2 HKLRD 647 at §24(xv)), so much so that in the Bar’s Code of Conduct, provision was made at §§6.19 and 12.2 that overseas counsel admitted on an ad hoc basis must not conduct proceedings or provide any other legal service “otherwise than in accordance with the basis upon which his admission was granted, including his being instructed with a local junior Counsel and/or a local Senior Counsel”.

58.The judge’s approach only meant that in the absence of wholly exceptional circumstances that may justify an overseas admission without such a condition, the condition will be imposed.  He has made clear that if and when circumstances change to such an extent that the public interest considerations in favour of admitting overseas counsel to appear with solicitor advocates alone may attract sufficient weight, this could give a different outcome in the balancing exercise. There is no error in the judge’s approach.

59.Furthermore, it is wholly wrong to say that the judge did not have regard to the particular circumstances of the present case.  The judge had clearly considered the particular circumstances in §§62 to 63 of the Judgment, and did not think the costs considerations, the preference of the liquidators to engage Mr Karas and Mr Kentish (or as Mr Pao termed it, “informed client choice”), or the long and substantial involvement of Mr Karas and Mr Kentish in the case to be weighty or sufficiently weighty factors in the balancing exercise, when more important public interest considerations are at stake.

60.There is nothing in the contention that permitting the applicant to appear solely with a solicitor advocate should pose no threat to the Bar, considering that the number of solicitor advocates is small and many of them exercise their higher rights of audience infrequently.  This is missing the point.  The case for which admission is sought involves a substantial trial of complex audit negligence claims, and it is envisaged the determination of which will have a significant contribution to the development of local and overseas jurisprudence.  It would not be right to deny local barristers the opportunity of acquiring skill and experience in working with the applicant in a trial of this magnitude and complexity that does not often come before the courts.

61.The fifth argument, which concerned Article 35 of the Basic Law, was pursued by Mr Karas and may be dealt with succinctly. He argued that the judge was wrong in not taking Article 35 into consideration, in circumstances where the proportionality principle does not justify any differential treatment of barristers and solicitor advocates so as to derogate from Article 35.  The judge considered the reliance on Article 35 misplaced as this provision does not provide a constitutional guarantee to have litigation conducted by counsel of a party’s choice^[38].  The judge is clearly right. The “choice of lawyers” referred to in Article 35 means no more than that a litigant is free to choose his counsel from those available to represent him.  He has no right to insist on being represented by a lawyer who does not have a general right to practise in Hong Kong.

62.As for the sixth argument, there is no substance in the complaint that the judge erred in holding that enquiries of the availability of suitable local counsel should have been made.  The judge’s reasoning, which has been summarised earlier, is well established by the authorities he cited (Re Kosmin QC [1999] 1 HKLRD 641 at 644B to C; Re Crystal QC, HCMP 598/2005, 7 April 2005, at §12; Re Mably (Court of Appeal) at §62). As stated by Chan CJHC in Re Flesch QC at 515J to 516B, “even if an application is made by consent, the court must still be satisfied that it is in the public interest to grant the admission.  The burden is on the applicant to so satisfy the court.  It is therefore important that in every application for admission, all the relevant materials must be placed before the court even if there is no objection from the Department of Justice and the Bar Association”.

63.The above analysis is sufficient for the disposal of this appeal.  For completeness, I will go on to consider the specific facts of this case. 

The specific facts of this case

64.Before the judge, the application for admission was sought on the basis that the applicant should appear only with two solicitor advocates, namely, Mr Karas and Mr Kentish.  The Judgment was handed down on 31 October 2019.  In the notice of appeal filed on 26 November 2019, the applicant sought to replace the judge’s condition with a condition that “he should appear together with local counsel (whether a barrister or a solicitor advocate)”.  The change from the position taken before the judge did not come to the attention of the other parties for quite some time, so much so that even in the respondent’s notice for the Secretary for Justice filed on 10 June 2020, it was stated that the Secretary sought to vary the judge’s condition to a condition that the applicant “should appear at the trial together with solicitor advocates, Mr Jason Karas and Mr Tim Kentish”.  It was not until Mr Karas served his skeleton argument in this appeal on 2 November 2020 that the reason for the change became apparent.  In submitting that to permit the applicant to appear “solely with a single solicitor advocate” can pose no meaningful threat to the strength or independence of the local Bar, it was mentioned in a footnote to that submission that since the Judgment, “Mr Kentish has moved to Australia and will not be appearing at the trial.”

65.In the liquidator’s supporting affirmation placed before the judge, it was asserted that Mr Karas and Mr Kentish are “critical members of the legal team” in relation to the conduct of the plaintiffs’ case and to engage a member of the local Bar in addition to these solicitor advocates as junior counsel would result in “additional unnecessary costs” being incurred.

66.It is a material change for the instructing solicitors to reduce the number of junior counsel to be engaged for a trial scheduled to last for ten weeks from two solicitor advocates to just one.  Lipman Karas did not see fit to apply for leave to adduce new evidence on appeal to give a proper explanation what are the changes in circumstance such that it is not now considered necessary to engage two solicitor advocates as junior counsel for the trial.  A belated attempt to provide an explanation in the oral submission of Mr Karas is unacceptable and falls short of the obligation on the part of an applicant for admission to adduce all relevant materials before the court in good time to enable the court to arrive at an informed decision.

67.Under §4.2 of the SA Code, solicitor advocates, whether they are instructed on their own or with another advocate, must in the case of each brief consider “whether consistently with the proper administration to justice and having regard to: (i) the circumstances including the gravity, complexity and likely cost of the case; (ii) the nature of their practice; (iii) their ability, experience and seniority; (iv) their relationship with the client; (v) any other relevant circumstances or matters, the best interests of the client would be served by instructing or continuing to instruct them in that matter or to instruct another advocate (whether solicitor advocate or counsel).”

68.Mr Pao informed the court the Secretary for Justice acted on the basis that Mr Karas has complied with the obligation in §4.2.  If the information made available to the Secretary for Justice is the same as the available information provided to the court, it is not apparent what is the support for Mr Pao’s statement.  In light of the change in circumstances with the dropping out of Mr Kentish from the case, there is no evidence to show that Mr Karas has considered the matters required of him in §4.2.

69.There is no evidence before us to explain why the costs earmarked for Mr Kentish (or a part of such costs) could not now be used to engage a local barrister.  Costs are often a matter of negotiation between the lay clients and solicitors.  No evidence has been provided by Lipman Karas as to how legal fees are to be budgeted for this case and whether it would be feasible to make adjustments to retain a local barrister. In the absence of such evidence, the assertion that it would result in “additional unnecessary costs” if local counsel is engaged must be viewed with some scepticism.

70.The judge’s weighing of the factors urged for his consideration cannot be faulted.  On the specific facts of this case and in light of the changes since the handing down of the Judgment, the present case is clearly not appropriate for the exercise of discretion to admit overseas counsel on the condition that he should appear at the trial with Mr Karas alone. 

Conclusion

71.For all the above reasons, I would dismiss this appeal.  There being no submissions of any party seeking costs of the appeal, I would make an order nisi there be no order as to costs.

Hon Barma JA:

72.I agree with the judgments of Lam VP and Kwan VP.

Mr Jason Karas, Solicitor Advocate, of Lipman Karas, for the Applicant (Appellant)

Ms Gladys Li SC, Mr Stewart Wong SC and Mr Anthony Chan, instructed by Anthony Chiang & Partners, for the Bar Council of the Hong Kong Bar Association (1^st Respondent)

Mr Jin Pao, SC, instructed by the Department of Justice and Ms Carmen Siu, Senior Government Counsel, of the Department of Justice, for the Secretary for Justice (2^nd Respondent)

Mr Charles Manzoni SC, instructed by Herbert Smith Freehills and Mr Simon Chapman, Solicitor Advocate, of Herbert Smith Freehills, for the Intervener, the Law Society of Hong Kong (3^rd Respondent)