Re David Graham Widdicombe

HCMP003340/1991

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NO. 3340/91

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Coram: Hon. Yang, C.J.

Date of Hearing: 14th January 1992

Date of Judgment: 17th January 1992

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J U D G M E N T

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Hon. Yang, C.J.:

1. This is an application of a Queen's Counsel practising in England to be admitted as a barrister of the Supreme Court of Hong Kong under s. 27(2) of the Legal Practitioners Ordinance, Cap. 159, for the purpose of advising and representing the plaintiff, Hong Kong Clays and Kaolin Co. Ltd., in High Court Miscellaneous Proceedings No. 2140 of 1991 and any appeals therefrom. The Attorney General is made the defendant.

2. By the plaintiff's originating Summons, the following claims are made:

(1)    a declaration that on the construction of s. 24(2) of the Mining Ordinance, Cap. 285, the plaintiff in compliance with the subsection is entitled to a renewal of its lease of a Mining Lot from the Government;

(2)    a declaration on the construction of the same subsection, an offer of renewal of the term by three years or two years would not be a renewal of the lease within the meaning of the subsection;

(3)    a declaration that in the exercise of his discretion as to the terms of such renewal the Land Officer must, inter alia, (a) take into account certain factors such as the mining history of the site, the plaintiff's capital expenditure and the existence of an ancillary tile factory, etc., and (b) leave out of account any prospect that the land may be needed by the Government for public purpose; and

(4)    another declaratioin with which we are not concerned  for the purpose of the application.

3. The main facts which gave rise to the dispute between the plaintiff and the Government are contained in the affirmation sworn by Mr. Patrick Leong, a solicitor acting for the plaintiff.

4. By a mining lease dated 19th May 1983, the plaintiff obtained a Crown lease at Mining Lot 20 under the Mining Ordinance, Cap. 285. It is believed that this is the only mining lease in Hong Kong. The plaintiff is also a lessee of an adjoining lot of land upon which a factory was erected for the manufacture of ceramic tiles. The leases expired on the 31st July 1990 and the Crown has refused to renew the leases, in spite of the fact that the plaintiff had carried on mining operations on Lot 20 since 1939.

5. From the Crown's correspondence, it would appear that the leases are not to be renewed because the land is said to be required for public purpose. The Crown however is not resuming the land.

6. In support of this application, it is argued that the applicant has considerable expertise and is experienced in all issues involved in this case, namely, town planning, land resumption and valuation, as well as administrative law. He also possesses considerable experience in town planning in the United Kingdom and Hong Kong. It is further argued that this is the first time that a mining lease has been the subject of contention in Hong Kong. The applicant is said to be particularly learned in the valuation aspects of mining land, and he is also experienced in that aspect of administrative law concerning contracting out on a situation where a statute confers a benefit on a person.

7. The applicant's experience and expertise is not in dispute.

8. Also in support of the application, a letter from the plaintiff's solicitor was exhibited. It was dated 15th July 1991. In it the argument was advanced that the issues in the case called for specialized and experienced counsel in the person of the applicant. The writer then went on to say: "For reasons which we would not detail, our clients have more confidence in Mr. Widdicombe's advice and would like him to further advise in consultation and to appear in Court proceedings ...."

9. In an application such as this the onus of proof is on the applicant.

10. Having perused the Originating Summons and the relevant correspondence and affirmations, I am unable to say that the case is one of such unusual difficulty or complexity as to warrant representation by an overseas senior counsel. With the greatest respect to the applicant, the kind of expertise and experience which he undoubtedly possesses, as outlined in Mr. Patrick Leong's affirmation (supra), must be considered alongside the claims stated in the Originating Summons. The claims relate to construction of statutes and the way the Land Officer, a civil servant in Hong Kong, should exercise his discretion in respect of land in Hong Kong. In my judgment the applicant has not shown that the kind of specialist knowledge which may be required in this case is not available here, nor has it been shown to my satisfaction that no local counsel of appropriate skill and experience is available.

11. I would refuse the application.

Representation:

Miss Maria Yuen (Patrick Leong & Man) for applicant

Mr. Kenneth H.W. Kwok (C.Y. Kwan & Co.) for Bar Association

Miss R. Drake for Attorney General