Re William Eric Denny

HCMP002728/1987

Coram: Roberts, C.J.

Date: 19th January, 1988.

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DECISION

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1. This is an application by a firm of solicitors on behalf of Mr. William Denny, who wishes to appear on an appeal for the fifth respondent in the appeal. I note that in the trial below he was represented by a Hong Kong junior before he was subsequently convicted. On the appeal two of his co-respondents are to be represented by leading Hong Kong counsel. So far as I know, with the exception of Mr. Denny, counsel due to appear on the appeal also appeared on the trial.

2. The appeal itself is expected to last for approximately 14 days. The trial judge has attached to the documents concerned with the trial a Certificate under section 82(2) of the Criminal Procedure Ordinance, certifying that the case is fit for appeal on a number of grounds of fact or mixed law and fact.

3. A Judge's Certificate, if granted, is a factor which ought to be taken into account in deciding whether or not the subsequent appeal is of such difficulty or complexity as to justify the admission of a London leader. I note here that, on the authority of earlier cases on admission, it is for those making the application to discharge the burden of proof which lies upon them to show that the admission is necessarily in the public interest.

4. This admission has been opposed since the 11th December, 1987, by the Hong Kong Bar Association. The Law Society is not represented at this hearing and has not asked to be heard. The Attorney General, who is in a somewhat equivocal position on the appeal, has said that he takes a neutral stance on the matter but there are certain aspects of the appeal on which he would like to be heard.

5. Originally, those applying on behalf of Mr. Denny submitted their application on the basis that it was a case of unusual difficulty or complexity in accordance with the tests laid down in Coles⁽¹⁾, such as to require the admission of a London leader. This, indeed, was the ground on which their original application to the Bar Committee, quite rightly, was made.

6. On 11th December, 1987, however, they received a reply to the effect that, if they had further reasons to justify the admission of Mr. Denny, they should put them forward to the Bar Committee, though in the meantime the Bar Committee regretted that it was unable to consent to the application on the grounds which had been set out by those appearing on behalf of Mr. Denny in their letter of 8th December.

7. On 15th December, however, soon after receiving that letter, those appearing on behalf of Mr. Denny decided to write to ten local leading counsel, addressing their letter of inquiry as to the availability of leading counsel for the hearing of the appeal.

8. Subsequently, they received two refusals from local silks on that list and one silk has not replied. However, seven of the silks did express their willingness to appear on the appeal, a date for which had not been fixed though it is unlikely to be before the middle of this year.

9. It does not appear as if negotiations as to the fees to be paid to any of these silks were subsequently concluded and to that extent the correspondence with them is still in the air. It is, however, apparent that seven local silks did express their willingness to appear on the appeal if so briefed and if their fees were met.

10. Solicitors for Mr. Denny have argued, and are not to be criticized in this instance, that they based their decision to seek the availability of local silk on the case of Coles⁽¹⁾. This they interpreted as offering to them an alternative. They quoted, in particular, paragraph 6 of the principles which are set out in Coles. These state that the burden which lies on the applicant can be discharged by showing, for example, and this list is not intended to be exhaustive, one of five different ways in which the burden can be discharged. One of which is that no local counsel of appropriate skill and experience is available and the second the case is one of unusual difficulty or complexity.

11. It seems to me that, once a solicitor has established that local counsel of appropriate skill and experience is available, he need look no further assuming, of course, that that counsel is available at a reasonable fee which is within the range of the client.

12. So far as this case is concerned, it must be assumed that the ten inquiries which were made on 15th December were serious ones and that it was intended that the seven acceptances, in principle, of the brief were also intended to be taken seriously. If that is so, the reason for admitting Mr. Denny, namely, that the case is one of unusual difficulty or complexity, falls away and it is necessary to see only whether those representing Mr. Denny have taken proper steps to ensure as to whether or not any of the local counsel is available.

13. It is perhaps not much consolation to those applying to say that if they had limited their application to the Bar to a request for Mr. Denny, based on the ground that the case was one of unusual difficulty or complexity they might have had a better chance of success. However, they have not chosen to do so but have written instead to a number of local counsel on the assumption, which I must make, that those counsel were of appropriate skill and experience and were capable of conducting the appeal in a full and proper manner if briefed.

14. For these reasons, I have come to the conclusion that the applicants have not discharged the burden which lies upon them to prove that the admission of Mr. Denny would be proper in this case and I must therefore refuse it.

(1)    [1985] H.K.L.R. 480

Representation:

P. Loughran (K.K. & Winston Chu) for Applicant

A. Rogers, Q.C. with Miss S. Lau (C.Y. Kwan & Co.) for the Hong Kong Bar Association

N.L. Strawbridge, Sen. Asst. Crown Solicitor, for the Attorney General

The Law Society of Hong Kong - not appearing nor represented.