Re Dominic David James

HCMP001786/2001

HCMP1786/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1786 of 2001

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Coram: Hon Leong CJHC in Court

Date of Hearing: 26 June 2001

Date of Judgment: 26 June 2001

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J U D G M E N T

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1.This is an application by Mr Dominic David James to be admitted as a barrister of the High Court in Hong Kong. The application is made under section 27 of the Legal Practitioners Ordinance, Cap.159 (the "Ordinance").

2.Both the Bar Council and the Secretary for Justice do not consent to the application and they are here represented by Mr Andrew Mak for the Bar Council and Miss Jenny Fung for the Secretary for Justice.

3.The applicant's background as deposed in his affidavits is this. The applicant was born on 28 March 1977 in Guyana, South America and lived there until the age of 11 when he and his family moved to England. He is of Chinese origin and his great great grand father is said to have come from Hong Kong.

4.He studied in England and obtained his law degree in 1998 in the University of Reading. In 2000, he obtained his LLM in Corporate and Commercial Law in University College, London and was called to the Bar in England on 9 March 2000. Thereafter, he had been marshal to a County Court Judge and pupil in a number of London chambers on specific matters for a short time.

5.He arrived in Hong Kong with his fiancee Miss Joanna Tan on 3 March 2001. Miss Tan was born in Hong Kong of a family settled in Hong Kong.

6.In April 2001, the applicant obtained a 12 months pupillage in Hong Kong. The first 6 months of his pupillage would be with Mr Kevin Egan and Mr Jeevan Hingorani and the latter 6 months with Mr Robert Whitehead SC and Mr Jeevan Hingorani.

7.The applicant states in his affidavits that he intends to marry Miss Tan in March 2002 and settle in Hong Kong.

8.The applicant also states that he has satisfied the requirements of section 27(1)(a)(i), (b), (c) and (e) of the Ordinance and he seeks to be admitted pursuant to the court's general discretion within section 27(2)(b) notwithstanding that he does not satisfy section 27(1A) of the Ordinance.

9.It may be convenient for the relevant parts of section 27 to be set out in full for the purpose of this application :

"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 High 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;

(ii) he has been admitted as an advocate in Scotland;

(iii) he is a Bachelor of Laws of the University of Hong Kong, the City University of Hong Kong or the City Polytechnic of Hong Kong and has obtained a Postgraduate Certificate in Laws;

(iv) he has obtained a Postgraduate Certificate in Laws 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; or

(v) he has been admitted as a solicitor in Hong Kong for at least 3 years immediately or recently before the date of his application for admission and during that time he was in practice as a solicitor in Hong Kong or employed in the public service of the Government as a legal officer;

(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;

(c) he is not in practice as a solicitor either on his own account or as a partner or salaried employee in a firm of solicitors practising in Hong Kong;

(d) ......

(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.

(1A) 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

(c) have been ordinarily resident in Hong Kong for at least 7 years.

(1B) .....

(2) The Court may admit a person as a barrister under this section -

(a) .....

(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)."

10.Plainly the applicant does not have 8 consecutive months ordinary residency prior to his application as required under section 27(1)(e) nor does he satisfy the additional requirement of 3 years practice in the United Kingdom and/or 7 years ordinary residency in Hong Kong under section 27(1A) of the Ordinance.

11.Mr Egan for the applicant submits that the applicant is seeking the court's discretion to admit him generally under section 27(2)(b). Mr Egan rightly submits that the applicant is not relying on a lack of particular specialist expertise or a shortage at the junior Bar since such reliance is bound to fail, the applicant being still in pupillage could not have any specialist expertise and there being no evidence of shortage in the junior Bar.

12.Mr Egan however submits that there are exceptional circumstances in the applicant's case to justify the court exercising its discretion to admit the applicant. These are as deposed in the 4 affidavits filed in support of the application and may be summarised as follows:

(1) The Chinese origin of the applicant.

(2) The applicant's genuine intention to marry Miss Tan who is Chinese born in Hong Kong and their intention to live and raise their family in Hong Kong.

(3) Miss Tan comes from a well established family with deep roots in Hong Kong, her father being a senior partner of an established accountancy firm in Hong Kong and a member of the CPPCC and a member of the Selection Committee in the HKSAR.

(4) Miss Tan is a law graduate with a LLM from University College London and has completed the legal practice course at the College of Law in Chester.

(5) Miss Tan's grandfather, great uncle and aunt were all members of the Judiciary.

13.Mr Egan submits that the applicant has a genuine intention to ordinarily reside in Hong Kong and practice his profession in Hong Kong. He submits that all the above factors cry out that exceptional circumstances have been sufficiently demonstrated for the court to exercise its discretion to admit the applicant.

14.Mr Egan relies on Re Application of Tay Teck Huen and Tan Kok Cheng MP Nos. 3383 and 3473 of 1989 (unreported) to say that the court may admit the applicant notwithstanding him not complying with the requirements of section 27 and that the facts of that case are no different from the circumstances in the present case.

15.Re Application for Admission by a barrister [1975] HKLR 688 is relied on for the proposition that if there is no contrary evidence as to the applicant's bona fide, the court is entitled to accept that the applicant has the intention to ordinarily reside in Hong Kong. Mr Egan further relies on Re Caroline Coleman MP No. 1547 of 1992 (unreported) and Re Colin John Wright MP No. 3023 of 1992 (unreported) to say that the restrictions as to admission under section 27 are not intended to stop admission of overseas qualified barristers but to admit them only in exceptional circumstances. Exceptional circumstances, so Mr Egan submits, are not restricted to specialist expertise as have been established by the authorities.

16.Mr Andrew Mak for the Bar Association refers to Re Flesch [1999] 1 HKLRD 506 and he argues that there are no exceptional circumstances and it is not in the public interest to admit the applicant.

17.Ms Jenny Fung for the Secretary for Justice submits that competition from inexperienced UK barristers would not promote a strong independent local Bar and the applicant's admission is not in the public interest.

18.In Re Coleman, Sir Derek Cons VP said the following regarding the exercise of discretion under section 27(2) at page 4 of his judgment :

"The discretion of the Court to override the restrictions is retained and falls, in my view, to be exercised so as, - and I think this simply, but fairly, reflects the basis of the authorities to which I have referred, - to meet demands properly made upon the local Bar but with which, otherwise, it would be unable to comply, whether because of a lack of particular specialist expertise or more generally because of a lack of sufficient number of counsel at the appropriate level of skill and experience."

19.In Re Flesch, Chan CJHC (as he then was) held that in the exercise of the discretion under section 27(2) of the Ordinance, the paramount if not the sole consideration is public interest and it is in the public interest that Hong Kong particularly the Court of Final Appeal, should develop our own jurisprudence which enjoys international recognition and reputation. There must be appropriate safeguards, lest this would open a floodgate of overseas counsel who seek to be admitted and affect the healthy growth and development of the local Bar and it would be extremely rare for the court even to consider an application for admission by an overseas counsel who is not a Queen's Counsel.

20.In my view, although these principles in Re Flesch are on admission of overseas senior counsels for a particular purpose or for a particular case, they are equally applicable to the present case.

21.It is not in dispute that this court has the discretion to admit overseas counsel under section 27(2) of the Ordinance. However, there must be exceptional circumstances. The applicant has no experience in practice in England and he does not claim he has anything, as Cons VP had said in Re Coleman, "significantly greater than could be expected to be supplied through the normal channels of admission within section 27". I am unable to say how the applicant's intended marriage to Miss Tan and Miss Tan's established family background and her connection with former judges and magistrates could favour the applicant's admission in the public interest. There may be exceptional circumstances in so far as the applicant's marriage is concerned but certainly for the purpose of his joining the profession in Hong Kong, his intended marriage or the family background of Miss Tan would not constitute exceptional circumstances. For these reasons, I regret I am unable to grant the applicant's application.

Representation:

Mr Kevin B Egan, instructed by Messrs Barlow Lyde & Gilbert for Applicant

Miss Jenny Fung, Senior Government Counsel, for Secretary for Justice

Mr Andrew Mak, instructed by Messrs T S Tong & Co for Hong Kong Bar Association