Re Charles Gray

HCMP000139/1981

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Coram: Huggins, Ag. C.J.

Date of Judgment: 2nd February, 1981.

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JUDGMENT

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1. The Applicant is a member of the Utter Bar in England and seeks admission to the Hong Kong Bar under s.27(2) of the Legal Practitioners Ordinance "in respect of High Court Actions Nos. 287 of 1979 and 288 of 1979 and any other actions with which they may be consolidated and any related actions and of any appellate proceedings arising therefrom." The actions specified are actions for damages for libel and the Applicant is a member of Chambers which specialise in the law of defamation. The application is opposed by the Hong Kong Bar Association.

2. It is common ground that the court has an unfettered discretion as to those who shall be admitted under s.27(2). Mention has been made of statements by two Chief Justices to the effect that "the Bar must be master of its own house". This was said in the context of applications for abridgment of time for service of the papers relating to an application for admission and must be understood in that context.

3. The Ordinance offers no guidelines for the exercise of the discretion under s.27(2) and it appears that no guidelines have been laid down in previous cases. I have no hesitation in saying that the deciding factor must be the public interest, but the public interest can only be ascertained from a consideration of several competing interests. Barristers enjoy a sole right of audience in the superior courts of the Colony, a monopoly which, in turn, has been created not for the financial enrichment of the Bar but for the protection of the public. At the same time the Legislature has recognised that the Hong Kong Bar may not always be able to offer the best service obtainable. Litigants are entitled to adequate representation and, if such representation is not available locally, recourse must be allowed to the English Bar. In my view the maxim that a litigant is entitled to "counsel of his choice" is of no relevance to this matter: it has been held to mean no more than that a litigant is free to choose his counsel from those available to represent him at a proper fee on the day fixed for the hearing of the action. It certainly does not entitle him to demand the admission of an English barrister for the purpose of representing him in every case.

4. The justification of the monopoly is that it ensures that the judges are assisted by a Bar of adequate size and adequate skill and learning. Members of the Hong Kong Bar necessarily incur very high expenses and cannot be expected to incur those expenses if lucrative work is to be unnecessarily creamed off in favour of persons who have not to incur similar expenses. If Hong Kong barristers of adequate competence are available and English barristers are unnecessarily brought out to Hong Kong for particular cases, the result will be at best dissatisfaction at unfair competition and at worst to deter Hong Kong lawyers from joining or continuing at the Hong Kong Bar, to the detriment of the public. At the same time it must be recognised that until recently the Hong Kong Bar has been too small to allow individual barristers the degree of specialisation which is possible in England and the standards achieved in specialist fields have not been so high. That does not mean that we must for ever rely upon specialists from England and the difficulty is to decide in each case whether the expertise available in Hong Kong is not only below but so far below that available in England that justice requires the admission of an English barrister.

5. In this connection Mr. Martin Lee, on behalf of the Bar, submits that there may be instances where it is proper to admit an English junior to advise and to conduct the interlocutory stages of an action and yet unnecessary that he should represent his client at the trial, for advocacy is a field in which few barristers do not claim a measure of expertise. Whilst I accept that there is force in this argument, it is also true that points may arise in the course of a trial which call for some specialist knowledge of the particular field of law. There may be cases, therefore, where a specialist can properly be brought out for the trial itself.

6. The present case is an unusual one in that it is proposed to brief the Applicant without Hong Kong counsel to lead or to assist him. The Bar Association has in the past accepted that an English silk may properly be brought out whether or not the case is one involving a specialist field of law, it being recognised that a local junior would also be briefed. In my view it is desirable that local counsel should normally be briefed, because, however experienced English counsel may be in the jurisdiction in which they normally practise, they cannot as a rule be expected to have that knowledge of Hong Kong law and practice which is often necessary upon the hearing of an action. There is another point of great importance to the Bench, although it was not mentioned in argument, and that is that difficulty and inconvenience may be caused if at least one of the counsel engaged on each side is not permanently resident in the Colony. If this application is granted, therefore, it will only be on condition that the Applicant appears with a Hong Kong barrister. Mr. Jackson-Lipkin submits that such a condition cannot lawfully be imposed, because it is in effect a condition imposed upon the litigant and not upon the Applicant. I do not agree. It would, of course, oblige the litigant to incur the additional expense of engaging second counsel, but it goes further than that: it requires that the English barrister appear only if local counsel be actually present to assist the court as may be necessary.

7. So much for the general considerations. It is conceded that defamation is a field of law which calls for special expertise and, further, that it was proper to engage English counsel in the interlocutory stages. In the light of what I have said already I think it is more difficult for the Bar Association to contend successfully that it is unreasonable to engage the Applicant at the hearing of the action, although the concession does not destroy the whole of Mr. Lee's argument. Actions for defamation are by no means unknown in Hong Kong and a few have been contested to judgment. However, it is no slight to the members of the Hong Kong Bar to say that none of them can as yet have had more than a limited experience of contested actions. On the other hand, I am not persuaded that this can fairly be described as "an exceptional case" of libel. The fact that the Applicant has been in communication with an expert medical witness who also is to come out from England does not weigh heavily with me.

8. Much has been made of the fact that the Applicant has been admitted unconditionally to appear in another libel action, which is due for hearing next term. That his application for admission to appear in that case was not opposed was, I am satisfied, due to a misunderstanding. The correspondence prior to the lodging of his application clearly shows that the Bar Association had been led to think that his presence in Hong Kong was merely to advise and to settle the pleadings in that action and it was apparently not noticed that the application subsequently filed was not limited in this way.

9. It is significant that the Applicant was approached in the present case only after a Hong Kong junior had settled the Statement of Claim and had subsequently become unavailable to appear alone as a result of his taking silk. The instructing solicitor has deposed to the fact that the case does not warrant briefing a silk and in the absence of evidence to the contrary I must accept that that is so. I agree that the fact that a case justified the employment of a specialist pleader does not necessarily justify the employment of a silk.

10. After anxious consideration I have come to the conclusion that this application should be granted, but with the condition which I have already mentioned. I emphasise again that it should not be regarded as a precedent for more than it decides - that is to say as to the general principles applicable in such cases - for the Hong Kong Bar is fast gaining experience in some of the specialist fields and each application must be considered on its merits at the time that it is made.

2nd February 1981.

Representation: