Re Mr Robert Alun Jones, Qc

HCMP 2629/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2629 of 2006

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Before: Hon Ma CJHC in Court

Date of Hearing: 19 January 2007

Date of Judgment: 19 January 2007

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J U D G M E N T

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1.The Applicant seeks admission under section 27(4) of the Legal Practitioners Ordinance, Cap.159 to appear as counsel before the Appeal Committee of the Court of Final Appeal to represent James Henry Ting in applying for leave to appeal to that court and, should leave be granted, to act for Mr Ting in the appeal proper.

2.Mr Ting was formerly the group chairman of the Semi-Tech Global group of companies, which included a company called Semi-Tech (Global) Co Ltd (“STG”).  He was the chairman and chief executive officer of the company.  On 29 June 2005, Mr Ting was convicted after a 38-day trial of two offences of false accounting in relation to STG (involving the Statement signed by him in the Annual Report of STG for the year ending 31 January 1999 and also a letter dated 26 June 1999 again signed by Mr Ting).  Both offences related to the allegation that false statements were made regarding STG’s asserted 50% shareholding in a company called MicroMain System Limited.  Mr Ting was sentenced to 6 years’ imprisonment.

3.Following his conviction, Mr Ting appealed to the Court of Appeal and in a judgment handed down on 22 September 2006, his appeal was allowed but a retrial was ordered.  The Applicant appeared for Mr Ting in the appeal although not at the trial itself.

4.Not content with this decision, Mr Ting applied to the Court of Appeal for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap.484 that the order for a retrial made by the Court of Appeal was wrong and an appeal against it would involve points of great general or public importance.  After a hearing on 5 December 2006, the Court of Appeal dismissed the application.  The Reasons for Decision were handed down on 12 December 2006.  It is to be noted that the skeleton submissions for Mr Ting for that application contained the names of the Applicant, Mr Neville Sarony SC and junior counsel.  Although it would appear that the Applicant’s admission was sought in relation to the hearing of the application, Mr Sarony appeared for Mr Ting at the relevant hearing.

5.Mr Ting now seeks leave to appeal to the Court of Final Appeal and does so both on the basis that points of great general or public importance arise and also on the grave and substantial injustice ground.  The notice of application for leave (which is apparently out of time) again contains the names of the Applicant and the same Hong Kong leading and junior counsel.

6.It is in this context that the present application for admission is made.  As I have indicted, the Applicant seeks admission to act for Mr Ting not only in the application for leave before the Appeal Committee of the Court of Final Appeal but also in the appeal itself if leave were to be granted.

7.Dealing with the latter, I agree with Mr Andrew Bruce SC (who appears for the Applicant today) that should leave be granted, the Applicant should be admitted to represent Mr Ting at the appeal in the Court of Final Appeal.  So do Mr Jason Pow SC (for the Hong Kong Bar Association) and Mr Louie Wong (for the Secretary for Justice).  This is perhaps a recognition of what has been termed the CFA ground : see Re Pannick QC [2004] 1 HKLRD 950, at 956-7 (paragraphs 15-17).

8.However, the Hong Kong Bar Association resists the Applicant’s admission insofar as the application for leave before the Appeal Committee is concerned.  Mr Pow accepts that the relevant principles can be found in Re Pannick QC.  There, in dealing with the question whether overseas counsel should be admitted in relation to an application for leave before the Appeal Committee of the Court of Final Appeal (albeit that was in a civil case), the court said this at 957 : -

“16 …

(4)   Accordingly, in my view, where a hearing before the Court of Final Appeal is involved, the Court will be more, rather than less, inclined than at any other level to admit overseas counsel.  This is provided of course that the matter is one that is substantial and in which overseas counsel is able to contribute significantly by reason of his expertise.  An application, say, for an extension of time would rarely meet these criteria.

…….

18. Much emphasis was laid by Mr Khaw on the fact that the hearing for which the applicant seeks to be admitted is only an application for leave to appeal.  Put like that, the matter may seem superficially too simple to require the input of overseas counsel.  However, the court must always look at the nature of the application and the issues  that arise from it.  An application for leave before the Court of Final Appeal is nonetheless still a matter (and usually a substantial one) before that Court.”

9.The Bar’s objection to the Applicant’s submission is simply that the application for leave is not a substantial one and therefore not one in which the Applicant’s expertise would provide a significant contribution.  As I understand Mr Pow’s submissions, it is said that the request for leave merely involves an argument relating to the application of established principles to the facts and whether on the facts, there has been a grave and substantial injustice.  These were matters that Hong Kong counsel were more than competent to deal with; indeed, there was no reason why Mr Sarony could not properly and competently act for Mr Ting in the application for leave before the Appeal Committee as he did before in the Court of Appeal.  There was nothing to indicate on the material before me that Mr Sarony (or indeed any other suitable Hong Kong senior counsel) would not be available for the leave application before the Appeal Committee (which I understand it is to take place in March).

10.There is, in my view, no question of Hong Kong leading counsel being either unsuitable or unavailable as far as the leave application is concerned.  The only matter I have to consider is whether, in the context of the CFA factor, the application before the Appeal Committee is a substantial one and one in which the Applicant’s expertise can provide a significant contribution.

11.I do not believe that the application for leave is a substantial one : -

(1) Mr Bruce submitted in his Skeleton Submissions that if leave to appeal were to be granted by the Appeal Committee, Mr Ting would seek to argue in the appeal itself that the principles governing orders for retrial should be reviewed by the Court of Final Appeal.  I initially took this to mean that submissions would be made to the effect that the present approach of the court regarding retrials should be changed.  This was not altogether clear in the notice of application for leave to appeal to the Court of Final Appeal, but hearing Mr Bruce this morning has persuaded me that this is not the case.  Mr Bruce has put the matter fairly before me.  Upon analysis, Mr Ting will only be seeking to persuade the Appeal Committee it is arguable that the Court of Appeal has misapplied established principles and that on the facts there has been a grave and substantial injustice.

(2) Notwithstanding the fact that the Hong Kong Bar Association has agreed that should leave be granted by the Appeal Committee, the Applicant ought to be admitted to represent Mr Ting in the full appeal (and this is a factor in favour of the Applicant in the present case), nevertheless, one must focus on the particular application for which overseas counsel is sought to be admitted.

(3) The Applicant is an eminent Queen’s Counsel from England and his expertise is not challenged.  However, in my view it is unlikely in the circumstances of the present case that he will be able to provide the necessary assistance to the Appeal Committee beyond that which will be provided by local counsel.

12.I should perhaps here emphasize again that whether a matter is “substantial” depends both on the nature of the application and the issues that are likely to arise in it.  To put it another way, the court is required to examine both the importance of the matter itself (for which the admission of overseas counsel is sought) and also the issues that are involved.  Both are important facets.  In the present case, the nature of the application for leave is that it is without doubt a crucial one : were it to fail, that is the end of the appellate process as far as the order for retrial is concerned and Mr Ting will have to face a fresh trial.  On the issues that arise in the application for leave to appeal, I have already come to the view that ultimately the Appeal Committee will be asked to give leave on the basis that the Court of Appeal simply got it wrong on the facts.  As Mr Pow suggested (and Mr Bruce agreed with this), it is to the quality one looks to when looking at the issues and not just to quantity.

13.For the above reasons, the application for admission is refused as far as the application for leave to appeal to the Court of Final Appeal is concerned.  There will be an order in term, however, of paragraph 2 of the Notice of Motion.  There will also be no order as to costs.

Mr Andrew Bruce SC, instructed by Messrs Chong & Partners for the Applicant

Mr Jason Pow SC, instructed by Messrs Anthony Chiang & Partners for the Hong Kong Bar Association

Mr Louie Wong of the Department of Justice for the Secretary for Justice