Re Charles George Q.C.

HCMP 897/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 897 of 2010

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Before : Hon Ma CJHC in Court

Date of Hearing : 26 May 2010

Date of Judgment : 26 May 2010

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J U D G M E N T

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1.In 2005, a company called BeeLab Semiconductor Limited (“BeeLab”) applied for a grant to facilitate the registration of a patent in relation to a piece of power supply apparatus known as a charge pump.  The application was made (pursuant to a Hong Kong Government funding scheme) to the Innovation and Technology Commission (“the ITC”).  In order to evaluate the viability of the patent registration, the ITC in turn delegated this task to the Hong Kong Productivity Council (“the HKPC”).

2.In relation to BeeLab’s application for funds, HKPC requested the Australian Patent Office (“the APO”) to prepare a report.  The report was not favourable to BeeLab.  After a somewhat lengthy series of complaints made by BeeLab to ITC regarding the way the APO and HKPC dealt with the matter, on 7 April 2006, ITC rejected the application for a grant.

3.This prompted a complaint made by BeeLab to the Ombudsman in August 2006 in which ITC and HKPC were accused of maladministration.  Initially, on 14 September 2006, the Ombudsman effectively rejected the complaint.  Following protests by BeeLab, the Ombudsman reconsidered the matter and was receptive to further investigations being made.  On 3 May 2007, the Ombudsman responded by rejecting the complaints made against ITC and HKPC.  BeeLab pursued the matter with the Ombudsman, who again looked into the complaint.  On 25 March 2008 in a letter to BeeLab, the Ombudsman maintained her earlier position.

4.At this point, BeeLab engaged solicitors (Messrs Boase Cohen & Collins) to correspond with the Ombudsman.  This resulted in the Ombudsman once again relenting by agreeing to review her decision (this was in August 2008).  By a letter dated 9 September 2008, BeeLab’s solicitors wrote to the Ombudsman demanding the payment of $160,000, being the fees incurred by BeeLab in instructing them.  The Ombudsman rejected this demand in a letter dated 16 September 2008.  That letter also stated that, pursuant to section 12(4) of the Ombudsman Ordinance, it was decided that no further representation by Boase Cohen & Collins would be accepted by the Ombudsman; in future, it was stated, the Ombudsman would communicate directly with BeeLab.

5.On 20 October 2008, the Ombudsman wrote to BeeLab saying that the scope of investigations would focus only on whether there was any maladministration in the way ITC processed BeeLab’s application for a grant and this would include looking into HKPC’s actions.  It was further stated that the question of ITC’s appointment of HKPC as its agent would not be investigated (an aspect that BeeLab wanted the Ombudsman to look into).

6.However, by a letter dated 9 January 2009, the Ombudsman changed her mind to say that a full investigation would be conducted, including looking into the question of ITC’s appointment of HKPC.

7.Earlier, on 15 December 2008, BeeLab sought to institute judicial review proceedings against the Ombudsman, by a Form 86A of that date.  Three decisions of the Ombudsman were identified : ‑

(1)	The decision made on 20 October 2008 in which the Ombudsman stated that no investigation would be carried out in relation to the question of ITC’s appointment of HKPC as its agent (see paragraph 5 above).
(2)	The decision made on 16 September 2008 wherebythe Ombudsman stated that the continued representation by Boase Cohen &Collins would no longer be permitted (see paragraph 4 above).
(3)	The failure of the Ombudsman to provide reasons in her initial refusal to investigate BeeLab’s complaints as stated in the letter dated 3 May 2007 (see paragraph 3 above).

8.On 13 February 2009, Reyes J refused leave to institute judicial review proceedings in relation to any of the three decisions.

9.On 25 August 2009, the Court of Appeal allowed the appeal to the extent of giving leave to institute judicial review proceedings in relation only to the second decision (the one made on 16 September 2008).  The Court of Appeal regarded it as arguable that the refusal of the Ombudsman not to have further dealings with Boase Cohen & Collins and only with BeeLab, could be impeached.

10.Not satisfied with the Court of Appeal’s refusal to grant leave in relation to the first and third decisions, by Notice of Motion dated 25 September 2008, BeeLab has applied to the Court of Appeal for leave to appeal to the Court of Final Appeal.  No date for hearing has as yet been fixed.

11.The Ombudsman has completed the investigation referred to in the letter dated 9 January 2009 and the report (dated 11 September 2009) has been provided to BeeLab.

12.The substantive hearing of the judicial review (in relation, for the time being, only to the second decision) is now fixed to be heard on 9 September 2010.

13.With this somewhat lengthy background, I now turn to the present application.  The Applicant seeks to be admitted as a barrister under section 27(4) of the Legal Practitioners Ordinance, Cap. 159 for the following matters as stated in the Notice of Motion : ‑

“(a)	to appear at the hearing for the substantive judicial review application of HCAL 151/2008 on behalf of BeeLab Semiconductor Limited (‘BeeLab’) on 9 September 2010;
(b)	to appear at the hearing for an application for leave to appeal against the Decision in CACV 35/2009 at the High Court and Court of Final Appeal respectively;
(c)	to appear at the hearing for an application for leave to amend the proceedings in the Court of First Instance in relation to the Decision challenged by the Judicial Review; and
(d)	to advise and engage in conference for matters arising out of the aforesaid hearings and applications.”

It is to be noted that the reference to the application for leave to appeal the decision in CACV 35/2009 is a reference to the decision of the Court of Appeal made on 25 August 2009 (see paragraph 9 above).  That application is pending before the Court of Appeal but there is no application before the Court of Final Appeal.  In relation to the application to amend, there is as yet no application before the Court either, although I am informed that this is a reference to a proposed application to amend the Form 86A so as to enable BeeLab to challenge the 11 September 2009 report (see paragraph 11 above).  Ms Jessica Chan (who appears for the Applicant) indicated that the application for leave to amend would be made to the Court of Appeal, probably to be heard at the same time or following the application for leave to appeal to the Court of Final Appeal.

14.The application for admission is brought under the following heads : ‑

(1)	The matters for which the Applicant seeks admission are of unusual difficulty or complexity.
(2)	The matters also involve the determination of principles which might impact substantially on the development of Hong Kong law.
(3)	Under both the previous heads, the Applicant is a person who, by reason of his experience and expertise, would add a “significant dimension to a very complex or difficult case”.
(4)	The CFA factor.
(5)	There is no Hong Kong counsel who is suitable to represent BeeLab.

15.In my judgment, the application should be dismissed.

16.It is convenient to deal with the first three heads together : ‑

(1)	It is clear that none of the applications for which the Applicant seeks admission involve either matters of unusual difficulty or complexity, or involve the determination of matters which might impact substantially on the development of Hong Kong law.
(2)	In the substantive application for judicial review, the only issue is the question whether the Ombudsman was right in refusing to deal with Boase Cohen & Collins.  The determination of this question may depend on looking at section 12(4) of the Ombudsman Ordinance.  This is neither a difficult nor complex issue, much less unusually so.  Further, it is not an issue which would impact substantially on the development of Hong Kong law.  It is a simple issue : was the Ombudsman acting properly in saying that her office would only deal with BeeLab direct and not with its solicitors?
(3)	In relation to the application for leave to appeal to the Court of Final Appeal, nothing in the judgment of the Court of Appeal (or that of Reyes J) reveals any difficult or complex questions (much less unusually so) nor a determination of principles that might impact substantially on the development of Hong Kong law.  They were decisions that dealt exclusively with the question of whether leave to institute judicial review proceedings should be permitted and, moreover, they were fact sensitive decisions.  For example, the decision of the Ombudsman made in the 11 September 2009 report  has at least to a significant extent rendered academic the challenges to the first and third decisions.  Ms Chan indicated that the Court of Appealmisunderstood the scope of the challenge under the first and, in particular, third decisions.  Whether or not the Court did so (and here I am bound to remark that its understanding of the issues came from the submissions of counsel for BeeLab), again this is neither a matter of unusual difficulty or complexity nor is it an issue which might impact substantially on the development of Hong Kong law.
(4)	It was also suggested that in the application for leave to appeal to the Court of Final Appeal, a question arises as to whether an appeal to the Court of Final Appeal on a refusal of leave to institute judicial review proceedings, was in any event, as a matter of jurisdiction, possible.  This question does not, in my view, arise.  The Court of Final Appeal has in the past dealt with applications for leave to institute judicial review proceedings : see for example Peter Po Fun Chan v Winnie C W Cheung and Another (2007) 10 HKCFAR 676 and Anderson Asphalt Limited v The Secretary for Justice, unreported, FACV 19/2008, 19 November 2008.
(5)	As regards the (as yet non‑existent) application for leave to amend, it has in any event simply not been demonstrated that any complex or difficult issues arise at all.  A reference merely to whether it might be appropriate for the Court to allow a challenge to the 11 September 2009 report, will not suffice.  Moreover, and more important, there is no application before the Court.
(6)	Since the various applications I have referred to do not involve any matters of unusual difficulty or complexity nor involve the determination of any question which might impact substantially on the development of Hong Kong law, there can be no question of the Applicant adding “a significant dimension to a very complex or difficult case”.

17.The CFA factor (as described in Re Pannick QC [2004] 1 HKLRD 950 at 956I – 957F (paragraph 16) has no application either.  This factor only applies when there is involved an actual application to the Court of Final Appeal.  There is none in the present case.

18.Finally, in relation to the point that there is no suitable counsel in Hong Kong, this was a point which a director of BeeLab (Mr Ng Shek Wai) dealt with in his affirmation.  Although I am prepared for present purposes to accept that BeeLab may have experienced difficulties with the counsel it has so far engaged, this is wholly insufficient to establish any case based on the unsuitability of all, or even a sizeable number of, counsel in Hong Kong to represent BeeLab.

19.I have so far not dealt with an important aspect of applications for the admission of overseas counsel, namely, the obligation on solicitors to make due inquiries on the availability of local counsel.  In the present case, such inquiries have been somewhat limited although no doubt this may have been coloured by BeeLab’s prejudice against Hong Kong counsel (see paragraph 18 above).

20.For the above reasons, the application is dismissed.

Ms Jessica W Y Chan, instructed by Messrs Chan & Tsu for the Applicant

Mr Adrian Bell, SC, instructed by Messrs Cheung, Tong & Rosa for the Hong Kong Bar Association

Ms Leona Cheung of the Department of Justice for the Secretary for Justice