Re Ms Clare Montgomery, Qc

HCMP 2516/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2516 OF 2010

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Before: Hon Tang Ag CJHC in Court (Sitting as an additional Judge of the Court of First Instance)

Date of Hearing: 21 January 2011

Date of Judgment: 21 January 2011

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JUDGMENT

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1.This is an application to admit Ms Clare Montgomery, QC to represent Mr Wong Chi-wai in his appeal. Ms Montgomery is well known in our Courts and needs no introduction.

2.Mr Wong, a barrister, has been convicted of attempting to pervert the course of justice in his professional capacity, in that he had prepared letters to be issued by the handling solicitor (Mr Birney Yeung) on behalf of the client to a prosecution witness falsely asserting the existence of legal professional privilege (“LPP”) and threatening legal action in the event that LPP was breached.  The alleged unlawful purpose was to prevent or dissuade the witness from testifying in the client’s criminal trial. 

3.Mr Wong was convicted after a 10-day trial and sentenced to imprisonment for 6 months.  The prosecution was initially represented by Mr Kevin Zervos, SC, Deputy Director of Public Prosecutions.  Subsequently, Mr Gerard McCoy, SC was instructed on fiat and appeared for the prosecution at various pre-trial hearings.  However, because of his unavailability, ultimately, Miss Charlotte Draycott, SC was instructed on fiat to represent the prosecution at the trial leading Miss Betty Fu.  Mr Wong was represented by Mr Graham Harris, a senior junior, and Mr Benson Tsoi at trial. 

4.Mr Wong has been granted bail pending appeal by Cheung JA. On 18 June 2010, the prosecution was granted leave to apply for a review of his sentence, which is CAAR 6/2010. 

5.I am told that in the appeal, the prosecution will probably be represented by Mr Kevin Zervos, SC, Mr Gerard McCoy, SC, or Miss Charlotte Draycott, SC.

6.Mr Wong is a barrister of some 25 years call.  His practice is in the criminal field, and he is widely known among senior criminal practitioners.  At trial, Mr Clive Grossman, SC and Mr Philip Dykes, SC gave evidence on his behalf. 

7.Mr Harris submitted that the interest of justice would be furthered by Mr Wong being represented by leading counsel with whom he is not personally acquainted, and who can form a totally objective view of the law and the facts.

8.He submits, and Mr Selwyn Yu, SC, appearing on behalf of the Bar Association, agrees that under the code of conduct governing barristers, a barrister may refuse to act for a client for personal reasons, for example, because the prospective client is a friend.  That is for a good reason.  I believe if a client feels that he would be embarrassed if he were to be represented by a friend, it is a matter that the court is entitled to take into consideration.

9.The Bar opposes the application on the basis that the Applicant has failed to demonstrate that serious and genuine efforts have been made to instruct local leading counsel in the appeal. 

10.Mr Harris told me that some attempts have been made to instruct local leading counsel, two of whom had declined to act on the basis of their friendship with Mr Wong.  However, he informs me that there is a local leading counsel who would not feel embarrassed and is willing to appear for Mr Wong. But as I have said, the court is entitled to look at the feelings of the client as well because I think this kind of embarrassment can act both ways.

11.I think it is entirely reasonable that Mr Wong should wish to be represented by an overseas leading counsel.  He will also be represented by Mr Graham Harris in the appeal, who is of course a very experienced senior junior counsel in the field of the criminal law.  So there will be substantial involvement by local counsel in this case. 

12.This case is not without complication, but that is not a basis upon which I will grant the application. 

13.I will grant the application because I agree that the interest of justice would be served if Mr Wong could be represented by leading counsel with whom he is not personally acquainted and who can form a totally objective view of the law and the facts.  Lest it be thought that Mr Wong is given special treatment because he is a senior barrister, I should explain that admission is granted so that he can overcome his handicap of being widely known at the criminal bar which necessarily limits the choices available to him.

14.I will make the order in terms of the application.

Mr. Graham Harris and Mr. Benson Tsoi instructed by Messrs Haldanes for the Applicant

Ms. Leona Cheung Ag. SGC of the Department of Justice for the Secretary for Justice

Mr. Selwyn Yu, SC and Mr. Michael Chai instructed by Messrs Philip K. H. Wong, Kennedy Y. H. Wong & Co. for the Hong Kong Bar Association