Re Nicholas Nigel Green, Qc

HCMP 2663/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2663 OF 2011

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Before: Hon Cheung CJHC in Court

Date of Hearing: 18 January 2012

Date of Judgment: 18 January 2012

Date of Reasons for Judgment: 20 January 2012

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REASONS FOR JUDGMENT

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1.On 18 January 2012, this court dismissed the applicant’s application for approval, admission and enrolment as a barrister of the court for the purposes of advising and appearing on behalf of the Telecommunications Authority (“the TA”) before the court in the hearing of the case stated applications brought by the TA under CACV 109/2011 and CACV 110/2011 and the case stated application brought by PCCW‑HKT Telephone Ltd (“PCCW”) in CACV 108/2011. These are my reasons.

Facts

2.On 1 November 2010, the TA dismissed a complaint by SmarTone Mobile Communications Ltd (“SmarTone”) against PCCW’s increase of its fixed mobile interconnection charge tariff rate from 1 June 2008 to 28 April 2009.  The complaint was made under sections 7K, 7L and 7N of the Telecommunications Ordinance (Cap 106).  In its decision, the TA found that PCCW had a dominant position in the market.  However, it found that PCCW did not abuse its position of dominance in the market.

3.On 12 November 2010, SmarTone lodged an appeal from the TA’s decision with the Appeal Board under section 32N(4) of the Ordinance (“Appeal 29”).  By the appeal, SmarTone accepts the TA’s finding of PCCW’s dominance in the market, but challenges the TA’s finding that PCCW did not abuse its position of dominance.

4.On 16 November 2010, PCCW also lodged an appeal from the TA’s decisionwith the Board under the same section.  By the appeal, PCCW wished to challenge the TA’s finding that PCCW had a dominant position in the market (“Appeal 30”).

5.By way of interlocutory applications made to the Appeal Board, the TA challenged the admissibility of PCCW’s Appeal 30 on the grounds that PCCW was not a “person aggrieved” within section 32N(1) of the Ordinance and had no standing to lodge the appeal and that the appeal was in any event time‑barred pursuant to section 32N(4) of the Ordinance.

6.On the other hand, PCCW also applied to the Board seeking to intervene in SmarTone’s Appeal 29.

7.On 2 February 2011, the Chairman of the Appeal Board ruled that Appeal 30 was not out of time.  By a subsequent decision dated 7 April 2011, the Chairman ruled, however, that PCCW was not a “person aggrieved” and accordingly, PCCW’s Appeal 30 was inadmissible.  However, all was not lost for PCCW, because the Chairman gave PCCW leave to intervene in SmarTone’s Appeal 29, with liberty to PCCW to contest the TA’s finding of market dominance as an intervener in that appeal.

8.Dissatisfied with the Chairman’s decision, the TA made applications to the Appeal Board to state a case relating to the scope of PCCW’s intervention in SmarTone’s Appeal 29, and also to state a case relating to the limitation issue in PCCW’s Appeal 30.

9.On the other hand, PCCW also made an application to the Board to state a case on the “person aggrieved” issue in PCCW’s Appeal 30.

10.On 30 May 2011, the Chairman of the Board refused all three requests to state a case.  The refusals gave rise to the three civil appeals mentioned at the beginning of this judgment, in which the TA and PCCW respectively seek to challenge the Chairman’s refusals.

Governing principles

11.The principles governing the admission of overseas counsel are well established : Re Flesch QC [1999] 1 HKLRD 506; Re McGregor QC [2003] 3 HKLRD 585.  It is for an applicant for admission to satisfy the court that it is in the public interest to grant the admission.  In considering an application for admission, the court adopts a flexible and sensible approach, balancing different aspects of the public interest.  Amongst other things, the court takes into account the need to have a strong and independent local Bar; the need of Hong Kong people to have adequate legal representation and the need for the local courts to develop our own jurisprudence which enjoys international recognition and reputation.  In relation to the last aspect, overseas counsel with sufficiently high quality and standing may be admitted to appear in our courts in cases involving the determination of legal principles which may have an impact on the development of our jurisprudence : Re Flesch QC, p 513I‑J.  The question is not so much whether counsel in Hong Kong are able to do the case competently or even skillfully, but whether the specialist overseas counsel can add a significant dimension to the determination of the issues in question : Re McGregor QC, para 11(3).  Local counsel’s exposure to cross-fertilization with overseas lawyers of sufficiently high quality and standing which is considered to be healthy and conducive to the maintenance of a strong and independent local Bar, is also a relevant matter to take into account : Re Flesch QC, p 514E‑H.

Applicant’s arguments

12.In the present case, Ms Roxanne Ismail submitted for the TA that the determination of the three issues, that is, the “person aggrieved” issue, the “intervention” issue and the “limitation” issue, arising in the case stated applications, would involve the determination of principles which might impact substantially upon the development of Hong Kong law in the specialist area of telecommunication competition.  She submitted that the involvement of specialist counsel like the applicant would be desirable.  Counsel elaborated that it is important for the proper determination of the issues to grasp the fundamentally important distinction between market dominance and abuse of market dominance, as well as to understand the similarities and differences between the relevant UK and European governing regimes and the local regime.  She submitted that the applicant would be in a good position to assist the court on these matters and thus bring a significant dimension to its determination of the issues.  She accepted, however, that the issues are not exceptionally complicated or difficult, but argued that she did not rely on this as a ground on its own for her application.

My views

13.I have not been persuaded by the arguments.

14.I accept that telecommunication competition law is a specialized area of law.  But it does not follow that any and every issue arising out of this particular branch of law requires the service of telecommunication competition specialists, let alone overseas specialists.  It all depends on the issues involved and the nature thereof.  Some issues may be substantive in nature, and may involve complicated or difficult statutory and case law from one or more jurisdictions.  And detailed knowledge of the relevant governing statutory regime(s) and of the workings of the industry may be required.  Some issues may, however, simply be general issues of civil procedure.  The fact that they arise out of the same piece of legislation which governs the substantive telecommunication competition law is neither here nor there.

15.I can further accept that some issues, like the three issues in the present case, may have general or “wide” implications in the sense that other similar cases are governed by the same provisions.  Their proper resolution would therefore benefit not only the instant case, but also other similar cases.  But, this does not by itself turn the issues into ones which warrant the service of overseas counsel.  Many provisions in civil litigation, particularly procedural ones, have general application or wide implications.  Take the limitation issue as an example.  By definition, any statutory interpretative issue relating to a statutory period of limitation will have general application.  The fact that the time‑bar relates to a telecommunication competition matter does not take the argument very far.  I have not been persuaded by counsel that the specialist assistance which the applicant may offer to the court cannot be made available by local senior counsel with sufficient competence after proper and diligent research and preparation.  Whilst to a significant extent this must be a matter of degree and judgment, I have not been persuaded that a significant dimension to the determination of the issue will be added by the applicant’s appearance before the Court of Appeal.

16.Likewise, in relation to the “person aggrieved” issue, the phrase is one commonly used in many statutes, to define and delimit the standing of the intended appellant.  No doubt, the phrase may have different meanings under different contexts.  The fact that the present issue arises in the specialized context of telecommunication competition must certainly be carefully borne in mind.  However, I have not been persuaded that the context in the present case is such that the issue cannot be properly resolved, as a matter of proper interpretation of the statutory provisions in question according to established canons of statutory construction, without the assistance of overseas specialist counsel, or that such counsel can add a significant dimension to the determination of the issue.

17.As to the “intervention” issue, it is unnecessary to debate whether this is purely an issue of case management or is an issue involving some law.  In my view, in essence, this is an issue of procedure, depending, in whole or in part, on the proper interpretation of the relevant provisions.  The task of the court would inevitably be to find out the true intent of the legislature, by adopting a purposive approach.  Certainly the context, that is, telecommunication anti‑competition practices, must be highly relevant. But I have not been persuaded that specialist overseas counsel can add a significant dimension to the determination that cannot be made available to the court by experienced local counsel.  In this regard, Ms Ismail has specifically disavowed any suggestion that there are no competent or even skilful local senior counsel who can take up the appeals.

18.In short, I am doubtful whether the three interlocutory appeals would involve the determination of legal principles which may have an impact on the development of our jurisprudence, as opposed to the determination of issues which may have general application in the sense explained above.  More importantly, I have not been persuaded, given the nature of the issues involved, that specialist overseas counsel can add a significant dimension to the determination of the issues.  I have not been persuaded that exposure of local junior counsel to cross-fertilization would, on the facts, be significant enough as a factor to tip the scales in favour of the application.

Outcome

19.For those reasons, the application was dismissed.

20.I thank counsel for their assistance.

Ms Roxanne Ismail, instructed by the Department of Justice, for the applicant

Mr Gerard McCoy SC and Mr Daniel Hui, instructed by Kwok, Ng & Chan, for the Hong Kong Bar Association

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