Re David Perry,Qc

HCMP 503/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 503 OF 2012

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Before: Hon Cheung CJHC in Court

Date of Hearing: 12 April 2012

Date of Judgment: 17 April 2012

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J U D G M E N T

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Facts

1.The applicant, Mr David Perry QC, applies to be admitted to the local Bar to appear for the prosecution at the preliminary inquiry, the trial and ancillary hearings (if any) before the courts in Hong Kong in the case of HKSAR v Chan Chun‑chuen, Eastern Magistracy Criminal Case No 2233 of 2011.  The application is made under section 27 of the Legal Practitioners Ordinance (Cap 159).  The Secretary for Justice does not oppose the application but the Bar Association does.

2.Chan Chun‑chuen (also known as Tony Chan) was the loser in the probate battle concerning the mammoth estate of the late Madam Nina Wang : HCAP 8/2007; CACV 62 and 101/2010; FAMV 20/2011 ([2011] 6 HKC 273).  The 2006 Will he relied on to claim the estate of Nina Wang was rejected by Lam J as a forgery, whose finding was upheld on appeal.  Tony Chan is now charged with one count of forgery and another count of using a false instrument in relation to the 2006 Will.  The case is pending before the Eastern Magistrates’ Courts.  The prosecution seeks to commit the case to the Court of First Instance for trial.  The defence has elected to have a preliminary inquiry.  It is now fixed for 14 May 2012 with 30 days reserved.

3.The prosecution wishes to bring in the applicant to prosecute the case, starting with the preliminary inquiry.  The eminence and expert skills of the applicant in handling heavy criminal cases, including those involving complicated expert evidence, are not in doubt.  He has recently appeared for the prosecution in the Nancy Kissel retrial.

4.The present application for admission is essentially based on the “unusual difficulty and complexity” ground.  It is also said that suitable local counsel is unavailable.

5.On behalf of the applicant, Mr Zervos SC says that the case involves a complex factual matrix.  Lam J’s judgment contained 935 paragraphs and ran to 326 pages.  The trial lasted 40 days.  The hearing before the Court of Appeal took 4 days.  Its judgment ran to 47 pages and contained 117 paragraphs.  In both judgments, substantial portions were devoted to factual as well as expert evidence.

6.Mr Zervos submits that the prosecution would involve complicated expert forensic evidence, including handwriting, DNA and fingerprint expert evidence.  It is pointed out that some of the experts involved would be quite different from those involved in the civil trial.

7.Counsel also says that complicated legal issues will be involved.  They include :forgery; falsity (issue of double intention); permanent stay (jurisdiction of committal proceedings and permanent stay on missing or damaged evidence; adverse publicity; evidence emanating from the civil proceedings); expert evidence (factual basis for expert opinion; expertise; methodology and admissibility); admissibility of evidence (chain of evidence and seizure of the 2006 Will from the civil proceedings without the imposition of any protocol); and disclosure.

8.As regards “unusual difficulty”, Mr Zervos submits that all matters would likely be put in issue by the defence.  There would be a full contest of the oral testimony and vigorous challenge of the expert evidence.  The trial is likely to be lengthy and voluminous documents are involved.  Furthermore, there would be the impact of the civil proceedings on the criminal proceedings to consider.

9.For the preliminary inquiry, the defence has now required to be called 26 prosecution witnesses.  Six of them are local lawyers who are likely to be known to local counsel.  It is said that this may cause them difficulty or embarrassment.

10.In the evidence filed, efforts made by the prosecution to brief suitable local counsel have been outlined.  In short, 14 senior counsel are not available because of current or previous involvement in the matter.  Four other senior counsel have been approached but they are not available.

11.Mr Zervos reminds the court that in the probate action, Tony Chan has instructed London silks to represent him at every level of the courts.  It is likely that he would instruct London counsel again at some stage in the criminal proceedings, even though his current team comprises only local lawyers.

12.Counsel also stresses that this is a high profile case with a long history and that given the nature of the case, it is in the public interest to brief an eminent counsel in the criminal law with proven experience in the conduct of cases of this type and knowledgeable in the areas of law likely to arise in order to ensure a fair and successful prosecution.  He further submits that cross‑fertilisation with lawyers of other common law jurisdictions would help to develop and strengthen the local Bar.

13.Mr Perry QC, if admitted, would appear together with Ms Anna Lai, Senior Assistant Director of Public Prosecutions, who also appears with Mr Zervos in this application.

14.Mr Blanchflower SC (Ms Ella Liang with him) opposes the application on behalf of the Bar.  Essentially, counsel submits that this is not a case of “unusual difficulty and complexity”.  He says that in many lengthy commercial fraud cases, voluminous documents and numerous witnesses are also involved.  The Department of Justice has no difficulty in briefing local senior counsel and senior juniors to prosecute them.  He submits that many of the so called unusually difficult and complex legal issues relied on by the applicant are speculative, or else they are actually covered by well established authorities.  Thus, for instance, the issue of double intention is, according to counsel, covered by the Court of Appeal’s decision in HKSAR v Chim Pui‑chung, CACC 402/1998 (8 December 1998).  He submits that the efforts made by the prosecution to locate suitable local counsel have been limited.  He suggests that there is a pool of local senior counsel and senior juniors who are experienced in handling lengthy trials involving complicated expert evidence.  According to his estimate, there are over 20 suitable local senior counsel who have not been approached to take up the prosecution.

General principles

15.The general 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 unnecessary to rehearse them here.  The burden is on 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.  Different facets of the public interest include : 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.  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.  Local counsel’s exposure to cross‑fertilisation between lawyers of sufficiently high quality and standing from other common law jurisdictions is considered to be helpful and conducive to the maintenance of a strong and independent local Bar.  Admission of overseas counsel is not limited to hearings before the Court of Final Appeal or even the Court of Appeal.  For civil matters, the same basic principle applies to all hearings, irrespective whether the hearings are final or interlocutory : Re Mostyn QC, HCMP 3552/2003, 17 September 2003 (Ma CJHC), para 10.  For criminal proceedings, once it is accepted or decided that an applicant should be admitted for a trial, there is no good reason why he should not be permitted to represent the prosecution at preliminary or ancillary hearings, such as an application for a stay.  It is sensible to use the same leading counsel in all these matters.  It would save costs and duplication of effort : Re Perry QC, HCMP 1550/2010, 17 September 2010 (Tang Ag CJHC), para 13.

16.It is important to remember that section 27 of the Ordinance gives the court a general discretion in admitting overseas counsel.  The overriding consideration is public interest.  As Chan CJHC pointed out in Re Richards QC [1999] 2 HKLRD 775, 777 H‑J :

“ Section 27 of the Ordinance gives the Court a discretion in admitting overseas counsel. The paramount consideration is of course public interest. The Court when exercising its discretion is to balance competing aspects of public interest. For a number of years, the Court has set down guidelines in this type of applications. These guidelines refer to categories which are situations in which the Court, having balanced the competing aspects of public interest, is minded to exercise its discretion in admitting overseas counsel. The list is of course not exhaustive. From time to time, in appropriate cases, the Court may see fit to exercise its discretion in the public interest to admit an overseas counsel to appear in a particular case.”

17.In Re Todd QC, HCMP 967/2001, 11 April 2001 (Suffiad J), similar observations were made (on page 4) :

“ The court is given a discretion to admit overseas counsel under section 27 of the Legal Practitioners Ordinance. Over the years these courts have laid down guidelines for the exercise of that discretion in such applications. The paramount consideration laid down by these guidelines is the public interest. That has been explained as the interest of Hong Kong people as a whole. The rationale for that is that it is in the public interest of Hong Kong to develop a strong and independent bar.

On the other hand, it is well recognised that a sensible and flexible approach should be adopted in applying the guidelines which is not an exhaustive list.  There are times when a case may be in a grey area, not falling precisely within those guidelines yet the court is asked to exercise its discretion based on the individualistic nature of the case itself. In my view this is such a case and that was the direction in which Mr Bleach's argument was aimed at.”

18.In these two cases, one application did not fall within any of the categories set out in the guidelines for admission and the other bordered between a difficult and complex case and one which was unusually difficult and complex.  Yet the court in each case was prepared to exercise its discretion to admit overseas counsel, after considering all relevant circumstances.

Present case

19.Given that criminal proceedings are now pending, the less said about the possible legal and factual issues involved, the better.  Understandably, the applicant has difficulty in pinpointing to the court the issues, whether factual, expert or legal, that may arise in the criminal proceedings.  Unlike a civil trial, there are no pleadings to define the issues.  There are no witness statements from the defence.  Nor are there any expert reports from the defence.  And it is fair to say that the defence has been changing its position and raising new issues, which is perhaps not surprising given the changes of legal representation.  As Mr Zervos puts it, the prosecution has been working against a moving landscape.

20.I have reservation about the submission that the long and detailed judgment of Lam J and that of the Court of Appeal have provided a “guide” or a “script” to the prosecution which it may rely on.  The issues are not entirely the same.  Some of the witnesses are different and certainly much more expert evidence of various types is involved. Needless to say, the burden and standard of proof are entirely different in the criminal proceedings.  The fact remains that at the probate trial, Tony Chan was represented by one London silk, two local silks and one junior, whereas the plaintiff was represented by three very senior local silks together with two juniors.  If one starts from the premise that the probate trial was an unusually difficult and complex case, it is difficult to see why the present criminal prosecution is not such a case.  Whilst one is certainly wiser now in relation to the facts and issues that may arise with the benefit of the several judgments in the civil case, it does not detract from the fact that a criminal prosecution is very different from a civil case, and there is a limit to what reliance one can safely place on what has transpired in the civil proceedings.  This is particularly so when, as mentioned, there are no pleadings (and so forth) in a criminal prosecution, and one can only safely assume that everything is in issue and will be contested.

21.In those circumstances, I agree with Mr Zervos that it is an oversimplification of the position to suggest that the criminal prosecution only involves one factual issue, namely, whether the 2006 Will is a forgery.

22.Put at the lowest, this is a borderline case, that is, a case which “borders between a difficult and complex case and one which is unusually difficult and complex since the line dividing the two can seldom be distinctly drawn” (Re Todd QC, at page 5).  The court would still have a discretion, based on public interest, to exercise.

23.In this regard, there are several important considerations, which are quite unique to the instant case.  First, the present case has a long history.  The probate trial and appeals were extremely high profile ones, receiving intense media and public attention not only locally but also internationally.  There is no reason to expect the criminal proceedings to be less high profile or less strenuously contested, particularly when in the criminal prosecution Tony Chan would not be fighting for someone’s estate; rather, he would be fighting for his own liberty.

24.Secondly, six local lawyers are involved as prosecution witnesses.  There is no dispute that some of them are prominent lawyers engaged in criminal practice in Hong Kong for considerable time, and have had close relationship with many local leading counsel on both professional and personal basis.  In instructing local counsel to prosecute the case, the prosecution must consider not only the question of possible embarrassment of the counsel concerned, but also the question of public perception and the appearance of justice, which are important matters of public interest.  Instructing an eminent overseas counsel in the criminal law with a proven track record would not only ensure a fair and successful prosecution, which in itself is also of important public interest, but would also help maintain the appearance of justice.  Indeed the more highly publicised a case is, the more important it is to maintain the appearance of justice.

25.It is no answer to say that cross-examination of these witnesses would only be done by the defence, and prosecuting counsel’s role would only be limited to tendering them for cross-examination.  That, with respect, is an oversimplification of the role of prosecuting counsel.  In any event, the possibility of some other local lawyers being called by the defence cannot be wholly ignored.

26.Thirdly, as mentioned, the fact remains that in the related probate proceedings, very prominent overseas as well as local counsel were instructed by all parties concerned.  The nature of criminal proceedings is such that issues are not precisely defined in advance. Therefore, whilst there are definitely differences between the civil case and the present criminal case, it is entirely reasonable for the prosecution to assume and proceed on the basis that similarly difficult and complex issues may arise in the criminal case warranting the service of overseas counsel.

27.These are unique features which, if nothing else, distinguish the present case from an ordinary complex commercial fraud case prosecuted by local counsel.  In this regard, to be fair to the Department of Justice, it should be noted, as Mr Zervos has stressed, that the engagement of overseas counsel for prosecution work is more an exception than the rule.  In almost all of these complex commercial cases, they are handled by local counsel – competently and satisfactorily.  But as I said, there are distinguishing features in the present case.  For that reason, I do not believe that the present case would create an unwanted precedent or open a floodgate, which would of course not be in the public interest.

28.As for the availability of suitable local counsel, I am satisfied that reasonable efforts have been made by the prosecution, particularly bearing in mind the good knowledge that the Department of Justice has of many of those practising at the local Bar.  It must be remembered that in relation to the unusual difficulty and complexity ground, it is not necessary for the applicant to prove that no suitable local counsel is available at all to take up the case, provided that reasonable efforts have been expended in good time to locate such local counsel but to no avail : Re McGregor QC, para 11(2).  As for the 20 odd local counsel suggested by Mr Blanchflower as potentially suitable local counsel who have not been approached by the prosecution, having gone through the names suggested, I am not as optimistic as counsel as to the suitability or willingness of many of them to take up the role of counsel on fiat in the intended jury trial in the present case.

29.I also note that the applicant, if admitted, would be assisted by local counsel. This factor of cross-fertilisation should also be taken into account.

30.The complaint of lateness has been adequately dealt with by Mr Zervos, whose explanation I have no reason to doubt.

31.Having considered the entire circumstances (as well as the respective submissions made by counsel, some of which I have not specifically mentioned), I have come to the conclusion that I should exercise my discretion in favour of granting the application.  I so order.

Mr Kevin P Zervos SC, DPP and Ms Anna Y K Lai, SADPP, of the Department of Justice, for the applicant

Mr Michael Blanchflower SC and Ms Ella Liang, instructed by Kwok, Ng &Chan, for the Hong Kong Bar Association

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