Re David Perry Qc

HCMP 2381/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2381 OF 2012

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HCMP 2383/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2383 OF 2012

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HCMP 2475/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2475 OF 2012

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Before: Hon Cheung CJHC in Court

Date of Hearing: 13 November 2012

Date of Judgment: 13 November 2012

Date of Reasons for Judgment: 23 November 2012

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REASONS FOR JUDGMENT

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The decisions

1.On 13 November 2012, I allowed these three applications for admission of overseas counsel.  These are my reasons.

The applications

2.These three applications all relate to the unprecedented prosecution for corruption of Mr Rafael Hui, a former Chief Secretary for Administration and a Non‑Official member of the Executive Council, Messrs Thomas Kwok and Raymond Kwok of the Kwok family, which founded and owns the Sun Hung Kai Properties group of companies, and some other high ranking personnel in the Sun Hung Kai group.  The prosecution and the Kwok brothers would respectively like to be represented in the criminal proceedings by Mr David Perry QC, Ms Clare Montgomery QC and Mr John Kelsey‑Fry QC, all top London criminal silks, and thus these three applications.  Listed separately for hearing is a fourth application for admission in respect of the defence of Chan Kui‑yuen, an Executive Director of Sun Hung Kai Properties Limited and the 4^th defendant in the proceedings.

3.As has been widely reported in the media both locally and internationally, these proceedings involve eight charges, that is, two of misconduct in public office, three of conspiracy to commit misconduct in public office, two of conspiracy to offer advantages to a public servant, and one of furnishing false information.  In very brief terms, Mr Hui was the Managing Director of the Mandatory Provident Fund Schemes Authority (“MPFA”) from 31 May 2000 to 13 August 2003, the Chief Secretary for Administration from 1 July 2005 to 30 June 2007 and a Non‑Official member of the Executive Council from 1 July 2007 to 20 January 2009.  The two Kwok brothers were at the material times Vice-Chairmen and Managing Directors of Sun Hung Kai Properties Limited, a major property developer in Hong Kong.  The prosecution alleges that Mr Hui accepted unsecured loans, rent‑free use of two flats and payment of various sums of money from the two Kwok brothers and Mr Chan, some directly and some indirectly between 2000 and 2009, all of which, the prosecution alleges, Mr Hui failed to disclose or declare.  The prosecution also alleges that Mr Hui misconducted himself in relation to his public office as Managing Director of MPFA and as Chief Secretary.  It is alleged that the money he received on various occasions was payment made by his co-defendants to him to ingratiate the relevant payer with him; it was a general sweetener so that he would misconduct himself in relation to his public office as Chief Secretary and/or a Non‑Official member of the Executive Council by being favourably disposed to the payer and/or his interests or others.  It is alleged that Mr Hui’s co‑defendants conspired with him to commit misconduct in public office.  It is also alleged that Mr Raymond Kwok, Mr Chan and a 5^th defendant conspired with Mr Hui to offer an advantage to a public servant.

4.All three applications for admission are based on the “unusual complexity and difficulty” ground.  Whilst naturally, things are looked at from different perspectives depending on whether the particular applicant will be acting for the prosecution or for the defence, essentially all submissions made in support of the applications say that this is a case involving issues of unusual difficulty and complexity, both in terms of facts and in terms of law.  So far as facts are concerned, the complexity of the case is reflected in the voluminous documentary evidence that is going to be presented to the court and in the estimation of over 40 prosecution witnesses to be called to testify at trial.  The prosecution will indeed seek to commit the defendants to the Court of First Instance for trial.

5.As far as law is concerned, it is anticipated that, amongst other things outlined by counsel, the nature of the charges and the scope of the offence of conspiracy to commit misconduct in public office would be in issue.  In particular, it is anticipated that unusual difficulty and complexity would be encountered in relation to the elements of the offence of misconduct in public office, even though over the past decade, no less than four cases concerning the offence have reached the Court of Final Appeal.  In this regard, counsel in support of the applications pointed out to the court that the offence had been discussed not only in the local courts, but also in different common law jurisdictions in recent years.

6.All counsel for the applicants respectively submitted that given overseas counsel’s eminence and expertise (which is not in dispute), he or she would be in the position to add a significant dimension to the criminal proceedings.

7.Mr Zervos SC, for Mr David Perry QC, also submitted that the size of the pool of available local counsel is limited in the present case, particularly in view of the fact that a number of leading counsel have been conflicted out.

8.Both Mr Selwyn Yu SC and Mr Gerard McCoy SC, appearing respectively for Ms Clare Montgomery QC and Mr John Kelsey‑Fry QC, reminded the court in their written submissions that the case is so complicated that the Government has taken the unprecedented step of requesting for funding from the Legislative Council to create a supernumerary post of Deputy Principal Government Counsel in the Department of Justice exclusively for the purpose of handling the present criminal case, and a supernumerary post of Assistant Director, Commission Against Corruption in the ICAC to handle, inter alia, the present criminal case.  (Such request was approved post‑hearing.)  It was submitted that all this reflects not only the sensitivity but also the complexity and extraordinary magnitude of the factual and legal issues anticipated to be involved.  During submission, it was also pointed out to the court that the case has aroused immense public interest not only locally but also internationally, and so far as the Kwok brothers are concerned, they are not fighting only for their own liberty, but also for their family and the international reputation of their listed company.

9.In opposing the applications, Mr Nicholas Cooney SC (Mr Ken Lee with him) for the Hong Kong Bar Association submitted that the difficulty and complexity of the case had been exaggerated.  The law on misconduct in public office has been well settled by the Court of Final Appeal in Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192, subject to clarifications made by the same court in subsequent cases.  The formulation of the offence by the Court of Final Appeal remains authoritative and is binding on the courts below, and local practitioners are sufficiently familiar with and competent to handle charges involving the offence.  This is evidenced by the fact, Mr Cooney submitted, that all the leading cases concerning the offence from the Court of Final Appeal were conducted by local senior counsel.  It was pointed out that both the prosecution and the defendants had retained local senior and junior counsel to represent them respectively.  In such circumstances, Mr Cooney doubted whether the involvement of overseas counsel would add a significant dimension to the prosecution or significant contribution to the local jurisprudence.

10.As for the voluminous documents involved or the number of prosecution witnesses, Mr Cooney submitted that the size and complexity of the case is no different from other complex fraud or corruption cases tried in the District Court or the Court of First Instance.

11.Mr Cooney further submitted that while the high profile of the case is a relevant consideration which would be considered by the court, this is not by itself a sufficient consideration in favour of admission.

My reasons

12.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.  They have been repeated and summarised on so many occasions that it is quite unnecessary to rehearse them here: see, for instance, this court’s recent judgment in Re Perry QC, HCMP 503/2012, 17 April 2012, paras 15‑18.

13.The “unusual difficulty and complexity” ground is certainly a familiar ground or category for admission of overseas counsel.  However, it has to be emphasised that the ultimate test or consideration for admission of overseas counsel is that of the public interest.  This is of particular importance in the present case given the most unique and exceptional circumstances involved.

14.Indeed, in my view, this is the most important consideration in the present applications.  In the underlying criminal prosecution, a former Chief Secretary for Administration is said to have committed corruption offences whilst in office.  The persons said to have offered the relevant advantages to him are the beneficial owners and controlling minds of one of Hong Kong’s largest property empires.  All defendants are of course presumed innocent unless and until proven otherwise. Nonetheless, the reputation and integrity of the executive branch of the Hong Kong Special Administrative Region Government and its system of governance are at stake.  Its relationships and dealings with the major players in our property market will be put on the spotlight.  Government policies and practices on land use and development will likely be put in issue and subjected to close scrutiny.  The public interest demands that the prosecution of the offences must not only be, but also be seen to be, conducted impartially and professionally and in an impeccably competent, efficient yet perfectly fair manner.  With no exaggeration, public confidence and indeed international business confidence are at stake.  After all, “corruption is an evil which cannot be tolerated”: P v Commissioner of Independent Commission Against Corruption (2007) 10 HKCFAR 293, para 1 (per Li CJ).  Expectations on the prosecution to secure a just and fair result, whether that means conviction or acquittal, are accordingly extremely high, and rightly so.

15.In those circumstances, the public interest is served by the prosecution being conducted by the best available talent.  And in this regard, the eminence and experience of Mr David Perry QC are not in doubt.

16.Article 63 of the Basic Law provides that the Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.  Nobody has ever suggested that the discretion vested in the court in this type of proceedings could ever constitute “interference” with the Department of Justice’s control of criminal prosecutions in Hong Kong.  But the spirit and intent behind article 63 is plain to see.  The Department of Justice should, so far as is permitted under the law (including the Basic Law, which, of course, also provides for many other rights), be given a free hand in controlling criminal prosecutions, including how and by whom criminal prosecutions should be conducted.

17.This certainly does not mean that the court will simply sit there to rubber‑stamp whatever application for admission that the Department of Justice may wish to make in relation to a criminal prosecution.  Far from it.  The court will decide each and every application for admission according to the public interest.  But in determining where, in a particular case, the public interest lies, the court must bear in mind that it is in the public interest that the Department of Justice be given a free hand, so far as is legally permissible, in its control of criminal prosecutions; and if, in its opinion, a particular prosecution requires or justifies the instruction of an overseas counsel, that opinion should be given due weight in the court’s deliberation of where the public interest lies.

18.Likewise, it does not follow from what I have said that it is in the public interest that in every high profile case, overseas counsel should be admitted.  A case may be a high profile one for all sorts of reasons.  A case, for instance, may involve a popular movie star or a celebrity, and therefore attracts media attention for that reason. Or, a prosecution may involve some sensational details that for one reason or another some members of the public are particularly interested to learn about, and is therefore “high profile”.  A case may simply involve the rich and famous, or a case may be highly politically charged, and thus becomes “high profile”.

19.In each case, the court would examine the underlying reasons or facts that gave the case prominence in the first place and ask whether the public interest would be served by granting the admission.  The fact that a case is a high profile one may be highly material or even decisive in one application for admission, but may be wholly irrelevant in another under different facts.  It all depends on the circumstances.

20.Furthermore, what I have said thus far does not mean that every time the prosecution says it wants to be represented by a London silk, the court would simply “defer” to the judgment and wish of the prosecution and grant the application for admission.  The court must still look at the case itself to see whether it is a difficult and complex one, or whether it is a simple and straightforward one, and ask itself whether the public interest would be better served by granting the admission, regard having had to the general consideration I mentioned above, that is, that it is, generally speaking, in the public interest that the Department of Justice should be given as much freedom as possible in its control of criminal prosecutions in Hong Kong.  In other words, the court must adopt a flexible approach.  Whilst categories and guidelines are useful, and certainly established categories of admission are extremely useful and must not be lightly disregarded, one must never lose sight of the fact that after all, one is concerned with a general discretion given to the court in this type of applications, and the overriding consideration is that of the public interest.

21.Returning to the present applications, as I said, this is a plain case where the public interest would be better served by allowing the application for admission of Mr David Perry QC to act for the prosecution.

22.As for the issues involved, as criminal proceedings are on foot, I will not go into the details.  All I would indicate is that, in my view, the case is by no means simple and straightforward.  Rather it is difficult and complex.  The parties’ arguments have focused on whether the legal and factual issues are likely to be “unusually” difficult and complex.  In view of what I have said about the unique situation here, this debate has lost much of its significance.  In any event, in my judgment, the underlying criminal proceedings are of unusual complexity and difficulty, particularly in terms of the facts.

23.As for the admission of Ms Clare Montgomery QC and Mr John Kelsey‑Fry QC, their applications have been approved for basically two reasons.  First, given that I have already admitted Mr David Perry QC to represent the prosecution, consideration of equality and fairness requires my admitting overseas counsel for the defence as well.  See Re Thompson QC, HCMP 2190/2007, 14 November 2007, Ma CJHC, para 9.

24.Secondly, their applications also satisfy the “unusual difficulty and complexity” ground.

25.Given the issues involved and the eminence and skills of the three London silks, I have no doubt that their respective participation in the criminal proceedings will add a significant dimension to those proceedings: Re McGregor, supra, para 11(3).

26.I note that local senior and junior counsel will be involved on all sides.  There is no question of shutting out senior or junior members of the local Bar.  Quite to the contrary, hopefully, there will be fruitful cross‑fertilisation between overseas and local counsel.

27.Having taken into consideration all relevant matters and arguments, including all those urged upon the court by counsel, I have therefore come to the conclusion that all three applications should be allowed to the same, full extent, and I have so ordered.

Mr Kevin P Zervos SC, DPP and Ms Winnie Ho, SADPP (Ag) of the Department of Justice and Ms Maggie Wong instructed by the Department of Justice, for the applicant in HCMP 2381/2012

Mr Selwyn Yu SC and Ms Benson Tsoi, instructed by Boase Cohen & Collins, for the applicant in HCMP 2383/2012

Mr Gerard McCoy SC and Mr Steven Kwan, instructed by Sit, Fung, Kwong & Shum, for the applicant in HCMP 2475/2012

Mr Nicholas Cooney SC and Mr Ken T C Lee, instructed by Anthony Chiang & Partners, for the Hong Kong Bar Association

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