Re Mr Louis Asa Luke Alexis Dylan Mably

HCMP 1043/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1043 OF 2013

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J U D G M E N T

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1.This is an application for a stay of my order of admission pending appeal.

2.The question has been raised as to whether the Court of Appeal has the jurisdiction to entertain the Bar’s appeal from my order of admission.  That is a matter for the Court of Appeal to decide.  Pending that decision (and the determination of the appeal), the question remains as to whether my order of admission should be stayed.

3.This morning there has been some discussion as to the utility of my granting a stay, assuming that I am with the Bar, given that the applicant has already been admitted pursuant to my order – the only outstanding question being whether the Bar should, pursuant to section 30 of the Legal Practitioners Ordinance (Cap 159), issue a practising certificate to the applicant to enable him to complete the formalities to practise here for the purposes of the proceedings in question.

4.Nobody has suggested that the court does not have the power in this type of situation to order a stay of its own order of admission; nor is there any argument advanced as to the true construction of section 30 to the effect that the Bar has no option but to issue a practising certificate, even though the order of admission has since its making been stayed for whatever reasons.   In short, I am faced with an application with practical significance and I will have to deal with it.

5.The principles for granting a stay of execution are not in dispute and there is no point in reciting them, but it has to be borne in mind that in the present proceedings one is concerned with an application for admission and, as has been pointed out elsewhere, this type of application is not an ordinary piece of adversarial litigation.  The court is concerned with the admission of overseas counsel to practise in the courts in Hong Kong as advocate for a litigant and as lawyer to assist the court.  There is a strong element of public interest involved and the court’s own interest is also involved in terms of having the right lawyer to assist the court.

6.I have borne in mind all the factors urged upon the court by the parties concerned – the Secretary for Justice has understandably taken a neutral stance in the matter.  I have taken on board all the factors.  This is essentially a balancing exercise which is not capable of much elaboration.  On balance, I am in favour of granting a stay.

7.In reaching that decision, I bear in mind that by the nature of things, it would be impossible to undo the work and services rendered by the applicant during the interim period if no stay were granted and if the appeal were to be successful.  I also bear in mind that what I am granting will only be a very short stay, because the earliest dates, according to the information supplied to the court by the listing office, for the hearing of the appeal – disregarding counsel’s convenience – would be sometime in October.  But even if one were to take into account the convenience of counsel, the court would still be able to hear the appeal sometime in November.  So in either event, one is talking about a very short stay.

8.Another factor that I bear in mind – although, as I said, this is not the only factor – is the fact that even with the stay, the applicant may still continue to work for this case as he has been doing from London, particularly in this age of the internet.  There will certainly be inconvenience caused to the prosecution in this very important case, but in this sort of application, it is really a question of compromise and the court has to do its best to strike the right balance, after taking into account all relevant interests and considerations – many of them are competing ones.

9.I say nothing about the merits of the appeal, save to say that I proceed on the basis that it is a reasonably arguable one (and I put it no higher).  I do not think that would by itself prevent the court from granting a stay.  The court needs to bear in mind all the relevant considerations, particularly the possibility of the appeal being rendered nugatory if a stay is not granted.

10.So, as I said, having conducted this balancing exercise, which is not capable of much elaboration, I am in favour of granting a stay and I so order.  In other words, I am granting a stay of my order of admission pending the hearing of the appeal.

11.As for the need for a further stay, if any, after the hearing – assuming that, for example, the Court of Appeal does not give its judgment right away, but decides to reserve its judgment – it will be up to the parties to apply for one from the Court of Appeal.  I think that is the best arrangement and would give that court a chance to review the situation.

12.I also impose one further condition.  My order of stay is premised on, amongst other things, the appeal being heard, at the latest, sometime in November.  If that should not materialise for whatever reason, the parties should come back to me to explain and I would decide what should be done.  But in all probabilities the appeal would be heard by the latest in November.

13.That leads me to one final point.  I am granting this stay on the condition that the Bar shall prosecute the appeal expeditiously.  I hope all this will ensure that the stay will not go beyond November, unless there is a further order from the court.

Mr Kevin Zervos SC, DPP, Ms Winnie Ho, SADPP (Ag), Ms Maggie Wong and Ms Betty Fu, PP, of/instructed by the Department of Justice, for the applicant

Mr Michael Blanchflower SC, Mr Frederick HF Chan and Mr Ernest CY Ng, 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