Re Mr Louis Asa Luke Alexis Dylan Mably

CACV 173/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 173 OF 2013

(ON APPEAL FROM HCMP NO 1043 OF 2013)

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REASONS FOR JUDGMENT

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Hon Lam VP (giving the Reasons for Judgment of the Court):

1.This is an appeal against the decision of the Chief Judge of the High Court on 1 August 2013 pursuant to Section 27 of the Legal Practitioners Ordinance Cap 159 admitting Mr Mably, the Applicant, as a barrister of the High Court of Hong Kong for the purpose of advising, preparing, representing and/or appearing on behalf of the Hong Kong Special Administrative Region in HCCC 98 of 2013.  The Chief Judge made the decision notwithstanding opposition from the Bar Council.  The Bar Council now appeals to this court, seeking to overturn the decision.  The chairman of the Bar, Mr Paul Shieh SC appearing together with Mr Frederick Chan and Mr Ernest Ng appear for the Bar Council. 

2.The application before the Chief Judge was moved by the Director of Public Prosecution [“the DPP”] and in the appeal, the DPP is represented by Mr Michael Thomas SC (appearing together with Ms Winnie Ho, Ms Maggie Wong and Ms Betty Fu) who supported the decision of the Chief Judge.

3.As guardian of the public interest in cases involving admission of overseas counsel, the Secretary for Justice is represented in this appeal (and also at the hearing before the Chief Judge).  Taking up the observations at paragraphs 42 and 43 of the judgment of the Chief Judge on the public perception of impartiality in playing such role, the Secretary for Justice is represented by members from the private Bar, Mr Jat SC and Mr Jin Pao in this appeal.  They submitted that the appeal is incompetent in that this court has no jurisdiction to hear an appeal on decision to admit a barrister.  They also submitted that the Bar Council has no standing to bring this appeal.  In the event that the court finds against those submissions, they submitted that it would take a most exceptional case to warrant appellate intervention against a first instance decision on admission of barrister.

4.We are grateful for the assistance of all counsel appearing before us.  After hearing counsel, we dismissed the appeal with no order as to costs.  Here are the reasons for our judgment.

5.In his judgment, the Chief Judge described at some length the background leading to the application by the DPP and the nature and complexity of HCCC 98 of 2013.  In respect of the latter, the Chief Judge referred to para 14 of his earlier judgment in Re Perry QC [2013] 1 HKLRD 145 and we would respectfully adopt the same:

“14. ... 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.”

6.The application should also be considered against the background that four English silks were admitted to appear in HCCC 98 of 2013, one for the prosecution and three for the defendants.  In addition, each of the three defendants who have engaged English leaders had also a strong team of local counsel (both senior and junior counsel) to represent them.  On the prosecution side, apart from Mr Perry QC, the Department of Justice has retained a local senior counsel as well as a local junior counsel in private practice plus counsel in the department. The local counsel had been retained before the engagement of Mr Mably.

7.In light of the representations from the defence side, and bearing in mind that there are 5 defendants (with 5 different teams of lawyers representing them) and 8 charges, the prosecution has to prepare for the possibility that the defendants would seek to argue on all aspects of the case.  The Chief Judge alluded to this at para 19 of his judgment in Re Perry QC.

8.In granting the admission of Mr Mably, the Chief Judge started by stating that the paramount consideration in an application of this nature is public interest.  His Lordship also observed that in general an application for admission of an overseas junior to do junior work in Hong Kong is rarely justifiable in terms of public interest.   The reasons for that were set out at paras 13 to 20 of the judgment of the Chief Judge.  They were summed up at para 20 as considerations concerning the protection of our junior Bar as an important facet of the public interest.

9.His Lordship then made the important, and undoubtedly correct, observation at para 21 that the protection of the junior Bar is not the only facet of the public interest to be considered. There could be other relevant considerations which must be given their due weight as the circumstances of case warrant.

10.In the present case, the Chief Judge took into account the following matters in addition to the public interest in the protection of the junior Bar:

(a) The DPP’s professional judgment in assembling a team of specialist counsel in the prosecution of this highly complex case (paras 23 to 25);

(b) The qualification and experience of Mr Mably and his status as Junior Treasury Counsel at the Central Criminal Court in England (paras 26 to 28);

(c) The type of works intended to be undertaken by Mr Mably if admitted (paras 29 to 31);

(d) The lack of impact of such admission in terms of deprivation of the local junior Bar of its fair share of junior works (paras 32 to 36); and

(e) The wholly exceptional nature of this criminal prosecution and this application (paras 37 to 41).

11.It is acknowledged by all counsel before us that the decision of the Chief Judge was an exercise of discretion. That discretion is conferred on the court by Section 27 of the Legal Practitioners Ordinance Cap 159 which reads:

“27. Power of Court to admit barristers

(1) Subject to subsection (2), the Court may, in such manner as may be prescribed by the Chief Justice, admit as a barrister of the High Court in Hong Kong, a person whom it considers a fit and proper person to be a barrister, provided such person has-

(a) complied with the requirements;

(b) passed the examinations; and

(c) paid the fees, prescribed by the Bar Council.

(2) The Court shall not admit a person under subsection (1) unless it is satisfied that that person-

(a) is not in practice as a solicitor either on his own account or as a partner or salaried employee in a firm of solicitors practising in Hong Kong; and

(b) satisfies one of the following requirements-

(i) has resided in Hong Kong for at least 3 consecutive months immediately before the date of his application for admission;

(ii) has been ordinarily resident in Hong Kong for at least 7 years;

(iii) has been physically present in Hong Kong for at least 180 days of each of at least 7 years within the 10 years immediately preceding the date of his application for admission.

(3) If at the time of his admission under subsection (1) the person is a solicitor, the Registrar shall remove the person's name from the roll of solicitors.

(4) Notwithstanding that a person does not satisfy all the requirements specified in subsections (1) and (2)(b), where the Court considers that he is a fit and proper person to be a barrister and is satisfied that he has-

(a) the qualification acquired outside Hong Kong to engage in work that would, if undertaken in Hong Kong, be similar to that undertaken by a barrister in the course of ordinary practice as a barrister in the High Court or Court of Final Appeal; and

(b) substantial experience in advocacy in a court,
the Court may admit such person as a barrister under this section for the purpose of any particular case or cases and may impose such restrictions and conditions on him as it may see fit.

(5) The Court may, when admitting a person as a barrister, sit in chambers. ”

12.In the present case, admission was sought and granted under Section 27(4).  There is no dispute that the statutory criteria have been met, viz. that Mr Mably is a fit and proper person to be a barrister with the requisite professional qualification and experience in advocacy.  The only question is whether the discretion had been properly exercised by the Chief Judge.

Jurisdiction of this court to hear the appeal

13.Mr Jat submitted that admission proceedings, being sui generis, in which it cannot be said that any right of any person is being involved, do not fall within the scope of Section 13(2) of the High Court Ordinance Cap 4. That section provides for the civil jurisdiction of the Court of Appeal.  It reads:

“The civil jurisdiction of the Court of Appeal shall consist of-

	(a) appeals from any judgment or order of the Court of First Instance in any civil cause or matter; (Amended 25 of 1998 s. 2)
	(b) appeals under section 63 of the District Court Ordinance (Cap 336); and
	(c) any other jurisdiction conferred on it by any law.”

14.We accept that admission proceedings are concerned with the protection of the public interest and do not involve a resolution of contest between the private rights of disputing parties: see Wentworth v NSW Bar Association (1992) 176 CLR 239, p.250-1.  But it does not necessarily follow that the matter cannot be regarded as a “civil cause or matter”.

15.Mr Jat also referred to authorities examining the origin of the power to admit and discipline barristers: Attorney General of Gambia v N’Jie [1961] AC 617; Cook v Administration of Norfolk Island (1992) 111 ALR 453; Chinien v Attorney-General & Bar Association of Mauritius [2000] 4 LRC 443.  From those cases, it appears that historically judges have inherent common law power to decide who should be admitted as barrister.  In the exercise of that power, there are authorities suggesting that judges do not sit as a court of law but as a disciplinary authority, see for example the judgment of Lord Denning in Attorney General of Gambia v N’Jie [1961] AC 617 at p.632.  However, nowadays, this power is governed by the Legal Practitioners Ordinance and Section 27 vests the power in “the Court” as opposed to a judge.   The Court was defined under section 2 to mean the Court of First Instance.

16.In Re Reece [1963] HKLR 326 Blair-Kerr J said at p.328-9 that the statutory provision does no more than putting into statutory form what had always been the position at common law, viz judges and judges only have the right to determine who shall be admitted to practise as barristers.  His Lordship also said at p.331 that when considering the applications for admission, judges act judicially.  We do not read that judgment as authority for the proposition that a decision on admission is not appealable as a civil cause or matter.

17.There are indeed Commonwealth authorities suggesting that under the respective regime of the countries concerned, there could not be any appeal to their courts of appeal in respect of decision on admission or disciplinary proceedings against barrister.  But in those instances, the aggrieved person can petition to the Privy Council for special leave, see In Macauley’s case cited by Lord Denning in Attorney General of Gambia v N’Jie [1961] AC 617 at p.632; Chinien v Attorney-General & Bar Association of Mauritius [2000] 4 LRC 443.

18.In reading these authorities, it has to be borne in mind that for admission to the Hong Kong Bar, the historical right of petition to the Privy Council for special leave to appeal has been abolished since 1 July 1997 (assuming it was exercisable up to that date).  This distinguishes the position in Hong Kong from the Commonwealth countries. In other words, if there is no avenue of appeal to the Court of Appeal (and consequently no avenue of appeal to the Court of Final Appeal, see Solicitor v Law Society of Hong Kong (2003) 6 HKCFAR 570 para 29), the decision of the Court of First Instance would be final.  Mr Jat did not shy away from this conclusion.  Counsel further submitted that an unsuccessful applicant would not be able to challenge the decision by way of judicial review as the decision is a judicial one by a superior court of records.

19.It is noteworthy that in Chinien, after holding that the Supreme Court of Mauritius was correct in its conclusion that there was no jurisdiction to grant leave as the matter at hand (an application for reinstatement to the roll of barristers) was not a civil proceedings, Lord Hutton expressed the tentative view that adopting a purposive construction the matter can come within the scope of “civil matter”.

20.Mr Shieh also brought to our attention some other authorities suggesting disciplinary decision against lawyers can be regarded as a civil matter for the purpose of considering the jurisdiction of the appellate court, see Hilborne v Law Society of Singapore [1978] 1 WLR 841 p.848-849.

21.We also note that Wentworth v New South Wales Bar Association (1992) 176 CLR 239 was a decision of the High Court of Australia, on appeal from the Court of Appeal of New South Wales.

22.Given the difference in terms of availability of redress by way of petition to the Privy Council and the clear wording in our section 27 vesting the power of admission in the court as opposed to a judge, we do not think it is necessary for us to discuss the Commonwealth authorities at length. Much depends on the relevant statutory or constitutional provisions governing the right of appeal and the context as set out in the statutory regime providing for admission of barrister.            

23.Turning back to section 13(2) of the High Court Ordinance, it is well established that this court does not have jurisdiction to hear an appeal unless a cause or matter is within that sub-section: see Tan Soon-gin, George v Judge Cameron [1992] 2 HKLR 254.  At p.265, Lord Mustill said:

“The language of the Ordinance directs attention, not to the proceedings which led to the order from which the appeal is brought. If the cause or matter is properly characterized as criminal, it cannot lose that character simply because at one stage it is carried forward by techniques which closely resemble those employed in civil matters, or which lead to relief often granted in civil matters, or which are available in civil or criminal matters alike; any more than, having gained this new character by the employment of such techniques, it would revert to its former status when the deployment of the techniques come to an end.”

24.In So Wing Keung v Sing Tao Ltd [2005] 2 HKLRD 11, after reviewing the authorities, Ma CJHC (as he then was) said at para 31(11):

“In ascertaining the nature of the underlying cause or matter in which the judgment or order under appeal is brought, one must, I believe, adopt a flexible approach with some degree of commonsense. The analysis should involve looking at the object and purpose of the relevant cause or matter. …”

25.Those cases were concerned with whether a cause or matter was civil or criminal. This question does not arise in this appeal as no party suggested that the decision of the Chief Judge should be regarded as a criminal matter.  The question is whether it is civil or “neither civil nor criminal”.

26.A cause or matter can still be regarded as having a civil character even though it does not involve the adjudication of private rights between adversarial parties. The decision of the Court of Final Appeal in Mok Charles v Tam Wai Ho (2010) 13 HKCFAR 762 is an example of that.  Other examples can be found in cases where the court exercises parens patriae jurisdiction over the affairs of mentally incapacitated persons or grants permission for medical operation in respect of those without capacity to give consent.

27.Further, we do not agree with Mr Jat’s submission that as an unsuccessful applicant could not be said to have any right to be admitted, it is not a civil matter. It is not necessary to consider whether there is any public law right to be properly considered for admission in this judgment.  The statute makes it clear that it is a matter of discretion and it is accepted by Mr Jat that the discretion must be exercised judicially. The court cannot exercise its discretion arbitrarily and one cannot regard a decision on admission as the conferment of a privilege by the court at its whim.  As discussed below, the court must exercise its power based on its assessment of the public interest.     

28.In our judgment, the special nature of the proceedings and the historical origin of the power are not good reasons for holding that the decision of the Chief Judge was not civil in character.  Is there any other feature which militates against the conclusion that admission application is a civil matter? 

29.With respect, we cannot find any.  A decision in admission proceedings will determine whether a particular person can practise as a barrister in Hong Kong. On the characterization of the matter, we do not see any material distinction between admission of local counsel and admission of overseas counsel.  For statutory appeals to the Court of Appeal in respect of disciplinary proceedings against professional people (which may likewise be affecting the right to practice in a profession), they are always regarded as civil matters.  We have no difficulty in holding that a decision on the admission of a barrister is a civil matter.

30.We conclude that this court does have jurisdiction to hear this appeal.

Locus standi of the Bar Council

31.Mr Jat submitted that the Bar Council was not a party on record in the proceedings below.  Thus, it has no standing to maintain and prosecute this appeal.

32.On the other hand, Mr Shieh relied on section 2 of the High Court Ordinance Cap 4 and contended that the Bar Council was a party to the proceedings below.  Section 2 defines “party” to include every person served with notice of or attending any proceedings, although not named on the record.  Mr Shieh also alluded to the fact that the Bar Council is bound by the decision.

33.In our judgment, this point can be disposed of quickly. Given the procedural requirements of admission proceedings, it is too restrictive to confine the standing to appeal to a party formally named as such on the originating motion.  Section 37 of the Legal Practitioners Ordinance grants a general right of audience to the Bar Council in admission proceedings and requires the papers be served on it.  It appeared at the proceedings before the Chief Judge by counsel and made submissions to oppose the motion. It is bound by the decision.  For all intents and purposes, we are of the view that the Bar Council is a party to the proceedings below.  We agree with Mr Shieh that Section 2 is relevant in guiding the court in determining whether the Bar Council was a party to the proceedings below.  We do not find Mr Jat’s example of a witness attending the trial on subpoena of much assistance.  Plainly, section 2 refers to attendance of a different nature: attending the proceedings for the purpose of making submissions or advocating one’s position.

34.In re Securities Insurance Co [1894] 2 Ch 410. At p.413, the general practice was stated by Lindley LJ as follows:

“… a person who is party can appeal … without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave. It does not require much to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it; but without leave he is not entitled to appeal.”

35.Thus, there are cases in which a person affected by a decision is granted permission to lodge an appeal even though he is not formally joined as a party below.  Bearing in mind the inherent nature of admission proceedings, we cannot accept the submission of Mr Jat that a person must have a “legal interest” in the proceedings before permission would be granted to him to appeal.  Though we do not find it necessary to do so in view of our conclusion on the Bar Council as a party to the proceedings below, we would also say that if necessary we are prepared to grant retrospective leave to the Bar Council to appeal.

36.We are of the clear and firm view that the Bar Council must have the necessary standing to appeal in these circumstances.

37.In respect of the submissions as to the proper role of the Bar Council in admission proceedings, they are not germane to the question of standing.  If the Bar Council did not exercise their role in furtherance of the public interest, there might be costs implications.   But we do not think that should be a ground for denying it the standing to lodge an appeal. 

The exercise of the discretion

38.This being an appeal against the exercise of discretion, Mr Thomas quite rightly reminded us of the role the appellate court in an appeal of this nature.  Counsel referred us to the familiar statement in the judgment of Lord Diplock in Hadmor Productions Ltd v Hamilton [1983] AC 191 at p.220B to F.

39.Mr Thomas also submitted, in our view correctly, that the statutory discretion is an unfettered one though earlier cases can provide guidelines.  This is acknowledged by Ma JA (as he then was) in Re McGregor QC [2003] 3 HKLRD 585 at para 11(4).   But we would also emphasize that the guidelines are there to assist the court in exercising its discretion in a judicial manner and applicants for admission will be ill-advised if they do not pay heed to them.  We do not want anything said in this judgment to be interpreted in any way as watering down the value of those guidelines. 

40.As the Chief Judge said in his judgment, the general principles governing the admission of overseas counsel are well established and sufficiently set out in two earlier cases: Re Flesh QC [1999] 1 HKLRD 506 and Re McGregor QC [2003] 3 HKLRD 585.  We take this opportunity to endorse emphatically what had been said in these two cases. Mr Shieh also referred to some other cases.  We have read all of them. Most of the cases are on the admission of overseas silks.

41.As shown in the cases, our courts rarely admitted overseas junior counsel though indisputably there is no prohibition against that in section 27.  In Re Charles Gray [1984] HKLR 367, the court admitted an English junior counsel specializing in defamation law to conduct a libel case which the solicitor deposed as not warranting the briefing of a silk. That was against the following background (as found by the learned judge at p.369):  “Actions for defamation are by no means unknown in Hong Kong and a few have been contested to judgment. However, it is no slight to the members of the Hong Kong Bar to say that none of them can as yet have had more than a limited experience of contested actions.” See also p.368 as to the judge’s observation as to the state of Hong Kong Bar on specialization in those days. The court granted the admission on condition that the English counsel shall appear with a Hong Kong barrister.  That case was decided in 1981 and we have no doubt that circumstances have changed.  Under the prevailing circumstances, today’s assessment of the relevant facets of the public interest will likewise be different.  As Mr Thomas reminded us, happily our Bar has grown much in terms of size as well as expertise with more diverse experience and specialization.  The Chief Judge alluded to these developments at paras 14 and 18 of his judgment in the instant case.

42.In 1986, Roberts CJ had to consider another application for admission of overseas junior in Re Bratza [1986] HKLR 763.  The Chief Judge referred to this case in the judgment below at paras 15 to 17.  As can be seen from the judgment in Re Bratza at p.764H to 765C, the size of the local Bar in those days was still relatively small: there were 12 Queen’s Counsel and 280 juniors. In that case, the underlying litigation was a building and engineering contract dispute.  The party concerned had already engaged a local junior.  They wished to apply for the admission of a London silk to conduct the trial together with two juniors. The applicant was an English junior who specialized in that field. At p.766F to H, Roberts CJ said:

“I stressed that the paramount factor is the public interest, which requires a strong and independent local Bar.

This means that, so far as the junior Bar at least is concerned, local counsel should be briefed in preference to London counsel even if local skill and experience available, in a period of rapid expansion, is not of the standard which would be available in England with a junior Bar of 5,000.

The admission of overseas junior counsel must remain rare, and applications for such an admission may therefore be expected to be successful only where it is shown that no local juniors of suitable ability and experience are available, after conscientious efforts have been made to retain them and have failed.”

43.When Chan CJHC (as he then was) revisited the guidelines for overseas admission in 1998 in Re Flesch QC [1999] 1 HKLRD 506, he stated that the court should adopt a flexible and sensible approach. It is pertinent to note what was said in respect of the public interest to have a strong local Bar at p.514E to G,

“It has always been recognized that it is in the public interest to have a strong and independent Bar.  That does not mean protectionism.  The Bar does not need protection.  It has grown and matured through the years. However, it also needs international recognition and reputation.  Local talents need exposure and cross-fertilisation with lawyers of sufficiently high quality and standing from other common law jurisdictions.  For junior counsel, working with senior counsel from other jurisdictions will give them the necessary exposure and provide them with the opportunity to show and develop their potential.  It will also help them acquire the requisite skill and experience in the trade.  I am too aware of the risk that if overseas counsel are admitted too readily, this would inhibit the growth and development of the Bar, particularly the junior Bar. But I firmly believe that a flexible and sensible approach to the admission of overseas counsel of sufficiently high quality and standing in suitable cases will benefit the Bar and is in the public interest, provided there are suitable safeguards.”

44.His Lordship also referred to the need to balance the maintenance of a strong local Bar as one aspect of the public interest against other aspects of it.  It was recognized that public interest could have many facets and it may change with the change of circumstances. Thus, at para (2) of the guidelines, His Lordship said:

“There are many and sometimes conflicting aspects of the public interest. From time to time, other aspects of the public interest may be identified as a result of change of circumstances.  It may then become necessary to address our minds to such aspects as well.”

And ultimately, it is a matter of striking the balance, see para (4) of the guidelines:

“The court should adopt a flexible and sensible approach in dealing with applications for admission of overseas counsel to the Hong Kong Bar for the purpose of particular cases, balancing different aspects of the public interest.”

45.At para (8) of the guidelines, His Lordship referred to the position of overseas junior counsel:

“It would be extremely rare for the court even to consider an application for admission by an overseas counsel who is not a Queen’s Counsel or where no local counsel or only a nominal local counsel is briefed together with the overseas counsel. The court would usually require that there is at least one local counsel actively involved in the case from an early stage and the earlier and greater the involvement, the better are the chances of the application succeeding.  The court would also be more sympathetic if more than one local counsel (including possibly senior counsel) are instructed in the case.”

46.At the court below, the Chief Judge reaffirmed the guidance in Re Bratza and Re Flesch QC, see paras 18 and 20 of the judgment.  He went on to say there are other facets of public interest to be considered.  We do not see any error of law in that regard, nor do we understand Mr Shieh to be suggesting otherwise.  

47.If one reads the judgment of the Chief Judge carefully, ultimately it was the singularly exceptional nature of HCCC 98 of 2003 that led him to conclude that balancing all facets of public interest involved (in particular the importance of the maintenance of a strong local Bar) Mr Mably should be admitted.  At para 37, he said:

“The truth, as I see it, is that the criminal prosecution in question is a wholly exceptional one, which justifies the taking of exceptional measures.  These measures do not, in reality, threaten the long term interest of our junior Bar.”

48.He emphasized this again at para 40:

“Having considered the entire circumstances of the present case, I have come to the conclusion that most exceptionally, I should exercise my discretion in favour of admitting the applicant.  For reasons already explained, I do not believe, and certainly do not intend, that the admission of the applicant would set any unwanted precedent, whether in the current criminal proceedings, or in any future cases.  I cannot over-emphasise the importance of the development and maintenance of a strong and independent local junior Bar, the interest of which is and will always be jealously guarded by the court. There can be no doubt about it.”

49.See also paras 29 to 32, paras 34 and 41 of the judgment below.

50.It is not disputed that HCCC 98 of 2013 will be a highly complex and unusually difficult case.  Given the nature of the admission proceedings and the need for succinctness and brevity in view of the pending criminal proceedings, one cannot really expect the court to analyse at length the reasons for coming to such a conclusion.  Enough has been said about the nature and character of HCCC 98 of 2013 in the judgment below and the judgment in Re Perry QC  [2013] 1 HKLRD 145.

51.Thus, it is an exercise of discretion by the Chief Judge in the very exceptional circumstances of the matter and it has not been suggested that His Lordship erred in law in his general approach, which as we have seen, was wholly in line with the guidance in the leading authorities of Re Flesh QC [1999] 1 HKLRD 506 and Re McGregor QC [2003] 3 HKLRD 585.  Against such background, the scope for this court’s interference with such exercise of discretion is extremely narrow.

52.The Bar Council challenged the decision of the Chief Judge by arguing that certain paragraphs of his judgment as being erroneous, either on the facts or on the significance he attached to them in the balancing exercise. With respect, upon a careful and fair reading of the judgment (and the judgment should be read as a whole rather than having a paragraph here and there being read out of context), we do not think those grounds were made out. None of the arguments raised, whether on its own or collectively, persuaded us that there is any justification for disturbing the Chief Judge’s decision.

53.On the alleged mistaken reliance on Article 63 of the Basic Laws, we do not think one should read too much into the Chief Judge’s reference to this Article. It is clear from paras 23 and 24 of the judgment below (which should be read together with paras 16 to 20 of the judgment in Re Perry QC [2013] 1 HKLRD 145), the Chief Judge meant no more than this: due weight must be given to the view of the DPP in his selection of counsel and there is a public interest in the fair and proper prosecution of this wholly exceptional case. Lest it be misunderstood, we would reiterate what the Chief Judge said at paras 17 to 20 of  Re Perry QC:

“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.”

54.We would also add that these observations were made in the context of the admission of a silk. It does not follow that this facet of the public interest would carry the same weight in respect of an application for admission of an overseas junior counsel.  We do not think the Chief Judge had overlooked this distinction.

55.Mr Shieh properly accepted that there could not be any complaint against the court giving due weight to the view of the DPP. This is well recognized in the authorities: see Re Kosmin QC [1999] 1 HKLRD 641.

56.On the alleged lack of evidential basis for the findings on the experience of Mr Mably, the works he would undertake if admission is granted and the difficulty of having a local representation in place of Mr Mably which is commensurate with the complexity of the case, we do not think the criticisms against the Chief Judge are valid. 

57.Given what has been set out in the junior certificate, we agreed with Mr Thomas that there is ample evidence to support the judge’s finding on the requisite experience of Mr Mably.  In our view, there cannot be any valid criticism to the judge’s reference to Mr Mably as a Junior Treasury Counsel to the Crown at the Central Criminal Court.  This was just one piece of relevant information about Mr Mably before the judge.  He was entitled to take that into account.  He did not commit the error of placing Mr Mably on par with a silk nor did he rule out the possibility of equivalent talent from the local Bar simply on that status alone.

58.As regards the nature of works to be undertaken by Mr Mably, the Chief Judge rightly acknowledged that it would be difficult to be precise at this stage in view of the inherent nature of an exceptionally complex and long criminal trial like HCCC 98 of 2013 with high powered representations for several defendants.  It is not erroneous for the Chief Judge to say that there will inevitably be division of work amongst the team and that Mr Mably would play a significant role in the team. Given what had been placed before the judge on the experience of Mr Mably, we do not see anything wrong in his conclusion that Mr Mably would play the role of a second or a third silk in the prosecution team.

59.On the inadequacy of investigation as to suitable local counsel to play a similar role, it is perhaps helpful to remind ourselves as to the purpose of such investigation.  In Re Crystal QC HCMP 598 of 2005, Ma CJHC (as he then was) said at paras 11 and 12:

“11. One aspect that Ms Newall (for the Hong Kong Bar Association) highlighted was that it had not been shown that there was no counsel in Hong Kong who was qualified or competent to deal with the application for the appointment of provisional liquidators.  Indeed, this was not shown but it need not be.  Where the court is required to determine principles that might impact substantially on the development of Hong Kong law or the case for which specialist counsel seeks to be admitted is one of unusual difficulty or complexity, these factors by themselves can sometimes justify the admission of specialist overseas counsel notwithstanding the availability of counsel in Hong Kong who are able competently to do the case.  This is of course provided that the overseas counsel is of sufficient high quality and standing so as to be able to add a significant dimension to the case.  In Re McGregor QC at 591 paragraph 11(3), the court said : -

“It is clear from the passage just set out that it is not necessary to demonstrate that no senior counsel exists in Hong Kong who would be able to do the case. That must be an extremely rare situation anyway. However, where the degree of difficulty or complexity is such that the court is of the view that specialist counsel would be highly desirable, the pool of suitable local counsel will necessarily be limited. In the past, complex cases involving tax or patent law have come under this category. The question is not so much whether counsel in Hong Kong is able to do the case competently or even skilfully, but whether the specialist overseas counsel can add a significant dimension to a very complex or difficult case. Having said this, I think it must also be recognised that in other cases of unusual difficulty or complexity, the pool may be larger and the court may be less receptive to the admission of overseas counsel. These involve matters of degree from case to case.”

Although this passage refers to a case of unusual difficulty or complexity, it equally applies to a case involving important principles the determination of which might impact substantially on the development of Hong Kong law.

12. However, I wish to stress that what has been stated just now does not absolve solicitors from the duty to make inquiries of the availability of Hong Kong counsel.  There are at least two reasons for this.  First, this will show the size of the “pool” of suitable local counsel.  Sometimes, it may show that the “pool” does not exist.  Secondly, even if suitable counsel does exist in Hong Kong, timeous inquiries will demonstrate the availability (or non-availability) of such counsel.  All this will enable the court to arrive at an informed decision taking into account all relevant facts as to whether or not to admit overseas counsel for any particular case.  At times, this can be a difficult balancing exercise involving questions of degree.  Accordingly, it is important that the court is provided with all the necessary facts.”

60.For present purposes, two points can be taken from that judgment:

(a)   In a case of unusual difficulty or complexity, this factor can sometimes by themselves justify the admission of specialist overseas counsel notwithstanding the availability of counsel in Hong Kong who are able to do the case competently. Whether the factor carries such weight must depend on the facts and circumstances of the case and the qualification and experience of the overseas counsel in question; and

(b) The purpose for due inquiry to be made on availability of local counsel is to enable the court to arrive at an informed decision.

61.We accept the force of Mr Shieh’s submission that the information contained in the junior counsel certificate is not equivalent to a due inquiry. The information as to local counsel being conflicted out cannot be treated as a substitute for the exercise of due inquiry.  However, the Chief Judge was clearly aware of the deficiency in this respect, see paras 38 to 39 of his judgment. On the exceptional circumstances of the present case, we do not regard the Chief Judge to have erred in proceeding in the way as he did.

62.Notwithstanding the outcome in the present case, it would not be wise for the Director (or any other litigant, for that matter) to disregard the duty to make due inquiries in any overseas admission application in the future.

63.Mr Shieh further submitted that the DPP’s case was based on the fact that Mr Mably had been retained and had a good established working relationship with Mr Perry QC, both in this case and other cases.  He submitted that this is an impermissible basis for the admission of an overseas counsel.  We agree that the court should not admit an overseas counsel, whether a silk or a junior, simply because a litigant had already engaged him in his team of legal representation and rapport had been established between different members in the team.  That being so, it is not necessary for us to discuss the authorities cited by Mr Shieh on this issue: Re McDonnell QC [2013] 2 HKLRD 773 para 10; Re Badenoch QC [1999] HKLRD 209 at p.214A-E; Re Cooper QC HCMP 184 of 2011, 15 March 2011 para 21.

64.But we do not think the Chief Judge made such a fundamental mistake. Irrespective of how the submissions had been advanced and the observations on the involvement of Mr Mably in this case in the past at paras 29 and 31 as a matter of factual background, the Chief Judge clearly had the correct approach in mind when he said at para 36 of the judgment below:

“… for the avoidance of doubt, I can say even now that the mere fact that an overseas junior has established a close working relationship with overseas leading counsel who has been admitted will definitely not provide such junior counsel with a foot in the door to Hong Kong admission.”

65.Mr Shieh also expressed the concern of the Bar that this admission would provide a stepping stone for similar applications by the defendants in HCCC 98 of 2013.  It should be clear from the judgment below and our judgment that this case cannot be treated as a precedent for that purpose.  In particular, what the Chief Judge said at paras 35 and 36 are pertinent.

66.For these reasons, we dismissed the appeal by the Bar Council.  

67.We were told that this is the last case in which Mr Thomas would appear in court as counsel.  In the circumstances, we consider it  appropriate to join Mr Shieh and Mr Jat in paying tribute to Mr Thomas’ contribution to the healthy growth and development of the Hong Kong Bar when he served as the Attorney General of Hong Kong and thereafter as an eminent silk in the local Bar.    

Mr Paul Shieh, SC, Mr Frederick H F Chan and Mr Ernest C Y Ng, instructed by Anthony Chiang & Partners, for the Appellant (Hong Kong Bar Council)

Mr Michael Thomas, SC, Ms Winnie Ho, SADPP (Ag), Ms Maggie Wong and Ms Betty Fu, SPP (Ag), instructed by Department of Justice, for the 1^st Respondent (Louis Asa Luke Alexis Dylan MABLY)

Mr Jat Sew-Tong, SC, and Mr Jin Pao, instructed by Department of Justice, for the 2^nd Respondent (Secretary for Justice)