Re Mr David Perry, Qc

HCMP 960/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 960 OF 2015

________________________

________________________

________________________

J U D G M E N T

________________________

1.In this matter, Mr David Perry QC applies for admission under section 27(4) of the Legal Practitioners Ordinance Cap 159 to appear on behalf of a barrister in an appeal against the order of the Barristers Disciplinary Tribunal made on 25 July 2014. The appeal is due to be heard on 3 June 2015.

2.The barrister was represented by Mr Duncan SC and Ms Wong before the Tribunal.  If the applicant were admitted, he would lead Mr Duncan and Ms Wong in the appeal.  In accordance with the usual practice, Ms Wong’s junior counsel’s certificate in support of the application is placed before this court. 

3.The Bar Association took a neutral stance in this application.  The Secretary for Justice did not feel able to consent to the application.  Mr Suen, Senior Government Counsel handling this application, considered that this application should be determined by the court.

4.Viewed against the progress of the underlying appeal, the application is a late one.  The Notice of Appeal was served on 15 August 2014.  The date for hearing the appeal was fixed on 22 September 2014. Solicitor for the applicant wrote to the Bar Council and the Secretary for Justice on 9 March 2015 seeking consent to the application.  The Bar Council indicated its neutral stance on 26 March 2015.  However, the Secretary for Justice only replied on 16 April 2015 indicating that he was not in a position to give consent.  The applicant therefore took out the originating motion on 22 April 2015. 

5.Having considered the particular circumstances of this case and the lack of objection on the ground of delay, this court gave directions to facilitate the paper determination (agreed by the parties) of the application.  But I wish to reiterate what had been said by Ma JA (as the Chief Justice then was) in Re McGregor QC [2003] 3 HKLRD 585 in respect of the importance of making applications for admission of overseas counsel in a timely fashion. 

6.Written submissions were lodged in accordance with my directions.  I am grateful for the assistance that counsel had offered.

7.The relevant principles guiding admission of overseas counsel are set out in Re Flesch QC [1999] 1 HKLRD 506 and Re McGregor QC supra.  Public interest is the paramount consideration and a balance has to be struck on the different aspects of public interest on the facts of each case. 

8.Mr Perry is a familiar advocate in the courts in Hong Kong.  There is no dispute that he is a barrister of high standing with much skill and experience in the area of practice which the appeal involves.  I can perhaps be forgiven for not going through his qualifications and distinguished profile in this judgment. 

9.There is also no question of the local bar being sidelined as Mr Duncan and Ms Wong would also be retained in the appeal.  It is noteworthy that Mr Duncan is, on his own, an experienced leading counsel in disciplinary proceedings and I may borrow from the observations by Ma CJHC (as he then was) in Re Richard Gordon QC HCMP 1031 of 2010, 23 June 2010, the choice of silk to lead the present team in the local bar is limited. 

10.The only contentious facet in this application is whether the case merits representation by an overseas leading counsel in the calibre of Mr Perry.  The following are the broad grounds advanced in support of the application:

(a) Important legal principles are likely to result in a Court of Final Appeal hearing and the determination would make significant contribution to local jurisprudence;

(b) The Applicant is in a position to add a significant dimension to the issues raised in the case; and

(c) It is in the public interest to grant the admission.

11.The disciplinary hearing arose out of complaint in relation to the barrister’s handling of the defence of a client in a criminal trial.  The focus in the disciplinary hearing was the barrister’s failure to advise the client of the significance of the evidence in the statement of an uncalled witness in light of the evidence of another prosecution witness given at the trial and the failure to adduce the evidence of such uncalled witness.  That client was convicted and her conviction was subsequently overturned by the Court of Appeal.  The Tribunal found the barrister guilty of serious failure to comply with her duty to act competently under paragraphs 6 and 7 of the Code of Conduct of the Bar. 

12.There was another defendant in the same criminal case and he was represented by a different team of counsel.  His appeal against conviction was also allowed on similar ground.  And the counsel who represented him was subject to another set of disciplinary proceedings before a differently constituted tribunal.  That tribunal found the other counsel not guilty.  There is a pending application for judicial review against the decision of that tribunal.

13.The important point which has to be argued in the disciplinary appeal is how the autonomy of counsel in the conduct of a defence in a criminal trial impact upon the duty to advise a client on evidence in the course of trial in light of the oral testimony of a witness.  The significance of the decision in the second disciplinary hearing lies in its demonstration that different panels (each consisting of experienced barristers) might take different views on this question in the context of this criminal trial.  In such circumstances, it is intended to argue that even if the barrister made an error of judgment during trial, she could not be said to be guilty of misconduct in terms of serious failure to act competently.

14.I have read the two judgments of the Court of Appeal and the statement of finding by the Tribunal which is subject to appeal.  In my judgment, though the rule as to advocate’s immunity is not directly involved in the appeal, the questions to be argued involved intricate questions of law and their applications to the facts of the present case.  By reason of his experience and knowledge in this area, I am satisfied that Mr Perry can contribute positively to the understanding on these questions and his presence will add a significant dimension to the proper determination of these issues.  Further, I am also satisfied that it is in the public interest and, in particular to the administration of criminal justice in Hong Kong, if the question of counsel autonomy is elucidated in the appeal.  Depending on the outcome of the appeal and the principles discussed in the judgment, there is a possibility that the appeal may go further to the Court of Final Appeal. 

15.In the circumstances, I believe it is in the public interest that Mr Perry should be admitted to represent the barrister in the forthcoming disciplinary appeal and I make an order in terms of the Originating Motion.

16.Lastly, I am told that Mr Perry (together with those he led) would represent the barrister on a pro bono basis. Speaking personally, I am impressed by their generosity and support for the barrister.  It is a good tradition of the Bar to render support and assistance to each other and I believe such tradition must continue in order to have a strong and independent Bar in Hong Kong.  That, by itself, is an important facet to the maintenance of rule of law in Hong Kong.  However, I cannot accept the submission that the team is acting on a pro bono basis is a relevant factor in the present application.  Whether it can be so in a context where the client in question cannot afford the fees of local leaders is not a question I need to consider in the present case.

Written submissions by Mr Peter Duncan, SC and Ms Maggie Wong, instructed by Ho Tse Wai, Philip Li & Partners for the applicant

Written submissions by Mr Suen Sze Yick, SGC(Ag) of Department of Justice for the Secretary for Justice