CITY WEST INVESTMENT LTD. and Others v. THE HONG KONG BAR ASSOCIATION

IN THE COURT OF APPEAL

1994, No. 29
(Civil)

- Headnote -

Section 44(a) Legal Practitioners Ordinance - English Queen's Counsel permitted by Buildings Appeal Tribunal to appear before them to represent appellants and conduct their case - whether counsel is "practising" or "acting" as a "barrister" within the meaning of that term in s44(a).

Observations on the jurisdiction of the Court under Ord 15 r16 RSC to make binding declarations of right. Appeal of Hong Kong Bar Association against the High Court's declaratory judgment allowed.

IN THE COURT OF APPEAL

1994, No. 29
(Civil)

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J U D G M E N T

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Litton, J.A.:

1. The appellant in this appeal is the Hong Kong Bar Association. The respondents are developers of a site at Nos. 1-8 Tien Po Street, Hong Kong. The developers were the plaintiffs in the court below. On 15 February 1994 they took out an originating summons, naming the Hong Kong Bar Association as the Defendant, for relief in these terms:

"A declaration that with the leave of the Buildings Appeal Tribunal the plaintiffs are entitled to be represented by Mr. Robert Neville Thomas, Q.C. at the hearing before the Buildings Appeal Tribunal in case Nos. 55/93 and 70/93 without any need for the admission of Mr. Robert Neville Thomas, Q.C. as a barrister in Hong Kong".

2. Two days later, on 17 February 1994, Barnett J. made an order in terms of the plaintiffs' originating summons and it is against that order that the Hong Kong Bar Association now appeals.

3. The jurisdiction for the grant of declaratory relief lies in Order 15 r16 of the Rules of the Supreme Court. Ignoring for the moment the form of the proceedings before Barnett J. and assuming that they be well constituted, I ask myself this question: What lies at the heart of the issue before the judge? The answer must be: Section 44(a) of the Legal Practitioners Ordinance which provides:

"44. Penalty for unlawfully practising as a barrister or notary public

Any person who -

(a) not being a qualified barrister, either directly or indirectly, practices or acts as a barrister;

shall be guilty of an offence and shall be liable on summary conviction to a fine of $10,000."

Background facts

4. Mr. Neville Thomas, Q.C. is a highly distinguished barrister and the head of his Chambers at 3 Gray's Inn Place in London. He is well-known in the courts of Hong Kong, having been admitted as a barrister under the provisions of s27(2)(b) of the Legal Practitioners Ordinance to act as a barrister in Hong

Kong in a large number of cases and has acted for major property developers in litigation in Hong Kong concerning planning and land development matters.

5. As far as the appeals before the Buildings Appeal Tribunal are concerned, the background facts are summarised in letters from the solicitors Messrs Johnson Stokes & Masters dated 7 and 8 February 1994 and are as follows:

(i) The appeals concerned the developers' right to build over a private street and a private scavenging lane and the inclusion of the same for site area calculations under the various Building Regulations. The dispute raised highly technical issues and involved some 46% of the gross floor area of the proposed development.

(ii) The first appeal to the Buildings Appeal Tribunal Case No. 55/93 was lodged in early July 1993 and Mr. Thomas (then in London) had advised on the "overall strategy": this was "prepared or designed in conjunction with Mr. Thomas".

(iii) At a preliminary hearing in late September 1993 before the Tribunal at which the solicitors attended, a number of concessions were purportedly made by the Building Authority and revised building plans were accordingly submitted, with a view to compromising the matters in dispute. The developers' case was that these concessions were subsequently retracted or qualified and this led to the second appeal case No. 70/93 the Notice of Appeal for which was again "prepared in conjunction" with Mr. Thomas.

(iv) The two appeals were fixed to be heard together before the same Tribunal on 24 February 1994, with a site visit scheduled for 23 February. The developers wished to be represented by Mr. Thomas Q.C. at the hearing of the appeals, and upon the instructions of the solicitors a junior counsel Mr. Anthony Ismail was instructed to assist Mr. Thomas and to act as his junior.

(v) Mr. Thomas has not being admitted generally to practise in Hong Kong under the provisions of s27(1) of the Legal Practitioners Ordinance.

(vi) The solicitors sought to persuade the Hong Kong Bar Association that at the hearing of the appeals before the Tribunal Mr. Thomas could, with the permission of the Tribunal, represent the developers in the capacity of a "paid advocate" and not in the capacity of a barrister; accordingly his appearance as such would not infringe the provisions of s44(a) of the Legal Practitioners Ordinance. Alternatively, the solicitors sought to persuade the Hong Kong Bar Association to consent to an application for Mr. Thomas' admission as a barrister under s27(2)(b) for the purposes of the appeals. Upon the Bar Association's refusal to yield to either point, the originating summons was then taken out.

Buildings Appeal Tribunal

6. The Appeal Tribunal is constituted under the provisions of s43(1) of the Buildings Ordinance to determine appeals by persons prejudiced by decisions of the Building Authority in the exercise of his statutory discretion. The Tribunal generally consists of three members appointed by the Governor, of whom one is nominated by the Building Authority, one is an authorised person and one appointed to represent property owners. For the purposes of the determination of an appeal the Tribunal has all the powers vested in the High Court in respect of (a) enforcing the attendance of witnesses and examining them upon oath or otherwise; (b) compelling the production of documents; (c) ordering an inspection of premises and (d) entering upon and viewing premises.

7. The statutory rules governing proceedings before the Tribunal, where relevant, provide as follows:

"(3)(I) The Tribunal shall permit the appellant and such other persons as it considers to be prejudiced by the decision, which is the subject of the appeal, to appear and to be heard at the inquiry, to be assisted in the presentation of their cases by other persons and to take such part in the proceedings as the Tribunal may think proper:

Provided that no person shall be entitled as of right in the capacity of counsel, solicitor or other paid advocate to conduct the case for the appellant or such other persons by addressing the Tribunal or examining or cross- examining witnesses."

8. The exercise of discretion by the Building Authority covers a wide area under the Ordinance. Apart from the well-known discretion under s16(1) to refuse the giving of approval for plans for building works - a discretion which gives rise to the majority of disputes brought before the Appeal Tribunal - there are other exercises of discretion which might require the application of a wide range of expertise: for instance, the discretion vested in s25 concerning the change of use; the discretion under s27A to declare land and earth-retaining structures to be dangerous, etc. It is therefore not surprising that apart from legally-trained persons such as counsel and solicitors, the Tribunal Rules envisage that an appellant might be represented at the hearing of an appeal by "other paid advocates" who could, for example, be professional surveyors, engineers or architects.

9. In the court below, no evidence was adduced as to whether there are in Hong Kong multi-disciplinary practices similar to that referred to in Piper Double Glazing Ltd. v. D.C. Contracts Ltd. (1994)1 AER 177 where "claims consultants" in that case Messrs James R. Knowles Ltd., held themselves out as offering a complete range of professional services to the construction industry, including claims appraisal and resolution of disputes up to and including their resolution by arbitration. The company employed a multi- disciplinary staff qualified in various specialities, including surveyors, non- practising barristers and arbitrators, some of whom had dual qualifications. Plainly, if representatives of Messrs Knowles had appeared before the Appeal Tribunal in this case, representing the developers, they would have appeared as "paid advocates", whatever might have been the professional backgrounds of their representatives.

10. In this case, Mr. Neville Thomas, Q.C. has never held himself out to be anything other than a barrister, that is to say, a Queens Counsel having an established practice in Chambers in London; he is not a claims consultant or a partner in a multi-disciplinary practice. If he acts professionally in any capacity at all it must be in the capacity of a barrister.

The developers' case

11. Counsel for the developers in this case, Mr. Michael Thomas Q.C., argues that Mr. Neville Thomas is not a "barrister" within the meaning of s44 of the Legal Practitioners Ordinance because he is not on the roll of barristers kept by the Registrar under s29 of the Ordinance; the fact that he is a barrister in an overseas jurisdiction does not mean that when he appears before a statutory tribunal such as the Buildings Appeal Tribunal with its permission and conducts the developers' case, he is acting as someone qualified to practise as a barrister in Hong Kong.

12. To evaluate Mr. Michael Thomas Q.C.'s point, we need to examine the evidence and to see what it was that Mr. Neville Thomas Q.C. was instructed professionally to do. He gave advice as a barrister, upon the instructions of solicitors, beginning from about July 1993 and continued as such in shaping the overall strategy in relation to his clients' dispute with the Building Authority. He helped to draft the notices of appeal. Those services were rendered undisputedly by him as a barrister, having an established practice in London. When it came to the actual hearing in February 1994, he continued to be instructed by the same firm of solicitors, assisted by a junior counsel. With the permission, of course, of the Tribunal, he would have rendered the full range of services which a Hong Kong leader would have rendered including opening the case on the facts and law, examining and cross-examining witnesses (if there were to be witnesses), and he would have given to his clients the same services if similar proceedings had been in the United Kingdom. In my judgment, it is unrealistic to suggest that, at the door of the Tribunal, Mr. Neville Thomas ceased to be a barrister and became a "paid advocate". It is wholly irrelevant to this matter what label was put on Mr. Thomas by the solicitors, or indeed by the Appeal Tribunal itself: although it is of interest to note that when the solicitors sought permission from the Appeal Tribunal for Mr. Thomas' appearance at the hearing, the Tribunal, by its reply dated 4 February 1994, stated:

"Although this Appeal Tribunal has no objection to the appearance of Mr. Neville Thomas, London Q.C. at the hearing, we still urge you to consult the Bar Association of their view on this matter".

The judgment

13. In acceding to the developers' application for the declaration, the judge said this (p.9 of his judgment):

"While I accept that there may be cases in which the overall picture will demonstrate that a person, perhaps indirectly, is acting or practising as a barrister in Hong Kong, I do not think the picture demonstrates that in this case. It is more important, in my view, to focus upon the scope of Mr. Thomas' function before the Tribunal. He will be doing no more than any "other person" can do. The "other person" might be no more than an appellant's next door neighbour who happens to be more literate and articulate than the appellant himself. Even if he is present at the hearing of the appeal, Mr. Thomas, for all his undoubted virtues and experience, cannot necessarily expect to be heard. He is there to render assistance. That assistance may be limited simply to sitting beside the appellant and doing no more than prompt him......".

14. The judge, in this passage, might have overlooked the fact that the developers were all limited companies whose "presence" before the Tribunal must by definition be by representatives. The reality of the case was plain. These developers were to be represented at the hearing of their appeals by Mr. Neville Thomas Q.C. and his junior Mr. Anthony Ismail, upon the instructions of the solicitors. Mr. Thomas' function was not to sit beside some other representative and prompt him. There is no suggestion in the evidence that Mr. Thomas' role as leading counsel was to be inhibited in any way, and it would be surprising for someone of Mr. Thomas' standing to accept instructions artificially tailored to fit the definition of "other person", for this would surely have been contrary to the interests of his clients who must have expected Mr. Thomas to render the full range of his normal services. The notion that he might have simply sat beside some other representative of the developers and given whispered advice whilst his clients' case was conducted by another "representative" is, in my judgment, wholly unrealistic.

15. In his conclusion, the judge said this:

" In coming to Hong Kong and presenting himself before the Tribunal, Mr. Thomas will be undertaking what may be an extremely limited role and a role which may be performed by any person however humble his station in life."

16. There is nothing in the evidence which supports this conclusion.

"Qualified barrister"

17. In Hong Kong there are a great number of statutory tribunals where, not infrequently, parties are represented by counsel, sometimes leading counsel from London, upon the instruction of solicitors. It may not be possible to anticipate before the proceedings commence what precise role counsel may be called upon to play. The other side may make concessions. The proceedings may be determined upon documents without the presence of witnesses. It may turn out, in the end, that counsel may have only an extremely limited role, or no role to play at all. Nevertheless, where a barrister qualified in London appears in Hong Kong, ready and willing to render the full range of services as a barrister where necessary, upon the instructions of solicitors, it is difficult to avoid the conclusion that he is simply practising his profession as a barrister: and, to the outside world he is acting as a "qualified barrister".

18. Mr. Michael Thomas,Q.C., counsel for the developers say this: The meaning of 'acts as a barrister' in s44(a) has not been defined in the statute and on the ordinary meaning of these words it means simply the doing of an act which only a qualified barrister may do.

19. In my judgment it is far too narrow a view to take. Even the exclusive right of audience of a barrister before the High Court and the Court of Appeal is not an absolute right. As Mr. Ching for the Bar Association has cogently argued: Assume that a qualified barrister has been struck off the roll for gross misconduct. By Mr. Michael Thomas' construction of s44(a), it would mean that if that person were then to hold himself out as a "paid advocate" and to offer the full range of services of a barrister except acts which only a qualified barrister can do he would not be infringing s44(a). This would rob s44(a) of virtually all content.

20. Mr. Michael Thomas further argues this: Except for exercising such rights as are exclusive to a barrister (and by this he means a barrister's exclusive right of audience in the High Court and the Court of Appeal) the ordinary activities of a barrister may lawfully be performed by others, since there is no provision of law to the contrary. He argues that typical barristers' work would include advising on Hong Kong law, examining witnesses on commission, appearing as an advocate before tribunals or committees (arbitration is now clearly open to all, see s2(f) of the Arbitration Ordinance, Cap. 341) drafting petitions or letters, visiting police stations, making representations to Government heads of departments. All of these services, as Mr. Thomas argues, can be rendered by a whole range of professional persons without any breach of s44(a); accountants and financial advisors frequently advise on the provisions of the Inland Revenue Ordinance, the Companies Ordinance, the Securities Ordinance, etc; architects and engineers advise on the provisions of the Buildings Ordinance and its Regulations. The point is, in my judgment, valid as far as it goes. It does not answer the question before this court. I do not propose in this judgment to lay down once and for all the limits of s44(a) of the Legal Practitioners Ordinance. Clearly a person, be he a financial advisor or even a foreign lawyer, may perform some of the everyday functions of a qualified barrister without "acting as a barrister" within the meaning of s44(a). As far as this case is concerned, it seems to me to be at the extreme end of the spectrum, far from the instances painted by Mr. Michael Thomas.

Conclusion

21. In my judgment, the judge erred in making the declaration as he did and I would accordingly discharge his order.

22. As regards the form of the proceedings, no point has been taken on this appeal and it is therefore unnecessary for me to dwell upon it. However, I have misgiving as to whether Barnett J. had the jurisdiction to make the declaration that he did. Order 15 r16 of the Rules of the Supreme Court is in these terms:

"No action or other proceeding shall be open to objection on the grounds that a merely declaratory Judgment or order is sought thereby, and the court may make binding declarations of right whether or not any consequential relief is or could be claimed".

23. At one time, as I understand it, it was thought that no declaratory judgment can be given unless the plaintiff had an actual cause of action against the defendant but, by a majority, the English Court of Appeal held in Guarantee Trust Company of New York v. Hannay (1915)2 KB 536 that this was too narrow a view. Nevertheless, the law seems firmly to be established that a declaration can only be made where the plaintiff has an enforceable legal right, and the courts do not express opinions in order to help other parties in other transactions. The "right" asserted by the developers is a right "with leave of the Buildings Appeal Tribunal" to be represented by Mr. Neville Thomas Q.C. without any need for the admission of Mr. Thomas as a barrister in Hong Kong. It is difficult to see this in terms of a legal right, enforceable against the Hong Kong Bar Association.

24. I can readily understand why neither side wished to take the point which I have outlined above. The originating summons was a convenient way of testing the legal issue, without causing Mr. Neville Thomas, an eminent and highly respected Queens Counsel from London, the embarrassment of being under possible criminal sanctions. However, convenience does not confer jurisdiction upon the court where the rules of court do not so provide. As the point has not been argued, I say no more about it.

25. For the reasons I have expressed, I would allow the Hong Kong Bar Association's appeal and discharge Barnett J's order.

Bokhary, J.A.:

26. The opening words of item (a) of section 44 of the Legal Practitioners Ordinance, Cap. 159, are "not being a qualified barrister". And the remaining words of that item are "either directly or indirectly practices or acts as a barrister". As can be seen, the term used in the opening words is "qualified barrister", while the term used in the remaining words is "barrister". Clearly, the opening words go to status, while the remaining words go to conduct. Section 44 is directed against conduct in the absence of status.

27. Who are the persons who may, with the Buildings Appeal Tribunal's permission, conduct an appellant's case before the tribunal for payment? As one sees from the proviso to paragraph 3(1) of the First Schedule to the Buildings Ordinance, Cap. 123, such persons include lawyers (who are fully covered by the reference to counsel and solicitors) and non-lawyers (who are fully covered by the reference to other paid advocates: who in practice are likely to be architects, civil and structural engineers and surveyors).

28. Mr Neville Thomas Q.C. is a lawyer. The terms "barrister" and "counsel" are rightly applied to him. For he is a Queens Counsel and, if I may say so, a most distinguished one. In conducting a client's case before the Buildings Appeal Tribunal, he necessarily does so, to use the terminology of item (a) of section 44, as a "barrister" although not as a "qualified barrister".

29. What happened was, I regret to have to say, contrary to that section. But of course no moral blame or risk of prosecution arises. What happened was done openly and in conformity with an extant, albeit erroneous, decision of the

High Court. No-one would dream of bringing a prosecution, which would most certainly be an abuse of process.

30. London-based Queens Counsel, Mr Neville Thomas Q.C. among them, have, duly admitted and together with local lawyers, contributed much to the administration of justice in Hong Kong and to the law's development here. No dispute in any given case should ever be allowed to sour relations between such counsel and the local Bar. I am happy to say that if there had ever been any danger of such a thing in this case, then the admirable way in which Mr Charles Ching, Q.C. for the appellant and Mr. Michael Thomas, Q.C. for the respondents have conducted their respective cases has wholly eliminated that danger.

31. In the result, I agree with my Lord that this appeal must be allowed.

Mayo, J.:

32. I agree with both of the judgments which have been delivered and have nothing to add.