Re Donald Martin THOMAS

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NO. 4158 OF 1993

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J U D G M E N T

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Hon Yang, CJ:

This is an application by Mr Donald Martin THOMAS, one of Her Majesty's Counsel practising in England, for admission as a barrister to appear in a murder appeal in Hong Kong.

2. The Bar Council opposes the application. The Attorney General takes a neutral stance.

3. The appellant was convicted of murder on 12 February 1992. On 9 March 1992, the appellant lodged a Notice of Appeal against conviction. After the Notice of Appeal was lodged, Mr Thomas was instructed to provide a written opinion with regard to the appellant's likelihood of a successful appeal and to perfect the Grounds of Appeal. A date of hearing of the appeal is yet to be fixed; it is expected to last two days.

4. By an affidavit sworn on 30 November 1993, solicitor for the appellant stresses that, on the basis of the Perfected Grounds of Appeal and Mr Thomas' detailed advice, it would be in the public interest for Mr Thomas to be admitted to the Hong Kong Bar. It is further submitted that the Grounds of Appeal involve sensitive issues, including severe criticism of a local senior Queen's Counsel and the Junior Counsel who conducted the original defence for the appellant. It is then contended that certain grounds of the appeal are very complex, since they involve the developing area of law concerning convictions based on confession statements alone and, therefore, require the specialised, current and expert skill of a Queen's Counsel from England. Lastly, it is argued that the appellant should have the right to instruct the counsel of his choice to represent him in the appeal.

5. On the evening before the hearing of this application, i.e., on 22 December 1993, another solicitor of the same firm of solicitors acting for the appellant swore an affidavit, wherein she states that as she had been informed that there was a possibility of the appellant being represented by local counsel, she therefore made certain enquiries of the fees of a number of local Queen's Counsel. In making those enquiries, the only information she gave to the clerks of counsel was that the matter was a murder appeal with an estimated hearing time of two days. Of the five Queen's Counsel thus approached, the averaged brief fee was in the region of HK$300,000 and the refresher about HK$50,000.

6. According to a letter from Mr Thomas' clerk dated 21 December 1993, the brief fee for a similar case in England would be in the region of ?5,000 and ?2,500 refresher. An additional amount would be required for travelling out of England.

7. Apart from being told that the appellant is not apparently a person of particular wealth and he has to work within a limited budget, I have not been given any details of his financial situation; what his employment was, what disposable income he had, whether he owned any property, etc. It is argued in support of the application that he should not be obliged to have counsel not of his choice at substantially greater cost than his chosen counsel would charge. It was not argued that the appellant was unable to pay the fees asked for by the local Queen's Counsel who had been approached, high though those fees were as compared with Mr Thomas'.

8. In my judgment, whilst the appellant has a right to choose counsel who are available, he has no right to demand that overseas counsel be admitted to represent him: vide Re Coles. OC (1985) HKLR 480.

9. Whilst it is an element to be considered that no local counsel of appropriate skill and experience is available at a fee which is within the range of the client (whereas an overseas counsel is available at such a fee), I am not satisfied that the five local Queen's Counsel approached would necessarily have charged a higher level of fee if given adequate information of what the appeal was about, how complex it was, how much research and preparation was needed, what the current state of the law was, etc. The argument that the appellant is financially incapable of paying a fee demanded by local Queen's Counsel, higher though it might be, is not made out.

10. The next argument is that here we have a complex and developing branch of the law relating to convictions based on confessions alone. In my judgment, it is not a branch of the law that falls outside a local Queen's Counsel's expertise, or is of unusual difficulty or complexity.

11. Lastly, it is urged that since serious criticisms will be made against a senior local Queen's Counsel and his Junior Counsel who appeared for the appellant at the trial, an overseas counsel is desirable. Reliance is again placed on Re Coles, QC (supra), where my predecessor suggested that an overseas counsel may be admitted if the case is of such a nature that it is desirable for overseas counsel to appear, e.g., a case involving a very well-known local personality. The present appeal is not such a case. Even taking into account the relatively small Bar in Hong Kong, where one may find it a little embarrassing to criticise a senior Queen's Counsel, I do not think that a local counsel will feel inhibited, or the least hesitant, in fearlessly doing his duty for his lay client in a way that accords with the highest tradition of his profession.

12. Before I conclude, I should note that Mr Thomas' vast experience and expertise are not in doubt. His high professional standing is thus not in question. I must also note that no argument has been advanced that no local Queen's Counsel with the kind of skill, knowledge and experience required is available.

13. For the foregoing reasons, I dismiss the application.