In re Michael J Beloff, QC,

1993, MP No. 3211

IN THE HIGH COURT OF JUSTICE

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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Hon Yang, CJ:

1. This is an application made on behalf of the Honourable Michael J Beloff, QC, of England for his admission as a Barrister for the purpose of advising and representing Onshine Securities Ltd ("Onshine") in Action No. 1013 of 1993, instituted by Onshine against the Stock Exchange of Hong Kong Ltd ("the Stock Exchange") for judicial review of the decision made against Onshine by the Stock Exchange dated 19 March 1993, in Disciplinary Proceedings No. 62 of 1992, including appearing on behalf of Onshine at the hearing of the Judicial Review fixed for 21 September 1993, with the 22nd to the 24th and the 27th reserved.

2. The application is opposed by the Bar Council on the ground that the Council does not consider the Judicial Review to be a case which warrants the admission of an overseas counsel.

3. The Law Society has no objection to the application and the Attorney General adopts a neutral stance.

4. On 26 August 1993, Onshine's solicitors wrote to the Bar Association seeking their consent to Mr Beloff's admission. At the time of writing the letter, local counsel were already acting for Onshine, namely, Mr Ronny Wong, QC, leading Mr Andrew Allman-Brown and Mr Kenneth Chow. The letter also sets out certain facts relevant to the application now under consideration.

5. The facts as set out in the letter may be summarised as follows.

6. Onshine carries on business as stockbrokers. In the course of business they received buy and sale orders from clients channelled through "runners". One such runner was a Yeung Shu Hung ("Yeung"). Four of the company's clients instituted proceedings in High Court Action No. A 4343 of 1991 ("Action No. A 4343") against Onshine on the basis of certain complaints against Yeung as their employee. Onshine denies liability on the ground that Yeung was the clients' agent. Action No. A 4343 is due to be heard in March 1994. The current application for Mr Beloff's admission is limited to the Judicial Review and is not intended to extend to Action No. A 4343.

7. As a result of disciplinary proceedings instituted by the Stock Exchange against Onshine, a disciplinary hearing was held on 17 March 1993 despite Onshine's repeated requests that the Stock Exchange should not proceed with the hearing as the issue raised in the disciplinary proceedings was identical with that in Action No. A 4343. Onshine's request for legal representation had been rejected by the Secretary of the Stock Exchange at a preliminary hearing, which rejection was maintained by the Chairman at the disciplinary hearing on 17 March 1993.

8. The letter goes on to list five issues which will probably be argued at the Judicial Review on 21 September 1993. These are: -

"(a) the inherent vice in the Stock Exchange Disciplinary set up which fails to draw a clear distinction between the 'prosecutor' and the 'adjudicator';

(b) whether Judicial Review applies to the Stock Exchange in view of the fact that Onshine's relationship with the Stock Exchange is contractual in nature;

(c) the validity of the disciplinary procedures in the context of the Securities Ordinance;

(d) Onshine's right to legal representation under the Convention for the Protection of Human Rights and Fundamental Freedoms and the applicability of various decisions of the European Court of Human Rights such as Engel v. The Netherlands (No.1) [1976] 1 EHRR 647 and Campell v. Fell and UK [1982] 5 EHRR 207; and

(e) the contents of the rules of natural justice in the context of an inquisitorial hearing."

9. In the letter, it is argued that some if not all of the issues outlined above are of unusual difficulty and require specialist knowledge of the kind not available from the local Bar.

10. In this connection, it may be helpful to examine briefly the relevant provisions of the Disciplinary Procedures of the Stock Exchange. Para. 4.4 provides that at the preliminary hearing the Secretary to the Disciplinary Committee shall, inter alia, consider and rule upon any request by the Member charged for legal representation. Para. 4.15 provides for an appeal from the decision of the Disciplinary Committee to the Disciplinary Appeals Committee. By virtue of the contractual relationship between the Stock Exchange and Onshine as its member, the latter must be taken to have agreed to abide by those procedures.

11. On 9 September 1993, Onshine's solicitors, not having received a reply from the Bar Association, wrote again giving Mr Beloff's credentials. On the following day, the Bar Council wrote to say they opposed Mr Beloff's admission.

12. By an affidavit, sworn on 15 September 1993, Miss Peggy Liu, solicitor for Onshine, states four main questions to be raised in the Judicial Review. They are briefly these: -

(1) Are decisions of the Stock Exchange amenable to judicial review?

(2)

(a) (b) (c)

In what circumstances do the rules of natural justice require legal representation before a domestic tribunal ? Can Onshine rely on the Convention for the Protection of Human Rights and Fundamental Freedoms and the subsequent decisions of the European Court of Human Rights such as Engel v. The Netherlands (No.1) [1976] 1 EHRR 647 and Campell v. Fell and UK [1982] 5 EHRR 207 to establish its right to legal representation at the hearing of the disciplinary proceedings? Was it a proper exercise of discretion for the Stock Exchange to refuse Onshine to be legally represented?

(3) Should the disciplinary hearing be postponed till after the High Court hearing in Action No. A 4343?

(4) Was it proper for Onshine to impugn the decision of the Stock Exchange by way of judicial review rather than appeal? - see para. 4.15 of the Disciplinary Procedures (supra).

13. Miss Liu argues: -

"... all the issues outlined above are ones of importance and interest in the field of public law, in particular, the most complex issues involved are: (1) the denial of legal representation and the specialised knowledge of the Convention for the Protection of Human Rights and Fundamental Freedoms; (2) a close examination of the rules of natural justice in the context of an inquisitorial hearing; (3) the need to compare the rules of the Hong Kong Stock Exchange with that of the other international Stock Exchanges, especially the London Stock Exchange to whom Mr Beloff has been an adviser; and (4) in studying the rules of the London Stock Exchange, it is necessary to survey the actual workings of these rules, and these matters are beyond the general expertise of the local Bar in Hong Kong."

14. She then goes on to list Mr Beloff's credentials as an expert in public and commercial law, his experience in matters concerning disciplinary proceedings and judicial reviews. It is common ground that Mr Beloff possesses all these qualities.

15. The main issues in this application are: -

(i) whether the case is one of unusual difficulty or complexity; and

(ii) whether the case requires specialist knowledge of the kind not available from the local Bar: vide Re Coles (1985) HKLR 480.

16. The burden of the Bar Council's case is that the application does not show the case as falling within either (i) or (ii). I agree.

17. The Bar Council's comments on the five issues (supra) alluded to in the letter of Onshine's solicitor to the Bar Association dated 26 August 1993 are as follows. These issues, it is argued, involve nothing more than construction of a local subsidiary legislation or a local Ordinance: issues (a) and (c). Whether Judicial Review is available in the context of a contractual relationship is a general legal question: issue (b). As to the question of Onshine's legal representation (issue (d)), there are undoubtedly some difficulties, e.g., whether corporations are entitled to protection relating to human rights and the extent to which the Convention for the Protection of Human Rights and Fundamental Freedoms is applicable in Hong Kong. There is, however, nothing said in support of the application which leads me to the conclusion that there are questions of such unusual difficulty or complexity, or that they are of the kind that require such specialist knowledge, that an overseas counsel is required. These are questions which local leading Queen's Counsel are quite capable of handling. Lastly, the general concept of natural justice is well-known to the local Courts and Bar, there is nothing of unusual difficulty or complexity: issue (e).

18. The issues are, however, put rather differently in Miss Peggy Liu's affidavit. The first issue as to whether a decision of the Stock Exchange may be the subject of a Judicial Review is again neither unusually difficult or complex, nor one that requires specialist knowledge to comprehend. The second issue, that of legal representation is similar to issue (d) above. The third issue is the postponement of the disciplinary hearing, the true question here seems to be whether the Disciplinary Committee acted reasonably - and this is a question the local Bar is more than capable of handling. Lastly, the fourth issue of whether or not Onshine should have exhausted the appeal procedure before resorting to Judicial Review, is a question which has been considered by the Courts.

19. There have been no arguments advanced that there is a dearth of authorities or a conflict of authorities on the issues raised. I have not been referred to any decisions or academic works which suggest that we are here dealing with problems of unusual difficulty or complexity. As Roberts, CJ, put it in Re Wright, MP 1183 of 1986, there is nothing to show that it "is a matter which lies outside the normal range of competence of the average Hong Kong silk". That there may be experts overseas whose specialist knowledge is greater than that available locally is not a good reason for granting the application. The test is whether or not there are local counsel of appropriate skill and experience available to appear in the case in question. The possibility that the service of a "better" counsel from overseas is available is not a consideration envisaged in the well-known case of Re Coles (supra). I am not satisfied that a case of unusual difficulty or complexity, or that the case requires specialist knowledge not available from the local Bar, has been made out.

20. For the reasons given above, I must regrettably refuse the application.

21. Before I conclude, there is one further matter which I should mention.

22. The Bar wishes me to review the correctness of the dicta of Roberts, CJ, in Re Glasgow [1988] 1 HKLR 607 (at 609), that if the applicant succeeds in showing the case to be of unusual difficulty or complexity, it is then no longer necessary to show that there was no local counsel of appropriate skill and experience available. Fuad, VP, in Re Leaver, MP No. 43 of 1991, clearly felt uneasy; he said "what I find much more difficult is the principle that if the case is shown to be of unusual difficulty or complexity ..... 'it is necessary only to satisfy this". He suggested that this aspect of the matter will need to be addressed one day and Roberts, CJ's dicta in Re Glasgow will have to be reviewed. However, he declined to comment further. Likewise, I do not think this is an appropriate occasion for me to delve more deeply into the topic. The only argument has come from the Bar; counsel for the applicant quite understandably refrains from pursuing the issue. I shall therefore content myself with simply saying that my first reaction is to agree with Fuad, VP.