RE MR GILEAD COOPER Q.C.

HCMP 1739/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1739 OF 2010

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JUDGMENT

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1.  This is an application for the admission of Mr Gilead Cooper Q.C. for the purpose of advising and representing Madam Chiu Chung Kwan Ying (“Madam Chiu”), the defendant in Probate Action No. 9 of 2005 (“the Action”) which will be heard before Poon J commencing on 28 February 2011, with 25 days reserved.

2.  The Action concerns a will made by the late Chiu Yau Chuen (“the deceased”) on 5 June 2003.  The deceased died on 4 December 2004. 

3.  Out of the deceased’s marriage with a Madam Wong which ended in a divorce in 1993, the deceased had 9 children, 6 of whom are the plaintiffs in the Action.  Madam Wong committed suicide in April 2003.

4.  In addition, the deceased had 3 children with the defendant.  He also had 3 children with a Madam Chan Koon Hing, she was described as one of his cohabitees; as well as another child with Madam Lam Po Chuen. 

5.  Out of his 16 children, as at the date of his death, 6 of them were 10 years old or under, 2 of them were 13 years old and one was 17.  The others were all over 18.

6.  By his will, the deceased left his entire estate to the defendant.  It is common ground that the estate is substantial, running into several hundred million dollars as at the date of his death.

7.  The plaintiffs have been granted legal aid.

8.  The defendant wishes to be represented by Mr Cooper.  She had earlier been represented by a leading counsel in Hong Kong with whom I am told she has had a disagreement.  Following that, she instructed Mr Benjamin Yu, SC, who, due to no fault on his part, became unavailable for the entirety of the trial because of a competing engagement.  There was another leading counsel whom she wished to instruct, who has unfortunately also become unavailable for the entire trial by the time the defendant decided to instruct him.

9.  The authorities dealing with the admissions of overseas counsel are well known and I will not repeat them.  On the basis of these authorities, the application is put on three bases:

(i)            Unusual difficulty and complexity;

(ii)           The applicant will add a significant additional dimension to the case; and

(iii)          Unavailability of local counsel of specialist skill and experience.

I have rearranged the order of these three matters because I think it is more convenient for me to deal with them in this order.

Unusual difficulty and complexity

10.  It is said that the Action involves a complicated factual matrix with an unusual network of relationships being the centre of focus.  It is also said that the complexity and difficulty of the case is evident from the parties’ pleadings, which I have read.

11.  It is also said that the relationship of the deceased with the defendant and Madam Chan and Madam Lam and indeed Madam Wong were also highly unusual, with some of these ladies cohabiting with him and with each other at various times.  I must say this is not the first case which I have come across where a man lived with more than one woman under the same roof in similar circumstances.  Indeed, it is not so many years ago when polygamy was lawful in Hong Kong.  It is said that such relationships and the fact that the deceased had 16 children are relevant to the deceased’s testamentary capacity.  I was referred to an expert report prepared on behalf of the plaintiffs, which expressed the view that the fact that the deceased had disinherited all 16 of his children when only one of them “had spoken bad things about him” in the telephone conversations taped by the defendant, was irrational and “that irrational decision reflected an unsound mind”.

12.  I have been told that at the 3^rd Case Management Conference before Poon J on 15 September 2010, Mr Nelson Miu, counsel for the plaintiffs, stated that leading counsel for the plaintiffs, who would not be representing the plaintiffs at trial, was of the view that the question in this case is “in fact very complex”, that the estate is “very substantial”, and “approaching questions of general public importance”.  The transcript of the proceedings during which Mr Miu made these remarks have been made available.  With respect to Mr Miu who appeared for the plaintiffs on that occasion, it is not clear, what, according to Mr Miu, leading counsel was supposed to have said. 

13.  The deceased had made an earlier will in 1997 in which his children, except the two who were born later, were the sole beneficiaries of his estates, the sons getting two shares to the daughters’ one.  By the 2003 Will the deceased had disinherited all his children.  The crux of the plaintiffs’ case can be gathered from para. 17 of the Re-Re-amended Statement of Claim where it is pleaded that when the deceased executed his will, his:

“… physical, emotional and mental state was such that he was not able to and did not truly understand, inter alia, the nature of his act and its effects nor of the nature or extent of the property of which he was disposing, or recall all the several persons who might be fitting objects of his bounty or comprehend and appreciate the claims to which he ought to give effect”.

14.  As is usual for probate actions of this kind, there will be factual witnesses on both sides, as well as medical evidence.  There will also be evidence from the lawyers who prepared and witnessed the 2003 Will. 

15.  I am prepared to accept that the case is complex and difficult, but I do not accept that this is a case of unusual difficulty or complexity.  In fact cases of this type are all too common in Hong Kong.

Significant additional dimension 

16.  The second basis for the admission is said to be that the applicant will add a significant additional dimension to the case.  I believe this is based on the fact that Mr Cooper was involved as counsel in Sharp v Adam [2006] EWCA Civ 449.  Sharp v Adam is a decision of the English Court of Appeal which upheld a decision which invalidated a will which effectively disinherited the daughters of the testator in favour of two employees who had been managing the testator’s stud farm.  But the judgment of the English Court of Appeal made clear that case turned entirely on its own facts.  Thus, May LJ said at para. 94:

“We do not think that the deputy judge misunderstood or changed the law. We do not think that the decision would result in any altered approach by solicitors or the court to the question of testamentary capacity. This case in the end turns entirely on its own facts.”

17.  I believe this Action also only involves the application of well-known principles to the facts of this particular case.  It will turn entirely on its own facts.

18.  I was also referred to an article in the Hong Kong Lawyer on Sharp v Adam.  That article was written from the perspective of practitioners and what Sharp v Adam meant to them. 

19.  I think, the sooner it is recognised that Sharp v Adam is a decision which turned on its own facts the better.  Any attempt to use it as a template should be resisted.  I do not believe that this is a case where overseas counsel should be admitted because he could add a significant additional dimension to the proceedings.

Unavailability of local counsel of specialist skill and experience

20.  As I have said, two of the leading counsel whom the defendant wished to be represented by would not be available for the trial.

21.  The Bar Association complained that there is no evidence about the availability of other senior counsel in Hong Kong.  This morning I was shown a list of some of the bilingual senior counsel who can no doubt handle the Action.  The list is not exhaustive.  I have to say, with my experience in this area of the law, I can think of a number of names even without the help of the list presented by the Bar Association.  As I have said, this kind of cases are unfortunately all too common in Hong Kong, and I believe there are local counsel of eminence who would be available to represent the defendant. 

22.  So far as the plaintiffs are concerned, my understanding is that the plaintiffs may not be represented by leading counsel at trial (at least not by a particular leading counsel anyway).  For all we know, the plaintiffs will only have the service of a junior counsel.  It is not uncommon for this kind of cases to be conducted by junior counsel.  Probate actions are not uncommon in Hong Kong.  I am not satisfied that there are no local counsel of suitable skill and experience available for the Action. 

Media interest

23.  Mr. Peter Duncan, SC, who appeared for the applicant, also mentioned media interest, but I think he mentioned it, as he has explained, in the context of what was said in the junior counsel’s certificate.  It is said that a leading counsel of eminence with experience of cases that attract a high level of media interest is called for to handle these sensitivities.  That may be so, but I am convinced that there are local leading counsel of eminence who would be able to do that. 

Public interest

24.  Mr Duncan also mentioned that it will be in the public interest for overseas counsel to be admitted, but I do not think there is any real basis upon which I can say that overseas counsel should be admitted for this Action.

25.  For these reasons, the application is refused.