RE LORD DAVID PHILIP PANNICK QC

HCMP 1230/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1230 OF 2015

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JUDGMENT

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The facts

1.  This is an application for the ad hoc admission of Lord Pannick QC for the purposes of advising and appearing on behalf of China International Fund Limited (“CIF”) in relation to an application for leave to appeal to the Court of Appeal in HCMP 2472/2014 from the orders of Louis Chan J in HCCT 49/2013 and HCCT 9/2014, both dated 13 June 2014.  The application, made under the court’s discretionary power of admission under section 27(4) of the Legal Practitioners Ordinance (Cap 159), is opposed by the Bar; whereas the Secretary for Justice takes a neutral stance.

2.  Very briefly, the proceedings arose out of an arbitral award made in favour of a company called Dennis Lau & Ng Chun Man Architects & Engineers (HK) Limited (“DLN”) against CIF.  There were cross applications to the Court of First Instance to set aside the award, and for leave to enforce the award and for judgment to be entered in terms of the award, pursuant to sections 81 and 84 of the Arbitration Ordinance (Cap 609) respectively.  They came before the judge, who by his judgment decided in favour of DLN on all applications.  Dissatisfied with the judge’s decisions, CIF unsuccessfully sought leave to appeal from the judge; thus the renewed application made to the Court of Appeal for leave to appeal to that court.

3.  It was at that stage that issues raising the jurisdiction of the Court of Appeal to entertain the intended appeal (assuming that it was otherwise minded to grant leave to appeal), in the absence of leave to appeal from the Court of First Instance, by reason of the provisions in sections 81(4) and 84(3) of the Arbitration Ordinance, arose.  First, there were the statutory interpretation issues as to whether those provisions respectively prohibit an appeal to the Court of Appeal unless leave to appeal has been granted by the Court of First Instance.  Secondly, if the answer was in the affirmative, there would be the constitutional issues of whether those provisions are respectively unconstitutional as impinging on the Court of Final Appeal’s power of final adjudication stipulated in article 82 of the Basic Law.  The Court of Appeal (comprising myself and Lam VP) regarded those issues as issues of “general public importance” meriting full oral arguments before a three‑judge court, directed that the short oral hearing originally fixed be vacated and refixed accordingly, and gave directions for the full hearing, including a direction to invite the Secretary for Justice to take part at the hearing in relation to the issues raised.  Pausing here, it should be made clear that the adjourned hearing, now fixed for 24 July 2015 (before Lam VP and two other judges not including me), is intended to deal with substantively the issues described above, as well as (and insofar as may be necessary) the application for leave to appeal on its merits in accordance with the standard threshold test.  And the present application for ad hoc admission of Lord Pannick is sought to be justified solely on the basis of the issues described above, rather than the substantive application for leave to appeal in relation to the underlying arbitration matter.

4.  The Court of Appeal’s directions were given on 4 December 2014.  After consulting a London arbitration silk (who has arbitration expertise but not expertise on constitutional issues such as the ones described above) and a local silk, CIF decided to instruct Lord Pannick to appear on its behalf at the adjourned hearing.  The Bar Council’s consent was sought on 24 April 2015, and papers were also sent to the Secretary for Justice and the Law Society on the same day.  The Bar Council responded orally on 18 May 2015 and formally by letter dated the same (which was apparently only received by CIF’s solicitors on 20 May 2015), declining to give its consent, and the application for admission by notice of motion was launched on 19 May 2015.

The arguments

5.  Mr Johnny Mok SC (Mr Justin Ho with him) who will be led by Lord Pannick if the application is successful, submitted in moving the admission that at the adjourned hearing for leave to appeal, constitutional issues concerning article 82 and the two provisions in the Arbitration Ordinance will be involved, issues which have hitherto never been addressed by the Hong Kong courts.  As such, the hearing involves the determination of legal principles which would substantially impact local jurisprudence.  Furthermore, counsel submitted that there is every likelihood that the ventilation of arguments from these principles will end up in the Court of Final Appeal.  Counsel submitted that Lord Pannick, who is no stranger in our courts, is a leading London silk of high standing with specialist expertise in the area of constitutional law and human rights.  (On the evidence, Lord Pannick also appears to have advised and appeared in arbitration cases which raised human rights and constitutional issues.)  Counsel therefore submitted that he is “plainly in a position to add a significant dimension to the case”.  Furthermore, it was pointed out that both local senior and junior counsel have been instructed to act for CIF throughout the arbitration proceedings and the proceedings before Louis Chan J, and will remain instructed even if Lord Pannick is admitted.  There has therefore been and will continue to be substantial local counsel involvement in the case.  In all the circumstances, counsel submitted, it is in the public interest to grant the admission.

6.  As for delay, counsel submitted that given the chronology outlined above, there was no delay or non‑compliance with the Bar Council’s practice guidelines for admission of overseas counsel, the Bar Council’s consent having been sought “not less than three months before the hearing”.

7.  Mr Jeremy Bartlett SC (Mr Martin Ho with him), opposing the application on behalf of the Bar, pointed out that the application is not made on the basis of any issue of unusual difficulty or complexity, and counsel submitted that there is none.  Counsel accepted that the issues raised are novel, but that is not a sufficient ground for admission.  Counsel argued that so far as article 82 and the Court of Appeal’s power of final adjudication are concerned, they have been covered in two leading cases (Solicitor v Law Society of Hong Kong & Secretary for Justice (Intervener) (2003) 6 HKCFAR 570 and Mok Charles v Tam Wai Ho (2010) 13 HKCFAR 762), both of which were argued entirely by local counsel, and the present case simply concerns the application of well settled legal principles to new facts.  Counsel also submitted that the proportionality test applicable to determine the boundary of article 82 is a well established one and its application to particular facts is by no means a novel exercise.  As regards the proper interpretation of the provisions in the Arbitration Ordinance, counsel pointed out that they do not have an exact equivalent in the English Arbitration Act 1996, and it is highly questionable whether overseas counsel would be better placed than local counsel to engage in the statutory interpretation exercise.  Counsel also doubted whether Lord Pannick, no doubt a highly respected expert in constitutional law and human rights matters, has the necessary expertise on arbitration law to be in a position to add a significant dimension to the case before the Court of Appeal.  Counsel further argued that given section 14AB of the High Court Ordinance which provides that the Court of Appeal’s decision on whether to grant leave to appeal is “final”, there is simply no way the Court of Appeal’s decision on the issues in question would end up in the Court of Final Appeal, and the “CFA factor” is simply irrelevant.  Counsel also suggested that the application for admission was made late.

8.  Given the Secretary for Justice’s involvement in the adjourned hearing at the invitation of the Court of Appeal, the Secretary has very properly briefed out the present case to Mr Jin Pao of the private Bar, with a view to offering to the court in an independent manner the necessary assistance in protection of the public interest, which is the paramount consideration in this type of application.  Mr Pao very fairly pointed out various factors for and against admission respectively, and came to the conclusion that the public interest considerations involved are “finely balanced”, and thus the neutral stance adopted by the Secretary for Justice.

9.  Against admission, Mr Pao submitted that the article 82 issues are not ones of unusual difficulty or complexity, as the Court of Final Appeal has already given authoritative guidance on the proper legal approach which should be adopted for constitutional challenges based on article 82; the proportionality test is firmly established in local jurisprudence and is regularly applied in a wide range of contexts; local counsel have represented the parties in previous cases where an article 82 issue has been previously raised, including the two Court of Final Appeal cases; article 82 is a unique provision to Hong Kong and the relevant jurisprudence has developed locally without reference to similar provisions in overseas constitutions; Mr Johnny Mok SC himself possesses experience and reputation in public law disputes; and the article 82 issues may not arise for determination as the Court of Appeal may find in favour of CIF on the statutory interpretation issues.

10.  As regards the statutory interpretation issues, Mr Pao submitted that Lord Pannick is unlikely to add a unique or significant dimension to the case, as sections 81(4) and 84(3) of the Ordinance do not have an equivalent in England under the Arbitration Act, and it is unclear whether Lord Pannick has expertise in the area of arbitration or alternative dispute resolution.

11.  Supporting admission, Mr Pao pointed out that the issues raised have considerable general public importance not only as regards article 82 but also in relation to an important question for arbitration law in Hong Kong which aspires to be a leading international arbitration centre.  Mr Pao submitted that whilst the principles are well established, the application of the proportionality test to a novel situation is never a straightforward task and may involve complex arguments.  Mr Pao also observed that the issues may well end up in the Court of Final Appeal which is a highly relevant consideration.  Mr Pao further pointed out that local senior and junior counsel will be involved and there is therefore no question of shutting out the local Bar.

The general principles

12.  The general principles governing admission of overseas counsel are so well established that they need not be rehearsed in detail: Re Flesch QC [1999] 1 HKLRD 506; Re McGregor QC [2003] 3 HKLRD 585; Re Dicker QC [2013] 2 HKLRD 245.  The present case is yet another instance of applying those principles to facts obtaining in a particular case.  It is nonetheless useful to remind ourselves what Ma JA (as the Chief Justice then was) said in Re McGregor QC, para 11(1), in relation to one of the two usual grounds for admission, that is, substantive impact on the development of local law:

“In analysing the issues in the relevant case for which the admission of overseas counsel is sought, the court must ask itself the question whether the determination of such issues would also involve the determination of principles which might impact substantially on the development of Hong Kong law. This is of course not the sole question but it is an important one. If the case is one where the ventilation of arguments on important legal principles is likely to end up in the Court of Final Appeal, this is a very powerful factor in favour of admission. In Re Flesch QC, Chan CJHC at 514A used the phrase ‘likely to go all the way up to the Court of Final Appeal for a determination of some principles of law’. I do not disagree with this but wish to make it clear that it is merely illustrative of the exercise carried out by the court that I have just referred to, namely, the identification of cases involving the determination of legal principles which might substantially impact on Hong Kong law. Chan CJHC was not advocating an exercise in determining the likelihood or otherwise of the particular case itself going to the Court of Final Appeal, for this may involve considerations far removed from the point of the exercise.”

13.  As Chan CJHC (as he then was) said in the earlier case of Re Flesch QC (at p 514B), where the case involves the determination of legal principles which may have an impact on the development of local jurisprudence, overseas counsel must be “of a sufficiently high quality and standing to be in a position to make a useful contribution”.  (This is not dissimilar to the requirement, where the “unusual difficulty and complexity” ground, being the other usual ground for admission, is relied on, that counsel must be shown to be in a position to “add a significant dimension to [the] very complex or difficult case” in question: Re McGregor QC, para 11(3).)

14.  Of course, all the circumstances must be borne in mind.  Even where the case is one which involves important legal principles that are likely to end up in the Court of Final Appeal which, as said, is a “very powerful factor in favour of admission”, the difficulty or complexity of the arguments involved is still a material consideration.  The more complex or difficult the arguments, the more reason there is for granting the admission as a matter of public interest.  Likewise, if the case also involves participation of local senior and junior counsel, that is again another reason in the equation for exercising the court’s discretion in favour of admission.  On the other hand, where, despite the importance of the issues or legal principles raised, the arguments are relatively straightforward and there is no lack of local senior counsel who can more than competently and even skilfully deal with the case, the court’s discretion may be exercised against admission. In short, the court’s discretion is exercised on the basis of the entire circumstances.

The present case – my views

15.  Turning to the present case, there is no dispute that the statutory interpretation issues do not justify admission, and at the oral hearingMr Mok based his application solely on the constitutional issues concerning article 82. Indeed, the Court of Appeal has recently decided that it has no jurisdiction to grant leave to appeal in an enforcement case in the absence of leave to appeal from the Court of First Instance by reason of section 84(3) of the Arbitration Ordinance: 廣東長虹電子有限公司 v Inspur Electronics (HK) Ltd [2015] 2 HKLRD 714 (30 March 2015).

16.  The real focus of the present case is on the importance of the constitutional issues raised.  In relation to that, in my view, there can be no doubt.  First, they concern the very jurisdiction of the Court of Final Appeal (rather than the Court of Appeal as such) to hear this type of appeal.  For what is at stake is article 82, the power of final adjudication of that court.  Whether that power of final adjudication needs to find expression via an intermediate appeal to the Court of Appeal (and thus giving the Court of Appeal, for that reason only, the jurisdiction and power to hear the appeal), or via a direct appeal to the Court of Final Appeal (subject to leave to be given by that court), or not at all, is not a matter that concerns this court.  The importance of the point, from the point of view of the Court of Final Appeal, is, in my view, self evident.

17.  Secondly, it is an important point from the vantage point of arbitration law and Hong Kong’s long efforts to become or remain a leading international arbitration centre in this part of the world as reflected in its very strong “pro‑arbitration” philosophy or legal policy.  As Lam VP pointed out in 廣東長虹電子有限公司,para 9, the underlying philosophy in respect of the limited role of the courts in respect of enforcement of arbitral awards is that parties who have undergone arbitration should have finality as speedily as possible and with as little expense as possible, and therefore there is a deliberate policy of restricting the rights of appeal.  Any right to appeal from a decision of the Court of First Instance, the court specified in the Arbitration Ordinance to deal with enforcement and setting aside matters, to the Court of Final Appeal, whether directly or via the Court of Appeal as an intermediate court of appeal, would by definition compromise that philosophy or policy.

18.  Therefore, thirdly, the proper resolution of these two important considerations is itself an important question affecting both the Court of Final Appeal as the final court in this jurisdiction and Hong Kong as an arbitration centre.

19.  Pausing here, as pointed out in Re McGregor QC, the fact that the constitutional issues involved are ones, the determination of which might impact substantially on the development of the Hong Kong law, “is a very powerful factor in favour of admission”.

20.  Given the importance of the issues raised, and given the content of the issues which directly impact on the Court of Final Appeal’s jurisdiction, it is, in my view, quite plain that the case is one which is “likely to go all the way up to the Court of Final Appeal for determination” – bearing in mind what Re McGregor QC has said in the passage quoted above about how this phrase, which originated from Re Flesch QC, should be read.  After all, there is no other court than the Court of Final Appeal itself, which is more concerned with its power of final adjudication and which is a more suitable court to deal with it.

21.  This brings me to the submission on behalf of the Bar that as a matter of law, the issues raised can never reach the Court of Final Appeal, given that the Court of Appeal’s decision on an application for leave to appeal is final: section 14AB of the High Court Ordinance.  Even assuming that this proposition is right for one moment, I am not sure whether this is not a point which actually favours admission, as the Court of Appeal, in the suggested scenario, would for all practicable purposes be playing the role of a court of final appeal, thus suggesting that it should have the best assistance possible whether from the local Bar or overseas.  In any event, Mr Mok has suggested in his oral submissions several possible ways by which the issues may eventually reach the Court of Final Appeal as a matter of legal procedure – one is not here assessing the likelihood of the case going up to the Court of Final Appeal as such.  Sitting at this court, it is neither desirable nor necessary for me to express any views on these suggested possibilities, save to mention that one of them is this : that the Court of Appeal finds in favour of CIF in the constitutional challenges at the adjourned leave hearing and considers that this therefore gives itself the jurisdiction to hear the case, gives leave to appeal on its merits, then hears the appeal proper and makes a decision accordingly.  In that scenario, the losing party may, subject to obtaining leave to appeal from the Court of Appeal, take the case to the Court of Final Appeal.  Or, the losing party may have to go to the Court of Final Appeal to get leave to appeal.  In either case, the Court of Final Appeal will be faced with the question of whether there is jurisdiction to entertain the appeal or the leave to appeal application. Mr Pao, for the Secretary, very correctly in my view, disagreed with Mr Bartlett’s submission that as a matter of law there is no way that the issues in question can reach the Court of Final Appeal on the present facts.

22.  I of course realise that the matter is only before the Court of Appeal, not the Court of Final Appeal itself.  But, in my view, if other considerations, when taken together, should suggest that admission should be granted, the earlier the court – and afterall, one is not talking about the Court of First Instance, but the Court of Appeal itself which is an important, albeit intermediate, court of appeal whose judgments the Court of Final Appeal attaches significant weight to – has the benefit of overseas counsel’s assistance, the better.

23.  As regards the complexity or difficulty of the arguments involved, Mr Mok, very fairly, did not go so far as to suggest that they are of “unusual” difficulty and complexity.  Nonetheless, they are not straightforward, and by no means easy. I agree.  The Court of Final Appeal has given definite guidelines on how an article 82 challenge may be resolved.  The proportionality test is a well established test, which has been applied to a variety of circumstances.  Both the courts and local counsel have got substantial experiences in applying the test.  It does not follow, however, that the application of the test is easy.  In this regard, Lord Pannick, given his vast experience in constitutional cases, including many cases concerning the Basic Law and the Hong Kong Bill of Rights, many of which involved the application of the proportionality test, is, in my judgment, in a good position to bring that vast experience of applying the proportionality test to different situations to bear for the court in assisting it to resolve the present constitutional issues.  That, incidentally, answers the criticism made by Mr Bartlett that Lord Pannick does not appear to possess much expertise in arbitration matters.  As Mr Pao pointed out in oral submissions, finding counsel, whether local or overseas, who has dual expertise in a constitutional challenge, that is, expertise in constitutional law and expertise in the underlying subject matter which gave rise to the constitutional point in the first place, would be ideal, but is neither easy nor necessary in the present context.

24.  In Re Pannick QC, HCMP 2475/2013, 18 October 2013, an admission case, the constitutional context which gave rise to the underlying Basic Law challenges was election law.  The importance of the points raised was not in doubt, but submissions were made that the application of the proportionality test was by no means unusually difficult or complex, and the applicant (who happens to be Lord Pannick also) did not have specific expertise in election law.  This was what Stock VP (as he then was), sitting as an additional judge of the Court of First Instance, said in response to those submissions:

“20. That the case involves the determination of important legal principles which will have a significant impact on the development of the jurisprudence of this Region is self-evident and, again, is not in issue. In so far as it is said that the law of proportionality is well-settled and is familiar to local counsel, that is true. But I agree with Mr Pao’s suggestion that the question of its application to the issues raised by this judicial review will hardly be an easy or well trodden path and it is undoubtedly the case that in the complex argument which tackles that issue, the considerable experience of this applicant will add a material dimension to the presentation of the case. Some of the cases cited in the Notice of Application are cases decided by the European Court of Human Rights with the jurisprudence of which Court the applicant is intimately familiar. And there is an unusual added dimension, which is this: the applicant not only brings to the Bar table, in the present context, the benefit of his experience in the conduct of constitutional cases in other common law jurisdictions and before the European Court but it is an experience which combines with his past exposure, by virtue of other landmark Hong Kong constitutional cases in which he has appeared as advocate, to the intricacies of the Basic Law and to Hong Kong’s constitutional setting.

21. It was said at one stage that the applicant is not a specialist in election law.  I note from an Affirmation filed the day before the hearing of this application that he has some, though apparently limited, exposure to election law in other jurisdictions but at the end of the day I do not consider this in the context of the whole to be a determining factor.  It is said too that there have been a number of election law‑related cases in Hong Kong which have been conducted by local counsel; illustration that no special dimension is added in this case by the importation of overseas counsel.  Yet it seems to me plain that each application for the admission of overseas counsel is case-specific and that there is a material difference between those election cases and this, in that they were cases which had not the breadth of ramifications of this case.”

25.  Of course, each case is different, and what was said by the learned judge who has tremendous experience in constitutional law and human rights cases, was in relation to the facts and arguments in that case.  But, in my view, what one can fairly say in the present case is first, the proportionality test, though well established, is very often not straightforward in its application, and the present case is not going to be an exception.  Secondly, given his experience, Lord Pannick will be in a good position to assist the court in spotting and formulating relevant considerations and in giving appropriate weights to all relevant considerations.  Thirdly, whilst it would be ideal and perfect if Lord Pannick also possesses great expertise and experience in arbitration law, any deficiency which he may suffer from in that regard could be remedied by having someone from the local Bar or in the legal team of CIF who has the necessary expertise in arbitration matters.  The real contribution, so far as I can see, which Lord Pannick can make to the case is in terms of his vast experience in applying the proportionality test to different circumstances.

26.  The above quotation from Stock VP’s judgment also deals with another point made on behalf of the Bar, namely, that the previous cases involving article 82, including the two Court of Final Appeal cases referred to above, were all done by local counsel.  As has been explained, what one is looking for in the overseas counsel is that he is someone “of a sufficiently high quality and standing to be in a position to make a useful contribution” to the determination of the important question involved.  Granting the admission is not equivalent to saying that there is nobody in the local Bar who is able to do the case competently or even skilfully.  And the question of public interest cannot be answered by whether in a previous case, the parties involved saw fit to instruct or seek the admission of overseas counsel to represent them.

27.  In the present case, one also bears in mind that local senior and junior counsel will be involved and it is in the public interest that there should be cross-fertilisation with eminent counsel from overseas.  There is no question of shutting out local counsel or inhibiting the development of a strong, independent local Bar.

28.  As regards delay, the matter has been explained in the latest evidence filed with the court.  I agree with Mr Mok’s (and Mr Pao’s) rejection of Mr Bartlett’s criticisms.  It may be that the matter could have been proceeded with more speedily, but whatever delay there may have been, it is of little weight in the present case.

29.  There are other relatively minor points raised in submissions; they do not merit specific mention here, save to say that they have all been borne in mind.

Disposition

30.  Having considered the entire circumstances and all relevant factors, I have come to the conclusion that the factors favouring admission outnumber and outweigh those against.  The application is therefore granted.

31.  I thank counsel for their helpful assistance.