GILEAD COOPER QC v. SECRETARY FOR JUSTICE AND ANOTHER

HCMP 184 /2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 184 OF 2011

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Hon Hartmann JA:

Introduction

1.  By notice of motion dated 9 February 2011, the applicant has sought admission under s.27(4) of the Legal Practitioners Ordinance, Cap. 159, to appear as counsel before the Court of Final Appeal to represent Tam Mei Kam, the appellant, who, having been unsuccessful in the Court of First Instance and in the Court of Appeal, will be seeking declarations that a last will and testament made by her deceased daughter and a trust created by her have no validity and that accordingly her daughter died intestate.  The appeal before the Court of Final Appeal is set to be heard on 9 May of this year.

2.  The application by Mr Gilead Cooper QC has been opposed by the Hong Kong Bar Association.  In addition, counsel representing the Secretary for Justice, who has appeared to render such assistance as this Court may find useful, has expressed concerns as to the degree to which the public interest will be served by allowing the application.

Background

3.  The appellant’s daughter, Mui Yim Fong, was a well-known singer and actress.  In about 2001, she was diagnosed to be suffering from cancer.  In 2003, as her physical condition worsened, Ms Mui first consulted a close friend, Mrs Sheila Ho, and thereafter an experienced professional in the field of estate management in order to provide for the distribution of her estate after her death.  In particular, so the evidence revealed, Ms Mui wished to provide for her mother, the appellant, but was concerned as to her mother’s ability to deal prudently with a large capital sum coming from her estate.

4.  The experienced professional in whom Ms Mui placed her trust was Mrs Doris Lau who the trial judge described as being “a highly experienced private trust professional, having worked in HSBC 21 years.”

5.  As a result of discussions with Mrs Lau, at the end of October 2003, Ms Mui gave instructions that her assets should be placed into a discretionary trust, the Karen Trust, the trustee being HSBC International Trustee Limited, an offshore trust established under the laws of the Cayman Islands.  The final repository of the trust was to be the New Horizon Buddhist Association.

6.  As the trial judge found, Ms Mui gave instructions as to how her assets were to be distributed under the trust and these instructions were “meticulously recorded” in a file note prepared by Mrs Lau who put those instructions into effect.

7.  Approximately a month later, at the end of November 2003, having just returned to Hong Kong from Japan, Ms Mui was admitted to hospital.  She was to remain there until her death on 30 December 2003.

8.  On her return to Hong Kong, final instructions were given by Ms Mui for the creation of the trust and for relevant tax advice to be received from her accountants.  In addition, instructions were given for the preparation of a last will and testament which was prepared by HSBC’s probate department.

9.  Mrs Ho, Ms Mui’s close friend, testified that Ms Mui always intended that the trust and the will were to be “twin sisters”.  In this regard, the trial judge recognised that, concerning the exact terms of the will, there was certain confusion in the initial instructions given to the probate department.  However, he found that, with the knowledge and consent of Ms Mui, these were resolved.  The final documents were ready for execution on 3 December 2003 and they were signed by Ms Mui in hospital on that day.

10.  As to the mental capacity of Ms Mui, her doctor, Dr Peter Teo, testified that when the legal documents were explained to her and executed by her, Ms Mui was of a sound and logical mind, with good mental capacity to understand and execute the documents.  The trial judge was satisfied that Ms Mui’s mental capacity “to make the trust arrangement” had been duly established.  He was further satisfied that Ms Mui “knew and approved of the will and trust arrangement.”

11.  Of central importance for this judgment, the trial judge made the following findings in respect of the execution of the documents.

“89. Mrs Lau, who quite plainly possessed an excellent memory, gave detailed evidence on what happened that morning. She first explained the contents of the trust deed to the deceased. She explained it clause by clause although not line-by-line. What is important for our purposes is that the deceased, according to all those present, followed the explanation well and gave appropriate responses. She asked pertinent questions and reacted appropriately in words, facial expressions and body languages. After the explanation, the deceased executed the trust deed and Mrs Lau signed the same as a witness. Then Mrs Lau explained the contents of the will to the deceased. Following explanation, the deceased executed the will in the presence of Dr Teo, Mrs Lau and Mrs Ho. Dr Teo and Mrs Lau then signed the will in each other's presence as attesting witnesses. The process took about 45 minutes and throughout Dr Teo was present although he had to leave the ward on two or three occasions to answer calls. Then Dr Teo left to attend to some other business and only the three ladies remained in the ward. Mrs Lau continued to explain the trustee memorandum to the deceased. Again from the deceased’s responses as observed by Mrs Lau (and corroborated by Mrs Ho), the deceased fully followed and agreed to the contents of the trustee memorandum. The trustee memorandum was not required to be signed by the deceased, who however signed a number of related trust documents.”

12.  In his judgment, the trial judge went on to explain in detail how various questions were asked by Ms Mui in relation to different provisions of the trust, demonstrating that she was fully aware of the contents of the trust deed and the nature of those contents.  By way of example, Ms Mui noticed that the name of one of the beneficiaries of the trust did not appear in the third schedule of the trust deed where the beneficiaries are named.  As the judge said: “… she felt relieved evidently when she was told that the name of Eddie Lau would appear in the trustee memorandum”.

13.  The judge found that Mrs Ho, Mrs Lau and Dr Teo were all “honest, credible and reliable witnesses”.  In this regard, he said:

“… I have borne in mind not only their demeanour in court, but have also carefully considered the contents of their oral evidence and the documents made by them (including witness statements and so forth), other evidence including other witnesses’ evidence as well as the documentary evidence that has been adduced, the surrounding circumstances of the case, as well as the inherent probabilities and improbabilities of their evidence.”

14.  The Court of Appeal observed: “On such evidence, it does not surprise that the learned judge found for the validity of the Karen Trust as well as the will.”  The Court of Appeal had no reason to doubt any of the material factual findings of the trial judge and agreed with his conclusion that Ms Mui “knew and approved of the contents of the will and the trust arrangement.”

15.  At trial and before the Court of Appeal it was argued that a particular clause of the trust – Clause 33 – conferred upon HSBC “excessive or unnecessary power”. This point did not find favour.

The grounds of application

16.  In the supporting affirmation of Mr Lennon Yeung, the appellant’s solicitor, it has been asserted that the public interest will be served by permitting Mr Cooper’s admission.  In this regard, three grounds have been advanced.  They may be summarised as follows.

17.  First, the case is one of unusual difficulty and complexity and involves the resolution of “legal issues” that will, or may, have a substantial impact on the development of our law.

18.  Second, the appeal being before the Court of Final Appeal and Mr Cooper being a senior counsel who is an eminent practitioner in the field of probate law, he will be able to contribute significantly to the development of the jurisprudence of our highest court.

19.  Third, and perhaps most importantly, the appellant has been unable to find a local senior counsel of appropriate skill and experience at a fee that is affordable to her.  Mr Cooper, however, who has had previous involvement in this litigation by way of supplying the appellant with an opinion on the merits of her appeal, is prepared to act as counsel for her at a fee that represents a significant discount on the lowest fee estimated by local senior counsel.

The first and second grounds

20.  The three first two grounds, to a substantial extent, merge with each other and I have dealt with them as one.

21.  At the outset, let me say that the professional eminence of Mr Cooper is in no way doubted.  I have also taken into account that he appears to be the author of the new approach to the evidence that is to be argued before the Court of Final Appeal.  This second fact, however, does not greatly advance the application.  There is nothing in the relevant legislation prohibiting a Hong Kong person from obtaining legal advice from overseas counsel.  But the fact that overseas counsel has already been briefed and has rendered advice which is considered forensically sound is not to be viewed as a trump card: see Re Badenoch QC [1999] 2 HKLRD 209, at 213.

22.  A matter of far greater persuasiveness is the fact that the appeal which is to be heard in May of this year is to be before the Court of Final Appeal.  In Re Pannick QC [2004] 1 HKLRD 950, Ma JA, as he then was, emphasising that the Court has a pivotal role in the development of the common law in Hong Kong, said that, when a hearing before the Court of Final Appeal is involved, an application to admit overseas counsel to appear before the Court is more likely to be granted.  However, this is subject to the provision that the matter to be argued in the appeal hearing is one that is “substantial” and in respect of which overseas counsel is able to make a significant contribution by way of his special expertise.

23.  Mr Arthur Yip, who has appeared in support of the application, has accepted that, contrary to the assertion made in Mr Yeung’s supporting affirmation, the issues to be argued before the Court of Final Appeal will be essentially factual in nature.  Mr Yip has acknowledged the difficulties that will face the appellant in this regard.  As was said by Bokhary PJ in Hong Kong Kam Lan Koon Ltd v Realray Investments Ltd (2010) 13 HKCFAR 215, “the Court’s well-known practice is not to review concurrent findings of fact save in special circumstances.”  Mr Yip has submitted, however, that special circumstances do exist in the present case.

24.  In the present case, he has said, the fact that Ms Mui had only limited command of the English language and was unable to read either the trust document or the will, both of which were written in English, reveals that she had to rely entirely on an oral interpretation of those documents.  This however was not mentioned at all in the judgment of the trial judge nor was it mentioned in the judgment of the Court of Appeal.  It was however a point of primary importance because, when the maker of a will and creator of a trust are wholly dependent on a third person to explain the contents of the document, the usual presumption of knowledge and approval does not apply.  Put simply, matters have to be viewed in a different light.

25.  In support of this premise, Mr Yip has argued a number of matters.  They may be summarized as follows:

26.  First, Mrs Lau, who explained the documents to Ms Mui, was neither a qualified interpreter nor lawyer.  As such she lacked the ability to explain complicated legal matters accurately and in a way that would be readily understood.  In this regard, for example, Mrs Lau’s lack of legal expertise resulted in a failure to notice provisions that made no sense.  The reasons given by Mrs Lau for many of the provisions contained in the two documents, in particular, the extensive discretionary powers conferred on the trustees, were confused and may well have been misguided.

27.  Second, Mrs Lau was not independent.  She was an employee of HSBC.  Her advice was lacking in objectivity and, in some important respects, was incorrect.  In this regard, for example Mrs Lau glossed over Ms Mui’s legitimate concerns, reassuring her instead of warning of risks and explaining them rationally.  Mrs Lau gave no explanation of, or advice on, the choice of Cayman law which, submitted Mr Yip, was arguably wholly unsuitable to Ms Mui’s circumstances and real desires at that time.

28.  Third, Mrs Lau appears to have been unaware of the fact that the provisions contained in clause 33 of the trust were highly unusual and arguably avoid.  As a direct result, she failed to give Ms Mui appropriate advice.

29.  In summary, the criticism made is that, while both the trial court and the Court of Appeal may have paid close attention to the fact that both the trust document and the will were explained to Ms Mui, and while Ms Mui may have understood that explanation, no attention was paid to the quality of that explanation.  If that had been done, it would have been appreciated that the quality of the explanation was so lacking that it amounted to materially misleading Ms Mui.

30.  As a consequence, said Mr Yip, there is a strong argument that Ms Mui did not properly understand or approve the will or the trust and that, if it had been properly explained to her, she would not have signed it in the form that it was in.

31.  In response, Mr Khaw, for the Hong Kong Bar Association, has submitted that, in truth, the appellant’s case is a typical probate dispute which is common enough in Hong Kong and, on analysis, is not of unusual difficulty or complexity.  The matters to be argued in the Court of Final Appeal are not therefore ‘substantial’.

32.  If, as Mr Yip has argued, Ms Mui’s limited knowledge of English and Mrs Lau’s lack of expertise and independence do amount to an entirely new point, said Mr Khaw, the Court of Final Appeal will refrain from entertaining it unless special circumstances are demonstrated and fairness to the other party ensured.  As was said by Bokhary PJ in Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356, it was only in very exceptional circumstances that a final appellate court would consider a point that was not pursued in the intermediate appellate court.

33.  In any event, Mr Khaw has said, the issues raised still focus on the well-recognised question of whether Ms Mui understood and approved the contents of the documents or whether, because the quality of the explanation was so lacking, she failed to do so.  In that regard, it is to be remembered that Ms Mui had made her intentions clear as to how the trust should operate and how her will and the trust should be compatible with each other.  She was not merely confronted with the documents as a fait accompli but had been consulted as they were in the process of preparation.  

34.  In considering the first ground, I confess that I have a number of difficulties with Mr Yip’s submissions.

35.  Assuming that the Court of Final Appeal allows an entirely new point to be argued before it, one seemingly not raised before the Court of First Instance or the Court of Appeal, and one that requires the Court to review clear concurrent findings of fact, it seems to me that the issues that will then fall for determination are neither of real complexity nor of great difficulty.  First, as has been conceded, the issues will be essentially factual.  While a fresh approach to the evidence is to be argued before the Court of Final Appeal, that of itself, does not mean that the issues will be complex or difficult or that, by way of a general description, they will constitute a set of submissions that are ‘substantial’. 

36.  I do not suggest that the issues of fact to be resolved before the Court of Final Appeal will be simple.  As I have said, a new approach to the evidence will be argued and that itself, being based on a close analysis of what was said during the course of the trial by the various witnesses, will present its own difficulties.  But it is to be remembered that a limited number of witnesses were called and the thrust of their evidence was fairly straightforward.  The analysis of the factual evidence must be limited by these factors.

37.  During the hearing of the application, I asked Mr Yip if there were difficult, novel or controversial issues of law that would arise if the Court of Final Appeal was to find that Ms Mui had been misled as to the meaning and effect of the documents that she executed to the extent that it could be said that she had not properly understood or approved of them.  Mr Yip was unable to point to any such issues in respect of which the admitted expertise of Mr Cooper would be of significant assistance.

38.  In Re Flesch QC and Another [1999] 1 HKLRD 506, Chan CJHC, as he then was, in looking to the importance of drawing on the talents and experience of lawyers, judges and jurists from other common law jurisdictions, commented (at 513I):

“In my view, since it is in the public interest to develop our own jurisprudence which can enjoy international recognition and reputation, overseas counsel with sufficiently high quality and standing may be admitted to appear in our courts in cases involving the determination of legal principles which may have an impact on the development of our jurisprudence. Such cases would be cases which, quite apart from the size of their claims, are likely to go all the way up to the Court of Final Appeal for a determination of some principles of law.”

39.  The judge continued as follows as to the relevant guideline:

“It is clear that the burden is always on the applicant to show that the case in which he is briefed to appear is a suitable case which involves the determination of legal principles which may have an impact on the development of local jurisprudence…”

40.  It is, of course, fundamental that findings of fact will determine the nature of the legal principles to be applied.  However, in the present case, as I have said, nothing was put before me to indicate that, even if the Court of Final Appeal was prepared to set aside the concurrent findings of fact made by the trial court and the intermediate appellate court, it would then demand a determination of difficult, novel or controversial issues of law and by that means have an impact on the development of Hong Kong’s jurisprudence.

41.  In respect of the first and second grounds, therefore, while, among other matters, I have given due weight to the fact that Mr Cooper’s representation is being sought to appear in the Court of Final Appeal, and while I have also given due weight to the fact that Mr Cooper is eminent in the field of probate, I am not persuaded that the appeal will involve matters of unusual difficulty and complexity in respect of factual analysis or, more importantly in seeking to advance principles of law.  Nor am I satisfied that, by way of overview, it can be said that the matters to be argued will be ‘substantial’.

The third ground

42.  Considerable emphasis has been placed on the third ground, the submission being that the appellant has been unable to find a local senior counsel of appropriate skill and experience at a fee that is anywhere near affordable to her.  Mr Cooper, however, who has already given advice in respect of this litigation, is prepared to act as her counsel for a fee significantly lower than the local estimates.

43.  As to the appellant’s financial position, in his supporting affirmation Mr Yeung explained that she has already expended a sum of approximately $6 million on the litigation, a good part of that, a sum in excess of $2 million, still remaining unpaid.  She is now 87 years of age and her only significant source of income is a sum of $120,000 per month which is paid to her by the Karen Trust.  No indication of capital assets has been given.  That therefore is the extent of the details of her worth and the extent therefore of the details that must be provided in order for there to be some by barometer of affordability.

44.  The guidelines contained in Re Flesch QC and Another (cited above) state that where it is alleged that there is no local counsel of appropriate skill and experience who is available at a fee which is within the range of the client, information should be supplied as to the attempts made to look for available local counsel, the difficulties encountered and the results of such attempts.

45.  Regrettably, the burden being on the appellant to make good her case, the information supplied by Mr Yeung on her behalf has been sparse.  In his supporting affirmation, he said the following:

“Inquiries as to the fees of various local Senior Counsel for the purpose of the hearing in the Court of Final Appeal have also been made. However, having made such inquiries, [the appellant] is unable to find appropriate Senior Counsel (or indeed any Senior Counsel) who would be willing to take up the case at a fee affordable to the Plaintiff. A number of Senior Counsel have been approached and the brief fees quoted by them for the upcoming appeal … ranges from $500,000 to $700,000.”

46.  Concerning Mr Cooper, Mr Yeung said:

“Mr Cooper Q.C. had previous involvement in the case at the stage of the appeal to the Court of Appeal and also in consideration of the [appellant's] financial circumstances, was kindly agreeable to accept a brief fee affordable to the [appellant].”

47.  I am informed by Mr Khaw for the Hong Kong Bar Association that attempts have been made to obtain further information concerning the appellant’s inquiries of local counsel but no such information has been forthcoming.  That assertion has not been denied.  If it is the case that there has been a failure to supply more detailed information, it is a pity in two respects.  First, in a number of past pronouncements, this Court has encouraged liaison between the parties to try and reduce areas of conflict.  Second, as I have said, the burden is clearly on an applicant in cases of this kind to supply information upon which the court can come to a reasoned decision and not one coloured by speculation.

48.  When the question of affordability is raised, detailed information of the kind that the guidelines point to has a special significance.  In the absence of such information, it is all too easy for a litigant seeking the services of overseas counsel to distort the local figures in order to make the overseas figures seem, by comparison, that much more within the range of a litigant who is not blessed with the deepest pockets.

49.  In the result, I am left with little more than a bare assertion.  During the course of submissions, for example, I was not given a list of counsel who have already given estimates.  Nor have I been given information as to the basis on which local counsel were approached, how many were approached and the level of their seniority.  Were counsel of differing levels of seniority approached or only those who, because of their experience, would be known to charge the highest fees?  If counsel of differing levels of experience were approached, what was the information given to them which would enable them to give an estimate?

50.  As was observed by Tang VP in a recent judgment in respect of another application for Mr Cooper to be admitted (unreported judgment of 29 September 2010, HCMP 1739/2010), these kind of probate cases are unfortunately all too common in Hong Kong and there are a number of local counsel of eminence who would be available to represent litigants.

51.  Indeed, until I asked the question directly, I was given no detailed information as to how the fee to be charged by Mr Cooper compares with the estimates received from local counsel.  Mr Yip then informed me that Mr Cooper’s fees would be approximately half of the lowest estimate given by local senior counsel.  On the basis that the lowest estimate was $500,000, I take it that Mr Cooper has agreed to a fee of some $250,000.

52.  It is of course in the public interest that Hong Kong people should be adequately represented and should have the right to instruct counsel of their choice.  Where there are no suitable local counsel available at a fee that is affordable then it may be necessary to seek the assistance of overseas counsel.

53.  The problem that I face in the present case is that I have not been given sufficient information to enable me to be satisfied that there is no suitable local senior counsel available at a fee that is affordable.

54.  As to the lack of relevant information, I should add that, during the course of submissions, I raised the question of whether the application may perhaps be adjourned for a day or two so that further information could be obtained as to the level of fees estimated by local counsel.  Mr Yip did not press for any adjournment which was in any event opposed by Mr Khaw and Ms Cheung on the ground that time is limited between now and the hearing of the appeal.

Conclusion

55.  In the circumstances, the application for admission must be declined.