RE MR EDWARD FITZGERALD, QC

HCMP 1545/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1545 OF 2010

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REASONS FOR DECISION

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1.  This is an application for the admission of Mr Edward Fitzgerald QC to conduct Mrs Kissel’s retrial before Macrae J commencing 10 January 2011 with 50 days reserved. The first trial had taken 67 days, followed by 11 days in the Court of Appeal, and 6 days in the Court of Final Appeal. This application was heard together with the application by the Secretary for Justice for the admission of Mr Perry to prosecute the retrial.

2.  I have granted both applications at the end of the hearing.

3.  It is quite clear that once it is decided that the Secretary should be permitted to instruct overseas leading counsel to conduct the prosecution, this application should be granted too.  In Re Collingwood Thompson QC, HCMP 2190/2007 (unreported, dated 14 November 2007), Ma CJHC (as he then was) said:

“9. … it is a relevant factor in the present case that in the same proceedings overseas counsel has been admitted for another party. This is particularly so since criminal proceedings are involved. It would be invidious if it should be thought that while one party could get the benefit of overseas counsel, other parties cannot. This is not in any way to downplay the status or ability of Hong Kong counsel but it is quite simply a matter of fairness and perception of fairness. In the circumstances of the present case, I think it is decisive. ”

4.  In any event, I have no doubt that this is a case where admission of overseas leading counsel should be permitted because unusually difficult and complex issues as to fact and law would be involved.  Both the Court of Appeal and the Court of Final Appeal in their respective judgments described the evidence as complex.

5.  As for the law, at the retrial, the defence will include self-defence, provocation and diminished responsibility.  Mrs Kissel will rely on battered woman's syndrome in support of her defence of provocation and diminished responsibility.  A defence based on battered woman's syndrome is novel here.  Mr Fitzgerald, however, has valuable experience in the area.

6.  Mr Chan, for the applicant, also submitted that the law on provocation is in itself difficult and the court at the highest level has disagreed as to the correct approach to be adopted on the nature of the characteristics to be taken into account when assessing the objective limb of the provocation defence.  Attorney General for Jersey v Holley [2005] 2 AC 580.

7.  The law in Hong Kong in relation to provocation is well settled, however, given the strong dissent in Attorney General for Jersey it is not inconceivable that in a suitable case the Court of Final Appeal might wish to re-examine the law.  Be that as it may, it is clear that directions to the jury on provocation is not straightforward and must be custom-built to cater for the particular circumstances of the case.

8.  Mr Nicholas Cooney, SC submitted that it has not been explained why the applicant should not instruct any of the leading counsel who had appeared for her at the first trial or the appeals.  Mr Derek Chan told me that he was informed by solicitors acting for Mrs Kissel, that it was invidious to go into the reasons.  Mrs Kissel was represented by different leading counsel at trial and in the appeals.  Mr Michael Blanchflower, SC, had represented the solicitors for the applicant on an issue which arose at trial.  Mr Daniel Marash, SC, also had represented the solicitors for the applicant, on an issue which arose at trial.  Although I would have preferred to be told the reasons, I do not regard failure to do so as a sufficient reason in the circumstances of this case to refuse the application.

9.  I understand Mrs Kissel has applied for a permanent stay of the prosecution.  I have no doubt that Mr Fitzgerald should be admitted for that application as well as for any pre-trial review (“PTR”).  I do not believe Mr Cooney seriously suggested that Mr Fitzgerald should not be admitted for any PTR.  As for the stay application, it is obviously reasonable for Mrs Kissel to wish to be represented by leading counsel.  It will mean duplication of costs and effort if a local leading counsel has to be instructed for that application. 

10.  For these reasons, I have granted the application.