RE MR. EBEN HAMILTON QC

HCMP 230/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 230 of 2008

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J U D G M E N T

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1.  The Applicant seeks admission under section 27(4) of theLegal Practitioners Ordinance, Cap. 159 to represent the appellants in an appeal (CACV 398/2007) fixed before the Court of Appeal on 24 April 2008.

2.  The appeal is from the decision of Mr Recorder Jat Sew Tong SC in Noble Power Investments Ltd & Kyobi Printing Co Ltd v Nissei Stomach Tokyo Co Ltd [2008] 1 HKLRD 134 in which the learned Recorder set aside leave to serve out of the jurisdiction on the basis that Japan (the defendant in the case is a Japanese company) was the more appropriate forum (than Hong Kong) to entertain the dispute between the parties.  This was an application of the requirement in RHC O.11 r.4(2) that it must be shown by the party seeking leave that the case is a proper one for service out of the jurisdiction.

3.  In order to understand the principal factors on which the Applicant relies to seek admission (namely that the appeal involves a point of unusual difficulty and complexity, and is one that would involve the determination of principles that might impact substantially on the development of Hong Kong law), it is important to set out briefly the facts going into what is said to be the main issue in the appeal.

4.  At the heart of the action is an agreement between the plaintiffs (both BVI companies) and the defendant (as I have stated, a Japanese company).  The agreement dated 5 June 2006 concerned a plasterboard waste recycling business intended to be carried out in Japan.  The details of the agreement are not relevant for present purposes.  It suffices to say that the plaintiffs allege that the defendant committed a repudiatory breach of the agreement which has been accepted.  Material, however, for present purposes is the choice of law and jurisdiction clause in the agreement : -

“27.1   This Agreement shall be construed and governed in accordance with the laws of Hong Kong and the parties hereto submit to the non-exclusive jurisdiction of the courts of Hong Kong

           …..

27.4    Nothing contained in this clause shall limit the right of any party to take any suit, action or proceedings arising under this Agreement against the other parties in any other court of competent jurisdiction, nor shall the taking of any suit, action or proceedings arising under this Agreement in any one or more jurisdictions preclude the taking of any suit, action or proceedings arising under this Agreement in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of that jurisdiction.”

5.  Having issued the writ in Hong Kong, the plaintiffs then sought leave to serve out of the jurisdiction (relying on RHC O.11 r.1(1)(d)).  This was obtained by order of Master B Kwan and service was duly effected.  The defendant then applied to have the order giving leave set aside on the basis that it could not be shown that Hong Kong was clearly and distinctly the appropriate forum and that instead, Japan was.  The challenge was, in other words, based on forum non conveniens arguments under the umbrella of RHC O.11 r.4(2).

6.  The issue that the Applicant points to in his contention that a point of unusual difficulty and complexity, and of great importance, arises is the proper approach of the court to non-exclusive jurisdiction clauses such as clause 27.1 of the agreement.  In arriving at his decision, the Recorder analyzed the numerous authorities, both Hong Kong (Court of First Instance decisions) and English (mainly High Court decisions), and came to the view, which was the view stated in the Hong Kong cases, that a non-exclusive jurisdiction clause had to be seen differently to exclusive jurisdiction clauses and that effectively, the presence of such a clause was only a factor that had to be weighed in the scales in analyzing the forum non conveniens argument.  This was different to the English approach which was to regard the presence of a non-exclusive jurisdiction clause as having about the same effect as an exclusive jurisdiction clause.  The Recorder held in the circumstances that Japan was clearly the more appropriate forum.  He was also, however, prepared to arrive at this view even applying the approach of the English courts (see paragraph 64 of the judgment).

7.  I have to say that I am not persuaded in the circumstances of the present case that there will necessarily arise in the appeal in April a determination of the point as to the appropriate weight to be attached to the existence of a non-exclusive jurisdiction clause (which incidentally I do accept to be a point that would involve the determination of principles that might impact substantially on Hong Kong law).  I have already alluded to the possibility that the question of the appropriate forum could well be determined whichever approach (whether the Hong Kong or the English one) is adopted since the case (as with many in this field) is fact sensitive and dependent on the precise wording of the relevant contract.

8.  Nevertheless, even on the assumption that the appeal will necessarily involve the determination of a point of unusual difficulty and complexity, or a determination of principles that will impact substantially on Hong Kong law, these factors, although lending support to an application for the admission of overseas counsel, are not in all cases decisive.  The court must also in such situations consider the pool of available counsel in Hong Kong in order to assess whether the public interest would be served in admitting overseas counsel.  In Re McGregor QC [2003] 3 HKLRD 585 at 591 the court said this : -

“I should just say something more about the aspect of suitability of local counsel. It is clear from the passage just set out that it is not necessary to demonstrate that no senior counsel exists in Hong Kong who would be able to do the case. That must be an extremely rare situation anyway. However, where the degree of difficulty or complexity is such that the court is of the view that specialist counsel would be highly desirable, the pool of suitable local counsel will necessarily be limited. In the past, complex cases involving tax or patent law have come under this category. The question is not so much whether counsel in Hong Kong is able to do the case competently or even skilfully, but whether the specialist overseas counsel can add a significant dimension to a very complex or difficult case. Having said this, I think it must also be recognised that in other cases of unusual difficulty or complexity, the pool may be larger and the court may be less receptive to the admission of overseas counsel. These involve matters of degree from case to case.”

9.  That passage highlights the importance of considering the pool of available leading counsel in Hong Kong in relation to the matter for which admission is sought.  In specialized fields involving issues of unusual difficulty and complexity or points that would significantly impact on the development of Hong Kong law, where the pool of available leading counsel is small and the overseas counsel is able by reason of his expertise to add a significant dimension to the case, admission will more readily be granted.  In other areas where the pool is large, the ability of overseas counsel to add a significant dimension to the case may well be very much less a factor in favour of admission.  As Re McGregor QC makes clear, matters of degree are involved from case to case and the court must be sufficiently flexible in its approach to applications for admission.

10.  In the present case, even accepting that the point regarding the weight to be properly attached to a non-exclusive jurisdiction clause is a complex and important one which will have to be determined by the Court of Appeal, I am unable to accept the submissions made on behalf of the Applicant that the pool of available leading counsel in Hong Kong is so small that inquiries of only seven leading counsel have been made.  I would have thought that there are at least twenty more leading counsel in Hong Kong who are in the pool of suitable counsel.

11.  For these reasons I would dismiss the application.

12.  As a postscript, I would like to emphasize the need in applications under section 27(4) of the Legal Practitioners Ordinance to follow the procedural requirements set out in the Barristers (Admission) Rules Cap. 159AA.  In the present case, none of the requirements of section 2(4) of those Rules was complied with.  No affidavit was filed in support of the application.  The factual matters that needed to be placed before the court were done so by way of the Certificate of junior counsel.  This Certificate does not (nor is its purpose intended to) constitute evidence.  Even the Applicant is not properly identified although in this respect, it has to be said that the Applicant is a well-known and eminent Queen’s Counsel who has appeared many times in our courts.