RE JOHN VANDELEUR MARTIN QC

HCMP31/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 31 of 2003

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J U D G M E N T

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1. This is an application by Mr John Vandeleur Martin QC for admission as a barrister in the High Court of HKSAR for the purposes of advising and appearing on behalf of Annabell Kin Yee Lee, Christopher Kin Pan Lee and Samuel Tak Lee in HCA No.9522/1997 and on behalf of Samuel Tak Lee in Caveat Notice No.358/1997, HCA No.12428/1998, HCMP No.299/1999 and HCMP No.457/1999 at the pretrial reviews fixed for hearing on 29.1.2003.

2. The Bar Association opposes this application. The Secretary for Justice has indicated that she has no objection in this matter.

3. On 17.12.2002, Mr Martin's application for admission for the purposes of advising and appearing on behalf of Samuel Tak Lee and his two children in these proceedings at the trial was not opposed and his application was granted for such purposes only. These trials are scheduled to commence on 17.2.2003.

4. No reason to justify the admission of Mr Martin to appear at a pretrial review has been given in the letter of Denton Wilde Sapte, the applicant's solicitors, to the Bar Association dated 20.12.2002 seeking consent to the application.

5. Mr Hughes of Denton Wilde Sapte in his third affidavit in support of the application states that two pretrial reviews have already taken place on 12.9.2002 and 17.12.2002. In these two reviews, Mr Lee was represented by Mr Russel Coleman of junior counsel. At the hearing on 17.12.2002, Madam Justice Chu ordered the question of whether the trials of the actions and the caveat notice should commence on 17.2.2003 and the order of the trial be reserved to the pretrial review on 29.1.2003. The parties were also ordered to endeavour to agree on the calling of expert evidence on the Chinese term "女兒們" failing which application be made to the court as soon as practicable. The defendants in HCA9522/1997 should serve their lists of issues before the next pretrial review. The plaintiff's application in the Removal Action for specific discovery relating to estate account documentation was adjourned on 17.12.2002 and it was subsequently fixed to be dealt with at the pretrial review on 29.1.2003.

6. Mr Hughes states the reason for requesting the applicant's admission to appear at the pretrial review is that there are complex and overlapping issues in the actions and these justify instructing senior counsel and junior counsel for the pretrial review. A further reason is that the applicant has carried out a substantial amount of trial preparation work and is now in the course of detailed preparation for the trial on 17.2.2003 and it is possible that he would have arrived in Hong Kong by 29.1.2003 to complete the final stage of his preparation for trial. Mr Hughes also states that at the time of the original admission of the applicant, it was not anticipated that there would be a separate and important pretrial review together with interlocutory applications to be heard just three weeks in advance of the trial.

7. Mr Coleman for the applicant submits that in addition to the issues mentioned above, there are case management issues to be dealt with at the pretrial review. He submits that the other parties engaged senior counsel to attend the previous pretrial reviews indicates the importance and complexity of the issues involved in the forthcoming pretrial review.

8. The general principles on admission of overseas counsel are stated in Re Flesch [1999] 1 HKLRD 506 and the ultimate consideration is one of public interest. The principle as regards the admission of overseas counsel for appearing in interlocutory matters is, as stated in Re Holgate [2001] 2 HKLRD 425, where the outcome of the interlocutory matter could dispose of the action and appeal process is very likely to be engaged and there is no objection to the admission, overseas counsel may be considered for admission for interlocutory matters.

9. Every case must in the end be considered in its special circumstances. The fact that overseas counsel has been admitted to conduct the trial proper of the case does not necessarily mean that he should also be admitted to conduct interlocutory proceedings relating to the trial. Also, the fact that one party to the case has seen fit to engage senior counsel for their own purpose in the pretrial reviews does not mean that it is in the public interest to allow overseas counsel to be admitted for the other side as well.

10. No doubt there are complex issues in the actions and caveat notice but these are not to be dealt with at the pretrial review on 29.1.2003. The issues likely to arise at the pretrial reviews on 29.1.2003 are whether the trials are to commence on 17.2.2003 and in what order the trials should take and the direction as to expert evidence. The application for specific discovery of estate account documents to be heard at the same time is unlikely to be of such particular difficulty that it cannot be adequately handled by competent local counsel. In any case, the outcome of these issues will not result in the disposal of the actions and caveat notice and will very unlikely engage the appeal process. Case management matters are common to all trials and I am not convinced that in the present case, the matters involved are so complex and important that they cannot be adequately handled by competent local counsel and if the parties are only represented by local counsel they have not been adequately legally represented. It may be convenient for the pretrial review on 29.1.2003 to be handled also by the applicant who could have been in Hong Kong by 29.1.2003, but that is not the criteria for consideration in the present application.

11. In the circumstances of the case, it is not appropriate for the application to be granted. The application is refused.