RE MR GEOFFREY RONALD ROBERTSON QC

HCMP 1714/2020

[2021] HKCFI 3434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1714 OF 2020

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J U D G M E N T

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1.  The applicant, Mr Geoffrey Ronald Robertson QC, seeks admission as a barrister of the High Court of the Hong Kong Special Administrative Region on an ad hoc basis pursuant to section 27(4) of the Legal Practitioners Ordinance (Cap 159). He seeks admission for the purpose of advising and representing a barrister in the barrister’s defence of disciplinary proceedings against him in the Barristers Disciplinary Tribunal (“the BDT”), and in any ancillary applications and hearings relating to such disciplinary proceedings.

2.  The Hong Kong Bar Association (“the HKBA”), which has instituted the BDT proceedings against the barrister, takes a neutral stance in relation to these proceedings.  However, the application is opposed by the Secretary for Justice, who takes the view that this is not a case in which the public interest calls for the admission of overseas counsel.

3.  The background to the underlying disciplinary proceedings goes back over a considerable period.  For present purposes, it will suffice to briefly summarise the proceedings and their background. It is, in my view, unnecessary to identify the barrister for present purposes, and the background can be stated so as to reduce the possibility of his identification.

4.  On 10 January 2020, a total of 11 complaints of misconduct were laid by the HKBA against the barrister:

(1)  Complaints 1 and 2 related to the barrister’s failure to attend a scheduled meeting with the Chairman of the HKBA which was required as a result of earlier disciplinary proceedings against the barrister, and his failure to respond promptly to requests for information concerning his reasons for non-attendance.

(2)  Complaint 3 related to a failure by the barrister to respond promptly to a request for information regarding a complaint made against him by a firm of solicitors in relation to his conduct in certain High Court proceedings before a Master.

(3)  Complaint 4 related to a failure by the barrister to respond to a request for information regarding the subject matter of certain anonymous complaints of disciplinary breaches made against the barrister arising out of his involvement in the departure from Hong Kong of a person of considerable international interest.

(4)  Complaint 5 related to a failure to respond to a request for information as to a complaint made against the barrister in respect of an alleged tenancy dispute between the complainant and the barrister.

(5)  Complaints 6 to 11 arose out of the barrister’s conduct of certain Torture Claims Appeal Board Proceedings, including alleged failures to (a) inform the Board that his instructions were limited to applying for an adjournment, and (b) act with due courtesy to the chairperson of the Board – thereby acting in a manner prejudicial to the administration of justice and which might bring the profession of barrister into disrepute.

5.  Prior to the laying of these complaints by the HKBA, the barrister and the HKBA had been in correspondence for a period of time.  The fact that the complaints which underlay Complaint 4 were made anonymously, in two (apparently identical) letters from “a large group of exasperated barristers”, has given rise to a number of the points which it is now said call for the admission of the applicant to act in the BDT proceedings.  After the laying of the complaints, there were some difficulties with the formation of the BDT, with the original chairman recusing himself, and a new chairman (but not a completely new BDT) being formed.

6.  In this application, the applicant was represented throughout by Mr Robert Connelly, who will also be acting for the barrister in the BDT proceedings. The Secretary for Justice was represented by Ms Katherine Chan and Ms Minnie Wong at the hearings on 2 March 2021 and 16 June 2021 respectively.

7.  It was common ground that the general principles applicable to an application for ad hoc admission of overseas counsel are as summarized by McWalters JA in Re Perry QC [2016] 2 HKLRD 647 at [24] to [26].  They are well-established and need not be rehearsed fully here.  In essence, the overarching question is whether it is in the public interest to admit overseas counsel in the particular case under consideration, and in coming to a conclusion on this question, the court will take into account (1) the public interest, which has different facets (such as the need to develop and maintain a strong local bar, the need for litigants so far as possible to have the right to representation of their choice, and the need for the courts to have adequate assistance from the lawyers appearing before them) which may sometimes conflict with one another, (2) the level of court in which overseas counsel would appear, (3) the importance of the legal issues to Hong Kong’s jurisprudence, (4) the complexity and difficulty of the case, (5) the availability of suitable local counsel and (6) the suitability of the overseas counsel seeking admission.

8.  In the present case, there was no dispute as to the suitability of the applicant for admission.  The Secretary for Justice quite rightly accepts that the applicant is an eminent Queen’s Counsel of very high standing, with considerable expertise in public law, criminal law and human rights law.

9.  Mr Connelly submitted that the balance favoured the admission of the applicant for the purpose of appearing in the BDT proceedings.  He relied on a number of matters in support of this submission, namely:

(1)  It was contended that the BDT proceedings would give rise to a number of legal issues of significant complexity and importance, including such questions as:

 (a)   whether the legislative framework under which the HKBA both prosecutes and judges a barrister on charges of misconduct provides an independent and impartial tribunal and is lawful under the Basic Law and the Hong Kong Bill of Rights;

 (b)   whether the standard of proof to be applied in the BDT proceedings should be the criminal standard of beyond reasonable doubt;

 (c)   whether there was excessive delay in the BDT proceedings;

 (d)   whether the BDT chairman and members had conflicts of interest that required them to recuse themselves;

 (e)   in addition, the BDT proceedings were said to be likely to give rise to a number of difficult and complex applications, including possible applications for recusal, and a stay based on the manner in which the HKBA had proceeded with the matter (including its reliance on anonymous complaints), delay, and the impossibility or difficulty of assembling an impartial tribunal.

(2) It was next submitted that the matters referred to in the preceding sub-paragraph, particularly those mentioned in [9(1)(a)] and [9(1)(b)] were matters that could lead to a significant impact on the development of Hong Kong’s jurisprudence.

(3) It was also contended that weight should be accorded to the difficulty that the barrister would have in instructing suitable local counsel, given that:

 (a)   a substantial number of local senior counsel had held office as officers or council members of the HKBA at the material times;

 (b)   a number of local senior counsel had attended a HKBA Annual General Meeting at which adverse remarks were made about the barrister, who was referred to by his nationality;

 (c)   many local senior counsel were in the same chambers as others who came within categories (a) and (b) above;

 (d)   it was difficult to ascertain whether any given local senior counsel was a party to the anonymous complaints, made the adverse remarks mentioned in (b) above, or was otherwise biased against the barrister;

 (e)   further, the complaints in relation to the lawfulness of the scheme of HKBA disciplinary proceedings, and the complaints of bias or prejudice against members of the BDT and/or HKBA officers and council members were such that it was likely that local senior counsel would be inhibited from making these points;

 (f)    no local senior counsel who had been approached (after the hearing on 2 March 2021) were willing to act for the barrister on a pro bono basis, as the applicant was prepared to do.

(4) Finally, it was submitted that the following further factors should be taken into account in favour of the application:

 (a)   the fact that the HKBA was taking a neutral stance in relation to the application, thus rendering it inappropriate for the Secretary for Justice to oppose it;

 (b)   the fact that the applicant has been advising the barrister on a pro bono basis for some time (since about 2017) and is prepared to continue to do so;

 (c)   the fact that the anonymous complaints against the barrister arose from his involvement in the departure from Hong Kong of the person of international interest meant that there would be considerable interest (including international interest) in the disciplinary proceedings against the barrister, so that the applicant’s participation in the BDT proceedings on behalf of the barrister would strengthen public confidence in the independence and integrity of Hong Kong’s legal system.

10.  For the Secretary for Justice, it was contended that the legal questions of alleged complexity and importance were not in fact issues of particular difficulty or complexity such as to justify the admission of overseas counsel.  Moreover, the level of court (in this case the tribunal convened to deal with the BDT proceedings) was such that it was unlikely that any decision made by the tribunal would make a significant contribution to Hong Kong’s jurisprudence. Further, there was no lack of suitably qualified local counsel and that insufficient effort had been made to instruct suitable local senior counsel. Finally, it was contended that the other factors identified did not take matters further.  Thus, the applicant had not demonstrated that the public interest favoured his admission for the purpose of the BDT proceedings.

11.  In the event, the hearing took place over two days.  At the first hearing on 2 March 2021, having heard submissions and noted that there appeared to be no evidence of any attempts on the part of the barrister or those acting for him to approach local senior counsel, I adjourned the matter to enable such approaches to be made.  During the adjournment, Mr Cohen (the solicitor acting for the applicant) filed three affirmations setting out the steps which had been taken to approach local senior counsel.  These consisted of approaches made by letter to seven local senior counsel, asking if they would be willing to act for the barrister in the BDT proceedings against him, on a pro bono basis.  None of the counsel approached were willing to do so.  At the second hearing on 16 June 2021, after hearing submissions, I adjourned the matter again to give those acting for an applicant an opportunity to identify (in submissions to be lodged after the hearing) any UK and European authorities or materials that they relied on in support of the argument that the standard of proof for BDT proceedings should be the criminal (rather than the civil) standard, as it seemed to me that they were suggesting that this was arguable in the light of developments in the UK and Europe.  In the event, further written submissions on behalf of the applicant and the Secretary for Justice were lodged on 30 June 2021 and 14 July 2021 respectively.

12.  I shall deal first with the contention that the BDT proceedings are likely to raise significant legal issues that are both complex and important.  In my view, when assessing the weight to be accorded to this factor, it is necessary to keep in mind the level of tribunal with which we are concerned – i.e. the BDT, which is a disciplinary body of the HKBA.  We are therefore concerned with a tribunal, and not a court, much less an appellate or final appellate court. As I explain below, this is also a matter which needs to be borne in mind when considering the suggestion that the proceedings are likely to result in significant contributions to our local jurisprudence.  

13.  The first issue relates to a proposed challenge to the constitutionality or legality of the legislative framework for barristers’ disciplinary proceedings.  In the first place, it does not seem to me that the BDT would be a suitable or appropriate forum for the making of such a challenge.  Nor does it seem to be, on the materials put before me, that such a challenge would have realistic prospects of success.  I therefore do not attach much weight to it.

14.  As to the argument that the appropriate standard of proof should be the criminal, rather than the civil, standard – so that the charges against the barrister would have to be proved beyond reasonable doubt rather than on a balance of probabilities, the law in Hong Kong as it stands is clear.  The Court of Final Appeal has made it clear (in Solicitor (24.07) v Law Society of Hong Kong (2008) 11 HKCFAR 117) that the civil standard applies to professional disciplinary proceedings.  It is therefore unarguable before the BTD that the more stringent criminal standard should apply.  In fairness, Mr Connelly accepted (in his latest written submissions) that the matter could only be revisited at the level of the Court of Final Appeal.  But that being so, it does not seem to me that this point provides a basis for the admission of the applicant to appear before the BDT, which is all that is sought by the present application.

15.  I had understood it to be suggested that the argument that the criminal standard of proof should apply was in line with developments in the UK and Europe, thus making it arguable (at least before the Court of Final Appeal) that the decision in Solicitor (24/07) should be revisited.  However, in his latest written submission, Mr Connelly indicated that in fact, the civil standard of proof was still applicable to disciplinary proceedings involving barristers and solicitors in the UK (although the structure of the disciplinary bodies had changed in that they were now independent of the Bar Council and Law Society respectively), and submitted that “novel argument that addresses Hong Kong’s specific circumstances” would be called for, but that although he understood that the applicant would take this point, he (Mr Connelly) was not in a position to elaborate on the proposed arguments.

16.  In these circumstances, I do not regard this point as being of any real weight for the purposes of the present application.

17.  As to the suggestion that questions of difficulty or complexity arise in relation to the complaint of excessive delay on the part of the HKBA, and in relation to alleged conflicts of interest on the part of the BDT chairman and members, these are matters in respect of which the applicable principles are well established, and do not in my view truly give rise to questions of unusual difficulty or complexity.

18.  Finally, as to the contention that a number of complex applications might have to be made in the context of or in relation to the BDT proceedings, it does not seem to me that the suggested applications (mentioned in [9(1)(e)] above) are of such difficulty or complexity as to provide significant support for this application.

19.  For these reasons, I do not regard the “difficulty and complexity” factor as one that assists the applicant.

20.  Turning to the suggestion that the arguments on the legality or constitutionality of the disciplinary framework for barristers, and the question of the appropriate standard of proof applicable in such proceedings are points of law that could have a significant impact on Hong Kong’s jurisprudence, for the reasons explained in [13] to [16] above, I do not regard this as a factor that should be given any significant weight.  Moreover, the fact that the proposed admission is limited to the BDT proceedings further reinforces my view that these arguments are (at least at the present stage) not matters which are likely to have a significant impact on our jurisprudence.

21.  Turning to the submission that weight should be given to the difficulty that the barrister would have in instructing suitable local counsel, with due respect, it seems to me that this concern has been exaggerated. 

22.  While I would accept that local senior counsel who have served as officers or council members of the HKBA at relevant times would have a conflict of interest and could not act for the barrister in the BDT proceedings, and that any barristers who were in fact responsible for making adverse remarks against the barrister at the HKBA Annual General Meeting referred to, or were in fact parties to the anonymous complaint, would be similarly unable and unsuitable to act for him. I do not, however, accept that a senior counsel should be regarded as unable to properly act for the barrister merely by reason of his attendance at the Annual General Meeting in question, unless he was actually one of those making or endorsing adverse remarks against the barrister.

23.  But even excluding relevant HKBA office holders or council members, and those actually responsible for the adverse remarks and anonymous complaints, it seems to me that there would still be many more available local senior counsel than the barrister appears to think.

24.  In Mr Cohen’s evidence in support of this application, it was suggested that some 80-90% of local senior counsel would be unable to properly act for the barrister.  However, this was on the basis that all senior counsel who were in the same chambers as officers or council members of the HKBA at the relevant times would have a conflict of interest.  I do not agree that this is the correct basis on which to proceed.  It is well known that barristers operate as sole practitioners, and that membership of the same chambers does not give rise to a conflict of interest between them when it comes to acting for opposing parties in legal proceedings, so that it is quite proper (and indeed common) for opposing parties to be represented by barristers from the same set of chambers.  It therefore follows that mere membership of the same chambers cannot be a basis for alleging a conflict of interest, such as to make it inappropriate for a particular senior counsel (not himself an officer or council member of the HKBA at any relevant time) to act for the barrister in the BDT proceedings.

25.  As to the suggestion that the difficulty of ascertaining whether particular senior counsel were parties to the adverse remarks made about the barrister, or to the anonymous complaints, means that it is effectively impossible for the barrister to safely instruct any local senior counsel, it appears to me that the suggestion is unjustified.  I have no doubt that any barrister who was in such a position would not take up the barrister’s case, and that any senior counsel who were prepared to take up the case would only do so if they were not parties to either the remarks or the anonymous complaints.  To suggest that a barrister who was so compromised would nonetheless act for the barrister in the BDT proceedings is, to my mind, fanciful in the extreme.

26.  It was also suggested that local senior counsel would (or at least might) be inhibited in pursuing the arguments relating to the lawfulness and constitutionality of the scheme of HKBA disciplinary proceedings, and of bias or prejudice against members of the BDT or HKBA.  I have no hesitation in rejecting this suggestion.  I have no doubt that any local senior counsel worthy of that status would not shrink from making all arguments that might be properly made, however difficult or unpopular such arguments might appear to be.

27.  Finally, I am bound to say that it does not seem to me that sufficient efforts have been made to instruct local senior counsel.  This is for two main reasons.

28.  First, it follows from [21] to [25] above that the pool of local senior counsel of whom those representing the applicant made enquiries about availability and willingness to act was too narrow, and omitted a large number of senior counsel who could have been approached.

29.  Second, and more importantly, it does not seem to me that the enquiries actually made were sufficient or adequate.  I noted in [11] above that all the approaches made were enquiries as to whether the senior counsel in question was willing to act for the barrister on a pro bono basis.  There was no attempt to enquire as to the availability of any local senior counsel on a remunerated basis, and as to the level of fees that might be charged.

30.  While I note that the applicant has generously offered his services to the barrister at no charge, and that this is obviously a benefit to the barrister, it does not seem to me that this is a factor that carries much weight.  There is no suggestion, much less any evidence, that the barrister is unable to afford any legal representation that he may need.  In any event, it seems to me that to give any significant weight to the factor of cost (other than perhaps in situations of unaffordable, or extremely high, costs) would be to embark upon a slippery slope, as it would then be but a short step to suggesting that overseas counsel should be admitted simply because they might charge less than local counsel.  As to the relevance of pro bono representation, see also the observations of Lam VP (as he then was) in Re David Perry QC (unreported, HCMP 960/2015, 8 May 2015, at [16]).

31.  I therefore do not think that it was sufficient to ask local senior counsel whether they would be prepared to act pro bono.  It follows that proper enquiries as to the availability of local counsel were not made, and it has not been shown that suitable local counsel were not available so as to justify the admission of overseas leading counsel.

32.  For all of the reasons explained in [21] to [31] above, I do not regard the “unavailability of local counsel” point as one which provides support for the application.

33.  Finally, I turn to the other factors put forward in support of the application.  As to these:

(a)  The suggestion that the fact that the HKBA has taken a neutral stance is a factor in favour of the application, or that it somehow means that the Secretary for Justice’s opposition to the application is unwarranted or untenable, is misconceived.  Given that the application relates to proceedings in the BDT, instituted by the HKBA which is therefore in the position of a prosecutor, it was only proper for the HKBA to take a neutral stance in relation to the application.  Doing so cannot be taken as a signification that the application has merit.  Nor can or should it in any way inhibit the Secretary for Justice from putting before the court her views as to where the public interest lies in relation to this application.

(b)  The fact that the applicant is prepared to act for the barrister on a pro bono basis has been dealt with at [30] above, and is not, for the reasons there explained, a significant factor in favour of the application.

(c)  The fact that some of the complaints against the barrister arose out of his involvement with the person of international interest, so that there might be interest in the BDT proceedings in this respect is also not a factor that I would regard as being of any particular relevance.  As for the suggestion that the applicant’s involvement in the BDT proceedings would strengthen public confidence in the independence and integrity of our legal system, it seems to me that what would more effectively achieve this would be a fair and balanced tribunal hearing, followed (if necessary, for its outcome cannot be a foregone conclusion) by an open and fair appeal process.

34.  For all of the foregoing reasons, I do not think that much weight can be given to the factors relied upon on behalf of the applicant.  On the contrary, it seems to me that each of the submissions put forward by the Secretary for Justice (summarized in [10] above) is cogent and that collectively they weigh solidly against the application being granted.

35.  I therefore dismiss the application.  So far as costs are concerned, the Secretary for Justice very fairly accepted that, in accordance with the usual practice, there should be no order as to costs if the application failed.  I therefore make no order as to costs.