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HCMP002762/1984
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Miscellaneous Proceedings
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1984 No. 2762
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IN THE MATTER of the Legal Practitioners Ordinance. Cap. 159 |
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and
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IN THE MATTER of the application Gerald James Kay COLES, Q.C. for admission as a Barrister of The Supreme Court of Hong Kong |
Coram: Sir Denys Roberts, Chief Justice.
Date: 18th October, 1984.
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JUDGMENT
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1. This is an application by Gerald James Kay Coles, a Queen's Counsel practising in England, for admission to the Hong Kong Bar for the purposes of Criminal Appeal No.173/84.
2. The admission of Mr. Coles was opposed by the Bar Committee and by counsel appearing on behalf of the Attorney General. It should be made clear that this opposition is based on general grounds and that no criticism of the skill and reputation of the applicant was intended.
The Case
3. The three appellants, LEUNG Yuk Tong, LEUNG Hon-chu and CHAN Ka Cheung, were convicted after trial in the High Court of the offence of conspiracy to traffic in dangerous dangerous drugs and were sentenced to 12 years, 12 years and 11 years imprisonment respectively.
4. At the trial, the appellants were represented by a Hong Kong Q.C., who indicated that in his view insufficient grounds existed for a successful appeal.
5. However, perfected grounds of appeal have been prepared by junior Hong Kong counsel. Further grounds, in the form of a telex, have been received by solicitors for the appellants from the applicant.
6. The appeal has been listed for hearing before the Court of Appeal on 23rd and 24th October, 1984.
7. It was submitted, on behalf of the applicant, that it was necessary for counsel with substantial experience to be briefed since the appeal contained difficult matters of law and fact.
Availability of Counsel
8. According to a letter, dated 9th October, 1984, from the applicant's instructing solicitors to the Secretary of the Bar Association, the appellants had themselves specifically asked their solicitors to retain Queen's Counsel from England.
9. They therefore took steps to comply with these instructions. At the same time, however, they took the precaution, in case such counsel was not available, of approaching three local Queen's Counsel on 5th October, 1984, asking them if they were available to represent the appellants. None of these three counsel was so available.
10. The Bar Association, when notified that an application was to be made for the admission of Mr. Coles for the purposes of this appeal, notified instructing solicitors on 12th October of the names of three Hong Kong Queen's Counsel who would be available to conduct the appeal on the dates fixed for it.
11. Having been warned by the Bar Committee that it was likely that the application for the admission of Mr. Coles would be opposed, solicitors very sensibly retained one of those three Queen's Counsel for the purposes of the appeal.
Background
12. Queen's Counsel from England have been appearing regularly in the Hong Kong Courts for the past 15 years or so, and their numbers have been growing fast during recent years.
13. Counsel for the Bar Association provided figures which showed that in the year 1978 there were 57 applications for the admission of overseas Queen's Counsel for the purposes of one or more cases. This figure grew to 73 in 1979, 78 in 1980, 84 in 1981, 93 in 1982, 110 in 1983, and 78 in the first nine months of 1984.
14. So far, the Bar Association has opposed admission only in one application in 1981, and in five applications in 1984, three of which were not pursued by the applicants.
15. Thus, the number of applications for admission of overseas Counsel has more or less doubled in the past five years, though it is no doubt true to say that this has probably done no more than keep pace with the growth of work of a substantial nature during the same period.
Principles involved
16. The principles involved have been examined with great care by Sir Alan Huggins in the two earlier applications which were opposed and came to a hearing, namely, the applications of Charles Gray(1) and of A.R. Tyrrell, Q.C. (2)
17. It seems to me, from an examination of these judgments, that the following principles emerge and ought to be applied in the case of future applications which are opposed.
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(1) |
The paramount factor is the public interest.
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(2) |
It is in the public interest that there should be a strong and independent local Bar.
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It is also in the public interest that overseas Counsel should be admitted, insofar as the local Bar is not able to meet the needs of Hong Kong people for legal representation.
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The general rule that a litigant is entitled to counsel of his choice means no more than that he has aright to choose counsel who are available and entitled to practise. He has no right to demand that overseas counsel be admitted for the purpose of representing him.
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(5) |
By reason of the terms of section 27 of the Legal Practitioners Practitioners Ordinance, the burden lies on an applicant to show cause why an overseas counsel should be admitted.
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(6) |
This burden can be discharged by showing, for example, and this list is not intended to be exhaustive -
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(a) |
that no local counsel of appropriate skill and experience is available;
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(b) |
that the case is one of unusual difficulty or complexity;
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(c) |
that the case requires specialist knowledge of the kind not available from the local Bar;
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(d) |
the case is of such a nature as makes it desirable for overseas counsel to appear, e.g. a case involving a very well-known local personality; or
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that no local counsel of appropriate skill and experience is available at a fee which is within the range of the client, whereas an overseas counsel is. |
Present Case
18. Applying these principles as best I can to the facts of this application, my conclusions are as follows
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Three local counsel are available on the days concerned and would be willing to accept a brief.
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That the criminal appeal does not appear to have any unusual features. The grounds of appeal submitted are of a fairly common nature and the estimated length of two days for the hearing does not suggest the arguments are likely to be unduly complicated.
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(c) |
No specialist knowledge seems to be required.
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The case is not of such a nature as to make it desirable for overseas counsel to appear.
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(e) |
None of the other special features mentioned above as justifying the admission of overseas counsel appear to be present.
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19. Consequently, I am not satisfied that the applicant has discharged the burden under section 27(2) of Cap. 159 of showing cause why he should be admitted.
20. I understand that, when the application of Mr. Tyrrell was refused, there were suggestions that the Bar Association was attempting to impose a "closed shop" and to exclude overseas counsel generally.
It is, perhaps, desirable, for this reason, to emphasize that it is the Chief Justice, not the Bar Association, who controls the admission of overseas silks. However, in any event, the figures I have quoted show, (and I was assured that this is so by the Chairman of the Bar Association during the hearing of this application), that the Bar wishes only to argue that admissions should not be regarded as automatic and that applications should be refused if a proper case, on the principles set out above, has not been made out.
(1) M. P. 139/81
(2) M.P. 2516/84
Representation:
Mr. F.A.L. Eddis (Y.K. Poon & Co.) for Applicant
Mr. H. Litton, Q.C., J.P. & Mr. K.H. Woo for Bar Committee
Mr. N.L. Strawbridge, Senior Crown Counsel, for Attorney General
Mr. G.J.K. Coles, Applicant, not appearing.
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