RE MARK TAYLOR SIMPSON QC

CACV 543/2019

[2021] HKCA 450

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 543 OF 2019

(ON APPEAL FROM HCMP 1013/2019)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  On 8 January 2021, we handed down our judgment dismissing the appeal against the decision of the Chief Judge of the High Court (“Chief Judge”) on 31 October 2019 imposing a condition on the admission of the Applicant, an English Queen’s Counsel, as a barrister of the High Court. The condition requires the applicant to appear with a local barrister.

2.  By a Notice of Motion of 5 February 2021, the Applicant seeks leave to appeal against our judgment to the Court of Final Appeal.  The following were set out in the Notice of Motion as questions of great general or public importance:

“ 1.  Is there a material distinction, in terms of ‘level of independence and the degree of freedom from conflicts of interest’ or ‘availability … to the general public’, between solicitor advocates and barristers?

2.  If so, in a case where a solicitor advocate has been instructed, does it justify imposing a condition on ad hoc admission of an overseas advocate that a local barrister must be instructed as well?

3.  Is it in the public interest to prohibit a suitably qualified solicitor advocate from appearing with an overseas advocate admitted on an ad hoc basis, without a local barrister also being instructed?

4.  Is such a condition or prohibition contrary to the right to a ‘choice of lawyers … for representation in the courts’ under Article 35 of the Basic Law?”

3.  By another Notice of Motion also of 5 February 2021, the Law Society (which had been joined as an intervener in the appeal) also seeks leave to appeal to the Court of Final Appeal.  The following are the questions set out in the Law Society’s Notice of Motion as questions of great general or public importance:

“ 1.  whether there is any distinction to be drawn between barristers and solicitor advocates in Hong Kong in terms of their accessibility by members of the general public.

2.  whether, in the event a distinction may be drawn between barristers and solicitor advocates in Hong Kong by reason of their accessibility by members of the general public, such distinction is a relevant consideration that ought to be taken into account by the Court of First Instance when exercising its discretion on whether to admit a foreign advocate as a barrister in Hong Kong on an ad hoc basis under section 27(4) of the Legal Practitioners Ordinance.

3.  whether a foreign advocate may be admitted as a barrister in Hong Kong on an ad hoc basis under section 27(4) of the Legal Practitioners Ordinance, on the condition that the foreign advocate appear with a local solicitor advocate and without instructing a local barrister.”

4.  These two applications can be processed together.  Written submissions (including reply submissions) were lodged respectively on behalf of the Applicant as well as the Law Society.  The Bar Association lodged submissions opposing the applications.  The Secretary for Justice did not lodge any submissions.

5.  We now give our determination on the two Notices of Motion.

6.  As Ms Li SC (for the Bar Association together with Mr Wong SC, Mr Chan and Mr Ng) rightly highlighted, this is an intended appeal against the exercise of discretion concerning the condition to be imposed for the admission of the Applicant.

7.  Apart from Question 4 in the Applicant’s Notice of Motion (which we shall address separately), the other questions raised in both Notices of Motion are not directed against any errors in law or principle.  Instead, in essence, they challenge the materiality of the distinction between solicitor advocate and barrister in the examination of the public interest which the imposition of the condition for admission served to safeguard.

8.  It is not in dispute that in the admission of overseas counsel the court is entitled to take account of the public interest in the maintenance of a strong pool of local advocates who are generally accessible to litigants.

9.  In that respect, it is the concurrent view of this Court as that of the Chief Judge that on the evidence presented to the court and as matters stands at present there are material differences in the independence and accessibility of a solicitor advocate as compared with that of a local barrister.

10.  The Applicant and the Law Society seek to argue by way of a further appeal to the Court of Final Appeal that such concurrent view is wrong and the court should not place so much weight on such difference between the two types of advocates.  With respect, stripped of the niceties of the arguments, in substance it is a challenge to the weighing of a factor based on the present prevailing circumstances in light of the evidence presently before the court (with the gaps in such evidence as highlighted by the judgment of this Court).

11.  We cannot see how such a challenge can be a proper question to be submitted to the Court of Final Appeal as a question of great general and public importance.

12.  Mr Karas (for the Applicant) contended that there is no material distinction based on his own view on conflicts of interest.  He also submitted if there were differences between solicitor advocates and barristers with respect to independence, conflicts or availability, these differences are not relevant in the present exercise.

13.  With respect, this is plainly wrong and not reasonably arguable.

14.  Mr Manzoni SC (with Mr Chapman for the Law Society) referred to the latest available statistics published by the Law Society in the Hong Kong Lawyer in February 2021 which was not evidence before the court.  This highlights the gaps in the evidence which this Court referred to.  Moreover, the relevant evidence is not evidence on the percentage of solicitors practising as sole proprietorship but about solicitor advocates addressing conflict of interests arising from the business connections of their firms.

15.  Whilst we have no reason to disagree with Mr Manzoni that in practice conflicts of interest would be avoided by a client and the instructing solicitor in deciding whether to conduct litigation through a particular solicitor advocate, this misses the real point in the current exercise.  The condition imposed for the admission of overseas counsel is to serve the purpose of cross-fertilization with the objective of maintenance of a strong pool local advocates.  Each appearance with foreign legal talent is a valuable experience for a local advocate.  The wider the circulation and accessibility of the local advocates (as in the case of a barrister as compared with a solicitor advocate), the greater service it would be to the public interest in question.

16.  Viewed in that light, we cannot see how it is reasonably arguable that the concurrent holding of this Court and the Chief Judge was in error in terms of how the matter should be weighed in the present circumstances.  As has been emphasized from time to time, on the weighing of matters in the exercise of discretion, the appellate court will not intervene unless the conclusion of the judge is plainly wrong.  A fortiori, this must be so when it is a concurrent holding by this Court and the Chief Judge. We are unable to see any reasonable argument for the Court of Final Appeal to intervene in this instance.

17.  Once we arrive at this conclusion, there is no basis for leave to be granted on the questions raised by the Applicant and the Law Society concerning the exercise of discretion.

18.  As regards Question 4 which was only relied upon by Mr Karas, it has been fully addressed by the Chief Judge at [64] of the judgment of 31 October 2019 and this Court at [61] of our judgment.  With respect, we are not persuaded that Mr Karas’ argument to the contrary has such merit as to warrant consideration by the Court of Final Appeal.  

19.  For these reasons, we dismiss the two Notices of Motion.  We shall also order the Applicant to pay the costs of the Bar Association in respect of his Notice of Motion and the Law Society to pay the costs of the Bar Association in respect of their Notice of Motion.  Such costs are to be taxed with certificate for 2 counsel if not agreed.