RE MS CLARE MONTGOMERY QC

HCMP 62 /2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 62 OF 2013

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J U D G M E N T

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1.  This is an application by Ms Clare Montgomery QC to be admitted to the Hong Kong Bar to act for Professor John Wong, who is the applicant in CACC 176/2012 (“the Appeal”) and the respondent in CAAR 3/2012 (“the Review”), by advising him in relation to those matters, preparing for their hearing, and representing him and/or appearing on his behalf in relation to them, whether at the substantive hearing or any interlocutory or directions hearings. The application is made pursuant to section 27(4) of the Legal Practitioners Ordinance, Cap 159. The application is opposed by the Hong Kong Bar Association. The Secretary of Justice appeared at the hearing to offer observations on the application, but did not formally oppose it.

2.  Professor Wong is a well-known and respected surgeon of international repute.  He was for many years employed by the University of Hong Kong (“HKU”) in the Department of Surgery, where he was Professor Chair of Surgery for 30 years, and Head of the Department of Surgery for 26 years.  From about 1996 onwards, he headed an entity known as the Skills Development Centre (“the SDC”), which was set up with a donation from the Hong Kong Jockey Club to the University.  The objective of the SDC was to provide for the continuing education of medical practitioners in Hong Kong, by way of courses and lectures, some of which were run by overseas medical academics who were invited to Hong Kong for the purpose.  Some such courses were free of charge, while others were charged for.  The ongoing operations of the SDC were funded by an annual grant from the Hospital Authority, and were run by staff of HKU.  The funds of the SDC were placed by Professor Wong in a sub-account under a bank account maintained by an entity called the Hong Kong Surgical Forum Trust Fund, a trust of which Professor Wong was the sole trustee.  There were other sub-accounts under the same account which were related to courses run by the SDC.

3.  The Appeal and the Review arise out of criminal proceedings brought against Professor Wong (DCCC 694/2011), in which he was charged with two counts of misconduct in public office and two counts of false accounting.

4.  The misconduct in public office counts related to charges that:-

(1)   Professor Wong used funds from the SDC sub-account, and one of the other sub-accounts related to one of its courses, to make payments to his domestic helper/driver (Charge 1); and

(2)   Professor Wong failed to report to HKU the theft by his subordinate, June Chan, of a large sum of money (somewhat in excess of HK$ 3 million) from the SDC sub-account, and lent her money to make repayments to the account, so as to conceal the theft and enable her to resign from HKU without investigation or discipline, and so that she could receive full payment under a staff provident fund, rather than a much smaller amount which would have been payable had her defalcations been known to HKU (Charge 4).

5.  The false accounting counts (Charges 2 and 3) related to charges of making false entries in the directors’ report and accounts of Unisurgical Ltd, a company of which Professor Wong was the sole shareholder and director, relating to air travel expenses which had in fact been paid by HKU, so as to reduce Unisurgical’s profits and hence its tax liabilities.

6.  Professor Wong was convicted of all four charges after trial, and was sentenced to a total of 240 hours community service.  By the Appeal, he appeals against his conviction on each of the charges, while the prosecution seeks, by the Review, to review the sentence on the basis that it is excessively lenient.

7.  If admitted, Ms Montgomery will advise and appear together with local leading and junior counsel, Mr Graham Harris SC and Mr Benson Tsoi.  No hearing dates have yet been fixed for the Appeal or the Review, which one would anticipate are likely to be heard together.

8.  The parties were agreed as to the principles governing the admission of overseas counsel.  They are as set out in Re Flesch QC [1999] 1 HKLRD 506 and Re McGregor QC [2003] 3 HKLRD 585.  As has been remarked upon in a number of cases, the paramount consideration is where the public interest lies, having balanced various different aspects of the public interest (see e.g. Re Richards QC [1999] 2 HKLRD 775 at 777 H-J, per Chan CJHC, Re Todd QC (unreported, HCMP 967/2001, 11 April 2001, Suffiad J).  Relevant aspects of the public interest will include the need for a strong and independent local Bar; the need of parties to have adequate legal representation; and the need for our courts to develop a jurisprudence which enjoys international recognition and reputation.  It is well recognised that overseas counsel of suitable eminence and ability can, in an appropriate case, contribute to all of these needs.

9.  In the present case, Mr Harris SC acknowledged that the case against Professor Wong on Charges 1, 2 and 3 would not justify the admission of overseas leading counsel.  He submitted however, that the position in relation to Charge 4 was different, and that there were good grounds for admitting Ms Montgomery to deal with the appeal in relation to it because:-

(1)   The case in relation to Charge 4 was of unusual difficulty and complexity in relation to the legal issues and principles involved, in the following respects:-

(a)   It involved the offence of misconduct in public office, which was an offence that involved difficulty and complexity as was evident from the fact that the definition and elements of the offence had been revisited and reformulated by the Court of Final Appeal itself, had been the subject of discussion and differences of opinion in other common law jurisdictions, and has been stated to be subject to further development in future.

(b)   It raised a set of circumstances that had not previously been the subject of consideration in Hong Kong or other jurisdictions in that it gave rise to the question of whether conduct (failure to report a crime of which one has knowledge) that had been statutorily decriminalised by the abolition (in 1971, by section 91 of the Criminal Procedure Ordinance, Cap 221) of the common law offence of misprision of felony, could nonetheless be effectively made a criminal offence by seeking to characterise it as a form of misconduct in public office.

(c)   It also raised such circumstances in that it gave rise to the question whether the failure to report a crime, the reporting of which would be likely to incriminate the person failing to report it (because, it was submitted, the reporting of June Chan’s theft would have been likely to have resulted in an examination by HKU or the police of the finances of the SDC, so as to reveal the facts which formed the basis of Charge 1) could amount to criminal misconduct, having regard to the privilege against self-incrimination.

(2)   Because of these elements of unusual difficulty or complexity, the case was one which would be likely to involve the determination of points of jurisprudential importance, both locally (as the matter would be likely ultimately to be considered by the Court of Final Appeal) and internationally (having regard to the recent authorities on misconduct in public office in other jurisdictions).

(3)   Ms Montgomery, as a specialist criminal barrister of high standing, would add a significant dimension to the conduct of the case, and had already done so by identifying the points in relation to the abolition of misprision of felony and the engagement of the privilege against self-incrimination.

(4)   There was substantial involvement of local counsel in the case, with both senior and junior counsel instructed (who would continue to be instructed along with Ms Montgomery, if she were to be admitted).

(5)   The case was one that had attracted significant publicity and media coverage, involving as it did a very well-known, reputed and recognised medical professional and academic.

10.  These factors, or a combination of them, said Mr Harris, rendered it in the public interest that the application for admission should be granted.

11.  Neither Mr Burns SC, appearing for the Hong Kong Bar Association, or Mr Law, appearing for the Secretary for Justice, disputed that Ms Montgomery was an eminent specialist in criminal law, who could bring an additional dimension to the case.  Nor did they suggest that there was not sufficient local counsel involvement.

12.  However, in opposing the application, Mr Burns SC submitted that:-

(1)   The case did not involve any questions of unusual difficulty and complexity, and would not be likely to contribute significantly to local jurisprudence in that:-

(a)   The offence of misconduct in public office had by now been well-defined by the Court of Final Appeal, so that the parameters and elements of the offence were established and well settled.

(b)   Although the factual circumstances in which the offence might be committed would be many and varied, not every set of circumstances would involve questions of difficulty and complexity, even if it had not previously arisen for consideration.

(c)   The abolition of the offence of misprision of felony was not a significant factor in this case, as the nature of that offence (requiring the disclosure of crimes for the general preservation of the peace) was quite different from that of misconduct in public office (where the focus was on whether there had been an abuse of a power or discretion entrusted to someone to be exercised for the public good). At most, Mr Burns submitted, the abolition of the offence of misprision of felony would be a factor to be taken into account in considering whether the misconduct was so serious as to merit being penalised as a criminal offence.

(d)   The privilege against self incrimination was also not a significant factor in the case, because it was difficult to see how the privilege was engaged in these circumstances, where the defendant was not involved in the crime that was not reported, and was not required to answer self-incriminating questions.  It was suggested that the privilege was not engaged where, as here, there was no investigation, and no claim to the privilege had been made.

(2)   The publicity which the case may have engendered, and Professor Wong’s standing in society, were not matters that justified the admission of overseas counsel.  The case was not one in which the defendant’s notoriety might make it desirable that it be dealt with by overseas counsel, nor was it one which engaged the public interest because of the nature of the charges and the facts underlying them.

13.  Mr Law submitted that both the misprision of felony and self-incrimination points were points that would have to be made good in the appeal.  He suggested that having regard to the nature of the offence of misconduct in public office, it was not easy to see that the abolition of misprision of felony was a particularly relevant matter.  He suggested also that given the lack of obvious links between Charges 4 and 1, it was not immediately evident that the self-incrimination point was particularly relevant either.  He also echoed the views put forward by Mr Burns in relation to Professor Wong’s standing, and the interest which had been generated in the case by press coverage of it.

14.  In my view, notwithstanding the submissions of Mr Burns and Mr Law, the question as to the interrelationship between the privilege against self-incrimination and the charge of misconduct in public office in Charge 4 is one which does give rise to a question of law that can properly be characterised as being of unusual difficulty and complexity.  It seems to me that the question of whether the privilege is engaged in the circumstances of this case is itself one of some difficulty and complexity, which may well involve having to look at the purpose of the privilege and its development. Moreover, the interrelationship between the privilege and its impact on the conduct that is the subject of Charge 4 also appears to me to be a question attended with difficulty and complexity.  It is, I think, a question that could well justify the attention of the Court of Final Appeal.  I would therefore regard it as one that involves unusual legal difficulty and complexity, and one the determination of which would involve a contribution to the development of local jurisprudence.

15.  That said, having regard to the considerations adumbrated by Mr Burns and Mr Law, the aspect of the argument involving the abolition of misprision of felony does not seem to me to involve points of comparable difficulty or complexity, and I would have hesitated to accede to the application for Ms Montgomery’s admission on the basis of that argument alone.

16.  Similarly, it does not seem to me that the suggestion that the offence of misconduct of public offence it itself still in a state of uncertainty and ongoing development is well-founded.  Although it is true that the offence has been considered by the Court of Final Appeal on four occasions, and that the definition of the offence by Sir Anthony Mason NPJ in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 was revised in Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192 to take account of concerns raised by the English Court of Appeal in Attorney-General’s Reference (No 3 of 2003) [2005] QB 73, as pointed out by Redlich JA in the Australian case of R v Quach [2010] VSCA 106, in neither Sin Kam Wah, nor the Attorney General’s Reference was there any suggestion by the judges involved that their views were other than compatible.  Similarly, in R v Quach, while a further refinement was suggested to one element of the offence as defined in Sin Kam Wah, the definition by Sir Anthony Mason NPJ was referred to with approval.  Similarly, in the Canadian case of R v Boulanger [2006] 2 SCR 49, McLachlin CJ referred to Shum Kwok Sher without criticism or qualification. Most pertinently, in the most recent Court of Final Appeal decisions, both Bokhary PJ (in Chan Tak Ming v HKSAR (2010) 13 HKCFAR 745, at para 3 of his judgment) and Ribeiro PJ (in HKSAR v Wong Lin Kay [2012] 2 HKLRD 898, at paras 18-22 of his judgment) have made it clear that the proper approach to the offence is to be found in Shum Kwok Sher and Sin Kam Wah.  In my view, while the offence can (as Sir Anthony Mason NPJ pointed out in Shum Kwok Sher at para 69 of his judgment) arise in relation to a wide range of public offices, and can involve a wide range of forms of misconduct, the elements of the offence should be regarded as being well-established, so that not every case that involves a new factual situation will ipso facto give rise to questions of unusual difficulty or complexity (although for the reasons explained in paragraph 13 above, I am satisfied that this case does, in relation to Charge 4).

17.  As the case is one that involves, in my view, legal questions of unusual difficulty or complexity, and is likely to have an impact on the development of our jurisprudence, given Ms Montgomery’s undoubted expertise and standing, and the substantial involvement of local counsel, I am satisfied that the public interest would in this case be served by acceding to the application for Ms Montgomery’s admission.

18.  I do not, however, consider that the suggested public interest in the case, arising from the coverage of it, and from Professor Wong’s standing, is a factor that should be taken into account in favour of the present application.  I would think that it would be a rare case indeed in which the identity of the personalities involved could be a factor in favour of admission of overseas counsel.  Similarly, the fact that the public is interested in a case in a general sense (for example because it involves celebrities, or sensational or lurid facts) would rarely, if ever, be a factor in favour of admission of overseas counsel.  I do not regard the decision of Cheung CJHC in Re Perry [2013] 1 HKLRD 145 as being based on considerations relating to the standing of the persons charged – rather, as Cheung CJHC made clear in paragraph 14 of his judgment, the position of the defendants involved gave the case considerable significance for the integrity and reputation of, and confidence in, the Government, and in the fairness of the operation of a market sector of major importance in Hong Kong, and it was this that meant that there was a real public interest in the conduct of the case that justified the admission of overseas counsel of high standing.

19.  In the event, for the reasons which I have given, I have concluded that it would be right to admit Ms Montgomery to deal with this matter.  Although such reasons arise in relation only to Charge 4, it seems to me that as the other charges will be dealt with at the same hearing, and the Review will almost inevitably be dealt with at the same time as the Appeal, it would in my view be appropriate to admit her to deal with all aspects of the Appeal and the Review.  Accordingly I shall allow the application in full, and make an order in terms of the Notice of Motion.  As is usual in such cases, I propose to make no order as to costs.