RE MR JOHN BERESFORD WILLIAM MCDONNELL QC

HCMP 503/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 503 OF 2013

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REASONS FOR JUDGMENT

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1.  On 25 March 2013, the court dismissed the applicant’s application for admission as a barrister to advise and represent Mr Chan Chun Chuen (Mr CC Chan) in the criminal proceedings in HCCC 182/2012, including a pre‑trial review hearing on 26 March 2013, the hearing of Mr CC Chan’s stay application commencing on 22 April 2013 and any subsequent appeals (including any application for leave to appeal) arising therefrom; and the trial commencing on 22 May 2013. These are my reasons.

2.  The background to the criminal prosecution against Mr CC Chan for forgery following his failed probate proceedings concerning the very substantial estate of the late Madam Nina Wang can be gleaned from this court’s judgment given on 17 April 2012 admitting Mr David Perry QC to conduct the prosecution against Mr CC Chan: Re Perry QC, HCMP 503/2012, 17 April 2012.  It need not be repeated here.

3.  Nor is it necessary to rehearse the well‑established principles involved in this type of application for admission: Re Flesch QC [1999] 1 HKLRD 506; Re McGregor QC [2003] 3 HKLRD 585.  They have been summarized by this court in many recent cases, including Re Perry QC, at para 15.  The present admission is essentially based on the “unusual difficulty or complexity” ground.

4.  As explained in the earlier judgment (para 22), put at the lowest, the prosecution is a “borderline” case, that is, a case which “borders between a difficult and complex case and one which is unusually difficult and complex since the line dividing the two can seldom be distinctly drawn”: Re Michael Todd QC, HCMP 967/2001, 11 April 2001, page 5 (Suffiad J). Nothing in the materials which have been placed before this court for the purposes of the present application has altered that view of the court in relation to the forthcoming criminal trial, which has now been fixed before Macrae J, sitting with a jury, for 60 days.  The court retains a full discretion to grant the admission if it is appropriate to do so.

5.  One highly relevant consideration in the present application is the fact that the court has already admitted a London silk to represent the prosecution.  Considerations of equality and fairness therefore point strongly in favour of my admitting overseas counsel for the defence as well: Re Thompson QC, HCMP 2190/2007, 14 November 2007, para 9 (Ma CJHC); Re Perry QC [2013] 1 HKLRD 145, para 23.

6.  However, there is one serious obstacle to the admission of the applicant:  The eminence and experience of the applicant, who has appeared or otherwise rendered advice in many local cases cannot be doubted.  However, they were all in relation to commercial and land matters. Indeed, the applicant has enjoyed a very successful practice in “chancery and commercial litigation” in England which is where, no doubt, his expertise and skills lie.  In the supporting materials, it is said that the applicant is “well‑accustomed to hostile witness actions”.  Two examples of lengthy civil fraud cases which the applicant conducted about 30 years ago in 1980 and 1987/1988 are listed.  No current examples have been given, and I think Mr Charles Sussex SC (leading Ms Connie Lee) for the Bar Association in opposing the admission made a fair point in their written submissions that a lengthy civil fraud trial is, in any event, quite different from a complex criminal jury trial involving forgery.

7.  The materials also state that the applicant has sat as an assistant recorder at Knightsbridge Crown Court from 1990 to 1992 (he subsequently became a deputy High Court judge of the Chancery Division in England).  Whilst the applicant’s appointment to judicial positions illustrates recognition of his eminence, both Mr Sussex and Ms Leona Cheung, for the Secretary for Justice, pointed out, quite rightly, that the applicant’s criminal experience was acquired in the capacity of an assistant recorder and not as an advocate.  In any event, it was over twenty years ago and the experience, as an assistant recorder sitting only part-time, lasted only two years.

8.  Mr Edward Chan SC (leading Mr Andrew Kan and Ms Anita Wong), for the applicant, submitted that the applicant has in fact had extensive knowledge and background of the subject proceedings to handle this particular case “albeit he is not specialized in criminal works”.

9.  The materials suggest that the applicant has been involved in England as part of Mr CC Chan’s team of counsel since July 2007 in the related probate proceedings, and it is said that one reason why he was instructed was that he had previously been instructed by Madam Nina Wang in the earlier probate action over the will of her late husband.

10.  However, both Mr Sussex and Ms Cheung have correctly observed in their respective written submissions that the mere fact that overseas counsel has been retained at an early stage to advise on the case is not considered to be special circumstances to warrant his or her admission.  The court should not and would not, as it were, be held at “ransom” by a self‑created and accomplished situation.  Re Badenoch QC [1999] 2 HKLRD 209, 214A-E; Re Cooper QC, HCMP 184/2011, 15 March 2011, para 21 (Hartmann JA).

11.  In the supporting materials, it was suggested that the underlying factual issues at the criminal trial will be the same as those in the probate action apart from the difference in the standard of proof, and the applicant is already very familiar with them. 

12.  Essentially the same point was made against the application for admission of Mr Perry QC to conduct the prosecution of the present criminal proceedings, which I rejected.  

13.  Mr Edward Chan made a similar point in his oral submissions, and argued that the criminal trial will involve complicated questions of fact and the applicant can competently handle them just like any other experienced criminal silks.

14.  In my view, there are many differences between a criminal trial and a civil one, apart from the burden and standard of proof.  In paragraphs 19 to 21 of my previous judgment in relation to Mr Perry’s admission, I have already outlined some of these differences or potential differences in the present case.  I do not believe that it would make no real difference whether the defence of the criminal proceedings is to be led by a criminal silk or a civil one.

15.  Mr Edward Chan also submitted that as two local juniors have also been instructed (that is, Mr Kan and Ms Wong), it is in the public interest as well as beneficial to local counsel that they have the opportunity to work with overseas counsel of a very high quality and standing.

16.  I do not accept this cross‑fertilisation argument on the facts of the present case.  Unless the court can be satisfied that the applicant possesses the relevant and requisite expertise and skills to conduct the defence of the criminal proceedings here, cross-fertilisation does not even come into the picture.

17.  I am very mindful that there should be an equality of arms.  Refusing the present application for admission should not result in Mr CC Chan not being represented by a leading counsel of suitable and sufficient expertise and experience, particularly when he is facing a serious criminal charge and the prosecution is to be conducted by a top London criminal silk.  Those certainly were the sentiments expressed by Macrae J when he refused a late application for the adjournment of the trial dates to suit local senior counsel’s convenience.  However, in the present context, the public interest would only be served if the overseas counsel possesses the relevant expertise and experience, so that his presence in the proceedings would add a significant dimension to the issues to be dealt with at trial.

18.  In this regard, I note that some efforts have been made to instruct local leading counsel.  This is not a case where it is suggested that no local leading counsel can competently and satisfactorily conduct the defence for Mr CC Chan.  In fact, on the materials before the court, no less than two local silks (Mr Alan Hoo SC and Mr M K Wong SC) were at different stages earmarked to lead the defence team.  Eventually, Mr CC Chan was unable to secure their services for other reasons.

19.  The court has not been satisfied that there are no local silks around who can be approached.  In fact, given Mr Edward Chan’s own arguments, Mr CC Chan is not even restricted to local silks that specialize in doing crime, but may also approach those who do civil works but have experience in handling long and complex civil trials involving fraud. Moreover, I note that Macrae J has expressed the view that proper preparation for the criminal proceedings should only take weeks, not months.

20.  Furthermore, it should be very apparent from this judgment that this court would be most sympathetic to an application for admission of overseas counsel to represent Mr CC Chan in the forthcoming trial (and any stay application and appeal etc) provided that the court is satisfied with overseas counsel’s relevant expertise and experience to lead Mr CC Chan’s defence team.  After all, as I said, considerations of equality and fairness in the present case would strongly support any such application for admission – given that the prosecution is to be conducted by Mr Perry.

21.  Given the above considerations, I need not dwell on the question of delay, save to remark that any difficulty on the part of Mr CC Chan to find a suitable leading counsel – whether local or overseas – at this late stage is to a significant extent contributed to by his own delay.

22.  For all these reasons, the application for admission was refused.

23.  It remains for me to stress that the eminence, experience and skills of the applicant in his fields of expertise are never in doubt, and nothing said in this judgment is intended to be disrespectful to the applicant.  But the fact remains that in this type of application, the court must be satisfied, and the burden is on the person applying, that he has got the right type of expertise and skills to appear in the proceedings in question.