RE CLARE MONTGOMERY QC

HCMP 2266/2018

[2019] HKCFI 727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2266 OF 2018

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J U D G M E N T

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1.  This is an application under section 27 of the Legal Practitioners Ordinance, Cap 159 for the admission of Ms Clare Montgomery QC to represent Chow Heung Wing, Stephen (“Chow”) at his appeal against conviction and sentence before the Court of Appeal on a date yet to be fixed. The application is opposed by the Hong Kong Bar Association and the Secretary for Justice.

2.  On 12 December 2017, Chow was convicted in HCCC 437/2015 of a single count of manslaughter by gross negligence before Barnes J and a jury and, on 18 December 2017, sentenced to 12 years’ imprisonment.  There were altogether three defendants on the indictment, each charged separately with an individual count of manslaughter in respect of the same victim: Chow (the 1^st defendant), Chan Kwun Chung (“Chan”) (the 2^nd defendant) and Mak Wan Ling (“Mak”) (the 3^rd defendant).  Chan was also convicted by the same jury and sentenced to 10 years’ imprisonment.  The jury were unable to agree upon their verdict in respect of Mak and a re‑trial was consequently ordered in her case on a fresh indictment.

3.  Before Mak could be re‑tried, however, she sought the determination of the Court of Appeal on a question of law reserved, pursuant to section 81(1) of the Criminal Procedure Ordinance, Cap 221.  The reason for her doing so was that in an entirely unconnected case, namely HCCC 213/2016 involving the defendant Lai Chun Ho (“Lai”), the prosecution were seeking a determination on the very same question.  Since the point was the same in each case, a consolidated hearing on the question of law reserved was heard by the Court of Appeal, with each defendant being separately represented.

4.  On 16 November 2018, the Court of Appeal in HKSAR v Lai Chun Ho[1] delivered judgment on the question of law reserved.  Subsequently, on 9 January 2019, the Court granted a certificate under section 31 of the Hong Kong Court of Final Appeal Ordinance, Cap 484 that a question of law of great and general importance was involved in its decision[2].  The question certified was in exactly the same terms as the question of law reserved, namely:

“In the offence of manslaughter by gross negligence, should the gross negligence referred to in the last element of the offence as enunciated in R v Adomako [ 1995] 1 AC 171, namely ‘the breach of the duty by the defendant being capable of being characterised as gross negligence and therefore a crime’ be proved based on the objective reasonable man test only or that in addition to the objective reasonable man test, the prosecution is also required to prove that the defendant’s subjective state of mind was culpable in that the defendant was subjectively aware of the obvious and serious risk of death to the deceased?”

5.  I have been informed that leave to appeal on the certified question is to be heard by the Appeal Committee of the Court of Final Appeal on 21 March 2019.

6.  Two observations may be made arising out of this brief outline of the history of the matter before I consider the application of the principles concerning admissions to this particular motion.  The first is that the Appeal Committee of the Court of Final Appeal is shortly to consider, in proceedings arising out of the same case in which Chow was convicted, the very question of the fault element in the offence of gross negligence manslaughter which underlies the present application, or at least the major part of it.  If the Appeal Committee grants leave, the matter will be considered by the Court of Final Appeal, with experienced local Senior Counsel appearing for the two parties, one of which parties will be Mak (Chow’s former co‑accused), who is a medical practitioner.

7.  As one of the members of the Court who heard the question of law reserved in respect of Mak’s case, it cannot sensibly be suggested that the leading and junior counsel appearing on both sides before us were not fully conversant with, and capable of, addressing the issues that arose in a competent and comprehensive manner.

8.  If the Appeal Committee refuses leave, the law will be as the Court of Appeal has defined it.  I would find it very unlikely, as Mr Harris SC representing the applicant at one point suggested, that the Appeal Committee would refuse leave solely on the basis that it had no jurisdiction to hear a further appeal from the Court of Appeal on a question of law reserved, without saying whether the Court of Appeal was right or wrong on the substantive issue; given that its refusal to assume jurisdiction would result in the immediate re‑trial of Mak, as well as the trial of Lai, in accordance with the Court of Appeal’s judgment in Lai Chun Ho.

9.  The second observation is, as Mr Choy SC pointed out on behalf of the Bar Association, that the subjective element contended for in the offence of gross negligence manslaughter, said to result from the Court of Final Appeal’s application of R v G and Another[3] in Sin Kam Wah and Another v HKSAR[4], was in fact given by Barnes J at the trial of Chow, Chan and Mak in HCCC 437/2015, as she indicated she was also disposed to do in the forthcoming trial of Lai in HCCC 213/2016[5], which had originally been fixed before her.  That is why the prosecution pre‑emptively applied to reserve a question of law to the Court of Appeal in Lai’s case, challenging the correctness of Barnes J’s decision; and why Mak moved to ensure that she received the same favourable direction at her re‑trial.  It seems that Mak’s re-trial may also be heard before Barnes J.

10.  It is not necessary to set out the principles which govern applications for the admission of counsel from other jurisdictions, for they have been well traversed in a number of judgments.  However, I should say that in the criminal context, I have found the discussion concerning the interplay and relative significance of those principles by McWalters JA in Re Perry QC[6] to be particularly helpful.

11.  The application is mounted by Mr Harris SC essentially on the basis that it is in the public interest to admit the applicant, since i) the case at appeal is one of unusual difficulty and complexity; ii) there are important points of law involved, which will impact upon local jurisprudence; iii) the applicant will make a significant contribution to the case; and iv) local counsel have been instructed.

12.  Mr Choy SC, with him Mr Yeung, for the Bar Association, and Mr Wong, for the Secretary for Justice, take issue with the description of this case as one of unusual difficulty and complexity, or one in which the applicant can add a significant dimension to the case or local jurisprudence.  In any event, the law in Hong Kong has been clarified by the recent decision of the Court of Appeal in Lai Chun Ho, which may or may not ultimately be considered at a further appeal by the Court of Final Appeal. Mr Choy also argues that genuine and reasonable efforts have not necessarily been made to find specialist local counsel to argue the points that it is said overseas counsel will argue.

13.  I do not accept on either the issue of gross negligence manslaughter, or the role of expert evidence in such a case, that this a case of unusual difficulty or complexity.  I appreciate that the point is said to be more intricate than whether the fault element of the offence is objective or subjective, but there seems to me to have been a rather transparent attempt to make the issue appear far more complex than it is, conscious no doubt that the trial judge has already given a much more favourable direction to Chow in this regard than the Specimen Direction on manslaughter by way of gross negligence dictated.

14.  As both Mr Choy and Mr Wong emphasise, gross negligence manslaughter is a common law offence, which is why the Court in Lai Chun Ho went into a detailed analysis of how the highest courts in the United Kingdom, Australia and Canada, as fellow common law jurisdictions, have resolved the issue of the fault element in the offence.  Whether the Court of Final Appeal chooses to take Hong Kong in a different direction will depend on whether the Appeal Committee grants leave later this month.  If the Appeal Committee refuses leave, the law will be as it has been stated in Lai Chun Ho.  If it grants leave, then whatever the Court of Final Appeal ultimately determines will be binding on the Court of Appeal which hears Chow’s appeal. Either way, the upshot of the Appeal Committee’s decision will largely dictate the argument as to the fault element of the offence in Chow’s appeal.

15.  It is further to be noted that the Court in Lai Chun Ho was well aware of the decision of the English Court in R v Rose (Honey) involving a registered optometrist, on which part of Mr Harris’s argument is said to be premised, because the Court referred to the judgment in, among other places, its resolution of the correct test of objective foreseeability in gross negligence manslaughter[7]. The Court also referred to R v Rudling[8], a case involving a registered medical practitioner.

16.  As Mr Wong observed, the fact that at Chow’s appeal there may be “extensive discussion” of the application of Rose (Honey) does not make the case an unusually difficult one.  Chow was a businessman, who had ceased practising as a medical practitioner some 17 years before the commission of the offence.  I do not accept that the applicant could “add a significant dimension to a very complex or difficult case”[9].

17.  Mr Choy makes effectively the same point in relation to the English case of R v Sellu[10] in respect of expert evidence.  I agree it is difficult to accept that overseas counsel would add any particular perspective to principles, which are readily understandable and clearly set out in the judgment.  Indeed, Mr Harris realistically accepted that, if the basis of the application for admission was the Sellu point alone, he would not have been making the application.

18.  It does not seem to me that this appeal is one of unusual difficulty and complexity, or that there are important points of law involved, which will impact on local jurisprudence.  Nor do I accept that the applicant can make a significant contribution to the case, which local counsel cannot make.  I do not, therefore, find it necessary to engage Mr Choy’s further concern as to whether other specialist Senior Counsel at the local bar could have been approached, who might be expert in issues of negligence and duty of care.  In my judgment, any criminal Senior Counsel, or for that matter competent junior counsel, would be capable of addressing these issues in so far as they arise at the appeal.

19.  Ultimately, I do not consider that there are in this case sufficient countervailing public interest considerations capable of outweighing the important public interest of maintaining a strong and independent local bar.

20.  The application is accordingly refused.

[1] HKSAR v Lai Chun Ho [2019] 1 HKLRD 4.  Although, perhaps a little confusingly, the citation of the authority in the HKLRD refers only to the defendant Lai Chun Ho, it was a consolidated appeal hearing, also involving the wholly unrelated defendant Mak Wan Ling.

[2] HKSAR v Lai Chun Ho (unrep., CAQL 1/2018, 9 January 2019).

[3] R v G and Another [2004] 1 AC 1034.

[4] Sin Kam Wah and Another v HKSAR (2005) 8 HKCFAR 192.

[5] HKSAR v Lai Chun Ho [2018] 2 HKC 295.

[6] Re Perry QC [2016] 2 HKLRD 647.

[7] HKSAR v Lai Chun Ho [2019] 1 HKLRD 4, at paragraph 50.

[8] R v Rudling [2016] EWCA Crim 741.

[9] Re Parsons QC [2015] 4 HKLRD 781, at paragraph 16.

[10] R v Sellu [2017] 4 WLR 64.