RE DAVID PANNICK, Q.C.

HCMP 2475 /2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2475 OF 2013

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REASONS FOR JUDGMENT

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Hon Stock VP:

Introduction

1.  This was an application pursuant to the provisions of s 27(4) of the Legal Practitioners Ordinance, Cap 159 for the admission of David Pannick QC to advise and appear on behalf of the Secretary for Constitutional and Mainland Affairs in first instance judicial review proceedings, leave to apply for which was granted by Lam JA on 7 January 2013.  The application for judicial review is fixed for hearing in the Court of First Instance on 10 and 11 December 2013.

2.  On 10 October 2013 I granted an order in terms of the Notice of Motion subject only to a variation which widens the admission to include advice in respect of and appearance in any consequential appeals.  I said I would give reasons later.  These are the reasons.

Background

3.  The applicant is a member of the English Bar who was appointed one of Her Majesty’s Counsel in 1992.  His considerable expertise in both his home jurisdiction as well as in this jurisdiction in constitutional and public law is well-known.  He has appeared in many cases before the Appellate Committee of the House of Lords and before the United Kingdom Supreme Court, in the European Court of Justice and the European Court of Human Rights, and at all court levels in Hong Kong.  

4.  The application for judicial review challenges the constitutionality of s 39(2A) of the Legislative Council Ordinance, Cap 542.  The argument is that the provision is inconsistent with articles 21, 25 and 26 of the Basic Law, most particularly the right in article 26 to stand for election.

5.  Section 39(2A) was enacted in response to the resignation in January 2010 of five members of the Legislative Council who represented five geographical constituencies.  They resigned in order to trigger by-elections for those constituencies in which by-elections they themselves would stand as candidates, thereby to stage, as they perceived it, a referendum of their political platform.  Each was re-elected.

6.  According to the respondent Secretary for Constitutional and Mainland Affairs (‘SCMA’), the by-elections had a record low voter turnout yet incurred a cost in the order of $126 million.  His case is that the events were subject to intense public scrutiny; strong opinions were expressed against what had happened, reflecting perceptions that the resignations and by-elections had occasioned a significant waste of public funds, the loss by the electorate of an elected representative in each of the constituencies for a substantial time, and a resulting undermining of voter confidence in the political and electoral system.

7.  An extensive public consultation exercise is said to have been carried out after which the impugned provision was enacted; the effect of which provision is to prohibit a Legislative Council member from participating in a Legislative Council by-election within the same term for six months following his or her voluntary resignation of Council membership.  The provision came into force on 1 October 2012.

The challenge

8.  The applicant in the judicial review proceedings is a Hong Kong permanent resident and has been a voter since 1991 and it is on that basis that he has standing to make the application for judicial review.

9.  The challenge is to the effect that the new provision is unconstitutional because it restricts the right to vote and the right to stand for election and fails to satisfy the proportionality test in that, first, it does not pursue a legitimate aim; second, that there is no rational connection between the aim and the restriction adopted; and, third, that the restriction is not proportionate.

10.  The challenge engages a right which is highly important to society as a whole.  That would be so in all jurisdictions but is particularly so against the backdrop of Hong Kong’s constitutional and political development.  The rights at issue are said in the Notice of Application itself to be “basic and fundamental human rights which the court should safeguard at all costs.”  The nature and importance of the right to vote and to stand for election is illustrated in the Notice by reference to case law in a number of common law jurisdictions.

11.  The Notice of Application touches upon a range questions which include a suggested positive duty upon the legislature to enact enfranchising rather than disenfranchising provisions; whether, in the context of the right to stand for election, the legislature should be accorded a margin of appreciation and, if so ,what weight that factor should carry – in respect of which issue reference is made to jurisprudence of the European Court of Human Rights, as well as to an instance or instances in the United Kingdom of resignation in order to trigger a by-election; whether the provision pursues a legitimate aim, in which context examples are put forward of circumstances said to be caught by the provision to demonstrate that the effect of the legislation as enacted is much wider than the problem which it seeks to address; and whether the provision is rationally connected to the aim, since it is said that its aim may be circumvented by another person standing in the stead of the resigning member.

The argument upon this application 

12.  Mr Pao for the applicant submitted that the public interest fully justifies the admission of the applicant for the proposed purpose.  It was argued that the application for judicial review engages an issue which is of considerable public importance.  It is said that that is evident from the nature of the right at stake; from the fact that the background to enactment of the challenged provision attracted considerable public attention; that the proposal to enact such a provision was the subject matter of extensive public consultation; and that the Bar Association itself considered the proposed enactment of the provision of such significance that it was moved to issue a press statement in opposition to it.  It is further suggested that the decision in the application for review will be one of lasting legal and constitutional significance and that the case requires the determination of issues which are likely to have an impact on the development of local jurisprudence.  Further, it is said that the case involves unusually difficult or complex issues of law. These factors in combination are said to warrant representation by the applicant whose specialist expertise and experience are such as will add a significant dimension to the case.  It is emphasised that since the SCMA intends to instruct local senior as well as junior counsel for the hearing, in addition to the applicant, there is no valid basis upon which to suggest that instructing the applicant will deprive local counsel of the opportunity of appearing.  It is pointed out that the applicant has for some time been engaged by the Administration in advising on the proposed (and now enacted) provision but it is accepted that there is a decided limit to which this can be prayed in aid of admitting overseas counsel for it could all too readily become an easy vehicle by which to engineer such admissions.

13.  The Bar Association opposed the application.  Mr Dykes SC emphasised that this opposition was with no disrespect to the applicant whose standing and skill is fully recognized.  He accepted as well that there is considerable public interest in the subject matter of the judicial review.  His argument however was that this was not in reality a case of unusual difficulty or complexity for it is not the first election rights case in this jurisdiction ( see, for example, Mok Charles Peter v Tam Wai Ho (2010) 13 HKCFAR 762 ,an election petition case; and Wong Hin Wai v Secretary for Justice [2012] 4 HKLRD 70, a challenge to a statutory provision which banned the nomination for election of candidates who were subject to an unserved prison sentence); and, most especially, the proportionality test in constitutional cases is well established in this jurisdiction.  Furthermore, it was contended, since there appears to be no direct common law jurisprudence touching upon the question whether an elected representative may lawfully be precluded from participating in a by-election after a voluntary resignation, experience in arguing such issues in other jurisdictions does not arise as a consideration.  Whilst this is a case which might well find itself eventually before the Court of Final Appeal, that was the time, if it happened, at which the applicant’s admission would or might be more tenable.  Beyond that, there are, as is conceded on behalf of the applicant, entirely competent local counsel with relevant experience in constitutional and public law.

14.  Ms Grace Chow appeared for the Secretary for Justice who, in the context of applications of this nature, acts as a proponent of the public interest offering submissions, as he feels appropriate, as to where the balance of the public interest lies, which public interest includes the fostering of a strong and independent local Bar.  In the submission of the Secretary for Justice, the question whether the provision is constitutionally proportionate and the question of the appropriate margin of appreciation to be afforded are, in this case, questions of difficulty and complexity which are likely to have a material impact on the development of local jurisprudence and that the applicant’s expertise in public and human rights law is such that his admission at this stage of proceedings will add a significant dimension to the court’s consideration of the case and that, in this case, there is no question of shutting out members of the local Bar.  Accordingly the Secretary for Justice submits that it is in the public interest to grant the application.

The principles

15.  A summary of the applicable principle is provided by Cheung CJHC in Re Perry QC HCMP 503 of 2012, unreported, 17 April 2012 at para 15:

“The burden is on an applicant for admission to satisfy the court that is in the public interest to grant the admission. In considering an application for admission, the court adopts a flexible and sensible approach, balancing different aspects of the public interest. Different facets of the public interest include: the need to have a strong and independent local Bar; the need of Hong Kong people to have adequate legal representation and the need for the local courts to develop our own jurisprudence which enjoys international recognition and reputation. Overseas counsel with sufficiently high quality and standing may be admitted to appear in our courts in cases involving the determination of legal principles which may have an impact on the development of our jurisprudence. Local counsel’s exposure to cross-fertilisation between lawyers of sufficiently high quality and standing from other common law jurisdictions is considered to be helpful and conducive to the maintenance of a strong and independent local Bar. Admission of overseas counsel is not limited to hearings before the Court of Final Appeal or even the Court of Appeal. For civil matters, the same basic principle applies to all hearings, irrespective whether the hearings are final or interlocutory… . For criminal proceedings, once it is accepted or decided that an applicant should be admitted for a trial, there is no good reason why he should not be permitted to represent the prosecution at preliminary or ancillary hearings, such as an application for a stay. It is sensible to use the same leading counsel in all these matters. It would save costs and duplication of effort. … .”

16.  In the case of Re Hapgood HCMP 101 of 2013, unreported, 19 February 2013, a commercial case, Cheung CJHC said that whilst he did not exclude the possibility that one or more of the various issues or arguments which arose in the case at first instance might eventually end up in the Court of Final Appeal, that was “something very much in the future” and that “[d]epending on future development, there is nothing to stop the plaintiff seeking to be represented by overseas counsel at a later stage.”  This is a consideration upon which Mr Dykes relies.

17.  That comment was made in the context of the facts at issue in that litigation and I see from Re McGregor QC [2003] 3 HKLRD 585 that Ma JA, as he then was, said, at para 11 (1), that “… if the case is one where the ventilation of arguments on important legal principles is likely to end up in the Court of Final Appeal, this is a very powerful factor in favour of admission,” though he did not suggest that that factor was necessarily determinative of an application.  See also Re: Flesch and another [1999] 1 HKLRD 506 at 513J and Re Dicker QC [2013] 2 HKLRD 245 in which latter case Cheung CJHC said at para [16] that “in a case which involves issues of great importance, issues that may likely end up in the Court of Final Appeal, the courts are more prepared to grant an admission of overseas counsel, notwithstanding the importance of the maintenance of a strong and independent local Bar.”

Analysis

18.  I should say at once that the fact that the Bar Association has expressed itself publicly on the merits of the legislation has nothing to do with its opposition to this application.  The Bar Association performs disparate functions and wears different hats.  On the one hand, it expresses itself on matters of law and fundamental freedoms, a function – indeed a duty – which is properly at the core of its ethos and is mirrored by Bar associations worldwide.  It is in the performance of that duty that it issues press statements of the kind issued by it in this case.  Quite separately, it is duty-bound to take such stand as it deems fit in the public interest to preserve and promote a strong Bar and it is in pursuit of that duty that it opposes this application.

19.  In the application of the governing principles to which I have referred, I first take into account the fact that this is not merely a case which is likely to find its way to the Court of Final Appeal; it is a case which is bound to find its way there, whatever its disposition at first instance or upon appeal to the Court of Appeal.  Any other view is not realistic.  In the circumstances of the present case, the Hapgood judgment, which gives weight to the fact that some issues may find their way to the Court of Final Appeal in which event it may be opportune to make a fresh application for admission of overseas counsel, is a judgment which can be distinguished.  First, it can be distinguished on the basis that it was a multi-issue case of the type that sheds issues as it progresses; whereas experience tells one that the issues articulated in the Notice of Application are well-crystallised issues that will remain the same crystallised issues throughout.  The nature and emphasis of the arguments may become refined with progress through the various curial levels, but it is that very fact which gives weight to the desirability of having the same team leader throughout; a team leader who is thereby better enabled helpfully to recalibrate and distil arguments and the more helpfully to address the Court of Final Appeal.  The second basis for distinguishing this case from Hapgood is the one already mentioned, namely, that this case is far more likely to reach the final Court than is a commercial action which does not raise constitutional issues.

20.  That the case involves the determination of important legal principles which will have a significant impact on the development of the jurisprudence of this Region is self-evident and, again, is not in issue.  In so far as it is said that the law of proportionality is well-settled and is familiar to local counsel, that is true.  But I agree with Mr Pao’s suggestion that the question of its application to the issues raised by this judicial review will hardly be an easy or well trodden path and it is undoubtedly the case that in the complex argument which tackles that issue, the considerable experience of this applicant will add a material dimension to the presentation of the case.  Some of the cases cited in the Notice of Application are cases decided by the European Court of Human Rights with the jurisprudence of which Court the applicant is intimately familiar.  And there is an unusual added dimension, which is this: the applicant not only brings to the Bar table, in the present context, the benefit of his experience in the conduct of constitutional cases in other common law jurisdictions and before the European Court but it is an experience which combines with his past exposure, by virtue of other landmark Hong Kong constitutional cases in which he has appeared as advocate, to the intricacies of the Basic Law and to Hong Kong’s constitutional setting.

21.  It was said at one stage that the applicant is not a specialist in election law.  I note from an Affirmation filed the day before the hearing of this application that he has some, though apparently limited, exposure to election law in other jurisdictions but at the end of the day I do not consider this in the context of the whole to be a determining factor.  It is said too that there have been a number of election law-related cases in Hong Kong which have been conducted by local counsel; illustration that no special dimension is added in this case by the importation of overseas counsel.  Yet it seems to me plain that each application for the admission of overseas counsel is case-specific and that there is a material difference between those election cases and this, in that they were cases which had not the breadth of ramifications of this case.

22.  I took into account as well the fact that local counsel would not, by virtue of this applicant’s admission, be precluded from partaking in the proceedings since both leading and junior local counsel have been instructed by the SCMA.  I did not however consider the fact of the applicant’s earlier engagement to advise the SCMA in respect of the proposed provision to add weight to the application.

23.  For these reasons, I was satisfied that it was in the public interest that the applicant be admitted and enrolled as a barrister of this Court for the purposes of advising and appearing for the SCMA before the Court of First Instance in the application for judicial review and in any consequential appeals.  Accordingly, I made an order in terms of the Notice of Motion subject to an amendment to take in such consequential appeals.