In the matter of Barrister of the High Court of Hong Kong

HCMP 2452/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2452 of 2000

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J U D G M E N T

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1. This is an application by the applicant for admission as a barrister in Hong Kong for the purpose of appearing in HCAL No.16 of 2000, pursuant to section 27 of the Legal Practitioners Ordinance, Cap.159. The Bar opposes the application. The Department of Justice takes a neutral stand.

Background

2. The case in which the applicant is to be briefed to appear is similar to three other cases in which different firms of accountants practising in Hong Kong take the Hong Kong Society of Accountants (HKSA) to court by way of judicial review. The facts of these four cases are similar although there are some individual differences. In each case, the accountancy firm involved was, for a particular period in the past, the auditor of a company listed in the Hong Kong Stock Exchange. Based on certain materials and information revealed by a subsequent firm of auditors, the HKSA instituted an inquiry to ascertain whether there were any breaches of the provisions of the Professional Accountants Ordinance in respect of the audit conducted by the accountancy firm. Pursuant to section 42C of that Ordinance, an investigation committee was constituted. The accountancy firm seeks a judicial review of the HKSA's decision to commence investigation.

3. Two of the four actions were heard in March and April 2000. The same judge heard both cases. In both cases, he dismissed the application for judicial review. The case in which the applicant is to be briefed to appear and the fourth case are scheduled to be heard together by the same judge on 24 July 2000. The accountancy firm in the first case had lodged a Notice of Appeal and it is likely that the accountancy firm in the second action would also take the matter on appeal. I have been told that it is the intention of the accountancy firms in the third and fourth actions that should judgments go against them, they too would appeal to the Court of Appeal and possibly the Court of Final Appeal. All these appeals are likely to be heard together.

Ground for application

4. It is not contended that the case in which the applicant is to be briefed to appear is one of unusual difficulty or complexity, although it is accepted that the issues involved are difficult and complex. The present application is made on the ground that it is in the public interest to admit the applicant. A number of points have been made. First, the case in which he is to be briefed may involve the determination, possibly by the Court of Final Appeal, of some legal principles which may have an impact on the development of local jurisprudence. Second, if the applicant is admitted, there will be cross-fertilization of highly qualified leading counsel who will help enrich the quality of advocacy and jurisprudence in Hong Kong and this would be beneficial to the development of the local Bar. Third, in these cases, the professional reputation of leading accountancy firms is at stake and their wish to be represented by counsel of their choice should be respected.

Issues in action in which applicant is to be involved

5. According to local senior counsel in a certificate submitted to the Bar for consent, the relevant proceedings involve a number of issues: (1) the construction of the relevant provisions of the Professional Accountants Ordinance; (2) the requirement of procedural fairness and natural justice in respect of the HKSA's decision to institute investigation; and (3) whether the HKSA has a duty to give reasons for constituting the investigation committee. It is argued that these cases raise important issues of administrative law involving the exercise of the disciplinary and investigative powers of the HKSA under the provisions of the Professional Accountants Ordinance. At the centre of these cases is the issue: to what extent do the principles of procedural fairness and natural justice apply to the pre-judicial stage of a professional disciplinary process. This issue, it is submitted, may require a determination by the Court of Final Appeal in due course. Further, counsel argues, these cases concern well known accountancy firms and since the applicant is an expert on accountancy law, he would be in a position to make a useful contribution.

Construction of local ordinance

6. The case in which the applicant is to be briefed to appear involves the construction of the relevant provisions of the Professional Accountants Ordinance, i.e. provisions regarding the powers of a statutory professional body to commence investigation into the conduct of its members. These provisions do not come from any English equivalent legislation. It is a matter of construction of a local ordinance by the court having regard to the purposes of that ordinance and local circumstances. That being the case, I do not think it can be said that overseas counsel would have any advantage over local counsel or would be in a better position to make a greater contribution.

Principles of procedural fairness

7. As to the applicability of the principles on procedural fairness and natural justice, it is suggested that there are some decided cases in Australia and New Zealand with regard to whether there is a common law duty to act fairly in every stage of an inquiry process including its initiation. It is said that these principles will require a determination by the Court of Final Appeal which will be invited to follow the Australian approach and to develop the local doctrine of procedural fairness and natural justice along such lines. In my view, the principles of procedural fairness and natural justice are fairly well established. It is the applicability of such principles to different stages of an inquiry which is called into question. Whether such principles are applicable to these 4 cases would depend to some extent on the construction of the relevant provisions of the local ordinance. Even if Australian and New Zealand authorities are relevant (and I do not rule out this possibility), it would not be necessary to admit London counsel to refer to and argue on these authorities. It must be noted that local senior counsel came from Australia and is also qualified to practise there and if the need arises, counsel would no doubt assist on these authorities. The parties in the two earlier cases were all represented by local leading counsel without the assistance of a junior. They are counsel of considerable experience in administrative law and are well capable of addressing the court on the relevant principles of administrative law. I do not see any advantage in admitting an overseas counsel in these cases.

Applicant's expertise

8. It is also to be noted that the applicant, although admittedly a Queen's Counsel of sufficiently high quality and standing, is apparently not specialized in administrative law. He is specialized, among other areas of the law, in Chancery matters and commercial litigation including particularly company insurance and re-insurance matters. His own curricular vitae shows that all the important cases which he had handled during recent years did not involve judicial review except one case which he did in 1992. While it is accepted that the English Bar Directory may not, as submitted by counsel for the applicant, be entirely accurate, this directory shows that neither the applicant nor his chambers are known to be experts in administrative law. Indeed, they do not hold themselves out as being specialised in this area of the law. On the other hand, both local senior counsel (one of whom is to be led by the applicant) in the two earlier cases are two of the most experienced experts in administrative law in Hong Kong. I am therefore unable to say that there would be worthwhile cross fertilization in the present case.

Relevance of accounting practice

9. It is accepted that the applicant has tremendous experience in accountancy law and is most familiar with accounting practice. However, in the case in which he is to be briefed, it is not the conduct of the accountancy firms which is subject to judicial review. It is the conduct of the HKSA in commencing investigation against these accountancy firms which is being questioned by the court. I cannot see how the applicant's experience can be of any particular significance to the case.

Client's choice of counsel

10. The wishes of the litigants to have counsel of their choice must of course be respected. However, bearing in mind the spirit and intention of s.27 of the Legal Practitioners Ordinance and the consideration of public interest, that cannot mean just any counsel of their choice, whether he may or may not be in a better position to make any useful contribution than local counsel. Looking at the facts of this present application, I cannot help but think that it would seem that the accountancy firm which proposes to instruct the applicant is worried that other accountancy firms which had briefed local counsel had failed before the same judge on similar issues and (as suggested by counsel for the applicant) wants to bring in someone from London who may have a fresh prospective in the case, someone whom it had briefed before to join the local team. That, however, is far from being sufficient to show that it is in the public interest to grant the application.

11. I shall for the sake of completeness mention that with regard to the last issue raised by local senior counsel in his certificate, i.e. the duty to give reasons for a decision, it is clear from the authorities referred to by him that this aspect of the law had already been considered in a recent decision of the Court of Final Appeal.

Conclusion

12. The fact that a case may go all the way to the Court of Final Appeal is not necessarily a sufficient reason to instruct overseas counsel. The issues which are identified by local senior counsel as being involved in these four cases are unlikely, in my view, to involve a determination of legal principles which would require the determination by the Court of Final Appeal and which may have an impact on the development of local jurisprudence. Even if I am wrong in this assessment, I am also of the view that while the applicant is a barrister of a very high calibre, he does not claim to have and is not known to have the requisite expertise in administrative law to be in a position to make a useful contribution. Hence, even if it is a case which may ultimately reach the highest court and which involves important issues for the determination by the Court of Final Appeal, I do not think this application satisfies the criteria which govern the admission of overseas counsel. I am not persuaded that it is in the public interest to admit the applicant for the sort of cases I have referred to above. I am also not convinced that local leading counsel already involved in these cases would benefit from any cross-fertilization or that the involvement of the applicant in one or more of these cases would enhance the development or improve the standard of the local Bar. For these reasons, I would refuse the application.

Touting activities not involving the applicant

13. There is one other issue which has caused me some concern. The Bar invites me to give some guidelines on the effect of touting or alleged touting activities on the court's discretion in granting or refusing applications for admission to the Hong Kong Bar. In its submissions, counsel for the Bar has drawn my attention to the many complaints the Bar Council has received that recently a number of English barristers or senior clerks of English barristers' chambers had come to Hong Kong hosting parties and receptions and engaging in touting activities. They had come, it is said, "in delegations" and entertained local solicitors including solicitors of London firms which also practise in Hong Kong. All these, the Bar says, amount to touting and are hence breaches of the Code of Conduct of the Hong Kong Bar. It is however clearly accepted by the Bar that it is not alleged that the applicant in this application has in any way been involved either directly or indirectly in such activities. In fact, on the evidence submitted by the Bar, all the names of English counsel who are alleged to be subject to such complaints has been concealed.

14. I have been informed that in the United Kingdom, the rules against advertisement have been partially relaxed, although touting activities are still generally prohibited. However, the Hong Kong Bar had in a special meeting of its members recently voted against such relaxation. Whatever the position in other jurisdictions may be, touting activities in Hong Kong are and have always been regarded as unprofessional conduct and a breach of the Code of Conduct of the Hong Kong Bar. Having regard to the traditionally high standard of integrity of this honourable profession, it is only reasonable for the Hong Kong Bar to regard such conduct as not acceptable. It would also create an unfair advantage over other practitioners who abide faithfully by the Code of Conduct. The difficulty arises when an overseas counsel or his clerk comes to Hong Kong and engages in such activities. He cannot be disciplined since he is not a member of the Hong Kong Bar. It is only when he seeks to be admitted to the Hong Kong Bar that such conduct becomes relevant. The Hong Kong Bar is, in my view, quite rightly and understandably concerned with this kind of activity.

15. However, I do not think this is an appropriate case to give any guidelines regarding touting activities. First, there is no allegation against the applicant in this case. The touting issue has nothing to do with him or with his action and he did not wish to make and had not made any submission on it. Second, from the evidence adduced before the court, it is difficult, if not impossible for me to make any finding of fact. Without any finding of fact, there will be no factual basis upon which I can set any guidelines. Third, touting activities are so varied and controversial that it would be dangerous to make any generalisation on the effect of such activities on future applications for admission to the Hong Kong Bar.

16. Having said that, I should reiterate that public interest is of paramount consideration in an application for admission. It would be acting contrary to public interest for the court to admit a person who is not fit and proper to practise at the Hong Kong Bar. In my view, a person would not be fit and proper if his conduct is, had he been a member of the Hong Kong Bar, in breach of its Code of Conduct. It is of course for the Bar to consider whether any conduct (be it conduct of its members or that of a person who intends to become a member) amounts to a breach of its Code of Conduct. If there is evidence to show that a particular applicant has previously, before his application for admission, directly or indirectly engaged in, or expressly or impliedly authorised, activities which, if he had been a member of the Hong Kong Bar, would amount to a breach of its Code of Conduct, this should be a relevant fact which must be drawn to the attention of the court and the court would have to take this into consideration in the exercise of its discretion. For the time being, in the circumstances of this case, I do not think I should come to any concluded view on this matter. All these may have to be fully canvassed in a future appropriate case. For these reasons, I would decline the invitation to give any guidelines.