RE JONATHAN MICHAEL CAPLAN QC

HCMP 745/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 745 OF 2012

______________________

______________________

______________________

J U D G M E N T

______________________

Introduction

1.  This is an application, under section 27(4) of the Legal Practitioners Ordinance, for the admission of Mr Jonathan Michael Caplan QC to the Hong Kong Bar for the purpose of advising, preparing and representing five defendants (the defendants) in DCCC 153/2010 to stay the proceedings (the Stay Application).  Mr Cheng Huan SC and Mr Bernard Cheng appear for the applicant.

2.  The Bar Council, represented by Mr Selwyn Yu SC and Mr Vincent Chen, opposes the application and the Department of Justice, represented by Ms Leona Cheung SGC who has prepared an extensive and helpful written submission for which I am extremely grateful, appears to have taken a neutral stance.

3.  The Stay Application will be made on the basis that the criminal investigation and prosecution against the defendants are motivated by third parties for a collateral or improper purpose.  The suggestion is that such improper motive has the effect of compromising the independence, impartiality or objectivity of the investigation and/or prosecutorial process guaranteed under the Basic Law and therefore the criminal proceedings against the defendants should be stayed.

4.  The defendants are separately represented by solicitors and counsel, including senior counsel in DCCC 153/2010.  For the purpose of the Stay Application, they intend to have one firm of solicitors instructing Mr Caplan and two local counsel to act for them.  If the Stay Application is unsuccessful, the trial (which commences on 21 May 2012 for 35 days) will be conducted by local counsel.

5.  The defendants were charged under an indictment consisting of 11 charges of conspiracy to defraud and 2 charges of “money laundering”.

6.  The charges relate to letters of credit issued by four banks on the applications by associate companies of Wing Fai Construction Co Ltd (“Wing Fai”) in favour of Famous Capital Enterprises Ltd.  The prosecution alleged that the underlying commercial transactions relating to the letters of credit were not genuine.  The offences were said to have been committed in late 2001 to early 2002 although the defendants were only arrested in May 2008.

7.  The 1^st defendant (Cheng Kit-yin Kelly) was a former director of “Wing Fai” and its associate companies.  On 6 July 2002, provisional liquidators were appointed for “Wing Fai” and it was ordered to be wound up on 9 December 2002.  There had been subsequent civil actions between the liquidators (appointed on 28 February 2003), the 1^st defendant and other related parties in which serious allegations were made against one another, including allegations of a criminal nature against the defendants.  There were subsequent negotiations for a settlement between the parties and in the course of those negotiations there were suggestions that the allegations of criminal conducts would be withdrawn as a part of an overall settlement.

8.  It is against such background that the Stay Application will be made.  The suggestion is that the liquidators were “seeking to use the criminal process to enforce a civil settlement” and in so doing had been assisted by the investigation/prosecution authorities.

9.  The application for the admission Mr Caplan is made essentially on the bases that (1) the issues involved in the Stay Application, based on unconscionable conduct of a government agency prompted by a third party (here the liquidators with an alleged ulterior motive) who have compromised the independence and impartiality of the police/prosecuting authority, are difficult and complex issues likely to result in an determination by the Court of Final Appeal; and (2) as the Stay Application involves a review of the motives and actions of the liquidators, there is a potential embarrassment for local counsel when cross-examination of solicitors involved in the civil actions and prosecuting/investigating personnel becomes necessary.

10.  There are also the suggestions of delay in bringing the prosecution and the fact that Mr Caplan had already done a considerable amount of research and had provided thorough written and oral advices to the defendants.

11.  Mr Yu argues that the Stay Application does not involve any novel or complex point as the issue is well settled and is essentially a question to be determined by facts [see HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133 and (2003) 6 HKCFAR 336].  Mr Yu submits that a barrister’s duty is put his client’s case fearlessly and cross-examination of any witness should not lead to any embarrassment.  Mr Yu suggests that it is not in the public interest to admit Mr Caplan to the Hong Kong Bar under section 27(4) of the Legal Practitioners Ordinance.

12.  This is not a case where lawyers are defendants in a criminal trial or where lawyers will be giving evidence as prosecution witnesses when allegations of dishonesty may have to be put.

13.  A barrister has the duty to fearlessly present his client’s case to the best of his ability and should not be inhibited by any potential embarrassment in putting his client’s case.  Local counsel are involved and they are prepared to represent the defendants in the stay application.  The question of embarrassment is not a matter that justifies the admission of an overseas counsel.

14.  The question of delay, which is not seriously relied on by Mr Cheng, and the fact that Mr Caplan had already advised on the issue are not in my view relevant and do not constitute special circumstances to warrant the admission of an overseas counsel.

15.  Public interest is the only remaining question.  The general principles on admissions of overseas counsel based on public interest are well established and I wish to repeat what Cheung CJHC said in Re: Pointer QC (HCMP 455/2012) at paragraph 8:

“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.”

16.  Whilst the applicable principle in an application to stay a criminal proceeding is well established, its extension to cases involving alleged abusive acts of government agencies prompted by third parties with an ulterior motive has not been considered in Hong Kong, particularly in the context of the Basic Law, although similar issues have been canvassed in other jurisdictions.

17.  I have considered the advice of Mr Caplan and the cases that he had referred to.  I am persuaded that the Stay Application involves issues, the determination of which would have significant impact on the development of local jurisprudence. With his extensive experience, Mr Caplan will hopefully be able to further enhance the international recognition and reputation of the Hong Kong judiciary and be helpful and conducive to the maintenance of a strong and independent local Bar.

18.  It is, in my view, in the public interest to admit Mr Caplan to conduct the Stay Application for the defendants.  I therefore grant an order in terms of the Notice of Motion.