RE DAVID PANNICK QC

HCMP1414/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1414 of 2006

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J U D G M E N T

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1.  The Applicant seeks admission as a barrister to represent Dr Kwong Kwok Hay in an application for judicial review (HCAL 46/2006) fixed to be heard on 31 July 2006 before Reyes J.  The parties in the judicial review proceedings were first informed of this hearing date only on 6 July 2006.

2.  The applicant in the proceedings is a director of the Health Assessment Department and an Assistant Medical Superintendent of the Hong Kong Sanatorium and Hospital (“the Hospital”) in Happy Valley.  The Hospital is one of 12 private hospitals in Hong Kong.  As stated in his affidavit, a part of Dr Kwong’s duties include the publication of information to the public concerning the available facilities and medical services of the Hospital.  The question therefore of advertising is important as far as he and his employer, the Hospital, are concerned.

3.  The substance of Dr Kwong’s complaint is that the Medical Council of Hong Kong (“the MCHK”), the Respondent in the judicial review proceedings, has promulgated a set of rules contained in the Professional Code and Conduct for the Guidance of Registered Medical Practitioners (“the Code”) as regards advertising, which he alleges contravene the right of freedom of expression contained in the Basic Law and Hong Kong Bill of Rights.  The way it is put in the application for judicial review is not “advertising” as such but “practice promotion” and “dissemination of information”.  The particular paragraphs in the Code are paragraphs 4, 5 and 14.  One of the main arguments is that these parts of the Code do not satisfy the proportionality test that is required to be demonstrated if an infringement of constitutionally protected rights, occurs.  It is said that the restrictions imposed by these provisions of the Code are too stringent and stifle that the legitimate communication of accurate and objective information to which the public and health care professionals are entitled to be given access.

4.  The Notice of Application for Leave to Apply for Judicial Review was taken out on 7 April 2006.  Leave was granted on 10 April 2006 by Reyes J.  The Notice of Motion for judicial review was served on the MCHK on 20 April 2006.  As stated above, the court informed the parties of the date of hearing on 6 July 2006 and this was later confirmed on 10 July 2006.

5.  The Applicant applies mainly on the basis that the judicial review proceedings involve the determination of legal principles that will substantially impact on Hong Kong law; indeed it is a case that will likely end up in the Court of Final Appeal.

6.  The application for admission is resisted by the Hong Kong Bar Association.  Mr Roger Beresford (who appears for the Hong Kong Bar Association) identifies two main grounds : -

(1) The judicial review proceedings do not involve the determination of any legal principles that will substantially impact on Hong Kong law.

(2) No reasonable efforts have been made to instruct suitable counsel in Hong Kong in good time to do the case.

7.  In my judgment, the judicial review proceedings bring sharply into focus for determination by the courts the vexed question of how far protected rights in the Basic Law and the Bill of Rights can affect, if not render invalid, provisions contained in professional codes (such as the Code in question) regarding ethics and conduct.  The question of proportionality can, as Mr Herbert Li (for the Secretary for Justice) today submits, often be a very difficult one.  The judicial review proceedings will also involve a critical examination of the ability of the courts to regulate matters of ethics and professional conduct which a governing professional body such as the MCHK has seen fit to impose on its members.  Needless to say, the case will have important ramifications for the medical and health care professions (although this by itself is not a weighty factor in determining whether overseas counsel ought to be admitted).

8.  Cases like the present judicial review proceedings are few, from what I can see of the relevant authorities in this area.  Admittedly, some of the case law has been mentioned in various judgments of the Court of Appeal but, I would add, without any in depth analysis of the particular issues that will emerge from the judicial review proceedings with which we are concerned.  I am persuaded that these proceedings will involve the determination of legal principles that might well make a substantial impact on Hong Kong law.  This is a powerful factor in favour of allowing specialist overseas counsel (like the Applicant) to be admitted : - see Re Flesch QC & Another [1999] 1 HKLRD 506, at 513I-514B; Re McGregor QC [2003] 3 HKLRD 585, at 589I-590C (paragraph 11(1)).

9.  I now turn to the aspect of whether reasonable efforts have been made in good time to instruct suitable counsel in Hong Kong.  Here, I reiterate the requirement that it must be demonstrated just what efforts have been made to instruct suitable counsel in Hong Kong or, if it is said that no suitable counsel exists locally, the reasons for this belief must be given.  The purpose of this exercise is to allow the court to arrive at an informed decision having regard to all relevant facts : - see Re Crystal QC, unreported, HCMP 598/2005, 7 April 2005.  This will have to be shown in every case even where it is said that the relevant proceedings for which an applicant seeks to be admitted involve a determination of legal principles that may substantially make an impact on Hong Kong law or in cases of unusual difficulty or complexity.  Where a pool of available counsel in Hong Kong exists, the court will look at the size of the pool and examine the question whether the applicant is a person who will be able to add a “significant dimension” to the case, and therefore ought to be admitted.

10.  In the present case, there is undoubtedly a pool of suitable counsel in Hong Kong, though not a large one.  Inquiries were made of three leading counsel in early July as to their availability for the 31 July 2006 hearing but, not surprisingly, they were unavailable.  The inquiries made by the solicitors in the present case left much to be decided but in the end, I am of the view that this is not a sufficiently weighty factor against allowing the Applicant to be admitted.

11.  As to Mr Beresford’s argument that the application for consent was not made in a timely manner, he points to the fact that as early as the middle of last year, the Applicant had already been instructed to advise and had given his opinion sometime in July.  On 7 April 2006, the application for judicial review was made.  All this showed that if timely inquiries had been made of the availability of local counsel, suitable counsel may well have been found.  At least, the court would have been able to deal with the matter in good time instead of having to determine the present application only some 10 days before the actual hearing of the relevant cause.

12.  In other circumstances, the point made by Mr Beresford may well be a good one since the lateness of an application for admission will not normally be a factor that will in any way influence the court.  Where it is sought to instruct overseas counsel in any matter (and, as in the present case, it is not seriously considered that local leading counsel will be instructed), an application for admission ought to be made as soon as practicable.  However, in the present instance, the delay factor is not a point that is of any great significance : -

(1) By reason of the legal issues involved in the judicial review proceedings (see paragraph 7 above), the pool of suitable counsel was always going to be small.  The fact that the Applicant is an experienced and well-respected leader in this field will also mean that he will add a significant dimension to the case.  This I regard as a very important factor in the present application.

(2) In any event, the pool of available counsel in Hong Kong is even smaller.  In view of the lateness of the inquiries made by the solicitors brought about by the notification by the court in early July of a hearing in late July, it was not surprising that local counsel were simply not available for the hearing.

(3) Although with hindsight, it might perhaps be said that inquiries for suitable local counsel and the application for admission ought to have been made earlier, I regard this as almost a counsel of perfection.  The fact remains that the court only contacted the parties regarding the 31 July 2006 hearing on 6 July 2006.  The solicitors cannot really be faulted here.  On 15 June 2006, they had already contacted the Hong Kong Bar Association seeking its consent to the Applicant’s admission.  This was in relation to proceedings that were only commenced on 7 April 2006.

13.  The Secretary for Justice has provided helpful submissions and he supports the application.  Taking all the circumstances into account, I am of the view that the Applicant should be admitted in terms of the Notice of Motion dated 14 July 2006.