RE MARK TAYLOR SIMPSON QC

HCMP 1013/2019

[2019] HKCFI 2689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1013 OF 2019

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J U D G M E N T

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1.  The applicant, Mr Mark Simpson, QC, seeks ad hoc admission under section 27(4) of the Legal Practitioners Ordinance, Cap 159 (“LPO”), for the purpose of advising and appearing on behalf of four plaintiffs at the trial in HCCL 9/2019 (“the Action”).[1] This is the first application where the admission of an overseas counsel is sought on the basis that, if admitted, he would only appear with the solicitor advocates having the conduct of the underlying proceedings without instructing a local barrister. It is opposed by the Hong Kong Bar Council but supported by the Secretary for Justice.

A.  Background

2.  The four plaintiffs in the Action are China Forestry Holdings Co Limited (In Official Liquidation) and some of its subsidiaries.  The defendant is the former auditor of China Forestry, KPMG. The Action is a substantial audit negligence claim.  The plaintiffs allege that the defendant negligently failed to identify that they were the victims of a serious and pervasive false accounting by former members of executive management who falsified the substantial majority of China Forestry’s planation assets and revenue in its financial statements for the year ended 31 December 2009.  The plaintiffs claim for loss and damages totaling more than HK$1.3 billion which, they allege, would have been averted had the defendant conducted a competent audit.  The trial of the Action has been fixed for 10 weeks in June 2021.  The parties are in the meantime taking various interlocutory steps such as discovery and preparation of witness statements to ready the trial.

3.  Since the outset of the Action, the plaintiffs have been represented by Messrs Lipman and Karas (“LK”). Mr Jason Karas and Mr Tim Kentish, who are solicitor advocates and principals of KL, have had conduct of the proceedings throughout.  Both of them (especially Mr Karas) have substantial experience in litigation in their capacity as solicitor advocates.  No counsel has been engaged hitherto.

4.  It is common ground that the Action involves unusual difficulty and complexity.  With the consent of the Bar Council, the defendant had already obtained ad hoc admission of Mr Justin Fenwick, QC for the purpose of advising and appearing on its behalf at the trial of the Action.[2] Mr Fenwick will appear together with a local senior counsel.

5.  On 8 November 2018, LK wrote to the Bar Council seeking its consent to the applicant’s ad hoc admission to advise the plaintiffs and appear at the trial of the Action together with Mr Karas and Mr Kentish without instructing a local counsel.

6.  Relevantly, LK regarded Mr Karas and Mr Kentish, who would be instructed to appear at trial of the Action, as local counsel for the purposes of both the trial and the applicant’s ad hoc admission.  Thus in answer to question 3 of Part I of the Bar Association’s Checklist on Ad Hoc Admission asking if suitable local counsel is unavailable, LK stated local solicitor advocates (Mr Karas and Mr Kentish) had been engaged.[3] In answer to question 9 of Part II on the evidence of attempts to look for local counsel with appropriate skill and experience and the results of such attempts, LK repeated that Mr Karas and Mr Kentish were instructed to appear for the plaintiffs.  To question 14 of Part II asking if viewed objectively, the attempt to instruct local counsel had been reasonable, serious and genuine, LK replied in the affirmative reiterating that local solicitor advocates had already been retained in the Action and continued to be instructed.

7.  Also importantly, it is not LK’s position that no senior counsel in Hong Kong is suitable or able to act for the plaintiffs.  LK simply took the view that a case of this magnitude and complexity would benefit greatly from the involvement of overseas leading counsel with specialization and expertise in large scale insolvencies, audit negligence cases and complex multi-disciplinary professional negligence cases, such as the applicant : see [26] of the letter of 8 November 2019 and the answer to question 14 of Part II of the Bar Association’s Checklist on Ad Hoc Admission.  This explains why LK had not made any enquiry to see if any suitable local senior counsel was available to take up the Action at all.

8.  While the Bar Council accepted that the Action is of sufficient unusual difficulty and complexity, it did not consider it to be in the public interest to admit the applicant when he would not be instructed together with local barrister(s).  The Bar Council was only prepared to consent to the applicant’s admission if he was instructed to advise and appear with suitable local barrister(s) instructed otherwise than on a nominal basis as opposed to local solicitor advocates and would oppose any application for the applicant’s ad hoc admission.[4]

B.  Main issues

9.  Before me, Ms Gladys Li SC (together with Mr Stewart Wong SC, Mr Anthony Chan and Ms Esther Mak) for the Bar Council accepted that the applicant has the requisite qualifications and substantial advocacy in court and is of fit and proper standing.  And there is no dispute that the applicant, with his vast and specialist expertise, would add a significant dimension to the Action, if admitted.  However, in addition to the objection raised by the Bar Council in correspondence, Ms Li also complained about LK’s failure to make any enquiry of availability of suitable local senior counsel.

10.  Two narrow but important primary issues arise for my determination :

(1)   whether in the circumstances of the present case, the applicant should be admitted on the condition that he acts together with a local barrister or whether he can instead act with Mr Karas and Mr Kentish, the two solicitor advocates with conduct of the Action from the outset, without instructing a local barrister (“First Issue”); and

(2)   whether in the circumstances of the present case, LK should have made enquiries of the availability of suitable local senior counsel (“Second Issue”).

11.  The guiding principle in approaching these Issues is well established.  The public interest is the paramount consideration in the court’s exercise of the unfettered discretion to admit overseas counsel under section 27(4) of the LPO.  In the context of a contested application, various and conflicting facets of the public interest are invariably engaged.  The court’s task is to identify the relevant facets of the public interest engaged, carefully balance them in a flexible and sensible way in order to arrive at a decision that best suits the public interest arising in the application.

C.  Maintaining a strong and independent local Bar

12.  The first and foremost aspect of the public interest that is plainly engaged in the present case is the maintenance of a strong and independent local Bar.  As will be explained in greater detail, this particular facet of the public interest explains why ordinarily, (1) a local counsel has to be instructed to appear together with the overseas leading counsel seeking admission and (2) it is required to ascertain the availability of suitable local counsel prior to the application for ad hoc admission.

C1.  Independence of the Bar

13.  Independence of the Bar has always been a fundamental pillar and indeed one of the hallmarks of the Hong Kong legal system.

14.  First, the Bar is independent from the Government.  The Bar has always been autonomous, only subject to the applicable provisions in the LPO and the court’s supervisory jurisdiction.  Independent from the Government and governmental agencies, the Bar is free to represent citizens without fear or favour in criminal proceedings and in protection of their rights and civil liberties against incursions from the Government in public law litigation.

15.  Second, there is a considerable degree of interpersonal independence in the barristers’ practice.  The Bar Code contain various rules that demand such independence of barristers, including the way in which their practices are organized.  Briefly, barristers must practise alone and are prohibited from forming partnerships with anyone else, whether or not they are lawyers : rule 5.15 of the Bar Code.  For administrative convenience, group of barristers may form together to share office accommodation (known as chambers) and support services and overhead expenses in running their practices.  They however remain self-employed.

16.  Third, subject to very limited limitations, the Bar Code prohibits barristers from taking up other employment : rules 5.7 and 5.8.  In a sense, it keeps barristers independent from other profession or employment.  Such independence aims at protecting the reputation of the Bar as an institution and ensuring that individual barrister’s ability to attend properly to his practice or interests of his clients will not be prejudiced.

17.  Fourth, barristers are independent from their clients.  A barrister can generally only be engaged by a solicitor through referral : rules 5.16 – 5.18 of the Bar Code.  A prospective client must first consult a solicitor in relation to any matter on which a barrister’s services are sought who would then advise if a barrister has to be instructed and if so act accordingly.  The independence implied by such a referral practice gives barristers a greater degree of objectivity than would otherwise be the case.  They can stand back and provide objective advice and services at a comfortable distance from clients and their views, however strong that might be.  Further, in rendering services on a case‑by‑case basis through referral, barristers normally do not have long-standing relationships with clients.  They enjoy greater freedom from conflicts of interests which allows them to give impartial and detached legal advice and services to clients.

18.  Further, solicitors are under a duty to advise their clients on the choice of counsel and to negotiate counsel’s fees. Since solicitors do not have any interest in who to instruct, they should be in a position to advise on the choice of counsel impartially in the best interests of their clients.  From clients’ perspective, the referral practice ensures that they can engage the most suitable available counsel according to the needs of the case and pursuant to their solicitors’ impartial advice.

19.  I digress to add that the referral practice also works for the benefit of solicitors.  Because of the areas or nature of their practices, solicitors may not have the necessary expertise at hand or may be too busy with other works to deal with a particular case.  They can then resort to the services of suitable or specialist counsel through referral.  This is of particular importance to the practice and even survival of sole proprietors and small firms who routinely and heavily rely on counsel’s services through referral.

C2.  The “cab-run” rule

20.  Another unique and essential feature of the Bar’s practice is the “cab‑run” rule.

21.  Rule 6.1 of the Bar Code provides :

“A practising barrister must accept any brief to appear before a court or instruction to provide any other legal services in a field in which the barrister practises or professes to practise if:

(a)  the brief or instruction is within the barrister’s capacity, skill and experience;

(b)  the barrister would be available to prepare and appear or otherwise work when the brief or instruction would require him to do so, and is not already committed to other engagements which may, as a real possibility, prevent him from being able to advance a client’s interests to the best of his skill and diligence;

(c)  the fee offered on the brief is proper;[5] and

(d)  the barrister is not obliged or permitted to refuse the brief or instruction under paragraphs 6.2 to 6.7;

and must do so irrespective of

(i)  the nature of the case;

(ii)  the party on whose behalf he is instructed; and

(iii)  any belief or opinion which he may have formed as to the character, reputation, cause, conduct, guilt or innocence of that person.”

22.  The “cab‑run” rule ensures that no one will be denied representation by counsel simply because they are who they are or their cause is difficult or unpopular.  It is of particular importance in criminal proceedings where, rightly or wrongly, the defendant is regarded as notorious or the crime alleged to have been committed is repugnant to the public; and in public law litigation where applicants often stand for what others and sometimes many others see as unpopular causes by taking on the Government.  The “cab-run” rule reflects the constitutional axiom of equality before the law.

C3.  Strong and independent local Bar and administration of justice

23.  The combined effect of the independence of the Bar and the “cab‑run” rule is of extreme importance to the administration of justice in Hong Kong.

24.  It makes the constitutional guarantee giving Hong Kong citizens access to justice meaningful by affording them with a wide and real choice of suitable counsel to take on their cases, whoever they are or however difficult or unpopular their cases or causes might be.  Without an independent Bar operating under the “cab‑run” rule, private citizens would be left with their own devices in pursuing their legitimate claims and interests in public or private law litigation, or defending themselves in criminal proceedings or the infringement of their rights by other private parties.

25.  In our adversarial system, our courts rely on the Bar’s independence in presenting the case and advancing arguments with impartiality and honesty, and with force and vigour.  Our judges act in the confidence that when barristers press a point, especially a difficult or novel one, they are guided by the best tradition of the Bar to act professionally, fairly and impartially; and that while fighting for their clients’ best interests, they would not sacrifice their professionalism and impartiality.  It enables the courts to arrive at a decision on facts or ascertain the applicable legal principles or even develop the law with the best assistance from counsel offered impartially without fear, favour, prejudice or bias.  This is crucial to the court’s process of developing the common law.

26.  Thus analyzed and understood, an independent Bar operating under the “cab‑run” rule is integral to the administration of justice and the maintenance of the rule of law in Hong Kong.  The public interest involved in maintaining a strong and independent local Bar is therefore immense and needs to be guarded jealously.  There must be appropriate safeguards to ensure that admission of overseas counsel will not inhibit the growth and development of the local Bar : Re Flesch QC [1999] 1 HKLRD 506, per Chan CJHC (as he then was) at p.514D‑E and G.  It mandates that overseas leading counsel, if admitted, normally do not appear alone or with other overseas junior counsel, save in very exceptional cases : Re Mably [2014] 1 HKLRD 627, affirming the decision of Cheung CJHC (as he then was) in [2013] 3 HKLRD 738.  It requires a usual condition to be imposed that overseas counsel, if admitted, should appear together with local counsel.  It would be extremely rare for the court to consider an ad hoc admission where no local counsel or only a nominal local counsel is briefed together with overseas counsel : Re Perry QC [2016] 2 HKLRD 647, per McWalters JA at [24(xv)].

27.  The same public interest considerations above also explain why before an ad hoc admission of overseas counsel is made, it is a requirement to make enquiry to see if suitable counsel is available to take up the case : Re Perry QC, supra, per McWalters JA at [24(xiv)].

28.  For completeness, I would add one more observation.  The benefits arising from instructing local counsel to appear with overseas counsel, such as cross‑fertilization, exposure to overseas counsel of sufficiently high quality and standing, acquisition of skill and experience in the trade, and development of their potential, are well recognized judicially and depending on the circumstances, are relevant in the overall balancing exercise.  Though personal to the local barristers instructed in the first instance, they are also considered from a wider perspective to be conducive to the maintenance of a strong and independent local Bar : see Re Flesch QC, supra, Chan CJHC at p. 514E-H; Re Perry QC, HCMP 503/2012, Cheung CJHC (as Cheung PJ then was) at [15].  This is so because the benefits accrued to individual barristers would help promote the growth and development of the Bar as a whole.

D.  Solicitor advocates

29.  In identifying and weighing the relevant facets of the public interest engaged in the context of ad hoc admissions, the court is mindful that public interest is an elastic concept which takes into account and where appropriate reflects the changing circumstances or development in the legal system.  With the change of circumstances, a new aspect may emerge or one aspect may become more important than others : Re Flesch QC, supra, per Chan CJHC at p.511E.

30.  In Re Flesch QC, Chan CJHC identified a new aspect of the public interest arising from the fundamental change of our legal system after 1 July 1997 by the establishment of the Court of Final Appeal as the highest court of the territory.  He at pp.511F-G and 515H‑I held that it was in the public interest that Hong Kong courts, particularly, the Court of Final Appeal, should develop our own jurisprudence which enjoys international recognition and reputation.  Here, it is the recent introduction of solicitor advocates in 2012 who can exercise higher rights of audience as barristers do, that requires careful consideration to see if a new aspect of the public interest has arisen.

31.  Before I go into the parties’ arguments in detail, I first set the scene for discussion to be followed in Part E.

D1.  Legislative history leading to their introduction

32.  Traditionally, solicitors only had limited rights of audience in courts.  They could only appear in the magistrates’ courts, the District Court and in chambers hearings in the Court of First Instance and the Court of Appeal.  In June 2004, the Chief Justice established a Working Group on Solicitors’ Rights of Audience (“the Working Group”) to consider whether solicitors’ existing rights of audience should be extended and if so, the mechanism for dealing with the grant of extended rights of audience to solicitors.  In its Final Report submitted in October 2007, the Working Party recommended that solicitors’ existing rights of audience should be extended and that an assessment board be established to deal with the grant of the extended rights.  The Working Party also made various recommendations in relation to the eligibility criteria, accreditation and assessment for granting higher rights of audience.

33.  In arriving at its recommendations, the Working Party was guided by the principle based on the public interest :[6]

“Plainly the public interest is the sole criterion… The public interest demands a high standard of advocacy before the courts. And it is in the public interest to enlarge the pool of advocates capable of reaching that standard. To that end, the talent for and interest in advocacy likely to be found in some solicitors should be tapped to enlarge that pool of advocates, provided that it can be done without creating an unacceptable risk to the sustainability of a separate referral Bar. The Working Party thinks that solicitors can be granted higher rights of audience without creating that risk.”

34.  The guiding principle, the Working Party reasoned, mandated a scheme which granted solicitors higher rights of audience while ensuring that standards of advocacy before the courts were maintained (or enhanced) and did not threaten the continued viability of the Bar.  It considered that the scheme described in the Final Report complied fully with the guiding principle.[7]

35.  The Chief Justice accepted the Working Party’s recommendations and requested the Administration to take forward the matter by appropriate legislations.  Consequently, a new Part IIIB was added to the LPO in 2012 to grant solicitor advocates, that is, eligible solicitors upon successful application to the Higher Rights Assessment Board, higher rights of audience before the Competition Tribunal, the High Court and the Court of Final Appeal, whether in civil proceedings, criminal proceedings or both, but does not include any of those rights that solicitors generally may from time to time have apart from the LPO.[8]

D2.  SA Code

36.  Solicitor advocates are subject to The Law Society’s Code for Advocacy for Solicitor Advocates (“the SA Code”).[9] Relevantly, the SA Code provides :

“2.1  Solicitor Advocates must not:

(a)  engage in conduct whether in pursuit of their profession or otherwise which is:

(i)  dishonest or otherwise discreditable to a Solicitor Advocate, barrister or solicitor;

(ii)  prejudicial to the administration of justice; or

(iii)  likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute;

(b)  engage directly or indirectly in any occupation if their association with that occupation may adversely affect the reputation of Solicitor Advocate or prejudice their ability to attend properly to the interests of clients.

2.2  Solicitor Advocates have an overriding duty to the court to ensure in the public interest the proper administration of justice is achieved: they must assist the court in the administration of justice and must not deceive or knowingly or recklessly mislead the court.

2.3  Solicitor Advocates:

(a)  must promote and protect fearlessly and by all proper and lawful means the clients’ best interests and do so without regard to their own interests or to any consequences to themselves or to any other person (including professional clients or fellow advocates or members of the legal profession);

(b)  subject only to compliance with specific provisions of the Legal Aid Regulations and to their overriding duty to the court owe their primary duty:

(i)  as between their lay client and their professional client; and

(ii)  as between the legal aid authorities and the lay client.

to the lay client and must not permit the legal aid authorities or professional clients to limit their discretion as to how the interests of the lay client can best be served;

(c)  must act towards clients at all times in good faith.

2.4.1  …

2.4.2  Solicitor Advocates must not decline to accept instructions to act as such:

(a)  on grounds relating to the race, colour, ethnic or national origins, creed, gender or sexual orientation of the client;

(b)  on the grounds that the nature of the case is objectionable to the Solicitor Advocate or to any section of the public;

(c)  on the grounds that the conduct, opinions or beliefs of the client are unacceptable to the Solicitor Advocate or to any section of the public;

(d)  on any ground relating to the source of any financial support which may properly and lawfully be given to the client for the proceedings in question (for example on the grounds that such support will be available under the Legal Aid Ordinance (Cap. 91)).

2.5  …

2.6  Solicitor Advocates must not:

(a)  permit their absolute independence and freedom from external pressures to be compromised;

(b)  do anything (for example accept a present) in such circumstances as may lead to any inference that their independence may be compromised;

(c)  compromise their professional standards in order to please their clients, the court or a third party.

2.7  Solicitor Advocates are individually and personally responsible for their own conduct and for professional work: they must exercise their own personal judgment in all their professional activities and must not delegate such responsibility to another advocate.”

37.  Further, under rule 4.2 :

“Solicitor Advocates (whether they are instructed on their own or with another advocate) must in the case of each brief consider whether consistently with the proper administration to justice and having regard to:

(i) the circumstances including the gravity, complexity and likely cost of the case;

(ii) the nature of their practice;

(iii) their ability, experience and seniority;

(iv) their relationship with the client;

(v) any other relevant circumstances or matters

the best interests of the client would be served by instructing or continuing to instruct them in that matter or to instruct another advocate (whether solicitor advocate or counsel).”

D3.  A relatively nascent development

38.  As appeared from data available in the public domain, as at July 2019, there are 59 solicitor advocates for civil cases and 5 for criminal cases.  There are only 4 instances where a solicitor advocate has exercised higher rights of audience to appear at trial, 101 instances where a solicitor advocate has been listed as appearing in any case. In contrast, there are 1,548 barristers in Hong Kong with 106 senior counsel.

39.  Based on these figures, Mr Jin Pao SC (together with Ms Carmen Poon SGC) for the Secretary for Justice rightly observed that solicitor advocates as a whole in Hong Kong still do not frequently exercise the higher rights of audience and in any event very rarely in the context of trials in the High Court.  We are still at a stage of the development where the role and number of solicitor advocates in Hong Kong is still relatively nascent.

E.  First Issue

E1.  Arguments

40.  Turning to the First Issue, Mr Karas (with Mr Kentish) for the applicant submitted that there is no relevant distinction between barristers and solicitor advocates for the purpose of the conduct of litigation and ad hoc admission because both barristers and solicitor advocates have the same right to appear in higher courts.  He submitted that solicitor advocates are equally independent as barristers under the relevant provisions in the SA Code.  That being the case, the public interest of maintaining a strong and independent local Bar for the purpose of ad hoc admission of overseas counsel should be read with a wider meaning to include a strong and independent body of local advocates, whether it is the Bar or solicitor advocates.  Alternatively, Mr Karas submitted that the additional benefit of having a body of strong local solicitor advocates should be given equal weight to maintaining a strong and independent Bar in the overall balancing exercise.

41.  Ms Li submitted that there are material distinctions between solicitors advocates and barristers.  She placed particular emphasis on the independence of the Bar and the “cab-run” rule, which do not apply to solicitor advocates.  She submitted that such material distinctions cut across the applicant’s arguments to justify ad hoc admission of overseas counsel when no local counsel is briefed.

42.  Mr Pao recognized the importance of maintaining a strong and independent local Bar.  In his written submissions, Mr Pao accepted that solicitor advocates cannot be equated with barristers for all intents and purposes.  However, he orally submitted that there is no material difference between barristers and solicitor advocates for the present application.  He argued that the rule 2.4.2 of the SA Code is in substance the same as the Bar’s “cab‑run” rule.

43.  Mr Pao further submitted that this is not a case where locally qualified legal talent will be deprived of an opportunity from reaping the benefits from working with eminent overseas counsel because Mr Karas and Mr Kentish will be continued to be instructed. He pointed out that there is also a public interest argument in favour of having solicitor advocates being able to work with the very best overseas counsel.  The courts in deciding ad hoc admissions did not intend to exclude solicitor advocates, who are now an important part of our legal profession and enjoy higher rights of audience.

44.  Although Mr Pao accepted that the starting point should be that overseas leading counsel should generally be instructed together with a local barrister, the approach should be applied flexibly and sensibly and taking into account change of circumstances.  He submitted that since this application is brought where the development of solicitor advocates is relatively nascent, it is premature to suggest that in each and every case the public interest would best be served by having overseas leading counsel appearing with a solicitor advocate only, without instructing a local barrister.  The public interest would best be served by securing the benefits of cross-fertilization to those who actually appear before and provide assistance to the court on a regular basis.  It is unwise and unnecessary to formulate a general rule of application.  Each case should be decided on its own merits and with regard to the particular features of the proposed admission.

45.  The parties’ contentions boil down to the following main questions :

(1)  Is there any material distinction between solicitor advocates and barristers for the purpose of ad hoc admission of overseas counsel?

(2)  If yes, is there any public interest consideration that weighs in favour of admitting overseas counsel to appear with solicitor advocates only?

(3)  If yes, how should the court balance such public interest consideration(s) with those for maintaining a strong and independent local Bar?

I will deal with them in turn in Parts E2 to E4 below.

E2.  Material distinctions between solicitor advocates and barristers

46.  I reject the submission that there is no material distinction between solicitor advocates and barristers.

47.  Firstly, it is clear from the legislative history leading to the introduction of solicitor advocates that the legislature intended that a marked distinction between them and barristers should always be maintained.  When the Working Party recommended to extend higher rights of audience to qualified solicitors, it was never its intention to fundamentally alter the structure of the legal profession.  On the contrary, the existing separation or dualism of the legal profession was to be maintained.  In particular, it emphasized that the introduction of solicitor advocates should not and would not create an unacceptable risk to the sustainability of a separate referral Bar.  Even with the enactment of Part IIIB of the LPO, the two separate branches of the legal profession are retained and they are not fused as in other common law jurisdictions.  It was thus never the legislature intention to equate solicitor advocates, despite the grant of higher rights of audience, with barristers for all intents and purposes.

48.  In this connection, I agree with Ms Li’s submission that the introduction of solicitor advocates was to only remove the monopoly that barristers had in respect of rights of audience in the higher courts, thereby increasing the pool of available qualified advocates in terms of litigation and advocacy work and services.  It was not a step to cut at the heart of a divided legal profession.  That said, I have no doubt that the introduction of solicitor advocates helps promote the administration of justice generally by making available to both the public and the courts the services of an additional pool of skilled advocates, not previously available, qualified for advocacy work in the higher courts.

49.  Secondly, while I accept that under the SA Code, there are some parallels between the practice of solicitor advocates and barristers’, such as the duty to pursue the best interest of clients, there are, as rightly submitted by Ms Li, two material distinctions between them.

50.  The first distinction concerns the acceptance of instructions.

51.  As said, barristers are subject to the “cab‑run” rule.  To recap, a barrister must accept any instruction to appear before a court in any field in which he professes to practise at his usual fee having regard to the type, nature, length and difficulty of the case, provided there are no other good reasons such as conflict or non-availability to decline instructions.  As stressed by Ms Li, the “cab-run” rule represents a fundamental aspect of a barrister’s role, namely, he is available generally through solicitors to every client and may be approached by a client on the same terms as any other client.

52.  Solicitor advocates are bound by rule 2.4.2 of the SA Code which sets out the various grounds on which they must not decline instructions.  Both Mr Karas and Mr Pao submitted that rule 2.4.2 of the SA Code is in substance the same as the “cab‑run” rule.  In my view, it is not.  Importantly, rule 2.4.2 does not impose any positive duty on solicitor advocates to accept any instructions.  It means that a solicitor advocate can still decline to accept instructions justified by any reason falling outside the ambit of the grounds set out there.  Take the following examples :

(1)  The grounds in (a) concerns who the client is.  A solicitor advocate may still decline to accept instructions from the client if he finds the client’s character or reputation questionable. Contrast that with rule 6.1(d)(iii) of the Bar Code which requires a barrister to accept instruction irrespective of any opinion which he may have formed as to the character or reputation of the client.

(2)  The grounds in (b) concern the solicitor advocate’s or the public’s view on the nature of the case.  Even if a solicitor advocate does not find the nature of the case objectionable, he may still decline to accept instruction if he is concerned about it.  Contrast that with rule 6.1(d)(i) of the Bar Code which requires a barrister to accept instruction irrespective of the nature of case.  His view on the nature of the case is simply irrelevant.

(3)  The grounds in (c) concerns the solicitor advocate’s or the public’s view on the conduct, opinions or beliefs of the client.  It does not stop a solicitor advocate from declining instructions if he forms any other view on the client’s conduct, opinions or beliefs, as long as he does not find them unacceptable.  Contrast that with rule 6.1(d)(iii) of the Bar Code which obliges a barrister to accept instructions irrespective of any opinion he may formed on the cause or conduct, guilt or innocence of the client.

53.  The second distinction concerns independence from clients and conflicts of interests.

54.  As solicitors, solicitor advocates can practise as sole‑proprietors or form partnerships or being employed.  Put shortly, they are all in-house solicitor advocates of their firm.  With respect to their clients, in additional to any possible personal conflict of interest, solicitor advocates are also affected by their firm’s interest.  Thus they cannot act for a client if any partner, consultant or associate of his or her firm, is conflicted.  Nor can they represent different interests in the same matter if they are in the same firm with someone already advising another party on the matter, or having a general or long-term relationship with another client whose interests conflict with any of the litigants.  Contrast that with barristers who, as explained, enjoy a considerably larger degree of independence from clients than solicitors including solicitor advocates under the referral practice and hence much greater freedom from conflicts of interests.

55.  Because of these material distinctions, in terms of their availability to the general public, solicitor advocates are far more restrictive than barristers.  Being so restricted, solicitor advocates play a significantly less important role than barristers in enhancing access to justice.  Hence and also because of the public interest considerations below, solicitor advocates and barristers are relevantly different and cannot be treated as if they were the same for the purpose of ad hoc admission of overseas counsel.

E3.  Public interest in favour of admitting overseas counsel to appear with solicitor advocates only

56.  In general terms, I accept that the public interest would be served by having a strong body of solicitor advocates in Hong Kong.  I echo the Working Party’s view in this regard.  I also accept that to facilitate its growth and development, it would also be in the public interest to benefit solicitor advocates by working with the very best overseas counsel upon admission.

57.  I spoke of the above considerations in general terms.  It is because while those statements may well be true generally, how much weight they can actually attract must be evaluated in the prevailing circumstances where the overall balancing exercise is undertaken. That is quite another matter.

E4.  Balancing the competing facets of the public interest as at now

58.  If an overseas counsel can be admitted to appear with a solicitor advocate without instructing a local barrister, the facets of public interest in favour of such admission inevitably compete with those for maintaining a strong and independent local Bar.  The competing interests need to be balanced carefully.

59.  Upon a closer analysis, as at now, the public interest in favour of admitting overseas counsel to appear with solicitor advocates only mainly lie in strengthening or facilitating the development and growth of solicitor advocates as a whole, which in turn helps promote the administration of justice generally.  But the public interest in maintaining a strong and independent local Bar goes fundamentally further.  As explained, a strong and independent local Bar operating under the “cab‑run” rule is crucial to the constitutional guarantee of access to justice in Hong Kong.  Any inhibition of the growth and development of the Bar will undermine access to justice.  If overseas counsel can be admitted to appear with solicitor advocates only, it would inevitably inhibit the growth and development of the Bar, with the undesirable consequence of undermining access to justice.  Such adverse impact on access to justice cannot be adequately compensated by the admission of overseas counsel appearing with solicitor advocates only because, as explained, solicitor advocates play a less significant role in enhancing access to justice.  Accordingly, the public interest in having a strong and independent local Bar for the extremely important purpose of maintaining and enhancing an effective and meaningful access to justice must definitely be accorded much greater weight than those in favour of admitting overseas counsel to appear with solicitor advocates only in the overall balancing exercise.  It requires, as an appropriate safeguard against inhibition on the growth and development of the local Bar, overseas counsel to appear together with local counsel, if admitted.

60.  In consequence, I hold that in the prevailing circumstances, overseas counsel should only be admitted on the usual condition that he appears together with a local barrister.  And I reject in their entirety Mr Karas’s and Mr Pao’s arguments on the public interest to the contrary.

61.  That said, I do not rule out the possibility that with further and more mature development of solicitor advocates in the future, the circumstances might materially change to such an extent that the public interest considerations in favour of admitting overseas counsel to appear with them alone might attract enough weight to justify the admission.

E5.  The present application

62.  Turning to the present application, I note that the plaintiffs have expressed a clear preference to retain Mr Karas and Mr Kentish, who have had conduct of the Action from the outset without instructing local counsel and are concerned about the additional costs if required to instruct a local counsel at this stage.  However, I do not consider the plaintiffs’ preference or costs concern to be any weighty factors, if relevant at all, in the balancing exercise when more important public interest considerations are at stake.

63.  Mr Pao submitted that this is not a case where locally qualified legal talent will be shut out from the Action. Nor is it a case where a solicitor has played or will play only a very limited role in the proceedings.  Mr Karas and Mr Kentish would stand to benefit from collaborating with the applicant just like any other member of the Bar.  I can readily see the immediate benefits that the two solicitor advocates would be able to reap by working with the applicant and how those benefits might possibly help the development and growth of solicitor advocates in the longer run.  But these considerations are not weighty enough to tilt the balance in favour of the applicant’s admission without instructing a local counsel.

64.  Finally, Mr Karas sought to rely on article 35 of the Basic Law, which provides that Hong Kong residents have a right to their choice of legal representation.  With respect, the reliance is misplaced.  Article 35 is simply not engaged because it does not provide a constitutional guarantee to have litigation conducted by a counsel of the party’s choice.  The fundamental requirement under article 35 is to ensure that the litigant is given an opportunity to seek legal representation in the context of having a fair trial : see Dr Ip Kay Lo v Medical Council of Hong Kong [2003] 3 HKLRD 851, per Cheung JA at [11] and [12].

65.  For the above reasons, my answer to the First Issue is that in the circumstances of the present case, the applicant should be admitted on the condition that he acts together with a local barrister.

F.  Second Issue

66.  I have already demonstrated why the public interest in maintaining a strong and independent Bar requires a prior enquiry to be made about the availability of suitable local counsel, and in the present case, local senior counsel.

67.  Mr Karas did not deploy an argument based on the public interest.  He repeated LK’s stance in correspondence that it is not suggested that no local senior counsel is not available to do the case.  He even accepted that a handful local senior counsel can do it.  He however argued that the requirement to make enquiry to ascertain if any suitable local senior counsel would take up the Action is not triggered because there is no dispute as to the appropriateness of overseas counsel being admitted.  Suitability of available local senior counsel is not in issue when it is appropriate to admit overseas counsel.  He further submitted that equality of arm dictates that like the defendant, the plaintiffs should also be entitled to instruct the applicant : Re Perry QC [2013] 1 HKLRD 145, per Cheung CJHC at [23], citing Re Thompson QC, HCMP 2190/2007, unreported, 14 November 2007.  With respect, I disagree.

68.  Mr Karas’s first argument that there is no duty to make the requisite enquiry is based on a misunderstanding of the authorities.

69.  Even in cases of unusual difficulty which may justify the admission of overseas counsel, like the Action, the duty to make enquiry of available suitable counsel still applies.  In Re Kosmin QC [1999] 1 HKLRD 641, Chan CJHC at p. 644B-C said :

“The fact that it can be shown that the case is one of unusual difficulty and complexity does not absolve the solicitors of the obligation to approach local counsel first before turning to overseas counsel.”

70.  In Re Crystal QC, HCMP 598/2005, unreported, 7 April 2005, Ma CJHC (as the Chief Justice then was) at [12] explained the rationale thus :

“There are at least two reasons for this. First, this will show the size of the ‘pool’ of suitable local counsel. Sometimes, it may show that the ‘pool’ does not exist. Secondly, even if suitable counsel does exist in Hong Kong, timeous inquiries will demonstrate the availability (or non-availability) of such counsel. All this will enable the court to arrive at an informed decision taking into account all relevant facts as to whether or not to admit overseas counsel for any particular case. At times, this can be a difficult balancing exercise involving questions of degree. Accordingly, it is important that the court is provided with all the necessary facts.”[10]

71.  In fact, in Re Mably, supra, where Lam VP at [62] reminded litigants not to disregard the duty to make due inquiries in any overseas admission application in the future.

72.  Mr Karas’s further argument based on equality of arm does not take him any further.

73.  In Re Thompson QC, supra, enquiries had in fact been made about the availability of suitable senior counsel.  Six senior counsel had been identified but all were rejected after consideration by the solicitor acting for the applicant.  The Bar was critical of such efforts.  Ma CJHC said :

“6. The court has on numerous occasions emphasized the necessity in all cases for an applicant (or, rather, his solicitors) and of course the burden is on the applicant, to demonstrate that serious consideration has been given to instructing local senior counsel. This is an aspect that is often ignored or underestimated but where insufficient efforts have been shown (or there is insufficient evidence of the efforts made) the court can refuse admission on this ground alone. I take this opportunity to remind would be applicants and their solicitors of the need to provide proper details on this aspect. As Mr Huggins [for the Bar] has submitted, it is an important facet of the court’s discretion.

7. In the present case, Mr Anderson Chow SC, for the Applicant has submitted that efforts were made to instruct local leading counsel and that whether more or less efforts ought to have been made depends on the circumstances. This is of course correct that one has to look at the circumstances in any given case.

8.  …

9.  As I think Mr Huggins accepted, it is a relevant factor in the present case that in the same proceedings overseas counsel has been admitted for another party.  This is particularly so since criminal proceedings are involved.  It would be invidious if it should be thought that while one party could get the benefit of overseas counsel, other parties cannot.  This is not in any way to downplay the status or ability of Hong Kong counsel but it is quite simply a matter of fairness and perception of fairness.  In the circumstances of the present case, I think it is decisive.”

74.  In Re Perry QC, supra, the evidence before Cheung CJHC did not show that the applicant’s solicitor had not made any enquiry.  It could be gleaned from counsel’s submissions that enquiries had in fact been made but the size of the pool of available counsel was limited : see [7].  Indeed, I would have thought that if no prior enquiry had been made, the Bar Council would have definitely opposed the application on that basis as well.

75.  Thus, when the authorities are properly understood, equality of arm simply means that the court will give due weight to the fact that an overseas counsel has already been admitted to represent another party to the same underlying proceedings and will be more inclined to allow the application at hand to ensure fairness.  It however does not absolve the solicitor acting for an applicant from making the requisite enquiry simply because another overseas counsel has already been admitted to act for the other party to the same proceedings.

76.  To answer to the Second Issue, I hold that in the circumstances of the present case, LK should have made enquiries of the availability of suitable local senior counsel.

77.  The present application is liable to be dismissed for lack of enquiry.  However, I think the plaintiffs should not be prejudiced by LK’s misunderstanding of the law in this regard.  The Action is of unusual complexity and difficulty and the defendant has already secured Mr Fenwick QC to act for them.  It would be extremely unfair to the plaintiffs if, through no fault of their own, they could not also get the applicant.  Because of these special circumstances, I am not minded to dismiss the present application on the ground of LK’s failure to make enquiry of the availability of suitable counsel.  However, my decision should not be understood as an excuse for not making due enquiries in future cases.  I would repeat the same reminder Lam VP gave in Re Mably, supra.

G.  Disposition

78.  In consequence, I allow the application with the usual condition that the applicant, if admitted, should appear together with a local counsel.