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HCMP000001/1989
1989 M.P. No. 1
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
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IN THE MATTER OF an application by Donald Martin Thomas Q.C Barrister and member of the Honourable Society of Gray's Inn England to be admitted to the Hong Kong Bar |
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IN THE MATTER OF High Court Criminal Case No. 24 of 1987 (R v. Lo Kwok Kuen) |
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IN THE MATTER OF the Legal Practitioners Ordinance Cap. 159 of the Law of Hong Kong |
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Coram: Hon. Jones J. in Court
Date of hearing: 19th January 1989
Date of decision: 19th January 1989
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D E C I S I O N
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1. This is an application by Donald Martin Thomas, a Queens Counsel practising in England, for admission to the Hong Kong Bar for the purposes of representing Lo Kwok Kuen (the accused) in a retrial of High Court Criminal Case No. 24 of 1987. The hearing is fixed to commence on the lst March with 11 other days reserved, and the pre-trial review has been fixed for hearing on the 23rd February. The application was opposed by Counsel who appeared for the Bar Committee whilst Counsel for the Attorney General adopted a neutral stance. The Law Society was not represented at the hearing.
2. The background to this application reveals that the accused was convicted after trial on the 25th May 1987 of two counts of murder. An appeal against the convictions began before the Court of Appeal on the 19th April 1988 when the accused was represented by the applicant, Mr Thomas, and by Mr van Buuren. The main argument on the appeal related to the admissibility of the evidence of a psychologist who had had an interview with the accused, in which it was alleged that he had disclosed details of the conditions at the scene of the crime of which only the accused could have been aware. As a result of certain matters raised at the hearing of the appeal, the appeal was adjourned in order that investigations be carried out. When the appeal was restored on the 8th November 1988, it was accepted that the accused, together with some police officers, had been to the scene before his interview with the psychologist. The Court of Appeal concluded in the words of Silke, V.-P. as follows:-
"There was in our view a material irregularity - in the sense that, given the emphasis placed on the significance of the disclosures made by the Appellant to the psychologist, highly material evidence which should have been before the jury was not ............................................
In the very unusual circumstances of the evidence at the trial and in the light of that which we have said we are left with a strong sense of disquiet as to the safe and satisfactory nature of the convictions."
As a result the convictions were quashed and a re-trial was ordered.
3. Mr van Buuren who to-day appeared on behalf of the applicant, submitted that the Bar Committee had not objected to the admission of Mr Thomas on the hearing of the appeal, and commented that the admissibility of the evidence of the psychologist involved a complex point of law which will necessarily be raised at the re-trial. He went on to say that the accused has absolute faith and confidence in Mr Thomas and no one else, so that it is a matter of paramount importance, and in the public interest, that he should be represented by the counsel of his choice, particularly as he is charged with a capital offence. Nevertheless, the accused's solicitors have made enquiries from ten local silks as to their availability to accept the brief, two of whom are willing and able to do so although one cannot appear at the pre-trial review. Although reference has been made to the lack of experience and capability of the two counsel available as compared with Mr Thomas, both silks have a wide and long experience at the Bar, including the conduct of criminal trials. My attention was drawn by Mr van Buuren to Re an application of Gerald James Kay Coles Q.C. for admission as a barrister [1985] HKLR 480 where Sir Denys Roberts, C. J. after considering some earlier authorities set out the following general principles that will be adopted upon hearing an application of the present nature. At page 482, he listed these principles as follows:-
"1. The paramount factor is the public interest.
2. It is in the public interest that there should be a strong and independent local Bar.
3. It is also in the public interest that overseas counsel should be admitted, in so far as the local Bar is not able to meet the needs of Hong Kong people for legal representation.
4. The general rule that a litigant is entitled to counsel of his choice means no more than that he has a right to choose counsel who are available and entitled to practise. He has no right to demand that overseas counsel be admitted for the purpose of representing him.
5. By reason of the terms of s 26 of the Legal Practitioners Ordinance, the burden lies on an applicant to show cause why an overseas counsel should be admitted.
6. his burden can be discharged by showing, for example, and this list is not intended to be exhaustive -
(a) that no local counsel of appropriate skill and experience is available;
(b) that the case is one of unusual difficulty or complexity;
(c) that the case requires specialist knowledge of the kind not available from the local Bar;
(d) the case is of such a nature as makes it desirable for overseas counsel to appear e.g. a case involving a very well-known local personality; or
(e) that no local counsel of appropriate skill and experience is available at a fee which is within the range of the client, whereas an overseas counsel is."
The principles are not exclusive and only amount to guidelines.
4. In this case, there are admittedly matters of law of some complexity with regard to the admissibility of evidence, but it does not have any other unusual feature. Applying the general principles laid down in the previous authorities I have come to the following conclusions:-
1. Two local silks are available for the hearing of the retrial, although one cannot attend the pre-trial review. I do not consider that it is essential for a silk to attend the pre-trial review which is well within the capabilities of junior counsel.
2. Although there are likely to be some complex matters of law, they do not justify the admission of overseas counsel.
3. The desire of the accused to have the counsel of his choice is limited to those who are available and entitled to practise in Hong Kong. It does not extend to a right to be represented by overseas counsel.
4. The public interest in this case will not be served by instructing overseas counsel.
5. The burden that lies upon the applicant to justify the admission of overseas counsel has, therefore, not been discharged. Accordingly, the application for admission will be refused.
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( B.L. Jones )
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Judge of the High Court
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Representation:
Mr B. van Buuren (Tang, Wong & Cheung) for Applicant
Mr W. Marshall, Principal Crown Counsel, for Attorney General
Mr A.G. Rogers, Q. C. & Mr Alan K.K. Leong (C.Y. Kwan & Co.) for Hong Kong Bar Association
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