RE RICHARD GORDON Q.C.,

HCMP 1031/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1031 of 2010

----------------------

---------------------- 

-------------------------

J U D G M E N T

-------------------------

1.  The Applicant applies to be admitted as a barrister under section 27(4) of the Legal Practitioners Ordinance, Cap. 159 for the purposes of advising and representing a person (whom I shall simply refer to as “X”) at the hearing of an application to set aside an ex parte order granted by Deputy Judge Derek Pang (now D Pang J) under section 14(1)(d) of the Prevention of Bribery Ordinance, Cap. 201 (“POBO”).  The hearing is fixed for 6 July 2010.

2.  Essentially, section 14(1)(d) of POBO provides that where the Court of First Instance is satisfied that reasonable grounds exist for suspecting that an offence under the Ordinance has been committed, it may, on an ex parte application by the Commissioner of the ICAC (or an investigating officer), authorize the Commissioner to issue a notice requiring any person to provide information in relation to the investigation of the relevant offence that is suspected to have been committed.

3.  A notice was issued by Deputy Judge Pang on 2 March 2009 directed at X.  The relevant proceedings for which the Applicant seeks admission (HCCM 8/2009) involve an application to set aside the ex parte order.

4.  The present application for admission is predicated on two bases : that there are involved unusually difficult or complex legal issues, and that the proceedings also involve the determination of principles that would substantially impact on the development of Hong Kong law.

5.  In relation to both heads, it is submitted by Mr Timothy Parker (who appears for the Applicant) that the constitutionality of section 14(1)(d) will be at the forefront of X’s submissions in HCCM 8/2009.  In a nutshell, it will be contended that the provision is unconstitutional in that insofar as the statutory scheme under section 14 of the POBO has abrogated in its entirety the privilege against self-incrimination, this is inconsistent with the Bill of Rights contained in the Hong Kong Bill of Rights Ordinance, Cap. 383 (Articles 10 and 11 thereof).  This will involve an examination of the history and purpose of the legislation, as well as of decisions at all levels of court.  There will also be arguments on the extent to which the relevant statutory provisions engage questions of derivative use of immunity.  Mr John Reading, SC (who appears for the Hong Kong Bar Association) submits that the law is well settled.  I am not entirely persuaded of this.  There has been, as yet, no authoritative decision going to the question of the constitutionality of section 14(1)(d) or in relation to any questions of derivative use of immunity under that provision.  Previous decisions of the Court of Final Appeal dealing with the statutory scheme under section 14 of POBO have not dealt with the issue of constitutionality.  HKSAR v Lee Ming Tee and Another (2001) 4 HKCFAR 133 and Koon Wing Yee v Insider Dealing Tribunal (2008) 11 HKCFAR 170 provide much guidance on the constitutionality of investigative provisions which affect the privilege against self-incrimination, but neither case of course dealt with the investigative provisions under POBO.

6.  In my judgment, the admission of overseas counsel is justified in the present case.  I am persuaded that the issues involved in determining the application in HCCM 8/2009 are of unusual difficulty or complexity, and that their determination would impact substantially on the development of Hong Kong law. Rarely, if ever, would legitimate constitutional challenges not involve these two aspects.  Notwithstanding the fact that X intends also to instruct a very senior and experienced leading counsel for the July hearing (Mr Gerard McCoy, SC), I am also persuaded that the Applicant, by reason of his expertise and experience, would provide a significant dimension to the case.  Afterall, leading counsel has produced a certificate to the effect that, in his opinion, the engagement of the Applicant is merited in the case (which in his view is “surely destined” for the Court of Final Appeal).

7.  Lastly, I shall say something about the fact that very few (if any) inquiries have been made regarding the availability of suitable Hong Kong leading counsel.  This is an aspect that has consistently been emphasized by the court.  That said, where (as in the present case) it has been represented to the court that leading counsel in Hong Kong will be instructed in the same proceedings, the necessity of making inquiries of other suitable leading counsel assumes far less importance.  The inquiry then would be of suitable leading counsel in Hong Kong to lead another leading counsel; by definition, a limited exercise.  In the present case, the Hong Kong senior counsel who is engaged is an extremely experienced one in public law, and in these circumstances, the fact that few or no inquiries have been made of the availability of other counsel, is of little significance.

8.  For these reasons, I would make an order in terms of the Notice of Motion.