RE MR ANTHONY RALPH PORTEN QC

HCMP466/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 466 of 2005

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J U D G M E N T

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1. The Applicant seeks to be admitted for the purposes of representing the Appellant, Sun Honest Development Ltd (“SHDL”), in an appeal due to be heard by the Court of Appeal on 11 May 2005 and 12 May 2005.  The appeal is from a decision of Chung J in judicial review proceedings instituted in relation to the decision of the Buildings Appeal Tribunal (“the BAT”) in Case No. 152-2001.

2. Briefly, the judicial review proceedings involved the following facts and matters : -

(1)	SHDL is the developer of a property located at Nos.4 and 4A-4D, Wang Fung Terrace (“the site”).  It wishes to develop the site and to this end, on 27 August 2001 applied for the approval of building plans for a 40-storey residential building.  It is the Building Authority’s rejection of this application that led to an appeal to the BAT in Case No. 152-2001 and from there to the Court of First Instance in the judicial review proceedings.
(2)	The BAT dismissed SHDL’s appeal on a number of grounds under various provisions of the Buildings Ordinance, Cap.123.  In the judicial review proceedings before Chung J, the same grounds were raised together with a new one based on bias (involving the Chairman of the BAT).  Chung J identified the challenges in this way in his judgment : -
	“	Under the heading ‘The Grounds of Review’ in the Form 86A, the applicant contends that the decision should be judicially reviewed because:-
	(a)	insofar as it was based on s. 16(1)(g), it failed to follow the guidance provided by the said approved OZP and is contrary to s. 13, Town Planning Ordinance (Cap. 131);
	(b)	insofar as it was based on s. 16(1)(h), it misinterpreted that provision;
	(c)	insofar as it was based on s. 16(1)(d) and Reg. 23(3)(a), Building(Planning) Regulations, it was based on an error of law and fact;
	(d)	further to (c) above, a consistent approach should have been adopted in relation to the inclusion of the area of gridline 1; the same treatment should have been given to the applicant’s application for approval as that given to the 1979 application of the owner of No. 2;
	(e)	further to (c) and (d) above, insofar as the decision was based on s. 16(1)(d) and (i) in relation to minor matters in the building plans, it failed to consider that those matters should have been dealt with by way of various Practice Notes for Authorised Persons instead of a refusal to approve the building plans.
	At the beginning of the hearing of this application, the applicant sought (and was given) leave to rely on a further ground, namely, apparent bias on the part of the chairman of the tribunal.”
	The various sections referred to in this passage (apart from those referring to specific ordinances) are references to the provisions in the Buildings Ordinance.  The “approved OZP” mentioned is a reference to the approved Causeway Bay OZP No.S/H/6/9 which zoned the whole of Wang Fung Terrace as Residential (Group B).  “Gridline 1” was that half of the lane, owned by SHDL, that separates the site from No.2 Wang Fung Terrace.  This lane became the subject matter of arguments as to whether it was a right of way or easement and therefore whether or not it could be included as part of the area of the proposed development.
(3)	Without going into too much detail on the reasoned judgment of Chung J which is now under appeal, it is clear that he dismissed the application for judicial review largely through a combination of interpreting the relevant provisions of the Buildings Ordinance referred to above and the application of such interpretation to the facts of the case.  I say “largely” because there are two matters that do not wholly fit in with this description : - the issue on whether a right of way had been created by implication or by prescription and the bias issue.
(4)	On the right of way issue, the Judge upheld the decision of the BAT that on the facts a right of way (or easement) existed as a matter of implication.
(5)	On the issue of bias, the Judge held on the facts of the case that there was insufficient grounds to found a case on this basis.

3. In this Motion, Mr Remedios (for the Applicant) argues that the appeal involves the determination of legal principles that may have a significant impact on the development of local jurisprudence and that the case is also one of unusual difficulty or complexity.  Reliance is placed on Re Flesch QC & Another [1999] 1 HKLRD 506 and Re McGregor QC [2003] 3 HKLRD 585.  The particular matters said to come within these headings are stated in counsel’s skeleton argument as follows : -

“The Appeal involves the determination of legal principles which are complex and which have implications for pending and future cases, involving inter alia the following issues of law:
a)	The application of appropriate ‘natural justice’ tests to be applied in respect of Barristers, when sitting as Tribunal Chairmen.
b)	The relationship between the Outline Zoning Plan, the Town Planning Ordinance (CAP 131), the Building Ordinance (CAP 123) and the Building (Planning) Regulations (CAP 123F).
c)	The creation of easements by necessity, by implication, or by prescription.”

4. Notwithstanding the arguments contained in Counsel’s Certificate and those forcefully put by Mr Remedios today, I am unable to accede to the present application.  I am of this view for the following reasons : -

(1)	When ultimately analysed (apart from one issue to which I shall come), the various points sought to be run by SHDL in the appeal do not involve the determination of legal principles that may have a “significant” impact on the development of Hong Kong law nor are they matters that, whether individually or cumulatively, can be said to be of “unusual” difficult or complexity.  I stress the words “significant” and “unusual” : - see Re McGregor QC at 589-590 at paragraphs 11(1) and (2) and Re Pannick QC [2004] 1 HKLRD 950 at 956 at paragraph 15.
(2)	Much emphasis has been laid on the fact that it may be necessary to argue that certain decisions of the Court of First Instance may have been “wrongly decided and should be disapproved or, alternatively, should be distinguished”.  It is also argued that the right of way or easement issue is one that was wrongly decided in that the evidence could not support the BAT’s conclusion.  There is another aspect of the right of way or easement issue which is discussed further below.  The bias issue was also highlighted.  These and other points in the appeal, which involve not just aspects of law but also of fact, do not involve points of law that may have a “significant” impact on Hong Kong jurisprudence, nor is the case one that is of “unusual” difficulty or complexity.  They are matters that are dealt with on a regular basis in our courts and do not call for the expertise and experience of specialist counsel from overseas.  Further, as I remarked during the course of the hearing, this appeal will to a large extent involve fact sensitive matters.  Ultimately, I think that Mr Remedios accepted that a large part of the case was perhaps fact sensitive and that the decision of the Court of Appeal would perhaps be of limited value generally other than perhaps in relation to a proposed development adjacent to the site.
(3)	On one aspect of the right of way (or easement) argument, Mr Remedios impressed on me the difficulty that was involved in the question whether an easement could be said to arise by prescription.  Here, he relied on the judgment of Reyes J in Kong Sau Ching v Kong Pak Yan [2004] 1 HKC 119.  I was at first somewhat attracted to the submission that this interesting and important point might be one that involved the determination of a legal point that would make a significant impact on Hong Kong jurisprudence.  However, upon reflection, I believe there are three answers to this.  First, it is not an issue that is a live one at this stage: the Judge having rejected the arguments of the Respondent in the judicial review proceedings on easement by prescription, there is, at the moment, no Respondent’s Notice raising this issue on appeal.  It was Mr Remedios’ submission that a Respondent’s Notice would inevitably be forthcoming but this, with respect, was perhaps speculative at this stage.  Secondly, the BAT and Chung J decided on the facts that there was an easement by implication or necessity.  It may therefore not even be necessary to raise the issue of easement by prescription at all.  Thirdly, the question is, as Mr Leo (for the Bar Association) pointed out, one that does very much depend on the local circumstances prevailing in Hong Kong.
(4)	Even if it could be said that some of the points in the appeal involved the determination of legal principles that may have a significant impact on the development of Hong Kong law or that the case was one of unusual difficulty or complexity, I am not satisfied in the present case that due inquiries have been made by the Applicant’s solicitors on the availability of Hong Kong counsel.  In Re McGregor QC at 591 (paragraph 11(3)), the Court said this : -

“I should just say something more about the aspect of suitability of local counsel.  It is clear from the passage just set out that it is not necessary to demonstrate that no senior counsel exists in Hong Kong who would be able to do the case.  That must be an extremely rare situation anyway.  However, where the degree of difficulty or complexity is such that the court is of the view that specialist counsel would be highly desirable, the pool of suitable local counsel will necessarily be limited.  In the past, complex cases involving tax or patent law have come under this category.  The question is not so much whether counsel in Hong Kong is able to do the case competently or even skilfully, but whether the specialist overseas counsel can add a significant dimension to a very complex or difficult case.  Having said this, I think it must also be recognised that in other cases of unusual difficulty or complexity, the pool may be larger and the court may be less receptive to the admission of overseas counsel.  These involve matters of degree from case to case.”

5. The obligation to make due inquiries is contained in cases like Re Kosmin QC [1999] 1 HKLRD 641 and Re McGregor QC.  I have recently emphasized this in a case decided yesterday (Re Crystal QC, HCMP598/2005).  In the present case, only two leading counsel have been approached in respect of a case where one would have thought that numerous leading counsel in Hong Kong were more than able to conduct the case competently and skilfully, in particular any part of the appeal that involves aspects of land law.

6. For the above reasons, the Motion is refused.

(Argument on costs)

7. No order is made as to costs.