RE MR TIMOTHY WYNN OWEN KC

HCMP 1213/2025

[2025] HKCFI 4569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1213 OF 2025

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REASONS FOR JUDGMENT AND DECISION ON COSTS

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1.  This is an application by Mr Timothy Wynn Owen KC (“the applicant”) for his ad hoc admission as a barrister in the High Court of Hong Kong, for the purpose of advising and appearing on behalf of two persons in their renewed application for leave to appeal to the Court of Appeal against the order of Campbell-Moffat J made on 16 March 2023 (“16.3.23 Order”) continuing a restraint order dated 21 September 2022 (“Restraint Order”), and, if leave to appeal is granted, the appeal proper.

2.  Having heard Mr Anson Wong Yu Yat for the applicant[1] and Mr Rimsky Yuen SC for the Secretary for Justice[2] (“Secretary”; in his capacity as guardian of public interest), I refused the application at the conclusion of the hearing. These are the reasons.

Background

3.  The relevant background matters may be stated as follows.

4.  The Restraint Order was made on the ex parte application of the Secretary against three persons under section 15 of the Organized and Serious Crimes Ordinance, Cap 455 (“OSCO”). The two persons as mentioned above are the 2^nd and 3^rd respondents (“R2” and “R3”). By the Restraint Order, (1) R2 and R3 are prohibited from disposing of their assets, which included the properties identified therein; and (2) they are required to disclose their assets for the preceding six years (“Disclosure Order”).

5.  R2 and R3 issued a summons on 11 November 2022 to discharge the Restraint Order, alternatively, to vary the Restraint Order in these respects: (1) to specify the maximum value of the assets which R2 and R3 are prohibited from dealing with; and (2) to remove or vary the Disclosure Order.

6.  On 16 March 2023, Campbell-Moffat J heard the summons of R2 and R3 and the application of the Secretary for further variation of the Restraint Order. By the 16.3.23 Order, the judge ordered, among other things, (1) the application of R2 and R3 for discharge of the Restraint Order be dismissed; and (2) the Disclosure Order be varied to the extent that the value of assets required to be disclosed by R2 shall not exceed HK$308,376,696 (which shall include the sum of HK$211,472,629 already restrained), and the value of assets required to be disclosed by R3 shall not exceed HK$246,622,406 (which shall include the sum of HK$204,282,444 already restrained). Reasons for the judge’s decision were handed down on 2 May 2023.

7.  By a summons filed on 30 March 2023, R2 and R3 sought leave from the judge to appeal against the 16.3.23 Order. The judge heard the application on 20 July 2023. Mr Pun appeared for R2 and R3. He relied on three intended grounds of appeal: (1) the judge has no jurisdiction to make the Disclosure Order under OSCO (“Ground 1”); (2) the judge erred in double counting the amount of “benefit” allegedly received by R2 and R3 and should have varied the Disclosure Order such that the aggregate value of assets to be disclosed by R2 and R3 shall not exceed HK$335,141,811.32[3] (“Ground 2”); and (3) the judge erred in failing to specify the maximum value of the properties which are subject to the Restraint Order and should have varied the Restraint Order by specifying the maximum value of the properties under restraint at HK$335,141,811.32 (“Ground 3”)[4].

8.  By her decision of 7 August 2023, the judge refused leave to appeal to the Court of Appeal. As to Ground 1, she was satisfied that R2 and R3 have not shown any reasonable prospect of success nor some other reason why in the interests of justice the point should be canvassed before the Court of Appeal. She stated at §15:

“The powers conferred upon the Court of First Instance under s 15 of OSCO are provided for to give effect to its powers to make a confiscation order under s 8. They provide a mechanism by which assets are secured in advance of the determination of the underlying criminal proceedings, so as to ensure that confiscation can take place where appropriate. Without that power and the ancillary power to order disclosure, any subsequent confiscation proceedings may be rendered nugatory.”

9.  As to Grounds 2 and 3, the judge took the view that they are not reasonably arguable. She rejected Mr Pun’s contention that the prosecution has accounted for the same sums as against R2 and R3 under the three charges for which they are jointly charged. She reasoned that the Secretary “may in law seek to restrain the whole of the identified benefit of a crime where there are co-defendants who are jointly liable”.

10.  R2 and R3 renewed their application for leave to appeal to the Court of Appeal by a summons issued in CAMP 290/2023 on 21 August 2023, supported by a statement of the same date (“Rs’ Statement”) pursuant to Order 59 rule 2A(1)(a) and Practice Direction 4.1 §8 and a draft notice of appeal.

11.  Before the renewed leave application was filed, the solicitors of R2 and R3, K B Chau & Co (“KBC”), wrote to the Hong Kong Bar Association and the Secretary on 18 August 2023 seeking their consent to the ad hoc admission of the applicant to advise and appear for R2 and R3 in the renewed leave application and, if leave is granted, the appeal proper.

12.  On 15 September 2023, the Bar Association wrote to KBC stating that it does not object to the proposed admission of the applicant.

13.  On 19 October 2023, the Secretary filed a statement in opposition in CAMP 290/2023 to oppose the renewed leave application.

14.  The Secretary and KBC received a letter from the clerk to Barma JA dated 29 November 2023 informing them that the leave application in CAMP 290/2023 has been placed before him for consideration and unless otherwise directed, the application shall be dealt with on paper and the decision handed down on or before 8 May 2024.

15.  On 19 December 2023, the Secretary wrote to KBC stating that he would put on hold consideration of the applicant’s ad hoc admission until the result of the leave application in CAMP 290/2023 was available.

16.  Various letters were written by the clerk to Barma JA to the Secretary and KBC from April 2024 to April 2025 notifying them of the extended date by which a decision on the leave application would be made. The last letter mentioned a date for handing down the decision by the end of June 2025.

17.  On 20 June 2025, a decision was handed down by the Court of Appeal (Poon CJHC and Deputy High Court Judge Reyes SC; “CA Decision”) in CAMP 290/2023, refusing leave to appeal to the Court of Appeal against the 16.3.23 Order. The CA Decision was made on the basis of written submissions only. The Court of Appeal agreed with the judge that none of the grounds of appeal is tenable. However, it did not make a direction under Order 59 rule 2A(8) that as the application is totally without merit, no party may under rule 2A(7) request the determination be reconsidered at an oral hearing inter partes.

18.  On 26 June 2025, KBC wrote to the High Court requesting the Court of Appeal to reconsider the determination at an oral hearing inter partes. KBC also wrote to the Secretary on the same day stating their intention to instruct the applicant to attend the oral hearing in CAMP 290/2023 and requesting consent to his ad hoc admission. I understand from Mr Wong that KBC had provided a copy of the CA Decision to the Bar Association.

19.  By a letter dated 7 July 2025, the Secretary declined to give consent to admission.

20.  On 11 July 2025, the CJHC directed that an oral hearing be held on 24 October 2025 in CAMP 290/2023 with two hours estimated.

21.  The notice of motion for the ad hoc admission of the applicant was issued on 22 July 2025.

22.  On 28 July 2025, the Bar Association informed the court by letter that unless the court directs otherwise it does not intend to be represented at the hearing of the notice of motion of the applicant.

The grounds for admission

23.  The grounds for seeking the applicant’s admission have been stated as follows.

24.  First, the grounds of appeal in the proposed appeal involve points of law of unusual complexity and difficulty and the determination of legal principles may have impact on the development of local jurisprudence.

25.  Ground 1 involves issues of statutory interpretation of OSCO and whether the court has jurisdiction to make a disclosure order in connection with a restraint order under OSCO; this ordinance does not expressly provide for the power to make a disclosure order. The jurisdictional basis to make a disclosure order is a point of law of great general or public importance, which has not been decided by the appellate courts in Hong Kong. The relevant decisions at first instance in Hong Kong[5] relied on the decision of the English Court of Appeal in In re O & Anr (Restraint Order: Disclosure of Assets) [1991] 2 QB 520[6] which was decided 34 years ago and predated the Human Rights Act 1998. There has been no consideration of the impact of a disclosure order on the right to privacy and the right to property of a respondent.

26.  Grounds 2 and 3 concern the application of R v Ahmad [2015] AC 299 in the context of the OSCO regime and issues relating to over-restraint. Reliance is placed on this statement at §72 in Ahmad: “To take the same proceeds twice over would not serve the legitimate aim of the legislation and, even if that were not so, it would be disproportionate.” There has been no guidance from the appellate courts in Hong Kong in this regard.

27.  Second, the challenges mounted in the proposed appeal concern a defendant’s right to property (protected by Articles 6 and 105 of Basic Law of the Hong Kong SAR) and the right to privacy (protected by Article 14 of the Hong Kong Bill of Rights). By virtue of the principle of legality, human rights and fundamental principles of law cannot be overridden except by express words or necessary implication. The engagement of fundamental rights warrants guidance from the appellate courts.

28.  Third, the applicant was the leading counsel for the appellants before the UK Supreme Court in Ahmad, which is directly relevant to the point of law in Grounds 2 and 3. He also appeared before the House of Lords for the appellants in R v Green [2008] 1 AC 1053 and R v Rezvi [2003] 1 AC 1099, which are leading authorities on confiscation orders. He is the co-editor of a recent publication covering the areas of asset recovery pursued by law enforcement agencies being confiscation proceedings in the criminal courts and civil recovery in the civil courts. He will no doubt add a significant dimension to local jurisprudence and assist the Court of Appeal greatly.

29.  It was pointed out that the court has previously granted an application for the ad hoc admission of overseas counsel in relation to an application for leave to appeal to the Court of Appeal (Re Lord David Philip Pannick QC, HCMP 1230/2015, 15 June 2015). In so doing, Cheung CJHC (as the Chief Justice then was) made this observation at §22:

“I of course realise that the matter is only before the Court of Appeal, not the Court of Final Appeal itself. But, in my view, if other considerations, when taken together, should suggest that admission should be granted, the earlier the court – and after all, one is not talking about the Court of First Instance, but the Court of Appeal itself which is an important, albeit intermediate, court of appeal whose judgments the Court of Final Appeal attaches significant weight to – has the benefit of overseas counsel’s assistance, the better.”

30.  I note however that the application for leave to appeal referred to in that case[7] was initially heard by a two-member court of the Court of Appeal, who regarded the issues arising (involving the constitutionality of sections 81(4) and 84(3) of the Arbitration Ordinance, Cap 609 as impinging on the power of final adjudication of the Court of Final Appeal in Article 82 of the Basic Law) as issues of general public importance. As a result, the hearing was vacated for the leave application to be argued fully before a three-member court, and the Secretary took part in the leave application as intervener at the invitation of the court. It should also be noted that the ad hoc admission of Lord Pannick was sought to be justified solely on the basis of the constitutionality issue, rather than the substantive merit of the leave application in relation to the underlying arbitration matter.

31.  In further support of the contention that the points of law involved in the leave application are of importance, mention was made of a letter from the Prosecutions Division to KBC on 20 June 2025 seeking consent to the publication of a redacted version of the CA Decision as it is “an important authority on the legal principles on applications for restraint orders”. KBC did not consent as they consider it more appropriate to publish a redacted version of the judgment that is to be handed down after the oral hearing of the renewed leave application.

The opposition to admission

32.  The Secretary opposes this admission for these reasons.

33.  First, none of the intended grounds of appeal in the renewed leave application involves any unusual complexity or difficulty, or would have any significant impact on the development of Hong Kong jurisprudence.

34.  Apart from making an assertion, it has not been explained why the intended grounds of appeal are of unusual complexity or difficulty, or would have impact on the development of local jurisprudence. The Court of Appeal had no difficulty in dismissing the renewed leave application on paper, and forcefully ruled in the CA Decision that none of the three intended grounds of appeal is reasonably arguable. Whilst it is unnecessary for present purpose to delve into the merits of the intended grounds, the Court of Appeal apparently took a dim view of the grounds. The reasoning in the CA Decision clearly shows that the issues raised do not involve any law points of unusual difficulty or that the determination of legal principles may have impact on the development of local jurisprudence.

35.  Mr Yuen took the court to each of the intended grounds of appeal to demonstrate the lack of merits of the arguments proposed to be advanced in Rs’ Statement and the present submissions on behalf of the applicant, which have been mentioned earlier.

36.  Insofar as Ground 1 involves issues of statutory interpretation of OSCO as framed, this would entail applying well-settled principles to the circumstances under which the court would exercise its inherent jurisdiction. To support the contention that the Hong Kong courts have no inherent jurisdiction to make an ancillary disclosure order to render a restraint order effective, it would be necessary to show that the long line of local authorities at first instance is wrong. Mr Yuen also drew attention to various English authorities[8] decided after the Human Rights Act 1998 in which In re O & Anr (Restraint Order: Disclosure of Assets) was endorsed. Further, there was no suggestion that the statutory power provided in the Proceeds of Crime Act 2002 for English courts to make disclosure order in aid of the defined “civil recovery investigation” infringes any fundamental rights[9].

37.  Insofar as Ground 1 was said to involve a constitutional challenge, there is only an assertion that fundamental rights are engaged. The factoring in of rights to privacy and other fundamental rights in deciding whether the court should exercise its inherent jurisdiction to make the disclosure order cannot be said to be unusually complex and difficult, especially when the civil courts frequently deal with similar issues in the context of Mareva injunctions.

38.  Grounds 2 and 3 have been addressed forcefully and succinctly in the CA Decision. Neither the judge nor the Court of Appeal was persuaded that Ahmad should have any application. No real reason has been provided why these grounds would involve law points of unusual complexity or difficulty.

39.  Second, the level of court in which overseas counsel is sought to be engaged to appear is a material factor[10]. Also of importance is the context of the hearing or application concerned. Here, the important context is that this is a renewed application for leave to appeal. It is a screening exercise conducted by the Court of Appeal to filter out unmeritorious appeals. In such an application, all that the Court of Appeal is concerned with is whether any of the proposed grounds of appeal would have reasonable prospects of success, or that there is some other reason in the interests of justice why the appeal should be heard. In this instance, the Court of Appeal has already considered and dismissed the renewed leave application on paper in the CA Decision. What remains is only a reconsideration of the determination at an oral hearing pursuant to Order 59 rule 2A(7).

40.  In Re Dicker QC [2013] 2 HKLRD 245, which concerns an application for ad hoc admission to appear in the Court of Appeal for the purpose of seeking leave to appeal to the Court of Final Appeal, Cheung CJHC said at §18:

“Whether the proper administration of justice warrants the admission of overseas counsel in such an application is a matter that must turn on the facts and issues involved in a particular case. But generally speaking, one would expect the question to be answered in the negative. This is particularly so when, in this digital age, overseas counsel’s input, if required, can be easily obtained via electronic means and incorporated into the written submissions.”[11]

41.  For the forthcoming oral hearing, any contribution of the applicant can be transmitted to the team of local counsel for R2 and R3 for incorporation into their submissions. This would strike a better balance between the public interest in maintaining a strong and independent local bar, and other public interest considerations.

Discussion

42.  The guiding principles governing ad hoc admission of overseas counsel are well established and have been comprehensively summarised by McWalters JA in Re Perry QC [2016] 2 HKLRD 647 at §24. They will not be repeated. In exercising this discretion, the court carries out a balancing exercise between various aspects of public interest. The burden is on the applicant to show that there are sufficient countervailing aspects of the public interest to balance out that aspect of the public interest of maintaining a strong and independent local bar.

43.  Several countervailing factors have been raised on behalf of the applicant.

44.  On the factor that the proposed grounds of appeal involve points of law of unusual complexity and difficulty, the applicant’s counsel did not seek to engage the arguments of Mr Yuen that none of the proposed grounds of appeal is reasonably arguable and that the grounds have been forcefully rejected in the CA Decision with no difficulty. It was said that the legal issues will be fully argued in the oral hearing of the renewed leave application and this court “should not pre-empt or be seen to be pre-empting” the leave application in any way. Instead, it was contended that whether the issues are of unusual complexity and difficulty is ultimately “a matter of feel and judgment”[12]. Counsel for the applicant also prayed in aid a number of tangential matters: that the present application appears to be the first overseas ad hoc admission opposed by the Secretary in the face of consent of the Bar Association; that the Court of Appeal took almost two years to deliver a ruling on the leave application on paper, indicating that the issues might not be as simple as contended by Mr Yuen; that in the CA Decision, the Court of Appeal did not make an order under Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination be reconsidered at an oral hearing inter partes and has now directed that the an oral hearing be held with two hours reserved; and that the Prosecutions Division had requested to publish a redacted version of the CA Decision, as this is “an important authority on the legal principles on applications for restraint orders”.

45.  For good measure, they invoked the dicta of Megarry J in John v Rees [1970] Ch 345 at 402 that “the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”

46.  It was stressed again that constitutional issues are involved in the renewed leave application, and “rarely, if ever, would legitimate constitutional challenges not involve these two aspects, namely, that the issues are of unusual difficulty or complexity, and that their determination would impact substantially on the development of Hong Kong law.”[13]

47.  I am wholly unpersuaded that the issues in the proposed appeal would involve points of law of unusual complexity or difficulty.

48.  The submissions on behalf of the applicant are long on rhetoric and short on substance. Quotations from cases are taken out of context. The issues raised in Grounds 1 to 3 do not call for a “nuanced approach” in applying the test of justification and the concept of margin of appreciation, such that it could be said whether the issues are of unusual complexity and difficulty is a matter of “feel and judgment”. It is where there are “legitimate constitutional challenges” – not the mere assertion of constitutional challenges without explanation in what way fundamental rights might be engaged applying the test for justification – that it could be said usually to involve issues of unusual complexity and difficulty.

49.  Whilst this court should not pre-empt or be seen to be pre-empting the arguments to be made at the oral hearing of the leave application, if the issues involved are indeed of unusual complexity and difficulty, this could be demonstrated quite readily by a succinct description of the thinking process behind the contention. The reasoning and arguments should be well within the grasp of the legal team for R2 and R3, who have been involved with the entire proceedings for more than two years. It should not be left to surprises when an open and shut case may somehow turn out not to be so.

50.  Without going into the merits of the contentions of R2 and R3 which have been rejected by the Court of Appeal, I agree with Mr Yuen that the CA Decision has shown quite clearly that the issues raised on their behalf do not involve any law points of unusual difficulty or that the determination of legal principles may have impact on the development of local jurisprudence. I appreciate from the citation of cases regarding Ground 1 in the present proceedings, which is more extensive compared to Rs’ Statement and the Secretary’s statement of opposition in CAMP 290/2023, that at the oral hearing of the renewed leave application the Court of Appeal may need to go into the arguments at greater depth, but this is not to say that the law points involved are of unusual difficulty or complexity.

51.  The fact that the case involves a novel legal point does not, by itself, make it one the resolution of which might have a substantial impact on local jurisprudence[14]. The fact that a case appears to be the first case of the type of situation in question and would carry with it some implication for future cases does not, by itself, turn the case into an unusually difficult or complex case[15].

52.  It is not really necessary to mention the other countervailing factors raised on of the applicant. I will deal with some of them briefly for completeness.

53.  As to the fact that the renewed leave application is to be heard by the Court of Appeal, reliance was placed again on the dicta of Cheung CJHC in Re Lord David Philip Pannick QC at §22. It was further submitted as the decision of the Court of Appeal is final[16], in the event that leave to appeal is refused, the Court of Appeal “would for all practicable purposes be playing the role of a court of final appeal, thus suggesting that it should have the best assistance whether from the local Bar or overseas”[17].

54.  As I have explained, the application for leave to appeal considered in that case is very different from the present situation. What was said by Cheung CJHC must be understood in the context of that case, which was rather unique. As for treating the Court of Appeal as playing the role of a court of final appeal in applications of this kind, the statement at §21 of that case was made arguendo, for the sake of argument. It should not be read as providing support for the contention that in applications for leave to appeal to the Court of Appeal, the appeal court is to be regarded as a court of final adjudication such that significant weight should be given to this factor regardless of the degree of difficulty of the issues canvassed in the proposed appeal.

55.  The point was also made that the leave application is not concerned with a pure law point as there are issues relating to over-restraint on the facts of this case. Further, it was submitted that the contribution of the applicant to be incorporated into the written submissions of the legal team should not take the place of “intense intellectual exchanges between the bench and counsel” in an oral hearing. In support of this, reliance was placed on the dicta of Cheung CJHC that an oral hearing would enable the court to get a “better, more focused and thorough, understanding of the real issues and arguments involved … regardless of how well the written submissions have been prepared”[18]. Mr Wong also argued it is impracticable to obtain the input of overseas counsel in the skeleton submissions to be filed, leaving advocacy work to be done by the local team, as there are quite a number of legal issues involved[19].

56.  Assuming that there are contentions of fact involved in the issues to be raised, they do not assist in showing that the issues are of unusual difficulty or complexity. The dicta of Cheung CJHC relied on should not be taken out of context as providing support that an oral hearing is invariably to be preferred. As he had said in Re Dicker QC as quoted earlier: “Whether the proper administration of justice warrants the admission of overseas counsel in such an application is a matter that must turn on the facts and issues involved in a particular case.” I am not persuaded that the issues to be canvassed at the renewed leave application are such that it is impracticable to obtain the applicant’s contribution for incorporation into the written submissions.

57.  For all the above reasons, this application for ad hoc admission was dismissed.

Costs

58.  As explained by McWalters JA in Re Perry QC at §§39 to 41, under section 3(2)(b) of the Barristers (Admission) Rules, Cap 159AA, the court may make a costs order against an unsuccessful applicant for admission, but may not make a costs order in his favour where his application is unsuccessfully opposed. Another special feature of this costs discretion is that it is not made in a lis inter partes proceeding as admission proceedings are not an adversarial jurisdiction but are sui generis. In respect of overseas admissions, they are concerned with safeguarding the public interest and the Secretary and Bar Association appear for the purpose of assisting the court. As providing this assistance is regarded as performance of a public duty, as a matter of course, neither the Secretary nor the Bar Association would apply for costs against an unsuccessful applicant. Nevertheless, the power to award costs is there and it may be exercised.

59.  Mr Yuen seeks costs against the applicant on the basis that this application is wholly unmeritorious and should never have been brought. He also invites the court to consider costs on an indemnity basis. He referred to a letter dated 30 July 2025 (before Mr Pun and Mr Wong served skeleton submissions for the applicant) from the Secretary to KBC in which it was explained why the intended grounds of appeal do not involve any issues of unusual difficulty or complexity and why none of the other additional points can justify the admission of overseas counsel. The Secretary invited KBC to withdraw the present application or else the letter will be produced to the court for seeking indemnity costs against their clients. In light of this forewarning and the total lack of merits, Mr Yuen submitted it would be wholly unfair to the general public for the costs of this application to be borne by the public purse.

60.  I agree with McWalters JA in Re Perry QC at §§42 to 46 that the exercise of this special costs power should not be used in the usual manner in civil litigation of costs following the event. As long as the applicant has an arguable case, no costs order should be made. That he was forewarned and had persisted with his unsuccessful application do not, by themselves, justify a costs order. This power should only be exercised against an unsuccessful applicant when there are features or circumstances, including a lack of merits, which will cause the application to be regarded as one that should never have been made as no applicant could reasonably view the application as having a reasonable prospect of success. There is no dispute between Mr Yuen and Mr Wong on the above principles.

61.  The question here is whether this application crosses the line of so lacking in any merit whatsoever that no applicant could reasonably view the application as having a reasonable prospect of success.

62.  Mr Wong repeated his submissions that the issues involved in the renewed leave application are of unusual complexity. He stressed that the application for admission was made in good faith, which is not disputed by Mr Yuen. Furthermore, he pointed to the fact that the Bar Association has on 15 September 2023 given consent to the proposed admission of the applicant, after considering the supporting certificate from Mr Pun and Mr Wong. The Bar Association did not withdraw its consent in July 2025, after it was provided with a copy of the CA Decision. I note also that the letter of the Secretary to KBC giving forewarning on costs was copied to the Bar Association. Although no reason was given by the Bar Association why it does not object to this application, Mr Wong emphasised that the decision was not taken lightly and this is the first instance (according to the researches on both sides) that the Secretary has opposed an ad hoc admission in the face of consent of the Bar Association.

63.  Like McWalters JA in Re Perry QC at §46, I find this application “may come close to possessing the features which would qualify it for an adverse costs order” but has not crossed the line of so lacking in merit whatsoever “that no applicant could reasonably view the application as having a reasonable prospect of success”. I decline to award costs of this application to the Secretary.