RE MICHAEL CHARLES FLESCH, QC

HCMP 4561, 4641 & 4875 of 1998

Headnote

Admission of overseas counsel - section 27(2)(b) of Legal Practitioners Ordinance, Cap 159 - public interest paramount if not sole consideration - different aspects of public interese - also in the public interest to develop local jurisprudence which enjoys international recognition and reputation

Flexible and sensible approach to be adopted - balancing different aspects of public interest

Previous guidelines in Re Gray [1984] HKLR 367 and Re Coles [1985] HKLR 480 affirmed - further guideline re admission for cases which may involve determination of legal principle which may have an impact on development of local jurisprudence

Guidelines on procedure to be adopted when making applications

HCMP 4561, 4641 & 4875/1998

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J U D G M E N T

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The present applications

1. These are three applications made by two London Queen's Counsel for admission to the Hong Kong Bar for the purpose of appearing in two cases before the Court of First Instance, pursuant to section 27(2)(b) of the Legal Practitioners Ordinance, Cap.159. In HCMP4561 of 1998, Mr Flesch QC seeks admission to represent the taxpayer in a tax appeal which is due to be heard on 19 October 1998. In HCMP4875 of 1998, Mr Herbert QC seeks admission to represent the Commissioner of Inland Revenue in respect of the same tax appeal. In HCMP4641 of 1998, Mr Flesch QC seeks admission to represent another taxpayer in connection with a different tax appeal which is due to be heard some time in January 1999. There is as yet no application by any person for admission to represent the Commissioner in that case. But it would seem likely that Mr Herbert QC would be briefed to appear in that case for the Commissioner as well.

2. In respect of HCMP4561 and 4641 of 1998, the Department of Justice and the Bar Association have indicated their consent. In respect of HCMP4875 of 1998, since the Department of Justice representing the Commissioner is instructing Mr Herbert QC, only the Bar Association's consent is required and has been obtained.

Reasons for hearing submissions

3. Notwithstanding that these applications are made by consent, I have indicated to the parties, the Department of Justice and the Bar Association that I would like to hear submissions. There are two reasons for this.

4. Recently, I had received several applications for admission to the Hong Kong Bar by some overseas Queen's Counsel to appear in particular cases in our courts. These applications had all received the consent of the Department of Justice and the Bar Association. However, many of them were made only shortly before the hearing dates on which these counsel were briefed to appear. Very little material was provided by the solicitors in respect of these consent applications. I was not given sufficient information with regard to the background and experience of the applicants, the nature of the cases in which they were briefed to appear and the reasons for instructing them rather than local counsel. In one application, which was made by consent barely ten days (including public holidays) before the hearing date, there was only the application which consisted of one and a half pages with a backsheet. All I had were the name of the applicant, the reference number of the case in which he was briefed to appear and the hearing date. No supporting affidavit was filed. It was perhaps thought, and in my view quite mistakenly, that since both the Department of Justice and the Bar Association had given their consent, little or nothing need to be filed with the court. I refused to make an order and asked for the necessary and relevant information. This arrived at almost the eleventh hour.

5. Such practice is totally unacceptable. I have to say that in future, no one should take it for granted that this court would act as a rubber stamp. I do not for one moment suggest that the solicitors acting for the applicants in the present applications are guilty of such practice. However, it would seem that some guidelines are necessary to tighten up the practice in this sort of applications.

6. There is another perhaps more important reason which calls for submissions from the parties notwithstanding their consent to these applications. The existing guidelines for the admission of overseas counsel were set in 1985. It seems to me that after 13 years, the time is ripe to consider whether these guidelines need any revision. This is particularly so after the change of sovereignty and Hong Kong now has its own court of final adjudication.

Representation

7. As there is no opposition to the present applications, I have directed that an amicus curiae be instructed to make submissions to me. Mr Ribeiro SC has very kindly agreed to act as such on a pro bono basis upon the instruction of the Registrar of the High Court. I am indebted to him for his assistance in this matter. Miss Gladys Li SC and Mr Ambrose Ho appear for the Bar Association and Mr Marshall SC for the Department of Justice. They too have made submissions on the guidelines and matters of general principle. I am also grateful to them.

Any need to revisit existing guidelines

8. Mr Ribeiro SC suggests that a re-examination of the existing guidelines is merited. It is submitted that the paramount consideration for the admission of overseas counsel under section 27(2)(b) of the Ordinance is the public interest. He argues that after the change of sovereignty, it is in the public interest that there is to be international recognition of the quality and reliability of the legal system in Hong Kong and that our Court of Final Appeal should enjoy a comparable reputation as that of the Privy Council. Hence, it is important to develop an internationally recognised and respected body of jurisprudence and in order to do so, the Hong Kong courts, especially the Court of Final Appeal, have to depend heavily on the quality and soundness of the advocates, including overseas counsel, who appear before our courts. It is submitted that this is consistent with the policy as enshrined in the Basic Law which permits the Hong Kong courts to draw on the resources of other common law jurisdictions. In the light of this new legal order, there is, counsel submits, a need to revisit the guidelines for the admission of overseas counsel to the Hong Kong Bar for the purpose of appearing before our courts in particular cases.

9. Miss Li SC for the Bar Association submits that the existing guidelines have worked well in practice. They are sufficiently flexible to cater for change of circumstances. Counsel does not accept that the change of sovereignty is a good reason for revisiting the guidelines. Further, she argues that the legislative intent behind section 27(2) of the Ordinance is to cater for the needs of Hong Kong people for legal representation. In support of this contention, she relies on Re Gray [1984] HKLR 367 and Re Coles [1985] HKLR 480. Miss Li SC submits that any modification to the existing guidelines should be consistent with the legislative purpose as recognised in these cases. She argues that wider considerations of the public interest are best considered by the legislature. The court is not free to depart from the legislative intent unless the court can discern a different legislative intent behind the provision. It is submitted that the opportunity for a consideration of what the public interest requires should be dealt with at the time when proposals for amendment to the Ordinance take place.

Public interest

10. Section 27(2) of the Legal Practitioners Ordinance, Cap.159 permits the admission of overseas counsel (i.e. barristers from England and Wales, Northern Ireland and Scotland) to practise in the Hong Kong courts in particular cases notwithstanding that they do not qualify for admission under the other provisions of the Ordinance. Under section 27(2), the court has an unfettered discretion as to who should be admitted. The Ordinance does not, however, provide any assistance as to how this discretion is to be exercised. It has been consistently held in all previous authorities touching on this provision that the paramount if not the sole consideration for the exercise of such power is the public interest. However, there are, in my view, many aspects of the public interest. Huggins Acting CJ in Re Gray, highlighted one aspect of the public interest, namely, the entitlement of Hong Kong people to legal representation. In addition to this, Roberts, CJ in Re Coles also referred to another aspect, that is, a strong and independent local Bar.

11. In my view, these are not the only aspects of the public interest which the court should have in mind. Huggins, Acting CJ, noted in Re Gray, at 368:

"The public interest can only be ascertained from a consideration of several competing interests."

There are thus other aspects of the public interest which may conflict with one another. From time to time, depending on change of circumstances, a new aspect may emerge or one aspect may become more important than the others. But ultimately, the court must have regard to all aspects of the public interest and perform a balancing exercise when dealing with a section 27(2) application.

12. Since 1 July 1997, the Hong Kong legal system no longer has the Privy Council as its highest court. For the first time in the history of Hong Kong, we now have our own court with the power of final adjudication - the Court of Final Appeal. If Hong Kong is to remain as an international financial and commercial centre, it is vital that our legal system with all the jurisprudence which our courts, particularly the Court of Final Appeal, can develop should acquire international recognition for its quality and reliability. This is clearly in the public interest. In order to develop such jurisprudence, it may be helpful to have the benefit of the talents and experience of overseas counsel.

13. In my view, this objective is also in line with the spirit and intention of the relevant provisions in Chapter IV, section 4 of the Basic Law. Article 94 permits the Government to make provisions for lawyers from outside Hong Kong to work and practise in the HKSAR. Article 92 permits the recruitment of judges and judicial officers from other common law jurisdictions. Article 82 allows for the invitation of judges from other common law jurisdictions to sit on the Court of Final Appeal. Hence, it is contemplated that our legal system can, under certain circumstances, draw on the talents and experience of lawyers, judges and jurists from other common law jurisdictions. Such talents and experience coming both from counsel who appear before our courts and from judges who preside in them, particularly the Court of Final Appeal, would not only enhance the international image of our legal system, but also contribute to the quality of the judgments which are handed down by our courts.

14. This aspect of the public interest did not seem to have played any important part when the court set the guidelines for the admission of overseas counsel in 1985. This is understandably so because at that time, the Privy Council was at the apex of the legal system of Hong Kong. Now that it has been replaced by the Court of Final Appeal, there is, in my view, a need to re-examine the guidelines in the light of the establishment of this new legal order.

15. With respect, I do not agree with Miss Li SC that the only legislative intent of section 27(2) of the Ordinance is to cater for the needs of Hong Kong people to have legal representation. I do not think Re Gray and Re Coles support this contention. In Re Gray, Huggins, Acting CJ, said at page 368B:

"At the same time the legislature has recognised that the Hong Kong Bar may not always be able to offer the best service obtainable. Litigants are entitled to adequate representation and, if such representation is not available locally, recourse must be allowed to the English Bar."

In that case, the main reason for bringing in a London silk was the lack of specialist in the law of defamation in the Hong Kong Bar in 1981. What Huggins, Acting CJ, said must be considered in this context. In fact, in the same judgment, the learned judge reiterated that "the deciding factor must be the public interest". In Re Coles, Roberts CJ remarked at page 482J:

"It is also in the public interest that overseas Counsel should be admitted, insofar as the local Bar is not able to meet the needs of Hong Kong people for legal representation."

The learned Chief Justice's remark was made in the context of the public interest which he acknowledged to be of paramount consideration. The judges in these two cases were merely illustrating one of the aspects of the public interest. They were far from holding that the need for legal representation was the only legislative purpose which could be considered. In my view, the court must have regard to other aspects of the public interest as and when they are identified or become important to require special consideration. If the need arises for a re-examination of the guidelines in view of a change of circumstances, so long as such reconsideration is within the framework of section 27(2), I do not think the court should defer to legislative amendment which may or may not materialise at all. Further, before the enactment of any amendment, the court still has to exercise its discretion under the present section 27(2). Mr Marshall SC for the Department of Justice draws my attention to the intention of the Administration to implement the provisions of the General Agreement of Trade and Services (GATS) and that this may entail an amendment to liberalize the provisions of the Legal Practitioners Ordinance regarding the admission of overseas counsel to the Hong Kong Bar. That may be so. But at the moment, there is no evidence before me as to what the Administration is doing or has done to initiate any legislative amendment, what such amendment is likely to be and when it will be enacted.

16. I am persuaded that there is a present need, as the amicus submits, to revisit the existing guidelines for the admission of overseas counsel to Hong Kong Bar for particular cases in the light of our new legal order.

Further guidelines

17. It is submitted by Mr Ribeiro SC that it is necessary in the public interest to permit admission of overseas counsel of the highest calibre and repute to appear before the Court of Final Appeal. He argues that there was no restriction against counsel appearing before the Privy Council and there is no reason why the Court of Final Appeal should not also have the benefit of the same pool of advocates. He suggests that where a case involves some legal principles which may have an impact on the development of local jurisprudence, overseas counsel of the highest standard may be admitted to appear before our courts with a view to have the case finally reaching the Court of Final Appeal. In order to maintain consistency, counsel submits, the criterion on the standard of overseas counsel seeking admission to appear in the lower courts would also need adjustment accordingly.

18. While counsel argues that it is in the public interest to have this additional criterion and adjustment for the admission of overseas counsel, he accepts that it is also in the interest of the public that Hong Kong should have and be encouraged to further develop a strong and independent local Bar. Hence, he suggests that the existing guidelines should be reaffirmed to ensure that there can be a healthy growth of the local Bar. This, he says, can be achieved by requiring involvement of local counsel at an early stage of a case for which overseas counsel seeks to be admitted. It is also submitted that since the burden of satisfying the court that a pertinent overseas counsel should be admitted lies with the applicant, the court can also set guidelines as to how such burden can be discharged and what sort of materials should be placed before the court in respect of future applications.

19. On the other hand, Miss Li SC submits that the proposal that overseas counsel may be admitted for cases suitable for the Court of Final Appeal would convey the wrong message that the local Bar is not able to cope with cases at that level. On the contrary, the local Bar is more capable than overseas counsel to deal with cases involving, for example, the interpretation of the Basic Law. There is also, counsel submits, some practical obstacles in having an "additional category" of top ranking overseas counsel for cases suitable for the highest court in Hong Kong. Counsel also argues that it is not necessary to have overseas counsel to cite cases from other jurisdiction.

20. In my view, since it is in the public interest to develop our own jurisprudence which can enjoy international recognition and reputation, overseas counsel with sufficiently high quality and standing may be admitted to appear in our courts in cases involving the determination of legal principles which may have an impact on the development of our jurisprudence. Such cases would be cases which, quite apart from the size of their claims, are likely to go all the way up to the Court of Final Appeal for a determination of some principles of law. It is clear that the burden is always on the applicant to show that the case in which he is briefed to appear is a suitable case which involves the determination of legal principles which may have an impact on the development of local jurisprudence and that he is of a sufficiently high quality and standing to be in a position to make a useful contribution.

21. I do not think it is helpful to use particular labels or descriptions on those overseas counsel who may be acceptable to the court for admission. First, there may be unpleasant innuendoes or even adverse implications both for overseas as well as local counsel. Secondly, such labels or descriptions as "top", "first rank", "eminent", "distinguished" counsel would only confuse and make it more difficult for the court to apply any sensible criterion.

22. I take the view that the court should adopt a more flexible and sensible approach in respect of the admission of overseas counsel, particularly in respect of the type of cases to which I have referred. However, at the same time, there must be appropriate safeguards, lest this would open a floodgate for overseas counsel who seek to be admitted and affect the healthy growth and development of the local Bar. It has always been recognised that it is in the public interest to have a strong and independent Bar. That does not mean protectionism. The Bar does not need protection. It has grown and matured through the years. However, it also needs international recognition and reputation. Local talents need exposure and cross-fertilization with lawyers of sufficiently high quality and standing from other common law jurisdictions. For junior counsel, working with senior counsel from other jurisdictions will give them the necessary exposure and provide them with the opportunity to show and develop their potential. It will also help them acquire the requisite skill and experience in the trade. I am only too aware of the risk that if overseas counsel are admitted too readily, this would inhibit the growth and development of the Bar, particularly the junior Bar. But I firmly believe that a flexible and sensible approach to the admission of overseas counsel of sufficiently high quality and standing in suitable cases will benefit the Bar and is in the public interest, provided there are suitable safeguards. For the reasons which I have given, I do not think that bringing in overseas expertise and experience would, as Miss Li SC submits, degrade the quality of local counsel. On the contrary, it helps to build a strong and mature local Bar which can compete with overseas counsel of sufficiently high quality and standing.

23. I have not lost sight of another aspect of the public interest which may sometimes seem to conflict with the aspect of the public interest in having a strong and independent Bar. This is the need of Hong Kong people to have adequate representation and the right to instruct counsel of their own choice. This right has been held to mean "no more than that a litigant is free to choose his counsel from those available to represent him at a proper fee on the date fixed for the hearing of the action." (See Huggins, Acting CJ in Re Gray.) Where, in the rare cases and for some reason or another, there is no suitable local counsel available to represent his interest, it may become necessary for him to seek the assistance of overseas counsel. Sometimes, the court has to balance between these two apparently conflicting aspects of the public interest. Hence, there was a need for Roberts CJ to set the 1985 guidelines. I can see that there has been little change to these two aspects of the public interest. The guidelines have served well to balance these two aspects and should be retained. However, it must be noted that there is a link between appearances before the lower courts and the Court of Final Appeal. It may well be the wish of some litigants and/or their solicitors to have counsel of their choice representing them all the way throughout the litigation until its final conclusion in the Court of Final Appeal. Hence, I do not think that there should be a different criterion regarding the quality of counsel appearing before the lower courts and those appearing before the Court of Final Appeal. After all, not every such case would go all the way to the Court of Final Appeal even though it may involve the determination of legal principles which may have an impact on the development of local jurisprudence. It would be unacceptable to suggest that counsel of a lower quality can be admitted to represent litigants in the lower courts while counsel who are briefed to appear in the Court of Final Appeal should be of a higher quality. In this respect, I should think that the existing guidelines should be adjusted or modified to the extent that those overseas counsel seeking admission must be counsel of sufficiently high quality and standing whether they are instructed to appear in the Court of Final appeal or other levels of court.

Relevant principles and guidelines

24. Having regard to the previous authorities and the useful submissions presented to me, I think the relevant principles and guidelines can be summarised and stated as follows.

(1) Public interest has always been the paramount if not the sole consideration in the exercise of the court's discretion under section 27(2) of the Ordinance in admitting overseas counsel for the purpose of particular cases.

(2) There are many and sometimes conflicting aspects of the public interest. From time to time, other aspects of the public interest may be identified as a result of change of circumstances. It may then become necessary to address our minds to such aspects as well.

(3) Apart from the need to have a strong and independent local Bar and the need of Hong Kong people to have adequate legal representation, it is also in the public interest that the Hong Kong courts, particularly the Court of Final Appeal, should develop our own jurisprudence which enjoys international recognition and reputation.

(4) The court should adopt a flexible and sensible approach in dealing with applications for admission of overseas counsel to the Hong Kong Bar for the purpose of particular cases, balancing different aspects of the public interest.

(5) It is for the court to decide whether an overseas counsel should be admitted or not under section 27(2). Hence, even if an application is made by consent, the court must still be satisfied that it is in the public interest to grant the admission. The burden is on the applicant to so satisfy the court. It is therefore important that in every application for admission, all the relevant materials must be placed before the court even if there is no objection from the Department of Justice and the Bar Association.

(6) The burden of showing why it is in the public interest for an overseas counsel to be admitted for the purpose of a particular case can also be discharged if it can be shown that (a) the case may involve the determination, possibly by the Court of Final Appeal, of some legal principles which may have an impact on the development of local jurisprudence and (b) the applicant is a counsel of sufficiently high quality and standing to handle that particular case.

(7) The existing guidelines set by the court in Re Coles and elaborated in Re Goldblatt [1985] HKLR 484 were set with the public interest in mind and must be re-affirmed. They continue to apply subject to the modification that overseas counsel wishing to gain admission according to those guidelines should be counsel of sufficiently high quality and standing for the cases in which they are instructed to appear.

(8) It would be extremely rare for the court even to consider an application for admission by an overseas counsel who is not a Queen's Counsel or where no local counsel or only a nominal local counsel is briefed together with the overseas counsel. The court would usually require that there is at least one local counsel actively involved in the case from an early stage and the earlier and greater is the involvement, the better are the chances of the application succeeding. The court would also be more sympathetic if more than one local counsel (including possibly senior counsel) are instructed in the case.

Guidelines on practice to be adopted

25. I have at the beginning of this judgment referred to the fact that recently some applications for admission were filed rather late, with very little relevant information. I have to say that in future, even if the Department of Justice and the Bar Association have consented to such applications, such applications will not be entertained by this court. In this connection, it is necessary, and all parties are agreeable to this, that some guidelines on the practice to be adopted have to be set. In future, the following guidelines should be complied with.

(1) An application for admission should be made as soon as practicable after it has been decided that overseas counsel will be briefed to appear in the Hong Kong courts. Where a hearing date has already been fixed, that should also be disclosed in the application. In any event, if an application is made less than two weeks before the hearing date, it will not normally be entertained, even if it is by consent, unless there are exceptional circumstances.

(2) It is for the court to be satisfied on the information submitted to it that a case is made out for the admission of an overseas counsel. An application for admission must therefore be accompanied by the following information:

(a) in every case, a brief curricula vitae containing the applicant's date of call as a barrister, the date of call to the Inner Bar, the type of work he is specialised in, including any important cases which he has handled, and the cases, if any, which he had previously conducted in Hong Kong;

(b) in every case, the name or names of local counsel briefed to appear with the applicant together with the date or dates on which the local counsel was or were briefed in the case and his or their involvement in the case;

(c) where it is alleged that no local counsel of appropriate skill and experience is available, the attempts made to look for local counsel with appropriate skill and experience, the difficulty encountered and the result of such attempts;

(d) where it is alleged that the case is one of unusual difficulty or complexity, a summary of the nature of the case and its difficulty or complexity;

(e) where it is alleged that the case requires specialist knowledge of the kind not available from the local Bar, a summary of the nature of the case, the specialist knowledge required and the facts and reasons in support of the allegation that no such expertise is available in Hong Kong;

(f) where it is alleged that the case involves a well known local personality whereby it is desirable for overseas counsel to appear for him, the name of the personality involved and the difficulty in instructing local counsel;

(g) where it is alleged that there is no local counsel of appropriate skill and experience who is available at a fee which is within the range of the client, the attempts made to look for available local counsel, the difficulty encountered and the result of such attempts;

(h) where it is alleged that it is a case which involves a determination of some legal principles which may have an impact on the development of local jurisprudence, a summary of the nature of the case and the legal principles involved and whether it is likely that the case would, in the opinion of the legal representatives, go the Court of Final Appeal; and

(i) any special circumstances which are relevant and which ought to be drawn to the attention of the court.

Present applications

26. In the present case, counsel for the applicants have informed me that in one of the tax appeals in which Mr Flesch QC is briefed, Mr Denis Chang SC and Mr Sujanani have also been instructed. Mr Sujanani has in fact been involved right from the beginning of the case. With regard to the application of Mr Herbert QC, it is understood that he would be leading Government counsel to appear for the Commissioner of Inland Revenue. In respect of the second tax appeal, Mr Flesch QC is briefed to appear together with Mr Martin Lee SC and Mr Sujanani. Again, Mr Sujanani has been involved from a very early stage. I am also given to understand by Mr Martin Lee that not only it is likely that the cases would go all the way to the Court of Final Appeal, they also involve some important legal principles in Revenue Law. I am told and the parties accept that both Mr Flesch QC and Mr Herbert QC have specialised in revenue matters. In the circumstances, I am satisfied that it is proper and in the public interest to admit these two gentlemen to appear in the respective cases. In any event, all counsel urge upon me that any new guidelines or modification of existing guidelines should not apply to the present applications. I agree. I therefore make an order in terms of the three applications.