Re Michael Todd Q.C.

HCMP967/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.967 OF 2001

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REASONS FOR JUDGMENT

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1. This is an application by Michael Todd Q.C. for admission to the Hong Kong Bar pursuant to section 27 of the Legal Practitioners Ordinance, Cap.159. It is the intention of the 1st Respondent in High Court Companies Winding-Up 594 of 1999 to instruct the applicant to appear on his behalf. At the hearing of this Motion, Mr Bleach S.C., acting for the applicant, conceded that the wording in the Notice of Motion had been framed much to wide and therefore contrary to the guidelines laid down and has indicated that he would be happy to limit this application to asking for the admission of the applicant for the purpose of appearing at the hearing of the Petition as well as in respect of two interlocutory hearings in that matter, namely the appointment of a provisional liquidator and an application by the 1st Respondent to strike out the Petition and in any appeals arising therefrom and relating thereto.

2. From the materials placed before me in this application, there can be little doubt that the case in which the applicant intends to appear, if admitted, is a very heavy case, both factually and where the legal issues are involved. Due to this, it is intended that apart from the applicant, both local senior and junior counsels will also be instructed so as to have a team of three counsels. Indeed, Michael Thomas S.C. has already been retained to be the leader of the team of counsels. Local junior retained is Russell Coleman, and in the event that Mr Coleman is otherwise engaged, Paul Shieh would be briefed in his place. It has also been indicated to me that two other local leading counsels (whose names need not be repeated here) of undoubted high standing and repute had previously been briefed in that case.

3. As an indication of the voluminous nature of the case, the Amended Petition exceed 60 pages. The affidavit evidence together with exhibits presently occupy 16 box files, the Petitioner's discovery occupies 25 box files and the 1st respondent's discovery a further 28 box files. The Petitioner seeks the equitable winding up of Prudential Enterprises Ltd, a family business and the family and corporate history involved goes back to over half a century. The hearing of the Petition itself is estimated to last between six to eight weeks of court sitting. As for the complexity of the issues involved, I have had the opportunity in seeing them as listed out in the certificate of Mr Coleman as well as on a typed list handed up to me at the hearing by Mr Bleach. I do not propose to repeat them here suffice to say that I have satisfied myself that there are complex and difficult issues involved.

4. At the outset, Mr Bleach very frankly conceded that while the case is heavy and difficult, however, it may not be said to be of unusual difficulty and complexity. (I note that this concession is made despite what is contained in the certificate of Mr Coleman to the effect that the case is of unusual difficulty and complexity). Be that as it may, Mr Bleach does not put this application on that basis. Instead he seeks to argue that the case, while heavy and difficult, requires expertise not only in that area of the law but also expertise in the management of heavy witness trials and it is not easy to get local counsels who are experts in both. The applicant however is such an expert. Secondly, he submits that admitting the applicant to appear in this case is not contrary to public interest but may well be beneficial to local counsels to have the opportunity to work with overseas counsel of a very high quality and standing thus enabling exposure to such standards. For these reasons, Mr Bleach urges that even if this application does not fall within any of the categories set out in the guidelines, the court should exercise its discretion to admit the applicant as it may well be in the public interest to do so. In any event, it cannot be against the public interest.

5. The Hong Kong Bar Association, while it does not dispute the expertise of the applicant, opposes this application on the basis that since it is conceded by the applicant that the case for which he intends to appear is not of unusual difficulty or complexity, this application does not fall within the guidelines set down. In the exercise of the court's discretion it should be exercised judiciously and in accordance with those guidelines. A further point which has been made is that the right of a litigant to counsel of his choice means a right to choose counsel who are available and entitled to practice; that right does not entitle a litigant to demand for an overseas counsel be admitted for the specific purpose of representing him. Thus in the present case, the Bar Association submits that the applicant has not shown why those guidelines should be departed from and therefore has not discharged the burden of showing that his admission to appear in that case is necessary or proper.

6. The court is given a discretion to admit overseas counsel under section 27 of the Legal Practitioners Ordinance. Over the years these courts have laid down guidelines for the exercise of that discretion in such applications. The paramount consideration laid down by these guidelines is the public interest. That has been explained as the interest of Hong Kong people as a whole. The rationale for that is that it is in the public interest of Hong Kong to develop a strong and independent bar.

7. On the other hand, it is well recognised that a sensible and flexible approach should be adopted in applying the guidelines which is not an exhaustive list. There are times when a case may be in a grey area, not falling precisely within those guidelines yet the court is asked to exercise its discretion based on the individualistic nature of the case itself. In my view this is such a case and that was the direction in which Mr Bleach's argument was aimed at.

8. I have no hesitation in accepting the views expressed by the solicitors, local junior counsel and local leading counsel as to the nature and complexity of this case. Not only are they the lawyers who have been involved with it in detail, they are also lawyers of high repute and standing and their views should be accorded the weight that they deserve. I have no reason to doubt them. Although Mr Bleach has conceded that this application is not made on the basis that the case is of unusual difficulty and complexity despite the view expressed by Mr Coleman in his certificate, there can be no doubt that this is a heavy and voluminous case involving numerous and possibly difficult legal issues. In all probabilities, this case borders between a difficult and complex case and one which is unusually difficult and complex since the line dividing the two can seldom be distinctly drawn. Furthermore Mr Thomas S.C. and Mr Coleman have expressed their views that it would be desirable for the applicant, with his expertise in that area of law, to be a part of the team. I also accept from the curriculum vitae of the applicant and from "Who's who at the English Bar" which has been exhibited before me that the applicant is an expert in this area of the law and in heavy trials.

9. Nothing has been advanced by the Hong Kong Bar Association to say why, if the applicant was admitted, it would be against public interest nor can I see any adverse effect on the public interest in maintaining a strong and independent local Bar by admitting the applicant.

10. I accept the reasons advanced by Mr Bleach and balancing the two sides of the public interest aspects of this case, I have come to the conclusion that I should exercise my discretion in admitting the applicant. Accordingly I would grant the application but limited to advising and appearing for the 1st Respondent in HCCW594 of 1999 in the application to appoint a provisional liquidator, for the application to strike out the Petition and in respect of the hearing of the Petition itself and in any appeals arising therefrom and relating thereto.

11. I should mention by way of postscript, lest it be thought generally that the above decision creates a precedent for future use, that by so deciding I have opened the floodgates such that in future all similar applications need not conform with the guidelines laid down over the years by these courts. The decision above does not and was not intended to whittle down the least bit of the guidelines. It was decided on the facts of this case alone and in the exercise of the discretion given under section 27 of the Legal Practitioners Ordinance after weighing all the matters that have been addressed to me by both counsel for the applicant and also counsel for the Hong Kong Bar Association and for which assistance I am grateful to both of them.