RE LOUIS ASA LUKE ALEXIS DYLAN MABLY

HCMP 1043/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1043 OF 2013

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J U D G M E N T

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The application

1.  The applicant seeks admission, under section 27(4) of the Legal Practitioners Ordinance (Cap 159), for the purposes of “advising, preparing, representing and/or appearing on behalf of the Hong Kong Special Administrative Region at the trial and the ancillary hearings” in HCCC 98/2013, where serious corruption allegations are made against Mr Rafael Hui, Mr Thomas Kwok, Mr Raymond Kwok, Mr Chan Kui‑yuen and Mr Francis Kwan.  The trial has been fixed for 8 May 2014, with 70 days reserved.  For reasons set out in its reasons for judgment (Re Perry QC [2013] 1 HKLRD 145), this court has admitted Mr David Perry QC to conduct the prosecution in the criminal proceedings, and has also admitted Ms Clare Montgomery QC and Mr John Kelsey‑Fry QC to defend Messrs Thomas Kwok and Raymond Kwok.  Following those contested admissions, the court has further admitted Mr Ian Winter QC to appear for Mr Chan Kui‑yuen, which admission was uncontested by the Bar.

2.  The Director of Public Prosecutions now wants to bring in a London junior to assist Mr Perry, who is already assisted by Mr Joseph Tse SC and Ms Maggie Wong, both of the local Bar, as well as Ms Winnie Ho SADPP (Ag), a senior public prosecutor and a public prosecutor, all from the Department of Justice, in conducting the prosecution; and thus this contested application for admission of the applicant.

3.  The applicant was called to the Bar of England and Wales in 1997.  He is said to be one of the “most in‑demand juniors” at the criminal Bar in England and Wales.  In 2009, he was appointed as Junior Treasury Counsel to the Crown at the Central Criminal Court.  He has worked closely with Mr Perry in a number of important and sensitive cases, including cases of corruption committed by high ranking government officials and Members of Parliament, and cases heard before the Supreme Court of the United Kingdom, the House of Lords and the European Court of Human Rights.  The applicant is said to be a highly skilled white collar crime specialist.  He is described in the submissions as a lawyer of exceptional ability who has the standing of a senior counsel but without the title.

The submissions

4.  Mr Kevin Zervos SC, Director of Public Prosecutions, explained that with Mr Perry QC as the lead counsel, it was necessary to put together a team of lawyers both in Hong Kong and the United Kingdom to prepare and work up the criminal case.  The applicant is part of the UK team and has been working on the case extensively with Mr Perry and others and has played a major and essential role in putting the case together.  The number of issues raised in the case will be diverse, and points may arise in the course of the trial which call for the specialist knowledge and assistance of the applicant. Mr Zervos placed emphasis on the established and proven relationship between the applicant and Mr Perry: they are a “proven combination”, and the applicant is someone “whom Mr Perry can completely rely on and work with”.  Mr Zervos also pointed out that the defence are led by three top London silks with a large number of local senior counsel supported by an array of junior counsel and numerous teams of solicitors.  Mr Zervos contended that given the number of overseas silks (and local silks) for the defence, it would be open to the prosecution to seek the admission of another overseas silk to appropriately counter the collective legal teams of the defence.  Mr Zervos submitted that the applicant is as good as any second silk from the UK that the prosecution might otherwise wish to retain.  Mr Zervos also made the point that given the number of local counsel involved in the present case, many counsel at the private Bar have been conflicted out.  There are, in any event, few senior juniors or even senior counsel with the skill and experience to handle a major and difficult white collar crime case like the present one, and Mr Perry needs the appropriate back up with counsel from the UK.

5.  Mr Zervos also reminded the court a number of passages in its judgment for admitting Mr Perry, which stressed the unique and exceptional features of the present prosecution, the very high standard expected of the prosecution in the present case, the special role of the Department of Justice in the control of criminal prosecutions, free from any interference, as required by article 63 of the Basic Law, and the weight to be given to that Department’s opinion in relation to the retention of an overseas counsel in the court’s deliberation of where the public interest lies – all of which combined to justify Mr Perry’s exceptional admission to lead the criminal prosecution. Mr Zervos submitted that the same considerations apply in relation to the present application.  Mr Zervos explained that his duty, as Director of Public Prosecutions, is to put together the best legal team to conduct the prosecution to ensure the public interest is served to the utmost.

6.  Mr Zervos argued that having highly skilled and proven practitioners from other jurisdictions from time to time, whether senior or junior counsel, will and has undoubtedly strengthened the skills of the local Bar and strengthened its independence as a consequence.  He argued that the case has created many briefs for the local Bar in terms of advising or representing the accused, Sun Hung Kai Properties Limited and its associated companies on related matters, and the interest of the local Bar is amply protected.

7.  Mr Zervos accepted that the admission of an overseas junior is rare and exceptional although not unheard of, but then, he argued, this is an exceptional case.

8.  The application is strenuously opposed by the Hong Kong Bar Association.  Mr Michael Blanchflower SC, for the Bar, submitted that the admission of the applicant, who is not a Queen’s Counsel, would not be in the public interest.  He argued, by reference to authorities, that the admission of an overseas counsel who is not a Queen’s Counsel is extremely rare.  He questioned the applicant’s experience and expertise in conducting heavy corruption jury trials.  He submitted that there are qualified and suitable local counsel whom the Director of Public Prosecutions has not approached to join the prosecution team.  The applicant’s admission, counsel argued, would not bring a “significant added dimension” to the case, or result in any meaningful “cross‑fertilization”. Mr Blanchflower also voiced the fear that the applicant’s admission could lead to applications by some defendants in the case for admission of overseas counsel, who are not Queen’s Counsel, to represent them as well.  Finally, counsel made the point that overall, the applicant’s admission would undermine the reputation and development of a strong and independent local Bar.  He submitted that any counsel added to the prosecution team should be a local counsel.

9.  Ms Leona Cheung, SGC, for the Secretary for Justice, was quite plainly supportive of the present application.  Her submissions, although more restrained in tone, were no different in substance from that of Mr Zervos.

The general principles

10.  The general principles for admission of overseas counsel are very well established and they need not be repeated here: Re Flesch QC [1999] 1 HKLRD 506; Re McGregor QC [2003] 3 HKLRD 585.

11.  However, the present application raises, at least at first blush, the unique question of admission of an overseas junior to do junior work in this jurisdiction.  In this regard, I am not referring to those juniors who are more than qualified to take silk but for one reason or another prefer to remain a junior.  Nor am I concerned with applications for admission for such juniors to appear in our courts as leaders.  What I have in mind is the admission of an overseas junior to do junior work here.  This raises separate and indeed different considerations from an ordinary application for admission of overseas leading counsel.

12.  As has been stressed many times before, the paramount consideration in an application for admission is the public interest.  In my view, an application for admission of an overseas junior to do junior work here is rarely justifiable in terms of the public interest.

13.  First, an important facet of the public interest is the development and maintenance of a strong and independent local Bar.  The junior Bar of today will be the leaders of tomorrow.  Local juniors must be given sufficient work, particularly quality work, and exposure, in order to groom them into future leaders.  They must be adequately protected from overseas competition, particularly given the number of juniors available in jurisdictions like the United Kingdom.  This is not protectionism for the sake of protectionism.  Rather, it is a strategic measure to develop and maintain a strong and independent local Bar.

14.  Secondly, there are now 1,115 junior counsel practising in the local Bar, according to figures supplied by Mr Blanchflower in his written submissions.  These local counsel include tens of Bar scholars, as well as other scholarship and award recipients, and graduates of leading law schools – locally and overseas.  The court will require very clear evidence to establish that no local juniors of suitable ability and experience are available, after conscientious efforts have been made to retain them and have failed, before it would be prepared to admit an overseas junior to come out here to do junior work.

15.  In this regard, what was said by Roberts CJ back in 1986 in Re Bratza [1986] HKLR 763 is still of great relevance.  That was also an application by an English junior barrister for admission to the Hong Kong Bar for the purposes of a civil action involving a building and engineering dispute.  One local counsel had already been retained as a second junior.  A London silk, it was planned, was to join them to conduct the trial with the English and local juniors.  Roberts CJ pointed out that somewhat different considerations applied to the admission of junior counsel from abroad from those which governed the applications from leading counsel.  He pointed out that whereas the number of Queen’s Counsel in Hong Kong remained inadequate, the junior Bar had grown to such an extent that it must be considered to be far better equipped than before in numbers and experience to deal with all but rare and very specialized types of work.  The Chief Justice did not accept building and engineering disputes were of such a specialized nature.  Nor was he persuaded that the applicant’s solicitors had made reasonable efforts to retain Hong Kong junior counsel of adequate experience.

16.  In conclusion, the Chief Justice stressed that the paramount factor was the public interest, which required a strong and independent local Bar.  That meant :

“… so far as the junior Bar at least is concerned, local counsel should be briefed in preference to London counsel even if local skill and experience available, in a period of rapid expansion, is not of the standard which would be available in England with a junior Bar of 5,000.” (page 766F/G)

17.  The Chief Justice continued:

“The admission of overseas junior counsel must remain rare, and applications for such an admission may therefore be expected to be successful only where it is shown that no local juniors of suitable ability and experience are available, after conscientious efforts have been made to retain them and have failed.” (page 766G/H)

18.  The local Bar, both in terms of the Inner Bar and the junior Bar, has grown substantially not only in numbers, but also in depth and sophistication since early 1986.  The words of the Chief Justice are as true today as they were 27 years ago.  Indeed I would venture to think that the growth and development of the local Bar over the past three decades was due, in no small measure, to the policy on admission of overseas junior counsel that Roberts CJ set in Re Bratza.

19.  For the sake of completeness, I should add that in the leading case of Re Flesch QC, Chan CJHC also touched on the admission of overseas juniors when he said (at page 516E)that it would be “extremely rare” for the court even to consider an application for admission by an overseas counsel.  The Chief Judge did not elaborate on the point, but judging from the context, he was plainly focusing on the possible admission of overseas junior counsel to work as leading counsel in local proceedings, rather than work as a junior doing junior work here.  This is apparent from the emphasis by the judge, in the preceding paragraph (at page 516D/E), on counsel being of “sufficiently high quality and standing for the cases in which they are instructed to appear”.

20.  In my view, this is as opportune a time as ever to reaffirm the important considerations discussed above concerning the protection of our junior Bar, as an important facet of the public interest, in approaching the present type of application for admission.

21.  Having said all that, it does not follow, of course, that this is the only facet of the public interest to be considered. All standard considerations, where relevant, are applicable, and must be carefully weighed.  All I wish to emphasise is that when the interest of the junior Bar is at stake, the public interest requires that that interest be jealously guarded.

The present application

22.  Turning to the present application, it is extremely important to bear in mind the nature, importance and the sheer size of the criminal proceedings in question.  In particular, regarding the wholly extraordinary nature of the criminal prosecution, I said this in Re Perry QC, paragraph 14:

“… In the underlying criminal prosecution, a former Chief Secretary for Administration is said to have committed corruption offences whilst in office. The persons said to have offered the relevant advantages to him are the beneficial owners and controlling minds of one of Hong Kong’s largest property empires. All defendants are of course presumed innocent unless and until proven otherwise. Nonetheless, the reputation and integrity of the Executive branch of the Hong Kong Special Administrative Region Government and its system of governance are at stake. Its relationships and dealings with the major players in our property market will be put on the spotlight. Government policies and practices on land use and development will likely be put in issue and subjected to close scrutiny. The public interest demands that the prosecution of the offences must not only be, but also be seen to be, conducted impartially and professionally and in an impeccably competent, efficient yet perfectly fair manner. With no exaggeration, public confidence and indeed international business confidence are at stake. After all, ‘corruption is an evil which cannot be tolerated’: P v Commissioner of Independent Commission Against Corruption (2007) 10 HKCFAR 293, [1] (Li CJ). Expectations on the prosecution to secure a just and fair result, whether that means conviction or acquittal, are accordingly extremely high, and rightly so.”

23.  It is understandable therefore that the Director of Public Prosecutions has been at pains to emphasise in submission the imperative of assembling in Hong Kong in the lead up to and in the conduct of the trial itself as effective a team as possible – a team which will include a significant Hong Kong component but which requires, in his professional judgment, the on hand services of distinguished specialist counsel who is already engaged upon the case and whose effective working relationship with Mr Perry is proved.

24.  I see no reason to differ from him. This is particularly so bearing in the mind the constitutional arrangement under article 63 of the Basic Law whereby the Department of Justice is entrusted with the control of criminal prosecutions in Hong Kong, “free from any interference”.  I have already explained in Re Perry QC what that means in practice: paras 16 to 20.  Whilst article 63 certainly does not mean that the Director of Public Prosecutions has the final say on admission matters, nonetheless, his professional views, taken with the best public interest in mind (and the public has every reason to expect nothing less than that), must be given due weight.

25.  This aspect of the public interest, in the context of the criminal proceedings involved, is as important in the present application as it was in Re Perry QC.

26.  Turning to the applicant, I have no doubt that the applicant is a high flyer.  There is no doubt that an appointment as Junior Treasury Counsel is a most prestigious one, which is reserved for the best legal talents in the English Bar.  It confers a status that in itself distinguishes the appointee from the rank and file of junior counsel.  It is considered by many as equivalent to, if not more prestigious than, taking silk.  Indeed, some Junior Treasury Counsel never took silk, but were appointed straight to the High Court Bench of England and Wales.

27.  Mr Blanchflower has taken the court through the leading cases set out in the applicant’s CV and submitted that whilst the cases were all high profile ones, they were not white collar fraud jury trials, and therefore did not demonstrate the applicant’s experience or expertise in relation to conducting them.

28.  However, it is understandable that a CV taken from a chambers webpage would only focus on the most high profile cases, which are therefore usually appellate cases before the highest courts.  From the materials, I do not believe that the applicant would have been appointed Junior Treasury Counsel at the Old Bailey if he had not had experience in heavy commercial fraud cases in the UK; or that after his appointment, he has not been instructed to do those cases; or, more importantly, that he would have been chosen both by Mr Perry and the Director of Public Prosecutions if he had not had the requisite experience and skills in conducting those cases.

29.  As regards the type of work he, if admitted, would be asked to do, understandably, Mr Zervos was unable to tell the court whether the applicant would be on his feet for some part of the criminal trial.  But one must not take an over‑simplistic approach to the work of the prosecution in this unprecedented case.  In a prosecution of the present magnitude, there will inevitably be division of work amongst team members.  From what the court has been told, the applicant has been playing, from the outset, a very significant role in assisting Mr Perry in formulating the prosecution’s case and in preparing for trial.  I have no reason to doubt what I have been told.  Nor have I any reason to question that during trial, the applicant will be assigned significant roles to play as an important member of the prosecution team.

30.  Whilst understandably, the evidence in this regard is rather sketchy, the impression I have got is that the work the applicant has been and will be doing for the prosecution team cannot be described as purely junior work as such.  Rather, it is more akin to a second silk’s work.  And in a massive prosecution like the present one, it is not at all surprising that the assistance of a second or even a third silk is required.  After all, it has to be remembered that the burden upon leading counsel for the prosecution in any complex criminal case is, as a generality, greater than the burden upon leading counsel for any one individual defendant and the complexity, importance and size of this particular case renders that disparity commensurately greater still.  This is not to mention the rich array of overseas (and local) leading counsel that the defence teams have assembled.

31.  All this is a reality which would be unjust to minimise.  In such unusual circumstances, if the prosecution had sought to bring in a second London silk, the court would have been inclined to consider the application sympathetically – especially if, like the applicant, that second London silk was already engaged to perform work on the case in London in tandem with Mr Perry who has been admitted; and that engagement was wholly understandable given that Mr Perry had been and would continue working from London until sometime before the commencement of the trial.

32.  In the present context, the importance of the point under discussion is that admitting the applicant is not going to deprive our local Bar of its fair share of junior work in the present case.  For, in my view, in truth, the applicant is not being brought in to do junior work as we know it.  He is here more to play the role of a second or third silk in the prosecution team.  This, therefore, distinguishes the present application for admission from an application for admission of an overseas junior to come here to do junior work, at the expense of our junior Bar.

33.  This brings me to whether there would be any knock on effect for the defence.  Would admitting the applicant encourage similar applications for the defence?  Still more importantly, would this create an unwanted precedent for future cases?  How would that affect the development and maintenance of a strong and independent local Bar, particularly our junior Bar?

34.  I have given serious consideration to these questions.  First, this case is not going to set any precedent, still less any unwanted precedent, for future cases.  Whilst each application must be considered on its own facts, it must be remembered that the court here is faced with a most extraordinary prosecution – I will not repeat myself here.  Moreover, the applicant, in my view, is not being called upon to come here to do junior work as such.  For all practical purposes, the applicant should be regarded, in substance, as at least equivalent to a junior silk, who is being asked to come out here to play the role of a second or third silk in this massive prosecution involving multiple defendants.

35.  Secondly, whilst any similar applications for admission of overseas juniors for the defendants in the present case must be judged on the facts of each application, it must be stressed again that in a complicated criminal case as the present one, the work required to be done by the prosecution team is much more voluminous if not difficult than that of a single defendant.  An individual defendant need only focus on his or her defence and attack the prosecution’s case at points which he or she wants to attack.  The prosecution team, on the other hand, is in an entirely different position.  It is prosecuting in the dark – given the burden of proof and the constitutional right to silence.  It has to cover itself in all flanks.  It has to anticipate all possible arguments, whether on law or on facts, and whether substantive or procedural.  And it has to, in a multi‑party situation, deal with different defendants, represented by different teams of lawyers with different tactics, all at the same time.  Looked at from that perspective, realistically, the prosecution team faces a most daunting and onerous task.

36.  Moreover, on the facts of the present case, amongst the five defendants, they have already got three top London silks, with a large number of local senior counsel, supported by an array of junior counsel and many teams of solicitors.  It would be up to an applicant for the defence to convince this court that that notwithstanding, an overseas junior would still be required to be brought in to buttress up the defence team.  As I said, I would not pre‑empt any such application.  Each case must be considered on its own facts.  But, for the avoidance of all doubt, I can say even now that the mere fact that an overseas junior has established a close working relationship with overseas leading counsel who has been admitted will definitely not provide such junior counsel with a foot in the door to Hong Kong admission.

37.  The truth, as I see it, is that the criminal prosecution in question is a wholly exceptional one, which justifies the taking of exceptional measures.  These measures do not, in reality, threaten the long term interest of our junior Bar.

38.  Mr Blanchflower has mentioned, by way of examples, the names of no less than 20 local senior and junior counsel, as counsel whom the Director of Public Prosecutions has not contacted, before deciding to turn to London for the additional member to the prosecution team.

39.  In a normal case, this would have been a strong point against admission.  However, in the present case, as I have explained in Re Perry QC and in the paragraphs above, one is not so much concerned with whether local counsel of competence are available.  Rather, the public interest is served by ensuring that the prosecution is conducted by the best team available, given the exceptional nature of the case, so long as that is not achieved at the unnecessary expense of the development and maintenance of a strong and independent junior Bar in Hong Kong.  And in this regard, the Director of Public Prosecutions’ professional view on what constitutes that best legal team available must be accorded due weight.  From what Mr Zervos has told the court, I have no doubt that he has got very good reasons for choosing the applicant as the additional member.

My conclusion

40.  Having considered the entire circumstances of the present case, I have come to the conclusion that most exceptionally, I should exercise my discretion in favour of admitting the applicant.  For reasons already explained, I do not believe, and certainly do not intend, that the admission of the applicant would set any unwanted precedent, whether in the current criminal proceedings, or in any future cases.  I cannot over‑emphasise the importance of the development and maintenance of a strong and independent local junior Bar, the interest of which is and will always be jealously guarded by the court.  There can be no doubt about it.

41.  The admission of the applicant against the backdrop of the unique considerations discussed above runs no risk of diluting the approach articulated by Roberts CJ in Re Bratza or weakening the imperative of maintaining a strong and independent local Bar.

The role of the Secretary for Justice

42.  Before parting with this case, I wish to make some observations on the role of the Secretary for Justice in this type of application, where the Government is seeking to bring in an overseas counsel, whether in a criminal case or in a civil one.  The Secretary for Justice plays an important role in applications for admission.  He is here to protect the public interest.  The court relies on the Secretary to make impartial submissions on where the public interest lies.  Therefore, perception‑wise, where the application for admission of overseas counsel originated from the Government, one naturally questions – as Mr Blanchflower has done in the present application – whether the court will be receiving impartial input from the Secretary for Justice in his role as protector of the public interest.  This is so regardless of how conscientious the Secretary’s representative in court tries to make his or her submissions professionally and impartially.  And I hasten to add that Ms Leona Cheung, for the Secretary, has, as always, done her best in assisting the court in this admission application.  But that is not to the point.  One is more concerned with perception than anything else.

43.  Rule 3(1) of the Barristers (Admission) Rules (Cap 159AA) specifically envisages the moving of an application for overseas admission by the Secretary for Justice. Rule 3(2) goes on to say that the court, upon hearing the Secretary for Justice and “upon hearing any representation which may be made by or on behalf of the Secretary for Justice and the Bar Council”, may either admit the barrister in question or dismiss the application.  The first reference to the Secretary for Justice is obviously a reference to the Secretary moving the admission application on behalf of the overseas counsel concerned.  However, the second reference to the Secretary for Justice is a reference to the Secretary making submissions to the court as protector of the public interest. As regards this second hat that the Secretary wears, rule 3(2) expressly envisages the Secretary appointing somebody to make the necessary representation “on [his] behalf”.  This should not be read as limiting only to the Secretary asking a member of his department to speak in court on his behalf.  It is wide enough to cover the instruction of a private practitioner to appear on his behalf.  In my view, insofar as perception is concerned, briefing out the case to a member of the private Bar or a solicitor advocate, at least in a hotly contested or highly important application for admission, would go a long way towards removing any possible criticism of apparent bias against the Secretary for Justice.  I am confident that my observations will be brought to the attention of the Secretary for Justice, and hopefully they will be given due consideration.

Disposition

44.  The application is accordingly granted. It only remains for me to thank counsel for their assistance.