RE ROBERT ALUN JONES QC

HCMP 2446/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2446 OF 2008

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J U D G M E N T

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1.  The Applicant applies to be admitted as a barrister to represent two persons (“the Defendants”) in an application for leave to appeal before the Appellate Committee of the Court of Final Appeal and, in the event leave is granted, to represent them in the appeal proper.  The hearing for leave to appeal has been fixed for 19 January 2009.

2.  The Defendants were convicted in the District Court on 7 July 2006 (after a trial lasting some 51 days before HH Judge Geiser).  They were convicted of three charges of conspiracy to steal and one charge of conspiracy to defraud.  It is unnecessary to set out extensively the details of the charges faced by the Defendants.  They all involved the operations of a group of companies (called the Skyworth Group) which was involved in the business of electronics, in particular the manufacture of television sets.  The Defendants were executive directors within the Group.  Essentially, the case against them was that they were instrumental in diverting monies belonging to various Group companies to themselves following a series of complicated transactions and false representations.  The defence case sought to explain the passage of the monies.  At trial, the Defendants were represented by a Hong Kong senior counsel and junior counsel.

3.  Following their convictions, the Defendants applied to the Court of Appeal for leave to appeal against conviction.  After a hearing lasting some three days in late June this year, the applications were allowed but in the application of the proviso, the appeals themselves were dismissed.  The judgment that was handed down on 3 September 2008 comes to some 37 pages.

4.  On 30 October 2008, the Court of Appeal dismissed the Defendants’ application for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  It was said that points of law of great and general importance were involved.  The only point identified in the Notice of Motion before the Court of Appeal was this : -

“May a judge convict on the basis that defence witnesses lied in evidence on the central issue where the prosecution had chosen not to allege to those witnesses that they had lied?”

The Court of Appeal was of the view that the law was settled.

5.  In the Amended Notice of Motion seeking leave before the Appellate Committee of the Court of Final Appeal, this point of law is maintained.  It is submitted that the rule in Browne v Dunn (1894) 6 R 67 as developed by the Court of Final Appeal in Lo Chun Nam v HKSAR  (2001) 4 HKCFAR 1 requires some elaboration in the context, particularly, of where the prosecution had deliberately, for tactical reasons, not put a critical part of its case to defence witnesses.  Thus, the propriety of the conduct of prosecuting counsel is also made an issue.  In addition, it is also said that the Court of Appeal had gone considerably further than was justified by the cases.  It was submitted that the judgment of the Court of Appeal omitted reference to a crucial passage in Browne v Dunn.  Other issues arise from a reading of the Amended Notice of Motion as well.  It will be argued that the Court of Appeal fell into error in applying the proviso in reliance on hearsay material and in the way it dealt with the trial judge’s order allowing the prosecution to call rebuttal evidence.

6.  The applicable principles in relation to the present application for admission are well established.  This court has on numerous occasions repeated and applied the principles articulated in cases like Re Pannick QC [2004] 1 HKLRD 950.  Essentially, the CFA factor (so called) will be in most cases decisive when it is demonstrated that the matter that is involved in the relevant hearing is a substantial one.  Whether or not a matter is substantial is the usual variable from case to case.  I should also make it clear in this context (since the contrary was argued by Mr Robert Pang for the Hong Kong Bar Association) that it is generally not necessary to demonstrate that the relevant overseas counsel would be able to add a significant dimension to the matter.  This is a term used by the court in many of the cases.  This factor is principally required to be shown where it is sought to be demonstrated that the relevant matter or hearing involves issues which are of unusual difficulty or complexity or which involves points of jurisprudential value.  This is of much less importance in applications involving the CFA factor.

7.  Mr Pang has submitted that there is really nothing substantial at all involved in the hearings.  He has argued that the issues raised by the Defendants are in reality fairly confined and simple.  They are all fact sensitive and involve no more than the application of well-known principles.  If this were indeed the true analysis (namely, that the matter is in reality simple, certainly not substantial), the court is likely to refuse the application notwithstanding that the Applicant had appeared in the appeal before the Court of Appeal and that the CFA factor is involved : I refer here to Re Jones QC, unreported, HCMP 2629/2006, 19 January 2007.

8.  I am, however, persuaded that a substantial point is involved.  Mr Andrew Macrae, SC (who appears for the Applicant) has argued that the contentions sought to be raised involve more than just the application of well-known principles to the facts of the case.  I refer here in particular to the allegation that the failure to put material parts of the prosecution’s case to the defence witnesses was largely tactical and that the Court of Appeal had (so it was submitted) gone further than was permitted.  I should just also observe that even if the case did only involve an application of well-known principles to the facts, this is not necessarily a simple exercise : see, for example, the observations in Re McGregor QC [2003] 3 HKLRD 585 at 593F-H (paragraph 18).  In the present case, the factual matrix is fairly complicated.

9.  Another aspect influencing my decision is the fact that the Applicant represented the Defendants in the appeal before the Court of Appeal.  While it is still important to demonstrate that the matter to be dealt with in the Court of Final Appeal (whether in the application for leave to appeal or the appeal itself) is a substantial one, the court will be more inclined to allow an admission where continuity of representation is involved.  The court has on previous occasions (albeit in the context of cases involving arbitrations) emphasized the point it is distinctly odd for the same counsel who conducted the proceedings below not to be permitted to appear at a higher level : see Re White QC, unreported, HCMP 1509/2005, 1 August 2005; Re Goddard QC, unreported, HCMP 2589/2007, 11 January 2008.  The usual position, in my view, must be that continuity of representation will be permitted unless special circumstances exist.  One such circumstance might be where the matter for which counsel is required to be admitted is not a substantial one at all.  Where, on the other hand, the matter is a substantial one and the same counsel (who has previously acted) is sought to be admitted, it may not even be necessary to demonstrate that the case is one of unusual difficulty and complexity or that there is involved the point of jurisprudential importance.  This, I think, recognizes the public interest element that it may be unfair to deny a party the benefit of having the same counsel who has acted previously in the same case.  This, as Ms Leona Cheung has reminded the court this morning, goes towards the perception of a fair trial.  Much of course depends on the facts of any given application.

10.  Lastly, for the sake of completeness, I ought to deal with the point regarding the available pool of counsel in Hong Kong who would be able to act in the relevant hearings.  This is not so much a relevant factor in the present case because of the Applicant’s previous involvement.  As I have said, it would be distinctly odd to seek to instruct alternative counsel when the overseas counsel whose admission is sought, is the very person wanted by the lay clients.  This, I suppose, goes back to the continuity of representation point discussed earlier.

11.  For the above reasons, I would order that the Applicant be admitted as a barrister to represent Mr Wong Wang Sang Stephen and Mr Wong Pui Sing in the proceedings before the Court of Final Appeal applying for leave to appeal to the Court of Final Appeal against the decision of the Court of Appeal in CACC 310 of 2006 (FAMC 58 of 2008); and if leave to appeal is granted by the Court of Final Appeal, to appear as counsel to represent them on the appeal before the Court of Final Appeal; and to advise and prepare in relation to these proceedings.