RE MARTIN JOHN POINTER QC

HCMP 3453/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3453 OF 2013

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J U D G M E N T

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The facts

1.  This is an application for ad hoc admission under section 27(4) of the Legal Practitioners Ordinance (Cap 159).  If admitted, the applicant, a prominent English matrimonial silk, will appear for the appellant/mother in CACV 91/2013, which will be heard on 8 May 2014.

2.  The appeal raises, relevantly, two questions of construction of section 10(2)(a) and (e) respectively of the Guardianship of Minors Ordinance (Cap 13).  It also raises the question of whether the level of general maintenance awarded to the infant concerned was too low.

3.  The context in which these questions arose may be very briefly described.  At issue is the financial provision to the child born to the respondent/father, a person of substantial wealth, and the appellant during their cohabitation.  Thus far, the mother and infant have been residing in rented accommodation paid for by the father.  It is the mother’s case (for the benefit of the infant) that the infant should be housed in a self‑owned property.  However, she finds none of the properties owned by the father suitable as they are too near to where the father resides.  She therefore argues that a capital lump sum should be paid by the father, pursuant to section 10(2)(a), for the purchase of a suitable accommodation to house the infant.  Alternatively, she asks that pursuant to section 10(2)(e), a suitable property be purchased and held on trust to accommodate the infant until she reaches majority or complete full time education.

4.  These claims were rejected by the trial judge for want of jurisdiction.  Essentially, the judge took the view that under section 10(2)(a), payment of a lump sum may only be ordered, relevantly, “for the immediate and non‑recurring needs of the minor”.  The infant’s housing needs, he found, do not fall within that prescribed purpose.  Secondly, the judge also held that under section 10(2)(e), the property that can be ordered to be held on trust for the benefit of the minor has to be one to which the parent “is so entitled”, that is, “entitled (either in possession or reversion)”.  It does not entitle the court to order the parent to buy a property (which, by definition, the parent “is not entitled to”), to be held on trust for the benefit of the minor.

The arguments

5.  Moving the applicant’s admission, Ms Frances Irving argued that the determination of these issues would involve the determination of principles which might impact substantially on the development of Hong Kong law.  She also submitted that they are issues of unusual difficulty and complexity.  In elaboration, she argued that section 10(2)(a) is similar, but not identical, to the relevant provisions in the English Children Act 1989 which, significantly, do not contain any limiting words regarding the purposes for which a lump sum may be ordered to be paid[1]. Counsel argued that whether the Hong Kong provisions should be given an equivalent meaning as the English provisions despite the limiting words (“for the immediate and non‑recurring needs of the minor”) is a matter requiring appellate clarification.  It would, naturally, affect the outcome of similar or future cases.

6.  As regards section 10(2)(e), counsel relied on the argument of the applicant, set out in his note prepared for the purposes of seeking leave to appeal in the matrimonial case, that the judge’s determination on jurisdiction ran contrary to the “established practice in England for the settlement of property power to be used to direct the provision by the father of a sum of money in trust for the specific purpose of the purchase of accommodation for the child …”, citing A v A [1994] 1 FLR 657; J v C [1999] 1 FLR 152 and Re P [2003] 2 FLR 865 as examples.  It should be noted that the wording of section 10(2)(e) is identical to the relevant provisions in the English Act[2]. Ms Irving therefore argued that the appeal will decide whether in Hong Kong, our courts should follow the English practice and give section 10(1)(e) an equally liberal interpretation to enable the setting up of a trust fund for the specific purpose of purchasing an accommodation to be held on trust for the benefit of the minor, thereby effectively circumventing the difficulty created by the requirement of section 10(2)(e) that the property to be settled must be one to which the relevant parent is entitled in possession or reversion.

7.  Ms Irving also pointed out that the father will be represented by Mr Richard Todd QC, an equally eminent English matrimonial silk, but not in that capacity as such, but as a generally admitted junior – Mr Todd will hopefully complete his general admission procedure and become a member of the local Bar in time to enable him to appear for the father to resist the appeal (together with Mr Russell Coleman SC).  Ms Irving argued that there should be “equality of arms” in representation.

8.  Ms Irving argued that no suitable and available local silk with adequate experience in the Children Act 1989 can be found to appear for the mother in the appeal despite enquiries.  She also told the court that she will appear as the applicant’s junior in the appeal, if the admission sought is granted.

9.  The Bar opposes the application, and the Secretary for Justice appears to have reservations about it.  Essentially, the view is taken that the issues raised are not of unusual complexity or difficulty.  Nor are they issues the determination of which might impact substantially on the development of local law. Mr William Wong SC (Ms Carol Wong with him), appearing for the Bar at the hearing, also criticised the failure on the part of those representing the mother (and the applicant) to make “reasonable, serious and genuine” effort to locate suitable local counsel to represent the mother.

10.  Mr Wong, as well as Ms Leona Cheung for the Secretary for Justice, accepted that there are no direct appellate authorities in Hong Kong on the issues raised and that the determination of these issues would no doubt affect the outcome of similar or future cases.  But both submitted that the mere novelty of an issue is not sufficient to turn it into an unusually difficult or complex one.  Furthermore, they both pointed out that the issues raised are issues of statutory construction based on local legislation.  The English position is not in doubt.  An English silk therefore has no significant advantage over a local one in assisting the court in its task of statutory interpretation.  As regards the last issue concerning the adequacy of the general maintenance ordered by the trial judge, it was submitted that it is a fact‑sensitive issue, and the assistance of a London silk is simply not justified.

11.  Finally, both argued that “equality of arms” in the present case is quite irrelevant, given that Mr Todd will appear before the Court of Appeal not as a London silk pursuant to an ad hoc admission, but as a generally admitted local junior.

The general principles

12.  The principles governing ad hoc admissions are well established: Re Flesch QC [1999] 1 HKLRD 506; Re McGregor QC [2003] 3 HKLRD 585.  However, it is still useful, in the context of the present case, to remind ourselves what Re McGregor QC (para 11) has said about the two types of typical situations – and, of course, there is a measure of overlap involved – where admission may be granted :

“(1) In analysing the issues in the relevant case for which the admission of overseas counsel is sought, the court must ask itself the question whether the determination of such issues would also involve the determination of principles which might impact substantially on the development of Hong Kong law. This is of course not the sole question but it is an important one. If the case is one where the ventilation of arguments on important legal principles is likely to end up in the Court of Final Appeal, this is a very powerful factor in favour of admission. In Re Flesch QC, Chan CJHC at p.514A used the phrase ‘likely to go all the way up to the Court of Final Appeal for a determination of some principles of law’. I do not disagree with this but wish to make it clear that it is merely illustrative of the exercise carried out by the court that I have just referred to, namely, the identification of cases involving the determination of legal principles which might substantially impact on Hong Kong law. Chan CJHC was not advocating an exercise in determining the likelihood or otherwise of the particular case itself going to the Court of Final Appeal, for this may involve considerations far removed from the point of the exercise.

(2) Another of the usual grounds justifying the admission of overseas counsel is that the matter in which he is sought to be instructed, is one of unusual difficulty and complexity (the feature discussed in the preceding paragraph of course overlaps with this ground although in certain cases it may stand alone). However, as Re Kosmin QC [1999] 1 HKLRD 641, at p.644A-H makes clear, in order to come within this category, it is not necessary to demonstrate that there is no local counsel who is competent to do the case. This would be too high a burden. However, it is incumbent on the applicant to demonstrate that reasonable efforts have been made in good time to instruct suitable local counsel to do the case and for whatever reason, such counsel are unavailable. …

(3) I should just say something more about the aspect of suitability of local counsel.  It is clear from the passage just set out that it is not necessary to demonstrate that no Senior Counsel exists in Hong Kong who would be able to do the case.  That must be an extremely rare situation anyway.  However, where the degree of difficulty or complexity is such that the court is of the view that specialist counsel would be highly desirable, the pool of suitable local counsel will necessarily be limited.  In the past, complex cases involving tax or patent law have come under this category.  The question is not so much whether counsel in Hong Kong is able to do the case competently or even skilfully, but whether the specialist overseas counsel can add a significant dimension to a very complex or difficult case. Having said this, I think it must also be recognised that in other cases of unusual difficulty or complexity, the pool may be larger and the court may be less receptive to the admission of overseas counsel.  These involve matters of degree from case to case.”

My views

13.  The hearing before me proceeded on the basis that the matrimonial appeal would largely turn on section 10(2)(e), rather than (a), for the reason that the housing needs of the child would usually terminate upon his or her reaching majority or completing education, and therefore, what is required is a settlement of property to meet the child’s housing needs before reaching majority or completing education, with ultimate reversion to the relevant parent (that is, the father in the present case), rather than the payment of a lump sum to the mother or the infant to buy a property as accommodation, thereby making an outright gift of the property to the mother or the infant: A v A; Phillips v Peace [2005] 2 All ER 752.  I agree with this analysis, subject to one point that I will presently mention.

14.  I also tend to agree with Mr Wong and Ms Cheung that since the jurisdictional debate on section 10(2)(a) would largely turn on the difference in wording of our local provisions and their English counterparts, a London silk does not appear to stand in a significantly better position than a local silk in assisting the Court of Appeal in resolving the question of interpretation.  But this is again subject to what I am going to mention below.

15.  That leaves section 10(2)(e).  As mentioned, it is equivalent in wording to the relevant provisions in the Children Act 1989.  It cannot be disputed that in the English courts, the relevant provisions have been applied to order the settlement of a lump sum by the parent for the specific purpose of buying a suitable property to house the infant during his or her minority or pending the completion of full time education.  The question therefore becomes whether in Hong Kong, a similar property settlement order can be made by giving our provisions a more liberal interpretation than that given by the trial judge below.

16.  At the hearing, counsel could not refer to any direct English authority dealing specifically with this point of jurisdiction.  The cases cited to the court all appear to have proceeded on the basis that such a property settlement order may be made. Nonetheless, a quick perusal of the cases would suggest that there is a long history to, and a substantial body of case law and practice based on, the relevant provisions in England: see, for instance, J v C at p 155; Re P at paras 35‑49; H v S (Financial Provision for Child of Unmarried Parents) [2010] HKFLR 236, paras 33‑48; Halsbury’s Laws of England (5^th ed 2012), vol 9, para 562 and the footnotes.  Moreover, it is not clear (at least to me) whether the English practice is based on a combined use of the lump sum power and settlement of property power under Schedule 1, paragraph 1(2)(c) and (d) of the English Act respectively: see, for instance, Peter Jackson J’s discussion of the court’s jurisdiction in G v A (No 3) [2012] 1 FLR 415, paras 19‑26, and in particular, his brief reference in paragraph 20 to paragraph 1(2)(c) and (d) as being the sources of the court’s jurisdiction; and if so, the implications for the Hong Kong position, given, in particular, that our section 10(2)(a) is slightly differently worded.

17.  Superficially, what is involved is a simple question of statutory interpretation.  However, a closer look at the relevant material has persuaded me that in order to arrive at the true and proper construction of section 10(2)(e) (and/or section 10(2)(a)), which are no doubt modelled on the English provisions in the Children Act 1989, one must have a good grasp of the historical development of the law and practice relating to children born out of wedlock in the United Kingdom, the law reforms made in that country, the relevant case law, and the past and current practice there.  All this would hopefully provide the court with a more complete picture and understanding of the purpose and context of the relevant provisions, matters that are of crucial importance to modern‑day statutory interpretation.  It is of course open to our court to adopt a different interpretation based on local circumstances, including circumstances peculiar to our own Ordinance.  But that does not detract from the fact that the English background of the relevant provisions would be highly important.

18.  But not only that.  In my view, this question of interpretation involving section 10(2)(e) (and/or (a)) is a question of some significance in family law.  It is a point which might substantially impact on the development of local jurisprudence and one which, in my view, might well end up in the Court of Final Appeal for very good reasons.  It would affect whether the type of settlement order under discussion can be made under the existing provisions, or whether further law reform should be considered, in order to achieve better equality amongst children irrespective of whether they were born to persons married to each other.  This is, in my view, a matter not only of some legal, but also social, significance.

19.  All this has also persuaded me that this is a case where the involvement of an English specialist would bring valuable assistance to our court.  I am not, of course, saying that no local silks, including highly successful civil and commercial silks (who are, nowadays, more and more often called upon to do heavy matrimonial cases), can competently or even skillfully assist the court in the coming appeal.  But that is not to the point.  What is important is whether the applicant, a leading English specialist, can add a significant dimension to the determination of the issue in question.

20.  That consideration also neutralises to some extent the criticism made against the applicant’s side that not sufficient efforts have been made to approach local silks to do the appeal.  Mr Wong, in the course of his submission, has named several senior silks in Hong Kong who have very good matrimonial litigation experiences, and who have apparently not been approached by the mother.  However, I have been convinced by the arguments and the material that I have read that the appeal is one which specialist knowledge and experience of the English law and practice, including the Children Act 1989 in so far as it concerns children born to unmarried persons, is highly desirable.  It is not suggested that too many of the local silks have got such knowledge and experience, particularly if one were to exclude those acting or having acted for the father.  Indeed consideration of cross‑fertilisation would suggest that it is in the public interest to admit the applicant to conduct the appeal.

21.  Having reached this conclusion, I need say very little about the “equality of arms” argument.  Mr Todd, if he were to appear for the father in the appeal, would, technically, be appearing as a local junior (to Mr Coleman).  But on the facts of the present case, it is quite apparent that he is, or will be, instructed by the father not because of any of his knowledge of Hong Kong law. Rather, he is to be brought in, obviously, because of his tremendous knowledge and experience in matrimonial law, including the Children Act 1989, in England. In my view, this is also a relevant factor that should be borne in mind on the facts of the present case.  On different facts, this factor could be entirely irrelevant.  Indeed Ms Irving was absolutely right in conceding that the mere fact that (after his general admission to the local Bar) Mr Todd is instructed in a particular case does not mean that the opponent is entitled to bring in a London silk.  One must always look at all the relevant facts and factors and perform a balancing exercise.

Disposition

22.  Having borne in mind and weighed all relevant considerations and arguments, I have come to the conclusion that the application should be granted.  I so order.

23.  I thank counsel for their assistance.