RE MR DAVID PERRY, QC

HCMP 1550/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1550 OF 2010

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REASONS FOR DECISION

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1.  This is an application for the admission of Mr David Perry, QC, to represent the HKSAR in the retrial of Mrs Kissel before Macrae J commencing on 10 January 2011 with 50 days reserved. This application was heard together with the application in relation to Mr Fitzgerald, QC for Mrs Kissel.

2.  The first trial had taken 67 days, followed by an 11-day appeal to the Court of Appeal.  The judgment of the Court of Appeal is 271 pages long.  The appeal to the Court of Final Appeal occupied 6 days.

3.  Admissions of overseas counsel for the purpose of the conduct of a particular case is in the discretion of the court.  The paramount consideration is the public interest.  There are many and sometimes conflicting aspects of the public interests and the court must adopt a flexible approach in balancing them.  Ordinarily, admission would not be permitted unless the particular case would involve unusually difficult and complex issues as to fact and/or law.  The court would also wish to be informed about the availability of local senior counsel for the conduct of the particular case, although it is not necessary to demonstrate that there is no senior counsel in Hong Kong who would be able to do the case.  See Re McGregor QC [2003] 3 HKLRD 585.

4.  This application is brought on the basis that the retrial will involve unusually difficult and complex issues as to fact and law.  It is said that given the history and the nature of the retrial, as well as the unusual difficulty and complexity involved, the pool of local senior counsel available to prosecute the retrial is significantly small. 

5.  It was the view of both the Court of Appeal and the Court of Final Appeal that the first trial involved difficult and complex evidence.  I think the retrial will involve complex issues as to fact.

6.  As for the law, I will not repeat what I have said regarding Mr Fitzgerald’s application.

7.  On the availability of counsel, the material supplied by the prosecution showed that of the 20 senior counsel who state on the bar list that they practise in the area of criminal work and have not been instructed by Mrs Kissel, her former solicitors or the Kissel family interests, only 8 senior counsel have conducted one or more murder trials in the 10-year period commencing 1 January 2000.

8.  Mr Cooney submitted that the prosecution has failed to take reasonable, serious and genuine steps to find out whether suitable local senior counsel are available, and that there is a large pool of suitable local senior counsel to represent the prosecution.

9.  With respect, I do not agree.  Nor do I agree that the material put before the court on behalf of the prosecution is insufficient to show that local leading counsel suitable for the retrial are very limited. 

10.  As Ma JA (as he then was) said in Re McGregor QC:

“11. … 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.”

11.  I have no doubt that this is a case where it would be in the public interest for the retrial to be prosecuted by an overseas leading counsel of the applicant’s standing and experience.

12.  The prosecution also wishes Mr Perry to appear in Mrs Kissel’s application for a permanent state of the application as well as in pre-trial reviews (“PTRs”).

13.  Once it is accepted that Mr Perry should be admitted for the retrial, I can see no good reason why he should not be permitted to represent the prosecution in the application for a stay as well as at the PTRs.  The importance of the stay application is obvious.  It is sensible to use the same leading counsel.  It will save costs and duplication of effort.  As for PTRs, it is desirable for counsel who would be conducting the trial to appear at PTRs.  The admission of Mr Perry should include appearances in such applications.