RE ALUN JONES QC

HCMP1437/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1437 of 2003

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J U D G M E N T

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1. This is an application by Mr Alun Jones QC for admission as a barrister of the High Court of Hong Kong for the purpose of advising and representing Mr McMahon in the case of HKSAR v Gerard J McMahon in the District Court (DCCC No. 283 of 2003) and for any hearings before the Court of Appeal and/or the Court of Final Appeal.

2. The charge against Mr McMahon is "Doing an act tending and intended to pervert the course of public justice." A pre-trial review before a judge in the District Court has already taken place following which it was considered that a further pre-trial review would be required and this has been fixed for hearing on 25.6.2003.

3. As a result, the Notice of Motion has been amended to include in the application that Mr Jones be admitted to appear for Mr McMahon in the forthcoming pre-trial review.

4. Mr Alan Leong SC for the applicant now informs me that he is not proceeding with that part of the application relating to Mr Jones acting for Mr McMahon in any future appeals.

5. The Bar Association opposes the application while the Secretary for Justice takes a neutral stand on the application in so far as the applicant's admission for the trial but draws a distinction between appearing at the trial and appearing at the pre-trial review.

6. The ability and experience of Mr Alun Jones in criminal cases is not in doubt.

7. According to the summary of facts annexed to the affidavit of Mr Angus Stuart, solicitor for the applicant, the case against Mr McMahon arose out of an affidavit filed by him in June 1993 in his capacity as the Executive Director of the Enforcement Division of the SFC and a member of the Steering Committee established to monitor the Allied Group Inspection for use in judicial review proceedings issued by the Allied Group Limited and others.

8. Mr Leong while agreeing that the charge is not particularly complicated submits that to run the defence properly, counsel for Mr McMahon must understand the complex factual background of the charge and barristers specialized in handling complex commercial crimes are obviously preferable. The Allied Group Inspection and the Lee Ming-tee prosecution are so connected that many local senior counsel are in a position of conflict or embarrassment and cannot or do not feel able to act for Mr McMahon because of their previous involvements in the matter. There are some 9 local silks in this category.

9. Mr Leong submits that two other local silks who formerly were members of the DPP's chambers are also excluded because the Deputy Director of Public Prosecutions will be a witness for the prosecution. Three other senior counsel are either not available or has not responded. The choice of senior counsel is therefore limited. Because of his experience in the legal sector, and because his personal and business reputation and liberty are at stake, Mr McMahon would not be content with the counsel who are still available. These are special circumstances not found in other criminal cases. Referring to Re Kosmin [1991] 1 HKLD 641 where Chan CJHC allowed admission of overseas senior counsel when there was a lack of suitable local senior counsel, Mr Leong says the present case is on the same footing as Re Kosmin.

10. Relying on Todd [2001] HKCFI 358, Mr Leong submits that each case must be considered according to its particular circumstances and the court must adopt a flexible and sensible approach. He further submits that according to Re Flesch [1997] 1 HKLRD 506, having regard to the need for adequate representation and the litigant's right to have counsel of his own choice, it is in the public interest that Mr Jones be admitted to represent Mr McMahon.

11. Mr Joseph Tse for the Bar Association on the other hand submits that although the case against Mr McMahon has a long and complex historical factual background, the applicant does not rely on the case being one of unusual difficulty and complexity to support his application. There is also no claim that the case requires specialist expertise. While noting that the only ground of the application is that there is no local senior counsel of appropriate skill and experience to conduct the case for Mr McMahon and that Mr McMahon has a right to decide whether the case warrants a leading counsel, Mr Tse submits that the fact that senior counsel of Mr McMahon's choice are not available while those available do not meet Mr McMahon's choice does not justify the present application.

12. Mr Tse submits that while it is not necessary for the defendant to approach all of the local leading counsel, it is undesirable to allow individual subjective views on the quality of the local Bar to affect the public interest of maintaining a strong and independent local Bar. It is ultimately a balancing exercise between the public interest and Mr McMahon's private interest.

13. Referring to Mr Ching Y Wong SC, who is available but needs time to read the case, and Mr Bruce SC and Mr Blanchflower SC formerly of the DPP's chambers who have not been approached by the solicitors for Mr McMahon and who have not indicated that they do not feel comfortable to represent Mr McMahon, Mr Tse points out that it is not the case that there is no senior counsel at all who is able to conduct the trial and with whom Mr McMahon can work.

14. Mr Herbert Li, Deputy Principal Government Counsel appearing for the Secretary of Justice, in his very helpful submission, referring to Re Flesch, points out that the right of Mr McMahon to have adequate representation and to instruct counsel of his own choice is "no more than that he is free to choose his counsel from those available to represent him at a proper fee on the date fixed for the hearing..." (at page 514J). He submits that while great weight may be placed on the subjective views of solicitors on counsel's competence, certain amount of objectivity is required. Mr Jones has to satisfy the court that Mr McMahon's attempt to instruct local senior counsel has been reasonable, serious and genuine, and in particular, by explaining the no acceptance of those who have been approached and who have confirmed to be available.

15. The question for me is whether in all the circumstances, the present case is one that in the public interest overseas counsel should be admitted to represent Mr McMahon.

16. In my opinion, the case of Mr McMahon is not one of unusual difficulty and complexity nor one which requires specialist expertise. The case is no more than whether Mr McMahon's affidavit on 3.6.1993 in the circumstances of the case at the time was an act tending or intending to pervert the course of justice. Albeit given the history of the matter and the factual background of the case giving rise to the making of the affidavit is not straight forward, the case is not one which cannot be competently handled by a member of the local Bar, bearing in mind in recent years many defendants in very complex commercial trials brought in the District court were competently represented by local counsel.

17. In so far as Re Kosmin is concerned, it is a case of unusual difficulty and complexity and it was decided on its particular facts.

18. It cannot be disputed that after excluding those senior counsel who have or might have dealt with the proceedings involving the Allied Group Inspection and Lee Ming-tee, the list of senior counsel available to handle Mr McMahon's case is limited. Nevertheless, the list has not been exhausted. The public interest is to maintain a strong and independent local Bar and to admit the applicant would be purely in the interest of Mr McMahon. As has been stated authoritatively in Re Flesch, it is the applicant who is required to show that the case is a suitable one which involves the determination of legal principles which may have an impact on the development of local jurisprudence and the court should balance different aspects of the public interest.

19. I am unable to conclude that the applicant has proved that case against Mr McMahon is one falling within the category as stated above and that his attempt to instruct local senior counsel has been fruitless. I fail to see how the likes and dislikes of different counsel by Mr McMahon should be given more weight than is appropriate and be allowed to affect the public interest of upholding a strong and independent Bar in Hong Kong.

20. Balancing all the circumstances, I refuse the application and in an application of this sort, it is usual not to make any order as to costs.