RE MR JONATHAN CAPLAN, QC

HCMP 1262/2018

[2018] HKCFI 2070

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1262 OF 2018

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REASONS FOR JUDGMENT

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Hon Poon JA :

1.  This was an application by Mr Jonathan Caplan QC for admission for the purposes of advising, representing and appearing on behalf of the Hong Kong Special Administrative Region before the Court of Final Appeal in HKSAR v Harjani Haresh Murlidhar, FACC 17/2018, to be heard on 27 November 2018.  The appellant did not oppose the application but the Hong Kong Bar Association did. The Secretary for Justice adopted a neutral stance.  After hearing counsel representing the parties on 4 September 2018, I allowed the application upon the undertaking by Mr David Leung, SC, DPP on behalf of the Department of Justice that Mr Anthony Chau, SPP or another junior counsel of the Department is to be instructed to act for the HKSAR as the applicant’s junior in the appeal.

2.  These are the reasons of my decision.

THE UNDERLYING PROCEEDINGS

3.  The appellant was charged with one count of conspiracy to deal with property known or believed to represent proceeds of an indictable offence, contrary to section 25 of the Organized and Serious Crimes Ordinance, Cap 455 (“OSCO”) and sections 159A and 159C of the Crimes Ordinance, Cap 200.  After trial, the district judge on 4 August 2015 convicted him as charged and on 7 October 2015 sentenced him to 3 years and 9 months’ imprisonment.  The appellant’s appeal against conviction was dismissed by the Court of Appeal on 12 September 2017.

4.  The appellant then sought leave to appeal to the Court of Final Appeal.  On 16 May 2018, the Appeal Committee granted leave to appeal in respect of a question of law of great and general importance as well as on the substantial and grave injustice limb.  The certified question of law, which was in fact raised by the Appeal Committee on its own motion, is :

“ Whether wilful blindness is a sufficient basis for sustaining liability under section 25(1) of [OSCO]?” (“the Question”)

DISCUSSION

5.  The general principles governing ad hoc admission of overseas counsel are well settled : see the useful summary by McWalters JA in Re Perry QC [2016] 2 HKLRD 647, at [24] – [26].  I shall not repeat them here.  For present purpose, I just wish to highlight one fundamental point on the exercise of the court’s discretion in admitting overseas counsel.  In approaching the matter, the guiding principle is whether it is in the public interest to admit the overseas counsel.  Depending on the actual circumstances of the application before the court, different and even competing facets of the public interest may be engaged.  The court needs to identify the facets of the public interest involved, given them proper weight and balance them as necessary, and then determine where the public interest lies.  It being a case-specific exercise, a flexible approach tailored to meet the particular circumstances of the application and address the public interest engaged is necessary.

6.  In the present application, as rightly accepted by the parties, the most important public interest consideration is whether the appeal before the Court of Final Appeal is a substantial one and whether the applicant can make significant contribution to the hearing by reason of his expertise : see Re Girolami QC [2017] 1 HKLRD 1226, per Cheung CJHC at [15] – [19].

7.  It is common ground that the hearing before the Court of Final Appeal is a substantial one. Indeed, it was the Appeal Committee who raised the Question and certified it as a point of law of great and general importance.  As will be seen shortly, it may not be presumptuous at all to suggest that the Court of Final Appeal will take the appeal as an opportunity to further develop the law on mens rea for a section 25(1) offence.  The Court of Final Appeal’s decision on the Question will definitely have far reaching implication to the law of money laundering in terms of mens rea and substantial impact to the development of local jurisprudence.

8.  Nor is it in dispute that the applicant is widely recognized as a leading expert of highest calibre in criminal cases both in England and the wider common law world. Insofar as Hong Kong is concerned, he had appeared in several important criminal appeals in the Court of Final Appeal, including two concerning mens rea for money laundering.  They are Oei Hengky Wiryo v HKSAR (No 2) (2007) 10 HKCFAR 98 and HKSAR v Yeung Ka Sing Carson (2016) 19 HKCFAR 279.  Carson Yeung is of course the latest, landmark authority on mens rea for a section 25(1) offence.

9.  The main dispute is whether the applicant can make significant contribution to the appeal by reason of his expertise.

10.  Mr Derek Chan, SC, for the Bar, submitted that despite his standing and calibre, the applicant cannot make significant contribution to the hearing before the Court of Final Appeal.  He took two points.

(1) Hong Kong law on money laundering has progressively moved away from English law because of the significant differences in the statutory regimes : see HKSAR v Wong Ping Shui & Anor (2001) 4 HKCFAR 29; Oei Hengky Wiryo, supra, declining to follow the House of Lords’ decision in R v Montila & Ors [2004] 1 WLR 3141; and Carson Yeung, supra.  Thus Hong Kong courts have developed our own jurisprudence on section 25(1) of OSCO and will continue to do so.  The resolution of the Question would require an assessment of the jurisprudence developed in Hong Kong rather than the UK jurisprudence in which the applicant no doubt has.  In fact, in Carson Yeung, when the Court of Final Appeal addressed the question of mens rea, it only referred to and discussed relevant Hong Kong cases : see Part D.  In the circumstances, the applicant is not likely to offer significant contribution by reason of his eminent experience in England in contrast with a local senior counsel of comparable years of experience in Hong Kong’s own jurisprudence on issues relating to money laundering.

(2) The Question is not unusually complex or difficult given the Court of Final Appeal’s decisions in HKSAR v Pang Hung Fai (2014) 17 HKCFAR 778 and Carson Yeung.  In fact, the Question was already foreshadowed in Carson Yeung at [117] – [118].  (Hence the observation at [7] above that the Court of Final Appeal might likely seek to develop the law on mens rea when determining the Question.)

11.  With respect, I disagree.

12.  Taking Mr Chan’s second point first, I do not accept his argument that the Question is not an unusually complex or difficult one even if it had already been foreshadowed in Carson Yeung.  As pointed out by Mr Leung, the boundary of wilful blindness is imprecise : see Smith, Hogan and Ormerod’s Criminal Law, 15^th Edition, at p.117, 2^nd paragraph.  What constitutes wilful blindness and how it would feature in the defendant’s state of mind in terms of knowledge and reasonable grounds of belief for the purposes of section 25(1) of OSCO are undoubtedly very difficult matters, meriting the best assistance from counsel of highest calibre.

13.  Turning to Mr Chan’s first point, it is of course now settled that insofar as mens rea for a section 25(1) offence is concerned, Hong Kong law materially differs from English law.  But in the present case, that alone is not a decisive factor in determining if the applicant can make significant contribution by reason of his expertise.  In fact, contrary to Mr Chan’s submissions, although the Court of Final Appeal will most likely consult the local jurisprudence in further developing the law on mens rea by addressing the Question in the coming appeal, the applicant can still make significant contribution because of his expertise.  It is because he was the leading counsel in Oei Hengky Wiryo (for the appellant) and more importantly in Carson Yeung (for the HKSAR).  As leading counsel having appeared for both the defence and prosecution, the appellant must have rendered significant contribution by way of submissions and assistance from both the perspective of the defence and the prosecution to the Court of Final Appeal in developing our jurisprudence on mens rea for a section 25(1) offence.  He must have been fully aware of the intricacies of the arguments involved and had firsthand knowledge and experience as to how the Court of Final Appeal had developed the law on mens rea thus far.  This must have now formed part of his expertise in addition to his already rich and eminent experience in England.  Thus, when the Court of Final Appeal addresses the Question with a view to further developing the law, the applicant must be able to continue to make significant contribution to the hearing by reason of his expertise, even if it is the local jurisprudence that the Court of Final Appeal is most likely going to consult.

14.  This disposes of Mr Chan’s main objection.

15.  The remaining objection by Mr Chan is that the applicant has failed to show that reasonable efforts had been made to locate suitable local senior counsel.  In response, Mr Leung submitted that the Department of Justice had considered the option of engaging an internal senior counsel, including Mr Leung himself, to argue the appeal but decided against it.  It is because Mr Leung would be involved in the preparation of the printed case anyway; and for the best distribution of its limited resources in light of the competing demands faced by the Department of Justice, the best option is to engage the applicant and Mr Chau, SPP, (who also acted as the applicant’s junior in Carson Yeung) to appear as advocate in the appeal.  Mr Leung stressed that due weight should be given to the DPP’s professional view on how to conduct criminal prosecutions, including engaging overseas counsel :  Re Perry QC [2013] 1 HKLRD 145, per Cheung CJHC at [16] – [20].  Mr Leung of course, very fairly, accepted that it is ultimately a matter for the court.

16.  I accept Mr Leung’s submissions.  Further, given the applicant’s past involvement in the development of the law on mens rea for a section 25(1) offence as explained above, he has a definite advantage over a local senior counsel who does not have such experience.

17.  In consequence, I considered that in the present context the public interest clearly lied in favour of admitting the applicant to argue the appeal before the Court of Final Appeal.

18.  Finally, Mr Chan submitted that should the court allow the applicant’s application, local junior counsel who has already been assigned to the matter, that is, Mr Chau, should continue to be instructed to act for the HKSAR.  He would invite the court to make the order that the Department of Justice do provide such an undertaking. In response, Mr Leung readily offered to provide the undertaking in his capacity as DPP on behalf of the Department of Justice.

CONCLUSION

19.  For the above reasons, I allowed the applicant’s application in the manner as stated at [1] above.