In re THE HONOURABLE MICHAEL JACOB BELOFF, QC,

IN THE HIGH COURT OF JUSTICE

1993, MP No. 3198

HEADNOTE

Application of London Silk for admission to practise in Hong Kong.

- Case of unusual difficulty.

- Well-known local personality involved.

1993, MP No. 3198

IN THE HIGH COURT OF JUSTICE

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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Hon Yang, CJ:

1. This is the application of the Honourable Michael Jacob Beloff, a Queen's Counsel practising in England, for admission to the Bar in Hong Kong, for the purpose of appearing for the China Light and Power Co Ltd ("CLP") and Castle Peak Power Co Ltd ("CAPCO") in connection with Death Inquest Nos 24 and 25 of 1993 NT.

2. The Attorney General adopts a neutral stance. The Bar opposes the application and the Law Society gives their "clear support".

3. On 28 August 1992, there was an explosion at the Castle Peak Power Station at which two employees of CLP were fatally injured. CAPCO is the owner of the Power Station, and CLP is the operator of that Station.

4. On 19 April 1993, an Inquest into the fatal injuries of the two employees commenced before the Coroner, Mr W B G Banks. In view of the difficulty and complexity of the case, CLP and CAPCO decided to be represented by an experienced counsel, Mr Michael Ford, a barrister of more than 20 years' standing.

5. For reasons which need not be discussed here, CLP and CAPCO lost confidence in Mr Ford and dismissed him as their counsel on 17 May, when the Inquest was still part heard. Another barrister, Mr Nigel Kat, was instructed in Mr Ford's instead. On 27 May, the jury at he Inquest delivered their verdict.

6. On 13 July, the Vice Chairman of the CLP made a written complaint about Mr Ford's conduct to the Bar Association.

7. A consequence of Mr Ford's dismissal was that, in response to alleged threats made in the United States by lawyer retained on his behalf, CLP and CAPCO took out proceedings in Hong Kong against Mr Ford for breach of confidence, and an injunction was obtained restraining him from using confidential information and documents. Commencing the 1st August the South China Morning Post and the Sunday Morning Post published a series of articles on the dispute between Mr Ford on the one hand and CLP and CAPCO on the other, and sought the re-opening of the Inquest. On 9 August, the Attorney General pursuant to Sec. 20 of the Coroners Ordinance ordered the Inquest to be re-opened.

8. By an affidavit sworn on 18 September, Mr Ross Edward Sayers, Managing Director of CLP and a Director of CAPCO, states that officers of both companies have expressed their concern about being represented at an appropriate level by a member of the local Bar and now wish to be represented by leading counsel from overseas to deal with a number of issues, namely: -

(1) The Coroner has ordered the production of certain documents, including the report of CLP's internal Advisory Board and a report into the incident given by a company affiliated to Exxon Energy Ltd (which is a 60% shareholder in CAPCO). The hearing of the Summons for production of documents will be heard on 29 September and involves a difficult question of privilege.

(2) Evidence of a highly technical nature will be heard at the Inquest, set to open on 18 October, whilst such evidence had already been dealt with at the earlier Inquest, it is expected that such evidence will be reviewed even more minutely at the re-opened Inquest.

(3) In view of the close interest Mr Ford and the widows and dependents of the deceased employees will take, and the allegations which have been made in the media, it is necessary that counsel experienced in major public inquiries be instructed to represent CLP and CAPCO.

(4) Widows and dependents of the deceased employees have instituted proceedings against CLP and CAPCO in Texas claiming very substantial damages. The Inquest will have an effect on the defence in the proceedings in Texas.

(5) The potential damage to the reputation of CLP and CAPCO has to be considered. CLP in particular is a public utility company. It's good name is important for the company's activities in Hong Kong as well as Mainland China.

9. By an affidavit sworn on 11 September by Mr George M T Eddings, solicitor for CLP and CAPCO, the following grounds are advanced in support of the application now under consideration: -

(a) Further detailed examination into complex factual and expert evidence is required.

(b) There is the complicated question of privilege.

(c) Mr Ford's alleged conduct has given rise to "a complex web of related actions" both in Hong Kong and in Texas.

(d) As Mr Ford is a barrister of over 20 years' standing, CLP and CAPCO are concerned to ensure that there is and seen to be complete impartiality in the way that they are advised.

(e) Very serious allegations have been made in both the English and Chinese language newspapers in Hong Kong, some of which allege criminal conduct; both CLP and CAPCO are concerned about the damage that has been caused to their reputation.

(f) All leading counsel on the Bar Committee are thought not suitable in view of the complaint made to the Bar Association against Mr Ford.

(g) Other leading counsel, Mr John Griffiths, Mr Michael Thomas and Mr Adrian Huggins, are also thought not suitable because they have been retained in related proceedings, including the injunction proceedings mentioned above.

10. Before I go any further, I should observe here that Mr Griffiths will not be available. Mr Thomas has been retained by the firm of solicitors acting for CLP and CAPCO personally to advise the firm. Mr Huggins acted for CLP and CAPCO (on instructions from another firm of solicitors) in the injunction proceedings against the newspapers. He is available, and he does not think he is unsuitable. I too am unable to see why he should be excluded, apart from the general ground that CLP and CAPCO desire to be represented by an overseas Queen's Counsel.

11. Of the 15 local Queen's Counsel approached by the solicitor for the applicant, some are members of the Bar Council, others are not available or only partially available. The Inquest, as indicated by the Coroner, will take place "between 18th October and end November of indeterminate length". It goes without saying that counsel would need to be available both for preparation and consultation on an almost full time basis between now and the commencement of the Inquest.

12. Of the 14 local Queen's Counsel approached on behalf of the Bar Council, only five are fully available. One of these has made political comments on the incident, the other acted for Mr Ford in the injunction proceedings, a third one is a shipping expert, and the fourth has only very recently taken Silk though he was for many years a Senior Counsel in Ireland. The fifth one is Mr Huggins.

13. Mr Beloff was instructed on 9 September. I am told the papers are voluminous and are four feet thick. Mr Kat, who was expected to be the junior, is obliged to appear for the Government in another case and cannot be made available for the Inquest. Mr Beloff's considerable experience in the public and commercial field, and with major Inquests and Inquiries, is not in dispute.

14. The Bar's main objections to the application are:-

(i) that this is not a case of unusual difficulty and complexity: Re Coles [1985] HKLR 480;

(ii) that if a party has been dilatory in seeking the service of local counsel, a late application, and the difficulties which this brings with it, will not be allowed to weigh in favour of the applicant: Re Sherrard, MP No. 2075 of 1987;

(iii) that the argument for an overseas Silk is weakened by the representation of CLP and CAPCO by a junior counsel at the earlier Inquest and the injunction proceedings: Re Johnson, MP No.1610 of 1990; and

(iv) that a public utility company is no different from any other large public corporation.

15. In my judgment, this is a case of unusual difficulty and complexity, not so much because the facts and technical data must necessarily be difficult and complex, but because of the effect which the Inquest, and the information disclosed therein, must have upon other proceedings, including those in Texas. CLP and CAPCO and their legal advisers have now a more comprehensive picture of the web of interlocking issues which they have to face - a picture which was perhaps not so obvious earlier this year and did not emerge or come into focus until the summer. It is on this basis that Re Johnson (supra) may be distinguished.

16. I also note the dicta of Roberts, CJ, in Re Goldblatt [1985] HKLR 484, 487, that the views of the instructing solicitor as to the kind of representation needed, and as to its availability from local sources, must be given considerable weight.

17. On the question of dilatoriness, it will be seen that on 9 August the Attorney General ordered that the Inquest be re-opened. In mid-August, solicitors for CLP and CAPCO made the enquiries about availability of local Queen's Counsel. Further enquiries were made on or about 18 August. There has been no delay.

18. Whether the fact that a public utility company should be treated differently in an application such as this is to be considered in the light of Re Coles (supra), where Roberts, CJ, held that an application may be granted if the case is of such a nature as makes it desirable for overseas counsel to appear, e.g. a case involving a very well-known local personality. For the purpose of the present application, the fact that a large utility company, whose business activities cross over to Mainland China, is facing proceedings here and in Texas, is a legitimate consideration. A public utility is in my view very different from a commercial enterprise whose operation may be of interest in a purely commercial sense; a public utility affects the daily life of the whole population or a very sizeable part of it.

19. For the foregoing reasons, application granted.