RE MALCOLM SPENCE QC

HCMP1690/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1690 of 2005

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J U D G M E N T

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1. The Applicant applies to be admitted to appear for Dragon House Investment Limited (“Dragon House”), the Appellant in an appeal due to be heard by the Court of Final Appeal on 1 November 2005 (FACV 13/2004).  The appeal arises in the context of a resumption by the Government of some agricultural land located at Tai Kiu in Yuen Long.  The resumption was for the purposes of the West Rail project.  One of the main issues in that appeal (if not the main issue) is whether in the assessment of compensation for the resumption under the Lands Resumption Ordinance, Cap.124, it is legitimate to take into account the development potential of the land.

2. As the judgment of Le Pichon JA in the Court of Appeal (from whose decision Dragon House appeals to the Court of Final Appeal) states, the appeal is the third in a series of appeals from the Lands Tribunal concerning the assessment of compensation for the resumption of agricultural land in Yuen Long.  The two other appeals are View Point Development Limited v Secretary for Transport, and Busy Firm Investment Limited v Secretary for Transport, (these two appeals were heard together) [2004] 2 HKC 52.  There is another case in which the issue of whether the development potential of land can be taken into account, arises : - Nam Chun Investment Co Ltd v The Director of Lands, unreported, CACV335/2003, 4 March 2005.  The appeal from the decision of the Court of Appeal in that case is due to be heard by the Court of Final Appeal immediately following the appeal in the present case (FACV11/2005).

3. The issue as I have framed it would appear at first sight to be an important one and indeed it is.  However, the view of the Court of Appeal in the Dragon House appeal (as well as in the View Point and Busy Firm appeals) was that this point had already been determined by the Court of Final Appeal in Director of Lands v Yin Shuen Enterprises Ltd & Another (2003) 6 HKCFAR 1 to the effect that development potential was not a factor to be taken into account.  This remains the position of the Government and is also the position adopted by Mr Chan Chi Hung SC (for the Hong Kong Bar Association) in the present case.

4. Mr Chan submits attractively that as the “development potential” point is one that has already been determined by the Court of Final Appeal, there is no justification for overseas counsel to be admitted.  The other points which Dragon House seeks to raise in the Court of Final Appeal (including legitimate expectation) are not points which require the expertise of the Applicant either.

5. Mr Chan may or may not be right in contending that the development potential point has already been decided by the Court of Final Appeal in Director of Lands v Yin Shuen Enterprises Ltd & Another.  Although it may at first blush appear that Dragon House may have a difficult appeal on its hands, I am far from concluding that the appeal is a frivolous one.  The development potential point should really be a matter for the Court of Final Appeal to decide once and for all in the appeal to be heard in November.

6. In my judgment, the Applicant should be admitted to appear for Dragon House at the hearing of the appeal.  In Re Flesch QC & Another [1999] 1 HKLRD 506, Re Pannick QC [2004] 1 HKLRD 950 and Re Goudie QC, unreported, HCMP764/2005, 29 April 2005, the Court laid particular emphasis on the fact that leading counsel was sought to be admitted for a hearing in the Court of Final Appeal as being a strong factor in favour of admission.  In Re Pannick QC, I said this at page 957 paragraphs 16(3) and (4) : -

“	(3)	It is therefore right as a matter of principle that the Court of Final Appeal should have available to assist its deliberations at least the same pool of counsel that was available to the Judicial Committee of the Privy Council prior to 1 July 1997. In fact, I can see the force of the argument that perhaps the pool should be even larger, provided of course only overseas counsel of the highest calibre appears in that court.
	(4)	Accordingly, in my view, where a hearing before the Court of Final Appeal is involved, the court will be more, rather than less, inclined than at any other level to admit overseas counsel. This is provided of course that the matter is one that is substantial and in which overseas counsel is able to contribute significantly by reason of his expertise. An application, say, for an extension of time would rarely meet these criteria.”

7. I should perhaps end with a point of clarification.  The fact of a hearing in the Court of Final Appeal is admittedly an independent factor and a strong one at that.  However, it is but one factor to be taken into account and it will always be important for the Court to take an overall view.  Here, even where a hearing in the Court of Final Appeal is involved, the Court will be interested in being apprised (if it does not have a good idea of this itself) of the size of the available pool of counsel for the case in question and the reasons for not instructing local counsel.  In the present case, the lack of evidence on the size of the pool or of the reason why the Applicant’s solicitors did not regard Hong Kong counsel as suitable did not undermine the application.  The size of the pool of counsel in Hong Kong who are able, comfortably and competently, to deal with land resumption cases is very small (and even smaller when one considers the fact that two members of this pool are to be instructed in the appeal anyway and that the Applicant will be asked to be part of a team comprising a very senior and experienced leading counsel).  The Applicant is a well-known specialist in the area of land compensation and will likely be able to contribute significantly to the appeal by reason of his expertise.  In other cases where the pool of local counsel can be seen to be large, the Court will expect an applicant’s solicitors to provide more details than in the present application.  In the context of making inquiries, I would refer to Re Kosmin QC [1999] 1 HKLRD 641; Re McGregor QC [2003] 3 HKLRD 585 and Re Crystal QC, unreported, HCMP598/2005, 7 April 2005.  It should not be assumed that even where a hearing in the Court of Final Appeal on a substantial matter is involved, overseas counsel will automatically be admitted, although as I have said, it is a weighty factor.

8. For the above reasons, I make an order in terms of the Notice of Motion dated 12 August 2005.