Re David Anthony Stewart Richards QC

HCMP 3348/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3348 of 1999

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J U D G M E N T

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1. This is an application by Mr Richards QC for admission to the Hong Kong Bar pursuant to s.27 of the Legal Practitioners Ordinance, Cap.159. It is proposed to brief him to appear for the petitioners in Companies Winding-up Proceedings No HCCW 275/98 and HCCW 467/98. The Bar opposes the application.

2. It is not disputed that the two cases in which the applicant is to be briefed are related, that they are very heavy cases involving a large number of witnesses touching on events which happened some 70 years ago and that they involved a consideration of the family history of the petitioners and the corporate history of the companies. According to the solicitors involved in the cases, there are a large volume of documentation. I need not go into the details of the issues involved. Mr Downey, the solicitor for the applicant and the petitioners, has set out in a very comprehensive synopsis the difficulties involved in the two cases. Suffice it to say for the present purpose that there are many factual and legal issues which are both difficult and complicated. Mr Bleach, SC, for the applicant quite frankly concedes at the outset that while these two cases are very difficult and complicated, it may not be said, depending on different perceptions by different people, to be cases of unusual difficulty and complexity. It is also quite properly accepted that the solicitors are not saying that there are no local counsel capable of handling these cases. In fact, local senior counsel and junior counsel have already been instructed.

3. What I think Mr Bleach is submitting is this. These two cases require not only expertise in this area of the law but also expertise in heavy trials. It is not easy to get local counsel who are experts in both. The applicant is however such an expert. Secondly, local counsel may have an opportunity to work together with overseas counsel of a very high standard and standing and during the process, may acquire exposure and experience. For these reasons, while this application does not fall within any of the categories set out in the guidelines, the court should exercise its discretion in admitting the applicant because this would be in the public interest. First, the petitioners can have full and proper representation and have counsel of their choice. Secondly, this exercise is beneficial to the local Bar.

4. On the other hand, Mr Garland, SC, for the Bar submits that these cases are not of unusual difficulty or complexity and do not fall within the guidelines, that the requirement of three counsel is irrelevant and that there have already been senior and junior counsel in Hong Kong with the requisite expertise to do the cases. He submits that it has not been suggested that the local counsel instructed cannot adequately or properly deal with the difficult factual and legal matters. And finally, counsel says that it is wrong to say that the admission of the applicant may "buttress the expertise of the legal team and provides a perspective on relevant English authorities". It is urged upon me by Mr Garland that the applicant has shown no reason for the court to depart from the guidelines.

5. Section 27 of the Legal Practitioners Ordinance gives the court a discretion in admitting overseas counsel. The paramount consideration is of course public interest. The court when exercising its discretion is to balance competing aspects of public interest. For a number of years, the court has set down guidelines in this type of applications. These guidelines refer to categories which are situations in which the court, having balanced the competing aspects of public interest, is minded to exercise its discretion in admitting overseas counsel. The list is of course not exhaustive. From time to time, in appropriate cases, the court may see fit to exercise its discretion in the public interest to admit an overseas counsel to appear in a particular case.

6. In the present case, I would accept the views expressed by junior counsel and solicitors involved in these two cases that they are heavy cases and that three counsel are required. Their views no doubt carry great weight and I have no reason to doubt them. These are indeed heavy cases involving a large amount of documentation and a large number of witnesses. I also accept that the factual and legal points are difficult and complicated. The difference between a very difficult and complicated case and an unusually difficult and complicated case is sometimes not very great. In my view, based on the materials placed before me, these two cases border between the very difficult and complicated and the unusually difficult and complicated cases. I am persuaded for the reasons given by Mr Bleach that it would not be adverse to the public interest to admit the applicant in the circumstances of this case.

7. As I said in Re Flesch, HCMP 4561, 4641 & 4875 of 1998, "the court would also be more sympathetic if more than one local counsel including possibly senior counsel are instructed in the case". The reason I believe is that cross-fertilization, if I may describe it that way, is healthy and conducive to the maintenance of a strong and independent local Bar. I would however hasten to add that this is of course not a game of numbers. It must not be thought that so long as local senior and junior counsel are instructed, the court would, as a rule, admit an oversea counsel to add to their team. That would be unduly favourable to the rich. That, in my view, cannot be the case and cannot be the spirit and intention of the particular provision in the Ordinance. I accept that the applicant is an expert in this area of the law and in heavy trials. In my view, it is in the public interest to admit the applicant in that the petitioners would now have the benefit of 3 counsel of their choice in these heavy cases which no doubt are very important to them. On the other hand, I do not see any adverse effect on the public interest in maintaining a strong and independent local Bar by admitting the applicant.

8. In the circumstances of this case, balancing the different and competing aspects of public interest, I would exercise my discretion in admitting the applicant. For these reasons, I would grant the application.