RE COLLINGWOOD THOMPSON QC

HCMP 2190/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2190 of 2007

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J U D G M E N T

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1.  The present application for the admission of overseas counsel is made in respect of the same proceedings for which the applicant in HCMP 1722/2007 (Mr Edmund Lawson QC) was admitted.  The relevant proceedings are in the District Court in a trial due to commence on 7 January 2008.

2.  The earlier admission (see the judgment dated 24 September 2007) admitted the applicant in that case to appear for a solicitor who was charged with two counts of conspiracy to defraud.  The context was the takeover of a Hong Kong Company (imGO Limited, later renamed Shanghai Land Holdings Limited) by a Mainland businessman, Mr Chau Ching Ngai, using a corporate vehicle (Global Town Limited).  The acquisition was to be financed by the Bank of China (Hong Kong) Limited.

3.  The 7th Defendant in DCCC 980/2006 (Mr Donald Koo), through his firm, acted as the legal advisor to the Bank of China in relation to the loan facility provided by the Bank.  He faces two charges : -

(1)	Conspiracy to defraud together with five others (including two solicitors) the Stock Exchange of Hong Kong Limited, the Securities and Futures Commission and shareholders of imGO Limited by the making of various false representations relating to the proposed setting up of an Executive Committee for that company.
(2)	Making false statements as a director contrary to section 21 of the Theft Ordinance, Cap. 210 in the annual report of Shanghai Land Holdings Limited with intent to deceive.

4.  It is unnecessary to go into the facts of the criminal proceedings as it does not appear to be contentious that the case is, as I have assumed in the earlier application, to be one of unusual difficulty or complexity.  I am prepared to make the same assumption in the present application.

5.  Mr Adrian Huggins SC, who appears for the Hong Kong Bar Association, criticizes the application for the lack of effort made to inquire about the availability of local senior counsel.  The affirmation in support of the application from Mr Koo gives details of his having considered (and rejected) instructing some six local senior counsel.  Mr Huggins was critical of the lack of detail provided of the reasons for not instructing these counsel or other senior counsel.  Furthermore, the Bar has filed an affirmation providing details of some nine senior counsel who have indicated their expertise in relevant areas as well as their availability.

6.  The court has on numerous occasions emphasized the necessity in all cases for an applicant (or, rather, his solicitors) and of course the burden is on the applicant, to demonstrate that serious consideration has been given to instructing local senior counsel.  This is an aspect that is often ignored or underestimated but where insufficient efforts have been shown (or there is insufficient evidence of the efforts made) the court can refuse admission on this ground alone.  I take this opportunity to remind would be applicants and their solicitors of the need to provide proper details on this aspect.  As Mr Huggins has submitted, it is an important facet of the court’s discretion.

7.  In the present case, Mr Anderson Chow SC, for the Applicant has submitted that efforts were made to instruct local leading counsel and that whether more or less efforts ought to have been made depends on the circumstances.  This is of course correct that one has to look at the circumstances in any given case.

8.  In my judgment, what was said by Mr Koo in his affirmation is important (paragraph 10 of his affirmation) : -

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After having decided to retain London Counsel, those advising me proceed to prepare a comprehensive written Instructions to Counsel (of some 40 pages and 10 odd box files of exhibits) which were delivered to both Mr. Alun Jones Q.C. and Mr. Collingwood Thompson Q.C. in early August for their preliminary advice.  There was some delay in the finalization of their advices which were not available until early October 2007.  After having received their written advices and considered the same with my legal team, I decided to instruct Mr. Collingwood Thompson Q.C. to represent me in the Proceedings.  Further, the admission of Mr. Edmund Lawson Q.C. on 24th September 2007 to represent the 6th Defendant in this matter also reinforced our understanding that this is a suitable matter for the admission of overseas counsel.”  (emphasis added)

9.  As I think Mr Huggins accepted, it is a relevant factor in the present case that in the same proceedings overseas counsel has been admitted for another party.  This is particularly so since criminal proceedings are involved.  It would be invidious if it should be thought that while one party could get the benefit of overseas counsel, other parties cannot.  This is not in any way to downplay the status or ability of Hong Kong counsel but it is quite simply a matter of fairness and perception of fairness.  In the circumstances of the present case, I think it is decisive.  Mr Huggins has forcefully pointed out that there has been delay in making the present application and indeed in a way, there has been but it is not a weighty factor in the circumstances of the present case.

10.  For the above reasons, I would grant the application that the Applicant be admitted to the Hong Kong Bar under section 27(4) of the Legal Practitioners Ordinance for the purpose of conducting the defence of Mr Donald Koo in DCCC 980/2006 and rendering any advice as may be required in conference in relation to these proceedings.