RE JAMES GOUDIE QC

HCMP764/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 764 of 2005

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J U D G M E N T

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1. In order to raise finances for the purpose of carrying out its duties under the Housing Ordinance, Cap.283, the Hong Kong Housing Authority (“the Housing Authority”) decided last year to offer for purchase to members of the public in Hong Kong, and internationally, units in a trust called the Link Real Estate Investment Trust (“LINKREIT”).  LINKREIT would effectively own certain identified retail and car parking facilities in public housing estates (“the RCPF”) that the Housing Authority proposed to sell to a Cayman Islands company which would eventually be owned by LINKREIT.  In short, investors in LINKREIT would own a part of the entity that owned the RCPF.  The offer made by the Housing Authority, which lapsed in circumstances I will presently describe, comprised 197,220,000 units for Hong Kong investors and 1,774,979,000 units for international investors.  Dealing in the units was originally to commence on 16 December 2004, later (by reason of the then existent litigation) postponed to 20 December 2004.

2. On 8 December 2004, two people (Madam Lo and Mr Ma) applied for leave to judicial review the decision of the Housing Authority to sell off the RCPF to the Cayman Islands company I have just mentioned.  Given the urgency, Hartmann J, in a rolled up hearing, gave leave to apply for judicial review and heard the substantive application on 13 and 14 December 2004.  On 14 December 2004, he dismissed the application for judicial review.  The next day, the Housing Authority applied to the Court of Appeal for an order abridging the time normally permitted to serve a notice of appeal against Hartmann J’s decision.  The Court granted the application and ordered the time for serving any notice of appeal to be abridged to 1:00 pm on 16 December 2004 and, should one be served, that the appeal be heard by the Court of Appeal at 2:30 pm on the same day (“the Orders for Abridgment and Hearing”).

3. Only Madam Lo decided to appeal the decision made by Hartmann J.  The notice of appeal having been served on time, the appeal was listed for hearing at 2:30 pm on 16 December 2004.  Later that evening, after hearing arguments from the Housing Authority (Madam Lo having chosen to be absent and not instructing lawyers to represent her either), the Court of Appeal dismissed the appeal.  Reasons for decision were handed down the following day.

4. Immediately after the announcement by the Court of the decision to dismiss the appeal, the Housing Authority applied again for an order abridging the time to appeal, this time in relation to an appeal to the Court of Final Appeal.  The Court declined.  On the following day (17 December 2004) the Housing Authority applied to the Court of Final Appeal for such an order.  Lacking jurisdiction to do so, the Court of Final Appeal also refused the application.  This had the effect of allowing Madam Lo time to consider whether or not she should appeal the decision of the Court of Appeal.  With this perceived uncertainty, the Housing Authority decided to abandon the LINKREIT offer.

5. Madam Lo decided eventually to appeal, following a successful bid to obtain legal aid.  On 18 April 2005, she sought the leave of the Court of Appeal to appeal to the Court of Final Appeal against both the decision to dismiss her appeal as well as the Orders for Abridgment and Hearing.  The questions which were said to be of great general or public importance were stated as follows : -

"	(1)	Whether the Hong Kong Housing Authority can, consistent with its overriding duty under section 4(1) of the Housing Ordinance, Cap.283, dispose of retail and car parking facilities in one of its estates without retaining any control over that at a time when they are still being used by the persons for whom they were provided.
	(2)	Whether the orders of the Court of Appeal made on 15.12.2004 abridging the time for filing a notice of appeal herein and expediting the hearing of any appeal deprived the 1st Applicant of her right of access to the court and her choice of lawyers for the timely protection of her lawful rights and interests or for representation in the court, contrary to Article 35 Basic law."

6. The Court of Appeal gave leave to appeal on the first question but not the second.  The Court acknowledged that the first question ought, by reason of its great general or public importance, to be submitted to the Court of Final Appeal for decision.  As to the second, leave was refused on the basis that all the Court did in making the Orders for Abridgment and Hearing was to apply well-known principles to the particular circumstances prevailing at the time.  All the decision involved was an exercise of discretion applying uncontroversial principles.

7. With this background, I now turn to the present application.  By a Notice of Motion dated 14 April 2005 (prior to the hearing of Madam Lo’s application for leave to appeal to the Court of Final Appeal), the Applicant applied to be admitted under section 27(4) of the Legal Practitioners Ordinance, Cap.159 for two purposes : -

(1)	Any applications for leave to appeal to the Court of Final Appeal in relation to the Court of Appeal’s decision on the substantive appeal and also the Orders for Abridgment and Hearing;
(2)	Should leave be granted, to appear in the Court of Final Appeal in any appeal.

8. It was clear from the written submissions of Mr Russell Coleman (who appears for the Applicant), confirmed this morning, that the application was confined to the appearance in the Court of Final Appeal itself rather than any leave application.

9. The applicable principles are not really contentious and it is unnecessary for me to refer to them at length.  I would, however, just mention two authorities : Re Flesch QC & Another [1999] 1 HKLRD 506 and Re Pannick QC [2004] 1 HKLRD 950.  These cases emphasize as a legitimate factor to be taken into account the fact that the relevant hearing for which admission is sought, is before the Court of Final Appeal.  In Re Pannick QC at 956I-957F (paragraph 16), I set out the following : -

“16	The factor I have just referred to in the previous paragraph, applies to hearings at all levels of Hong Kong’s judicial system.  However, what should also not be forgotten is the particular importance placed by Chan CJHC in Re Flesch QC & Another [1999] 1 HKLRD 506on the Court of Final Appeal as being itself an independent factor: see pp.510C-E, 511F-512B, 513B-E, 515H-I (at para.(3)).  Here, quite apart from important principles of law that would impact substantially on Hong Kong jurisprudence, the following points should be noted:
	(1)	The Court of Final Appeal is at the pinnacle of Hong Kong’s judicial system.  Just as the Judicial Committee of the Privy Council represented Hong Kong’s highest court before 1 July 1997, so the Court of Final Appeal has this status now.
	(2)	The Court of Final Appeal, like its counterparts in the United Kingdom, Australia and New Zealand (amongst other jurisdictions), has an important, if not pivotal, role in the development of the common law worldwide.  The decisions of this Court in the law of libel (Cheng & Another v Tse Wai Chun (2000) 3 HKCFAR 339), in the law of limitation (Bank of East Asia Ltd v Tsien Wui Marble Factory Ltd & Others (1999) 2 HKCFAR 349) and in the Right of Abode cases, provide ready examples of this.
	(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.”

10. In Re Flesch QC, Chan CJHC highlighted the desirability (recognized in the Basic Law) of having the benefit of lawyers and judges from overseas common law jurisdictions to assist the Hong Kong courts.  Particular emphasis was laid on the Court of Final Appeal itself and I believe for good reason : this Court represents the final avenue of the appellate process in Hong Kong and it is accordingly desirable that it is given the fullest possible assistance in the adjudication of substantial matters before it.  This is not to say that the lower courts should somehow not be entitled to the fullest possible assistance from counsel but this is more acute as far as hearings in the Court of Final Appeal are concerned.

11. There is another important element, involving perceptions internationally (and of course within Hong Kong itself) of the reliability and ability of the Hong Kong courts.  In Re Flesch QC, Chan CJHC, at 511F-G, said this : -

“… For the first time in the history of Hong Kong, we now have our own court with the power of final adjudication – the Court of Final Appeal.  If Hong Kong is to remain as an international financial and commercial centre, it is vital that our legal system with all the jurisprudence which our courts, particularly the Court of Final Appeal, can develop should acquire international recognition for its quality and reliability.”

The fact that courts in Hong Kong, especially the Court of Final Appeal, are seen to be able to adjudicate, not just fairly but with proper and compelling reasons, important and difficult cases help confirm the existence of the rule of law in Hong Kong.

12. The issues involved in the main question to be decided by the Court of Final Appeal (that is, the first question which I have identified) are not easy ones to grapple with.  They involve a consideration of the ability of a public body to enter into commercial transactions (in this case, the sale of the RCPF) in order to finance its operations and according to the Housing Authority, to fulfil its statutory duties.  The questions that arise involve considering whether by selling the RCPF, the Housing Authority was acting within its powers, whether it was reasonably necessary to do so or, as Madam Lo contends, whether it was actually against its statutory duties to do so (thereby depriving, so Madam Lo has said, tenants of public housing estate of amenities which should be provided to them under the Housing Ordinance).  True it is that primarily the true interpretation of the Housing Ordinance is involved, but the exercise is an unusually difficult or complex one and also one that will obviously result in a determination that will significantly impact on Hong Kong law.

13. All this is also against the background of the LINKREIT offer.  This offer has very much an international dimension given the offer of the units internationally, not to mention the international interest generated on the case as a whole.  While perhaps it may be an exaggeration to say that the whole world would be observing Hong Kong through this case, a large part of it will be.

14. In circumstances such as the present, there is ample justification in my view to admit an experienced expert in this field to assist the Court of Final Appeal.  The Applicant himself more than amply fits this description.  He is well-known.  He will doubtless be able to make a significant contribution to an important case.  The available pool of local counsel is, I perceive, small and while the affidavit from the Applicant’s solicitors should have been fuller with regard to the aspect of the availability and suitability of Hong Kong counsel, I have been given details today and I do not see that factor as a significant bar in the present case.  Notwithstanding the attractive submissions of Mr Jason Pow SC (who appears for the Hong Kong Bar Association), I do not see the pool of suitable counsel in Hong Kong for the type of case such as the present to be a large one.  It is perhaps pertinent also to point out that 15 leading counsel were considered by the Applicant’s solicitors.  That said, as to the need to provide the Court with details regarding the availability and suitability of Hong Kong counsel, the reason for this is to provide the Court with all the relevant facts needed to decide the application.  In Re Flesch QC, Chan CJHC stated that the Court must be provided with full information.  In the present context, he said at 517D that evidence of the following should be provided : -

“(c)	Where it is alleged that no local counsel of appropriate skill and experience is available, the attempts made to look for local counsel with appropriate skill and experience, the difficulty encountered and the result of such attempts;”

15. For the above reasons, I make an order admitting the Applicant and that he be enrolled as a barrister in Hong Kong to advise and represent the Housing Authority in the appeal proceedings brought or to be brought in the Court of Final Appeal by Madam Lo arising from the dismissal of her appeal by the Court of Appeal on 16 December 2004.

16. I make no order in relation to the application to admit the Applicant for the purposes of any outstanding leave applications arising out of the Orders for Abridgment and Hearing.  As I have said earlier, this was not pursued by Mr Coleman.

[After hearing submissions, the Court made no order as to costs.]