RE MARTIN JOHN POINTER QC

HCMP 455/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 455 OF 2012

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J U D G M E N T

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The facts

1.  The applicant applies for admission to represent the husband in a set of divorce proceedings in his application to dismiss the divorce petition for want of jurisdiction or alternatively to stay the proceedings on the ground of forum non conveniens.  The application is due to be heard on 9 and 10 May 2012 before Poon J.

2.  The dismissal application turns on section 3(c) of the Matrimonial Causes Ordinance (Cap 179) which provides that the court shall have jurisdiction in proceedings for divorce if either of the parties to the marriage had “a substantial connection” with Hong Kong at the date of the petition.  The husband points out that neither of the parties is domiciled in Hong Kong and they have never resided in Hong Kong.  The husband lives on the Mainland whereas the wife, a Japanese, lives in Japan.  Indeed, the wife has commenced proceedings in Japan in relation to custody of the children.  The only connection the parties have with Hong Kong is that the husband has substantial business interest and assets in Hong Kong, through various corporate vehicles.

3.  Essentially the same facts are relied on by the husband in support of his alternative application for a stay based on forum non conveniens.  He argues that there exists a natural forum, other than Hong Kong, with which the litigation has “the most real and substantial connection” : Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 478A.

4.  Mr John Scott SC, Mr John Hui with him – both of whom will appear together with the applicant at the May hearing if the present application for admission is approved – submits that the present application is covered by the “unusual difficulty or complexity” ground explained in Re Flesch QC [1999] 1 HKLRD 506 and in Re McGregor QC [2003] 3 HKLRD 585.  Counsel submits that section 3(c) of the Ordinance has no equivalent in the United Kingdom.  There have been several local cases on the meaning of “substantial connection” : Jean Michel Savournin v Lau Yat‑fung [1971] HKLR 180; Griggs v Griggs,HCMC 166/1970, 14 June 1971 (Briggs J); S v S [2006] 3 HKLRD 751 and B v A [2008] 1 HKLRD 43.

5.  But Mr Scott points out that these cases do not comprehensively define the circumstances that would be sufficient to provide a substantial connection with Hong Kong.  The entire circumstances have to be looked at.  Counsel says that given the slender connection between the husband and Hong Kong via his investments here, the present case actually tests the extreme boundaries of the concept of substantial connection.  It has potentially wide implications for others in a similar position and may even affect Hong Kong in terms of her ability to attract investments.  Counsel argues that none of the previous cases raised a similar factual situation.

6.  Counsel also points out that the recently enacted Part IIA of the Matrimonial Proceedings and Property Ordinance (Cap 192) which confers a significant new jurisdiction on the court to make orders for financial relief where a marriage has been dissolved by means of judicial proceedings elsewhere, utilises a similar “substantial connection” test in determining the limits of the court’s jurisdiction : section 29AE(c).  This adds an additional dimension that requires consideration in any adjudication on the definition of “substantial connection”.

7.  As regards forum non conveniens, counsel accepted at the hearing that if this had been the only application before the court in May, this would not by itself have provided a sufficient basis for the admission of overseas counsel.  Mr Scott accepted that stay applications based on forum non conveniens are dealt with regularly in the commercial court.

The general principles

8.  The general principles governing the admission of overseas counsel are well established : Re Flesch QC; Re McGregor QC.  It is unnecessary to rehearse them here.  The burden is on an applicant for admission to satisfy the court that it is in the public interest to grant the admission.  In considering an application for admission, the court adopts a flexible and sensible approach, balancing different aspects of the public interest.  Different facets of the public interest include : the need to have a strong and independent local Bar; the need of Hong Kong people to have adequate legal representation and the need for the local courts to develop our own jurisprudence which enjoys international recognition and reputation.  Overseas counsel with sufficiently high quality and standing may be admitted to appear in our courts in cases involving the determination of legal principles which may have an impact on the development of our jurisprudence.  Local counsel’s exposure to cross-fertilisation between lawyers of sufficiently high quality and standing from other common law jurisdictions is considered to be helpful and conducive to the maintenance of a strong and independent local Bar.  Admission of overseas counsel is not limited to hearings before the Court of Final Appeal or even the Court of Appeal.  The same basic approach applies to all hearings, irrespective whether the hearings are final or interlocutory : Re Mostyn QC, HCMP 3552/2003, 17 September 2003 (Ma CJHC), para 10.

The present case

9.  In my view, a case for admission has not been made out.  I accept that the factual situation faced by the court in May is to some extent novel.  The previous cases were more concerned with the expatriate type of situation.  However, this by itself does not turn the case into one which is unusually difficult or complex.  Quite to the contrary, broadly speaking, the facts are rather straight forward.  Neither party to the marriage has any connection with Hong Kong apart from the fact that the husband has, through corporate vehicles, substantial business interest and assets in Hong Kong.  That, in a nutshell, is the parties’ respective cases on there having been or there having not been “a substantial connection” with Hong Kong at the date of petition.

10.  As for the law, I accept that there is no direct guidance from the United Kingdom.  Nor is there any all‑encompassing definition given in the several local cases which have dealt with section 3(c). But that is not surprising.  The concept of “a substantial connection” is not difficult to grasp.  “Substantial” is, as Hartmann J (as he then was) pointed out in S v S, para 16, a plain enough English adjective.  We all understand what it means – at least in substance.  This is because it is not a word that lends itself to precise definition or from which precise deductions can be drawn. His Lordship went on to add that it speaks for itself that an artificially constructed connection will not be a substantial one, and a connection must be real in the sense, for example, that it has not been engineered for temporary tactical advantage (para 17).  All this, with respect, is really commonsense.  At the legal level, in my view, the word “substantial”, or the concept “a substantial connection”, is not capable of further or more precise definition or elaboration.  Rather, it is a highly fact sensitive test, which depends almost entirely on the facts and circumstances of each case and, to a significant extent, the court’s impression and perception.

11.  The fact that the new Part IIA of the Matrimonial Proceedings and Property Ordinance employs substantially the same test does not add anything relevant to the present discussion.

12.  The fact that the present case appears to be the first case of the type of situation in question and would carry with it some implications for future cases or, even more generally, on how some people might wish to arrange their affairs, does not by itself turn the case into an unusually difficult or complex one.

13.  Mr Scott accepts that there is no UK equivalent of our section 3(c).  Therefore I am not sure if a London specialist will stand in a better position than a local silk in assisting the court on the proper interpretation of our own statute.

14.  Furthermore, the May hearing is before the Court of First Instance.  Whilst the application of the husband is potentially dispositive of the divorce petition, it does not mean that there can be no appeal by either party from the decision of the Court of First Instance. Rather, the suggestion is that given the amount of money at stake, either side is likely to appeal from the Court of First Instance’s decision.  This being the case, if some important legal principles are decided by the Court of First Instance at the May hearing, the husband will still have the opportunity to apply for admission of overseas counsel to represent him in the appeal(s).

15.  I also note that in fact, but for the sudden availability of the applicant in January this year, the husband would have been content to be represented by a local silk and junior at the May hearing.  The hearing dates were fixed in November last year when the applicant was unavailable.  There was no attempt to find another London silk who could appear for the husband at the hearing.

16.  I need not deal with the forum non conveniens limb.  In my view, Mr Scott has rightly conceded that by itself, it would not have been sufficient to support the application for admission.

Outcome

17.  For these reasons, the application for admission is dismissed.

Late applications

18.  Before parting with this case, I should note that the present application for admission is a late one.  The husband’s summons was taken out on 8 August 2011.  The hearing dates were fixed in November.  The husband’s solicitors only wrote to the Bar Council indicating the husband’s intention to be represented by overseas counsel on 7 March 2012.  On 13 March 2012, the notice of motion was issued.

19.  But not only that.  Details of the husband’s case supporting the present application were not supplied to the Bar Council until 15 March 2012 when the solicitors, upon the Bar Council’s request, provided further information about their client’s case.  Even those additional details were quite limited when compared with the much fuller skeleton submission put in by Mr Scott and his junior on 21 March 2012, one week before the hearing.

20.  All this has made life difficult for the Bar Council and the Secretary for Justice.  They have the duty to assist the court in this type of application, which has as its focus the question of public interest.  They must be supplied with full and detailed information in good time before the hearing, in order to discharge their duty to the court fully and responsibly.  The later the application, the more details an applicant should supply to the Bar Council and to the Secretary for Justice when seeking their consents to the admission.  This, in my view, would only work for the good of all concerned.

21.  In the present case, I am prepared to accept that the delay in making the application was due to innocent reasons. As already alluded to, the applicant only became available for the May hearing in January.  Nonetheless, this should not have prevented those making this application on behalf of the applicant from supplying as detailed information as possible to the Bar Council and to the Secretary for Justice in seeking their consents to the application.

22.  As has been repeatedly pointed out, the possibility of prejudice to the other party by a late application cannot be ignored : see, for instance, Re Flesch QC, HCMP 279/2007, 16 February 2007 (Ma CJHC), paras 8‑11; Re ter Haar QC， HCMP 287/2007， 16 February 2007 (Tang VP), paras 45 and 46.

Further guidance

23.  I would therefore take this opportunity to remind the profession that, first, in an application for admission, particularly in a late application, full details and information supporting the application must be supplied to the Bar Council and to the Secretary for Justice when approaching them for their consents to the application.  They must not be supplied in a piecemeal fashion.  Nor must they be supplied only at the stage of the skeleton argument or worst still, at the hearing.

24.  Secondly, all applications must be made promptly and without delay.  Deliberate delay or delay for tactical reasons would by itself be quite sufficient to defeat an application, save in the most exceptional circumstances.  But even for innocent delay, if any resulting prejudice could not be removed satisfactorily, it could still be fatal to an application for admission.  In this regard, it must be remembered that in this type of application, the court is placed in an all-or-nothing situation.  Given the nature of the proceedings, costs sanction is not available as a means to sanction delay or to remove potential prejudice.  And as a rule, adjournment of the underlying hearing would not be an attractive option in this post Civil Justice Reform era.

25.  Thirdly, when a party is late in making an application, it would be advisable for the party to notify his opponent of his counsel’s application at the same time his solicitors write to the Bar Council and to the Secretary for Justice for their consents.  This would alert the opponent to the application so that the opponent could start thinking whether he should also make a similar application.  Depending on the facts, this might help to alleviate or eliminate the prejudice to the opposite party by reason of the delay.

26.  Lastly, when an application is made late, those intending to instruct the applicant should provide a full and frank explanation for the delay to the Bar Council and to the Secretary for Justice, as well as to the court, at the earliest opportunity.