You are on page 1of 11

CONTENTS

Article
HONG KONG
CIVIL PROCEDURE
NEWS
ISSUE 1/2014 January 2014
ISSN 1609-1698
Practice Review2013 –
“Admission of Overseas Counsel
in Hong Kong”
1
Some lessons fromlast year (Smyth & Co in
association with RPC)
In this article we asked a contributing editor of "The White
Book", Warren Ganesh, of Smyth & Co in association with
Reynolds Porter Chamberlain LLP, to reviewandaddsome
perspective on contested applications for ad hoc admission
of overseas counsel heard in 2013. In what was a relatively
busy year for such applications, there were some interesting
cases and developments.
Catchwords
"Overseas" Barristers - English "silks" - ad hoc admission in
Hong Kong - s.27(4) Legal Practitioners Ordinance (Cap.
159) - ad hoc admission criteria - contested applications -
background - Re Flesch QC "guidelines" and general
principles - evolution of general principles over time
(including, Re McGregor QC and Re Perry QC) - adaptation
of general principles as regards "CFA factor" - summary of
cases anddevelopments heardin2013 (including, Re Mably,
junior overseas counsel) - summary of some points to note.
Introduction
Like anywhere, it is common for litigants in Hong Kong to
wishto instruct who they perceive to be the best legal minds
in the prosecution or defence of their case (besides simply
advising in the "background"). Article 35 of The Basic Law
confers on all Hong Kong residents the fundamental right
(among other things) to choose their lawyer. That right is
uncontroversial; it has been consistently recognised by the
common law. The right extends as much to the "well-off"
as it does to the rest of us.
However, this does not mean that any litigant can simply
"fly-in" an overseas advocate to present their case in a court
in Hong Kong.
Rather, s.27(4) of the Legal Practitioners Ordinance (Cap.
159 - "the LPO") empowers the Court of First Instance of the
High Court to admit a non-locally qualified advocate to
appear in a case (or cases) in the local courts and subject to
such conditions as the High Court sees fit
2
. The applicant
must be fit and proper to be a barrister and have:
"(a) the qualification acquired outside Hong Kong to
engage in work that would, if undertaken in Hong
Kong, be similar to that undertaken by a barrister in
the course of ordinary practice as a barrister inthe High
Court or Court of Final Appeal; and
(b) substantial experience in advocacy in a court…".
Added to these statutory criteria for ad hoc admission of
overseas counsel are a number of common law principles
that have evolved over time in Hong Kong. At the heart of
these general principles is an overriding test of "public
interest".
The "public interest" in this context is a flexible test that
evolves withtime andwhichthe courts determine according
to an unfettered discretion. It includes:
• the right of Hong Kong residents to legal
representation of their choice;
• the need for Hong Kong's legal system to develop its
jurisprudence to achieve continued international
recognition for its quality and reliability; in order to do
so, it is sometimes helpful to have the assistance of
the best talent andexperience available inthe common
law world
3
;
• the need for Hong Kong to have a strong and
independent Bar. This works both ways. A so-called
"cross-fertilisation" betweenthe local Bar andleading
counsel from other common law jurisdictions helps
developlocal skills andtalent, particularly with respect
to cases involving unusual difficulty or complexity.
However, suitable safeguards are neededinorder that
growth of the local Bar (in particular, junior counsel)
is not stifled; for example, the involvement of local
counsel withthe overseas counsel andevidence of their
1 Author - Warren Ganesh. Reviewed by David Smyth, Senior Partner,Smyth & Co. in association with RPC.
2 An "overseas lawyer" can also seek admission and qualification as a barrister in Hong Kong under s.27(2) of the LPO and pursuant to s.4 of the Barristers (Qualification for Admission
and Pupillage) Rules. This involves (among other things) sitting one or more of the five papers making-up the Barristers Qualification Examination. The number of overseas lawyers
enrolling each year to sit the Barristers Qualification Examination in Hong Kong is considerably less than the number of "foreign lawyers" seeking admission each year as a solicitor in
Hong Kong and, therefore, having to sit one or more of The LawSociety of Hong Kong "Overseas Lawyers Qualification Examination". While it is not unusual for over two hundred applicants
to sit the OLQE each year, the author understands that the number of applicants sitting the Barristers Qualification Examination each year is considerably less.
3 The courts used to eschew labels such as "top", "first rank", "eminent", "distinguished" or other possibly "unpleasant innuendos or even adverse implications" (see Re Flesch QC at page
514C) but, moving with the times, appear to have less concern about using such descriptions now.
2
ISSUE 1/2014 January 2014 HONG KONG CIVIL PROCEDURE NEWS ©Sweet & Maxwell 2014
In Brief
availability (particularly, having regard to any specialist
knowledge claimed not to be available locally)
4
.
A trawl through the cases dealing with the admission of
overseas counsel in Hong Kong last year (and the underlying
proceedings to which they relate) reveals quite a bit about
the development of the common law in this area in the last
sixteen or so years (not to mention the wider community that
is Hong Kong).
Background
A summary of the admission criteria for ad hoc admission of
overseas counsel to the Hong Kong Bar, relevant practice
forms, certain practice guidelines and a "checklist" can be
found in the "Admission" section of the Bar's website
5
. These
are required reading for any applicant and his or her
instructing solicitors.
Contested applications by overseas counsel for ad hoc
admission as a local barrister meet with varying degrees of
success; some are allowed in full, others in part
6
. Historically,
many applications are dismissed outright. While each
application turns on its facts, there are certain factors that
suggest a greater chance of success.
Since the leading post-1997 case of Re Flesch QC, there have
been approximately fifty contested cases that have applied
the general common law principles for ad hoc admission of
overseas counsel in Hong Kong, pursuant to s.27(4) of the
LPO ("the Flesch guidelines"); almost all involving English
Queen's Counsel ("QC")
7
. The applications for ad hoc
admission are usually to "advise and appear" in local
proceedings (for example, possibly, at first instance and/or
on an appeal).
There appear to have been nine contested applications to
admit overseas counsel in 2013. This is statistically higher
than average and also reflects the number of high profile
criminal and civil cases proceeding before the Hong Kong
courts at present (in respect of which the service of leading
overseas counsel was sought). Of those nine applications,
four succeeded and four were dismissed; one succeeded in
part.
As is customary, the Chief Judge of the High Court (sitting at
"first instance") heard most of the applications; seven of the
nine applications in 2013. Two other appeal judges (sitting
alone) heard the other two applications, both of which were
approved.
Cases in 2013 - summary
Re Dicker QC [2013] 2 HKLRD 245
This was anapplicationfor adhoc admissionto appear before
the Court of Appeal on an application for leave to appeal to
the Court of Final Appeal ("the CFA")
8
. If granted, the
applicant would be appearing for the appellant for the first
time in the underlying proceedings.
The application was contested to the extent of the applicant's
appearance before the Court of Appeal on an application for
leave to appeal to the CFA. The applicant contended that in
substance there was nomaterial distinctionbetweenahearing
of such application whether it was before the Court of Appeal
or the Appeal Committee of the CFA.
This brought into play the so-called "CFA factor"; namely, a
court was more prepared to grant an application for ad hoc
admission with respect to a case involving issues of great
importance that were likely to end-up in the CFA
9
. This was
stated to be applicable to substantive proceedings before "all
levels of the court in Hong Kong" and not just final appeals
to the CFA, provided the applicant (QC) is suitably qualified
10
.
The application to appear before the Court of Appeal was
refused on the basis that the applicant's "appearance" was
not necessary to determine whether the appeal raised a point
of great general or public importance
11
. With respect to
applications before the Court of Appeal for leave to appeal
to the CFA, the court stated:
"The Court of Appeal is there to conduct a screeningexercise,
particularly in relation to the 'great general or public
importance' limb. Whether the proper administrationof justice
4 Re FleschQC[1999] 1 HKLRD506. Also see Re McGregor QC[2003] 3 HKLRD585. Bothcases are leadingauthorities onpoint. Re McGregor QCstates that Re FleschQCsets out "guidelines"
(see page 591I) and Re Flesch QC also refers to them as such.
5 http://hkba.org/admission-pupillage/ad-hoc/index.html. Note, in particular, Guideline 5 - regarding applications for ad hoc admission being made in a timely manner and on the basis of
all relevant information being placed before the court.
6 For example, to appear at first instance and/or any consequential appeals. The application (depending on its nature and breadth) may be contested in full or in part by the Hong Kong Bar
Association or the Secretary for Justice or both. The one does not necessarily follow the other. The role of the Secretary for Justice is to act as a proponent of the public interest and to make
impartial submissions accordingly: Re Pannick QC [2013] HKEC 1660 at para. 14; Re Mably [2013] 3 HKLRD 738 at para. 42.
7 Source - Westlaw HK and Lexis HK at December 2013 and not accounting for any appeal. Some cases are by the same QC applicant but with respect to different proceedings.
8 CACV No. 64 of 2011, 21 March 2012.
9 Re Dicker QC at para. 16. The "CFA factor" is sometimes liable to confuse generally and more so with respect to applications for leave to appeal to the CFA. With respect to applications for
leave to appeal to the CFA there is a so-called "first CFA factor"; namely, whether the issues on a civil appeal are of great general or public importance (or otherwise) such as to justify leave
to appeal to the CFA; and with respect to a criminal appeal, a point of law of great and general importance etc. The determination of that issue by the Court of Appeal is unlikely to justify
the appearance of overseas counsel. The "second CFA factor" being when admission of overseas counsel is sought with respect to a hearing before the CFA. The role of the CFA in replacing
the Privy Council at the apex of the legal systemin Hong Kong, and the relevance of this to the guidelines for admission of overseas counsel, is explained in Re Flesch QC and in subsequent
cases, such as Re Pannick QC [2004] 1 HKLRD 950 (at pages 956J-957F).
10 Re Dicker QC at para.16. However, the court noted that this was not to suggest that each and every proceeding in the case for which overseas counsel was admitted justified the appearance
of overseas counsel (para. 17). In respect of the so-called "CFA factor" being an important and independent consideration in applications for admission of overseas counsel, also see (among
others): Re Jones QC [2008] HKEC 2211 (unreported at para. 6), HCMP No. 2446 of 2008, 17 December 2008; Re Pannick QC [2004] 1 HKLRD 950 (at page 956G-H) and [2013] HKEC
1660; Re Dicker QC [2013] HKEC 1480. The latter two cases, having been heard in 2013, are dealt with later on in this article.
11 Re Dicker QC at para. 25.
3
ISSUE 1/2014 January 2014 HONG KONG CIVIL PROCEDURE NEWS ©Sweet & Maxwell 2014
warrants the admission of overseas counsel in such an
application is a matter that must turn on the facts and issues
involved in a particular case. But generally speaking, one
would expect the question to be answered in the negative"
12
.
Therefore, while the appeal (if it proceeded to the CFA) was
likely to raise issues of great general or public importance
(including, whether the knowledge of a defrauding director
as to a company's accounts could be attributed to the
company under "primary rules of attribution") that of itself
did not justify the applicant's appearance before the Court of
Appeal on an application for leave to appeal. To that extent,
the application for ad hoc admission was also premature.
However, the Chief Judge sawfit to allowthe application (on
a "contingent basis") to appear before the CFA for leave to
appeal (in the event the Court of Appeal refused leave to
appeal) and, if leave was granted, to appear inthe final appeal
proper.
Points to note
The outcome of the application to appear before the Court
of Appeal may have been different had the applicant already
been admitted to conduct the trial in the court below or to
appear in the appeal itself, on the basis that the court
considering the admission application could have regard to
the "continuity of representation"; namely, that it might be
unfair to deny a party the benefit of representation by the
same overseas counsel who appeared in the lower courts
13
.
Applications for ad hoc admission in order to appear on a
leave application to the Appeal Committee of the CFA and
in the final appeal itself generally fall to be considered
according to the Flesch guidelines as evolved and applied in
cases such as: Re Jones QC, Re Pannick QC and Re Dicker
QC
14
.
With respect to a hearing before the CFA (including an
applicationfor leave to appeal before the Appeal Committee),
anapplicationfor admissionof overseas counsel is more likely
to be approved, provided the issue before the CFA is
"substantial" and the applicant is sufficiently experienced
and expert
15
. However, not every application by overseas
counsel to appear before the CFA on an application for leave
to appeal will be justified
16
.
Re Hapgood QC [2013] HKEC 241
This was an application for admission to appear at a
potentially long trial (fifteen days) of a banking dispute
between a customer and a bank, arising out of foreign
exchange contracts. The case involved (among other things)
an analysis of numerous banking clauses, in particular as
regards the bank's entitlement to close out the plaintiff's
trading position and terminate her margin trading account.
The applicant, whomthe plaintiff wished to appear for her at
trial, was an undoubted banking law specialist. The
application for admission was only taken out three months
before trial because it was not until then that the applicant's
availability was confirmed.
The application was dismissed, primarily because the issues
raised in the case while sometimes complicated were not
considered by the court to be unusually difficult or complex
17
.
The fact that the law on aspects of the banking relationship
might develop did not change that position.
Points to note
The dismissal of an application does not rule out the prospect
of the applicant appearingat anappeal before the CFAarising
out of the same case
18
.
The benefits of "cross-fertilisation" between overseas counsel
and the local Bar usually assume a secondary importance
when the application for admission fails to satisfy the court
that the issues involved are of unusual difficulty or complexity
(or would significantly impact on the development of local
jurisprudence).
Re McDonnell QC [2013] 2 HKLRD 773
This was an application to represent a defendant facing
forgery charges in high profile criminal proceedings and was
largely presented on the basis of unusual difficulty or
complexity
19
. An English QC had already been admitted to
represent the prosecution. The applicant, while very
experienced, was stated to be a chancery and commercial
litigation specialist. He had been retained by the defence to
advise at an early stage in the case.
The application was dismissed, primarily on the basis that
(for the purpose of ad hoc admission for a criminal trial in
Hong Kong) the court was not persuaded that the applicant
had the requisite experience to conduct the criminal defence
12 Re Dicker QC at para. 18.
13 Re Dicker QC at para.26. Also see Re Jones QC at paras. 9-10. The applicant must still be suitably qualified and, in the context of an application to appear before the CFA, the matter must
also be "substantial".
14 See citations at footnote 10. Also see Re Dicker QC and Re Pannick QC later on in this article.
15 The so-called "second CFA factor". See second Re Dicker QC case, HCMP No. 1923 of 2013, at paras. 6-8.
16 Re Dicker QC at para. 21. See also the second Re Dicker QC case, HCMP No. 1923 of 2013, at para. 9. For the purposes of admission of overseas counsel, the difference between an application
for leave to appeal and a substantive appeal before the CFA is stated to be "one of degree"; see first and second Re Dicker QC cases at paras. 21 and 8, respectively. Both cases also discuss
the "CFA factor" in this context.
17 The courts sometimes use the expression "unusual difficulty or complexity" and "unusually difficult or complex" inter-changeably and nothing appears to turn on that. Re Flesch QC uses
the former.
18 Re Hapgood QC at para. 25(2).
19 HKSAR v Chan Chun-chuen.
4
ISSUE 1/2014 January 2014 HONG KONG CIVIL PROCEDURE NEWS ©Sweet & Maxwell 2014
in such a way as to add a significant dimension to the issues
to be dealt with at the trial.
Points to note
The public interest in applications pursuant to s.27(4) of the
LPO(as interpretedandevolvedunder the Fleschguidelines)
is paramount. Within those guidelines, there is a balancing
exercise to be had. While the court tries to adopt a flexible
andsensible approach, of crucial importance is an applicant's
ability to contribute to the jurisprudence of Hong Kong in the
case in question, given his or her experience and expertise.
In this case, the court was also not convinced that there were
no local "silks" who could be approached.
The court also specifically declinedto accept as a fait accompli
the fact that an applicant may have been retained at an early
stage in the case by the defence
20
.
Interestingly, the prosecution in the underlying criminal
proceedings had already succeeded in having an English QC
admitted for the trial of the case (Re Perry QC
21
).
Considerations of "equality of arms" are relevant and support
adhoc admission, providedthe applicant is suitably qualified.
The court stressed that the defence was entitled to consider
another applicant
22
.
Re Montgomery QC [2013] 3 HKLRD 240
This was anapplicationtorepresent a defendant onanappeal
to the Court of Appeal following his conviction on two counts
of (among other things) misconduct in public office. The
defendant was well-knownanda former headof department
at The University of Hong Kong. In support of the application
it was argued that one of the charges being appealed was of
unusual difficulty and complexity, because it raised the issue
of the inter-relationship between the privilege against
self-incrimination and misconduct in public office; in
particular, whether a failure to report an alleged crime, where
reporting it was likely to incriminate the person failing to do
so, could amount to criminal misconduct.
The application was approved, primarily because the court
(a single judge of appeal) considered that the issue raised
gave rise to a question involving unusual difficulty and
complexity and one that could eventually justify leave to
appeal to the CFA
23
. As such, the determination of the issue
raised would contribute to the development of local
jurisprudence.
Points to note
But for the inter-play in the appeal between the common law
privilege and the nature of the charge, it is unlikely this
applicationwouldhave succeeded. The offence of misconduct
in public office is, of itself, unlikely to give rise to an issue of
unusual difficulty or complexity.
The court saw fit to make the point that the media coverage
of the case and the defendant's standing were not relevant
to the application and only rarely would the identity of the
personwhomthe applicant sought to represent be a relevant
factor in the admission of overseas counsel
24
.
While the applicant's standing as an eminent specialist in
criminal law is not disputed, the application was arguably a
"borderline" one.
Re Stone QC [2013] HKEC 815, HCMP No. 675 of 2013
This was an application to appear on behalf of a petitioner
wife in her appeal to the Court of Appeal froma first instance
judgment dividing very substantial matrimonial assets. In
support of the application it was argued that the appeal was
likely to be the first time the Court of Appeal would be
required to clarify the law regarding (among other things)
financial provision for children born out of wedlock and, in
particular, their mothers under s.10(2) of the Guardianship
of Minors Ordinance (Cap.13).
It was also submitted in support of the application that the
pool of local senior counsel who specialised in matrimonial
finance matters was relatively small and that "the wife" was
unwilling to instruct no less than six senior counsel, given her
previous experience.
The applicant's expertise was not in doubt. However, the
application was dismissed primarily because the court was
not convinced that the appeal raised issues of unusual
difficulty or complexity. While some of the issues raised might
be difficult, the court did not consider themto be "unusually"
so. Rather, the issues were in the main fact sensitive and did
not involve legal principles.
20 The court stated, in passing, that it "would not, as it were, be held at 'ransom' by a self-created and accomplished situation" (at para. 10).
21 HCMP No. 503 of 2012, 17 April 2012. Also see Re Perry QC [2013] 1 HKLRD 145 (heard in November, 2012), in which the admission of three "top London criminal silks" was approved for the
prosecution and defence of high profile criminal proceedings for alleged corruption, involving (among others) a former Chief Secretary of the government and two directors of a major listed
property company in Hong Kong. In Re Perry QC an "equality of arms" appears to have played a role in the outcome of the applications, given that as a starting point: (i) the underlying
criminal proceedings were stated to be very complex; and (ii) such was the experience and skill of the three applicants their admission was said to add a "significant dimension" to the first
instance proceedings (at para. 25). Re Perry QC (reported) 23 November 2012 is an important case in the development of the Flesch guidelines. It also demonstrates that, all other things
being equal, once an applicant has been admitted subsequent applications in other proceedings of a similar nature stand a better chance of success.
22 Re McDonnell QC at para. 20.
23 Under the Flesch guidelines, provided an overseas counsel is of sufficiently high quality and standing, the fact that a case involves an issue that justifies determination by the CFAand impacts
on the development of local jurisprudence can demonstrate the public interest in his or her admission; the so-called "CFA factor": Re Flesch QC at page 516B-C. Provided an applicant is
suitably qualified, a court would be more inclined to approve an application for admission when a hearing before the CFA was involved and the actual proceeding for which admission was
sought was "substantial": Re Pannick QC [2004] 1 HKLRD 950 at page 957 and Re Jones QC [2008] HKEC 2211 at para. 6.
24 Re Montgomery QC at para. 18.
5
ISSUE 1/2014 January 2014 HONG KONG CIVIL PROCEDURE NEWS ©Sweet & Maxwell 2014
Point to note
In terms of the Flesch guidelines, the case is interesting for
the court's comment about a party's right to be represented
by counsel of their own choice and the availability of local
counsel
25
. The following quote makes the point
26
:
"It also begs the question of whether the case is one that
justifies the involvement of overseas counsel in the first place.
If the answer is in the negative, as I think it is, the wife's right
to be represented by counsel of her own choice is limited to
local counsel only, save where, as here, it is suggested that
no suitable local silks are available".
"…Given the nature of practice of some of those whom the
wife has approached and the court's view on the difficulty or
complexity of the issues involved in the appeal, the fact that
the wife may not be able to find a local silk who specialises
in matrimonial cases to conduct the appeal for her is quite
insufficient to establisha case of lack of suitable andavailable
local counsel".
Re Mably [2013] 3 HKLRD 738
This was an application to admit a Junior Treasury Counsel
fromLondon(describedby the court as a "highflyer") to assist
the leading overseas counsel admitted in Re Perry QC
27
. The
criminal trial for whichadmissionwas sought was exceptional,
very complex andhighprofile andthe defendants hadalready
engagedleadingoverseas counsel andlocal senior andjunior
counsel. In effect, the applicant was to serve as a "second
leader" to Mr. Perry QC, withwhomhe hadestablisheda close
working relationship.
The application was moved by the Director of Public
Prosecutions ("the DPP") and appears to have had the tacit
support of the Secretary for Justice (a point noted by the Chief
Judge - see "Points to note" below). However, it was
strenuously opposed by the local Bar for the obvious reason
that the applicant was not a leading counsel and, therefore,
the application (it was argued) offered no "significant added
dimension" or any meaningful "cross-fertilisation" with the
local Bar.
In short, the local Bar considered that there were able local
junior counsel available to assist with the prosecution and
the applicant's admission would be detrimental to a strong
andindependent local Bar. It was not disputedthat admission
of an overseas counsel who was not a QC was extremely
rare
28
.
The court approvedthe application. This is as muchexplained
by the wholly exceptional nature of the criminal proceedings
in respect of which the applicant's admission was sought as
anything else and the court was at some pains to make this
clear.
Points to note
The ad hoc admission of an overseas junior counsel in Hong
Kong is very rare. Indeed, a previous instance of an English
junior barrister specialising in defamation being admitted to
conduct a libel case in Hong Kong would almost certainly be
decided differently today
29
.
The public interest, being a flexible concept, in this case
required a balance between: (i) the need for a strong
independent junior local Bar; and (ii) the prosecution of such
a highprofile andexceptional criminal trial withthe best team
available and "free from any interference"
30
. The wholly
exceptional nature of the criminal proceedings appears to
have tipped the balance in favour of admission.
However, the court made it clear this was not a precedent for
"any future cases"
31
. The court also accordedno weight to the
fact that the applicant hadalready establishedaclose working
relationship with leading overseas counsel.
The case is also of note for the Chief Judge's obiter comments
concerning the role of the Secretary for Justice at the hearing
of an application for admission of overseas counsel when the
application, in effect, originated fromthe government (in this
case the DPP). Given that the role of the Secretary for Justice
(through his representative in court) was to make impartial
submissions (and there was no suggestion of anything but in
the case) the Chief Judge had this to state:
"In my view, insofar as perception is concerned, briefing out
the case to a member of the private Bar or a solicitor advocate,
at least in a hotly contested or highly important application
for admission, would go a long way towards removing any
possible criticism of apparent bias against the Secretary for
Justice. I am confident that my observations will be brought
to the attention of the Secretary for Justice, and hopefully
they will be given due consideration"
32
.
25 Also see Re Charles Gray [1984] HKLR 367.
26 Re Stone QC at paras. 18 and 20, respectively.
27 See footnote 21. [2013] 1 HKLRD 145.
28 Re Charles Gray. Also see Re Flesch QC at page 516E.
29 Re Charles Gray. See Court of Appeal's comment in Re Mably at para. 41.
30 Article 63 of The Basic Law.
31 Re Mably at para. 40. The granting of the application was described by the court as "most exceptional" (para. 40) and in respect of criminal proceedings that were "wholly exceptional"
(para. 37).
32 Re Mably at para. 43. Also see s.3(2) of the Barristers (Admission) Rules (Cap.159AA).
6
ISSUE 1/2014 January 2014 HONG KONG CIVIL PROCEDURE NEWS ©Sweet & Maxwell 2014
An application for ad hoc admission of overseas counsel
contested by the local Bar is not necessarily contested by the
Secretary for Justice
33
.
Stay - [2013] HKEC 1428, HCMP No. 1043 of 2013
On 4 September 2013, the court took the unusual step of
granting a short stay of its order for admission of the
applicant, pending an appeal by the local Bar to the Court of
Appeal.
The stay was granted on the basis that the appeal be
prosecutedexpeditiously andthat its merits (against the order
for admission) were reasonably arguable. The court also
granted the stay in the knowledge that the applicant could
continue to work from London on the underlying criminal
proceedings for which he sought admission (given the use of
email and the like), even if the stay involved some temporary
inconvenience to the prosecution.
Appeal - [2013] HKEC 1964, CACV No. 173 of 2013
The Bar Council's appeal was unusual given that, once an
applicant satisfies the statutory criteria to be admitted under
s.27(4) of the LPO, ultimately the court's decision to admit or
not is the exercise of a wide discretion, applying the Flesch
guidelines as they have evolved
34
.
However, the importance of the appeal to the local Bar is in
large part explained by the fact the applicant in Re Mably
was not a QC. Such was the significance of the appeal, all the
parties were represented by an array of counsel, including
leading members of the local Bar
35
.
In dismissing the appeal, the Court of Appeal's unanimous
judgment determined three points.
First, a decision to admit overseas counsel for ad hoc
admission to the local Bar pursuant to s.27(4) of the LPO is
a "civil matter" (just like admission of local counsel or a
statutory appeal to the Court of Appeal in respect of
disciplinary proceedings against professional people). As
such, an appeal arising out of a decision to admit overseas
counsel fell within the Court of Appeal's civil jurisdiction to
hear appeals pursuant to s.13(2) of the High Court Ordinance
("the HCO" - Cap.4).
Second, the Bar Council has standing (locus standi) to appeal
a decision to admit overseas counsel and was, in effect, a
"party" to the proceedings in the court below and within the
meaning of s.2 of the HCO
36
.
Third, the Chief Judge had not erroneously exercised his
discretion to admit in Re Mably. Given the exceptional nature
of the criminal proceedings for which the applicant's
admission was sought and the court's unfettered discretion
to admit (once the statutory criteria had been met by the
applicant), the dismissal of the appeal on this ground (and
generally) was not surprising.
The Court of Appeal's judgment is also notable for its
application of Re Flesch QC, Re McGregor QC and Re Perry
QC as the three leading authorities on point and on the
meaning of the "public interest" (in this context).
As regards the reference to Re Perry QC, the appeal judgment
confirms that due weight should be given to the view of the
DPPin his wish to instruct overseas counsel, on a case by case
basis, but the court is no "rubber-stamp"
37
.
The Court of Appeal's judgment is a useful and important
reminder of the need for an applicant and his or her
instructing solicitors to inform the court hearing the
application (and in a timely manner) of the availability of
suitable local counsel and of their duty to make due inquiries
inthis regard. Referringto Re Crystal QC
38
, the most pertinent
passage of the judgment reads:
"For present purposes, two points can be taken from that
judgment:
(a) In a case of unusual difficulty or complexity, this factor
can sometimes by themselves justify the admission of
specialist overseas counsel notwithstanding the
availability of counsel in Hong Kong who are able to do
the case competently. Whether the factor carries such
weight must depend on the facts and circumstances of
the case and the qualification and experience of the
overseas counsel in question; and
(b) The purpose for due inquiry to be made on availability
of local counsel is to enable the court to arrive at an
informed decision"
39
.
In deciding whether to admit overseas counsel based on the
public interest the court needs to be "provided with all the
necessary facts"
40
.
At the time of writing, the author understands that the Court
of Appeal's judgment in Re Mably brings an endto the matter
33 For example, also see Re Pannick QC [2013] HKEC 1660 (below).
34 The statutory criteria being, in short, fitness and probity and the requisite professional qualification and experience as an advocate.
35 In the appeal, the Secretary for Justice was also represented by a leading senior counsel from the private Bar.
36 Given the Bar's role in applications for admission of overseas counsel, it is not entirely clear how serious a point this was in the appeal.
37 Re Mably (appeal) at para. 53. Also see Re Kosmin QC [1999] 1 HKLRD 641.
38 Re Crystal QC [2005] HKEC 541, HCMP No. 598 of 2005.
39 Re Mably (appeal) at para. 60.
40 Re Crystal QC at para. 12.
7
ISSUE 1/2014 January 2014 HONG KONG CIVIL PROCEDURE NEWS ©Sweet & Maxwell 2014
and that it is not the subject of an application for leave to
appeal.
Indeed, it is difficult to see howsuch leave would be justified.
Of the three points raised in the appeal, the first (the court's
civil jurisdiction) and the second (the Bar's locus standi) do
not seem to be sufficiently serious to be points of great
general or public importance justifying leave to appeal to the
CFA
41
. As for the third point (the court's decision on the facts
to admit overseas counsel), that is a matter of discretion and
fact sensitive, such that it arguably does not justify leave to
appeal to the CFA.
Re Lord QC [2013] HKEC 1300, HCMP No. 1397 of 2013
This was anapplicationfor admissionto appear for a claimant
at the trial of a matter that had yet to be set down and
involvingwhat was describedas (amongother things) "credit
crunch" type litigation arising out of complicated alleged
"mis-selling" claims against a bank with respect to "forward
accumulator" share trades.
The applicant was undoubtedly ahighly experiencedadvocate
who had some considerable success with respect to
complicated banking litigation in London and was much in
demand there.
The application was presented principally on the grounds
that, given the complexity of the claims, the applicant's
admission would help strengthen the local Bar (for example,
"cross-fertilisation" with two local juniors for the claimant)
and enhance Hong Kong's reputation as an international
financial centre inwhichinvestors andbanks couldhave faith
(including, presenting financial claims seeking redress in the
local courts as they saw best).
Like Re HapgoodQC, the application was dismissedprimarily
because the court was not persuaded that the issues raised
in the case were unusually difficult or complex.
Points to note
The fact that the case, inrespect of whichadmissionis sought,
might raise an important point for the first time did not
necessarily make it unusually difficult or complex. That was
not changedbecause legal principles were involvedthat may
not be covered by direct authority in Hong Kong
42
. Indeed,
the court considered the issues in dispute to be largely fact
sensitive.
Further, the court was of the view that what was needed in
the case was not specialist overseas counsel but good expert
assistance andgoodtrial counsel (who existedinHongKong),
to assist the court in understanding complicated financial
products
43
.
As for the availability of local leadingcounsel the court stated:
"For the question here is not whether there are local counsel
with a level of skill, knowledge and experience of structured
products and/or credit crunch litigation comparable to that
of the applicant. The question, rather, is whether there are
available suitable local counsel to take up the intended role
of the applicant in the legal team. Suitability is to be
gauged…...not against the best assistance available in the
whole commonlawworld, or the level of skill, knowledge and
experience of the applicant, but with reference to the level of
competence and ability that is required in order to provide
the court with professional assistance and the litigant with
proper legal representation commensurate with the case
concerned…"
44
.
Re Dicker QC [2013] HKEC 1480, HCMP No. 1923 of 2013
This was another application by the applicant; this time to
appear in different proceedings arising out of a related high
profile and complicated liquidation in Hong Kong.
The applicant was applying to represent the company in
liquidation on an application for leave to appeal to the CFA
and (if granted) the substantive appeal. The Bar opposed the
application insofar as the leave application was concerned.
The order sought to be appealed was a decision of the Court
of Appeal to strike out substantial claims against a former
director on the basis they were time barred
45
.
The application was approved primarily because of the
so-called "CFA factor"; namely, admission was sought with
respect to a hearing before the CFA. This is best summarised
in the following extract from the court's judgment:
"In short, where an application for admission is in relation to
a hearing before the Court of Final Appeal, including an
application for leave to appeal before the Appeal Committee
of that court, that by itself 'will be in most cases decisive' (Re
Jones QC, HCMP 2446/2008, 17 December 2008, Ma CJHC,
para 6), provided that the matter that is involved in the
relevant hearing is a 'substantial' one; and it is one 'in which
overseas counsel is able to contribute significantly by reason
41 Section 22(1)(b) of the Court of Final Appeal Ordinance (Cap. 484). Note the "or otherwise" limb also. The section has colloquially become known, in some quarters, as the CFA's civil leave
to appeal "smell test".
42 Re Lord QC at para. 11. Also see Re Hapgood QC at para. 25(1) and Re Stone QC at para. 15.
43 Re Lord QC at para. 15.
44 Re Lord QC at para. 16. Also see Re Dicker QC [2013] 2 HKLRD 245 at para. 16. In Re Lord QC, the Chief Judge also used the opportunity (at para. 19) to approve and explain the references
to the importance of Hong Kong as an international finance centre in Re Irvine QC [1988] 2 HKLR 582, noting that the local Bar had come a long way in terms of size, depth and expertise
since that case.
45 See CACV Nos. 155 and 161 of 2012, 7 December 2012.
8
ISSUE 1/2014 January 2014 HONG KONG CIVIL PROCEDURE NEWS ©Sweet & Maxwell 2014
of his expertise': Re Pannick QC [2004] 1 HKLRD 950, para
16(4)"
46
.
Points to note
Applications by overseas counsel to appear at a hearing for
leave to appeal before the CFAgenerally involve anevolution
of the Flesch guidelines.
Where there is to be a hearing before the CFA the question
is whether an applicant can make a "significant contribution"
by reason of their expertise. An applicant is usually not
required to show that he or she can add a "significant
dimension to the matter"
47
. The difference is stated to be one
of degree.
In this case, the "substantial matter" found to arise on an
appeal to the CFA, and in respect of which the applicant was
able to contribute significantly, related to whether the
company (in liquidation) had a remedy against a director,
found to be in breach of a fiduciary duty, for sums paid to one
creditor at the expense of other creditors of the company, at
a time when the company was insolvent
48
. The court also
found that this issue raised a question of law and was not
based on well settled principles in Hong Kong
49
.
The application was also assisted by the fact that the
applicant was briefedtoappear before the Appeal Committee
of the CFA together with local senior counsel; thereby,
assisting "cross-fertilisation" with the local bar and (to some
extent) dealing with the issue of the availability of local
counsel.
Re Pannick QC [2013] HKEC 1660, HCMP No. 2475 of 2013
This was anapplicationtoappear onbehalf of the government
infirst instance judicial reviewproceedings. Those proceedings
would consider the constitutionality of s.39(2A) of the
Legislative Council Ordinance (Cap. 542), prohibiting a
Legislative Council ("Legco.") member from participating in
a Legco. by-election within the same term for six months
following his or her voluntary resignation from Legco.
The application was opposed by the local Bar but supported
by the Secretary for Justice. The Bar's opposition focused on
the argument that, although the issue raised was of
considerable public interest, it was not one of unusual
difficulty or complexity.
The applicant's expertise as an advocate in public and
administrative law and judicial review matters was not in
dispute.
The applicationwas approvedby a Vice-President of the Court
of Appeal (sitting at first instance) but varied to include any
consequential appeals. The principal reason for approval was
the court consideredthat, applyingRe McGregor QC, the case
raised important legal principles that were likely to be
appealedto the CFAandthis was a powerful factor insupport
of admission, although not conclusive. The court considered
that the judicial review proceedings were almost certainly
bound to make their way to the CFA, irrespective of the
outcome in the lower courts.
Points to note
In order to arrive at the conclusion it did, the court
distinguished Re Hapgood QC for two reasons.
First, the case in which Re Hapgood QC sought admission
was considered to be a "multi-issue" case that "sheds issues
as it progresses"; whereas, the issues in the case for which
the applicant sought admission would remain the same
throughout and, therefore, added to the desirability of having
the same leading counsel throughout
50
. Second, the
challenge to s.39(2A) of the Legislative Council Ordinance
was far more likely to go to a final appeal compared to a
commercial action.
The applicant's considerable experience and past exposure
to constitutional cases, both overseas and in Hong Kong, was
also described by the court as an "unusual added
dimension"
51
.
As for the "cross-fertilisation" point, the court took into
account that both leading and junior counsel had also been
instructed on behalf of the government.
Re Pannick QC is an example of the "CFA factor" at work
(perhaps, in its "purest form" i.e. aside of an application for
leave to appeal) with respect to an application for ad hoc
admission by an applicant who is a leadingQCandotherwise
suitably qualified under the Flesch guidelines.
Admission of overseas counsel - some comment
Anyone wishing to read around this subject or thinking of
making an application for admission (or involved with one)
would do well to read: Re Flesch QC, Re McGregor QC
52
and
46 Re Dicker QC at para. 9. However, the court noted in the previous Re Dicker QC case (at para. 21) that not every application for leave to appeal before the CFA justified the appearance of
overseas counsel. The matter for which admission is sought before the CFA must be "substantial": Re Jones QC at paras. 7-8. However, once leave to appeal to the CFA is granted in a civil
matter (e.g. on an issue of great general or public importance) or in a criminal matter (e.g. on a point of law of great and general importance) it will, presumably, be "substantial".
47 Re Dicker QC at para. 11, applying Re Jones QC, HCMP No. 2446 of 2008, 17 December 2008, Ma CJHC.
48 Re Dicker QC at paras. 12 and 15.
49 Contrast Re Stone QC and Re Lord QC.
50 Re Pannick QC at para. 19.
51 Re Pannick QC at para. 20. The applicant's apparent limited exposure to issues of election law was not a determining factor (at para. 21).
52 Ma JA was sitting as a single Judge of Appeal (just before becoming Chief Judge).
9
ISSUE 1/2014 January 2014 HONG KONG CIVIL PROCEDURE NEWS ©Sweet & Maxwell 2014
Re Perry QC. They are the three most important cases on
point since 1997
53
. In their own way they reflect in part (and
at the times) the different Chief Judges' take on a substantial
body of case lawthat has grownwithrespect to the admission
of overseas counsel since 1997. Understanding these three
cases will assist in evaluating the chances of success for an
application for ad hoc admission of overseas counsel and go
some way to answering the question "how to get there".
For ad hoc admission to appear before the CFA and analysis
of the so-called "CFAfactor" (generally and on an application
for leave to appeal), Re Jones QC, Re Pannick QC and both
Re Dicker QC cases (among others) are also required
reading
54
.
The admission of overseas counsel is sometimes a rather
contentious subject. However, many leading senior counsel
from other principal common law jurisdictions (primarily, as
it turns out in practice, fromEngland &Wales) can add to the
local jurisprudence in those cases involving issues of unusual
difficulty or complexity.
The conventionof the commonlawis suchthat cases of other
common law jurisdictions can be cited in Hong Kong courts
and, arguably, not just because of Article 84 of The Basic
Law
55
. With that convention and Article 84 in mind, often
leading overseas counsel bring considerable relevant legal
knowledge, experience and kudos to bear.
Of course, the breadth and experience of the local Bar has
progressed compared to that (say) before Re Flesch QC and
increasingly local circumstances require local expertise. It
should also be noted that in many complicated commercial
and financial disputes, not dissimilar to the cases for which
adhoc admissionwas sought inRe HapgoodQCandRe Lord
QC, leading members of the local Bar have been much in
demand and "first choice"
56
.
Furthermore, in the circumstances of Hong Kong, a strong
and independent Bar is a vital component of the local legal
system.
Nevertheless, it would be an interesting research subject to
go over all contested applications for admission of overseas
counsel since 1 July 1997 and collate statistics on those that
succeeded (in whole or part) and those that failed. No doubt,
this will reflect changing circumstances and the evolution of
the Flesch guidelines. Further, while each application and
case turns on its facts, there is probably no harm in knowing
who your judge is.
Applicants and those behind them should also not be
deterred; once an applicant breaks their initial "duck" in
seekingadhoc admissionfurther applications shouldbecome
less difficult, provided they relate to appropriate cases within
their undisputed expertise
57
.
Smyth & Co in association with Reynolds
Porter Chamberlain LLP
Hong Kong, December 2013
This article is intendedto give general information only andmay be of common lawinterest.
It is not a complete statement of the law. It is not intended to be relied upon or to be a
substitute for legal advice in relation to particular circumstances. Specific circumstances
require specific advice. This article represents the author's analysis at date, based on the
cases in 2013 referred to. Author - Warren Ganesh.
Sweet & Maxwell © would like to thank all the contributors
for their assistance in preparing the Cases in Hong Kong
section; and The Hong Kong Judiciary and The Law Society
of Hong Kong for their continuous assistance and support.
Disclaimer: The case reviews presented herein are only
summaries andusers are advisedto refer to full case transcripts
53 The Chief Judge acknowledges as much in Re Stone QC at para. 14.
54 Also see Re Pannick QC [2004] 1 HKLRD 950. The "CFA factor(s)" evolve and can confuse: Re Dicker QC [2013] 2 HKLRD 245 at para. 20.
55 "The courts of the HKSAR…….may refer to precedents of other common law jurisdictions".
56 For example, leading local counsel have led in complicated investor disputes, such as: DBS Bank (HK) Ltd v San-Hot HK Industrial Co. Ltd & Anor [2013] 4 HKC 1; Kwok v HSBC Private Bank
(Suisse) SA [2012] 4 HKC 260; Hobbins v Royal Skandia Life Assurance Ltd & Anor [2012] 1 HKLRD 977.
57 See Re Pannick QC [2013] HKEC 1660 at para. 20. And with "A fair wind in their sail".
10
ISSUE 1/2014 January 2014 HONG KONG CIVIL PROCEDURE NEWS ©Sweet & Maxwell 2014
THE LEADING SOURCE OF INTELLIGENT INFORMATION FOR
BUSINESSES AND PROFESSIONALS
Contact us on +852 3762 3222 or visit www.sweetandmaxwell.com.hk
REUTERS/Mike Blake
THOMSON REUTERS
THOMSON REUTERS combines industry expertise with innovative technology to deliver
critical information to legal professionals. As one of Asia’s most respected legal publishers,
provides authoritative & respected contact for the legal and regulatory
professions. Our online offerings include , the premier legal and business research
tool in Hong Kong providing the most trusted and widely used online legal resources.