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Re Clare Montgomery Qc

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date15 March 2019
Neutral Citation[2019] HKCFI 727
Judgement NumberHCMP2266/2018
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP2266/2018 RE CLARE MONTGOMERY QC

HCMP 2266/2018

[2019] HKCFI 727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2266 OF 2018

________________________

IN THE MATTER of the Application of Clare Montgomery QC for admission as a Barrister of the High Court of the Hong Kong Special Administrative Region
and
IN THE MATTER of Section 27 of the Legal Practitioners Ordinance, Cap 159

________________________

Before: Hon Macrae VP (sitting as an additional Judge of the Court of First Instance) in Court
Date of Hearing: 27 February 2019
Date of Judgment: 15 March 2019

________________________

J U D G M E N T

________________________

1. This is an application under section 27 of the Legal Practitioners Ordinance, Cap 159 for the admission of Ms Clare Montgomery QC to represent Chow Heung Wing, Stephen (“Chow”) at his appeal against conviction and sentence before the Court of Appeal on a date yet to be fixed. The application is opposed by the Hong Kong Bar Association and the Secretary for Justice.

2. On 12 December 2017, Chow was convicted in HCCC 437/2015 of a single count of manslaughter by gross negligence before Barnes J and a jury and, on 18 December 2017, sentenced to 12 years’ imprisonment. There were altogether three defendants on the indictment, each charged separately with an individual count of manslaughter in respect of the same victim: Chow (the 1st defendant), Chan Kwun Chung (“Chan”) (the 2nd defendant) and Mak Wan Ling (“Mak”) (the 3rd defendant). Chan was also convicted by the same jury and sentenced to 10 years’ imprisonment. The jury were unable to agree upon their verdict in respect of Mak and a re‑trial was consequently ordered in her case on a fresh indictment.

3. Before Mak could be re‑tried, however, she sought the determination of the Court of Appeal on a question of law reserved, pursuant to section 81(1) of the Criminal Procedure Ordinance, Cap 221. The reason for her doing so was that in an entirely unconnected case, namely HCCC 213/2016 involving the defendant Lai Chun Ho (“Lai”), the prosecution were seeking a determination on the very same question. Since the point was the same in each case, a consolidated hearing on the question of law reserved was heard by the Court of Appeal, with each defendant being separately represented.

4. On 16 November 2018, the Court of Appeal in HKSAR v Lai Chun Ho[1] delivered judgment on the question of law reserved. Subsequently, on 9 January 2019, the Court granted a certificate under section 31 of the Hong Kong Court of Final Appeal Ordinance, Cap 484 that a question of law of great and general importance was involved in its decision[2]. The question certified was in exactly the same terms as the question of law reserved, namely:

“In the offence of manslaughter by gross negligence, should the gross negligence referred to in the last element of the offence as enunciated in R v Adomako [ 1995] 1 AC 171, namely ‘the breach of the duty by the defendant being capable of being characterised as gross negligence and therefore a crime’ be proved based on the objective reasonable man test only or that in addition to the objective reasonable man test, the prosecution is also required to prove that the defendant’s subjective state of mind was culpable in that the defendant was subjectively aware of the obvious and serious risk of death to the deceased?”

5. I have been informed that leave to appeal on the certified question is to be heard by the Appeal Committee of the Court of Final Appeal on 21 March 2019.

6. Two observations may be made arising out of this brief outline of the history of the matter before I consider the application of the principles concerning admissions to this particular motion. The first is that the Appeal Committee of the Court of Final Appeal is shortly to consider, in proceedings arising out of the same case in which Chow was convicted, the very question of the fault element in the offence of gross negligence manslaughter which underlies the present application, or at least the major part of it. If the Appeal Committee grants leave, the matter will be considered by the Court of Final Appeal, with experienced local Senior Counsel appearing for the two parties, one of which parties will be Mak (Chow’s former co‑accused), who is a medical practitioner.

7. As one of the members of the Court who heard the question of law reserved in respect of Mak’s case, it cannot sensibly be suggested that the leading and junior counsel appearing on both sides before us were not fully conversant with, and capable of, addressing the issues that arose in a competent and comprehensive manner.

8. If the Appeal Committee refuses leave, the law will be as the Court of Appeal has defined it. I would find it very unlikely, as Mr Harris SC representing the applicant at one point suggested, that the Appeal Committee would refuse leave solely on the basis that it had no jurisdiction to hear a further appeal from the Court of Appeal on a question of law reserved, without saying whether the Court of Appeal was right or wrong on the substantive issue; given that its...

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