Re Mr Louis Asa Luke Alexis Dylan Mably

CACV 173/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 173 OF 2013

(ON APPEAL FROM HCMP NO 1043 OF 2013)

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REASONS FOR JUDGMENT

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Hon Lam VP (giving the Reasons for Judgment of the Court):

1. This is an appeal against the decision of the Chief Judge of the High Court on 1 August 2013 pursuant to Section 27 of the Legal Practitioners Ordinance Cap 159 admitting Mr Mably, the Applicant, as a barrister of the High Court of Hong Kong for the purpose of advising, preparing, representing and/or appearing on behalf of the Hong Kong Special Administrative Region in HCCC 98 of 2013. The Chief Judge made the decision notwithstanding opposition from the Bar Council. The Bar Council now appeals to this court, seeking to overturn the decision. The chairman of the Bar, Mr Paul Shieh SC appearing together with Mr Frederick Chan and Mr Ernest Ng appear for the Bar Council.

2. The application before the Chief Judge was moved by the Director of Public Prosecution [“the DPP”] and in the appeal, the DPP is represented by Mr Michael Thomas SC (appearing together with Ms Winnie Ho, Ms Maggie Wong and Ms Betty Fu) who supported the decision of the Chief Judge.

3. As guardian of the public interest in cases involving admission of overseas counsel, the Secretary for Justice is represented in this appeal (and also at the hearing before the Chief Judge). Taking up the observations at paragraphs 42 and 43 of the judgment of the Chief Judge on the public perception of impartiality in playing such role, the Secretary for Justice is represented by members from the private Bar, Mr Jat SC and Mr Jin Pao in this appeal. They submitted that the appeal is incompetent in that this court has no jurisdiction to hear an appeal on decision to admit a barrister. They also submitted that the Bar Council has no standing to bring this appeal. In the event that the court finds against those submissions, they submitted that it would take a most exceptional case to warrant appellate intervention against a first instance decision on admission of barrister.

4. We are grateful for the assistance of all counsel appearing before us. After hearing counsel, we dismissed the appeal with no order as to costs. Here are the reasons for our judgment.

5. In his judgment, the Chief Judge described at some length the background leading to the application by the DPP and the nature and complexity of HCCC 98 of 2013. In respect of the latter, the Chief Judge referred to para 14 of his earlier judgment in Re Perry QC [2013] 1 HKLRD 145 and we would respectfully adopt the same:

“14. ... In the underlying criminal prosecution, a former Chief Secretary for Administration is said to have committed corruption offences whilst in office. The persons said to have offered the relevant advantages to him are the beneficial owners and controlling minds of one of Hong Kong’s largest property empires. All defendants are of course presumed innocent unless and until proven otherwise. Nonetheless, the reputation and integrity of the executive branch of the Hong Kong Special Administrative Region Government and its system of governance are at stake. Its relationships and dealings with the major players in our property market will be put on the spotlight. Government policies and practices on land use and development will likely be put in issue and subjected to close scrutiny. The public interest demands that the prosecution of the offences must not only be, but also be seen to be, conducted impartially and professionally and in an impeccably competent, efficient yet perfectly fair manner. With no exaggeration, public confidence and indeed international business confidence are at stake. After all, “corruption is an evil which cannot be tolerated”: P v Commissioner of Independent Commission Against Corruption (2007) 10 HKCFAR 293, para 1 (per Li CJ). Expectations on the prosecution to secure a just and fair result, whether that means conviction or acquittal, are accordingly extremely high, and rightly so.”

6. The application should also be considered against the background that four English silks were admitted to appear in HCCC 98 of 2013, one for the prosecution and three for the defendants. In addition, each of the three defendants who have engaged English leaders had also a strong team of local counsel (both senior and junior counsel) to represent them. On the prosecution side, apart from Mr Perry QC, the Department of Justice has retained a local senior counsel as well as a local junior counsel in private practice plus counsel in the department. The local counsel had been retained before the engagement of Mr Mably.

7. In light of the representations from the defence side, and bearing in mind that there are 5 defendants (with 5 different teams of lawyers representing them) and 8 charges, the prosecution has to prepare for the possibility that the defendants would seek to argue on all aspects of the case. The Chief Judge alluded to this at para 19 of his judgment in Re Perry QC.

8. In granting the admission of Mr Mably, the Chief Judge started by stating that the paramount consideration in an application of this nature is public interest. His Lordship also observed that in general an application for admission of an overseas junior to do junior work in Hong Kong is rarely justifiable in terms of public interest. The reasons for that were set out at paras 13 to 20 of the judgment of the Chief Judge. They were summed up at para 20 as considerations concerning the protection of our junior Bar as an important facet of the public interest.

9. His Lordship then made the important, and undoubtedly correct, observation at para 21 that the protection of the junior Bar is not the only facet of the public interest to be considered. There could be other relevant considerations which must be given their due weight as the circumstances of case warrant.

10. In the present case, the Chief Judge took into account the following matters in addition to the public interest in the protection of the junior Bar:

(a) The DPP’s professional judgment in assembling a team of specialist counsel in the prosecution of this highly complex case (paras 23 to 25);

(b) The qualification and experience of Mr Mably and his status as Junior Treasury Counsel at the Central Criminal Court in England (paras 26 to 28);

(c) The type of works intended to be undertaken by Mr Mably if admitted (paras 29 to 31);

(d) The lack of impact of such admission in terms of deprivation of the local junior Bar of its fair share of junior works (paras 32 to 36); and

(e) The wholly exceptional nature of this criminal prosecution and this application (paras 37 to 41).

11. It is acknowledged by all counsel before us that the decision of the Chief Judge was an exercise of discretion. That discretion is conferred on the court by Section 27 of the Legal Practitioners Ordinance Cap 159 which reads:

“27. Power of Court to admit barristers

(1) Subject to subsection (2), the Court may, in such manner as may be prescribed by the Chief Justice, admit as a barrister of the High Court in Hong Kong, a person whom it considers a fit and proper person to be a barrister, provided such person has-

(a) complied with the requirements;

(b) passed the examinations; and

(c) paid the fees, prescribed by the Bar Council.

(2) The Court shall not admit a person under subsection (1) unless it is satisfied that that person-

(a) is not in practice as a solicitor either on his own account or as a partner or salaried employee in a firm of solicitors practising in Hong Kong; and

(b) satisfies one of the following requirements-

(i) has resided in Hong Kong for at least 3 consecutive months immediately before the date of his application for admission;

(ii) has been ordinarily resident in Hong Kong for at least 7 years;

(iii) has been physically present in Hong Kong for at least 180 days of each of at least 7 years within the 10 years immediately preceding the date of his application for admission.

(3) If at the time of his admission under subsection (1) the person is a solicitor, the Registrar shall remove the person's name from the roll of solicitors.

(4) Notwithstanding that a person does not satisfy all the requirements specified in subsections (1) and (2)(b), where the Court considers that he is a fit and proper person to be a barrister and is satisfied that he has-

(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 in the High Court or Court of Final Appeal; and

(b) substantial experience in advocacy in a court,
the Court may admit such person as a barrister under this section for the purpose of any particular case or cases and may impose such restrictions and conditions on him as it may see fit.

(5) The Court may, when admitting a person as a barrister, sit in chambers. ”

12. In the present case, admission was sought and granted under Section 27(4). There is no dispute that the statutory criteria have been met, viz. that Mr Mably is a fit and proper person to...