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Secretary For Justice v Timothy Wynn Owen Kc, Bar Council Of The Hong Kong Bar Association

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date28 November 2022
Neutral Citation[2022] HKCFA 23
Year2022
Subject MatterMiscellaneous Proceedings (Civil)
CourtCourt of Final Appeal (Hong Kong)
Judgement NumberFAMV591/2022
FAMV591/2022 SECRETARY FOR JUSTICE v. TIMOTHY WYNN OWEN KC, BAR COUNCIL OF THE HONG KONG BAR ASSOCIATION

FAMV No. 591 of 2022

[2022] HKCFA 23

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 591 OF 2022 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 425 OF 2022)

________________________

BETWEEN
SECRETARY FOR JUSTICE Applicant
and
TIMOTHY WYNN OWEN KC Respondent
BAR COUNCIL OF THE HONG KONG BAR ASSOCIATION Interested Party

________________________

Appeal Committee: Chief Justice Cheung, Mr Justice Ribeiro PJ and Mr Justice Fok PJ

Date of Hearing: 25 November 2022

Date of Determination: 28 November 2022

________________________

DETERMINATION

________________________

THE APPEAL COMMITTEE:

A. The decision at first instance

1. On 19 October 2022, Poon CJHC[1] granted the application of Mr Timothy Wynn Owen KC (“Mr Owen KC”) for ad hoc admission to represent Mr Lai Chee Ying (“Mr Lai”) at a trial[2] in which Mr Lai faces four charges involving a conspiracy in relation to seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance[3]; and conspiracies to collude with a foreign country or external elements to endanger national security, contrary to Article 29(4) of the National Security Law[4] (“NSL”). The trial is due to commence on 1 December 2022 and is scheduled to last until 20 January 2023.

2. The power to grant or refuse such an admission arises under section 27(4) of the Legal Practitioners Ordinance[5] which confers a broad discretion on the court.

3. In deciding whether to admit the applicant, Poon CJHC applied the principles developed by the courts over the years,[6] as summarised in Re Perry QC.[7] The overriding consideration is whether it is in the public interest to admit the overseas counsel in question and, as Poon CJHC held, factors relevant to that consideration are “(1) the importance of the legal issues to Hong Kong’s jurisprudence; (2) the complexity and difficulty of the issues; (3) whether the overseas counsel would add [a] significant dimension to the case; (4) the availability of suitable local counsel”.[8]

4. Applying each of those factors, taking into account the issues which the parties had indicated were likely to arise at the trial,[9] Poon CJHC exercised his discretion in favour of granting the admission.

B. The Court of Appeal’s decision

5. On the appeal of the Secretary for Justice (“SJ”) to the Court of Appeal,[10] leading counsel appearing for the SJ[11] recognised that it was an appeal against the Judge’s exercise of discretion and acknowledged the principles applicable on such appeals.[12] As summarised by the Court of Appeal, those principles are that:

“The appeal court must defer to the judge’s exercise of discretion and must not interfere with it merely on the ground that it would have exercised the discretion differently. The function of the appeal court is initially one of review. It can only interfere in three instances: (1) where the judge has misdirected himself with regard to the principles in accordance with which his discretion had to be exercised; (2) where the judge, in exercising his discretion, has taken into account matters which he ought not to have done or failed to take into account matters which he ought to have done; or (3) where his decision is plainly wrong. It is only if and after the appeal court has reached the conclusion that the judge’s exercise of discretion must be set aside for one or more of these reasons that it becomes entitled to exercise an original discretion of its own.”[13]

6. After examining each of the ways in which it was alleged that the Judge had erred in the exercise of his discretion, the Court of Appeal observed that the SJ’s challenge “essentially goes to the weighing exercise of the judge of the relevant aspects of the public interest engaged in striking a proper balance in the exercise of his discretion.”[14] The Court was not persuaded by counsel’s arguments and dismissed the appeal, concluding: “There is no valid basis to interfere with the exercise of the judge’s discretion. If we were to exercise the discretion afresh, we would have reached the same conclusion.”[15]

C. The application to the Court of Appeal for leave to appeal

7. The SJ applied to the Court of Appeal for leave to appeal to this Court, represented by Mr Rimsky Yuen SC who appeared in place of his two predecessors. In that application, the SJ sought to advance very different arguments in the Court of Final Appeal from those made in the Courts below.

8. In particular, as set out in the notice of motion (“NM”), the SJ contended that the established principles for dealing with ad hoc admissions were “inapposite” for applications involving NSL cases and that a radically different approach should be adopted.[16] The principle he contended for was that in NSL cases:

(a) ad hoc admissions of overseas counsel should generally be refused “save in exceptional circumstances”;

(b) the burden of establishing such exceptional circumstances is on the applicant; and

(c) unless that burden is discharged, admission should be refused.[17]

In other words, it was argued that there should be a blanket ban on ad hoc admissions of overseas counsel in NSL cases, subject only to undefined “exceptional circumstances”. This would effectively mean that the court should be deprived of its statutory discretion.

9. The SJ’s main arguments for adopting this fundamentally different approach were:

(a) That the NSL is unique, being a PRC law from a continental legal system where the emphasis is on the need to protect the PRC’s sovereignty and security and HKSAR’s interests within the principle of one country two systems;[18]

(b) That overseas counsel from England have little to offer in terms of contributing to the development of the HKSAR’s NSL jurisprudence given that their experience is essentially confined to the common law;[19]

(c) That the NSL addresses inter alia “interference in the HKSAR’s affairs by foreign or external forces” and ad hoc admissions in NSL cases “would generally tend to defeat that aim in that, among others, there is no meaningful or effective enforcement of overseas counsel’s confidentiality obligations under NSL 63 over State secrets and other confidential information which he or she comes to know in the practice of law”;[20] and

(d) That the duty to prevent, etc, any act or activity endangering national security “includes [preventing] any possible attempt to use the legal process to compromise the protection of national security… and that such need [is] of paramount importance in considering the public interests in an application of this nature”.[21]

10. Those are indeed novel arguments. The SJ accepted, however, that ad hoc admissions of overseas counsel involve an exercise of the court’s discretion. He also accepted that “the arguments advanced in support of the intended appeal go beyond those made before the Court of Appeal”. The SJ recognised that the Court, applying the Flywin principle,[22] might refuse to entertain an entirely new case not explored below, but argued that there was no issue as to the state of the evidence and submitted that an exception to the Flywin principle should be made because it was in the public interest to have the Court of Final Appeal deal with the points of principle sought to be raised.[23]

D. The Court of Appeal’s decision on leave to appeal

11. The Court of Appeal handed down its judgment refusing leave to appeal on 21 November 2022.[24] It held that in so far as the SJ sought to raise new points, the circumstances were not of such an exceptional nature as to justify departing from the Flywin principle.[25]

12. The Court of Appeal also held that in any event, two of the new points sought to be raised were not reasonably arguable.[26]

13. The first such point concerned the SJ’s suggestion that the ad hoc admission might tend to defeat the aim of preventing “interference in the HKSAR’s affairs by foreign or external forces”.[27] Mr Yuen SC pointed to Articles in the NSL[28] designed to protect State secrets and other sensitive information. He also drew attention to the duty of confidentiality imposed by NSL 63 on defence lawyers and others who acquire knowledge of State secrets, trade secrets or personal information while handling the case and submitted that an important consideration was that such duty could not be enforced against overseas counsel after their leaving Hong Kong. The Court of Appeal held however, that there was no indication that State secrets or such sensitive information were involved in the case, that English counsel were subject to discipline under their own code of conduct in respect of practice abroad and that no basis had been advanced for suggesting that Mr Owen KC might breach the confidentiality requirement.[29]

14. Secondly, the Court of Appeal held that it was not reasonably arguable that the radically different approach to ad hoc admissions referred to above should be adopted, since it would fetter the discretion granted to the Court by statute and prevent it from approaching such admissions in a flexible and sensible manner.[30]

E. The present application to the Appeal Committee

15. On 22 November 2022, the SJ lodged a Notice of Motion (“Form B”) seeking leave to appeal from the Appeal Committee on an urgent basis against the Orders for ad hoc admission granted by the Courts below.

16. The questions enumerated in Form B are set out in the Annex to this Determination. Subject to the “or otherwise” addition mentioned below, it is in the same terms as the notice of motion filed in the Court of Appeal, referred to in Section C of this Determination. Thus, the SJ repeats his submission...

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