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The Law Society Of Hong Kong v Mark Taylor Simpson Qc v Bar Council Of The Hong Kong Bar Association And Another

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date19 July 2021
Neutral Citation[2021] HKCFA 25
Judgement NumberFAMV141/2021
Subject MatterMiscellaneous Proceedings (Civil)
CourtCourt of Final Appeal (Hong Kong)
FAMV141/2021 THE LAW SOCIETY OF HONG KONG v. MARK TAYLOR SIMPSON QC v. BAR COUNCIL OF THE HONG KONG BAR ASSOCIATION AND ANOTHER

FAMV Nos. 141 and 144 of 2021

[2021] HKCFA 25

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 141 and 144 OF 2021 (CIVIL)

(ON APPLICATIONS FOR LEAVE TO APPEAL

FROM CACV NO. 543 OF 2019)

_____________________________________

In the Matter of the application of Mark Taylor Simpson QC for admission as a barrister of the Hong Kong Special Administrative Region
and
In the Matter of Section 27(4) of the Legal Practitioners Ordinance (Cap 159) of the Laws of Hong Kong

_____________________________________

BETWEEN
MARK TAYLOR SIMPSON QC Applicant
(Applicant in FAMV 144/2021)
and
BAR COUNCIL OF THE HONG KONG BAR ASSOCIATION 1st Respondent
SECRETARY FOR JUSTICE 2nd Respondent
and
THE LAW SOCIETY OF HONG KONG Intervener/
3rd Respondent
(Applicant in FAMV 141/2021)

_____________________________________

Appeal Committee: Chief Justice Cheung, Mr Justice Ribeiro PJ and Mr Justice Fok PJ
Date of Hearing and Determination: 14 July 2021
Date of Reasons for Determination: 19 July 2021

_______________________________

REASONS FOR DETERMINATION

_______________________________

The Appeal Committee:

1. At the conclusion of the hearing, we dismissed these applications for leave to appeal. We now give our reasons.

2. The applicant, Mr Mark Simpson QC, applied for ad hoc admission as a barrister for the purposes of advising and appearing on behalf of the plaintiffs in HCCL 9/2019 at the trial of the Action before the Court of First Instance, pursuant to the statutory discretion under section 27(4) of the Legal Practitioners Ordinance (Cap 159). Poon Ag CJHC (as the Chief Judge then was) granted his application on the usual condition that he appear with a local barrister[1]. Dissatisfied with that condition, the applicant appealed to the Court of Appeal[2], arguing that two solicitor advocates had from an early stage been instructed to advise and represent the plaintiffs in the proceedings, and one of them would be instructed to appear together with the applicant for the plaintiffs at trial. Since a solicitor advocate has the same higher rights of audience as a barrister (since 2012), the judge was wrong to impose the condition that the applicant must appear together with a local barrister.

3. The appeal was dismissed by the Court of Appeal basically on the grounds that there was a material distinction between barristers and solicitor advocates in terms of the level of independence, the degree of freedom from conflicts of interest and the accessibility to members of the general public. The 2012 legislative amendments[3] whereby solicitor advocates are given higher rights of audience did not result in the conferring of equal standing on barristers and solicitor advocates. The judge was right to impose the usual condition in the absence of exceptional circumstances. The Court also rejected an argument based on article 35 of the Basic Law as that article only protects a litigant’s choice of lawyers from those available to represent him. It does not extend to overseas counsel who do not have a general right to practise locally.

4. Both the applicant and the Law Society (as intervener) applied for leave to appeal from the Court of Appeal’s decision. They failed before the Court of Appeal[4], and thus the applications before us.

5. On behalf of the applicant, it was submitted that the following questions of great general or public importance arose from the decision of the Court of Appeal:

“(1) Is there a material distinction, in terms of ‘level of independence and the degree of freedom from conflicts of interest’ or ‘availability…to the general public’, between solicitor advocates and barristers?

(2) If so, in a case where a solicitor advocate has been instructed, does it justify imposing a condition on ad hoc admission of an overseas advocate that a local barrister must be instructed as well?

(3) Is it in the public interest to prohibit a suitably qualified solicitor advocate from appearing with an overseas advocate admitted on an ad hoc basis, without a local barrister also being instructed?

(4) Is such a condition or prohibition contrary to the right to a ‘choice of lawyers…for representation in the courts’ under Article 35 of the Basic Law?”

6. The Law Society raised three similar questions said to be of great general or public importance in support of its...

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