RE EDMUND JAMES LAWSON QC HCMP1722/2007

S’s words:-
Overseas Counsels to be approved to act for defendants in criminal cases are rare. The following case is an example. However, it tells us the truth that Hong Kong do not have much specialist criminal leading counsel who are family with the Takeovers Code or company takeovers in general.

--- quote from judgment ---

Date of Judgment : 24 September 2007

The Applicant seeks admission to appear for a defendant (whom I shall refer to simply as “L”) in a trial in the District Court commencing on 7 January 2008. The trial is fixed for 40 days although the Applicant’s solicitors (also the solicitors for L) are of the view that this may well prove to be conservative.

Although I have not been provided with much by way of material, it is reasonably clear that the issues likely to arise in the trial are factually, and perhaps legally also, difficult and complex. Regulatory issues will arise (the Stock Exchange of Hong Kong and the Securities and Futures Commission were said to have been defrauded) in the context, as far as L is concerned, of professional legal advisors. The amount of documentation is said to be voluminous. I am prepared to assume in the Applicant’s favour that the case is one of unusual difficulty and complexity, despite the submissions of Mr Robert Pang (for the Hong Kong Bar Association) that the only issue is really whether L was dishonest. Mr Ronny Tong SC (for the Applicant) points out that there are more legal issues than just dishonesty, such as that of non-economic loss.

The trial will take place in the District Court but this is neither here nor there.

However, one matter regarding the application initially caused me some concern. No evidence was provided over the aspect of the availability or non-availability of local leading counsel. Serious and genuine efforts to instruct local counsel have to be demonstrated or where it is said there are none, an explanation must be provided to the court justifying this : - see Re Flesch QC & Another [1999] 1 HKLRD 506 and Re Kosmin QC & Another [1999] 1 HKLRD 641. All this is to provide a complete picture to assist the court to make an informed decision, giving it some idea as to the size of available and suitable counsel, and the calibre of this pool : see Re McGregor QC [2003] 3 HKLRD 585, at pages 590-591, paragraphs 11(2)-11(3); Re Pannick QC, unreported, HCMP 1414/2006, 21 July 2006 at paragraph 9. The relevance of this is to enable the court to determine whether the counsel who seeks admission would be able to add a significant dimension to the case.

This morning, Mr Tong has informed me that there was a certain embarrassment for the Applicant’s solicitors to state on affidavit why certain Hong Kong leading counsel were unsuitable or unavailable. These reasons include the important fact that there are a very few specialist criminal leading counsel in Hong Kong who have a working and familiar knowledge of the Takeovers Code or company takeovers in general.

I am of the view that the available pool of local counsel for a case such as the present is necessarily small. There have been to date very few, if any, criminal cases in Hong Kong involving legal advisors in Hong Kong in the context of company takeovers. This is a rare type of case even in a jurisdiction such as the United Kingdom. It is not apparent that there are many Hong Kong leading counsel who would have extensive experience of this area of the law, although a few no doubt would be more than competent. The Applicant is an experienced practitioner in this field and he will no doubt add a significant dimension to the case.

In these circumstances, in my judgment, the Applicant should be approved, admitted and enrolled to practise as a barrister of the High Court of Hong Kong for the purpose of conducting DCCC 980/2006 in the District Court for and on behalf of L rendering advices in conferences in Hong Kong and appearing at the trial of L.