Ad Hoc Admission of Overseas Counsel: Not Getting Any Easier?

Just like some yellow buses in Central, after a period of quiet, publicly reported cases dealing with applications by overseas counsel for ad hoc admission in Hong Kong sometimes come along in “threes”. In this instance, three recent unsuccessful applications: re David Perry QC [2016] HKEC 2323, re Tim Owen QC [2016] HKEC 2272 and re Jonathan Caplan QC [2016] HKEC 1704.

As is customary, all three applications were heard by a Judge of Appeal sitting at first instance.

In re Perry QC, the application for ad hoc admission was a renewed one; the applicant (no stranger to Hong Kong) having failed to obtain permission to appear on behalf of two appellants in a magistracy appeal before a judge of first instance (Industry Insights, May 2016 – Admission of Overseas Counsel and Adverse Costs Orders). This time around the applicant applied to represent the appellants on an application to the Appeal Committee of the CFA for permission to appeal*. In short, the application failed because (without prejudging the application for permission to appeal) the court considered that it was made with reference to issues that did not arise out of the magistracy appeal or that did not contribute substantially to local jurisprudence or were not unusually difficult or complex.

In re Owen QC (again, no stranger to Hong Kong eg, HKSAR v Jutting), the applicant applied to represent a defendant on an application to the Appeal Committee of the CFA for permission to appeal (the Court of Appeal having quashed the defendant’s conviction and ordered a retrial). The application failed because the court was not satisfied that the application was with respect to an appeal in which the issues raised were either novel or unusually difficult or complex**.

As in re Caplan QC, there is nothing to stop an applicant applying for ad hoc admission to appear in the lower courts (in this case, complex criminal proceedings in the District Court) on the basis that the proceedings are headed for the CFA; however, this (of itself) does not mean that the application will be granted. In any event, matters were somewhat overtaken by the CFA’s recent judgment in HKSAR v Yang Sigai (Industry Insights, November 2016 – Dealing Offence: Overseas Conduct”).

Like it or not, some takeaway points (for now) include the following.

  • While the Hong Kong Bar Association does not object to some applications for ad hoc admission (which can proceed by way of consent, subject to approval by the court) it would appear that contested applications are not getting any easier.
  • When applications for ad hoc admission are contested, there appears to be a trend towards more vociferous opposition from the Bar Association, including on occasion seeking adverse costs orders. In fairness, it is understood that those counsel instructed to oppose applications on behalf of the Bar Association do so on a pro bono basis.
  • The fact that the applicant may be the “best” (whatever that may mean) is not relevant and (in this context) a litigant does not have an unfettered right to instruct an advocate of his or her choice.
  • The role that the “CFA factor” plays on applications for ad hoc admission appears to evolve and to mean different things in different contexts (and to different judges). This may aid the court’s overall discretion (to do what is in the “public interest”) but arguably is at the expense of clarity for those advising whether an application should be made.

* At the time of writing, the Appeal Committee was due to hear the application for permission to appeal on 9 November 2016.

** At the time of writing, the Appeal Committee was due to hear the application for permission to appeal on 8 November 2016.