Update on Ad Hoc Admission of Overseas Counsel

Given the importance of the legal profession, solicitors and the local bar to the development of the common law within “One Country, Two Systems”, applications for ad hoc admission by overseas counsel, pursuant to s. 27(4) of the Legal Practitioners Ordinance (Cap. 159), can assume a higher profile.

According to the Bar’s publicly available “Report on Standing Committee on Overseas Admissions 2018”:

“As of 31 December 2018, there were a total of 31 applications for the admission of overseas counsel to practise as a barrister in Hong Kong on an ad hoc basis, as compared to 23 in 2017”.

There were 32 such applications in 2016.

The figures for 2018 have some further context:

  • as with 2017, the majority of such applications (24) were in order to represent parties in civil proceedings, as opposed to criminal proceedings (seven applications). This is not unusual. There was a higher incidence of applications with respect to criminal proceedings in 2016, given some of the cases going on at the time;
  • as is customary, the Bar’s Standing Committee did not object to the majority of the applications (agreeing to 27). Of the four that it opposed, these proceeded to the Chief Judge or a Judge of Appeal (“sitting at first instance”) for determination;
  • irrespective of the Bar’s or the Secretary for Justice’s stance, it is the courts that determine applications for ad hoc admission. Applications that are unopposed still proceed by consent summons for an order from the court. The order (if granted) can be for “any particular case or cases” (s. 27(4) of the Ordinance); for example, for a trial or an appeal (or both – a so-called “omnibus” order);
  • in total, the courts approved of 23 applications; the same number as in 2017 (20 applications having been granted in 2016). Such is the wide discretion at first instance, few unsuccessful applications are appealed;
  • looking back over the years, there generally used to be more applications. Given the number of applications that proceed by consent, of late there also appear to be fewer reported judgments dealing with ad hoc admission. Since Warnock-Smith QC [2018] HKCFI 689 (Industry Insights, May 2018) and Caplan QC [2018] HKCFI 2070, the most recent reported judgment of which either writer is aware is Montgomery QC [2019] HCKFI 727; an unsuccessful application to appear on an appeal (against conviction and sentence on a single count of manslaughter by gross negligence) before the Court of Appeal.

The general principles underlying the grant of an application for ad hoc admission have been well-established since Flesch QC [1999] 1 HKLRD 506. These principles evolve over time and one detects a certain nuance as different Chief Judges or Vice-Presidents of the Court of Appeal come and go. Of late, the courts appear to be guided by a certain “matter of feel” on contested applications (to adopt their expression). Ultimately, the outcome of an application for ad hoc admission is a balancing exercise, with the public interest being paramount. In Montgomery QC, the Vice-President of the court stated (para. 19):

“Ultimately, I do not consider that there are in this case sufficient countervailing public interest considerations capable of outweighing the important public interest of maintaining a strong and independent local bar.”

Not to be lost in all this is the guidance that leading overseas “Silks”/QCs can offer to members of the junior criminal bar, not to mention the experience they pass on with respect to complex charges and difficult issues of forensic evidence, trial strategy, sentencing and appeal. There is also a matter of “leadership”. In the meantime, applications by local graduates to the Bar look to be in good shape and the local bar appears to be in rude health (see Bar’s “Report on the Standing Committee on Local Admissions 2018”).

Editorial Note: When applying for ad hoc admission the key is to match the right applicant to the right case, seek to get the Bar on side and then “go for it”; for example, to give it the “Full Monty”. Aside – There are apparently a number of origins for this expression and clarification will be sought from the Journal’s “Legal Trivia” historian, Mr. Douglas Clark (Barrister of Gilt Chambers).

Jurisdictions: 

Senior Consultant, RPC

Partner, RPC