Update on Ad Hoc Admission of Overseas Barristers (2020-21)

At the time of writing, the Hong Kong Bar Association’s “Report of the Standing Committee on Overseas Admissions 2020” is yet to be published on its website. Once published, it will be interesting to see how many applications there were, pursuant to s. 27(4) of the Legal Practitioners Ordinance (Cap. 159), for ad hoc admission of overseas barristers in 2020. In 2019, there were seventeen such applications, which is much lower than the average in previous years.

Applications for ad hoc admission normally relate to the right to appear and advise with respect to the trial (substantive hearing) of an action. Given the COVID-19 travel constraints for much of last year, it is quite possible that the number of applications for ad hoc admission in 2020 could be an all-time low since 1997. This is something of a worry, not least given the “sisterhood” between common law jurisdictions and cross-fertilisation between (for example) the English and the Hong Kong Bar. Applicants for ad hoc admission are almost always eminent English Queen’s Counsel (QCs). Examples of an overseas junior barrister being admitted are very rare – the writers can only recall of two such instances and they were exceptional and best explained on their facts.

In January 2021, the Court of Appeal handed down its much-awaited judgment in Re Simpson QC [2021] HKCA 22. Appeals of first instance decisions arising out of s. 27(4) of the Ordinance are rare, especially given that such decisions turn on an exercise of discretion, with the court (usually the Chief Judge sitting at first instance) determining what is in the public interest according to well-established principles.

In Re Simpson QC [2019] HKCFI 2689, the first instance court allowed the applicant’s ad hoc admission, which was subject to the usual condition that he appear in the substantive proceedings with a local barrister. In the first such application of its kind, the court declined to allow the applicant to appear only with the two solicitor advocates having the conduct of the underlying proceedings without a local barrister.

The applicant appealed and the appeal was supported by the Secretary for Justice (who is the impartial proponent of the public interest in such matters), with the Law Society of Hong Kong intervening and supporting the appeal. Understandably, the Bar Council opposed the removal of the condition and the appeal. The appeal was heard on 30 November 2020.

In a detailed judgment, the Court of Appeal dismissed the appeal – Re Simpson QC [2021] HKCA 22. Therefore, for now, while the applicant can be admitted to appear ad hoc in the substantive proceedings, he will have to do so together with a local barrister (irrespective of whether he also appears with a solicitor advocate – so-called “mixed doubles”). It will be interesting to see whether any of the interested parties seek permission to appeal to the Court of Final Appeal and, if so, what questions of great general or public importance are stated to arise.

Re Simpson QC is not the only recent important judgment involving an application for ad hoc admission. In Re Perry QC [2021] HKCFI 113, the court allowed the applicant’s application to appear for the prosecution in a high-profile case involving multiple defendants in the District Court. In doing so, the court referred to the following factors in applying the overriding public interest test:

  • questions of great general or public importance to the development of local jurisprudence regarding constitutional issues arose – for example, in the context of an offence of allegedly organizing an unauthorized assembly or knowingly taking part in an unauthorized assembly, competing interests involved protecting freedom of assembly and the statutory regime for regulating the manner and exercise of that freedom;
  • the applicant (Mr. Perry QC – no stranger to Hong Kong) is a leading specialist with regard to the constitutional issues that arose and had substantial international and common law experience that would add a “significant dimension” to the case and the development of local jurisprudence;
  • given the importance of the constitutional issues, an appeal to the Court of Final Appeal was “very likely” (the so-called “CFA factor”); and
  • the professional view of the Director of Public Prosecutions had to be given due weight and there was a public interest in ensuring that the prosecution is conducted by the best legal team available (without jeopardising the development of a strong and independent local bar).

Interestingly, the court appears to have gone out of its way to attach no importance to a so-called “equality of arms” – for example, it did not matter that the defendants in the substantive criminal proceedings were not represented by an overseas barrister. In any event, they were represented by an array of senior and junior talent at the local bar. Indeed, with respect to some apparently ill-informed public criticism concerning the application in Re Perry QC, it is worth noting that the application to advise and appear was in the best traditions of the bar. With that in mind, readers might care to note a press release (“Statement by DoJ on instruction of fiat counsel”) issued by the Department of Justice on 20 January 2021, an extract of which reads as follows:

“Mr Perry, QC, expressed concerns about such pressures and the exemption of quarantine, and indicated that the trial should proceed without him.”

Jurisdictions

Partner, RPC

Senior Consultant and Accredited Mediator, RPC

A commercial disputes lawyer with over 35 years' experience, David has extensive experience in handling the defence of professional indemnity, financial lines and other special risks claims as well as advising insurers in relation to such claims.

David has worked on the defence of claims in various jurisdictions including England, Hong Kong, Singapore, Malaysia, the PRC, Taiwan, Bermuda and the BVI.  He also has significant experience in handling regulatory and disciplinary matters.

He has considerable experience providing general risk management advice to professionals such as accountants, solicitors, insurance brokers, surveyors and stock-brokers. 

Most recently, he has been developing a practice as a commercial mediator. David is accredited as a mediator by both the Centre for Effective Dispute Resolution (CEDR) and the Hong Kong Mediation Accreditation Association Limited (HKMAAL).