Antony Sassi David Smyth Warren Ganesh November 22 2022 Important appeal ruling on ad hoc admission of overseas advocates RPC | Litigation - Hong Kong Antony Sassi, David Smyth, Warren Ganesh Litigation IntroductionBackgroundJudgmentCommentIntroduction In Owen KC,(1) the Court of Appeal dismissed an appeal against a decision of the Chief Judge of the High Court granting a leading overseas King's Counsel ad hoc permission to represent a defendant at a high-profile criminal trial in Hong Kong. The forthcoming trial is the first prosecution in the High Court for alleged conspiracy to collude with a foreign country or external elements to endanger national security contrary to article 29(4) of the National Security Law (NSL). Appeals in matters concerning ad hoc admission are rare. However, in Owen KC the Secretary for Justice saw fit to appeal the Chief Judge's decision. The Court of Appeal's judgment dismissing the appeal is a welcome and robust defence of the legal principles that govern ad hoc admission of overseas advocates in Hong Kong, with the public interest being paramount.BackgroundApplications for ad hoc admission of overseas advocates in Hong Kong are governed by section 27(4) of the Legal Practitioners Ordinance (Cap 159). The High Court has an unfettered discretion in such matters, which is exercised according to well-established principles. Successful applicants (such as the applicant in Owen KC) are usually eminent King's Counsel based in the United Kingdom. In short, applications for ad hoc admission in Hong Kong should be for cases of unusual difficulty or complexity where the legal issues involved impact substantially on the development of local laws. An applicant's expertise and experience should also be such that they are able to add a significant dimension to the legal proceedings for which ad hoc admission is sought.In Owen KC the applicant sought permission from the Chief Judge of the High Court (sitting at first instance) to represent a defendant (a former newspaper proprietor) at a high-profile criminal trial due to commence on 1 December 2022 and last approximately 30 days. Among the charges faced by the defendant is a charge of alleged conspiracy to collude with a foreign country or external elements to endanger national security, contrary to article 29(4) of the NSL. The charge is the first such prosecution to be tried in the High Court.The Bar Association and the Secretary for Justice had opposed the application. The Secretary for Justice's role in such matters is to act as the guardian of the public interest. It is worth noting that applications for ad hoc admission are usually determined by the Chief Judge, who is the most senior judge of the High Court in Hong Kong (namely, the Court of First Instance and the Court of Appeal) – although the Chief Judge sits as a first-instance judge when determining such applications.The Chief Judge granted the application, applying well-established principles.(2) In particular, the Chief Judge recognised the very difficult and delicate task of balancing the need to safeguard national security with fundamental freedoms, such as the freedom of expression. The applicant's reputation as a leading overseas King's Counsel and specialist in criminal, administrative and human rights law was not in doubt.A first-instance court's decision would normally be the end in matters of ad hoc admission and appeals are rare.(3) However, in this case, the Secretary for Justice appealed the Chief Judge's decision. The Court of Appeal dealt with the appeal on an expedited basis, in light of the imminent trial date, based on written legal submissions (without a physical hearing).On appeal it was accepted that the role of the Court of Appeal was one of review and it could only exercise a discretion afresh where the Chief Judge had (for example) erroneously exercised his discretion – it was not enough that an appellate court would have exercised its discretion differently in applying the legal principles relating to ad hoc admission of overseas advocates.The focus of the Secretary for Justice's appeal was whether the Chief Judge had taken into account matters which he ought not to have done or failed to take into account matters which he ought to have done. In particular, the Secretary for Justice's legal representatives advanced three grounds of appeal:The Chief Judge had failed to take account of the unique nature of the NSL as a national law applicable to Hong Kong in the context of its unique constitutional framework.Legal challenges to the constitutionality of a statutory provision, such as the other prosecution charge (alleged seditious publications), involved well-established legal principles and local barristers had substantial experience in conducting such challenges.The mere possibility that issues arising from the construction of article 29(4) of the NSL and the constitutionality of the law relating to the other charge may be appealed should not be relevant when it was not known whether there will be reasonably arguable issues.In short, the appeal appears to have focused on whether the Chief Judge had failed to give sufficient importance to the nature of the NSL when exercising his discretion and considering various aspects of the public interest on an application for ad hoc admission.JudgmentThe Court of Appeal (comprising three senior appeal judges) dismissed the Secretary for Justice's appeal. It held that none of the grounds of appeal were made out and there was no justification to interfere with the exercise of the Chief Judge's discretion. For good measure, the Court of Appeal stated that if it had exercised its discretion afresh (which it did not) it would have reached the same decision as the Chief Judge.Unique context of NSLThis aspect of the appeal can best be summarised by quoting from the judgment:The unique context of the NSL is of course a significant factor relevant to the exercise of discretion. However, we do not agree with Mr Yu [Counsel for the Secretary for Justice] that the unique context of the NSL should take precedence over other aspects of public interest or be of primary importance in the ad hoc admission of overseas counsel. If this approach is to be taken to its logical conclusion, it would follow that overseas counsel should generally not be admitted in NSL cases. We do not think those unique features of the NSL as urged upon us by Mr Yu are sufficient to demonstrate that such an approach would best suit the public interest in the present situation, such that other aspects of the public interest should pale into insignificance.(4)Given the importance and difficulty at the forthcoming trial of balancing competing public interests (namely, safeguarding national security and protecting freedom of expression), the Court of Appeal was not persuaded that the applicant would be unable to add a significant dimension to the trial given his considerable expertise and experience.(5)Constitutionality of lawsThis aspect of the appeal was given short shrift by the Court of Appeal. The Court of Appeal considered that the Chief Judge had been entitled to conclude as he did regarding the complexity of the legal issues that required determination at the criminal trial.Possibility of appeals arising from criminal trialThe Chief Judge had considered this aspect of the forthcoming trial to be a "powerful factor" in favour of the applicant's ad hoc admission.(6) Consistent with legal principles, the Court of Appeal saw no reason to disagree.(7)CommentThe Court of Appeal's judgment has attracted attention in the local media.(8) This has included some rather unfortunate criticism – for example, apparently querying how a "foreign lawyer" could contribute to local jurisprudence relating to the NSL. Such criticism misunderstands the legal principles applicable on an application for ad hoc admission of overseas advocates and the role of the courts (in particular, the appeal courts) in developing jurisprudence with respect to the NSL. As the Court of Appeal stated:It is of vital importance in the early days of the NSL that our jurisprudence should be developed on solid foundations to reflect adherence to the rule of law in accordance with internationally adopted judicial standards. It would clearly be in the public interest to have the contribution of eminent jurists in developing our jurisprudence in the NSL.(9)As is often the case, it is better if that jurisprudence is developed before the trial courts rather than delayed until appeal.On a reassuring note, which will not have gone unnoticed in the local community and elsewhere and which is a fitting place to end, the Court of Appeal concluded:We would add this. The forthcoming criminal trial is a high profile case attracting substantial publicity locally and abroad. It involves the resolution of legal issues of great general public importance that would impact substantially on the development of NSL jurisprudence and sedition offences. Public perception of fairness in the trial is of vital importance to the administration of justice. The court must adopt a flexible and sensible approach to arrive at a decision that would best suit the public interest in this application. It is clearly in the public interest to grant the application for admission on grounds of public perception as well as the other grounds that have been canvassed.(10)For further information on this topic please contact Antony Sassi, David Smyth or Warren Ganesh at RPC by telephone (+852 2216 7000) or email ([email protected], [email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.Endnotes (1)  HKCA 1689, 9 November 2022.(2)  HKCFI 3233, 19 October 2022.(3) For example, Re Mably  1 HKLRD 627; Re Simpson QC  HKCA 22,  HKCA 450 and  HKCFA 25.(4) Supra note 1, at para 36.(5) Supra note 1, at para 43.(6) Supra note 2, at para 19.(7) Supra note 1, at paras 49-50.(8) For example, South China Morning Post, 10 November 2022, and Sunday Morning Post, 13 November 2022 (article titled "Decision to allow top UK lawyer to defend Lai is a welcome move" by Cliff Buddle).(9) Supra note 1, at para 45.(10) Supra note 1, at para 51.