RE J. CAPLAN, Q.C.

HCMP005692/1998

HCMP 5692/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 5692 of 1998

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IN THE MATTER of Mr Jonathan Caplan QC, Barrister and Member of the Honourable Society of Gray’s Inn, England

and

IN THE MATTER of Criminal Appeal No. 402 of 1998

and

IN THE MATTER of Section 27 of the Legal Practitioners Ordinance, Cap.159 of the laws of Hong Kong

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Coram : Hon Chan, CJHC

Date of Hearing : 4 November 1998

Date of Judgment : 4 November 1998

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J U D G M E N T

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1. In this application, it is sought to admit Mr Caplan QC to the Hong Kong Bar for the purpose of representing Mr Chim in his appealwhich is to be heard later this month.

2. I have no doubt and it is not disputed that Mr Caplan is an expert in criminal cases. He is a barrister of a very high quality andstanding. The Bar’s opposition to the admission is based on principle. As I said in an earlier case, the burden is on the applicantto show that it is in the public interest to admit overseas counsel for a particular case under section 27(2) of the Ordinance.

3. Mr Chim was represented by Mr Griffiths SC, Mr Cheng Huan SC and two juniors at the trial which lasted for 150 days. Mr Griffithsand the two juniors have been retained in the appeal.

4. Several reasons are put forward for the admission of Mr Caplan. One of the main reasons is that counsel says that it is possibleor even probable that an additional ground of appeal will be introduced alleging actual or perceived bias on the part of the trialjudge for failing to disclose his connection over 20 years ago with the company in which a witness had previously worked. Becauseof this, it is said that it would be desirable for someone who is not in practice in Hong Kong to argue this point before the Courtof Appeal. The second main reason put forward is closely connected with the first and that is that this is an appeal which may involvethe determination of a legal principle which may have an impact on local jurisprudence. It is also submitted that the case is difficultand complex, that admitting Mr Caplan does not infringe the public interest since local counsel have been actively involved and willbe instructed in the appeal and that it is the wish of Mr Chim and his solicitors and counsel to instruct the best criminal counselfor his appeal which is extremely important to Mr Chim.

5. I have the advantage of dealing with the bail application and am aware of the substance of the grounds of appeal in this case. Havingalso heard counsel today, I do not agree that this is a case of unusual difficulty or complexity. The trial might have been lengthy.It might also have been difficult. But it cannot in my view be said that the appeal is one of unusual difficulty and complexity.

6. With regard to the possibility of an additional ground of appeal alleging actual or perceived bias by the trial judge, it is admittedthat Mr Griffiths is not in any way inhibited to argue this point. It is just submitted that someone not practicing in Hong Kongwould be in a better position to do so. I do not agree that this is a sufficient ground for acceding to the present application.On the contrary, I am quite confident that any local counsel, particularly counsel of Mr Griffiths’ ability, standing and experience,would not be in any way inhibited in taking this point if it is indeed to be taken. I am also not persuaded by the argument thatit is necessary to brief overseas counsel because the law on bias as propounded in the House of Lords decision of R. v. Gough may be wrong and the Hong Kong Court of Final Appeal may be asked to consider that. That decision has been followed time and timeagain in Hong Kong. I am not aware of any doubt on its correctness in any other cases either in Hong Kong or in UK. That of courseremains to be argued. But I agree with Mr Huggins that it is not necessary to ask Mr Caplan to argue this point. In the jurisdictionwhere he practises, that decision is the law. If it is sought to argue that it is somehow wrong and not the law in Hong Kong, itwould in my view be more appropriate for Mr Griffiths to make the submission rather than Mr Caplan.

7. This is of course not the case where no local counsel of appropriate skill and experience is available. Mr Griffiths together withMr Cheng Huan and their juniors are extremely capable counsel. This is probably one of the best teams of defence lawyer in Hong Kong.They had provided Mr Chim with good and adequate services at the trial. It is not argued that these counsel are not capable of handlingthe appeal. Nor is it alleged that this is a case where there is no local counsel of the requisite specialist knowledge and expertiseto handle the appeal. Money of course is not a problem which arises in this case. It is accepted that Mr Chim is a very well knownlocal personality and leading businessman. However, this is, as Mr Huggins submits, irrelevant for the present application. It hasnot been shown that his appeal or interest may be adversely affected by having local counsel representing him. No doubt, Mr Chimwishes to get the best legal representative and his lawyers and Mr Griffiths agree that Mr Caplan is one of the best criminal silks.But that is not enough in the circumstances of this case. The fact that there is no detriment to the local Bar because local counselare also instructed is neither here nor there. That is different from having a strong and independent Bar.

8. On the facts of the present case, it has not been demonstrated to me that it is in the public interest to accede to the application.In the circumstances and for the above reasons, I would refuse the application.

( Patrick Chan )
Chief Judge, High Court

Representation:

Mr Richard Wong (instructed by Messrs Dixon Tang & Co) for the Applicant

Mr Adrian Huggins SC leading Mr Lam Man Chung (instructed by Messes Cheng Yeung & Co) for the Council of the Hong Kong Bar Association

Miss Jenny Fung for Department of Justice