Re Owen KC [2022] 5 HKLRD 726, [2022] HKCA 1689

Robert Pang SC leading Steven Kwan and Ernie Tung represented the applicant/respondent in Re Owen KC [2022] 5 HKLRD 726, [2022] HKCA 1689.

T, an overseas King’s Counsel, sought admission as a barrister of Hong Kong on an ad hoc basis for the purpose of representing X, the founder of the newspaper “Apple Daily”, in his trial for inter alia offences against the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (the NSL). X’s trial was to be the first prosecution for an offence against art.29(4) of the NSL. The Secretary for Justice (the SJ) and the Bar Council refused to consent to T’s admission and opposed his application for admission on the bases that the issues involved in X’s trial were not of unusual difficulty or complexity and that T would not add a significant dimension to the trial. The Chief Judge of the High Court granted T’s admission. The SJ appealed, arguing inter alia that the Chief Judge had failed to take into consideration that the NSL was a national law enacted to address a highly specific national concern, tailored to Hong Kong’s unique constitutional framework, and that T did not have or profess to have expertise or experience in issues concerning the construction or application of the NSL. The SJ further submitted that the unique context of the NSL should take precedence in the weighing exercise of the relevant aspects of the public interest.

Held, dismissing the SJ’s appeal, that:

• (1) Under s.27(4) of the Legal Practitioners Ordinance (Cap.159) the Court had an unfettered discretion on the ad hoc admission of overseas counsel, to be exercised in a judicial manner, assisted by relevant principles and guidelines established in the earlier authorities. Public interest had always been the paramount if not the sole consideration in the exercise of the discretion. As there were many and sometimes conflicting aspects of the public interest, the exercise of discretion would often involve a balancing exercise. Although the unique context of the NSL was a relevant and significant factor, it should not take precedence over other aspects of public interest or be of primary importance in the ad hoc admission of overseas counsel. (See paras.17, 36.)
• (2) There was no proper basis for the Court to interfere with the Chief Judge’s exercise of the discretion, nor to differ from his assessment that the issues involved were of unusual difficulty or complexity, the determination of which would produce jurisprudence of great value to the development of local law, and that T would add a significant dimension to the trial. (See paras.18, 28, 36-40, 43-45, 47-51.)
• (3) Further, it was of vital importance in the early days of the NSL that Hong Kong jurisprudence should be developed on solid foundations to reflect adherence to the rule of law in accordance with internationally adopted judicial standards. It was clearly in the public interest to have the contribution of eminent jurists in developing that jurisprudence. (See para.45.)

[The above is excerpted from the headnote to the report in HKLRD.]