Press Summary (English)

Press Summary (Chinese)

FAMV No. 591 of 2022

[2022] HKCFA 23

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 591 OF 2022 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 425 OF 2022)

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Appeal Committee: Chief Justice Cheung, Mr Justice Ribeiro PJ and Mr Justice Fok PJ

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DETERMINATION

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THE APPEAL COMMITTEE:

A. The decision at first instance

1. On 19 October 2022, Poon CJHC [1] granted the application of Mr Timothy Wynn Owen KC (“ Mr Owen KC ”) for ad hoc admission to represent Mr Lai Chee Ying (“ Mr Lai ”) at a trial [2] in which Mr Lai faces four charges involving a conspiracy in relation to seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance [3] ; and conspiracies to collude with a foreign country or external elements to endanger national security, contrary to Article 29(4) of the National Security Law [4] (“ NSL ”). The trial is due to commence on 1 December 2022 and is scheduled to last until 20 January 2023.

2. The power to grant or refuse such an admission arises under section 27(4) of the Legal Practitioners Ordinance [5] which confers a broad discretion on the court.

3. In deciding whether to admit the applicant, Poon CJHC applied the principles developed by the courts over the years, [6] as summarised in Re Perry QC . [7] The overriding consideration is whether it is in the public interest to admit the overseas counsel in question and, as Poon CJHC held, factors relevant to that consideration are “(1) the importance of the legal issues to Hong Kong’s jurisprudence; (2) the complexity and difficulty of the issues; (3) whether the overseas counsel would add [a] significant dimension to the case; (4) the availability of suitable local counsel”. [8]

4. Applying each of those factors, taking into account the issues which the parties had indicated were likely to arise at the trial, [9] Poon CJHC exercised his discretion in favour of granting the admission.

B. The Court of Appeal’s decision

5. On the appeal of the Secretary for Justice (“ SJ ”) to the Court of Appeal, [10] leading counsel appearing for the SJ [11] recognised that it was an appeal against the Judge’s exercise of discretion and acknowledged the principles applicable on such appeals. [12] As summarised by the Court of Appeal, those principles are that:

“The appeal court must defer to the judg