Mrs Kissel stirs debate on foreign barristers

Murder by milkshake ... Foreign counsel to the fore in retrial of rich banker's wife for murder of control freak husband ... Overseas barristers can help develop the local bar - but only in moderation ... Percy Lo-Kit Chan reports from Hong Kong

Although it is not a closed shop, the Hong Kong Bar, like most others, does not normally admit overseas counsel, however distinguished, on any ad hoc basis to try cases in Hong Kong (c.f. the admission of Jonathon Sumption QC in the C7 litigation to your Federal Court in Sydney).

The retrial of Mrs Kissel (our local Lizzie Borden) has caused great interest among the local profession in that, for reasons entirely unclear, in a straightforward case of unlawful killing, both the prosecution and the defence are to be represented by overseas barristers.

Mrs Kissell is said to have killed her husband, a very rich American banker (ex-Goldman Sachs, ex-Merrill Lynch) by hitting him over the head several times with a heavy ornament while he was stupefied, apparently after the administration of a sleeping draught in a strawberry milkshake.

The first trial miscarried when, improbably, among other matters she was cross-examined about several statements by counsel who were then acting on her behalf at an earlier bail hearing.

For an overview, see the potboiler by Joe McGinniss Never Enough, which describes the vicissitudes of a luxury life-style in Hong Kong.

Usually it is lawyers from the older parts of the Empire upon which the sun never set, who seek admission ad hoc.

However, even those with a most distinguished London practice are usually now knocked back if sufficient local expertise exists: see In re Gilead Cooper, where a probate matter was considered meat and vegetables for the local team.

As Ma CJHC said in Re Brewer III (attorney at law from Texas), which dealt with the request for admission by a Texan attorney:

"Of particular note here are the provisions in relation to the admission of overseas lawyers as barristers.  Apart from the requirement of demonstrating the requisite period of qualifying practice and standing in the relevant overseas jurisdiction, the overseas lawyer must also have passed the Barristers Qualification Examination unless exemptions have been granted: - see section 4(2)(d). 

This examination consists of five papers testing the applicant's knowledge in contract and tort (paper I), property law, conveyancing and equity (paper II), criminal law, criminal procedure and criminal evidence (paper III), Hong Kong legal system and constitutional and administrative law, and company law (paper IV) and civil procedure and civil evidence, professional conduct and advocacy (paper V). 

The subjects dealt with in these examinations reflect those very matters with which non-overseas lawyers would have to be acquainted before admission as a barrister. I should also point out that for overseas lawyers, there is of course still the requirement to serve the requisite period of pupillage in Hong Kong."

In one of the main cases on the topic, In re Flesch QC Chan CJHC explored the various policy arguments for the approach to admission:

"It was submitted in ... Hong Kong, shortly after the handover, that overseas counsel should be admitted in order to maintain the quality of argument before the Court of Final Appeal which was, of course, taking over from the Privy Council. It is submitted that the paramount consideration for the admission of overseas counsel under section 27(2)(b) of the Ordinance is the public interest.

[It was contended] that after the change of sovereignty, it is in the public interest that there is to be international recognition of the quality and reliability of the legal system in Hong Kong and that our Court of Final Appeal should enjoy a comparable reputation as that of the Privy Council.

Hence, it is important to develop an internationally recognised and respected body of jurisprudence and in order to do so, the Hong Kong courts, especially the Court of Final Appeal, have to depend heavily on the quality and soundness of the advocates, including overseas counsel, who appear before our courts. It is submitted that this is consistent with the policy as enshrined in the Basic Law which permits the Hong Kong courts to draw on the resources of other common law jurisdictions.

In the light of this new legal order, there is, counsel submits, a need to revisit the guidelines for the admission of overseas counsel to the Hong Kong Bar for the purpose of appearing before our courts in particular cases."

Michael Flesch QC: cross-fertilisationChan CJHC stated his view In re Flesch QC as follows:

"In my view, since it is in the public interest to develop our own jurisprudence which can enjoy international recognition and reputation, overseas counsel with sufficiently high quality and standing may be admitted to appear in our courts in cases involving the determination of legal principles which may have an impact on the development of our jurisprudence.

Such cases would be cases which, quite apart from the size of their claims, are likely to go all the way up to the Court of Final Appeal for a determination of some principles of law. It is clear that the burden is always on the applicant to show that the case in which he is briefed to appear is a suitable case which involves the determination of legal principles which may have an impact on the development of local jurisprudence and that he is of a sufficiently high quality and standing to be in a position to make a useful contribution.

I do not think it is helpful to use particular labels or descriptions on those overseas counsel who may be acceptable to the court for admission. First, there may be unpleasant innuendoes or even adverse implications both for overseas as well as local counsel. Secondly, such labels or descriptions as 'top', 'first rank', 'eminent', 'distinguished' counsel would only confuse and make it more difficult for the court to apply any sensible criterion."

Chan CJHC noted the importance of developing the local bar:

"It has always been recognised that it is in the public interest to have a strong and independent bar. That does not mean protectionism. The bar does not need protection. It has grown and matured through the years. However, it also needs international recognition and reputation. Local talents need exposure and cross-fertilization with lawyers of sufficiently high quality and standing from other common law jurisdictions.

For junior counsel, working with senior counsel from other jurisdictions will give them the necessary exposure and provide them with the opportunity to show and develop their potential. It will also help them acquire the requisite skill and experience in the trade. I am only too aware of the risk that if overseas counsel are admitted too readily, this would inhibit the growth and development of the bar, particularly the junior bar."

Nancy Kissel: retrial for milkshake murderSo there you have it.

This makes it all the more perplexing why, as a local SC pointed out in an article to our newspaper, any overseas counsel should come in for the Kissel rehearing at all.

As he observed, were the case to have a purely local flavour (say the usual situation where a disaffected wife hits her husband with a meat cleaver in a small flat in Mongkok) there would be no question of even using senior counsel for either the prosecution or the defence, let alone importing some foreign "star".

Should the "celebrity" element be relevant? One would have thought not - indeed, it is more likely to turn what is, in the criminal calendar, a commonplace killing into more of a three-ringed circus.

P.S. For those Sydney counsel thinking of translating a practice from Adelaide, Melbourne or Sydney to HK there are a number of hurdles to overcome.

First, as noted above, there is a stringent admission requirement and requalification in several "foreign subjects". This hurdle is as severe as any you yourselves erected to stymie the influx of Yarpies some years ago.

Secondly, there is a language issue, so unless you wish to spend two years learning guandongwa to be able to converse with local clients and solicitors, it may be a forlorn exercise.

Thirdly, the cost of chambers in Central is prohibitive, even by the standards of the ridiculous key-money charged for a modest garret in Selborne.

Fouthly, as Sir Edward Hale noted four centuries ago, "all crime is local" - so it would not be realistic to run any practice without residing permanently in Hong Kong where the fleshpots of the East are sure to enliven and rejuvenate the jaded spirit of one who has trudged once too often to the delights of the District Court holden in Goulburn Street.

And remember that it is unspeakably hot in June, July and August, the relative humidity rises to over 95 percent, and pollution level is mephitic.