Over the past four years, the DoJ has – on various occasions – brought in overseas legal practitioners, many of whom were senior barristers awarded the title of Queen’s Counsel for their professional eminence. The advice of Queen’s Counsels were sought in the case of Donald Tsang’s alleged misconduct in public office, the Ken Tsang beating case, the Rafael Hui Si-yan corruption case, the Carson Yeung Ka-sing’s money laundering case, and more. The DoJ has reportedly spent HK$283m in the 2012/13 fiscal year and HK$328m in 2013/14.
“We also expect an increase in court costs and briefing-out fees payable to barristers, solicitors and other professionals (such as expert witnesses) in private practices, and hence have made a provision of $432 million and $530 million respectively in 2015-16 for providing the necessary support for anticipated legal proceedings and related matters,” the Department of Justice said in March 2015.
Legislative Councillor and barrister Dennis Kwok Wing-hang questioned the need to consult Queen’s Counsels in some of these cases, such as in the Ken Tsang case. He added that the facts in this case were not complicated and local lawyers would have been qualified enough to give legal advice.
Solicitor Jonathan Man Ho-ching said that consulting local private practitioners or overseas lawyers could create an impression of independence and impartiality, but the priority should go to local lawyers. He also said that he was worried that seeking an overseas legal opinion was simply a DoJ method to delay prosecution decisions – such as in the lengthy three-and-a-half year investigation into Donald Tsang’s alleged public office misconduct – which would be unfair to the relevant parties.
Philip Dykes, who was an appointed Queen’s Counsel in 1997 and shortly thereafter became a Senior Counsel, told HKFP that consulting overseas counsels should not be an excuse for taking a longer time to process cases. “Usually when [local counsels] are asked to do work, they’re given a deadline, and the same applies to overseas counsels – there shouldn’t be extra time given.” He also said that overseas counsels should only be consulted in exceptional cases.
The DoJ replied saying that briefing out (meaning engaging barristers in private practice) was dictated by uncontrollable factors. According to the DoJ website, briefing out takes place when expert assistance not available in the DoJ is required, when there is no suitable counsel to appear in court for the government, when the proceedings involve DoJ employees, when the case in question was handled by a former employee of the DoJ who has now gone into a private practice and when the size, complexity, quantum and length of a case so dictate.