Law & More: The Boase Cohen & Collins Podcast

Episode 19 - Wayne Walsh SC

October 03, 2022 Niall Episode 19
Law & More: The Boase Cohen & Collins Podcast
Episode 19 - Wayne Walsh SC
Show Notes Transcript

Our guest in this episode is Senior Counsel Wayne Walsh, whose sense of adventure has taken him from his native New Zealand to New York and Moscow and many places in between. After an outstanding career with Hong Kong’s Department of Justice, he is now in private practice as Head of Parkside Chambers and has also written an acclaimed book about cross-border crime. Wayne speaks with our Senior Partner, Colin Cohen.

Host: Colin Cohen
Director: Niall Donnelly
Producer and VO: Thomas Latter     

[00:00:34] Colin Cohen: Wayne, welcome to Law & More, and it's a great privilege to have you here. And as I always ask all my guests, what have you been doing recently? 

[00:00:43] Wayne Walsh SC: Well thanks, I'm very happy to be here. I'm being kept very busy at Parkside actually, in my life and work. We had our staff dinner last night, which was great after a couple of years of not having one because of the COVID restrictions. And I'm very much looking forward to travelling down to New Zealand where I come from originally at the end of the year to visit family, it'll be the first time in three years that I've left Hong Kong.

[00:01:05] Colin Cohen: Great, and just for our listeners, Parkside is the name of your chambers, and the barristers all work from chambers, as opposed to our solicitors. Cause you are all independent contractors anyway.

Before we discuss and go into your very long and distinguished legal career. Let's go back to your youth. You were born and raised in New Zealand, fond memories of your school days?

[00:01:27] Wayne Walsh SC: Yes, I was actually born on a farm in the high country, in McKinsey country, in the middle of the South Island. But we moved into the city when I was four or five years old where I went to school. Fond memories, a very free and open outdoor lifestyle went through primary school and then went through high school.

I had a bit of a desire to see the bigger world at quite an early age. And so in my final year, in high school, I went to the US for a year on a exchange scholarship in New York. And ended up graduating from an American high school.

[00:01:56] Colin Cohen: Excellent, so what happened your rugby playing when you were in New York? 

[00:01:59] Wayne Walsh SC: Yes, well there's no rugby there so they had sports teams. There was a choice between American football or football, soccer. And I chose soccer because I thought gridiron was a bit over the top for me.

[00:02:09] Colin Cohen: Yeah, you attended the University of Otago. What did you study? What did you read?

[00:02:13] Wayne Walsh SC: I didn't really know what to read. I thought law would be a good fallback for me, but after travelling, I had a real interest in languages. And I signed up for a double degree in law and Russian language and literature, which was a six year program.

[00:02:26] Colin Cohen: And that took you to Russia?

[00:02:28] Wayne Walsh SC: Eventually did, I finished my Russian degree first, but in my final year I studied in Moscow for a semester at Moscow State University. That was in 1980. It was still the good old, bad old days which we seem to be going back to in some respects, but it was a cold war era. And a very interesting time for me, but I was happy to return to New Zealand and go back to finish my law degree. But by that time I had a bit of wanderlust still. And in my second to last year at law school I saw an advert to join the Royal Hong Kong Police Force. 

[00:02:59] Colin Cohen: Yeah, so I'm very interested. Cause one of my previous guests here, Robby McRobbie, he joined the police force as well.

So what on earth made you decide to come to Hong Kong and become a police officer? 

[00:03:09] Wayne Walsh SC: Well, a flashlight went off in my head and I thought that sounds very exciting, not quite the Foreign Legion, but sort of in that direction. And so I dropped out of law school. I had one year to go, but I said, no enough is enough. And I came and joined the Royal Hong Kong Police Force. My mother was horrified that I was throwing away, she thought her career in law. And, I was here for three years, it was a three year posting. I did my initial training at Wong Chuk Hang, in the police training school. And then I was posted to a uniform branch in Kwun Tong. At the time, it was a very industrial area. A lot of public housing and a lot of squatter huts on the Hills around Kwun Tong. Which I found fascinating, of course the area has changed a lot now. Then I was posted to special duty squad, which really did plain clothes policing of street level drug trafficking. A lot of heroin was being sold on street corners at the time.

And then I did my final posting in the police tactical unit. All the Blue Berets, which was kind of like the paramilitary wing of the force to deal with riots. Fortunately, I had no riots to deal with at the time.

[00:04:08] Colin Cohen: But you did all the training.

[00:04:09] Wayne Walsh SC: I did all the training, I was ready to go.

[00:04:11] Colin Cohen: And did you enjoy yourself? How people did you arrest? My last guess Robbie McRobbie didn't arrest anybody, or he did, half a person who went into his rooms. 

[00:04:19] Wayne Walsh SC: No I did arrest a number of people. The happiest person, that I arrested I think was in Cha Kwo Ling in Kwun Tong district. When I was in the special duties squad, they were a bunch of old guys in an opium den.

They were about 80 years old, they were lying out on their bamboo pillows with their big, long bamboo pipes. And we had to arrest them, and they were quite happy about it, and didn't put up any resistance at all. They went to court the next morning and got a wrap over their knuckles.

[00:04:44] Colin Cohen: Yeah, so after a fine career with the Royal Hong Kong Police Force, you decided, I presume your parents said, come back and do some law. 

[00:04:53] Wayne Walsh SC: Well actually I realised pretty quickly I was not a very good police officer. There's a lot of discipline in the police force and I guess I was a bit averse to the strict discipline that was required.

So I knew that the police wasn't for me as a career. And I went back to finish my final year at law school. Graduated, and then joined a firm of solicitors in Auckland, Russell McVay, leading commercial litigation law firm.

And worked there for a couple of years. So that was my first job as a barrister and solicitor. That's a fused profession in New Zealand.

[00:05:22] Colin Cohen: And that area of the law, you were always interested in securities law. You weren't sort of let's say the family lawyer or the drafting the wheels, or doing the conveyancing. 

[00:05:31] Wayne Walsh SC: No, I wasn't really interested in that. I was interested in commercial litigation, I enjoyed that. But after a couple of years I saw an advertisement to join the serious fraud office, which was being set up in New Zealand. That was being modelled on the UK series fraud office. A combination of prosecutors, forensic accountants, and police investigators.

And I thought that would be exciting. So I've always followed my nose in terms of what I thought would be interesting. And so I ended up, after a couple of years joining the serious fraud office as a prosecutor. And I was there mainly on one large case, a trial that went on for many months and really enjoyed that time. 

[00:06:08] Colin Cohen: You enjoyed the SFO. The lure of Hong Kong came back to you and something must have brought you back into Hong Kong. 

[00:06:15] Wayne Walsh SC: Yes, well by that time I had married, I met my wife in Hong Kong during my time here in the police. And we were starting to raise a family and 1997 was on horizon. This was now around 1992. So we thought if we're going to go, this is the time to go. So I applied to join the department of justice. And was eventually accepted and came back at the end of 1992. Probably about the last bunch of foreign expats that came in to join a department. Because at that time it was starting to be localised in the run up to 1997. 

[00:06:50] Colin Cohen: so you come back to Hong Kong in the Department of Justice. Where were you? Within the extradition department at that time? Mutual legal assistance?

[00:06:56] Wayne Walsh SC: Yeah, well I was posted, because of my background in commercial litigation and the SFO, I was posted to the commercial crime unit initially which did white collar crime and ICAC work. And after a few years I went to the extradition unit in prosecution's division. But at around that time they were looking to set up a new unit in the international law division called The Mitchell Legal Assistance Unit. And this was designed to handle cases post 1997, because all of the international arrangements, criminal justice arrangements applicable to Hong Kong, all the treaties were going to fall away on the 1st July, 1997, because we're no longer part of the United Kingdom.

[00:07:33] Colin Cohen: That's when I remember meeting with you. Because I was involved in perhaps the longest ever extradition battle in a planet Earth whereby my client fought extradition for eight years in London. And he came back in the end and I remember one of applications for Habeas Corpus was based on the fact that 1997, how can we go back? Because we weren't gonna get the necessary safeguards with a new regime. And it was actually, it was an interesting judgment, of course the divisional court sort of knocks us out. But we did raise points and I always remember talking to you about that and it was the time was interesting.

[00:08:07] Wayne Walsh SC: It was a very interesting time because we had some new arrangements in place, but the one country, two systems concept was quite foreign to most other jurisdictions at the time. And so we had cases also like you and [launder] where he was raising similar challenges that if I'm being extradited back to Hong Kong, I'm gonna end up being sent to China. And we don't have a treaty with China. 

[00:08:30] Colin Cohen: And I was involved in that case as well. I remember going to the magistrates' court and trying to get orders and all the rest, giving you guys a hard time. I always enjoy just fighting with the DOJ at that time.

[00:08:40] Wayne Walsh SC: But we had challenges also in the US and in Australia where they challenged the constitutionality of the new arrangements with Hong Kong, because there were treaties between Hong Kong. Which is not a sovereign state, obviously, it's just a part of China. So the concept is quite novel.

[00:08:55] Colin Cohen: Yeah, so at that stage, you were developing your work in the DOJ, dealing with the mutual legal assistance. And then involved in giving advice that is needed from time to time, in respect to specific cases, doing extradition cases and at the same time, drafting for treaties. Because you are involved in that.

[00:09:12] Wayne Walsh SC: Yes, there's a mix of both negotiating and drafting treaties. And then actually carrying out the operational work under those treaties. So there were new treaties on extradition. There were new treaties on mutual legal assistance. And there were new treaties on prisoner transfer.

And we got to the point where we had about 30 new treaties on mutual legal assistance with various countries around the world. We had about 19 or 20 extradition treaties. And once we got over the initial hurdles of 1997 and the initial challenges that we've just talked about. Those treaties became operational and worked quite smoothly and we had quite a number of cases in instances where we were cooperating on a almost daily basis with a number of foreign jurisdictions. Hong Kong was a financial center. Obviously, a lot of money is going through here. People looking for bank records, tracing funds, and so forth. So there was quite a bit of work being generated by this.

[00:10:06] Colin Cohen: and plenty of travel for you? 

[00:10:08] Wayne Walsh SC: Yes unfortunately my travel lust was probably one of the reasons why I stayed in the DOJ. People asked me why I've stayed in DOJ for so long, I was there for 25 years. Eventually one of the reasons was that it provided one, very interesting work, and two, joined the DOJ and see the world. Because it did require travel, both for casework and also for treaty negotiation, which was fine with me.

[00:10:30] Colin Cohen: Okay, you chaired the working group of the financial action task force in Paris. Tell us a little bit about that. 

[00:10:37] Wayne Walsh SC: Yeah okay, well Hong Kong was, and is a member of the financial action task force. This is an inter-governmental body. Its based in the OECD in Paris. And it's a policy body, which set standards initially for proceeds of drug trafficking and then quickly expanded to proceeds of all offences, i.e money laundering. And it's a mix of criminal justice people as well as financial regulators. And they're known as the FATF recommendations. They're revised periodically, and in 2012, they were most recently revised. And I co-chaired a working group, which undertook that work. Which went on for a couple of years. And they continued to evolve. They were initially designed to cover financial institutions, banks. They now extended to people like you, lawyers, accountants, real estate agents.

And now more recently they're extending to cryptocurrency platforms, virtual asset service providers. So a very broad and interesting reach.

[00:11:37] Colin Cohen: Yeah, and again, for our listeners, it is a very difficult area. If you're acting for people who need help and it's money laundering cases. And the client says, I like to pay you in cryptocurrency. Then you have to be very careful in how you go about the sources of monies and the rest. So it did affect us all as well. 

When you were in the DOJ. I'm gonna talk about some of the cases you did in which we did battle against each other. What did you enjoy most? Was it you drafting or going to the meetings, or just actually getting into court and doing the cases and doing the advocacy.

[00:12:07] Wayne Walsh SC: Yeah. It's actually preparing and getting into court. Which I guess is why I've ended up at the bar eventually. But one of the reasons I left commercial and litigation practice and went to the serious fraud office was I found that a lot the commercial litigation would settle before you got into court.

And I thought that wasn't really for me. So I enjoy the court battles, there've been a number of significant cases post 1997. In the era of extradition and mutual legal assistance. They tend to be long running. It's heavy litigation. We've had cases dealing with the prime minister of Italy at the time, who was under investigation for corruption offences. We've had the Edward Snowden case. We've had the case and I'm doing a case with you right now, the [Romi] case.

[00:12:47] Colin Cohen: Another case, which is interesting, which we did do was with the Philippines. Cause the Philippines, one of the earliest places whereby we had a treaty and the treaty you were involved in dealing with treaty of the Philippines.

And then they decided to do a case. And Mel Boase, one the founders, he was doing it, then I helped out in the case. And I remember that vividly, that you were doing this for the Department of Justice, but you were all the time telling the Philippines exactly what to do.

[00:13:12] Wayne Walsh SC: Under the treaty arrangements, we represent the foreign government. But at the same time, they're very unfamiliar with the Hong Kong legal requirements. So we have to work quite closely with them always in order to prepare the case, prepare the evidence, so that it works in the Hong Kong system.

[00:13:26] Colin Cohen: Yeah, cause that was in 1998, whereby [Jianko] was wanted back in the Philippines, and of course we tried to argue whether one would get a fair trial in the Philippines.

And it was an interesting argument which fell on dead ears, but never mind, you succeeded very well in that case. Another case, which is also, I found very interesting, which I was involved in is that Peter [Chong] case. Cause I was involved in that case, and you were heavily involved in that, whereby it was the Americans wanting him for numerous sort of, how could I say? it was a bit of a naughty cases, a bit of robbery, hostage taking, and drugs. 

[00:13:56] Wayne Walsh SC: Yes, interestingly enough our closest partners at the time were the US, the UK, the common law jurisdictions, because we had been a British colony up until 1997. And we had a lot of work with those partners. Of course in more recent time, the landscape has changed.

[00:14:15] Colin Cohen: Yes, so you are heavily involved in the DOJ. You are working very hard. You were working your way right up the top. 

[00:14:20] Wayne Walsh SC: Yeah, I became a deputy law officer and eventually in charge of the Metro legal assistance unit.

[00:14:26] Colin Cohen: A long, long, very distinguished career, you which did very well. But then you decided to leave the DOJ and go into private practice. What an earth made you do that?

[00:14:37] Wayne Walsh SC: Well, as I said, I've been there for 25 years. My time was more or less up anyway, and I knew I wanted to do something else. I thought about perhaps a move to some sort of international organisation in Europe or somewhere where I had a lot of contacts. But at the end of the day, I didn't wanna leave Hong Kong.

And it always had a hankering to go to the bar. A number of people that had been in DOJ moved to the bar and perhaps took me a little bit longer than others, but I decided that was a place to go. So I knew Clive Grosman, of course. And he was head of chambers at the time. So I went along, had a chat to Clive and we agreed that I would join Parkside, that was five years ago.

[00:15:10] Colin Cohen: 2018 as well. And did you find a change of scenery. Did you find it difficult at the beginning, you have to rely on our solicitors to sort of feed you work. Were you worried at the beginning? I know you're very successful now.

[00:15:21] Wayne Walsh SC: No, fortunately I had some government work that I knew would continue. And I was picking up new work as well, so I found it great, working not just for government, but also for the defence side. Working for people like yourself and worked out fine.

What I really enjoyed was the freedom at the bar and the ability to concentrate purely on your case. Getting away from the management of administration that you find in DOJ, the higher you go. 

[00:15:47] Colin Cohen: Yes, and one thing which you have been able to do is there's this magnificent book, cross border crime in Hong Kong. Extradition, mutual assistance, and financial sanctions. Now, I've got both additions and it's an excellent book, but it's hard work getting those books out. What made you do that?

[00:16:04] Wayne Walsh SC: Well, I had a period of garden leave between leaving the DOJ and starting private practice. And I didn't really know what to do. I could have travelled the world, but I'd really already done that at DOJ. So I thought I'd write a book, focusing on the expertise that I had developed in my work at DOJ. And so I sat down for six months and wrote the first edition.

[00:16:26] Colin Cohen: Excellent book. Now, very interestingly you have been involved, also with Hong Kong university with professor Simon Young, doing some teaching and being involved in some projects with him.

Tell us a little bit about that.

[00:16:37] Wayne Walsh SC: Well, Simon is a professor, obviously at...

[00:16:39] Colin Cohen: And one of my guests on Law & More.

[00:16:41] Wayne Walsh SC: Hong Kong U.

He's also a door tenant at Parkside. So he's part of Parkside. And he has an interest in the same area of law that I do. And so we decided that we would start teaching a new course as part of an LLM elective next January on transnational criminal law.

So we'll focus on extent of transnational offences, such as terrorism, cyber crime, drug trafficking money laundering, so forth. But also the procedural aspects, extradition, mutual assistance.

[00:17:10] Colin Cohen: And now I can tell our listeners, we have done a recent case is the [Romi] case. This is a case which is in the public arena. Allegedly, my client is one of the most wanted men in India involved in numerous outrageous, offences, breaking people out of prison, et cetera, et cetera.

And Simon was my council and you were for the government and we did great battle in the magistrates' court for about 10 days with experts, et cetera, et cetera. We lost on some, but one interesting point as to whether or not the offences were all part of a treaty. And then the magistrate somehow believed Simon got it all right. And then all of a sudden, the governor of India said, no, no, no, no. They decided to appeal this. And we went into the high court and then we had had a right old battle. Of course, your excellent advocacy prevailed. How did you feel about Simon on my side and I'm instructing Simon and you are fighting for the government.

Our listeners, maybe don't realise how, maybe a little incestuous.

[00:18:09] Wayne Walsh SC: Well, that's one of the great things that being at the Bar is that you realise you're an independent practitioner. You take the case that comes to you and you advocate to your best ability for your client. And the fact that you may be against one of your colleagues one day and with them, the next is really neither here and nor there.

[00:18:24] Colin Cohen: Yeah, and battle still goes on in that case. 

[00:18:26] Wayne Walsh SC: And it still continues, yes.

[00:18:28] Colin Cohen: I always say to everyone that it's a great relationship. We do our very, very best for our clients in the most professional, proper way.

We'd leave no stone unturned. Our objective is the results don't bother me too much. Of course you like to win, but you make sure that the process, the system works and justice is seen to be done. And the rule and law in Hong Kong should be as strong as ever. Great people on one side and us on the other testing, pushing and trying to advance the law, that's what we do.

Now, I've gotta congratulate you. You'll now become head of chambers. 40 plus barrister to keep like herding cats I would expect. Anyway, Paul Lamb, he was head of chambers. He was senior council. He's now gone to secretary of justice. How did that come about?

[00:19:11] Wayne Walsh SC: Well yes, following Paul Lamb's appointment, the silks and chambers got together and said, well, we have to appoint a new head. And then they all looked at me because I was the most junior senior as it were. So I didn't really have a choice, but I was very happy to take on the role.

I'm one of the newer members to chambers but it's an exciting time for us. And we've got a lot of bright, young people coming in. And we are really keen to continue our practice. We pride ourselves in our excellence but we're also a very collegiate group of people and we get on really well together.

Although there are 40 plus, we don't really have any big issues and it's a really wonderful place to work. So, so far, so good, touch wood.

[00:19:47] Colin Cohen: A lot of time on administrative stuff? As opposed to diverting you from the legal work.

[00:19:53] Wayne Walsh SC: Yes well, as I said, I thought I'd escaped that when I left DOJ, but I'm finding I'm coming back to it a bit, but we have great committees and other people who help out. So it's not a one man job.

[00:20:02] Colin Cohen: Yeah, and just explain to our listeners Barrister's Chambers. Here in Hong Kong. We have this split profession. And, I'm always using Barristers. I'm a great traditionalist, I believe in going to the bar, I believe in instructing the independents to make sure the [specialities]. And what is very, very good about your chambers are you've got lots of young up and coming barristers who are starting their careers.

We have lots of young trainees and young associates. And it's the idea of making sure that we all get to know each other and we develop each other's practice. And we're very, very keen on doing that. Indeed, we may be visiting you next week and to introduce some of my young lawyers that some of young barristers.

[00:20:40] Wayne Walsh SC: I understand that that's the case and I agree, it's a good thing.

[00:20:43] Colin Cohen: Now, Now like asked all my guests, you've been in Hong Kong a very long time. I came in 81, you came in 81, left and come back. Staying, going, the elephant in the room, the call of New Zealand, the call of the all blacks rugby team.

Where are you going?

[00:20:58] Wayne Walsh SC: Well, I'm not sure the all black rugby team's been doing too well lately.

[00:21:00] Colin Cohen: You won last week against Argentina.

[00:21:02] Wayne Walsh SC: I'm a great believer in Hong Kong. It's been through some rough times, but Hong Kong is always going through rough times and good times to my mind. It's a rollercoaster ride and it's one of the great attractions of Hong Kong.

So I have no immediate plans to leave. And I have faith in the future. 

[00:21:17] Colin Cohen: Optimistic. So am I. Anyway, it has been a privilege and honour to have you Wayne with us on Law & More, thank you so much for coming to talk to us today. 

[00:21:27] Wayne Walsh SC: Thank you, Colin.