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									                                                               HCAL636/2001
                     IN THE HIGH COURT OF THE
        HONG KONG SPECIAL ADMINISTRATIVE REGION
                      COURT OF FIRST INSTANCE
       CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
                              NO. 636 OF 2001
                               -----------------
BETWEEN
                          TSE WAI CHUN PAUL                            Applicant
                                      and
                SOLICITORS DISCIPLINARY TRIBUNAL                    Respondent
                          --------------------

Before : Hon Hartmann J in Court
Dates of Hearing : 13 and 16 July 2001
Date of Handing Down Judgment : 27August 2001

                             ----------------------
                             JUDGMENT
                             ----------------------

INTRODUCTION

1.           The applicant in these proceedings is a solicitor who has
practised as such in Hong Kong since about 1992. He is a partner in a firm
which calls itself Messrs Paul W. Tse. In February of this year, the
Solicitors Disciplinary Tribunal (‗the Tribunal‘) commenced an inquiry into
certain aspects of the applicant‘s professional conduct. The inquiry was
instituted as a result of complaints made by the Council of the Law Society
to the effect that the applicant had publicized and promoted both himself
and his firm in ways that offended the Solicitors Practice Rules.
                                        - 2 -


2.           The Tribunal is a statutory body constituted in terms of the
Legal Practitioners Ordinance, Cap. 159 (‗the Ordinance‘). Section 9B of
the Ordinance directs that, when an inquiry into the conduct of a Hong
Kong solicitor takes place, the Tribunal shall consist of three persons : two
Hong Kong solicitors, one of whom shall act as chairman, and one lay
person. All three are chosen from a panel appointed by the Chief Justice.
Such was the constitution of the Tribunal in the applicant‘s inquiry.


3.           As to the manner in which the Tribunal shall conduct its
inquiries, section 9B(4) of the Ordinance directs that :

             ―The Tribunal shall sit in camera in the places and at the times it
             directs.‖


4.           At an early stage of the inquiry, the applicant (who was at that
time representing himself) made an application for the inquiry to be made
public. The application was refused. In this regard, the transcript of the
proceedings records the Tribunal making a ruling in the following terms :

             ―…. Mr Tse has applied for leave to admit two unspecified and
             changeable members of the press to attend the rest of these
             hearings as observers. Having carefully considered the parties‘
             submissions, we do not think that we have the power to allow the
             application. Even if we had, which we doubt, we are not
             convinced that this application should be granted.‖


5.           It is in respect of that ruling, namely, the denial to him of a
public hearing, that the applicant brings his application for judicial review.
Expressed broadly, it is his contention that section 9B(4), to the extent that it
compels the Tribunal to conduct its hearings in camera, is inconsistent with
the Basic Law.
                                        - 3 -


6.           The importance of the right to a public hearing by a competent,
independent and impartial tribunal established by law has been affirmed by
the United Nations Human Rights Committee. In its general comments
published in a document dated 19 May 1989 it said that the provisions of
Article 14(1) of the ICCPR applied to all courts and tribunals whether
ordinary or specialized. It went on to say :

             ― The publicity of hearings is an important safeguard in the
             interest of the individual and of society at large. At the same time
             article 14, paragraph 1, acknowledges that courts have the power
             to exclude all or part of the public for reasons spelt out in that
             paragraph. It should be noted that, apart from such exceptional
             circumstances, the Committee considers that a hearing must be
             open to the public in general, including members of the press, and
             must not, for instance, be limited only to a particular category of
             persons. It should be noted that, even in cases in which the public
             is excluded from the trial, the judgement must, with certain strictly
             defined exceptions, be made public.‖


7.           As Lord Woolf MR said in R. v. Legal Aid Board, ex parte
Kaim Todner [1999] QB 966 (at 977) : ―Any interference with the public
nature of court proceedings is therefore to be avoided unless justice requires
it.‖


8.           Section 10 of the Ordinance empowers the Tribunal to impose
a wide range of penalties on solicitors who are found culpable. These
penalties range from striking a solicitor off the role of solicitors so that he or
she can no longer practise to the less draconian penalties of a fine or censure.
Section 10 makes it manifest, therefore, that the Tribunal possesses the
power to profoundly influence the professional careers of persons appearing
before it.
                                        - 4 -


9.           During the course of his submissions, Mr Dykes, leading
counsel for the applicant, pointed to the fact that the Tribunal is the only
disciplinary body constituted by statute in Hong Kong which is required to
conduct all its proceedings in camera. Disciplinary bodies concerned with
the professional conduct of other professions — inter alia, accountants,
architects, dentists, medical practitioners, engineers, surveyors, nurses and
midwives — are vested by the appropriate statute with a discretion whether
to admit or exclude members of the public. In particular, Mr Dykes pointed
to the provisions governing the Barristers Disciplinary Tribunal which are
also contained in the Ordinance; more particularly to section 35B(2) which
reads :

             ― A Barristers Disciplinary Tribunal is required to hold its
             proceedings in camera, except when the barrister whose conduct is
             being inquired into requests that the proceedings be open to the
             public.‖


10.          Quite why the Tribunal, in investigating the conduct of
solicitors, stands alone in being required, without discretion, to exclude the
public from its hearings, is not clear. In R. v. Legal Aid Board, ex parte
Kaim Todner (supra), Lord Woolf made it clear that, in the opinion of the
Court of Appeal, there was no good reason why solicitors should receive
such singular treatment. In an unambiguous statement (at 975 and 976) he
said :

             ― There can be no justification for singling out the legal
             profession for special treatment. The inference that they should be
             singled out should not be drawn from Ord. 106, r. 12. The Order
             certainly presupposes that solicitors in disciplinary appeals to the
             High Court should not be identified in the title to the proceedings.
             However this is probably a remnant from earlier times when the
             disciplinary proceedings were themselves in private which is no
             longer the position. The situation in relation to other professions,
             e.g. doctors and dentists appealing to the Privy Council, is that in
                                        - 5 -

             general they are not granted any anonymity. In my view, the
             Rules of the Supreme Court should now be amended to bring the
             position of solicitors in line with that general practice.‖


11.          It is to be noted that Order 106, rule 12 of our Rules of the
High Court has the same wording as Order 106, rule 12 of the Rules of the
Supreme Court to which Lord Woolf has made reference, the Hong Kong
order reading :

             ― (1) The notice of the originating motion by which an appeal is
             brought must be entitled in the matter of a solicitor, or, as the case
             may be, a solicitor‘s clerk, without naming him, and in the matter
             of the Ordinance.‖ [my emphasis]


12.          Mr Yue, leading counsel for the Law Society of Hong Kong on
behalf of the respondent, that is, the Tribunal, has argued that this
application is not concerned with ‗the merits‘ of section 9B(4), either in
isolation or in comparison with other disciplinary bodies constituted by
statute. This application, he said, is concerned solely with what I will call
the integrity of the section in constitutional terms.


13.          I agree that the primary issue is the constitutional integrity of
the section. If the section is found to be consistent with the Basic Law then
the matter goes no further. However, if it is found to be inconsistent, then, it
appears to me that the section does not automatically fall away as being of
no effect. Although the matter was not argued, in my judgment it would
still be open to the Tribunal to show that the requirement to hold all of its
hearings in camera is justified. To do so, ‗cogent and persuasive‘ reasons
would have to be given. See R. v. Sin Yau-ming [1992] 1 HKCLR 127.
Such reasons would have to demonstrate : first, that the restriction is
demonstrably necessary (for example, because of the unique obligations
                                       - 6 -


owed by solicitors to their clients); second, that it is rational in the sense that
it is not arbitrary or unfair and, third, that the restriction is no more than
necessary to accomplish its legitimate aim : in other words that the
restriction is a proportionate response to a demonstrated need. For an
exposition of these three considerations, see Association of Expatriate Civil
Servants of Hong Kong v. Secretary for the Civil Service (1996) 6
HKPLR 333 (at 351/352).


14.          But, as I have said, the matter of justification in the event of
section 9B(4) being found to be inconsistent with the Basic Law was not
argued before me. It is therefore not for me to speculate why solicitors in
Hong Kong receive such singular treatment. Nor in the circumstances is it
for me to look to what Mr Yue has called ‗the merits‘ of the section.


THE CONSTITUTIONAL CONTEXT
15.          The Basic Law, Hong Kong‘s primary document of
constitution, came into effect upon the change of sovereignty on 1 July 1997.
Article 8 of the Basic Law reads :

             ―     The laws previously in force in Hong Kong, that is, the
             common law, rules of equity, ordinances, subordinate legislation
             and customary law shall be maintained, except for any that
             contravene this Law, and subject to any amendment by the
             legislature of the Hong Kong Special Administrative Region.‖
             [my emphasis]


16.          The Ordinance was itself promulgated in 1964 and was
therefore in force on 1 July 1997. As such, all of the provisions of the
Ordinance are maintained except those that are found to contravene the
Basic Law.
                                        - 7 -


17.          The applicant contends that section 9B(4) of the Ordinance, in
compelling the Tribunal‘s hearings to be in camera, contravenes Article 39
of the Basic Law. This article reads :

             ― The provisions of the International Covenant on Civil and
             Political Rights, the International Covenant on Economic, Social
             and Cultural Rights, and international labour conventions as
             applied to Hong Kong shall remain in force and shall be
             implemented through the laws of the Hong Kong Special
             Administrative Region.

                 The rights and freedoms enjoyed by Hong Kong residents
             shall not be restricted unless as prescribed by law. Such
             restrictions shall not contravene the provisions of the preceding
             paragraph of this Article.‖


18.          The International Covenant on Civil and Political Rights (‗the
ICCPR‘) has been given its domestic voice in Hong Kong; that is, it has
been implemented through our laws, in the form of the Bill of Rights
Ordinance, Cap. 383 (‗the Bill of Rights‘).


19.          Article 14(1) of the ICCPR has been restated in Article 10 of
the Bill of Rights. Both those articles provide that persons whose rights and
obligations in law are to be determined by a tribunal shall be entitled to a
‗fair and public‘ hearing. In this regard, Article 10 of the Bill of Rights
reads :

             ― All persons shall be equal before the courts and tribunals. In
             the determination of any criminal charge against him, or of his
             rights and obligations in a suit at law, everyone shall be entitled to
             a fair and public hearing by a competent, independent and
             impartial tribunal established by law. The press and the public
             may be excluded from all or part of a trial for reasons of morals,
             public order (order public) or national security in a democratic
             society, or when the interest of the private lives of the parties so
             requires, or to the extent strictly necessary in the opinion of the
             court in special circumstances where publicity would prejudice the
             interests of justice; but any judgment rendered in a criminal case
                                        - 8 -

             or in a suit at law shall be made public except where the interest of
             juvenile persons otherwise requires or the proceedings concern
             matrimonial disputes or the guardianship of children.‖ [my
             emphasis]


20.          Although there are alternative avenues of approach (for
example, by having recourse to section 6 of the Bill of Rights), as I
understand it, the applicant contends that, in so far as section 9B(4) of the
Ordinance offends Article 14(1) of the ICCPR and Article 10 of the Bill of
Rights, it is inconsistent with the Basic Law and is therefore of no effect.


PRELIMINARY ISSUES

21.          In the course of his submissions, Mr Yue raised two
preliminary matters, each of which, he argued, prevented the applicant from
obtaining a determination of the substantive issue defined in the previous
paragraph. The first of these matters relates to what may loosely be called
the jurisdiction of this Court to allow the application for judicial review
when there exists an alternative route for seeking a remedy by way of appeal.
The second issue relates to whether the Tribunal is, in any event, bound by
the obligations laid down in the Bill of Rights and/or the ICCPR, the
Tribunal not being a ‗public authority‘.


      (a)    Whether judicial review is an appropriate remedy
22.          Mr Yue submitted that where, as in the present case, there
exists an alternative route for seeking a remedy; that is, by way of appeal,
then that route must first be taken. In this regard, the fundamental principle
upon which Mr Yue relied has been succinctly stated by Lord Scarman in R.
v. Inland Revenue Commissioners, ex parte Preston [1985] AC 835 (at 852) :
                                        - 9 -

             ― My fourth proposition is that a remedy by way of judicial
             review is not to be made available where an alternative remedy
             exists. This is a proposition of great importance. Judicial review
             is a collateral challenge: it is not an appeal. Where Parliament has
             provided by statute appeal procedures, as in the taxing statutes, it
             will only be very rarely that the courts will allow the collateral
             process of judicial review to be used to attack an appealable
             decision. ….‖


23.          Section 13(1) of the Ordinance does provide for an appeal
procedure from decisions of the Tribunal. Indeed, it seems that the
applicant originally chose to proceed by way of appeal but then, on advice,
abandoned his appeal in favour of this application for judicial review.
Section 13(1) reads :

             ― Subject to section 12(6), an appeal against any order made by
             a Solicitors Disciplinary Tribunal shall lie to the Court of Appeal
             and the provisions of Order 59 of the Rules of the High Court shall
             apply to every such appeal ….‖


24.          Section 13(1) further directs that the decision of the Court of
Appeal shall be final.


25.          It is Mr Yue‘s submission that in this case no exceptional
circumstances exist to justify avoiding the procedure mandated by
section 13(1) of the Ordinance. As he expressed it, the legislature has seen
fit to designate the Court of Appeal as the judicial body to oversee the
procedures and decisions of the Tribunal and it is to that body, therefore,
that this challenge should have been directed. Mr Yue noted that in any
event, should there be an appeal from this Court, such an appeal will lie to
the Court of Appeal.
                                       - 10 -


26.          Although the subject is, academically at least, a controversial
one, it is clear that in recent years the courts of England and Wales and
Hong Kong have increasingly adhered to the principle that the collateral
procedure of judicial review is not to be employed when alternative and
entirely appropriate remedies exist by way of appeal. In this regard, for
example, in the matter of Ng Pak Min v. HKSAR, HCAL No.70 of 1999, in
refusing an application for leave to apply for judicial review, Stock J (as he
then was) said :

             ― Judicial review is supposed to be an avenue of last resort, and
             it will only be in the most exceptional circumstances that a court
             would stop criminal proceedings in limine ….‖


27.          But while recent jurisprudence has sought actively to curtail a
proliferation of judicial review applications where structured avenues of
appeal are in place, it has always been recognized that this Court‘s
supervisory jurisdiction over administrative tribunals to ensure the integrity
of their procedures is in no way undermined or excluded in appropriate
circumstances. The difficulty, of course, lies in determining the appropriate
circumstances.


28.          In R. v. Inland Revenue Commissioners, ex parte Preston
(supra), Lord Templeton, in supporting Lord Scarman‘s principle that only
rarely will courts allow judicial review to be used to attack an appealable
decision, nevertheless prefaced this with the qualification (at 862) that
―judicial review is available where a decision-making authority exceeds it
powers, commits an error of law, commits a breach of natural justice,
reaches a decision which no reasonable tribunal could have reached, or
abuses its powers‖.
                                        - 11 -


29.          Lord Templeton went on to cite an earlier decision of the
House of Lords; namely, R. v. Inland Revenue Commissioners, ex parte
National Federation of Self-Employed and Small Businesses Ltd [1982]
AC 617, in which Lord Diplock stated (at 637) :

             ―judicial review is available only as a remedy for conduct of a
             public officer or authority which is ultra vires or unlawful, but not
             for acts done lawfully in the exercise of an administrative
             discretion which are complained of only as being unfair or
             unwise ….‖


30.          Clearly, an application for judicial review should not be
entertained when, in effect, the court is being asked to substitute its view of
the substance or merits of the dispute for that of the administrative tribunal.
But in the present case there is no factual issue to be resolved; indeed, the
professional conduct of the applicant, that being the dispute before the
Tribunal, is of no relevance to this application.


31.          Nor, in my judgment, can it be said that the alleged error of law
made by the Tribunal of which the applicant complains is integral to (or
even linked to) the substance or merits of the dispute before the Tribunal
and therefore a matter which properly should be resolved on appeal. The
issue of law here is not in any way dependent on the facts of the applicant‘s
conduct.


32.          If this application is entertained, what is required is the
resolution of a legal issue which not only affects this applicant but which
has far-reaching implications for all future persons whose professional
conduct is made the subject of a Tribunal inquiry. It may therefore be said
that the wider public interest, not merely the specific interests of the
                                        - 12 -


applicant, are to be determined. This is not to suggest in any way that an
‗advisory‘ declaration is being sought. The applicant seeks a ruling as to the
fundamental lawfulness of the Tribunal‘s proceedings, these being
proceedings which directly affect, he says, his fundamental rights enshrined
in the ICCPR and the Bill of Rights. But it will follow that a determination
of the issue by this Court will have wider implications for both the
solicitors‘ profession and the public whose interests (manifestly) the
legislature has sought to protect in the promulgation of the Ordinance.


33.          In a recent judgment concerning the appropriateness of
interrupting criminal proceedings in the magistracy to bring an application
for judicial review (Chow Shun Chiu v. HKSAR, HCAL No.763 of 2001), I
spoke of this Court‘s discretionary jurisdiction in the following terms :

             ― The long-established supervisory jurisdiction of this court will,
             of course, be used when the need arises to ensure the integrity of
             proceedings in the magistrates courts; that is, when matters go to
             the fundamental legality of the process, where, for example, it is
             alleged that the courts are acting without jurisdiction, that an abuse
             of power is being perpetrated or that the proceedings constitute a
             breach of natural justice.‖


34.          In the present case, I am satisfied that the applicant‘s complaint
relates to what I have in that earlier judgment described broadly as the
‗integrity of proceedings‘. What is challenged by the applicant is the
fundamental lawfulness of the proceedings to which he is subject. In
adhering to a statutory constraint which offends the Basic Law and is
therefore of no force or effect, argues the applicant, the Tribunal has
exceeded its jurisdiction.
                                      - 13 -


35.          Further to his submissions on the application of jurisprudential
principles, Mr Dykes argued that the ruling of the Tribunal under challenge
is clearly an interlocutory challenge. As such, he submitted, it was doubtful
that a right of appeal lay at this time to the Court of Appeal. It runs counter
to long-established legal policy, he said, to confer interlocutory rights of
appeal to the Court of Appeal against non-determinative decisions of
domestic tribunals when the emphasis in cases of this kind (i.e. disciplinary
hearings in respect of professional bodies) is always on the speedy
determination of the substantive matters. Interlocutory appeals, he said, ‗get
in the way‘ of this objective. Invariably, therefore, a right of appeal would
only lie in respect of final orders that determine the merits of the issues in
contention; in this instance, the disciplinary charges against the applicant.


36.          In support of his submissions, Mr Dykes said that the starting
point for interpreting the extent of rights of appeal from inferior tribunals to
the Court of appeal (or the Court of First Instance acting as an appellate
court) is that they will only relate to final orders unless there is a clear
intention to the contrary appearing in the relevant statute. In respect of the
Ordinance, he said, there is no clear ‗intention‘ to the contrary. In support
of his submissions, Mr Dykes relied on R. v. Yeung Wai Hung [1990] 2
HKC 86. This was, however, a case which turned upon a true construction
of section 105 of the Magistrates Ordinance, Cap. 227, and therefore, in my
view, is of very limited direct assistance in respect of the suggested
long-established policy.


37.          As to the provisions of the Ordinance concerning appeals to the
Court of Appeal, section 13(1) directs that an appeal shall lie against ‗any
                                       - 14 -


order‘ made by the Tribunal. That is a broad expression but section 12(1)
which relates to such orders says :

             ―An order made by a Solicitors Disciplinary Tribunal shall include
             a statement of its findings in relation to the facts of the case and
             shall be signed by the chairman or by a member authorized by the
             Tribunal.‖


38.          Section 12(2) requires any such order to be filed with the
Registrar and, in addition, for a note of that order to be entered on the role
of solicitors in connection with the solicitor who is the subject of the order.


39.          Section 10(2) of the Ordinance employs the word ‗order‘ when
it says :

             ― On completing an inquiry and investigation into the conduct of
             a solicitor or solicitor corporation and on being satisfied that the
             conduct of the solicitor or corporation so warrants, a Solicitors
             Disciplinary Tribunal can make any of the following orders—

                  (a) an order striking the name of the solicitor from the roll
                      of solicitors, or cancelling the approval of the
                      corporation under section 7C;

                  (b) an order suspending the solicitor from practice, or
                      suspending the approval of the corporation under
                      section 7C for such period as the Tribunal thinks fit;

                  (c) an order imposing conditions on the practice of the
                      solicitor or corporation that are to have effect for a
                      specified period of not more than 3 years;

                  ….‖ [my emphasis]


40.          In light of these provisions, it does appear to me that
section 13(1), which allows for an appeal against ‗any order‘ of the Tribunal,
must mean any order made under section 10(2); that is, a final order
determining culpability and imposing a sanction. Section 12(1) which
                                     - 15 -


directs that ‗an order‘ of the Tribunal shall include a statement of findings in
relation to the facts of the case would certainly appear to indicate that the
intention of the law makers was that the orders of the Tribunal from which
an appeal could be made would not be orders made in the course of the
proceedings but orders which, because they required a statement of factual
findings, would be orders related to the final determination of the issues.


41.          I believe Mr Dykes also makes a good point when he says that
it would not be appropriate, if orders of the Tribunal were to include
interlocutory orders related to the conduct of the proceedings, to require in
terms of section 12(2) that such orders be filed with the Registrar and
entered on the role of solicitors.


42.          In the circumstances, I am persuaded that the Ordinance does
not provide for interlocutory appeals to the Court of Appeal. That being the
case, if the applicant is forced to wait for a final determination of the
disciplinary proceedings before he can challenge their fundamental
lawfulness, the harm will already have been done and cannot, if that is the
sole issue on appeal, be effectively redressed. The logic, I think, is clear. If
the applicant contests only the nature of the proceedings in that they were
held in camera but otherwise has no challenge, where lies the purpose in
vitiating those otherwise uncontentious proceedings and having them heard
again, solely so that this time the public will be allowed entry? Yes, the
principle may be made but at what delay and at what cost?


43.          In the result, both in principle and on a construction of
sections 10, 12 and 13 of the Ordinance, I am satisfied that this challenge to
                                       - 16 -


the lawfulness of the Tribunal‘s proceedings has properly been brought to
this Court.


      (b)     Is the Tribunal a public authority?

44.           It was Mr Yue‘s contention that the Tribunal is not a ‗public
authority‘ as that term is employed in section 7 of the Bill of Rights.
Accordingly, the Tribunal is not subject to the obligations imposed by
Article 10 of the Bill.


45.           Section 7(1) of the Bill of Rights reads as follows :

              ―This Ordinance binds only—
               (a) the Government and all public authorities; and
               (b) any person acting on behalf of the Government or a public
                   authority.‖


46.           In respect of Article 14(1) of the ICCPR, Mr Yue argued that it
was for the legislature to decide to what extent the provisions of the
Convention should be extended to Hong Kong. Hence the language of
Article 39, the first paragraph of which reads :

              ― The provisions of the International Covenant on Civil and
              Political Rights, the International Covenant on Economic, Social
              and Cultural Rights, and international labour conventions as
              applied to Hong Kong shall remain in force and shall be
              implemented through the laws of the Hong Kong Special
              Administrative Region.‖ [my emphasis]


47.           The Bill of Rights, said Mr Yue, is the application of the
provisions of the ICCPR into our law and the means by which the
provisions of the Convention are implemented through our laws. It would
therefore amount to a contradiction in terms to suggest that only
                                          - 17 -


Government and public authorities are bound in our law by the Bill of
Rights but that in our law the ICCPR has a broader reach and binds private
institutions.


48.             During the course of submissions it was not disputed that the
Tribunal, in exercising certain of its statutory powers, was performing a
public function and, as such, is amenable to judicial review. See, for
example, R. v. Bar Council, ex parte Percival [1991] 1 QB 212, in which
Watkins LJ, giving the judgment of the Divisional Court, said (at 228) :

                ―…. The General Council, which is an autonomous and wholly
                separate organisation from the Council of the Inns of Court, is
                fulfilling the role of a prosecutor exercising discretion in the
                sifting and assessment of complaints and empowered by its rules,
                when certain conditions are fulfilled, to prosecute that complaint
                before the disciplinary tribunal as an adjudicating body exercising
                powers delegated by the judges. The [Professional Conduct
                Committee] to whom those functions are delegated must carry
                them out in accordance with its own rules. Consequently, its acts
                and omissions can, in our view, be challenged by way of judicial
                review.‖

See also R. v. Solicitors Disciplinary Tribunal, ex parte L (unreported :
18 February 2000), a decision of the Court of Appeal in which it was
decided that a decision of the English disciplinary tribunal (similarly
constituted to the Hong Kong Tribunal) was amenable to judicial review in
respect of whether its hearing should or should not be in camera.


49.             But the fact that a body may fulfill certain public functions,
while an indicator, does not of itself elevate that body to the status of a
public authority.
                                      - 18 -


50.          The question of whether the Tribunal is or is not a public
authority in terms of the Ordinance is not an easy one. The term ‗public
authority‘ is not defined in the Ordinance nor is it defined in the
Interpretation and General Clauses Ordinance, Cap. 1. Nor does the ICCPR
itself, the fountainhead of our domestic legislation, provide any assistance.


51.          I note that the Human Rights Act 1998 specifically provides
that a public authority shall include ‗a court or tribunal‘ (section 6). But that
statute was promulgated well after our Ordinance and, in incorporating the
European Convention into domestic British law, reflects the will of
Parliament which may be very different from the intention of our own
legislature at the time it passed the Ordinance into law.


52.          There is, of course, ample authority to the effect that the Bill of
Rights, as a constitutional document protecting fundamental rights, must be
given a generous and purposive construction. See, for example, Tam Hing
Yee v. Wu Tai Tai (1991) 1 HKPLR 261. But, of course, a purposive
construction may only be applied when the purpose has been ascertained. In
that regard, I confess to sharing the difficulties expressed by Keith J (as he
then was) in Hong Kong Polytechnic University v. Next Magazine Ltd
(1996) 6 HKPLR 117 in which he said :

             ―…. Since I cannot discern what the phrase ‗public authority‘ in
             s 7(1) was intended to cover, I cannot apply a purposive
             construction to it.‖


53.          Halsbury’s Laws of England defines a public authority in the
following terms :
                                        - 19 -

             ―…. Broadly speaking, a public authority may be described as a
             person or administrative body entrusted with functions to perform
             for the benefit of the public and not for private profit. Not every
             such person or body is expressly defined as a public authority or
             body, and the meaning of a public authority or body may vary
             according to the statutory context. ….‖


54.          In Hong Kong Polytechnic University v. Next Magazine (supra),
Keith J expanded on that definition :

             ―…. In my view, for a body to be a public authority within the
             meaning of s 7(1) of the Bill of Rights Ordinance, it is not
             sufficient for it to be entrusted with functions to perform for the
             benefit of the public and not for private profit: there must be
             something in its nature or constitution, or in the way in which it is
             run, apart from its functions, which brings it into the public
             domain. It is unnecessary for me to identify what that might be: it
             may take the form of public funding, of a measure of
             governmental control or monitoring of its performance, or some
             form of public accountability. But something which brings it into
             the public domain there must be.‖


55.          Keith J in that passage echoes the words of Donaldson MR in R.
v. Panel on Take-Overs and Mergers, ex parte Datafin Plc [1987] QB 815
(at 838E) in which the Master of the Rolls, in respect of whether or not a
public function is being exercised, said that no single factor could be
determinative; what must be identified, however, is some ‗public element‘ :

             ―In all the reports it is possible to find enumerations of factors
             giving rise to the jurisdiction, but it is a fatal error to regard the
             presence of all those factors as essential or as being exclusive of
             other factors. Possibly the only essential elements are what can be
             described as a public element, which can take many different
             forms, and the exclusion from the jurisdiction of bodies whose
             sole source of power is a consensual submission to its
             jurisdiction.‖


56.          With no one factor being determinative and with the need to
view the nature of the Tribunal ‗in the round‘, I confess that I find it
                                      - 20 -


difficult to come to a finding that the Tribunal, a body created to monitor the
conduct of a single profession in Hong Kong, is a public authority. There is,
of course, a clear public interest in ensuring the proper conduct of the legal
profession. The powers given to the Tribunal indicate that the legislature is
aware of that interest and empowers the Executive to give financial support
to the Tribunal in the discharge of its statutory obligations. But, while the
rendering of financial support is clearly a matter of importance, I do not
consider it, taken on its own, to be determinative.


57.          In this regard, Mr Yue referred me to a decision of the Hong
Kong Barristers Disciplinary Tribunal (Hong Kong Bar Association v. Chua,
15 September 1994), the headnote of which reads (in part) :

             ―The Hong Kong Bar Association is a self-governing professional
             association made up of private individuals who mutually agree to
             abide by the Code of Conduct as governing their professional
             conduct and etiquette in the form existing from time to time. The
             fact that the Bar Association has statutory recognition and is
             entrusted with statutory powers in relation to disciplinary matters
             does not make the dispute any less of an inter-citizen dispute. Nor
             is the mere fact that there is an element of public interest in the
             promulgation of any part of the Bar‘s Code sufficient to equate the
             Hong Kong Bar Association to that of a public authority or a body
             in the performance of any public function.‖


58.          But, as Mr Dykes emphasized, the Tribunal has jurisdiction not
only over private individuals who mutually agree in entering the profession
to abide by a code of conduct but over employees of solicitors and foreign
lawyers : conveyancing clerks and accountants, messengers and the like.
These are not persons who have entered into any sort of covenant. They
represent a section of the broader public, albeit within the sphere of legal
employment.
                                      - 21 -


59.          Mr Dykes pointed to the powers of the Tribunal contained in
section 11 of the Ordinance, that is, all such powers as are vested in the
Court of First Instance, including the power to punish for contempt by
ordering imprisonment.


60.          As I have earlier indicated, Mr Dykes said that the Tribunal,
unusually, receives direct financial support from the public purse for its
work. In this regard, section 25(1) of the Ordinance reads :

             ―   (1) The expenses incurred by—

                     (a) a Solicitors Disciplinary Tribunal; and

                     (b) the Society, in connection with proceedings before a
                         Solicitors Disciplinary Tribunal and any appeal under
                         section 13,

             may be paid to the Society out of general revenue upon a
             certificate issued by the Secretary for Justice.‖

This section, I believe, is to be read in conjunction with sub-sections 10(2)(c)
and (l) which enable the Tribunal to impose financial penalties not
exceeding $500,000 which are to be paid into the general revenue.


61.          The fact that the legislature has seen fit to provide financial
support to the Tribunal is, as I have said, a matter of central materiality in
deciding whether, in its nature or constitution, the Tribunal has been brought
into the public domain. But government funding is often given to private
enterprises. It remains, therefore, for me to look at the Tribunal ‗in the
round‘. I accept the force of the submissions made by Mr Dykes that the
Tribunal‘s jurisdiction extends to all those who choose to make their living
in that field of endeavour reserved to solicitors : professionals and
non-professionals alike; that it can send people to jail for contempt :
                                        - 22 -


solicitors and non-solicitors; that it receives funding from the public purse
and can order fines payable into that purse. Clearly, it has been delegated
by the legislature to carry out certain public functions, making it susceptible
at least to review by this Court. But that being said, I am not persuaded that
these matters, taken individually or together, bring the Tribunal sufficiently
into the public domain or imbue it with such a public character that it can
properly be called a public authority in terms of the Ordinance. However, in
the event that I am wrong in that regard, I move on to consider the substance
of the application.


ENTITLEMENT TO A PUBLIC HEARING : THE SCOPE OF THE
PROTECTION

62.           The right to a public hearing provided for in Article 14(1) of
the ICCPR and Article 10 of the Bill of Rights is a right which accrues to an
individual in ‗the determination of any criminal charge against him‘ or in
the determination of ‗his rights and obligations in a suit at law‘. The
language is broad. It anticipates that the determination of a criminal charge
or the determination of civil rights and obligations may involve a number of
hearings by different tribunals; for example, a preliminary hearing, the trial
itself and then one or more review or appeal hearings.


63.           Article 6(1) of the 1950 European Convention on Human
Rights is worded in almost identical language. The relevant portion of the
article reads :

              ― In the determination of his civil rights and obligations or of
              any criminal charge against him, everyone is entitled to a fair and
              public hearing within a reasonable time by an independent and
              impartial tribunal established by law. ….‖
                                       - 23 -


64.          In interpreting Article 6(1), the European Court of Human
Rights has developed a body of jurisprudence to the effect that, where
successive bodies are provided to determine a criminal charge or civil rights
and obligations, the Convention does not require that each of these bodies
should meet the standards set in the article. Indeed, the court has recognised
that there may be occasions where :

             ―…. The prior intervention of administrative, professional or
             judicial bodies not satisfying all of those requirements may be
             justified in the interests of flexibility and efficiency.‖

(Le Compte, Van Leuven & De Meyere v. Belgium (1981) 4 EHRR 1)


65.          What, however, Article 6(1) of the Convention demands as a
minimum requirement is that :

             ―…. either the jurisdictional organs themselves comply with the
             requirements of art 6(1) or they do not so comply but are subject
             to subsequent control by a judicial body that has full jurisdiction
             and does provide the guarantees of art 6(1).‖

(Albert & Le Compte v. Belgium (1983) 5 EHRR 533)


66.          In interpreting Article 10 of the Bill of Rights — its wording,
as I have said, being almost identical to Article 6(1) of the Convention —
our Court of Appeal has borrowed from the jurisprudence of the European
Court. There are a number of examples.


67.          In R. v. Lift Contractors’ Disciplinary Board, ex parte Otis
Elevator Co. (HK) Ltd (1995) 5 HKPLR, Otis Elevator, on an application to
this Court for judicial review, claimed that by its constitution the
Disciplinary Board was not an independent and impartial body and thereby
                                       - 24 -


offended Article 10 of the Bill of Rights. The matter was taken to the Court
of Appeal, the headnote to its judgment reading :

            ― (2) Where a statute provides for different bodies to deal
            successively with disciplinary complaints against professional
            persons, art 10 of Bill of Rights does not require that each of those
            bodies should meet the standard set forth in that article. It suffices
            that either the jurisdictional organs themselves comply with the
            requirements of art 10, or they do not so comply but are subject to
            subsequent control by a judicial body that has full jurisdiction and
            does provide the guarantees of art 10. Albert and Le Compte v
            Belgium (1985) 5 EHRR 533 followed.

                (3) The expression ‗tribunal‘ in art 10 of the Bill of Rights is
            not confined to bodies such as the disciplinary board established
            under s 11E(1) of the Lift and Escalators (Safety ) Ordinance, but
            is broad enough to encompass courts of law or appellate courts, if
            those come within the scheme by which the individual‘s rights and
            obligations are ultimately to be judged.

                (4) Any person aggrieved by an order of the Disciplinary
            Board has, under s 11I, a general right of appeal to the High Court
            which may confirm, reverse or vary the order of the Board. Such
            an appeal is by way of re-hearing, and the court has power to
            receive further evidence on questions of fact, orally or by affidavit.
            The existence of such an appeal will cure whatever defect there
            may be in the proceedings before the Disciplinary Board.‖


68.         In the later decision of Ma Wan Farming Ltd v. Chief Executive
in Council and another [1998] 2 HKC 190, Liu JA said (at 202) :

            ― …. Article 10 does not demand that the procedure which
            determines civil rights should meet its requirements at all stages.
            It is enough to receive a fair trial at any one stage: ‗… the
            Convention calls at least for one of the following systems: either
            the jurisdictional organs themselves comply with the requirements
            of art 6.1, or they do not so comply but are subject to subsequent
            control by a judicial body that has full jurisdiction and does
            provide the guarantees of art 6.1.‘ ….‖


69.         What must be considered, therefore, is what Mr Yue has
described as the ‗statutory scheme‘ within which a criminal charge or civil
                                       - 25 -


rights and obligations in a suit at law are determined. In other words, as I
see it, what is to be considered is the whole process which leads to the final
resolution of the matter. Assuming that the trial hearing or inquiry at first
instance does not comply with the demands of Article 14(1) of the ICCPR
or Article 10 of the Bill of Rights, what must then be determined is whether
there is sufficient subsequent judicial control to ensure that the final
determination does accord. But what is deemed to be sufficient? In R. v.
Lift Contractors’ Disciplinary Board, ex parte Otis Elevator Co. (HK) Ltd
(supra), Litton VP (at 88), in drawing from the jurisprudence of the
Strasbourg authorities said :

             ―…. even if the disciplinary tribunal established under s 11E(1) of
             the Ordinance fails to meet the requirements of art 10 by itself, s
             11I saves the scheme from Bill inconsistency; as the appeal is by
             way of re-hearing, the High Court has ample powers of control.‖
             [my emphasis]


70.          That does not, in my view, mean that there must be a full
re-hearing in the sense of a fresh trial taking place. What is required is that
the body to whom an application for review or an appeal may be made has
full jurisdiction to review the legality of the decisions made earlier in the
process and of the procedure followed. In this regard, assistance may be
obtained from the recent House of Lords decision in R (Alconbury
Developments Ltd ) v. Secretary of State for the Environment, Transport and
the Regions [2001] 2 WLR 1389. At issue was whether the powers of the
Secretary of State in respect of certain town planning and transport
legislation were incompatible with the provisions of Article 6(1) of the
Convention. In a unanimous decision, the House of Lords held that,
although the Secretary was not an independent and impartial tribunal, as his
decisions were subject to the scrutiny of the courts by way of judicial review,
                                        - 26 -


that was sufficient to ensure compatibility with the Convention. Lord Slynn
(at 1406) said :

             ―…. the question, as the European court has shown, is whether
             there is a sufficient judicial control to ensure a determination by an
             independent and impartial tribunal subsequently. The judgments
             to which I have referred do not require that this should constitute a
             rehearing on an application by an appeal on the merits. It would
             be surprising if it had required this in view of the difference of
             function between the minister exercising his statutory powers, for
             the policy of which he is answerable to the legislature and
             ultimately to the electorate, and the court. What is required on the
             part of the latter is that there should be a sufficient review of the
             legality of the decisions and of the procedures followed. ….‖

He continued (also at 1406) :

             ― It has long been established that if the Secretary of State
             misinterprets the legislation under which he purports to act, or if
             he takes into account matters irrelevant to his decision or refuses
             or fails to take account of matters relevant to his decision, or
             reaches a perverse decision, the court may set his decision aside.
             Even if he fails to follow necessary procedural steps—failing to
             give notice of a hearing or to allow an opportunity for evidence to
             be called or cross-examined, or for representations to be made or
             to take any step which fairness and natural justice requires—the
             court may interfere. The legality of the decision and the
             procedural steps must be subject to sufficient judicial control. But
             none of the judgments before the European Court of Human
             Rights requires that the court should have ‗full jurisdiction‘ to
             review policy or the overall merits of a planning decision. ….‖

Lord Hoffman (at 1416) said :

             ― The reference to ‗full jurisdiction‘ has been frequently cited in
             subsequent cases and sometimes relied upon in argument as if it
             were authority for saying that a policy decision affecting civil
             rights by an administrator who does not comply with article 6(1)
             has to be reviewable on its merits by an independent and impartial
             tribunal. It was certainly so relied upon by counsel for the
             respondents in these appeals. But subsequent European authority
             shows that ‗full jurisdiction‘ does not mean full decision-making
             power. It means full jurisdiction to deal with the case as the
             nature of the decision requires.‖ [my emphasis]
                                    - 27 -


71.          As earlier indicated, section 13(1) of the Ordinance provides
for an appeal against any order made by the Tribunal, that appeal lying to
the Court of Appeal. Section 13(1) further provides that the provisions of
Order 59 of the Rules of the High Court shall apply to any such appeal. In
the circumstances, I believe it is evident that the Court of Appeal has full
jurisdiction to deal with a decision of the Tribunal as in each instance the
nature of that decision requires.


72.          It should further be said that this Court too — as this present
application bears witness — has the power to review the legality of both the
Tribunal‘s decisions and the procedures adopted by it.


BUT DOES AN APPEAL FROM THE TRIBUNAL TO THE COURT OF
APPEAL CONSTITUTE A SUFFICIENT PUBLIC HEARING?
73.          Mr Dykes contended that the essence of a public hearing is one
which ensures that the public will know in advance that on a certain date an
identifiable person will engage in the determination of his or her civil rights
and obligations in a suit at law before a known tribunal. As he expressed it,
only in this way can the public make ‗meaningful‘ use of the right of access
to such a hearing. Accordingly, if the hearing at first instance, because of
statutory constraint, has been held in camera, the appeal hearing, in order
substantively to be curative of the defect at first instance, must ensure that
its public hearing will be one which allows the public to make meaningful
use of its right of access. A hearing which in some way lessens this right
will be only partially curative and will not comply with the requirements of
Article 10 of the Bill of Rights and/or Article 14(1) of the ICCPR.
                                        - 28 -


74.          Order 106, rule 12 of the High Court Rules, said Mr Dykes,
demands anonymity of the appellant in each and every appeal. As a result,
with the identity of the appellant withheld, the public is unable to make
meaningful use of its right of access.


75.          Order 106, rule 12 (already been cited in paragraph 11 of this
judgment) directs that the notice of originating motion by which an appeal is
brought must not name the solicitor who appeals but should state only that it
is in the matter of a solicitor who appeals in terms of the Ordinance. There
is no suggestion, however, that the omission of the name reduces the right of
the public to witness the hearing and to report fully on it. Indeed, an open
hearing is contemplated by the Ordinance. Section 13(4) of the Ordinance
reads :

             ― The hearing of every appeal under this section shall be in open
             court unless, and to the extent to which, the Court of Appeal may
             otherwise direct.‖


76.          In the Law of the European Convention on Human Rights by
Harris, O‘Boyle and Warbrick, the authors say the following at page 218 :

             ―Article 6(1) provides that ‗everyone is entitled to a …. public
             hearing‘. The purpose of this guarantee is to ‗protect litigants
             from the administration of justice in secret with no public
             scrutiny‘, thereby contributing also to the maintenance of
             confidence in the courts. The presence of the press is particularly
             important in this latter regard. Article 6(1) does not, however,
             require that the press be informed of a hearing or that a case be
             listed for the information of the press or the public generally: it is
             sufficient that they are not excluded. ….‖


77.          In Y. v. United Kingdom (1979 : number 8512/79) the
European Commission on Human Rights said :
                                      - 29 -

             ― The Commission has first considered the allegation that the
             hearing before the Court of Appeal was not ‗public‘. It considers,
             however, that, although the case might have been unlisted as
             stated by the applicant, the hearing was clearly ‗public‘ in the
             sense of Article 6 (1) of the Convention. It appears from the
             applicant‘s own submissions that members of the public were in
             fact allowed into the courtroom. Moreover, the applicant has in no
             way shown that the judicial authorities tried to exclude the press
             from the hearing ….‖


78.          Appeals from the Tribunal to the Court of Appeal are not
‗unlisted‘. Public notice is duly posted. This notice states the date, time and
venue and also describes the essential nature of the appeal, namely, that it
concerns a solicitor appealing in terms of the Ordinance. Nor, unless the
Court of Appeal otherwise directs, is the press in any way prevented form
reporting details of the appeal, such details to include the name of the
appellant. Section 5 of the Judicial Proceedings (Regulation of Reports)
Ordinance, Cap. 287 does not relate to an appeal hearing under the
Ordinance and render any reporting of it a contempt of court.


79.          In the circumstances, it would seem to me that the public is
given what Mr Dykes describes as ‗meaningful‘ access to appeal hearings.
The hearings are publicized (only the name is not), the public may attend
and all details, including the name of the appellant, may be reported. As
Mr Yue commented, an appellant who seeks public scrutiny may publicize
the hearing himself, giving his name out to the public.


80.          I have no hesitation in accepting the submission put forward by
Mr Dykes that the concealment of the identity of the parties to a suit may
offend the principles of open justice. But each and every case will depend
on its own circumstances. When an appeal is made from the Tribunal to the
                                        - 30 -


Court of Appeal, the only anonymity is to be found in the title of the notice
of originating motion and, from that, the public notice. Everything else is
known in advance including the nature of the proceedings. The hearing
itself is, however, fully open and, as I have said, the name of the appellant
may be reported both before and after the hearing with no sanction for
contempt. That form of proceeding, I am satisfied, complies with the
obligations imposed by Article 10 of the Bill of Rights and Article 14(1) of
the ICCPR.


IS THE TRIBUNAL A ‘COURT OF THE CLASSIC KIND’?
81.          The proceedings of some courts, said Mr Dykes, essentially
those courts which may be called ‗courts of the classic kind‘, are required to
comply with Article 10 of the Bill of Rights and/or Article 14(1) of the
ICCPR and if they fail to do so that defect cannot be remedied at a later
stage by way of appeal or review. The Tribunal, in the submission of
Mr Dykes, is a court of the classic kind. Accordingly, its failure to fully
meet the requirements of Article 10 of the Bill of Rights and/or Article 14(1)
of the ICCPR cannot be remedied at a later stage on appeal.


82.          In support of his submission, Mr Dykes has relied on a number
of judgments of the European Court; more particularly, De Cubber v.
Belgium (1984) 7 EHHR 236, where (at 248) the court said :

              ―       The thrust of the plea summarised above is that the
             proceedings before the Oudenaarde court [a criminal court] fell
             outside the ambit of Article 6(1). At first sight, this plea contains
             an element of paradox. Article 6(1) concerns primarily courts of
             first instance; it does not require the existence of courts of further
             instance. It is true that its fundamental guarantees, including
             impartiality, must also be provided by any courts of appeal or
             courts of cassation which a Contracting State may have chosen to
             set up. However, even when this is the case it does not follow that
                                       - 31 -

             the lower courts do not have to provide the required guarantees.
             Such a result would be at variance with the intention underlying
             the creation of several levels of courts, namely to reinforce the
             protection afforded to litigants.‖ [my emphasis]

The court continued :

             ― Furthermore, the case law relied on by the Government [of
             Belgium] has to be viewed in its proper context. The judgments of
             23 June 1981, 10 February 1983 and 21 February 1984 concerned
             litigation which was classified by the domestic law of the
             respondent State not as civil or criminal but as disciplinary or
             administrative; these judgments related to bodies which, within the
             national system, were not regarded as courts of the classic kind,
             for the reason that they were not integrated within the standard
             judicial machinery of the country. The Court would not have held
             Article 6(1) applicable had it not been for the ‗autonomy‘ of the
             concepts of ‗civil rights and obligations‘ and ‗criminal charge‘. In
             the present case, on the other hand, what was involved was a trial
             which not only the Convention but also Belgian law classified as
             criminal; the Oudenaarde criminal court was neither an
             administrative nor professional authority, nor a jurisdictional
             organ of a professional association, but a proper court in both the
             formal and the substantive meaning of the term. ….‖


83.          In the later case of Findlay v. United Kingdom (1997) 24
EHHR 221, the proceedings in question being a court martial, the European
Court said (at para. 79) :

             ―Nor could the defects referred to above be corrected by any
             subsequent review proceedings. Since the applicant‘s hearing was
             concerned with serious charges classified as ‗criminal‘ under both
             domestic and Convention law, he was entitled to a first instance
             tribunal which fully met the requirement of Article 6(1).‖


84.          De Cubber v. Belgium concerned proceedings in a criminal
court of first instance; Findlay v. United Kingdom concerned proceedings in
a military court with powers to impose criminal sanctions : imprisonment
and the like. Both of the courts under review can properly be called courts
                                    - 32 -


of the classic kind because, as was said in De Cubber, they are ‗integrated
within the standard judicial machinery of the country‘. Indeed, the
European Court in De Cubber specifically contrasted the criminal court with
‗disciplinary or administrative‘ bodies which it did not consider to be courts
of the classic kind.


85.          The Tribunal, argued Mr Dykes, satisfies the criteria for a court
of the classic kind. It has been given the powers of the Court of First
Instance in order properly to exercise its functions and, by reason of the
rights of appeal that lie from its decisions, it has been integrated into Hong
Kong‘s standard judicial machinery. Further, it exercises jurisdiction over
persons who are not qualified solicitors but only employees.


86.          It is a beguiling argument but I am firmly of the view that the
Tribunal, despite its enhanced powers, remains a disciplinary tribunal, no
different in its essential nature from many other disciplinary tribunals that
operate within a statutory framework in Hong Kong in order to regulate the
conduct of a particular profession or calling. It is true that employees of
solicitors and foreign lawyers are also subject to the jurisdiction of the
Tribunal. But nobody is compelled to take up work in that field and, once
employed and integrated into the ethical discipline of the profession, the
possibility of review by the Tribunal is an incident of employment. That is
to be contrasted, in my view, with courts in respect of which there is no
voluntary submission to their jurisdiction.


87.          The description of a court of law (that is, a court of judicature)
by Lord Scarman in Attorney-General v. BBC [1981] AC 303 in my view
makes manifest the difference between what in this present context is called
                                       - 33 -


a court of the classic kind and a body which is responsible for disciplinary
and/or administrative matters such as the Tribunal. In holding that a local
valuation court established for rating purposes was not a court of law and
was not an inferior court for the purposes of the Rules of the Supreme Court,
Order 52, rule 1, Lord Scarman said (at 359–360) :

             ― …. I would identify a court in (or ‗of‘) law, i.e. a court of
             judicature, as a body established by law to exercise, either
             generally or subject to defined limits, the judicial power of the
             state. In this context judicial power is to be contrasted with
             legislative and executive (i.e. administrative) power. If the body
             under review is established for a purely legislative or
             administrative purpose, it is part of the legislative or
             administrative system of the state, even though it has to perform
             duties which are judicial in character. Though the ubiquitous
             presence of the state makes itself felt in all sorts of situations
             never envisaged when our law was in its formative stage, the
             judicial power of the state exercised through judges appointed by
             the state remains an independent, and recognizably separate,
             function of government. Unless a body exercising judicial
             functions can be demonstrated to be part of this judicial system, it
             is not, in my judgment, a court of law.‖


88.          The fact that a body, such as the Tribunal, is given powers
preserved originally for courts does not — of itself — in my view change
the nature of that body. Today a great many tribunals and boards (to a
greater or lesser extent) have powers to compel the presence of witnesses
and the like; they also have powers to put in chain proceedings for
punishing contempt, if only by reporting the matter to the police. These
bodies no doubt exercise certain judicial functions and must certainly act
‗judicially‘. But I do not believe that they are thus transformed into courts
of the classic kind. In General Medical Council v. BBC [1998] 1
WLR 1573 (CA), the Court of Appeal found that the Professional Conduct
Committee of the General Medical Council was not a court within the
                                       - 34 -


meaning of the Contempt of Court Act 1981. In so doing, Stuart-Smith LJ
said (at 1580) :

             ―Mr. Henderson emphasised the importance which Lord Scarman
             attached to purpose, and he also emphasised the distinction drawn
             by all their Lordships between judicial and administrative
             functions. He submitted, correctly, that the P.C.C. of the G.M.C.
             has to adjudicate in a formal and judicial manner on very serious
             issues which are of public importance and may also have the
             gravest effect on the reputation and career of an accused medical
             practitioner. Mr. Henderson was correct in submitting that the
             P.C.C. is exercising a sort of judicial power but in our judgment it
             is not the judicial power of the state which is being exercised. In
             Attorney-General v. British Broadcasting Corporation [supra],
             the valuation court was part of the state‘s machinery of
             government, but an administrative part, and that explains the
             emphasis which the House of Lords placed on the distinction
             between judicial and administrative functions or purposes. In this
             case, by contrast, the P.C.C. is a statutory committee of a
             professional body specifically incorporated by statute. It exercises
             a function which is recognizably a judicial function, and does so in
             the public interest. It acts in accordance with detailed procedural
             rules which have close similarities to those followed in courts of
             law. Nevertheless it is not part of the judicial system of the state.
             Instead it is exercising (albeit with statutory sanction) the
             self-regulatory power and duty of the medical profession to
             monitor and maintain standards of professional conduct. ….‖ [my
             emphasis]


89.          In my view, that dicta is entirely apposite to the present case.
Whatever the differences in statutory powers, the Tribunal fulfills
essentially the same role as the English Professional Conduct Committee.
As such, the Tribunal is not part of the standard judicial machinery of the
Hong Kong Special Administrative Region; it is not therefore a court of the
classic kind as defined in De Cubber v. Belgium (supra).
                                   - 35 -


CONCLUSION

90.          For the reasons given in this judgment, I am satisfied that the
application must fail. The statutory constraint placed on the Tribunal to
hold its enquiries in camera is not, in my judgment, inconsistent with the
Basic Law. It does not offend Article 10 of the Bill of Rights. The
application must therefore be dismissed. There will be an order nisi
awarding costs to the respondent, that order to be made final within 30 days
of the date of this judgment unless an earlier application is made to argue
the matter of costs.




                                            (M.J. Hartmann)
                                   Judge of the Court of First Instance
                                               Hong Kong


Mr Philip Dykes, S.C., leading Mr Hectar Pun, instructed by
   Messrs Paul W. Tse, for the Applicant

Mr Benjamin Yu, S.C., leading Mr Johannes Chan, instructed by
   Messrs Lo, Wong & Tsui, for the Law Society of Hong Kong on behalf
   of the Respondent

								
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