Target Insurance Holdings Ltd and Others v. The Stock Exchange of Hong Kong Ltd

HCAL 1343/2025

[2025] HKCFI 4546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1343 OF 2025

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J U D G M E N T

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A.  Introduction

1.This case raises the question of the lawfulness or propriety of a secretarial administrator’s involvement in the drafting of a regulatory or disciplinary decision made by a public authority.

2.By Form 86 dated 11 June 2025, the Applicants seek leave to apply for judicial review so as to challenge and quash a decision (“LRC Decision”) made by the Listing Review Committee (“LRC”) of the Putative Respondent (“Exchange”) on 6 May 2025.

3.The LRC Decision upheld the decision of the Listing (Disciplinary) Committee which found that the Applicants had committed certain breaches of the Listing Rules and imposed on them various sanctions. For the 1^st Applicant (“Company”), a public censure was imposed. For the 2^nd and 3^rd Applicants (“Directors”), the sanction imposed was a public censure and a public statement that, in the Exchange’s opinion, the retention of office by them may cause prejudice to the interests of investors (“PII Statement”).

4.Prior to the issue of the Form 86, the Applicants made an ex parte application for an anonymity order, by letter dated 2 June 2025. I granted that order. However, the Exchange submits that the anonymity order was and is unnecessary, and that it should be set aside. It issued a summons dated 31 July 2025 to that effect. As can be seen from the heading to this Judgment, I have acceded to the summons and I have lifted the anonymity order. I will address below the reasons for so doing.

5.On 16 September 2025, following a hearing on the same day, I gave my Decision [2025] HKCFI 4325, dismissing the Applicants’ disclosure/production summons dated 5 September 2025.

6.In accordance with my previous directions to bring the matter to a rolled-up hearing, that hearing took place on 29 September 2025. At the hearing: the Applicants were represented by Mr Hectar Pun SC, leading Mr Anson Wong Yu Yat and Ms Ferrida Chan; and the Exchange was represented by Mr Victor Dawes SC, leading Mr Joshua Chan and Ms Celeste Chan.

7.At the end of the hearing, I reserved my decision to be handed down subsequently. This is my Judgment.

B.  The Background

8.Because of the nature of the intended judicial review challenge, it is not necessary to go into any great detail about the disciplinary proceedings which led to the LRC Decision. It suffices to say that, on the factual material as set out in the LRC Decision, the LRC found that the Company breached Rule 2.13(2) of the Listing Rules in respect of information set out in various public announcements, and found that the Directors fell below the level of due diligence required for them properly to have formed the view on the materials available, and failed to procure the Company to make the appropriate announcements.

9.In the circumstances, the LRC considered that the imposition of a public censure on the Company was appropriate. Further, the LRC considered that the Directors’ breaches were serious as the information presented in the various announcements had been inaccurate, incomplete and materially misleading for a long period of time and across several announcements and had not even been updated in a timely manner when the Directors became aware of particular facts. Although the LRC took into account the mitigating factors presented, the LRC concluded that the Directors’ conduct may cause prejudice to the interest of the investors and the imposition of a PII Statement in respect of them was appropriate.

10.None of those matters are themselves the subject of any intended judicial review challenge. That is, there is no intended direct challenge to the approach taken in the LRC Decision. For example, it is not said that the sanctions imposed were in any way unlawful, that there was any procedural impropriety in the hearing, or that the sanctions imposed were in themselves irrational on the findings made and reasoning adopted by the LRC.

11.Instead, the judicial review application arises out of what followed from enquiries made by or on behalf of the Applicants in light of the fact that the LRC Decision was signed by (in fact, more accurately, by someone else signing for) the Acting Secretary, and not signed by any member of the LRC.

12.The LRC Decision was provided under a letter dated 6 May 2025. But by email the following day, and Officer of the Listing Division sent to the Applicants’ solicitors a “revised version” of the LRC Decision, said to incorporate a correction to a clerical error in §2. The correction was properly to describe in that paragraph the prior decision as to sanctions imposed by the Listing (Disciplinary) Committee.

13.By the Applicants’ solicitors’ letter dated 14 May 2025, they made a request to the Chairman and each member of the LRC for various details of the involvement of the Acting Secretary, arising from the fact that the LRC Decision had been signed by/for the Acting Secretary.

14.The Exchange’s response to the request for information was provided in a letter dated 20 May 2025, referenced in the Form 86. In summary, it stated:

(1)  The role of the Secretary in disciplinary review procedures is set out in the Disciplinary Review Hearing Procedures (“Procedures”).

(2)  The Secretary may be present during deliberations of the LRC for the purposes of providing administrative support, and the LRC may communicate its decision, findings and reasoning to the Secretary for assistance in recording the decision in writing.

(3)  The only communications between the Acting Secretary and the members of the LRC during the course of the review proceedings were for the purposes of providing administrative support.

(4)  The Acting Secretary did not engage in any communications with any members of the LRC in relation to the substantive merits of the proceedings.

(5)  Though the Acting Secretary was present during the deliberations of the LRC, he did not participate in those deliberations. Only the LRC members participated in the deliberations of the LRC.

(6)  The only evidence and submissions considered by the LRC in reaching the LRC Decision were the evidence and submissions presented in the hearing bundle and by the parties during the hearing. No additional evidence or submissions were considered by the LRC, and in particular no additional research conducted by the Acting Secretary was provided to or considered by the LRC.

(7)  The LRC Decision represents the decision, findings and reasoning of the members of the LRC and no one else. Prior to its issue, the LRC Decision was scrutinised by the LRC members who confirmed it accurately recorded the LRC’s decision, findings and reasoning.

(8)  Although the LRC Decision was signed and issued by the Secretary, as the point of contact with the LRC and for reasons of efficiency, the LRC Decision is the decision of the LRC.

15.This explanation was essentially repeated in the Exchange’s affirmation evidence filed by Tong Man Leuk, where Mr Tong explained the regulatory framework of the Exchange and the role of the Secretary to the LRC.

16.Dealing with the latter, Mr Tong said (with exhibit reference numbers omitted):

11. Membership in the LC and the LRC is a significant time commitment. In the case of the LRC, in 2024, the LRC held a total of 27 meetings with most members attending at least a quarter of these meetings. Further, members also need to spend substantial time preparing for review meetings, which often involve voluminous materials. In the present case, for example, the hearing bundle before the LRC comprise 606 pages.

12. To help reduce the workload, members of the LRC are supported by the Secretary to the LRC in respect of administrative matters. To elaborate:

12.1 The Secretary to the LRC is formally the Head of Listing; however, in practice, the functions of the Secretary are delegated to and carried out by members of the Policy and Secretariat Services team. A member of Policy and Secretariat Services team will be designated to act as the Acting Secretary to the LRC for each particular case.

12.2 Organizationally, the Policy and Secretariat Services team is part of the Listing Division. However, it is functionally separate from the other parts of the Listing Division, including in particular the Listing Regulation and Enforcement team, which is the team responsible for handling post-listing compliance matters of issuers (such as conducting investigations and bringing disciplinary proceedings). The Secretary functions impartially and does not have any interest in the outcome of the review.

12.3 The role of the Secretary in disciplinary review proceedings is specifically set out in the Disciplinary Review Hearings Procedures (“Procedures”), which have been designed to comply with the requirements of procedural fairness. Insofar as the preparation of decisions is concerned, paragraph 13.2 of the Procedures explains that the Secretary may be present during the deliberations of the LRC for the purposes of providing administrative support and that the LRC may communicate its decision, findings and reasoning to the Secretary for assistance in recording the decision in writing:

“The Secretary and any legal advisers to the Listing Review Committee may be present during the Listing Review Committee’s deliberations for the purposes of providing administrative and legal support. After the Listing Review Committee has deliberated and arrived at its decision, the Listing Review Committee may communicate its decision, findings and reasoning to the Secretary and/or advisers for their assistance in recording the decision in writing.”

13. In practice, the Acting Secretary will be present during the deliberations of the LRC for the purposes of providing administrative support and recording the LRC’s deliberations. However, the Acting Secretary will not participate in the deliberations of the LRC and will not conduct any research for the LRC (whether during the course of deliberations or at any other time). Only the LRC members will participate in the deliberations of the LRC.

14. After the LRC has deliberated and arrived at its decision, the Chairperson of the LRC will communicate the LRC’s decision, findings and reasoning to the Acting Secretary (who, as noted above, will be present during the deliberations) for assistance in recording the decision in writing. This will be done orally, with the Chairperson identifying for the Acting Secretary the points to be made in the written decision (not dictating the decision verbatim). The Acting Secretary will then reduce the LRC’s decision, findings and reasoning into a draft decision after the meeting (i.e. not in the presence of the LRC members). The Acting Secretary will then circulate the draft decision – which embodies the LRC’s decision, findings and reasoning and nothing more – to the chairperson in the first instance, then to the LRC members for review. The LRC members will scrutinize the draft and, whenever necessary, modify the draft to ensure that it is the product not of the Acting Secretary but of the LRC, properly reflecting the LRC’s meaning. Once the decision has been approved by the LRC, the Acting Secretary will then issue the decision on behalf of the LRC.

15. When preparing the draft decision, the Acting Secretary will be mindful that the draft must embody only the views of the LRC as communicated to the Acting Secretary, and be very careful not to allow any of the Acting Secretary’s own ideas in.

17.In the affirmation of Lam Chor Lai, Celia (Chairperson of the LRC panel) filed on behalf of the Exchange, she confirmed that the Exchange’s letter dated 20 May 2025 accurately reflects the decision-making process of the LRC, and that the decision-drafting process in the subject disciplinary review proceedings followed the general practice of the LRC as set out by Mr Tong in §§13-14 of his affirmation.

18.In response to request for information and/or documents in relation to that evidence filed, the Exchange’s solicitors subsequently replied confirming, amongst other things:

(1)  The deliberations of the LRC are not transcribed or recorded in writing. Such minutes as are kept – which were disclosed – do not record the details of deliberations.

(2)  The Acting Secretary is present during the LRC’s deliberations (albeit without participating in them), following which the Chairperson of the LRC will orally identify for the Acting Secretary the points to be made in the written decision. Those communications are not minuted or transcribed.

(3)  The Acting Secretary does not maintain any records of time spent on drafting of LRC decisions, including the LRC Decision.

(4)  No audio recording was taken of the LRC’s deliberations.

19.It can also be noted that the minutes which were provided show that the LRC had a short preliminary meeting of probably less than 10 minutes before the substantive hearing began with the parties present. There then followed the hearing, of which there is a full transcript, which lasted from 10:42am to 1:13pm. At the end of that hearing the Chairperson thanked the parties for attending, said that the LRC would consider the evidence and submissions, reach a decision communicated to the parties as soon as possible, and then invited the parties to leave the hearing. Thereafter, the minutes identify deliberation, and the making of the LRC Decision, ending at 2pm (so that the deliberation and informing the Acting Secretary of the decision, findings and reasoning for which his assistance was invited lasted about 45 minutes).

20.The Court’s attention was also drawn to the fact that the hearing bundle used before the LRC consisted of 606 pages, which did not include the parties’ respective submissions or the authorities on which they relied for any legal propositions.

C.  Grounds of Review

21.The grounds of review advanced are, in summary, that the LRC Decision is illegal and/or tainted with procedural impropriety, in that the LRC’s delegation of work to the Acting Secretary was ultra vires and/or rendered the LRC Decision unsafe and/or amounted to a breach of natural justice. Those grounds are said to arise out of the involvement of the Acting Secretary to the LRC in the production of a draft of the LRC Decision. The facts of his involvement are not in dispute.

22.In my earlier disclosure decision, I accepted that the pleaded challenge as made in the Form 86 seemed to be akin to a systemic challenge to the Exchange’s published procedure of delegating the drafting of written decisions to the Acting Secretary. I thought that clear from the whole structure of the pleaded challenge as well as its detail. The Form 86 at Section C.1 sets out the relevant legal principles said to be applicable – see below – with the emphasis that any involvement of a clerk in drafting a decision, even a first draft which is subject to later checking, “must in itself” be wrong. The conclusion of that section is in §61, which says in terms:

All in all, a tribunal’s delegation of drafting work to its clerk would be illegal and/or render it unsafe and/or amount to a breach of natural justice.

23.The following part of the Form 86 at Section C.2 expressly relies on the fact that the LRC “admitted” that the Acting Secretary was present during the deliberations of the LRC to provide administrative support and that after the LRC had deliberated and arrived at its decision, the LRC communicated its decision, findings and reasoning to the Acting Secretary for assistance in recording the decision in writing. Again referencing the dangers arising from another person taking over the role of writing the decision, even the first draft, it is suggested that the complex and nuanced nature of the arguments placed before the LRC further added to the danger that there could be thoughts and expressions which came into the LRC Decision which would not otherwise have been there had the LRC itself written its own decision. The Form 86 concludes that section in §68, which states:

In the circumstances, “there must be grave suspicion that at the very least justice does not appear to have been done”. The LRC’s delegation of work to the Acting Secretary was ultra vires and/or rendered the LRC Decision unsafe and/or amounted to a breach of natural justice. Therefore, the LRC Decision is illegal and/or tainted with procedural impropriety, and should be quashed.

24.However, in his oral submissions, Mr Pun emphasised that the Applicants were not making a systemic challenge as such, but making a challenge directed specifically at the LRC Decision (so that the only form of relief being sought was an order of certiorari to quash the LRC Decision, with no declarations sought).

25.This was in part because, as Mr Pun accepted that the Court of Final Appeal (“CFA”) in the Helen Chan case (see below) did not lay down a general proposition that it is impermissible for the drafting of a decision to be delegated to a clerk or secretary, but depending on the context because cases are context-specific. As he subsequently made it clearer in his reply submissions, he meant that it was accepted that there may be some circumstances where a clerk can assist in recording in writing the decision of the relevant tribunal, but actual delegation of the decision-making (hence drafting) powers given to the tribunal would always be unlawful.

D.  The Applicants’ Submissions

26.Mr Pun began his oral submissions by reference to the Form 86 at section A.4, which dealt with the Applicants’ arguments before the LRC having consisted of two major planks. The first was that the Listing Division had expanded its case considerably from the one presented at the hearing before the Listing (Disciplinary) Committee which was procedurally unfair. The second was that the Listing Division failed to discharge its burden of proving its allegations.

27.In support of the grounds of review, Mr Pun and his team relied on various Court of Appeal decisions. First, reference was made to Au Wing Lun William v The Solicitors Disciplinary Tribunal (unreported, CACV 4154/2001, 9 September 2002), where it is said that at §§8-16 Rogers VP examined in detail the role of a Tribunal clerk. Mr Pun submitted that the case identified two key factors which make it wrong for the clerk to draft findings for the Tribunal, as set out in §§12-13.

28.Materially, those two paragraphs state:

12. Of course, the Disciplinary Tribunal hearings in the present case were not open to the public and the Clerk to the Tribunal was not a party to the proceedings. Nevertheless it is vitally important that only the Tribunal should be involved in the decision-making process. The considerations of fairness which arise when persons other than the members of the Tribunal have access to the Tribunal in the absence of one or any of the parties are the same whether the proceedings are held in public or in private. In this case there is cause for concern that there has been a transgression in this respect. Natural justice dictates that there must not be any observations made to the Tribunal in the absence of the parties that might influence their decision. Actual influence of the Tribunal would be unthinkable. If the Clerk to the Tribunal takes part in the writing of the findings that, in itself, gives rise to a perception that that could have happened. It is difficult to imagine how anybody draft findings for a Disciplinary Tribunal before that Tribunal has made its order could avoid influencing the Tribunal both as to the order and as to the contents of the findings and the way they are framed.

13. There is another factor, however, which makes it wrong, in my view, for the Clerk to draft the findings. Even if the Tribunal made the decision itself, if the findings of those of another, the person subject to the complaint has no way of knowing whether the decision of the Tribunal was based upon flawed findings or reasoning.

29.In oral submissions, Mr Pun also made reference to §§14-16, which amongst other things made the following points:

(1)  Someone else’s explanation for or rationalisation of a decision is no substitute for the actual tribunal’s findings.

(2)  If the reasons presented for a decision are not those of the decision-maker, or do not appear to be so, it raises real concerns about the validity of the decision and the genuineness of the entire inquiry.

(3)  In the particular case, though the Court did not know exactly what did take place, it was clear that the findings were drafted before the Tribunal had given its decision and made its order.

(4)  In those circumstances, there must be grave suspicion that at the very least justice does not appear to have been done.

30.Reference was then made to Solicitor v Law Society of Hong Kong [2005] 3 HKLRD 622. At §2, Rogers VP again stressed the importance of the members of the Tribunal being the person to draft the decisions. At §22, Le Pichon JA (with whom Rogers VP and Burrell J agreed) observed:

22. What is essential in any judicial decision is that the parties involved should know exactly not only what the particular Tribunal has decided but the reasons therefore. It is not sufficient that others are permitted to articulate the reasons. The particular manner in which a decision is framed and the wording used is often vitally important. Not only that, the manner in which the Tribunal has indicated in this case that it saw fit to proceed would indicate that it would be open to the clerk to insert thoughts and expressions of his own, albeit subject to review by the Tribunal. As was said that must in itself be wrong. It would involve a person making suggestions to the Tribunal in secret and without the knowledge of the parties.

31.Reference was also made to Law Society of Hong Kong v Solicitor [2006] 1 HKLRD 49 at §24, where Rogers VP stated:

24. … This Court has on previous occasions emphasised the importance of the Tribunal itself writing its own decisions. As was pointed out in the judgment of Le Pichon JA in Solicitor & Another v Law Society of Hong Kong [2005] 3 HKLRD 622 at paras. 17-23, the wording used in the articulation of reasons is often vitally important. If others are allowed to take over the role of writing the decision, even the first draft, there is a danger that there could be thoughts and expressions which come into a decision which would not otherwise have been there had the Tribunal itself written its own decision. …

32.Reference was also made to §§25-29, where Rogers VP stated (in my summary, and amongst other points):

(1)  A person who has stood trial before a disciplinary body is entitled to have the body’s reasons for the decision, and not the reasons drafted by some other person.

(2)  On an appeal, the Court is concerned with examining the Tribunal’s reasons for the decision, and not with assessing the affidavit evidence of someone who may have added to, refined or subtracted from those reasons.

(3)  The course adopted by the Tribunal in appointing its own clerk involved not only the Tribunal delegating part of its own function to somebody who is not the Tribunal appointed under the statute, but ordering the solicitor to pay even part of the cost of the clerk is foisting on the solicitor the costs involved in the Tribunal appointing others to do its own work.

33.Further, reference was made to Kwong Ka Yin, Phyllis v The Solicitors Disciplinary Tribunal (unreported, HCAL 93/2004, 12 July 2006) where A Cheung J (as Cheung CJ then was) applied the above line of authorities and held at §34 that asking the clerk to conduct legal research on behalf of the Tribunal was ultra vires delegation. Hence, Mr Pun submitted that, a fortiori, asking the Acting Secretary to draft a decision on behalf of the LRC must be ultra vires delegation. Emphasis was also placed on the passage where the now CJ agreed with the general proposition that no person or to participate in the deliberations of a judicial or quasi-judicial body unless he is a member of it (even if there may be exceptions to that general rule).

34.As indicated above, Mr Pun submitted that the complex and nuanced nature of the Applicants’ arguments made before the LRC in this case adds further to the danger that there could be thoughts and expressions which come into the LRC Decision which would not otherwise have been there had the LRC itself written its own decision.

35.On the other hand, I think it can be noted that – in contrast to most if not all of the other authorities cited above – there is no actual suggestion of where the LRC Decision has gone wrong (apart from the reference in the Form 86 to the correction of two clerical or typographical errors subsequently made to §2 of the LRC Decision, correcting the description of the prior LC decision).

36.Mr Pun also submitted – by way of forensic points – that the Exchange’s evidence identifies further exacerbation of the danger in the particular circumstances of the present case because of various features. First, the Acting Secretary has not himself made an affirmation, and “such glaring omission is telling” (Mr Pun’s phrase). Secondly, Ms Lam’s evidence only confirmed that the general practice of the LRC set out by Mr Tong in his §§13-14 were followed, but she did not confirm that Mr Tong’s §15 was followed (see above). Thirdly, it is not clear how the Acting Secretary could accurately recall and record the findings and reasoning of the LRC where the Chairperson of the LRC only orally identifies for the Acting Secretary the points to be made in the written decision (not dictating it verbatim) and where there is no audio recording, minute or transcription of the communication from the Chairperson to the Acting Secretary.

37.In passing, it might also be said that it is telling that Mr Pun acknowledged in his skeleton argument that the Exchange would apparently rely heavily on the CFA decision in Medical Council of Hong Kong v Helen Chan (2010) 13 HKCFAR 248, but he simply said that the Applicants would carefully consider the Exchange’s submissions and respond in due course. Personally, I would have thought that there would have been some attempt to grasp that nettle in writing, but there was not.

38.It was only in his oral submissions that Mr Pun offered his response and comments on that case. He drew attention to various paragraphs – such as §§2, 17, 45, 60-64 and 65 – to submit that:

(1)  How individual disciplinary bodies and appeal boards and tribunals might be affected by the Helen Chan case will depend on their practices and the circumstances relevant to them.

(2)  The line of cases relating to the Solicitors Disciplinary Tribunal relied on by the Applicants were not over-ruled, not did Helen Chan say the legal principles stated in those cases were wrong.

(3)  The office of the Legal Adviser to the Medical Council is the creation of statute, as are the extent and limits of his powers. But that is not the situation as regards the Acting Secretary.

(4)  It is difficult to see how a tribunal could satisfy the requirements of competence, independence and impartiality if a non-member participated in the deliberative process by which it formed its views on the issues that it had to resolve.

(5)  Legal advisers like those in the Medical Council function impartially, and do not espouse one side or the other’s cause. Their allegiance is only to professional propriety under the law, and there is no reason to think that the sort of presence at deliberations and decision drafting which happens there would render a tribunal partial or make it appear so.

(6)  Institutionally, legal advisers and secretaries perform different duties, the latter’s role being purely administrative.

(7)  It is difficult, if not impossible, to draft for another person without letting in at least some of your own ideas.

(8)  The Medical Council had safeguards built into the practice concerned, which are not mirrored in the LRC.

(9)  How things would appear to the hypothetical fair-minded and informed observer would include the fact that the hypothetical observer must be taken to be aware of the relevant practice.

(10)  But, as regards the LRC practice, a hypothetical fair-minded and informed observer would reach the conclusion that there might be the appearance of bias.

E.  The Exchange’s Submissions

39.Mr Dawes submits that the intended judicial review challenge is without merit, not least because the practice adopted under the Procedures §13.2 was designed in the light of, and precisely follows, the guidance provided by the CFA in the Helen Chan case, a decision which postdates and has greater authority than the previous Court of Appeal and first instance decision is relied upon by the Applicants.

40.Mr Dawes made particular reference to §62 of the Helen Chan case, which stated:

62. It may be difficult to draft for another without letting in at least some of your own ideas. But I do not consider it impossible. What must be insisted upon when a legal adviser draft for a tribunal is as follows. The tribunal must deliberate without any participation by the legal adviser apart from giving legal advice. No drafting by the legal adviser may commence until after the tribunal – having so deliberated – has arrived at its decision and has made its decision, findings and reasoning known to the legal adviser. What the legal adviser drafts must embody the tribunal’s findings and reasoning. The tribunal must scrutinise the draft. If necessary, the tribunal must modify the draft to ensure that it is the tribunal’s product, not the legal adviser’s, and that it says what the tribunal means. The practice under which the Legal Adviser produces draft decisions for the Medical Council includes all of those safeguards. Indeed it includes a further safeguard, namely that the drafting is done in the Medical Council’s presence. This further safeguard is at least desirable. I leave open whether it is always essential for other Tribunal’s. In my view, the decision drafting in question does not compromise, or appear to compromise, the Medical Council’s independence.

41.Mr Dawes submitted that it is telling that the Applicants did not draw attention to the Helen Chan case in the Form 86, instead focusing on older authorities which, he submitted, are clearly distinguishable and should now be read as authorities confined to the facts of the cases in question.

42.Mr Dawes also submitted that the Exchange’s practice does not amount to any unlawful delegation, is not ultra vires, and creates no breach of natural justice.

43.There is no unlawful delegation, he submits, because:

(1)  What is prohibited is the delegation of the proper decision-maker’s powers, not the delegation of administrative tasks ancillary or incidental to the exercise of such powers: see Helen Chan at §43.

(2)  The mere presence of a third party at the meeting during which deliberations take place (without participation, and where the third party does not formulate grounds upon which the power is exercised) does not involve delegation of power: see Helen Chan at §§43-46.

(3)  The assistance of the third party in recording a decision in writing based on the decision, findings and reasoning made known to him by the proper decision-maker does not involve unlawful delegation of the latter’s powers, particularly when the written decision is reviewed and scrutinised by the proper decision-maker to ensure that it is the latter’s product and says what the latter means: see Helen Chan at §62.

44.Mr Dawes submits that the practice under Procedures §13.2 is not ultra vires because:

(1)  The starting point is that the Exchange is the master of its own procedure, unless there is express or implied statutory provision that prohibits it from adopting such a procedure: see Helen Chan at §32. But there is no such express or implied statutory prohibition in this case.

(2)  Rather, section 23 of the Securities and Futures Ordinance Cap 571 empowers the Exchange to make rules for such matters as are necessary or desirable for the proper regulation and the efficient operation of the market, under which provision the Exchange has made the Listing Rules.

(3)  The Procedures (including §13.2) were made by the LRC under Rule 2A .15 of the Listing Rules, which empower it to prescribe such procedures and regulations for any review meetings or hearings as it may think fit.

(4)  The Procedures were made for the purpose of achieving a just and expeditious disposal of disciplinary business before the LRC.

45.There is no breach of the rules of natural justice, Mr Dawes submits, because:

(1)  The Acting Secretary has no role in determining or formulating the findings against the Applicants.

(2)  The Acting Secretary does not participate in the LRC’s deliberations, and only drafts the decision letter after the LRC has made its decision, and does so based on the decision, findings and reasoning communicated to him by the LRC.

(3)  Even if there is a general duty for a public authority to give reasons for its decision – which is not the case here – it is permissible as a matter of principle for the reasons given by public bodies, such as the LRC, to represent a distillation of the collective views of multiple committee members.

(4)  Hence there is nothing unworkable or objectionable about the practice of seeking the assistance of a third party playing only an administrative role in recording that decision in writing.

(5)  Indeed, there is little or no difference between that process and the process which would have been engaged in if one of the members of the LRC drafted the decision letter personally. In both cases, the draft would essentially have to extract the key agreed conclusions from the deliberations of the committee members and provide a brief written summary of them.

46.Mr Dawes also submits that, if the evidence filed by the Exchange is accepted, it follows as a matter of fact that the Acting Secretary did not inject any of his own findings or reasons into the LRC Decision. Therefore, there is simply no factual basis for the intended challenge. Further, the forensic arguments advanced by Mr Pun do not cast any real doubt on the Exchange’s evidence.

F.  Analysis

47.First, it seems to me that the previous Court of Appeal decisions relied upon by the Applicants – though not over-ruled – are distinguishable from the current situation in the present case, where the much closer analogy is with the Helen Chan case:

(1)  The Court of Appeal cases were concerned with the practice of the Solicitors Disciplinary Tribunal, where the Tribunal’s clerk (a practising solicitor) was asked to draft the Tribunal’s findings and was remunerated for the work done.

(2)  Indeed, the apparent sense of some distaste that the clerk is a remunerated solicitor (and that the members of the Tribunal seem unprepared to act without remuneration) permeate the decisions.

(3)  In those cases, it became clear that the clerk played a substantive role in the drafting process which included conducting legal research and participating in the deliberations on the relevant findings and order.

(4)  As was pointed out, and what was clearly found to be unacceptable, was that the clerk was involved in drafting findings for the Tribunal even before that Tribunal had made its order.

(5)  That is, the clerk’s involvement was before the actual decision made by the Tribunal, and hence it was difficult to imagine how that could avoid influencing the Tribunal both as to the order and as to the contents of the findings in the way they were framed.

(6)  That is why there was a finding of unauthorised delegation.

(7)  It also seems to me that the facts of those cases did essentially identify that scenario (even if some comments were made about drafting after a decision has been indicated).

(8)  However, the situation of the LRC under the Procedures is fundamentally different, where the Acting Secretary performs his administrative role only after the LRC has made its decision (in the deliberation of which the Acting Secretary plays no role at all), and where the Acting Secretary writes the decision to record the findings, decision and reasoning communicated to him by the LRC.

48.Secondly, the Applicants have not put forward any facts which can properly challenge the sworn evidence produced by the Exchange that the LRC Decision was the result of the Procedures and that it accurately captured the substance of the decision, findings and reasoning of the LRC (and nothing else). I agree that the forensic points made by Mr Pun cast no real doubt on the Exchange’s evidence. I do not think there is anything in the point that the Acting Secretary has not himself given evidence (and it can even be envisaged that he would have been criticised as acting in a self-serving manner had he done so).

49.I also particularly note that much of the LRC Decision is a record of the relevant background, and the submissions made by the respective parties – where there is no criticism at all of those parts of the LRC Decision. The core aspect about which there might be any legitimate concern is only the last part of the decision – here 9 pages – containing the LRC’s analysis and conclusions. There is no good reason to think that the Acting Secretary was unable to understand and comply with the instructions given to him as to the drafting of that section, even if those instructions were not recorded in audio or written form. As Mr Dawes correctly identifies, it is a non sequitur to suggest that in those circumstances the Acting Secretary would somehow proceed to inject his own findings or reasoning into the LRC Decision.

50.The glancing reference made by the Applicants to the subsequent and minor correction of clerical or typographical errors in §2 of the LRC Decision takes the Applicants’ case nowhere. Those corrections were to provide the correct description of the prior LC decision, and to record with the practice of imposing a public censure on directors when one is imposed on the company, as well as to deal with the changed wording of the PII Statement (from “is prejudicial” to “may be prejudicial”).

51.Thirdly, I accept Mr Dawes’s submission that even if it could be said that there might be some slight difference in the precise language used, there is no basis to believe that the actual result, or reasoning, would be any different. As Mr Dawes says, there is only a bare assertion by the Applicants that their arguments before the LRC were of a complex and nuanced nature, and that is plainly insufficient to give rise to any reasonably arguable suggestion that the summary of the arguments in the LRC Decision was inaccurate, or that the reasoning in addressing those arguments was not properly open to the LRC when making the LRC Decision. In fact, it is noteworthy that neither of those points is actually suggested.

52.I reject the submission that any involvement of a clerk in drafting a decision, even a first draft which is subject to later checking, “must in itself” be wrong. That seems to me to be far too sweeping a suggestion, unsuited to covering all possible permutations of circumstances. I further reject the points made for the Applicants in the Form 86 at §§61 and 68 (see above).

53.I also reject Mr Pun’s submission that providing administrative “assistance in recording the decision in writing” is necessarily fundamentally different from “drafting the decision” or “making a first draft of the decision”. Whether that is correct seems to me to turn on the particular context. The key point is whether, in the particular context, the person who provides the assistance or does any drafting takes or may have taken any substantive part in the decision-making process. In this case, on the unchallenged evidence, the Acting Secretary heard the deliberations but took no part in them, and he had no part in the making of the decision, the findings or the reasoning. Instead, having been told those matters, he provided assistance in reducing the collective views of the LRC members into writing. The LRC members then scrutinised how that had been reduced into writing, and went through the necessary approval process to ensure that what was put in writing properly reflected what they had decided, what they had found, and the reasoning for their decision and findings.

54.In this context, there is also some force in the submission made by Mr Dawes that where a decision made is the collective decision of a number of members of a disciplinary body, there will always be a first draft by someone seeking to reduce into writing the collective views reached. That might be one of the members of the disciplinary body, or it might be someone else providing administrative assistance on the instructions of that body. The decision having already been made, the findings having already been identified, and the reasoning having already been reached, the reduction of those matters into a draft pending further scrutiny does not seem to me to be any substantive or improper involvement in the decision-making process.

55.I also accept that the LRC does not need to give very lengthy or detailed reasons for its decision, and I note that there is no suggestion in this case that the LRC Decision failed in any way to grapple with the submissions made, or set out a thought process which defies reason or logic.

56.Fourthly, it seems to me that the Procedures §13.2 identify a practice which is compliant with the requirements expressed by the CFA in the Helen Chan case at §62. I also note that Mr Pun’s reference to §65 of the same case seems to be against him. In that paragraph, headed ‘State the practice’, the CFA said the following:

One of the lessons which this case teaches us is this. In future it is desirable that the Legal Adviser should immediately before retiring and in the presence of the Medical Council and the parties in the hearing room make a full and accurate statement of the practice that will be followed, explaining clearly what will and will not be done. While failure to make such a statement will not of itself invalidate the Medical Council’s decision, the advantages of such a course are twofold. First, it should help to allay any suspicions of the parties. Secondly, it would serve to remind the Legal Adviser of his own limited functions in the retiring room and the Medical Council of its responsibility to reach its own decision and give its own reasons unprompted by the Legal Adviser.

57.It seems to me that the Procedures, in particular at §13.2, cover precisely that desirable ground. That paragraph of the Procedures: (1) gives an open, full and accurate statement of the practice that will be followed, explaining clearly what will and what will not be done; (2) should help to allay any suspicions of the parties; (3) will serve to remind the Secretary of his own limited functions; and (4) will serve to remind the LRC members to reach their own collective decision and to give their own reasons, unprompted by the Secretary. Indeed, those points identify that there was no arguable unlawful delegation of decision-making powers.

58.In so far as the present application was based on some part on an argument relating to apparent bias – which is at least not writ large on the drafting of the Form 86 – the above matters seem to me to make clear that the hypothetical fair-minded and informed observer, who would be taken to be aware of the published practice would, in the absence of evidence to the contrary, credit a responsible body such as the LRC with adherence to the safeguards of its practice: see Helen Chan at §64.

59.Fifthly, I do not accept Mr Pun’s submissions by which he sought to distinguish or take some benefit from the Helen Chan case. In addition to the points I have already made, I do not think it important whether the person providing assistance is a lawyer or not, so long as the person providing the assistance knows his role, and importantly the limits of that role. Whilst it may be correct that a lawyer owes some allegiance to professional propriety under the law, that does not mean that the Acting Secretary to the LRC would not understand his duty of professional propriety in assisting in recording in writing only the decision, findings and reasoning already made and conveyed to him. The fact that the Legal Adviser to the Medical Council drafts the decision in the presence of its members, whereas the Acting Secretary provided his drafting assistance not in the presence of the LRC members, does not seem to me to identify any arguable unfairness.

60.Sixthly, Mr Pun also sought to make something of the size of the hearing bundle before the LRC – 606 pages, not including the submissions and authorities – and the limited time of around 45 minutes apparently taken over the deliberation and reaching the decision as was informed by the LRC members to the Acting Secretary. In so far as this was a veiled suggestion that there could not have been a proper consideration by the LRC members so that the drafting process necessarily would have trespassed on decision-making, I reject that suggestion: (1) as I have identified in previous decisions, it is to be remembered that the LRC review process is essentially one focused on the written materials, albeit with a relatively short opportunity for oral explication and exploration; (2) as a result, the LRC members will and do spend considerable time in reading, preparation and consideration even before the oral hearing takes place; (3) the number of pages in the hearing bundle does not necessarily correlate to the degree of difficulty in making the necessary decision, or the time needed for doing so; and (4) the LRC members are chosen for their specific areas of market experience and expertise, which it might be assumed they can bring definitively to bear without needing any delay.

61.Overall, I do not think it is reasonably arguable that the LRC Decision is illegal or tainted with procedural impropriety, or the appearance of bias, or that it should for any reason be quashed.

G.  Result

62.For the reasons outlined above, therefore, it seems to me that the Applicants have failed to identify any reasonably arguable public law grounds of review with any realistic prospect of success. The application for leave to apply for judicial review is dismissed.

63.Nevertheless, whilst I have dismissed the application for leave to apply for judicial review, I think it appropriate to make a comment as regards the apparent practice that decisions of the LRC are or can be signed by the Secretary or Acting Secretary. It seems to me that it would at least be better practice for decisions of the LRC to be signed either by the Chairperson of the LRC decision-making panel, or at least by one member of the panel, on behalf of the panel as a whole. I cannot see any particular additional practical difficulty or inconvenience in adopting that better approach to the signing of each decision.

H.  Anonymity Order Lifted

64.Now that I have dismissed the application for leave to apply for judicial review, it is obvious that the LRC Decision will be published. That publication will inevitably identify the Applicants as the subject of the LRC Decision and the sanctions imposed by it. Bearing in mind the nature of the sanctions, that is entirely appropriate. Therefore, as a practical matter, maintaining the anonymity order for the purpose of these proceedings is pointless. However, if I were to lift the anonymity order only on that basis, I accept that it would be appropriate to grant a stay of doing so, pending the Applicants’ ability to consider this Judgment within the period for any appeal.

65.Nevertheless, and in any event, I think that Mr Dawes is correct when he says that the circumstances upon which the application for anonymity was made were insufficient to have supported the application. I accept, on inter partes consideration, that the anonymity order either should not have been made, or should now be lifted.

66.The anonymity order was sought on the basis that it was necessary to protect the Applicants’ reputation, because if their identities were made public through the public nature of the judicial review proceedings it would cause irreparable damage to their reputation even if they were to succeed in the judicial review. However, Mr Dawes has reminded me of my own previous decision in X and Y v Z [2020] HKCFI 826 at §§62-67, where I traversed the exacting standards of strict necessity needed to justify a derogation from the ordinary principles of open justice. I might again summarize those principles as follows:

(1)  The starting point and general rule of open justice is that judicial proceedings are held in public and the parties are named in judgments. It is well settled that open administration of justice is a fundamental principle of common law.

(2)  The principle is of importance, from the perspective of administration of justice, for a number of reasons. Amongst them are that: the public nature of proceedings deters inappropriate behaviour on the part of the court; it maintains the public’s confidence in the administration of justice; and it makes uninformed and inaccurate comment about proceedings less likely.

(3)  Derogations from the general principle of open justice can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice.

(4)  Any derogation granted, where justified, should be no more than strictly necessary to achieve the purpose.

(5)  The grant of derogations is not a question of discretion. It is a matter of obligation, and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test. Any question of derogation from open justice is always fact specific.

(6)  The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence.

(7)  Where an applicant fears risk to life or safety, whether of themselves or others, it must be clearly articulated. Where there is a proper articulation, that is a basis to have proceedings anonymized.

(8)  The court will have regard to the respective and sometimes competing rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings.

(9)  However, there is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of exclusion of the public can justice be done. Anonymity will only be granted where it is truly necessary, and then only to the extent that it is necessary.

(10)  It is also clear that there are various matters which do not by themselves justify any restriction on open administration of justice, including that publicity might lead to embarrassment and inconvenience or damage to professional reputation, or that publicity might lead to economic damage, even very severe economic damage.

(11)  However, open justice is a means to an end. Where the open administration of justice would frustrate the ultimate aim of doing justice, that would be the most important, if not decisive, consideration to be taken into account when balancing the relevant interests, rights and freedoms involved.

(12)  It may be necessary to depart from the general rule where the nature or circumstances of the particular proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice.

(13)  Where the disclosure of information would carry with it a substantial risk to the administration of justice, the court is likely to exercise its discretion to preserve confidentiality to the extent necessary.

(14)  The court will be astute not to deter a party from pursuing his case either freely or at all because bringing the case might jeopardise his safety or other well-being. That would also be to jeopardise the administration of justice.

(15)  If restrictions on open justice are justified, this may take many forms.

67.By reference to those principles, I accept Mr Dawes’s submission that there was no circumstance advanced for the Applicants as properly justified a derogation from open justice in this case. Where the only ground relied upon was damage to reputation, that was not sufficient for the grant of an anonymity order.

68.Mr Pun accepted in submissions that, if this were to be the basis of the lifting of the anonymity order, and then the lifting of it would not be stayed.

69.It is perhaps also correct that it is not clear why the hearing of this application in public would harm or would have resulted in harm to the Applicants’ reputation. The proceedings have focused on a narrow point of law relating to the delegation of drafting, and there has been no need to traverse the disciplinary findings made by the LRC Decision in any detail – though the fact of the imposition of a public censure and PII Statement is revealed.

70.I also accept Mr Dawes’s submission that the granting of anonymity orders in relation to challenges to Exchange disciplinary proceedings for no reason other than to prevent the public from knowing that the applicants have been subject to disciplinary action by the Exchange could have very negative consequences, which can and should be avoided. Not only would such orders involve a substantial derogation from the open justice principle, it might encourage parties routinely to apply for judicial review and anonymity orders perhaps only for the purpose of delaying publication of sanctions. That might have the adverse effects of requiring the Court to deal with unmeritorious applications and undermining the timeliness and effectiveness of the Exchange’s disciplinary processes.

I.  Costs

71.I see no reason why the costs should not follow the event. Therefore, I order both the Exchange’s costs of opposing the application for leave to apply for judicial review, and the costs of its summons dated 31 July 2025 seeking to set aside the anonymity order, to be paid by the Applicants to be taxed if not agreed, with certificate for two Counsel.

Mr Hectar Pun SC, Mr Anson Wong Yu Yat, and Ms Ferrida Chan, instructed by Jingtian & Gongcheng LLP, for the applicants

Mr Victor Dawes SC, Mr Joshua Chan, and Ms Celeste Chan, instructed by MinterEllison, for the putative respondent