Re Takeovers and Mergers Panel

HEADNOTE

[The judge has released this ruling for circulation]

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NO. 3825 OF 1995

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Coram: The Hon. Mr. Justice Keith in Chambers

Date of Hearing: 22nd January 1996

Date of Delivery of Ruling: 22nd January 1996

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RULING

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1. This is an application for leave to apply for judicial review of a decision of the Takeovers and Mergers Panel ("the Panel") to reprimand the Applicants for breaches of the Hong Kong Code on Takeovers and Mergers. The Applicants requested an oral hearing of the application for leave. Since they are entitled to such a hearing as of right under Ord. 53 r. 3(3), I directed that such a hearing should take place. The hearing before me today is that hearing.

2. The Applicants requested that the hearing of the application should be in chambers. I directed that the hearing should commence in chambers, and that it would be listed as a hearing in chambers. However, I also directed that I would first hear argument as to whether the hearing should continue in chambers. If I were to decide that the hearing should continue in open court, then the hearing would continue in open court.

3. The grounds on which the Applicants wish the hearing of the application for leave to be in chambers are the same as the grounds on which they wish the hearing of the substantive application, if leave is granted, to be in chambers. The hearings before the Panel which had resulted in the reprimands of the Applicants had been in private (as all disciplinary hearings of the Panel are), and the reprimands were administered privately. If the application for leave, and the substantive application if leave is granted, are heard in open court, the privacy of the proceedings before the Panel and of the sanction which the Panel imposed on the Applicants will be lost. Mr. Dennis Chang Q.C. for the Applicants has not told me that this is a case in which they would prefer to give up their challenge to the decisions of the Panel rather than to have the fact of the proceedings before the Panel and the private reprimands publicly known. But if decisions in private proceedings which are only amenable to review by judicial review can only be challenged by proceedings in open court, then persons aggrieved by such decisions, and who claim that they have been dealt with unjustly, may well be deterred from seeking the only form of redress available to them.

4. I cannot accept this argument. The guiding principle is that stated by Sir John Donaldson M.R. in R. v. Chief Registrar of Friendly Societies ex p. New Cross Building Society [1984] 1 Q.B. 227 at p. 235D-F:

"The general rule that the courts shall conduct their proceedings in public is but an aid, albeit a very important aid, to the achievement of the paramount object of the courts which is to do justice in accordance with the law. It is only if, in wholly exceptional circumstances, the presence of the public or public knowledge of the proceedings is likely to defeat that paramount object that the courts are justified in proceeding in camera. These circumstances are incapable of definition. Each application for privacy must be considered on its merits, but the applicant must satisfy the court that nothing short of total privacy will enable justice to be done. It is not sufficient that a public hearing will create embarrassment for some or all of those concerned. It must be shown that a public hearing is likely to lead, directly or indirectly, to a denial of justice."

In my judgment, the Applicants' concern in this case is no more than to avoid the embarrassment which the public disclosure of the disciplinary proceedings and the reprimand would cause. The facts that the proceedings took place and that the reprimands were administered in private are not, in my view, to the point. Proceedings in court, particularly proceedings by way of judicial review because they relate to decisions (whether decisions made in secret or not) made in the public field, must be held in public (unless required by Rules of Court be held in private) unless justice would be denied. I do not think that it is open to a litigant in a case such as this to "create" a denial of justice by saying that he would have to abandon the case if it was to be heard in public. That would enable such a litigant to obtain a hearing in chambers by simply threatening to withdraw his case if it was not going to be heard in private.

5. I recognize, of course, that the effect of holding these proceedings in public will be to convert the mild sanction of a private reprimand into the more serious sanction of a public reprimand. However, it is not necessary to go so far as to hold the proceedings in chambers to meet that concern. In my judgment, that concern can be met - to the extent that it is appropriate to meet it at all - by taking steps to ensure that the Applicants are not identified. That can be done by giving directions as to the way in which the case is to be listed, the way in which the various companies, individuals and dates are referred to in open court, the access by members of the public to the court file and to documents filed in court, the form of the judgment and the way in which the case is reported.

6. Mr. Chang submits that even if the substantive application is to be heard in open court, this application for leave to apply for judicial review should still continue to be heard in chambers. After all, most applications for leave to apply for judicial review are decided in the privacy of a judge's chambers without a hearing. I reject that argument as well. The fact of the matter is that the Applicants sought an oral hearing of the application for leave, and having done so, they cannot now rely on the fact that if they had not sought such a hearing, the application would have been decided in private.

7. For these reasons, I rule that this application for leave to apply for judicial review must continue in open court, and I shall adjourn for a short while to enable the court to be opened, and for counsel and myself to robe.

Representation:

Mr. Dennis Chang Q.C. and Mr. Philip Dykes, instructed by Messrs. Kao, Lee & Yip, for the Applicants