Re A Committee of Inquiry Ex Parte a Barrister

HCMP001906/1988

M.P. No. 1906 of 1988

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Headnote

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Conduct of Disciplinary proceedings against a Barrister. Method of appointment of a Committee of Inquiry. Relationship of the said Committee with the Committee of the Bar Association. Application of the Rules of Natural Justice.

Power of a Committee of Inquiry to make an order for costs against a Barrister.

Held

No prohibition would be granted to prevent the Committee of Inquiry from continuing with their inquiry. However an order of Certiorari would issue in respect of the costs order made by the said Committee.

M.P. No. 1906 of 1988

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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RE : A COMMITTEE OF INQUIRY ex parte A BARRISTER

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Coram: The Hon. Mr. Justice Mayo in Court (sitting in Camera)

Date of Hearing: 5th-9th December 1988

Date of delivery of Judgment: 23rd December 1988

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JUDGMENT

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1. The Applicant is a Barrister. In October 1987 the Registrar of the Supreme Court communicated with the Bar Association and asked various questions concerning the Applicant's right to practice.

2. On the 4th of November 1987 the Bar Committee advised the Applicant that it was making an application to the then Chief Justice for the Appointment of a Committee of Inquiry. On the 13th of November it did so and the applicant was advised of this on the 16th of November.

3. On the following day the Chief Justice signed an instrument of Appointment appointing a Committee of Inquiry. The Committee consisted of The Chairman (The Chairman), a 2nd Silk (The 2nd Silk) and another Barrister (The other member).

4. It is common ground that when The Chairman of the Bar Association wrote to the Chief Justice he put forward the names of the 3 Barristers who were subsequently appointed recommending them as suitable candidates in accordance with a long-standing practice to this effect.

5. The Applicant was not informed of this. However on the 7th of December he wrote to the Bar Committee requesting a copy of The Chairman's letter to the Chief Justice and a copy of this was furnished to him before the end of December.

6. There was then some delay. On the 17th of March 1988 The Chairman of the Committee of Inquiry wrote to the solicitors acting for the Bar Association asking them to discontinue their investigations and to proceed with the Inquiry on the basis of the material then in their possession.

7. Prior to writing this letter The Chairman had on 3 or 4 occasions spoken to the Barrister representing the Bar Association (The Bar's Counsel) and on these occasions had inquired about progress. On the last occasion he had given to the Bar Counsel a similar direction to that contained in the 17th of March letter.

8. Attempts were then made by The Chairman to get the Inquiry on its feet. He proposed that there should be a "pre-trial summons for Directions" so that the issues could be defined and if possible evidence could be agreed. The first attempt to arrange a meeting backfired as the Applicant was not directly requested by The Chairman to attend. This being the case he did not do so. However this was put right and there was a meeting on the 30th of March when various matters were agreed. Unfortunately all did not go smoothly. There was a further exchange of correspondence and it is now evident that The Chairman did communicate with the Bar Committee's solicitor and indeed drafted a letter for the solicitors to send to the Applicant.

9. On the 21st of April the Applicant's solicitors wrote to the Bar Committee's solicitors indicating that he objected to the Inquiry proceeding.

10. After various delays there was a hearing which commenced on the 2nd of July. At this hearing the Applicant made submissions to the effect that all members of the Committee of Inquiry should recuse themselves.

11. A Decision was handed down by the Committee of Inquiry on the 12 July. The Committee of Inquiry declined to discontinue the Disciplinary Inquiry. Reasons were given for this Decision.

12. It is essentially this Decision which is the subject matter of the Applicant's application before me for Judicial Review.

13. I consider that the most satisfactory way of outlining the issues before me is for me to incorporate in this judgment the relief which is being sought by the Applicant and the Grounds upon which it is based.

"Relief Sought"

GROUNDS ON WHICH RELIEF IS SOUGHT

A: GROUNDS FOR PROHIBITION

B: GROUNDS FOR CERTIORARI

14. I have attempted to provide a very brief summary of the facts in the hope that this will give some idea of the background to this matter.

15. I would observe that the Applicant, The Chairman of the Inquiry, The 2nd Silk, The other member, The Chairman of the Bar Committee, and the Bar's Counsel have all sworn affidavits.

16. There is very little in the way of factual dispute in these proceedings. There is however a considerable dispute between the parties over the Applicant's state of mind and what he believes. I will during the course of this judgment attempt to deal with these differences in accordance with my findings on the law.

17. The final matter I will like to deal in this introduction is to state that the Applicant and the Bar Committee were represented at the hearing before me.

18. The Committee of Inquiry did not appear and accordingly all I had before me was their affidavits. I did however permit Mr. Mills-Owens for the Bar Committee to make submissions which also embraced the position of the Committee of Inquiry. I found these submissions to be very helpful.

19. Mr. Keane for the Applicant submitted that the grounds in support of the application clearly demonstrated that the Committee of Inquiry had conducted itself in such a manner that the Applicant could have had a reasonable apprehension that the Committee displayed bias against him.

20. It was his contention that the Committee of Inquiry was either a judicial body or a quasi judicial body and that as such they were bound by the Rules of Natural Justice.

21. His main complaint was that the Committee of Inquiry had been secretly appointed and had in effect become a prosecutor rather than being a detached judicial body.

22. Mr. Keane was critical of the way in which the Committee had been appointed. When The Chairman of the Bar had written to the Chief Justice he had proposed the names of the members of the Board. No invitation had been extended to the Applicant to comment upon the names. Mr. Keane argued that there was no provision for such a procedure in the Legal Practitioners Ordinance, Cap. 159 and the practice of The Chairman of the Bar putting forward suggested names was similar to the Attorney General seeking to nominate which judge should hear any particular case in which he was involved. It was obvious even to state such a proposition how gravely irregular it would be to attempt to do any such thing.

23. I have no doubt that there is no merit in this submission. I can see no objection whatever to the Chief Justice receiving advice from The Chairman of the Bar Association as to who might prove to be suitable persons to preside over such proceedings. All that the Chief Justice is doing is receiving advice.

24. Looked at another way it may be very difficult for the Chief Justice to nominate suitable persons to serve if he does not receive advice from The Chairman of the Bar who is in much closer contact with Barristers. It would be highly invidious for the Chief Justice to start making individual approaches to Barristers himself not knowing the background as to whether any particular Barrister was a friend or had connections with the Barrister who was the subject of the complaint.

25. The practice which was adopted in this case was one which has been adopted universally in the past. It is not a practice which I consider can be validly criticised. Certainly it is not a practice which could give a reasonable apprehension of bias to the Applicant.

26. Having disposed of this initial criticism I now propose considering the whole basis of Disciplinary proceedings for Barristers and how they should be conducted.

27. Prior to the 1964 amendments to the Legal Practitioners Ordinance the Full Court conducted the investigation of Barristers where it appeared that Disciplinary proceedings may be appropriate.

28. There is an interesting commentary by the Privy Council on how proceedings were conducted in a colonial context in the Attorney General of Gambia v. N'Jie (1961) A.C. 617.

29. The flavour of such proceedings was well encapsulated by Lord Denning at page 630:

30. There is a useful commentary on the development of such proceedings in England by Vinelott J. in Re S (A Barrister) (1981) 1 Q.B. 683. What emerges is that it has been accepted that it is proper for Senior Barristers to sit in judgment on their colleagues. Also a procedure has been introduced whereby a lay member also sits so as to reflect the public view.

31. I think that it would be accurate to summarise the procedure in England as being essentially of a fairly informal nature. However it is clear that the process is undoubtedly subject to the rules of natural justice.

32. For example it is necessary that those who have the responsibility of laying the charges should be kept separate from those whose task it is to adjudicate. In this connection I would refer to a short passage from the judgment of Vinelott J. at page 690:

"Of course, as Professor de Smith observes, the administration of the internal discipline of a profession does present special problems and it is no doubt wise that those charged with the proper regulation of a profession should be careful in framing the constitution of the governing body and of its disciplinary tribunals to ensure that the task of investigating and presenting a complaint and the task of adjudication upon it and, if it is proved, determining the appropriate sentence are in different hands. We have already drawn attention to the provisions of the Senate regulations designed to achieve this separation of function."

33. While I accept that a code is laid down in the Legal Practitioners Ordinance for Disciplinary hearings for Barristers it is nonetheless helpful to see how the law has developed and also to see how Disciplinary hearings are conducted in England. This is particular relevant as the large majority of Barristers practising in Hong Kong have obtained their call here on the basis of their having English qualifications.

34. I am satisfied that the scheme of the Legal Practitioners Ordinance is in accordance with procedure and practice which obtains in England.

35. In each case the Inquiry which is conducted is essentially of an informal nature. In Hong Kong once a prima facie case is established the papers are passed to the Chief Justice who then refers the case to the Court of Appeal.

36. I will next consider the correct approach to be adopted by a Committee of Inquiry.

37. There is a useful commentary on this in the 6th Edition of 'Administrative Law' by Professor Wade at page 530 he says :

"On the other hand it must be a flexible principle. The judges, anxious as always to preserve some freedom of manoeuvre, emphasise that "it is not possible to lay down rigid rules as to when the principles of natural justice are to apply: not as to their scope and extent. Everything depends on the subject-matter. (R. v. Gaming Board for Great Britain ex p. Benaim and Khaida [1970] 2 QB 417 at 439 (Lord Denning MR). For cases of national security see below, p.574.) 'The so-called rules of natural justice are not engraved on tablets of stone. ' (Lloyd v. McMahon [1987] AC 625 at 702 ('so-called' because Lord Bridge prefers 'the requirements of fairness'). Their application, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. 'In the application of the concept of fair play there must be real flexibility. ' (Re Pergamon Press Ltd. [1971] Ch. 388 at 403 (Sachs LJ). There must also have been some real prejudice to the complainat: there is no such thing as a merely technical infringment of natural justice. (George v. Secretary of State for the Environment (1979)77 LGR 689."

38. The need for flexibility was helpfully referred to by May L.J. at page 837 of Ex parte Norwich City Council (1982) l Q.B. 808 :

"On the question of the use of the district valuer, it seems to me as well that it was the council's failure to use the services of his office which formed the main burden of the Secretary of State's complaints of delay on the part of the city council and the tenants' consequent difficulty in exercising the right to buy their houses. I can understand the suggested reason for the council's objection to the use of the district valuer as it was encouraged to do, even though I think that it was not averse from taking the stance which it did to increase the delay to which this subjected its tenants. However, although the general principle that justice must not only be done but be seen to be done is so well known, it is not to be applied without further thought to the circumstances of any particular case. As Sachs L.J. said in In re Pergamon Press Ltd. [1971] Ch. 388, 403 :

'In the application of the concept of fair play, there must be real flexibility, so that very different situations may be met without producing procedures unsuitable to the object in hand. That need for flexibility has been emphasised in a number of authoritative passages in the Judgments cited to this court. In the forefront was that of Tucker L.J. in Russell v. Duke of Norfolk [1949] 1 All E.R. 109, 118, and the general effect of his views has been once again echoed recently by Lord Guest, Lord Donovan and Lord Wilberforce in Wiseman v. Borneman  [ 1971] A.C. 297, 311, 314 and 320. It is only too easy to frame a precise set of rules which may appear impeccable on paper and which may yet unduly hamper, lengthen and, indeed, perhaps even frustrate (see per Lord Reid in Wiseman v. Borneman at p. 308) the activities of those engaged in investigating or otherwise dealing with matters that fall within their proper sphere. In each case careful regard must be had to the scope of the proceeding, the source of its jurisdiction (statutory in the present case), the way in which it normally falls to be conducted and its objective. '

In the particular circumstances of the present case, and generally in respect of the statutory procedure laid down by the chapter of the Act of 1980 with which we are concerned, I think that it is very reasonable for local authorities to use the services of the district valuer's office in the circumstances suggested to the applicant by the Secretary of State. In that office there are people with expert knowledge of the locality concerned and whose advice to the local authority would be gratuitious and thus involve no cost to the ratepayers. "

39. What can be said about valuers in that case is equally applicable to Barristers in the present case.

40. Mr. Keane cited to me a number of Australian cases showing how the law had devloped there. These cases were of some assistance because it is evident that the case law has developed from English case law. However the difficulty I have encountered in considering these cases is that almost without exception the facts were very different to those before me. In particular most of them refer to more formal proceedings where clearly it is essential that the rules of natural justice must be strictly adhered to. One of the cases Thompson v. New South Wales British Medical Association (1924) A.C. 764 relates to Disciplinary proceedings but the facts of that case are entirely different to the present ones.

41. I did however derive considerable assistance from one of the cases cited by Mr. Keane. This was the case of R. v. Watson Ex parte Armstrong (1976) 136 C.L.R. 248. The majority judgment was written by Barwick C.J., Gibbs, Stephen and Mason JJ. At page 258 they have this to say on the test to be adopted in relation to bias.

"It is then necessary to turn to the second ground on which prohibition is sought, namely, that the learned judge has prejudged the wife's credit to her disadvantage. This ground in substance also alleges bias - not of course bias through interest, nor by reason of relationship, friendship or enmity, but bias "by reason of some pre-determination he has arrived at in the course of the case": per Isaacs J. in Dickason v. Edwards (1910) 10 C.L.R. 243, at p. 260. In stating that there was actual bias in this sense, the wife has gone further than she needs to go, and, as some would say, further than it was right for her to go. It is clear that to disqualify a judge from sitting it is not necessary that it should be shown that he was in fact biased. There has, however, been a difference of opinion as to the test that should be applied when bias is suggested. One view is that it is necessary for the person seeking prohibition to show that "there is a real likelihood that the judge would, from kindred or any other cause, have a bias in favour of one of the parties": per Blackburn J. in Reg. v. Rand (1866) L.R. 1 Q.B. 230, at p. 233; the other view is that it is enough that the judge could "reasonably be suspected of being biassed": per Lord Esher M.R. in Allinson v. General Council of Medical Education and Registration [1894] 1 Q.B. 750 at p. 759. Sometimes these two tests have been applied in conjunction. It would serve no useful purpose to cite the many authorities in which one view or the other has been espoused. Some of those authorities were reviewed in Reg. v. Camborne Justices: Ex parte Pearce, [1955] 1 Q.B. 41, at pp 47-51, where it was held that it is necessary for the applicant to show a real likelihood of bias. The same view was taken in Reg. v. Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2 Q.B. 167, at p. 187 where Devlin L.J. said that it is immaterial what impression might have been left on the minds of the applicants or of the public generally, and that it was not enough that an impression that the tribunal had been biased might reasonably get abroad. However, in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [1969] 1 Q.B. 577 the Court of Appeal again considered this question and did not accept the statement of the law in those two decisions. Lord Denning M.R. commenced his discussion, by citing the oft-repeated saying of Lord Hewart C.J. in R. v. Sussex Justices; Ex parte McCarthy [1924] 1 K.B. 256, at p. 259: "It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. " After saying that he stood by that principle, Lord Denning M.R. continued [1969] 1 Q.B. at p. 599:

"....in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. ..... Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough ... There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidences: and confidence is destroyed when right-minded people go away thinking: 'The judge was biased. '"

42. However these observations are subject to further remarks they make at page 261:

43. To complete the picture on the law it is necessary to consider 2 Hong Kong cases. Kung Wong Sau Hin v. Kung Kwok Sun and another Unreported C.A. 128 of 1983 and R. v. Chung Ping Kei 1985 H.K.L.R. 57.

44. In the former case the Court of Appeal considered a situation where a judge, who had heard a case and had not yet delivered judgment, had had a short informal conversation with the Barrister representing one of the parties in the absence of any of the other parties legal representatives. The conversation was an innocent one and did not have any direct bearing upon the result of the case. Notwithstanding this the court was critical of the position but did not consider that the conversation was such as to give rise to any possibility of either of the parties to the action feeling any reasonable apprehension of bias. The appeal was dismissed.

45. In the second case a judge told both Counsel appearing before him in the privacy of his private room that during the proceedings he had had conversations with Chinese friends of his who had expressed views concerning some Chinese characters which were in issue in the case. The Court of Appeal allowed the appeal in this case as it considered that it was possible that the judge had been influenced by what his friends had said. Neither of the parties of course had had any opportunity of making representations to these friends.

46. At this stage I think that it is necessary for me to briefly summarise the principals above propounded.

47. Having summarised my understanding of the legal principals involved I will now consider further the facts.

48. On the uncontested facts before me I am satisfied that The Chairman of the Inquiry should not have communicated with Counsel for the Bar ex parte prior to the laying of the Disciplinary charges. The correct procedure for him to adopt would be for him to summon Counsel and either the Applicant or those representing him and seek from the parties or one of them an explanation for the delay which had occurred. It would be particularly important for this procedure to be adopted if any matters of substance were to be considered.

49. In the present case the conversations which took place seem to me to have been entirely innocent and innocuous. It is worth further recording that no attempt whatever was made to "cover up" these communications and when the Applicant requested particulars as to what had transpired he was given full disclosure.

50. Similar observations can be made concerning the communications between The Chairman of the Inquiry and the Solicitors representing the Bar Committee. However there is a difference on the facts before me.

51. While I have no doubt that the communications were innocent and largely related to "administrative" matters I was concerned to note that The Chairman seems to have treated the Solicitors for the Bar Committee as being his own Solicitors. This would appear to be in direct conflict with the principals I have found to be applicable.

52. After careful consideration I have come to the conclusion that these lapses fall far short of satisfying me that there could be any real risk of bias. I will deal later with the question as to whether the Applicant had a reasonable apprehension of bias.

53. The next matter I will deal with is the Order Nisi for costs made on the 12th of July 1988. It is complained that the Commissioner of Inquiry had no jurisdiction to make such an order. Both Mr. Keane and Mr. Mills-Owens took me through the history of the Legal Practitioners Ordinance including a consideration of Hong Kong Hansard when the 1962 and 1964 amendments were made. I regret that I did not find these exercises to be particularly illuminating. The simple fact of the matter is that no power to order costs is reposed in the Committee of Inquiry. I am certainly not prepared to imply such a power from the wording of Section 39 as urged on me by Mr. Mills-Owens.

54. The only matter which has troubled me in this connection is whether it is right that I should grant on order of certiorari on the facts of this case. I have particularly borne in mind the fact that the order made was an Order Nisi. It was open to the Applicant to challenge the order within 14 days and he did not choose to do so.

55. However it is unlikely that any such challenge would have met with success. I say this because Mr. Mills-Owens has continued to maintain that the Committee of Inquiry did have power to make the order for costs. In these circumstances I would be disposed to make the order of certiorari sought and I do so order.

56. I will now deal shortly with some of the matters referred to in the Grounds in support of the application for the order of prohibition. I consider these matters to be of some significance in throwing light on the Applicant's state of mind. This is of importance in determining whether he had a reasonable apprehension of any bias.

The Report in the newspaper

57. I have already outlined the complaint on this subject. I will now refer to the passage in the Applicant's affidavit relating to it :

58. I do not propose to include in this judgment the newspaper article complained of as this would reveal the identity of the Applicant.

59. I will however summarise the article by saying that it referred to the complaints which are the subject of the Disciplinary y proceedings. The writer of the article refers to a number of sources for her story including the then Secretary of the Bar Committee.

60. However I am satisfied from an affidavit sworn by him that all he did was to inform the writer that the Bar was liasing with the Registrar of the Supreme Court and the Applicant on the matter and hoped that it would be expeditiously resolved.

61. There is not a shred of evidence that any member of the Committee of Inquiry was in any way involved with the matter. Nor is there any direct evidence that any member of the Bar Committee was in any way involved.

62. Perhaps ironically the Applicant himself was approached by the Journalist and made very similar observations to those of the Secretary of the Bar Association.

63. It seems to me that the Applicant is suggesting that there is a conspiracy in existence by some members of the Bar to discredit him and damage his reputation. He has chosen to express himself in fairly robust terms without making any serious attempt to prove the existence of such a conspiracy. He has not succeeded in justifying the remarks he has made.

The Complaints made against The Chairman of the Committee of Inquiry and The 2nd Silk.

64. To get the full flavour of the complaints I have extracted parts of the Applicant's affidavit in support substituting only the names of the gentlemen concerned.

"11.    Had I been consulted as to the composition of the Committee I would have objected and do object to the appointment of The Chairman on personal and professional grounds. I regret that I consider him to be a most unsatisfactory choice. Out of the pool of approximately 200 Hong Kong Counsel eligible to be appointed to serve on a Committee (because of section 34(2) of the Legal Practitioners Ordinance) I would object to about 10 as being unsuitable. In this regard I have taken into account matters I have learned from other Counsel and Solicitors. I believe that The Chairman has displayed antipathy towards me since early 1985.

14.    This attitude originated from an incident which occurred just prior to the hearing of a Criminal Appeal in the Court of Appeal: ...... When I arrived in Court I found The Chairman present. He had placed all his books on the right side of the Bar table invariably used by the Crown. I had not met him before, but I believe-that he was a Counsel mostly practising in Divorce law. I informed him, that his books were on the wrong side of the Bar Table. He became very upset and said he had no intention whatsoever of moving them. He angrily stormed out of the Court. Other Counsel who by then had entered the Court expressed to me disapproval of his arrogant attitude. After he had gone, I repositioned his books at the correct end of the Bar table reserved for Applicants. Upon his return he gave me a particularly icy stare and has studiously avoided speaking to me since that occasion. Although I have subsequently appeared against him several times in the Court of Appeal but he has haughtily discounted my existence.

15.    I accept that while this might appear to be a relatively modest personal dispute, I believe that he is a man who can bear a grudge. I am reinforced in this belief by the fact that in 1982, a member of the Hong Kong Bar found it necessary to apply for injunctive relief in the High Court of Hong Kong to restrain The Chairman from continuing to commit an unlawful act; namely having changed the locks to Chambers so as to deprive the lawful tenant access to her Chambers, (following a disupte as to control of the Chambers), he removed one of the lawful tenant's personal and professional effects to her garage, whilst she was overseas. I do not consider him to be at all suitable in view of this incident and the enduring history of our dispute and further in view of his idiosyncratic behaviour referred to below.

16.    I object to the nomination and appointment of The 2nd Silk on professional grounds only. Of the approximately 28 Queen's Counsel in Hong Kong he is one of the few I have not appeared against. In fact I had never seen him before. A perusal of the recent judgments of the Supreme Court suggests that The 2nd Silk has been retained by the Prosecutor (and the current solicitors for the Prosecutor) in the locally sensitive matter of opposing the admission of English silks to the Hong Kong Bar and further to prosecute Counsel in disciplinary proceedings before a Committee of Inquiry under the some Ordinance. In fact The 2nd Silk appears to have been nominated by the Prosecutor to prosecute in the previous hearing before a Committee of Inquiry. This time the Prosecutor has secretly nominated him to be a Member of the Committee of inquiry.

17.    Whilst I fully appreciate that Counsel who prosecute on fiat also defend, I regret that the statistical improbability of The 2nd Silk re-selection together with the intrinsic nature of the proceedings and his regular contact and involvement with the Prosecutor (including his pre-selection as a Member), dictate that I continue to object to his-appointment."

65. I think it not unfair to express the opinion that with the exception of the remarks concerning The Chairman's litigation with another party in paragraph 15 the complaints could be described as being utterly trivial.

66. This is particularly true of the complaint made against The 2nd Silk. It is evident from the affidavit filed by him - and accepted by the Applicant - that The 2nd Silk has represented the Bar Committee on only 2 occasions in the last 4 years. Once in 1984 and once in 1987. It is an exaggeration to state that The 2nd Silk has represented the prosecution regularly. I do not believe that such representation would cause a suspicion to a reasonable man.

67. The personal attack on The Chairman of the Inquiry strikes me as being particularly unfortunate. The Applicant seems to have been prepared to form his opinions on the basis of idle gossip amongst Practitioners.

68. What the Applicant does not say in his affidavit is that the other Barrister involved in the dispute referred to did not succeed in obtaining an injunction. No serious attempt appears to have been made by the Applicant to ascertain the truth of the allegations made. Notwithstanding this the Applicant has been prepared to criticize The Chairman in this way. The complaints which have been made have been grossly exaggerated and appear to me to be totally unjustified.

The Chairman's letter to the Applicant stating that the Applicant's wife could attend at hearings "Subject to any untoward occurences".

69. When the Applicant made a request for his wife to be allowed to be present for the hearing he stated that his wife was pregnant and in an emotional state. I have no doubt that it was at least insensitive and offensive for The Chairman to reply in the terms he did.

70. This was however in stark contrast to the tenor of the other letters which were addressed to the Applicant. Generally I think it could be fairly stated that The Chairman has with the exception of this one instance communicated with the Applicant in polite and courteous terms.

71. Certainly I am of the opinion that this one lapse in good manners could not reasonably lead any person to suspect bias against him.

72. I do not see any merit in the matters referred to in grounds (g) and (i). If these grounds are accepted at their face value it is tantamount to stating that whenever a Tribunal declines to accept evidence deduced before it or makes a mistake of law it is biased. This cannot be right.

73. I understood from Mr. Keane that he does not now wish to press the complaints made in grounds (d) and (e).

74. I have regretfully come to the conclusion that the Applicant is a highly sensitive and suspicious person. So much so that I do not consider that his reactions are those of the usual reasonable man on the Clapham omnibus - or in the context of Hong Kong - on the Tsimshatsui Star Ferry.

75. I do not think that a reasonable man would harbour suspicions and apprehensions in the way the Applicant has chosen to do.

76. In coming to this conclusion I have borne in mind a number of factors. I have considered all of the evidence as a whole and in particular the very trivial nature of some of the complaints.

77. I have also borne in mind the fact that The Chairman of the Inquiry has at all times provided the Applicant with information when requested to do so. The Applicant has chosen to describe their activities as secret. This characterisation has not been justified on the facts.

78. I am conscious of the fact that the Applicant has chosen to cast his net very wide indeed. He has been prepared to attribute mala fides to a number of respectable professional people without in my view having sufficient justification to do so.

79. I have also been concerned with the possible question of waiver. The Applicant knew about some of the grounds of complaint at an early stage in this saga. Notwithstanding this he was prepared to attend a summons for directions on the 30th of March 1988 and he did not voice any of his objections at that time. Even though technically this nay not amount to waiver it certainly throws light upon the genuineness of the complaints being made.

80. Having said this I would not be prepared to go so far as to have any doubts about the Applicant's honesty. I believe he is an honest person. I do not though accept that his apprehensions or suspicions were reasonable.

81. For the reasons I have given I decline to make the order of prohibition which is sought. I am however prepared to grant an order of certiorari in respect of the 12th of July 1988 costs order.

82. I am sending a draft of this judgment to the parties for comments. I will hear submissions from the parties on the question of what in the circumstances can reasonably be divulged to the public on this application and also on costs. I would further mention that if this judgment is made public I will order that no report on the case is to include the names of any of the parties or persons referred to herein.

Representation:

Mr. Desmond Keane, Q.C., & Mr. Paul Loughran instructed by Ricky Ma & Co. for Applicant.

Mr. Richard Mills-Owens, Q.C., & Miss Maria Yuen instructed by Lo & Lo for 2nd Respondent.

Messrs. Stevenson Wong & Co. for 1st Respondent.