Francis Cheung and Another v. Insider Dealing Tribunal

CACV000157A/1999

CACV 157/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 157 OF 1999

(ON APPEAL FROM HCAL 40/1998)

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Coram: Hon Nazareth VP, Mayo and Leong JJA in Court

Date of Hearing: 9 December 1999

Date of Handing Down Judgment: 14 January 2000

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J U D G M E N T

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Hon Leong JA:

1. The facts of the case have been set out in the judgment on admissibility of evidence and I do not propose to repeat them.

2. The appellants' case before Keith J (as he then was) was the findings in the Report of the Insider Dealing Tribunal ("the Tribunal") in relation to the appellants should be quashed because -

a. Mr Wu discussed the case with Mr Siu and Mr Cheung and sent the confidential notes of Mr Chan to Mr Cheung. Mr Wu was in breach of his duty of confidentiality to other members of the Tribunal.

b. Mr Wu had a dissenting view on the issues before the Tribunal but he did not communicate it to other members. Mr Wu was in dereliction of his judicial duty as a member of the Tribunal.

c. There was bias on the part of Mr Wu.

3. Keith J concluded that if Mr Wu did not form any view, he was abstaining and that could not undermine the Report. If Mr Wu had a dissenting view, there was no duty for Mr Wu to express his dissenting view to other members of the Tribunal. On this issue, the Judge said:

"In other words, there is, I believe, no duty on a member to confront the other members with his own views on particular features of the evidence. Nor do I think that he is in every case under a duty to inform his fellow members of his final view on the issue which has to be decided. As with the member who abstains from reaching a decision, I see no reason why a member should not be able to refrain from expressing any dissenting view, provided that he knows that he is in the minority and that the view of the majority prevails."

4. In relation to the issue of bias, Keith J's conclusion was this:

"...The conclusion is inescapable that Mr Wu succumbed to the influence of camaraderie when he disclosed elements in the decision-making process to his alumni. But the fact that he was prepared to let his relationship with Mr Cheung affect the duty of confidentiality he owed to his colleagues on the Tribunal does not begin to mean that he was prepared to let his wish to be seen to be impartial by his colleagues affect the duty of impartiality he owed to Mr Cheung. However the case is analysed ... . Mr Chang's argument involves a quantum leap which I simply cannot make."

The Judge concluded that there was not a real danger that Mr Wu had regarded Mr Cheung's case with disfavour.

5. The first few grounds of appeal complain that the Judge was wrong to find that a member of a three-member specialist Tribunal is not under a duty to inform his fellow members of his views on the issues before the Tribunal and that if he knows that he is in the minority and the majority view prevails, he may refrain from expressing his views in which case he is treated as having abstained from reaching a decision.

6. Mr Wong for the appellants submits that Mr Wu had a judicial duty to participate and contribute actively to the collective decision making process and should communicate his views, dissenting or otherwise, to other members of the Tribunal.

7. Mr Wong submits that regarding the guilt or innocence of Mr Cheung, Mr Wu had formed a dissenting view from that of the Chairman and Mr Chan. Mr Wu did not communicate his view to the Chairman and Mr Chan because he thought they had already made up their mind and it would be futile for him to do so. In these circumstances, it would be wrong to say that Mr Wu had abstained.

8. Mr Wong further submits that Mr Wu's conduct of disclosing to Mr Siu of his views on Mr Cheung's innocence and to Mr Cheung that he refrained from expressing his dissenting view together with sending to Mr Cheung the confidential notes of Mr Chan, was not only breach of confidentiality to other members of the Tribunal, but also amounted to a criminal offence under s.59(1) of the Securities and Futures Commission Ordinance, Cap. 24. These acts reflected on the personality of Mr Wu and it is questionable that he was a fit and proper person to be a member of the Tribunal.

9. Mr Wong submits that the integrity of the decision making process of the Tribunal had been destroyed and the Judge had wholly underestimated the effect of such misconduct.

10. Mr Cooney for the Financial Secretary on the other hand submits that there is no duty to communicate dissenting views. The Securities (Insider Dealing) Ordinance, Cap. 395 under which the Tribunal was appointed does not create such a duty. It requires a three-member Tribunal to be appointed so that there could be a majority decision of two. As long as Mr Wu had brought his expertise into the decision making process by participating in the deliberation, which he did as is evident by the evidence of the Chairman, he had contributed to decision making although he might not have agreed with the other two members' conclusion. The fact he did not express his dissenting view would not vitiate an otherwise valid majority decision of the Tribunal.

11. Before the question of dereliction of duty is considered, it is necessary to consider the evidence and its weight, which the appellants claim to support their contention. The evidence that Mr Wu held the view that Mr Cheung was innocent and had suppressed that view, came from Mr Siu and Mr Cheung as to what was said to them by Mr Wu. What weight should be put on such evidence is to be considered in the light of other circumstances in the case. That Mr Wu and Mr Cheung belonged to the King's College Old Boys' Association is not disputed. Keith J found Mr Wu had succumbed to the influence of camaraderie when he made disclosure to his alumni and, as suggested by Mr Cooney, he had an incentive to lie to Mr Siu and Mr Cheung and downplay his role. There was thus every reason for Mr Wu to give his alumni a view which he did not genuinely hold in order to ingratiate himself with Mr Cheung and to retain his friends.

12. Balancing this, there is the evidence that Mr Wu had signed the Report expressly agreeing to the findings in the Report which states that the findings of fact are unanimous. The Chairman had confirmed the unanimity of the Tribunal decision when he said the following in his unchallenged affidavit:

"... the Report was compiled as a result of numerous sessions of discussions and deliberations between myself and the other two members. Mr Wu like myself and Mr Chan had contributed his views on various matters arising out of the Inquiry which resulted in the findings and the production of the Report. To the best of my knowledge and belief, Mr Wu did not, at any time express dissent to any part of the Report. All parts of the Report were agreed unanimously between the three of us before it was finalized and released."

13. Mr Wu in his letter to the Tribunal stated that he did not have an opposite opinion to that of the Chairman and the other member Mr Chan and he totally agreed to the contents of the Report and the Report issued was the proper findings of the Tribunal and he agreed with the contents of it.

14. In the light of all these matters, the weight if any that could be put to the evidence that Mr Wu held the dissenting view that Mr Cheung was innocent and had refrained from expressing it to the other members of the Tribunal because he thought they had already made up their mind must be very little indeed.

15. Mr Wong has referred to a number of authorities: Re United Nurses of Alberta, Local 1 v. Calgary General Hospital (1989), 63 D.L.R. (4th) 440 (QB), R v. Army Board of the Defence Council, ex parte Anderson [1991] 3 WLR 42, IBM Canada Ltd v. Deputy N.N.R. Customs and Excise [1992] 1 FC 663 (Fed. C.A.), R. v. Race Relations Board, ex p. Selvarajan [1975] 1 WLR 1686, for his proposition that a member of a tripartite statutory tribunal has the duty to communicate dissenting views to other members in the discharge of the tribunal's proper decision making function.

16. In UNA, Local No. 1 v Calgary General Hospital, the chairman of a board of arbitration consisting of the chairman and two nominees, one from the management and the other from the union, met the management nominee first and issued a draft award. Thereafter the chairman met the nominee from the union separately to discuss the draft. The court held that it was essential for each member to have an opportunity to know and respond to the opinions of the others and to deliberate together before the issue is determined. In R. v. Army Board ex p Anderson, the two members of a two member Army Board did not meet to consider the case. They form their own views in isolation before giving a decision. The Divisional Court held that it was essential for a fair decision that the two members of the board met together to consider the evidence and contentions before coming to a decision.

17. In the IBM case, the concern was the lack of proper quorum as a result of non participation in the decision making process by a member of the tribunal. The Canadian Federal Court of Appeal held that the Tariff Board must have the necessary quorum in issuing its decision and the members must act together. The Court of Appeal in its judgment stated:

"What must be done, however, is that at some point in time, the panel must reach a decision collectively and each member must participate individually in that collective decision in agreeing with it or in dissenting from it. There has to be a meeting of the minds, each member being informed at least in a general way of the point of view of each of his colleagues. This in my view, is what is meant by 'making the decision' ... signature does not necessarily equate with participation, I would add, however, that the reverse is also true: non signature does not necessarily equate with non participation."

18. In R. v. Race Relations Ex p Selvarajan, the Court of Appeal in England stated that what is essential in an investigation by a board such as the Race Relations Board is to act fairly and the court would only interfere if the board has failed or refused to perform its function, or exceeds its powers or has acted unfairly or corruptly.

19. United Brotherhood of Carpenters and Joiners of America, Locals 1779 and 2103 v. National Drywalk (1975) Construction Ltd Admin. L.R. 122 is another case cited by Mr Wong on the proper discharge by a Tribunal of its decision making function. The head note under "Held" states that the proper discharge of the board's decision making function requires that the members discuss among themselves the evidence, the arguments and the issues to be decided. There must be some form of communication amongst the board members, preferably at a meeting of all members.

20. Suffice to say, the proposition in these authorities is that members of a tripartite Tribunal must act together, and be given the opportunity to deliberate together before reaching a conclusion and they must act fairly. But the cases do not establish any duty on the part of a member of a tripartite tribunal to express his dissenting views to the other members. The Judge was right in concluding there was no such duty.

21. The evidence shows that the report cannot be anything other than a unanimous report by all three members of the Tribunal based on their unanimous findings, reached as a result of active participation by all three members who sat together through out the Inquiry. The necessary quorum of the Chairman and two lay members was present at all relevant times. Even if on the tenuous evidence of Mr Siu and Mr Cheung, it does show Mr Wu harboured a dissenting view but felt unable to go against the majority view of the other two members and therefore signed the report, that does not mean non participation by him in the deliberation. A majority decision is a proper and regular decision perfectly acceptable under rule 13 of the rules relating to conduct of inquiry by the Tribunal.

22. The Judge was right to hold that whatever view Mr Wu might have held whether he expressed it or not, could not have affected the outcome. In my view the report is regular and not unfair and it should not be interfered with on these grounds.

23. The appellant conceded in the court below that Mr Wu's disclosure of confidential information was insufficient for the court to quash the Tribunal's findings. Mr Wu committed the breaches on 12 February 1999 at a time when the evidence had almost concluded, on 19 March 1999 pending the report and on 7 April 1999 after the report was published. What he did could not have affected the outcome of the Inquiry. His conduct might very likely be criminal but until it is determined in a criminal court, he has not committed any criminal offence. In any case, the isolated misconduct of the Mr Wu has nothing to do with the decision making process of the Tribunal. These breaches do not give rise to any inference that Mr Wu was from the beginning not a fit and proper person to sit in the Tribunal so that the proceedings before the Tribunal and its report are necessarily tainted.

24. Mr Wong submits that there was a real danger of bias by Mr Wu towards Mr Cheung. Mr Wong relying on Mr Wu's dealings with Mr Siu and Mr Cheung, submits that if Mr Wu was there to placate his alumni or if Mr Wu's motivation in suppressing his dissenting view was to seek to distance himself from Mr Cheung to show he was a man worthy of his judicial position, there was a real danger of him not acting impartially. Either way, the function of the Tribunal has been compromised.

25. As has been said earlier in this judgment, the evidence that Mr Wu suppressed his dissenting view carries little weight. Even if Mr Wu had done so it was for no other reason than he saw it futile to express his dissenting views. Thus the allegation that Mr Wu might unfairly regard with favour or disfavour the case of Mr Cheung is on flimsy ground.

26. Mr Cooney submits that the real danger test in R. v. Gough [1993] A.C. 646 is to avoid setting aside decisions on insubstantial grounds or the flimsiest of pretext. In Locabail (UK) Ltd v. Bayfield Properties Ltd & Another (unreported PTA 1999/6041-42) the Court of Appeal in England was of the view that a judge should not yield to tenuous or frivolous objection on the ground of bias to recuse himself from hearing a case. It found force in the following view expressed by Mason J in the Australian authority of Re JRL ex parte CJL (1961) 161 CLR 342:

"Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

27. Further in Locabail the Court of Appeal appears to accept the view in Re Ebner [l999] FCA 110, that where the suggestion of bias is based on the judge having an interest of no tangible value, the waste of resources and the delays brought about by the setting aside of a judgment should also be considered.

28. All these propositions come to the same question: whether the circumstances of the case give rise to any real danger of bias. In the present case, even if it were the case that Mr Wu did suppress his dissenting view, there was nothing to support the suggestion that what he did was to placate his alumni or to distance himself from the appellants. It seems to me right to say that that did not give rise to any real danger of bias.

29. The courts no doubt have a discretion in a judicial review to withhold remedies. This is a long and complex inquiry and the parties that were investigated were not confined to the appellants. The other party had been completely vindicated. Setting aside the report would result in waste of resources and likely prejudice to the vindicated party. The Judge was right in refusing the application and to set aside the report. I would dismiss the appeal.

Hon Mayo JA:

30. This appeal was heard on two separate occasions. It was not possible to dispose of the appeal in the two days allocated to it on 28 and 29 October 1999. However the time was used to consider the question of the admissibility of evidence concerning the alleged misconduct of one of the members of the Insider Dealing Tribunal Mr Wu. A judgment was handed down on 24 November 1999. It was held that the affidavit evidence in question was admissible as evidence.

31. In the judgments the background facts and circumstances were canvassed in some detail particularly in the judgment of Leong JA. This being the case it is not necessary to rehearse all of the material in this judgment.

32. In the hearing before us we heard submissions based upon the evidence contained in the affidavits and upon whether Keith, JA had been in error in declining to grant the relief sought in the Judicial Review namely an order of certiorari to quash the findings in the Report issued on 30th March 1998 and an order for an injunction to prohibit the Tribunal from proceeding with the inquiry in relation to penalties and consequential orders.

33. So far as the facts were concerned there was considerable controversy over the interpretation which should be placed upon them.

34. Mr Wong for the applicants put it in this way:

"(1) By 12 February 1998 (the day before the evidence finished), Mr Wu did not know what the other 2 members of the Tribunal would decide. He however would not have himself found the charges against Mr Cheung established and he would have made no adverse findings of insider dealing against him. In support of Mr Wu's views, he had a number of facts and reasons relating to the evidence in the case, which had nothing to do with his relationship with Mr Cheung through the (King's College Old Boys Association).

(2) By 19 March 1998 (11 days before the Report was issued), Mr Wu had not communicated his dissenting views regarding Mr Cheung to the other two members of the tribunal. Mr Wu was of the view that the other two members of (the tribunal) had already made up their minds to make adverse findings against Mr Cheung, so there was no use or purpose for him to give dissenting views as in any event that would result in a decision of 2 to 1. Mr Wu made the said admission to Mr Siu.

(3) Mr Wu considered Mr Chan and the Chairman had already made up their minds on the outcome of the hearing, thus Mr Wu saw no use or purpose in dissenting and did not bother to go against them both. Mr Wu made the said admission to Mr Cheung on 7 April 1998. To make good what he had said, he would send Mr Cheung the confidential notes prepared by Mr Chan later on (which he did on the 14 April 1998)."

35. It will be appreciated from this that Mr Wong has based his submission on the premise that when Mr Wu was speaking to the deponents to the affidavits he was speaking the unvarnished truth. This was not the approach adopted by the Judge. He proceeded on the basis that it was far more likely that Mr Wu had been attempting to ingratiate himself with Mr Siu and Mr Cheung and that he was telling them what he thought they would like to hear.

36. In my view this is a very much more plausible explanation of the situation. It is also to an extent borne out by the affidavit sworn by the Chairman of the Tribunal who said in his affidavit that Mr Wu did take part in the deliberations of the Tribunal and did not voice his dissent. It is appreciated that this view of the matter cannot be maintained without any doubt at all.

37. The Chairman would not have known what was in Mr Wu's mind or whether any views put forward by him were genuinely held.

38. However I do not consider that the Judge can be criticised for the way in which he proceeded upon the facts. Also I do not consider that the applicants have been able to establish that Mr Wu did not participate in the deliberations of the Tribunal. Nor do I think it can be said that Mr Wu suppressed any dissenting views or opposition to the views of the other members of the Tribunal.

39. Even if this is wrong it does not assist the applicants. Mr Wong placed heavy reliance upon the Canadian case of IBM Canada Ltd and Another v. Mitel Corporation [1992] 1 C.F. 663 for the proposition that it was essential that there should be a meeting of minds of all of the members of a tribunal. At p. 675 it is stated that:

"The nature, degree and form of this 'acting together' need not, cannot and should not be defined. Tribunals have their own ways and their own rules. Members of a panel have their own personality and habits and cannot be expected to hold hands from the time a case is heard until the time a case is decided. What must be done, however, is that, at some point in time, the panel must reach a decision collectively and each member must 'participate' individually in that collective decision in agreeing with it or in dissenting from it. There has to be a meeting of the minds, each member being informed at least in a general way of the point of view of each of his colleagues. This, in my view, is what is meant by 'making the decision'. Counsel for the appellant rightly pointed out, relying on the statement of Chief Justice Laskin in P.P.G. Industries Canada Ltd. v. A.G. of Canada [1976] 2 S.C.R. 739 at p. 747, that signature does not necessarily equate with participation. I would add, however, that the reverse is also true: non-signature does not necessarily equate with non-participation. There is no absolute rule, as legislative provisions, rules of practice and actual practices may vary from one tribunal to the other."

40. There is no suggestion that Mr Wu was not physically present at all the meetings and it would appear from the Chairman's affidavit that his participation was sufficient to meet the test laid down in IBM Canada Ltd.

41. The next question which has to be considered is whether Mr Wu's conduct was such as required the findings of the Tribunal to be set aside.

42. It is common ground that the discussions Mr Wu had with Mr Siu and Mr Cheung and more particularly his handing over to Mr Cheung Mr Chan's notes amount to a serious breach of confidentiality.

43. Mr Wong submitted that it was manifest from this that Mr Wu was not a fit and proper person to be performing duties of this nature. He referred to the fact that in all probability Mr Wu had committed criminal offences.

44. It is pertinent to observe that there is nothing in the relevant legislation to disqualify a person from performing duties as a member of this Tribunal if he commits an offence under the ordinance. I consider that even if Mr Wu has committed criminal offences under the ordinance this is insufficient of itself to justify setting aside the findings.

45. Closely connected with this was the submission which Mr Wong made that the public perception of the proceedings was a matter of great importance and that justice must be seen to be done. For this proposition he relied upon Munday v. Munday [1954] 1 WLR 1078.

46. While it is undoubtedly true that this is the case the circumstances in Munday were entirely different to those of the present case. Perhaps equally germane are the observations of the Court of Appeal in Locabail (UK) Ltd v. Bayfield Properties Ltd and Another unreported being case PTA 1999/6041/A3.1 at p. 13 of the transcript of Smith Bernal Reporting Ltd when they considered a number of cases on this subject:

"22. We also find great persuasive force in three extracts from Australian authority. In Re JRL, ex parte CJL (1986) 161 CLR 342 at 352, Mason J., sitting in the High Court of Australia, said:

'Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.'

23. In Re Ebner [1999] FCA 110, the Federal Court asked (in paragraph 37):

'Why is it to be assumed that the confidence of fair-minded people in the administration of justice would be shaken by the existence of a direct pecuniary interest of no tangible value, but not by the waste of resources and the delays brought about by the setting aside of a judgment on the ground that the judge is disqualified for having such an interest?'"

47. The point which was being made by the Court of Appeal is that the balance is not all one way. In the present case it is legitimate to also consider what the public is likely to make of the enormous wastage of time, effort and expense if this award is set aside for anything other than the most compelling reasons. It cannot be said that the Judge got the balance wrong in this case.

48. The next issue argued by Mr Wong was whether the award should be set aside on the ground of Mr Wu's bias. In R. v. Inner West London Coroner, ex parte Dallaglio [1994] 1 All ER 139 Simon Brown LJ summarised Lord Goff's speech in R. v. Gough [1993] A.C. 646 at p. 151 on the subject of bias:

"From R v Gough I derive the following propositions:

(1) Any court seised of a challenge on the ground of apparent bias must ascertain the relevant circumstances and consider all the evidence for itself so as to reach its own conclusion on the facts.

(2) It necessarily follows that the factual position may appear quite differently as between the time when the challenge is launched and the time when it comes to be decided by the court. What may appear at the leave stage to be a strong case of 'justice [not] manifestly and undoubtedly be[ing] seen to be done', may, following the court's investigation, nevertheless fail. Or, of course, although perhaps less probably, the case may have become stronger.

(3) In reaching its conclusion the court 'personifies the reasonable man'.

(4) The question upon which the court must reach its own factual conclusion is this: is there a real danger of injustice having occurred as a result of bias? By 'real' is meant not without substance. A real danger clearly involves more than a minimal risk, less that a probability. One could, I think, as well speak of a real risk or a real possibility.

(5) Injustice will have occurred as a result of bias if 'the decision-maker unfairly regarded with disfavour the case of a party to the issue under consideration by him'. I take 'unfairly regarded with disfavour' to mean 'was pre-disposed or prejudiced against one party's case for reasons unconnected with the merits of the issue'.

(6) A decision-maker may have unfairly regarded with disfavour one party's case either consciously or unconsciously. Where, as here, the applicants expressly disavow any suggestion of actual bias, it seems to me that the court must necessarily be asking itself whether there is a real danger that the decision-maker was unconsciously biased.

(7) It will be seen, therefore, that by the time the legal challenge comes to be resolved, the court is no longer concerned strictly with the appearance of bias but rather with establishing the possibility that there was actual although unconscious bias.

(8) In the circumstances of the present case the court must therefore ask itself: is there a real danger that the coroner unfairly (though unconsciously) regarded with disfavour the case of those seeking a resumption of the inquest? Or: is there a real danger that the coroner was unconsciously prejudiced against this group? Or, as Neill LJ put it in the Divisional Court:

'... is there a real danger that in deciding ... not to resume the inquests Dr Knapman was influenced, consciously or unconsciously, to a material degree by his views ... about the Marchioness action group?'

(9) It is not necessary for the applicants to demonstrate a real possibility that the coroner's decision would have been different but for bias; what must be established is the real danger of bias having affected the decision in the sense of having caused the decision-maker, albeit unconsciously, to weigh the competing contentions, and so decide the merits, unfairly."

49. Mr Wong submitted that when considering bias it was also necessary to consider what has been described as reverse bias. This arises when the person making a decision says to himself - everyone knows that I know X so I must lean over backwards not to grant him any favour or indulgence.

50. He argued that such a situation might easily arise in the present case.

51. The answer to this is that on what the Judge considered to be the correct analysis of the affidavit evidence there is nothing whatever to support the suggestion that Mr Wu was in any way biased. The criteria referred to by Lord Simon Brown have not been met and this part of the appeal must fail.

52. When the Judge heard this Judicial Review he was exercising a discretion reposed in him. In my view it has not been demonstrated that he was in any way in error and that being the case I consider that this appeal should be dismissed and a costs order nisi should be made in favour of the Tribunal.

Hon Nazareth VP:

Introduction

53. I agree with Leong and Mayo JJA. I am accordingly able to go directly to the several submissions made on the applicants' behalf. All of these were in one way or another concerned with Mr Wu's conduct.

Breach of duty of confidentiality

54. Mr Wu's disclosure, whatever the extent of it, and particularly his supplying of the confidential notes made by a fellow member of the Tribunal, to Mr Cheung and Mr Siu, was a serious breach of confidentiality. However, I have no difficulty in rejecting the contention that it destroys the validity of the Tribunal's proceedings. No credible basis for that contention has been shown. It was then no surprise that in the course of the hearing, reliance was placed upon that same matter but upon the basis of it being a criminal offence, i.e. a breach of s.59(1)(a) of the Securities and Futures Ordinance, Cap. 24. But plainly, even without reference to the particular circumstances, which in most cases must be crucial, there are many statutory offences of so minor or technical a nature that it would be absurd to suggest they disqualify a judge or judicial officer. The disclosure here, in my view, does not detract from or directly impinge upon the Tribunal's conclusion. I shall return to the indirect use made of it in the context of its disclosure.

Non-participation

55. My Lords have referred to the authorities relied upon on behalf of the applicants in support of their submission that there was a duty on the part of Mr Wu, as one of a 3-member Tribunal, to participate in a collective decision-making process, and particularly to communicate his dissenting view to the others. I do not accept that any of those authorities go so far as to require that a dissenting view has to be communicated to the other members of a Tribunal. While I do not wish to be taken as accepting that the authorities relied upon on the applicants' behalf went as far as it was contended in regard to the duty to participate and contribute actively to a collective decision, I do not find it necessary to address that matter since it seems to me to be established by the evidence that Mr Wu did participate. In that regard it is important to bear in mind that although Mr Wu was originally a party to the proceeding, he disengaged himself and did not provide any direct evidence. What he is claimed to have told Mr Siu and Mr Cheung was simply provided by way of hearsay evidence from them with the obvious risk of misunderstanding and inadvertent inaccuracy. What he is so claimed to have said, he denied in important respects in his letter to the Tribunal. Moreover, as the judge observed, Mr Wu had a strong incentive to misrepresent the part he played in the Tribunal's deliberations. In the result, very little reliance can be placed upon anything Mr Wu represented or said. The non-participation submission is founded upon the hearsay evidence of what Mr Wu is said to have told Mr Siu and Mr Cheung. His written statement tends to contradict it. The determinative evidence must therefore be the affirmation of Burrell J which clearly establishes that Mr Wu did participate. Suggestions to the contrary emanating from Mr Wu are not worthy of consideration. This submission must also be rejected.

Bias

56. The suggestion here is that as a friend, acquaintance or simply a fellow member of the King's College Old Boys Association, who had declared that connection to his fellow members of the Tribunal, Mr Wu was likely to have been in effect biased against Mr Cheung in an attempt to impress the other two members with his impartiality towards, and the absence of any partiality for, Mr Cheung.

57. Fortuitously, there have recently been two major decisions upon the matter of bias and interests that give rise to bias, one in the House of Lords (R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [1999] 2 WLR 272) and the other a judgment of the English Court of Appeal (Locabail (UK) Ltd v Bayfield Properties and anr, unreported, given on 17 November 1999). It is not suggested that there is here any personal or pecuniary interest of the sort dealt with in Dimes v The Proprietors of the Grand Junction Canal (1852) 3 HL Cas 759 or Re Pinochet (No. 2) or indeed any other similarly automatically disqualifying interest. What is suggested would fall to be tested by the criteria laid down in R v Gough [1993] AC 646 which was considered in Pinochet (No. 2) and in Locabail. The latter authorities, of course, do not bind the courts of Hong Kong and it was not suggested that either had already been adopted here. However, both are of the highest persuasive authority, and for my part, I have no hesitation in adopting the review of the authorities, the reasoning and the views therein so far as they concern the matters that have to be addressed here. The test was put by Lord Bingham CJ in the following way at paragraph 16 of Locabail:

"Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the Tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him."

58. Adopting that test, in addressing the evidence one might have thought that it would be suggested that Mr Wu would favour Mr Cheung as a fellow member of the Old Boys Society. But that is not what is suggested on the applicants' behalf. On the contrary, it is suggested that Mr Wu might have leaned over backwards to be seen to be impartial and so unfairly regarded Mr Cheung's case with disfavour. Mr Cheung himself, like Mrs Emmanuel in the Locabail case (see paragraph 68 of Locabail) could have objected to Mr Wu's membership of the Tribunal as soon as he learned of it, which must have been very early on in the 7-week hearing or even before. In all that time he did nothing. He could not have had any fear of bias. It could not be right for him to wait until he learned of the unfavourable result, and only then set about making his objection.

59. Having regard to all the circumstances, I have no difficulty in reaching the conclusion that there has been no real danger of bias on the part of Mr Wu.

Whether a fit and proper person

60. In reliance upon all the unfavourable aspects of Mr Wu's conduct, not least the probability that he had committed the offence mentioned in disclosing confidential material, it was submitted that he was clearly not a fit and proper person to be a member of the Tribunal. In terms of evidence that can be accepted, this must rest only upon his supplying Mr Chan's notes to Mr Cheung. That submission cannot be sustained upon such a tenuous basis nor in my view upon the other allegations. Moreover, it does not lead to the conclusion that the conclusions of the other two members cannot stand.

Conclusion

61. I would therefore also dismiss the appeal with an order nisi that the Tribunal is to have its costs of the appeal to be paid by the applicants.

62. The appeal is accordingly dismissed with the costs order nisi indicated.

Representation:

Mr Wong Yan-lung, instructed by Messrs Szeto and Yeung, for the Applicants

Mr Nicholas Cooney, S.G.C., instructed by the Secretary for Justice for Financial Secretary

Remarks:
An application for leave to appeal to the Court of Final Appeal. Leave to appeal dismissed. Please refer to the Appeal Judgment FAMV000019/2000.