Read the full judgment text of CACV 000162/1998 on BabelCite. This Court of Appeal judgment was delivered on 27 January 1999 before Mortimer VP, Godfrey JA, Rogers JA.
Administrative law – judicial review – Insider Dealing Tribunal – Securities (Insider Dealing) Ordinance (Cap. 395) – role of counsel appointed to act for the Tribunal under para. 18 of the Schedule – private meetings and deliberations of the Tribunal with counsel – allegations of insider dealing in shares of CNPC (Hong Kong) Limited (formerly Paragon Holdings Limited) – respondents not attending hearings but represented by solicitors in Malaysia – whether private meetings between Tribunal and counsel evaluating evidence and assisting in drafting the report breached the rules of natural justice and fairness – whether the Tribunal was entitled to receive evidence after public sittings in private meetings – whether the Tribunal pre-judged the issues – whether the respondents were unfairly treated by not being provided with new evidence and the draft report for comment – whether the Tribunal could properly appear as a party in judicial review defending its own procedure – Capital 395, Schedule paragraphs 14, 16 and 18 – main issue whether the procedure adopted by the Tribunal was fair and complied with the rules of natural justice – holding that the procedure was unfair and in breach of the rules of natural justice because counsel for the Tribunal made detailed private submissions on the evidence and on the draft report without the parties having any opportunity to answer – holding that reception of evidence other than at a public sitting was not permissible under the Ordinance, but providing such evidence to other parties but not to the non-attending respondents did not cure the unfairness – holding that the evidence was not sufficient to support a finding of pre-judgment, since a fact-finding tribunal may form provisional views during the evidence – holding that the respondents were unfairly treated by being excluded from circulation of the draft report for comment when others received it – holding that although it was unusual for the Tribunal to appear as a party in its own judicial review, it was not wrong for it to do so, although its members put themselves personally at risk in costs – appeal dismissed with an order nisi for costs against the appellant.
Legal issues: Permissible role of counsel for the Insider Dealing Tribunal in private deliberations · Reception of evidence outside public sittings · Pre-judgment of issues by the Tribunal · Fairness in not providing draft report and new evidence to non-attending respondents · Propriety of the Tribunal appearing as a party to defend its own decision in judicial review
Outcome: Appeal dismissed; findings of the Insider Dealing Tribunal quashed.