DAY BRIGHT DEVELOPMENT LTD AND OTHERS v. THE PERSONAL REPRESENTATIVES OF WONGBING (DECEASED）AND OTHERS

LDCS16000/2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LAND COMPULSORY SALE APPLICATION NO. 16000 OF 2012

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D E C I S I O N

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1.  On 30 May 2013, I set down this application for trial before a member sitting alone after confirming with the parties that there would unlikely be any dispute. The trial is due to start at 10 am today before Member Pang.

2.  The tribunal received a letter yesterday in which the applicants expressed that in view of the association between Member Pang and the applicants’ valuation expert (Mr Charles Chan) and the Court of Appeal judgment in Superb Quo Limited v Lee Yuen Cheung Company Limited[1], it might be prudent to have another member hearing the application.

3.  In gist, the applicants say that Member Pang was associated with Mr Chan in three aspects:

(1) they worked in the same professional valuation firm before, and had social and business contacts;

(2) Member Pang worked for a property investment company which had been a long-term client of Mr Chan, and they had frequent business dealings during that time; and

(3) they were both members of General Practice Divisional Council of the Hong Kong Institute of Surveyors and had met regularly in that capacity and had occasional social gatherings.  It is said that they had agreements and differences in opinions on various issues in that context.

4.  Member Pang has provided a written response to the applicants’ letter in which he stated that:

(1)   Between January 1998 and June 2004, he and Mr Chan worked in Chesterton Petty.  However, they attended different offices (Member Pang in Sheung Shui whereas Mr Chan worked in the head office in Admiralty) and worked on different projects (Member Pang worked on the West Rail project whereas Mr Chan’s work was unrelated to West Rail).  They only had social and business contacts once in a while.

(2)   Between April 2012 and February 2013 when he was working in Toyo Mall, he had business dealings with Mr Chan.  To be more precise, Member Pang assisted Toyo Mall’s sole executive director and gave instructions to Savills for professional advice.  Mr Chan was then the management director of Savills.  During that period, they occasionally met in meetings and there were also occasional contacts between Member Pang and Mr Chan’s subordinates.

(3)   They both served as members of General Practice Divisional Council of the Hong Kong Institute of Surveyors between 2003 and 2013.  The Council held monthly meetings in which affairs relating to the professional body were discussed.  There attended social functions such as annual dinners but they never met in private functions.

5.  Having seen Member Pang’s response, the applicants do not dispute its content and no longer press for a recusal. The applicants’ letter and Member Pang’s response were shown to the 4th, 7th and 9th respondents (all represented by the 9th respondent) and they have no objection to Member Pang presiding over the trial.  Nonetheless, this tribunal still has to deal with the question of recusal as it has been raised.

6.  The Court of Appeal observed in paragraph 41 of Superb Quo that the question of recusal was one of law and a lay member was not likely to contribute to its resolution.  The member should not be asked to take up the invidious position of judging his own cause and the application should be dealt with by someone else in the tribunal.  That is why I am here to deal with the matter.

7.  I should emphasise at the outset that there is not the slightest allegation of actual bias and all that is alleged, at the most, is apparent bias.  On that I am guided by paragraphs 7 and 8 of Superb Quo as to the applicable test.

8.  Superb Quo was a hotly contested trial with disputed expert evidence.  The tribunal’s findings on the expert evidence would have a significant impact on its decision as to whether a compulsory sale order should be made: see paragraph 6 of the judgment.

9.  The majority of the Court of Appeal (consisting of Rogers VP and Le Pichon JA) were concerned that the longstanding acquaintance between the member and the expert there, and the fact that they played sports together would have engendered a degree of camaraderie which would lead to some form of subconscious bias.  Emphasis was made to the fact that the member and the expert emanated from “the same stable” and it would be natural for the member to have a view on the expert’s expertise and competence.  In those circumstances, the Court of Appeal concluded, there was a real possibility that the member would be more receptive than he otherwise would be to the expert’s professional opinion and that the member’s regard for and perception and appreciation of the expert’s evidence would be heightened, especially when, on any particular issue, the line between the competing views happens to be finely balanced.  The court took a prudent approach and leaned on the side of being safe than sorry in ordering the replacement of the member.

10.  In my view, this case is very different.

(1)   The trial of this application will not be contested.  Out of the five remaining respondents, two of them cannot be located.  Only the 4th respondent put in a Notice of Opposition, but the opposition is unrelated to Mr Chan’s valuation. None of the respondents is maintaining any active opposition, and no one other than the applicants, has put in expert evidence on valuation.

(2)   Of course, the tribunal will still have to perform its statutory function under section 4 of the Land (Compulsory Sale for Redevelopment) Ordinance, which include ruling on the expert valuation of Mr Chan on the EUV of the units comprising the lot and the RDV of the lot.  Significantly, there is no other expert evidence in this case alternative to those from Mr Chan.

(3)   Unlike Superb Quo, there is no suggestion that Member Pang and Mr Chan came from the same stable.

(4)   They only know each other professionally.  They both worked for Chesterton Petty before, but in different offices and on different projects.  They had business contacts when Toyo Mall engaged the professional services of Savills, and they both sat on the Council of their professional body.

(5)   Other than the occasional social functions, such as annual dinners of their professional body, they do not maintain a relationship at a social level.  They certainly do not play the same sports.

11.  In my view, a fair-minded and informed lay observer bearing the attributes mentioned in paragraphs 46 and 47 of Superb Quo would appreciate that there is no personal friendship or animosity between Member Pang and Mr Chan.  Although they know each other on a professional level, their relationship can be regarded as casual acquaintance.  It does not appear that there were substantial personal dealings for Member Pang to develop a sense of camaraderie which would lead to subconscious bias.

12.  It is inevitable (given the small number of valuation professionals in Hong Kong) and indeed unreasonable (given the professional standing of Member Pang) to expect Member Pang not to run into professionals whom he had professional dealings before in the course of discharging his judicial duties.  All is a matter of degree, and a fair-minded and informed observer would, in my view, appreciate all these niceties.  I do not see how it can be said in the circumstances of this case that the ability of Member Pang to bring an objective judgment to bear on the issues before him can be compromised.

13.  For these reasons, the application to recuse Member Pang is dismissed with no order as to costs.

[1] Unreported, HCMP 29/2011, 14 February 2011.