Re LEE MING TEE

IN THE COURT OF APPEAL

1995, No. 262
(Civil)

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J U D G M E N T

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Litton, V.-P.:

1. On 5 December 1995 Sears J gave leave under Order 53 rule 3 of the Rules of the Supreme Court to Mr Lee Ming Tee to apply for judicial review of decisions made by various bodies of the Stock Exchange which, Mr Lee avers, adversely affected his interests. At the same time Sears J ordered that the judicial review proceedings be initiated by originating motion and be heard in open court. It is this latter order which Mr Lee says is wrong in principle. He says that the right order would have been that the proceedings be heard in chambers; and the originating process, to preserve anonymity, should simply have been entitled "Re a Decision".

2. Mr Lee was at one time a director of Allied Group Limited. It appears that on 15 September 1993 the Commercial Crimes Bureau of the Royal Hong Kong Police Force, pursuant to search warrants, raided a number of premises of the Allied group of companies. The search warrants referred to suspicions of false accounting committed by Mr Lee and others. However, to-date, no criminal charges have been brought, although there is material before us to show that criminal proceedings are likely to be brought. What Mr Lee fears is that if the judicial review should be conducted in open court, as Sears J had ordered, the criminal process might be prejudiced because great publicity is likely to attend the hearing of the judicial review.

3. What we are concerned with in this court is the exercise of a discretion over the conduct of proceedings: a discretion which is vested in the High Court.

4. Order 53 rule 5(1) of the Rules of the Supreme Court says:

"When leave has been granted to make an application for judicial review, the application shall be made by originating motion to a judge sitting in open court or, if the judge granting leave has so ordered, by originating summons, to a judge in chambers."

5. As is clear from the terms of Order 53 rule 5(1) itself, the general rule is that proceedings by way of judicial review should take place in open court. Our system of justice is public justice and members of the public (including the press) have a right of access to our courts. Judicial review is a public law remedy. It will therefore be a rare case that proceedings by way of judicial review are heard in chambers.

6. Are the circumstances here such as might warrant the proceedings to be in chambers? In other words, has counsel demonstrated that the judge has erred fundamentally in the exercise of his discretion? In answering this question, this point should be borne in mind: The judge cannot, on any view, be wholly fettered by this court in the way he chooses to conduct the proceedings; the hearing before the judge is yet to take place; unless we in this court can see our way clearly as to how the judicial review will proceed, we cannot properly interfere.

7. Mr McCoy, counsel for the applicant, says this: The disciplinary proceedings brought by the Stock Exchange against Mr Lee were based upon material which will form the subject-matter of criminal proceedings. The Stock Exchange, he says, has in effect "convicted" Mr Lee; in the course of the judicial review proceedings much of this material will have to be explored, attracting much press publicity. This publicity, he says, might well prejudice future criminal proceedings.

8. The answer to this fear as I see it is simple. If in the course of the hearing before the judge, the reading of material in open court might prejudice future criminal proceedings, the judge can be asked to go into camera for that purpose.

9. In my judgment, the position before us is so nebulous that there simply is not enough material for us to interfere with the judge's exercise of discretion: thereby, in effect, attempting to conduct the future proceedings in the High Court by remote control over the judge's head. This in my judgment is not something we can do.

10. In my view this appeal must be dismissed. This in effect also disposes of the summons which has been adjourned from yesterday morning: that is to say the summons asking a single judge of the Court of Appeal to order that the hearing of the appeal itself should be in chambers.

Godfrey, J.A. :

11. I agree; and would add only this. If, after the Judicial Review has been heard and determined, the applicant considers that he will be unable to obtain a fair trial in any criminal proceedings that may be brought against him, he will be entitled to raise that matter before the judge before whom the criminal proceedings come and to argue that, in all the circumstances, it will not be possible for him to have a fair trial. The judge seised of those criminal proceedings will decide the point one way or the other. That being so, I see no prejudice to the applicant in the course which this court proposes to adopt. I too would dismiss the appeal.

Liu, J.A.:

12. The proceedings or matters have clearly not reached the stage at which the applicant may properly and justifiably canvass his complaints before us. I, too, would dismiss this appeal.