Re OTIS ELEVATOR CO. (HK) LTD.

1993, No. MP 3609

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is an application by Otis Elevator Co. (H.K.) Ltd (Otis) for declarations and orders of certiorari and prohibition in respect of a decision of the Registered Lift Contractors Disciplinary Board (the Board) which is appointed under s. 11E of the Lifts and Escalators (Safety) Ordinance, Cap. 327, dated 28th September 1993. The application is brought pursuant to leave given by Liu, J on 18th October 1993.

2. The relief sought is as follows:

1. A declaration that section 11E (in particular subsection (1), (2) & (3) thereof) and/or section 11G of Cap. 327 have been repealed by section 3(2) of the Hong Kong Bill of Rights Ordinance since 6th June 1991.

2. A declaration that the Disciplinary Board having been purportedly appointed in or about December 1991 to adjudicate on a complaint against the applicant is invalidly appointed or constituted and has no jurisdiction to adjudicate on the said complaint.

3. An order of certiorari to remove into the High Court and quash the said decision delivered on 28th September 1993.

4. An order prohibiting the Disciplinary Board from further proceeding with hearing or determining the said complaint against the Applicant.

5. An order prohibiting the Director of Electrical and Mechanical Services (the Director) from further purporting to appoint a Disciplinary Board under the said section 11E and to refer the said complaint against the applicant to such Disciplinary Board under the said section 11G.

Background

3. The background to this matter is that the applicant, a very well known lift contractor in Hong Kong, was responsible for the maintenance of the lifts at Block 1, Scenic Garden, 9 Kotewall Road, Midlevels, Hong Kong. On 14th March 1992 while maintenance work was being carried out on one of the lifts a tragic accident occurred wherein a member of the public fell down a lift shaft and was killed. As a result of that the Director of Electrical and Mechanical Services (the Director) brought the matter to the notice of a Disciplinary Board appointed under s.11E of the Ordinance as it appeared to him that the applicant had in the carrying out of the lift works being guilty of negligence or misconduct. The charges which were brought by the Director were:

Charge A

4. The applicant did fail to take the necessary safety measures to safeguard the public against the risk of accident when engaged in the repair of lift No. 2 in that it (i) bypassed the door safety circuits of the lift under its normal mode of operation, and (ii) failed to disable the car door operator so as to prevent the opening of the car door and landing door of lift No. 2, and (iii) failed to switch the lift to inspection mode.

Charge B

5. When engaged in the repair of lift No. 2 did fail to ensure that the safety requirements laid down in Electrical and Mechanical Services Department Circular No. 2/91 of 9th July 1991 were complied with by its employees, in particular by one IP Lai-chuen, lift mechanic, in that (i) it failed to put up conspicuous notices in Chinese and English on the landing doors of lift No. 2 to notify the intended users that the lift was out of service; (ii) it failed to block the lift car entrance such that intended users could not inadvertently enter the lift car.

6. It was alleged that in each case the applicant had been guilty of negligence. S.11G provides that a charge may be brought if the Director considers that the negligence has been such as to-

(a) render the lift contractor unfit to be on the register of lift contractors; or

(b) make the further inclusion on the register of lift contractors of the lift contractor prejudicial to the due administration of the Ordinance; or

(c) render the lift contractor deserving of censure.

The section goes on to provide in sub-section (2) that if, after due inquiry, the disciplinary board is satisfied that the lift contractor has been guilty of such negligence it may order:

(i) that the name of the lift contractor be removed from the register of lift contractors permanently or for such period as the board directs; or

(ii) that the lift contractor be fined a sum not exceeding $50,000 or

(iii) that the lift contractor be reprimanded.

7. The letter from the Chairman of the Board which was set up to hear this complaint begins with the following words:

"The Director of Electrical and Mechanical Services has brought charges against you to the notice of a disciplinary board appointed under the Lifts and Escalators (Safety) Ordinance, Cap. 327. I now advise you of the time, date and venue of the hearing which are as follows:

Date : 15 January 1992

Time : 9:30 a.m.

Venue : Conference Room, 8/F EMSD Headquarters, 98 Caroline Hill Road, Causeway Bay, Hong Kong.

The charges against you are as indicated on the attached list and the following persons have been appointed to be members of the Board:

Mr. KUOK Hoi-sang
Mr. David CHAN Wing-keung
Mr. TAM Shang-too
Dr. Stephen LINGARD
Dr. Edwin TAO Hsueh-chi"

8. The letter then goes on to set out the penalties that may follow. A finding that the applicant had been negligent and finishes with the following paragraph:

"Finally you are advised that the case for the Director of Electrical and Mechanical Services will be presented by Ms. P. Scully, Senior Crown Counsel, who may be reached at the Attorney General's Chambers, 2/F, High Block, Queensway Government Offices, 66 Queensway, Hong Kong."

The letter is signed "Hubert N.H. POON, Chairman of the Board".

The Relevant Law

9. Section 11E of the Ordinance provides as follows:

"(1). The Director may, whenever it is necessary to do so for the purposes of section 11G, appoint a disciplinary board.

(2). Every disciplinary board appointed under this section shall consist of-

(a) one person who is a member of the panel appointed under section 11F;

(b) one person whose name is included in list II kept under section 3(2)(b) of the Buildings Ordinance and who is a member of the panel appointed under section 8A;

(c) 3 members who are members of the panel appointed under section 8A(1)(a), (b) or (c), of whom at least one shall be qualified as an electrical or electronic engineer and at least one as a mechanical or building services engineer; and

(d) the Director or his representative.

(3) The Director or his representative, or such other member of the disciplinary board appointed under this section as the Director may appoint, shall be the chairman of a disciplinary board appointed under this section, and the chairman shall determine the procedure of the board.

(4) A legal officer may be present at any proceedings of a disciplinary board appointed under this section to advise the chairman on any matter.

5) A member of a disciplinary board appointed under this section, other than a member who is a public officer, shall be remunerated at such rate as the Financial Secretary may determine from time to time or in any particular case."

10. There is a right of appeal from a decision of a disciplinary board and this is provided by section 11I. It reads as follows:

"(1) Any lift contractor or escalator contractor aggrieved by any order made in respect of him under section 11G(2) may appeal to a judge of the High Court, and upon such appeal the judge may confirm, reverse or vary the order of the disciplinary board or may remit the matter to the board with his opinion thereon.

(2) Notice of any such appeal shall be given by the lift contractor or the escalator contractor within one month from the date of such order.

(3) Save as otherwise provided in this Ordinance, the practice in relation to any such appeal shall be subject to any rules of court made under the Supreme Court Ordinance.

(4) The decision of the judge shall be final."

11. Section 8A of the Ordinance which is contained within the section dealing with registered lift engineers and registered escalator engineers provides that the Secretary for Planning, Environment and Lands may appoint a panel of persons which shall consist of not more than 20 members, of whom not more than 5 shall be members of the Hong Kong Institution of Engineers who are qualified as mechanical or building services engineers, 5 shall be members of the Hong Kong Institution of Engineers who are qualified as electrical or electronic engineers, not more than 5 shall be registered lift engineers or registered escalator engineers, and not more than 5 shall be engineers whose names are included in list II kept under section 3(2)(b) of the Buildings Ordinance. The section goes on to provide that no person shall be appointed to be a member of the Board unless he has been in practice in Hong Kong for a period of at least 10 years and has been recommended by the Director after consultation with the appropriate Institution of which he is a member. Members of the Board panel shall be appointed for 3 years but shall be eligible for re-appointment and may resign at any time.

12. The relevant part of section 8 of the Bill of Rights Ordinance provides as follows:

"All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, all of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by competent, independent and impartial tribunal established by law."

13. The Board appointed to hear the charges against the applicant considered as a preliminary issue the question of whether sections 11E(1), (2) and (3) of the Ordinance admitted of a construction consistent with Article 10 of the Hong Kong Bill of Rights and whether or not the limitation period of 6 months as prescribed in section 28(4) of the Ordinance applied to the disciplinary proceedings against the applicant. In a decision dated 28th September 1993 the Board ruled that sections 11E(1), (2), (3) of the Ordinance did admit of a construction consistent with the Hong Kong Bill of Rights and that the limitation period did not apply to disciplinary hearings. I am concerned here only with the first issue, that of the effect of the Bill of Rights.

14. It is the case for the applicant is that having come to the conclusion that a contractor may have been guilty of negligence and that a disciplinary board should be set up to consider the matter, the Director is the accuser and should not then sit on the Board himself.

15. Section 3(2) of the Bill of Rights states that:

"All pre-existing legislation which does not admit of a construction consistent with this Ordinance is, to the extent of the inconsistency, repealed."

16. The Director having formed an opinion that a registered lift contractor has been guilty of negligence or misconduct, he should not sit as a member of the panel to decide that very issue. Even if the Director or his representative is in fact impartial, there must be the appearance of a possibility of bias.

17. I have been referred to a numerous decisions of the European courts in giving rulings on possible breaches of the convention on human rights upon which the Hong Kong Bill of Rights is based. While helpful, I find there are two decisions which in my view govern this matter and set out the principles very succinctly indeed.

18. The first is the decision of the House of Lords in R. v. Gough (1993) AC 647. The facts are in no way similar to those here but Lord Goff sets out the principles and reviews all the previous decisions on the question of bias.

19. Firstly Lord Goff considers the question of real bias or possible bias and he says at 659:

"A layman might well wonder why the function of a court in cases such as these should not simply be to conduct an inquiry into the question whether the tribunal was in fact biased. After all it is alleged that, for example, a justice or a juryman was biased i.e. that he was motivated by a desire unfairly to favour one side or to disfavour the other. Why does the court not simply decide whether that was in fact the case? The answer, as always, is that it is more complicated than that. First of all, there are difficulties about exploring the actual state of mind of a justice or juryman. In the case of both, such an inquiry has been thought to be undesirable; and in the case of a juryman in particular, there has long been an inhibition against, so to speak entering the jury room and finding out what any particular juryman actually thought at the time of decision. But there is also the simple fact that, bias is such an insidious thing that even though a person may in good faith believe he was acting impartially, his mind may unconsciously be affected by bias - a point stressed by Devlin. L.J. in R. v. Barnsley Licensing Justices [1962] 2 Q.B. 167 at 187. In any event, there is an overriding public interest that there should be confidence in the integrity of the administration of justice, which is always associated with the statement of Lord Hewart C.J. in Rex v. Sussex Justices Ex parte McCarthy (1924) 1 KB 256 at 259 that it is 'of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done'. I shall return to that case in a moment for one of my tasks is to place the actual decision in that case in its proper context. At all events the approach of the law has been (safe on the very rare occasion when actual bias is proved) to look at the relevant circumstances and to consider whether there is such a degree of possibility of bias that the decision in question should not be allowed to stand." (my emphasis)

20. Lord Goff goes on at 661:

"I turn next to the broader question of bias on the part of a member of the relevant tribunal. Here it is necessary first to put on one side the very rare case where actual bias is shown to exist. Of course, if actual bias is proved, that is an end of the case; the person concerned must be disqualified. But it is not necessary that actual bias should be proved; and in practice the inquiry is directed to the question whether there was such a degree of possibility of bias on the part of the tribunal that the court will not allow the decision to stand, such a question may arise in a wide variety of circumstances. These include, but are by no means limited to, cases in which a member of the tribunal has an interest in the outcome of the proceedings, which falls short of a direct pecuniary interest. Such interests may vary widely in their nature, in their effect, and in their relevance to the subject matter of the proceedings; and there is no rule, as there is in the case of a pecuniary interest, that the possession of such an interest automatically disqualifies the member of the tribunal from sitting. Each case falls to be considered on its own facts."

21. Lord Goff then goes on to review in considerable detail the previous decisions relevant to this subject. He cites in particular Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1969) 1 Q.B. 577. At 599 Lord Denning M.R. said:

"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 confidence: and confidence is destroyed when right-minded people go away thinking: "The judge was biased."

22. Lord Goff however considers that that statement laid down a somewhat different test to that of Edmund Davies L.J. in R. v. Barnsley Licensing Justices. He had said:

"Here is an application by the co-operative society and there is sitting to decide at a bench which is wholly composed of members of the society and one woman whose husband was a member of the society, presided over by a Chairman who had interested himself actively in the conduct of the affairs of the society or was desirous of doing so. Is there in those circumstances a real likelihood of bias?"

He went on:

"The court might come to the conclusion that there was such a likelihood, without impugning the affidavit of a justice that he was not in fact biased. Bias is or may be an unconscious thing and a man may honestly say he was not actually biased and did not allow his interest to affect his mind although nevertheless he may have allowed it unconsciously to do so. The matter must be determined upon the probabilities to be inferred from the circumstances in which the justices sat."

23. Having considered these authorities Lord Goff said at 668:

"In my opinion if in the circumstances of the case (as ascertained by the court), it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires the decision should not be allowed to stand. I am by no means persuaded that, in its original form, the real likelihood test required that any more rigorous criterion should be applied. Furthermore the test as so stated gives sufficient effect, in cases of apparent bias, to the principle that justice must manifestly be seen to be done, and it is unnecessary, in my opinion, to have recourse to a test based on mere suspicion, or even reasonable suspicion, for that purpose."

He concludes at 670:

"In conclusion, I wish to express my understanding of the law as follows. I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with Justices or members of other tribunals, or with jurors, or with arbitrators. Likewise I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when itconsiders such a question on appeal. Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer it in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. 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."

24. I am satisfied that the test to be applied in considering whether a person should not sit in a judicial or quasi-judicial capacity when considering any particular matter is whether or not there is a real possibility that he might be biased.

25. A very similar question arose in Wong Pun-cheuk v. Medical Council of Hong Kong and the Attorney General [1964] HKLR 47. There, regulation 15 of the Dangerous Drugs Regulations provided that if the Director of Medical and Health Services was of the opinion that there was reason to think that a registered medical practitioner might be utilising dangerous drugs otherwise than for medical treatment, the Director could refer the case to the Medical Council for examination and consideration and if the Medical Council so recommended the Director might by notice in the gazette withdraw the authorisation of the medical practitioner to be in possession of or to supply the drugs. The Director wrote a letter to the plaintiff, a medical practitioner, informing him that his use of a certain drug had been referred to the Medical Council for examination and the plaintiff was invited to attend a meeting of the Medical Council to explain and justify to the Council his purported excessive use of the drug. An inquiry was duly held by the Medical Council at which the Director was not only a member of the Council but was acted as Chairman. The Council found that the plaintiff had made excessive use of the drug and his authorisation was withdrawn. Section 3 of the Medical Registration Ordinance stated that:

"3(1) There shall be established within the colony a council to be called the Medical Council of Hong Kong.

(2) The Council shall consist of (a) the director;"

26. There is no need to set out the rest of the section but it is similar to section 11E of the Ordinance. It also provides in sub-clause (5) that the Director shall be Chairman of the Council. The only difference in principle from section 11E of the Ordinance is that there is no provision for the Director acting through a representative.

27. Scholes J considered very fully the representations which had been made to him by counsel and the then relevant authorities and first of all came to the conclusion that the Medical Council, a body entrusted with adjudication in disciplinary proceedings in respect of medical practitioners, was a quasi-judicial body and was required to do natural justice and to act judicially. He then went on at 79:

"Secondly, it is clear that the Director, under regulation 15 of the Dangerous Drugs Regulations has to be of the relevant opinion, which opinion would in no doubt not regard the suspect as being innocent, before he refers the case to the Medical Council for their decision on the case as to whether or not to make the relevant recommendation, and it thus appears that he is in the position of a complainant or accuser, having presumably previously gone into the evidence available in order to form the relevant opinion, and being of the relevant opinion refers the case for decision to the Medical Council. At the hearing of the inquiry the decision on the case as to whether or not to make the relevant recommendation is made by the Medical Council, and therefore the members of the Council are the judges of the case, and have to adjudicate whether or not the recommendation should be made. It is also clear that the Director is not only a member of the Medical Council but he is also its chairman because section 3 of the Medical Registration Ordinance says so, although there is provision for an acting chairman should the Chairman be absent and therefore the Director is by right not only a member but chairman of the Medical Council and as such clearly has the right under the section to sit as chairman of the Council. It thus appears from regulation 15 by the insertion of the Medical Council into it, that the Director should not only be the complainant but that he should be Chairman of the judges to judge the complaint, there being no reservation that he is not to do so, and the Medical Council clearly having him as chairman. This seems to me to be contrary to the legal principle that a person should not be a judge in his own cause which is what the regulation, as at present constituted as I have pointed out, in my opinion lays down, and it therefore appears to me to be unjust, and I cannot think that that it could have been the intention of the Legislature in section 11 of the Dangerous Drugs Ordinance."

28. Scholes J therefore for those reasons came to the conclusion that regulation 15 on the Dangerous Drugs Regulation was ultra vires the enabling powers in section 11 of the Dangerous Drugs Ordinance.

29. Mr. Bridge who appears here for the applicant relies on that authority together with other more recent decisions in the European Court of human rights such as Piersack v. Belgium (1982) 5 EHRR 169 where the court held that:

"The mere fact that a Judge was once a member of the Public Prosecutors Department is not a reason for fearing that he lack impartiality. If an individual after holding an office in the Public Prosecutors Department whose nature is such that he may have to deal with the case in the course of his duties subsequently sits in the same case as a Judge the impartiality of the tribunal is capable of appearing open to doubt. This constitutes a violation of Article IV (1)."

30. In DeCubber v. Belgium (1984) 7 EHRR 236, it was held that

"The presence of the investigating judge as a member of the trial court did give the applicant legitimate grounds for doubting the impartiality of the trial court. His powers and status were in certain respects similar to those of a proceueur du roi. His preparatory investigation was conducted in secret in the absence of the parties and unlike the other trial judges he would have particularly detail knowledge of the case which might allow him to play a crucial role in the trial or give him a pre- formed opinion."

31. Complaint is also made by the applicant that the Director is a person who makes recommendations to the Secretary for Planning, Environment and Lands as to the appointment of members of the Disciplinary Board Panel pursuant to Section 8A of the Ordinance. Not only therefore is he to be the Chairman of any Disciplinary Board which is set up but he is the person who obviously plays the major role in deciding who shall be the other members of the Disciplinary Board. That again is contrary to section 8 of the Bill of Rights.

32. For the respondents it was argued by Miss Linda Shine, Senior Crown Counsel that the provisions for the appointment of the members of the Disciplinary Panel and of the Director or his representative as Chairman of the Disciplinary Board did not contravene section 8 of the Bill of Rights Ordinance. Her submissions were but that section 11I provides an unlimited right of appeal from any decision of the Board to a Judge of the High Court and if there was such an appeal it would be by way of re-hearing pursuant to Order 55 rule 3 of the Rules of the Supreme Court. The Judge's decision would then be final. She submits that therefore it is the constitution of the High Court which must meet the requirements of the Bill of Rights. Reliance is also placed on Campbell and Fell v. United Kingdom (1984) 7 EHRR 165. There it was held that in determining whether a body could be considered independent of the executive and the parties the court should have regard to the manner of appointment of its members, the duration of their terms of office, the existence of guarantees against outside pressures and the appearance of independence. That case was concerned with the hearing of disciplinary charges by the Visitors of one of her Majesty's prisons such Visitors having been appointed by the Home Secretary. Although members of the Boards of Visitors were appointed for relatively short periods by the Home Secretary, they were subject to removal by him and were closely involved in supervising the administration of the prison. They were in practice irremovable and acted independently in their adjudicatory functions. There was no evidence to rebut the presumption of the personal impartiality of niembers of a tribunal nor in the organisation of the adjudicates and process was there any appearance of a lack of impartiality. The court held that there was no evidence of any unfairness or miscarriage of justice in the conduct or outcome of the proceedings.

33. It was also submitted that in this case the Chairman was not in fact the Director and had played no part in the process prior to actually sitting in the case. He was sitting in his personal capacity and had no way of referring back to the Director once the disciplinary hearing proceeds. Mr. Albert Poon is the Assistant Director of an entirely different division of the Electrical and Mechanical Services Department from the one which is involved with lift contractors.

34. It was submitted by Miss Shine, referring to the notes of procedure to be adopted at the hearings which are supplied to the applicant, that at the beginning of the enquiry the Chairman would confirm with the interested parties that they have no objection to the composition of the Board. The case is not presented by the Director himself but by Crown Counsel. She did however concede that in the notes of procedure it states that he is "Counsel for the Director".

35. Heavy reliance was also placed by Miss Shine on the presumption of impartiality. She referred to Albert & Le Compte v. Belgium (1983) 5 EHRR 533 at 543. The court said:

"In principle the personal impartiality of the members of a tribunal must be presumed until there is proof to the contrary. (See the above mentioned Le Compte Van Leuven & De Meyere judgment). Dr. Le Compte did indeed avail himself of his right of challenge but he did so in such a vague fashion that his objection could not be regarded as well founded. As for impartiality, judged from an objective and organisational point of view there is nothing in the material submitted to prompt the court to call the matter into question. In particular the manner of appointment of the medical practitioners sitting on the appeals counsels provides no calls for treating those individuals as biased: although elected by the Provincial Councils they act not as representatives of the ordre des medecins but like the legal members nominated by the Crown in a personal capacity."

36. It was submitted that here the Director is not both the judge and the prosecutor in its own cause. Reliance was placed on Leeson v. General Council of Medical Education and Registration (1889) 43 Ch. 366. There, the General Council sat to consider a complaint brought by the Medical Defence Union against a practitioner for infamous conduct. Of the 29 persons who conducted the enquiry, it was discovered that 2 were actually members of the Medical Defence Union. At 381 Cotton L.J. said:

"Then as regards the question whether they are to be considered as complainants here, we ought to look to substance, and not, because this complaint is brought by the Council in the name of the Union, to say that a person, a member of a union, who has nothing to do and can have nothing to do with bringing forward this complaint, is to be treated as a prosecutor or as one of the persons who is bringing forward this complaint. The term "prosecutor" is sometimes objected to, that I use it for the sake of simplicity. Therefore it cannot be said that these two members were incompetent to act because they were adjudicating upon a complaint brought forward by themselves".

37. Bowen L.J. at 384 said:

"As the Lord Justice has said, nothing can be clearer than the principle of law that a person who has a judicial duty to perform disqualifies himself for performing it if he has a pecuniary interest in the decision which he is about to give, or a bias which renders him otherwise than an impartial judge. If he is an accuser he must not be a judge."

However having said that he goes on:

"But having said that, I come back to the point which we have to decide, whether these two gentlemen took any part whatever in the prosecution either by themselves or by their agents. It appears to me, in spite of the cloud which the ingenuity of the Appellant's Counsel raised upon the point, that the true answer must be here upon the facts - and it is a question of fact - in the negative."

38. Fry L.J. took the opposite view and found that as the Medical Defence Union was the complainant membership of that organisation by two of the persons who sat on the Board was sufficient to make its decision invalid.

39. I am satisfied that the general provisions relating to the appointments by the Secretary for Planning, Environment and Lands under section 8A(1) of the Ordinance does not offend against the Bill of Rights merely because under ss.(2) such person shall not be appointed unless they have been recommended by the Director. In the case of members who are to be from the field of mechanical or building services engineers or electrical or electronic engineers, the Director must consult the appropriate institution. It seems to me that the manner in which the panel is appointed is proper and would not give the slightest impression of partiality. It is difficult to see how a panel could be appointed in any other way. I am satisfied that the Crown rightly can rely on what was said in Campbell & Fell v. United Kingdom for that proposition. I am however equally satisfied that the provision in section 11E(2)(d) that the Director or his representative shall be a member of the Disciplinary Board appointed under that section clearly does contravene section 8 of the Bill of Rights. There can in my view be no doubt whatever that the Director is the prosecutor or complainant. The very wording of the letter to the appellant from the Director which begins "The Director of Electrical and Mechanical Services has brought charges against you" makes that absolutely clear. I do not think it matters what word is used and it is therefore wrong for him or his representative to sit on the Board and even more so to be the Chairman. This is in my view a clear case of a person sitting as a judge in his own course. As Scholes J. said in Wong Poon-chuek at 79,

"It thus appears from regulation 15 by the insertion of the Medical Council into it that the Director should not only be the complainant but that he should be the Chairman of the Judges to judge the complaint. This seems to me to be contrary to the legal principle that a person should not be a judge in its own course which is what the regulation as at present constituted as I have pointed out in my opinion lays down and it therefore appears to me to be unjust."

The situation here, it seems to me, is virtually identical.

40. It has been stressed by the Crown that in this case the Director did not intend to sit himself as Chairman of the Board but had appointed Mr. Poon as his representative, Mr. Poon being the head of another division of the Department. There is of course not the slightest suggestion that Mr. Poon would in fact be other than impartial and independent but that is not the point. He is sitting as the Director's representative and as such must be standing in the shoes of the Director. As was said in Gough bias is an insidious thing. A person may not consider that he is being in any way biased but if his position is such that he could unconsciously be biased then he should not sit as part of a tribunal exercising quasi-judicial functions. To quote the classic phrase of Lord Hewart in Sussex Justices "Justice must not only be done but must be seen to be done."

41. I therefore have no doubt that section 11E II(d) of the Ordinance whereby the Director or his representative shall be a member of the Disciplinary Board appointed under the section is inconsistent with the Bill of Rights and must be deemed to have been repealed as from the 6th June 1991. There will accordingly be an order of certiorari to remove into the High Court and quash the decision of the Disciplinary Board delivered on the 28th September 1993 and a declaration that the Board was invalidly appointed. It would follow that the Board would have no jurisdiction to hear the complaint against the applicant.

42. The applicant seeks a further order prohibiting the Director from appointing a new Board under section 11E to hear the complaint against the applicant. The only ground for doing so is that the manner in which the other members of the Board are appointed is also contrary to the Bill of Rights in that the members of the panel from which the Board is selected are appointed on the recommendation of the Director. I do not consider that there is anything improper in that and those provisions are not contrary to the Bill of Rights. I therefore decline to make that order.

43. There will however be liberty to either party to apply for any further consequential orders in the light of this decision.

44. There will be an order nisi that the applicant is to have the costs of this application.