TT AND OTHERS v. THE STOCK EXCHANGE OF HONG KONG LTD

HCAL 1343/2025

[2025] HKCFI 4325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1343 OF 2025

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D E C I S I O N

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A.  Introduction

1.  By Form 86 dated 11 June 2025, the Applicants seek leave to apply for judicial review so as to challenge and quash a decision (“LRC Decision”) made by the Listing Review Committee (“LRC”) of the Putative Respondent (“Exchange”) on 6 May 2025. The LRC Decision upheld the decision of the Listing (Disciplinary) Committee which found the Applicants had committed certain breaches of the Listing Rules and imposed on them a public statement that, in the Exchange’s opinion, the retention of office by them may cause prejudice to the interests of investors.

2.  The grounds of review advanced are, in summary, that the LRC Decision is illegal and/or tainted with procedural impropriety, in that the LRC’s delegation of work to the Acting Secretary was ultra vires and/or rendered the LRC Decision unsafe and/or amounted to a breach of natural justice. Those grounds are said to arise out of the involvement of the Acting Secretary to the LRC in the production of a draft of the LRC Decision. The Form 86 makes reference to a number of Court of Appeal decisions decided between 2002 and 2006 which considered the circumstances where clerks or secretaries are involved in the drafting or production of a decision by a public authority.

3.  I gave directions to bring the matter to a rolled-up hearing, fixed for 29 September 2025 (less than two weeks away).

4.  Now, by Summons dated 5 September 2025, the Applicants seek an order that the Exchange should produce within three days a copy of the “draft decision” circulated by the Acting Secretary to the Chairperson of the LRC. The Summons invokes RHC Order 24, rules 10, 11 and 11A, and further or alternatively rule 12. The Summons was issued following unsuccessful attempts in correspondence to obtain that (and other related) material.

5.  With the benefit of skeleton arguments and the oral submissions made this morning, this is my Decision.

B.  The Applicable Principles

6.  On behalf of the Applicants, Mr Anson Wong submits that where a party has referred to a document in his affirmation, the opposite party has a prima facie entitlement to see it, unless good cause to the contrary is shown, or unless there is some sufficient ground for refusing production, or unless he can show good cause why he should not produce it. However, he also accepts that any order for production for inspection under Order 24 rule 11 is expressly subject to rule 13(1) which places on an applicant for an order for production a burden to demonstrate to the Court that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

7.  On behalf of the Exchange, Mr Joshua Chan does not dispute those principles.

C.  The Relevant Circumstances

8.  The application arises out of what was said in the evidence filed on behalf of the Exchange for the rolled-up hearing. In the affirmation of Tong Man Leuk, Mr Tong explained the regulatory framework of the Exchange and the role of the Secretary to the LRC.

9.  Dealing with the latter, Mr Tong said:

11 Membership in the LC and the LRC is a significant time commitment. In the case of the LRC, in 2024, the LRC held a total of 27 meetings with most members attending at least a quarter of these meetings. Further, members also need to spend substantial time preparing for review meetings, which often involve voluminous materials. In the present case, for example, the hearing bundle before the LRC comprise 606 pages (Exhibit “CSL-1”).

12 To help reduce the workload, members of the LRC are supported by the Secretary to the LRC in respect of administrative matters. To elaborate:

12.1 The Secretary to the LRC is formally the Head of Listing; however, in practice, the functions of the Secretary are delegated to and carried out by members of the Policy and Secretariat Services team. A member of Policy and Secretariat Services team will be designated to act as the Acting Secretary to the LRC for each particular case.

12.2 Organizationally, the Policy and Secretariat Services team is part of the Listing Division. However, it is functionally separate from the other parts of the Listing Division, including in particular the Listing Regulation and Enforcement team, which is the team responsible for handling post-listing compliance matters of issuers (such as conducting investigations and bringing disciplinary proceedings). The Secretary functions impartially and does not have any interest in the outcome of the review.

12.3 The role of the Secretary in disciplinary review proceedings is specifically set out in the Disciplinary Review Hearings Procedures (Exhibit “CSL-7”)(“Procedures”), which have been designed to comply with the requirements of procedural fairness. Insofar as the preparation of decisions is concerned, paragraph 13.2 of the Procedures explains that the Secretary may be present during the deliberations of the LRC for the purposes of providing administrative support and that the LRC may communicate its decision, findings and reasoning to the Secretary for assistance in recording the decision in writing:

“The Secretary and any legal advisers to the Listing Review Committee may be present during the Listing Review Committee’s deliberations for the purposes of providing administrative and legal support. After the Listing Review Committee has deliberated and arrived at its decision, the Listing Review Committee may communicate its decision, findings and reasoning to the Secretary and/or advisers for their assistance in recording the decision in writing.”

13 In practice, the Acting Secretary will be present during the deliberations of the LRC for the purposes of providing administrative support and recording the LRC’s deliberations. However, the Acting Secretary will not participate in the deliberations of the LRC and will not conduct any research for the LRC (whether during the course of deliberations or at any other time). Only the LRC members will participate in the deliberations of the LRC.

14 After the LRC has deliberated and arrived at its decision, the Chairperson of the LRC will communicate the LRC’s decision, findings and reasoning to the Acting Secretary (who, as noted above, will be present during the deliberations) for assistance in recording the decision in writing. This will be done orally, with the Chairperson identifying for the Acting Secretary the points to be made in the written decision (not dictating the decision verbatim). The Acting Secretary will then reduce the LRC’s decision, findings and reasoning into a draft decision after the meeting (i.e. not in the presence of the LRC members). The Acting Secretary will then circulate the draft decision – which embodies the LRC’s decision, findings and reasoning and nothing more – to the chairperson in the first instance, then to the LRC members for review. The LRC members will scrutinize the draft and, whenever necessary, modify the draft to ensure that it is the product not of the Acting Secretary but of the LRC, properly reflecting the LRC’s meaning. Once the decision has been approved by the LRC, the Acting Secretary will then issue the decision on behalf of the LRC.

10.  The detailed substance of that material had also been provided by the Exchange in a letter dated 20 May 2025, referenced in the Form 86. That letter had been sent in response to the Applicants’ solicitors’ letter dated 14 May 2025 making a request for various details of the involvement of the Acting Secretary, arising from the fact that the LRC Decision had been signed by the Acting Secretary.

11.  By letter dated 19 August 2025, the Applicants’ solicitors wrote to the Exchange’ solicitors to request information and/or documents in relation to the evidence filed. By letter dated 29 August 2025, the Exchange’s solicitors replied confirming, amongst other things:

(1)  The deliberations of the LRC are not transcribed or recorded in writing. Such minutes as are kept – which were disclosed – do not record the details of deliberations.

(2)  The Acting Secretary is present during the LRC’s deliberations (albeit without participating in them), following which the Chairperson of the LRC will orally identify for the Acting Secretary the points to be made in the written decision. Those communications are not minuted or transcribed.

(3)  The Acting Secretary does not maintain any records of time spent on drafting of LRC decisions, including the LRC Decision.

12.  In response to a subsequent request for the “draft decision” expressly referred to in the affirmation evidence, and for confirmation of the date that it was circulated by the Acting Secretary to the Chairperson of the LRC in the present case, the Exchange asserted that the Applicants had failed to explain how the requested documents and information were relevant to the disputed issues, and why they are necessary for the fair disposal of the disputed issues. The Exchange also confirmed that no audio recording was taken of the LRC’s deliberations.

D.  The Arguments

13.  Mr Wong submits that production of the “draft decision” is necessary for disposing fairly of the cause or matter or for saving costs because:

(1)  The Exchange relies on the existence of the “draft decision” said to have been circulated by the Acting Secretary to the Chairperson to support its case that the decision-drafting process in this case followed the general practice of the LRC as set out in the evidence of Mr Tong.

(2)  The reference to the “draft decision” in the evidence is a strong indicator of the relevance of the document.

(3)  Fairness requires production to prove that the Acting Secretary did follow the general practice, and it is difficult to understand why the Exchange is reluctant to produce the document which is readily available.

(4)  The Applicants are entitled not to take the Exchange’s case at face value, and to test it.

(5)  The Court is entitled to compare the “draft decision” with the LRC Decision to assess how similar they are so that the Court can assess (a) whether the LRC Decision is really a product of the LRC itself; and (b) the degree of likelihood that there could be thoughts and expressions which come into a decision which would not otherwise have been there had the LRC itself written its own decision.

(6)  For example, the greater the degree of similarity between the draft and the final product, the less likely the LRC Decision is the independent product of the LRC itself.

(7)  In any event, once a rolled-up hearing has been directed (as in this case), the duty of candour requires production of the document for the Exchange to meet its obligations to be “full and frank”.

(8)  Candid disclosure must not be selective, and documents should be produced since the document is the best evidence of what it says. Communication of the substance of undisclosed primary documents is an insufficient alternative to producing or exhibiting the primary document itself.

14.  Mr Chan states that the Exchange has not shied away from confirming that the Acting Secretary did produce the “draft decision”, but that the Exchange has also made clear in its evidence that it followed the procedure set out in §12.3 of its Disciplinary Review Hearings Procedure. Therefore, the core issue for determination at the rolled-up hearing is whether the delegation of drafting to the Acting Secretary leads to the conclusion that the LRC Decision is unlawful or tainted with procedural impropriety – or whether the procedure adopted by the Exchange is lawful in light of the guidance provided by the Court of Final Appeal in Medical Council of Hong Kong v Helen Chan (2010) 13 HKCFAR 248.

15.  Therefore, Mr Chan submits that the way in which the various documents and information have been sought – prior to the Summons – suggests the Applicants are attempting to shift from their pleaded contention (which is in effect a systemic challenge against the Exchange’s procedure of delegating the drafting of its written decisions) to a new and unpleaded case relating to the specific manner in which the Acting Secretary drafted the LRC Decision in this case. This, he submits, is a fishing expedition seeking factual material which the Applicants would hope might support that new and unpleaded case. As he submits:

(1)  There is no real factual dispute as to the Acting Secretary’s involvement in drafting the LRC Decision.

(2)  Any suggestion that the Court should compare the draft decision with the final product cannot advance the Applicants’ case.

(3)  There is no pleading in the Form 86 which asks the Court to conduct any inquiry into the precise extent to which the Acting Secretary was able to capture the specific thoughts and expressions of the LRC.

(4)  In any event, the comparison exercise would lead nowhere. If the draft decision and final product are similar, that would only show the draft already reflected the LRC’s thinking. If the draft decision and final product are different, that would only show that the LRC has independently reviewed the draft and modified it to reflect its own thinking.

(5)  Nothing arising from the duty of candour requires production documents which are not necessary for disposing fairly of the issues before the Court.

(6)  In any event, the application should be dismissed on the ground of lateness.

16.  As to the suggestion that the Summons has been issued late, Mr Wong explained the chronology. He relied on the fact that Mr Tong’s evidence was only filed on 22 July 2025, and a request for information and documents was made on 19 August 2025, shortly after my own decision in LN v Commissioner of Police [2025] HKCFI 3604 was handed down on 15 August 2025 confirming that the duty of candour extended to the circumstances where there had been directed a rolled-up hearing.

17.  Mr Wong also suggested that it was only clear that the Acting Secretary had drafted the LRC Decision upon receipt of Mr Tong’s evidence, because prior to that point the correspondence had only identified that “the LRC communicated its decision, findings and reasoning to the Acting Secretary for assistance in recording the decision in writing”. However, I note that suggestion is contrary to the Applicants’ and Mr Wong’s own clear understanding demonstrated in the Form 86 at §63. Nevertheless, I do not need to decide this application by reference to the timing of it being made.

E.  Analysis

18.  I otherwise accept the submissions made by Mr Chan.

19.  It seems to me that the pleaded challenge as made in the Form 86 is indeed akin to a systemic challenge to the Exchange’s published procedure of delegating the drafting of written decisions to the Acting Secretary. This seems to me to be clear from the whole structure of the pleaded challenge as well as its detail. The Form 86 at Section C.1 sets out the relevant legal principles said to be applicable, with the emphasis that any involvement of a clerk in drafting a decision, even a first draft which is subject to later checking, “must in itself” be wrong. The conclusion of that section is in §61, which says in terms:

All in all, a tribunal’s delegation of drafting work to its clerk would be illegal and/or render it unsafe and/or amount to a breach of natural justice.

20.  The following part of the Form 86 at Section C.2 expressly relies on the fact that the LRC “admitted” that the Acting Secretary was present during the deliberations of the LRC to provide administrative support and that after the LRC had deliberated and arrived at its decision, the LRC communicated its decision, findings and reasoning to the Acting Secretary for assistance in recording the decision in writing. Again referencing the dangers arising from another person taking over the role of writing the decision, even the first draft, it is suggested that the complex and nuanced nature of the arguments placed before the LRC further added to the danger that they could be thoughts and expressions which came into the LRC Decision which would not otherwise have been there had the LRC itself written its own decision. The Form 86 concludes that section in §68, which states:

In the circumstances, “there must be grave suspicion that at the very least justice does not appear to have been done”. The LRC’s delegation of work to the Acting Secretary was ultra vires and/or rendered the LRC Decision unsafe and/or amounted to a breach of natural justice. Therefore, the LRC Decision is illegal and/or tainted with procedural impropriety, and should be quashed.

21.  I reject the submission made by Mr Wong orally to the effect that the way in which the Form 86 is framed is the high watermark of the Applicants’ case, but that there may be some middle ground between the extremes put forward on both sides. That middle ground, he said, might require or permit the consideration of the particular facts of this case as being indicative of the procedural impropriety of which complaint is made. Instead, it seems to me that the Applicants have pleaded the basis of their challenge (see above), and the application now made has all the marks of a fishing expedition.

22.  In any event, I accept Mr Chan’s submission that the invited comparison exercise between the draft decision and final product would lead nowhere. As he pointed out: (1) if the draft and final product are dissimilar, that would only show the LRC members’ input in ensuring that the LRC Decision captured its intended reasoning (which the Acting Secretary had failed to achieve); and (2) if the draft and final product are very similar or even exactly the same, that would only show that LRC members took the view that the Acting Secretary had captured their intended reasoning.

23.  I also do not think that it necessarily or logically follows that the greater the degree of similarity between the draft and the final product, the less likely the LRC Decision is the independent product of the LRC itself. I reject Mr Wong’s submission to the contrary.

24.  In this regard, I also take into account the Exchange’s evidence as regards its published procedures (see above), and the affirmation that those procedures were followed in fact in this case. This seems to me to be no proper basis to think otherwise, and I am disinclined to allow a fishing expedition in the hope of finding any such basis.

25.  I do not think there is any relevant dispute as to underlying facts for which production of the “draft decision” is either necessary for fairly disposing of the matter, or for saving costs. Indeed, it seems to me that any order for production as sought by the Summons would only unnecessarily increase costs, and possibly unnecessarily derail the hearing already fixed to take place within the next two weeks.

26.  I do not think Mr Wong would be prejudiced in any way in arguing the Applicants’ case as raised by the Form 86 without production of the “draft decision”. It does not matter how easy production would be if its production is neither necessary for the fair disposal of the matter nor for saving costs. Here, its production is simply not necessary.

E.  Result

27.  As a result, I dismiss the Summons and I order that the Exchange’s costs of the Summons are to be paid by the Applicants, payable forthwith and subject to summary assessment. The Exchange has provided a Statement of Costs, and I give the Applicants seven days within which to provide any List of Objections. Thereafter, I shall proceed to the summary assessment.