FRANCIS CHEUNG AND ANOTHER v. THE INSIDER DEALING TRIBUNAL

1998 HCAL No. 40

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

____________

____________

_______________

J U D G M E N T

_______________

Introduction

1. This is an application for judicial review. It relates to a hearing before the Insider Dealing Tribunal. What is sought is the quashing of the Tribunal's findings. The grounds are based on the conduct of one of the members of the Tribunal. The facts are so unusual that when opening his case, counsel for the Applicants said:

"This is probably the first case in which a member of a tribunal exercising judicial functions has blatantly breached his duty of confidentiality which he owed to the other members of the tribunal."

Unless otherwise stated, all references in this judgment to "the Tribunal" are references to the Insider Dealing Tribunal, and any reference to an Ordinance is to the Securities (Insider Dealing) Ordinance (Cap. 395).

2. I have taken a little while to hand down this judgment for two reasons. First, I wanted to see the reasons given by the House of Lords in R. v. Bow Street Metropolitan Stipendiary Magistrate ex p. Pinochet Ugarte [1999] 2 WLR 272. I thought that the reasons given for concluding that the links between Lord Hoffmann and Amnesty International which required the House of Lords' earlier order to be set aside might have some bearing on the present case. I did not see the reasons until the beginning of February. Secondly, I wanted further submissions from the parties on a particular aspect of the case. Due to my intervening absence from Hong Kong, I was not able to read those submissions until a week or two ago.

The undisputed facts

3. In April 1997, the Tribunal was required by the Financial Secretary to inquire and determine whether insider dealing in shares in a company then called Chee Shing Holdings Ltd. ("the Company") had occurred in the summer of 1993. The chairman of the Tribunal was Mr. Justice Burrell, and the other two members were Charles Chan and John Wu, who were chartered certified accountants in private practice. No criticism whatever of the conduct of Mr. Justice Burrell or Mr. Chan is made.

4. The Tribunal was required to investigate six persons who were alleged to have dealt in the Company's shares. They included the Applicants, Francis Cheung and Cammie Pang. However, Mr. Wu knew Mr. Cheung. They were both members of the Executive Committee of the King's College Old Boys' Association ("the Association"). Mr. Justice Burrell decided to disclose that to the parties. Accordingly, at the Tribunal's first preliminary hearing on 17th July 1997, Mr. Justice Burrell said:

"Before we discuss the future timetable we have one disclosure to make and it is this. Between 1987 and 1995 Mr. John Wu's company, John Wu & Co., acted as auditors for a company called Multiports Development Co. Ltd. of which Ms. Cammie Pang was a director and, secondly, Mr. John Wu is a member of the same Old Boys' Association Executive Committee as Mr. Francis Cheung Nim Chee. That committee, I am told, comprises about 40 different people.

Mr. Wu has considered his position with regard to these matters and he is satisfied, and therefore the Tribunal is also satisfied, that no conflict of interests will arise or are likely to arise and that Mr. Wu will be able to discharge his duties as a member of the Tribunal properly. However, if any party has any objection to Mr. Wu sitting as a member of this Tribunal whilst also sitting as a Member of the Old Boys' Association Executive Committee, we would like to hear that objection in writing within the next 21 days and if any objection is received then Mr. Wu is perfectly content to withdraw so we will leave that matter for your consideration."

No objection was taken, and accordingly Mr. Wu continued to be a member of the Tribunal.

5. Between 17th November 1997 and 13th February 1998, the Tribunal heard evidence and submissions on 37 days. On 30th March 1998, the Tribunal issued its report. It found, inter alia, that Mr. Cheung and Ms. Pang were insider dealers in relation to their purchase of shares in the Company. The Tribunal stated that it would reconvene in due course to give those persons identified as insider dealers an opportunity to make representations at the penalty phrase of the Inquiry. That hearing has not yet taken place.

Mr. Wu's conduct

6. It is Mr. Wu's conduct, both before the issue of the Tribunal's report on 30th March 1998 and afterwards, which is under scrutiny in this case. The evidence which has been filed relates to various conversations he had with Siu Kam Kan, a former president of the Association, and Mr. Cheung himself. That evidence comes from affirmations made by Mr. Siu and Mr. Cheung. No affidavit or affirmation from Mr. Wu has been filed. Although Mr. Wu wrote a letter to counsel to the Inquiry denying the allegations which were eventually made in the affirmations of Mr. Siu and Mr. Cheung, the fact is that there is no evidence from Mr. Wu contradicting them. Accordingly, what follows is a summary of the uncontested evidence of Mr. Siu and Mr. Cheung.

7. The conversation on 12th February 1998. Mr. Siu and Mr. Wu both played for the Association's football team. After matches or practice sessions, members of the team used to go to a particular bar for a drink. The bar became a place where they would meet on other occasions. Mr. Siu and Mr. Wu met in the bar on 12th February 1998. That was the day before the hearing before the Tribunal ended, although Mr. Siu understood from Mr. Wu that the hearing had already been completed. Mr. Siu asked him what the result was going to be. Mr. Wu said that he did not know what the other two members were going to decide. Mr. Siu asked Mr. Wu what his decision would be if he were not sitting with the other two members. Mr. Wu said that he would not have found the charges and allegations against Mr. Cheung substantiated, and that he would not have made any adverse findings of insider dealing against him. He told Mr. Siu what his reasons were, none of which related to his relationship with Mr. Cheung through the Association.

8. The conversation on 19th March 1998. Mr. Siu and Mr. Wu met in the bar again on 19th March 1998. They met by arrangement in connection with a matter unrelated to the Inquiry. However, on that occasion, Mr. Wu told Mr. Siu that Mr. Cheung had lost the case, and that adverse findings of insider dealing had been made against him. Mr. Siu asked him why. According to Mr. Siu's affirmation, the conversation continued as follows:

"Mr. John Wu told me that Mr. Francis Cheung lost the case because he had been found by the other 2 members of the Tribunal that he had 'probably' committed the matters alleged. I said to Mr. John Wu that as he was one of the members of the Tribunal, he should have performed his own role as to the findings of the Tribunal. However, Mr. John Wu said that as the other 2 members of the Tribunal had already made up their minds to make adverse findings against Mr. Francis Cheung, there was no use or purpose for him to give dissenting views as in any event that would result in a decision of 2 against 1."

9. The conversation on 7th April 1998. A meeting of the Executive Committee of the Association was due to take place on the evening of 7th April 1998. That was a week after the issue of the Tribunal's report. Mr. Cheung had not intended to attend that meeting, but he received a phone call from the president of the Association asking him to attend. Mr. Cheung thought that he heard Mr. Wu in the background urging him to turn up. The fact that Mr. Wu was urging Mr. Cheung to come is confirmed by an affirmation from the president of the Association. Mr. Cheung decided to attend the meeting, albeit briefly, to deal with a particular item for which he was responsible.

10. When Mr. Cheung arrived, the meeting had already started. Mr. Wu was there. Mr. Wu made a gesture to Mr. Cheung as if to apologise. They were sitting sufficiently close to each other for a short conversation to take place. Mr. Cheung said that he had received the report. Mr. Wu told him that he could either object to the report or appeal. Mr. Cheung asked Mr. Wu whether it was proper for them to be discussing the report. Mr. Wu replied that it was not a problem. Mr. Cheung then said that they should leave the matter for the time being until they had completed the meeting's business.

11. After the item on the agenda for which Mr. Cheung was responsible had been completed, he asked to be excused. While he was on his way out of the room, he heard Mr. Wu telling the other members that he wanted to have a few words with Mr. Cheung. When they got outside, Mr. Wu apologised for the findings in the report. He added that the amount of money to be paid by Mr. Cheung by way of penalty would be "peanuts" to Mr. Cheung, though he appreciated that the question of Mr. Cheung's directorships would be important.

12. How the conversation then proceeded is important, and what follows is what is set out in the Notice of Application (substituting the initials used for the actual names of the participants), which Mr. Cheung verified on affirmation:

"Mr. Cheung told Mr. Wu that he could not believe that the members of the Tribunal could have come to such findings, in particular, how they could have believed Leung Chee Hon, one of the witnesses called, who had admitted to have told lies.

Mr. Wu responded to say that the other two members, namely the Chairman and Mr. Chan, had already made up their minds as to their decision. Mr. Wu said Mr. Chan had been very meticulous and had taken lots of notes on every witness. He said Mr. Chan had decided against Mr. Cheung 'almost on a 90:10 basis'. Mr. Wu said the Report was drafted on a piecemeal basis which was given to him from time to time. He added that the chart attached to the Report was also drafted by Mr. Chan. Mr. Wu said that as Mr. Chan and the Chairman had already made up their minds on the outcome of the hearing, he saw no use or purpose in dissenting and did not bother to go against them both.

A discussion then followed on the likely penalty. Mr. Wu told Mr. Cheung that if Mr. Cheung did not believe what he had said, he would send Mr. Cheung by fax the notes written by Mr. Chan but the letterhead would have to be blanked out. Mr. Cheung took that to mean Mr. Wu was indicating that the decision making was not done by him but only by the Chairman and Mr. Chan, and that was the purpose of sending over the notes.

Mr. Cheung did not think much of what Mr. Wu said but thought that it was quite inappropriate for them to go into the matter further. He therefore left at that juncture."

13. Mr. Chan's notes. On 8th April 1998 (the day after the meeting of the Association's Executive Committee), Mr. Wu sent copies of Mr. Chan's notes to Mr. Cheung. Those notes consisted of detailed comments by Mr. Chan on the evidence of 20 of the witnesses who had given evidence. They had been submitted to Mr. Justice Burrell. There is no evidence as to how Mr. Wu came by then, but I infer that the copies had been sent to him on the instructions of either Mr. Chan or Mr. Justice Burrell.

Subsequent events

14. Mr. Wu's letter. Mr. Cheung informed his lawyers of the events of 7th April and the receipt of Mr. Chan's notes. They brought these matters to the attention of the Tribunal. On the instructions of Mr. Justice Burrell, counsel to the Inquiry informed Mr. Wu of the allegations made against him and gave him an opportunity to comment on them. The material parts of the letter which Mr. Wu wrote in reply are as follows:

"(1) I didn't know whether the chairman of King's College Old Boys' Association did actually call Mr. Cheung on the evening of 7th April 1998. However, I never urged Mr. Cheung to attend the meeting or spoke with him over the telephone.

(2) Mr. Cheung had never asked me whether it was proper for us to talk and I had never said that there was no problem with this.

(3) It was Mr. Cheung's request to have a few words with me rather than I [initiated] the discussion.

(4) I did say that Mr. Charles Chan had made very detailed notes on every witness but I had never said or made any implication that I had an opposite opinion with Mr. Charles Chan and the Chairman. I totally agreed to the content of the Report and did not and would not make any objections to any part of the Report.

(5) I only passed copies of the notes of Mr. Charles Chan to Mr. Cheung for his reference upon his request. I never indicated that the decision making was only done by Mr. Charles Chan and the Chairman and not done by me."

The letter concludes:

"... the Report issued is the proper findings of the Tribunal and I absolutely agree to the content of it."

15. Mr. Wu's resignation. Mr. Justice Burrell took the view that what Mr. Wu admitted to have done - namely, speaking to Mr. Cheung about the Inquiry and passing on to him copies of Mr. Chan's notes - could amount to grounds for removing Mr. Wu from membership of the Tribunal. When Mr. Wu was informed of that, he resigned. A temporary member has been appointed to replace him for the penalty phrase of the Inquiry.

16. Mr. Justice Burrell's affidavit. Mr. Justice Burrell has sworn an affidavit in these proceedings. The material passage is as follows:

"... the findings of the Inquiry were reached after careful consideration by the [Tribunal]. The Report was compiled as a result of numerous sessions of discussions and deliberations between myself and the other two members. Mr. Wu, like myself and Mr. Chan, had contributed his views on various matters arising out of the Inquiry which resulted in the findings and the production of the Report. To the best of my knowledge and belief, Mr. Wu did not, at any time, express dissent to any part of the Report. All parts of the Report were agreed unanimously between the three of us before it was finalised and released."

This affidavit was filed on behalf of the Tribunal, though apart from causing that affidavit to be served and filed, the Tribunal has taken no part in these proceedings. The opposition to the Applicants' application has come from the Financial Secretary.

The Appellants' case

17. I do not wish to be judgmental, but there is little doubt that Mr. Wu was extremely unwise to discuss the case with persons other than the other two members of the Tribunal, and to disclose Mr. Chan's notes. I am sure that he would now recognise that it was wholly inappropriate for him to do that. In acting as he did, he was not simply being indiscreet. He was in breach of the duty which he owed to the other members of the Tribunal to keep the views expressed by them in the course of the Tribunal's deliberations private and confidential.

18. But should his conduct result in the quashing of the findings of the Tribunal relating to Mr. Cheung and Ms. Pang? Mr. Denis Chang S.C. for the Applicants does not contend that Mr. Wu's breach of the duty of confidentiality which he owed to the other members of the Tribunal would by itself be sufficient to result in the Tribunal's findings being quashed. In my view, that was the correct stance to take. The validity of the Tribunal's findings depends on how those findings were reached, not on whether there was a breach of confidence by one of the members during the Inquiry or after the issue of the Tribunal's report. Nevertheless, Mr. Chang advanced three grounds for saying that the Tribunal's findings should be quashed:

(i) On the assumption that Mr. Wu did not reach a conclusion at all on whether the Applicants were guilty of insider dealing, it is said that the Tribunal's findings that they were guilty of insider dealing should be quashed on the ground that the Applicants were denied findings from all three members of the Tribunal.

(ii) On the assumption that Mr. Wu disagreed with the other two members over whether the Applicants were guilty of insider dealing, it is said that the Tribunal's findings that they were guilty of insider dealing should be quashed on the ground that Mr. Wu did not disclose to the other members of the Tribunal that he took a different view of the case.

(iii) Whether or not Mr. Wu agreed or disagreed with the other two members of the Tribunal as to whether the Applicants were guilty of insider dealing, and even if he did not reach a decision himself, it is said that the Tribunal's finding that they were guilty of insider dealing should be quashed on the ground of bias on the part of Mr. Wu.

I must deal with each of these grounds in turn.

Ground (i): No conclusion reached by Mr. Wu

19. The submission that Mr. Wu might not have reached a conclusion at all on whether the Applicants were guilty of insider dealing is based on what Mr. Wu is alleged to have said to Mr. Siu on 19th March 1998 and to Mr. Cheung on 7th April 1998. The argument is that what he was saying was that since the other two members of the Tribunal had decided that the Applicants were guilty of insider dealing, and since rule 13 of Schedule 1 to the Ordinance provides that all questions (except questions of law) shall be determined by the opinion of the majority of the members, there was no point in Mr. Wu coming to his own decision. Whatever decision he reached, it could not affect the outcome. I am sceptical as to whether this is an accurate reading of the effect of what Mr. Wu is alleged to have said to Mr. Siu and Mr. Cheung. I think it much more likely that what he was saying was that there was no point in him expressing any dissenting view which he may hold. Whatever view he expressed, it could not affect the outcome.

20. But on the assumption that Mr. Wu was abstaining, rather than simply declining to express a dissenting view, I fail to see how that could undermine the report. It is said that the Applicants were denied findings by Mr. Wu as to whether they were guilty of insider dealing. That may be, but I do not see how the efficacy of the view of the majority is affected by a member of a Tribunal abstaining from reaching a decision - provided, of course, that he knows, as here, that (a) if he were to disagree with the other members, he would be in the minority, and (b) the view of the majority prevails.

Ground (ii): Mr. Wu concluded that the Applicants were not guilty

21. The submission that Mr. Wu concluded that the Applicants were not guilty of insider dealing is based on what he is alleged to have said to Mr. Siu and Mr. Cheung, particularly on what he is alleged to have said to Mr. Siu on 12th February 1998. Had the decision been his alone, he would not have made any adverse findings of insider dealing against Mr. Cheung. This is, of course, the opposite of what Mr. Wu said in his letter to counsel to the Inquiry. In those circumstances, Mr. Michael Thomas S.C. for the Financial Secretary made the point that an explanation for what Mr. Wu said to Mr. Siu and Mr. Cheung could have been a desire on Mr. Wu's part to ingratiate himself with Mr. Cheung and to retain his friendship. To that end, he would have had every incentive to misrepresent his personal responsibility for the findings contained in the report which were adverse to Mr. Cheung and which he signed. However, on the assumption that Mr. Wu had concluded that the Applicants were not guilty of insider dealing, it is undoubtedly the case that Mr. Wu did not express that view to the other two members of the Tribunal. It follows there was no reference to his dissenting view in the report.

22. Collective decision-making in the judicial context normally involves the exchange of views. But I do not think that a member of a body exercising judicial functions is required to express the factors which he regards as significant in the discussions which inevitably take place between members. A member may wish, for reasons of his own, simply to listen to the views of other members before expressing a final view of his own. In other words, there is, I believe, no duty on a member to confront the other members with his own views on particular features of the evidence. Nor do I think that he is in every case under a duty to inform his fellow members of his final view on the issue which has to be decided. As with the member who abstains from reaching a decision, I see no reason why a member should not be able to refrain from expressing any dissenting view, provided that he knows that he is in the minority and that the view of the majority prevails.

23. The position would be different if the Tribunal had been required, in the event of a lack of unanimity, to state that fact in its report, i.e. to state that one member of the Tribunal dissented from the findings of the majority. But neither the Ordinance nor the common law impose such a duty on the Tribunal, and it follows that a dissenting member is obliged to add his signature to the report even if the report does not refer to his dissent.

Ground (iii): Real danger of bias

24. The relevant test for bias was identified by the House of Lords in R. v. Gough [1993] AC 646. At p.670E-F, Lord Goff said:

"... 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 he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him."

He added that he preferred "to state the test in terms of real danger than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias". He also added at p.670D-E that:

"... it was unnecessary ... to require that the court should look at the matter through the eyes of a reasonable man, because the court ... 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 in court at the relevant time."

Although different tests have been formulated in other jurisdictions (see, for example, the test laid down by the High Court of Australia in Webb v. R. (1994) 122 ALR 41), the "real danger" test now binds the courts of Hong Kong. That is because Gough has been applied to Hong Kong by the decision of the Privy Council in Panel on Take-overs and Mergers v. Cheng Kai Man William [1995] 2 HKLR 302.

25. Mr. Chang contended that Mr. Wu was completely unsuited to be a member of the Tribunal. That was not apparent at the time because no-one had any reason to suppose that there was any danger of Mr. Wu not being able to discharge his judicial functions as a member of the Tribunal fairly and impartially. His subsequent conduct changed all that. His need to seek Mr. Cheung out, and to assure him that the adverse findings which had been made against him had emanated from the other two members of the Tribunal, eloquently demonstrated how his connection with Mr. Cheung had indeed affected his judgment. And if he was prepared to allow his connection with Mr. Cheung to make him behave in that way, a more serious possibility could not be discounted. That was that he had gone along with the findings of the majority that the Applicants were guilty of insider dealing, not because he agreed with their findings, but because he did not wish to appear to the other members of the Tribunal to be influenced by the fact that he knew Mr. Cheung. In other words, his connection with Mr. Cheung was such that he could have been tempted to look at Mr. Cheung's case unfavourably in order to demonstrate his own impartiality. Thus, despite the assurance given by the Tribunal on 17th July 1997 that Mr. Wu would be able to discharge his functions as a member of the Tribunal properly, his subsequent conduct, and the more serious possibility which that conduct gave rise to a suspicion of, demonstrated that that assurance should never have been given.

26. I see the force of that argument, which was deployed by Mr. Chang with some passion, but having considered it with care I cannot go along with it. The conclusion is inescapable that Mr. Wu succumbed to the influence of camaradarie when he disclosed elements in the decision-making process to his alumni. But the fact that he was prepared to let his relationship with Mr. Cheung affect the duty of confidentiality he owed to his colleagues on the Tribunal does not begin to mean that he was prepared to let his wish to be seen to be impartial by his colleagues affect the duty of impartiality he owed to Mr. Cheung. However the case is analysed - and the facts were analysed with much skill and at considerable length before me - Mr. Chang's argument involves a quantum leap which I simply cannot make.

27. I do not wish to minimise the duty of confidentiality which Mr. Wu broke, but it must be said that that duty is infinitely less significant than the duty of impartiality, which is by far and away the most important duty for any person exercising judicial functions to honour. Mr. Wu's willingness to disclose the thinking of his colleagues (even if it was to minimise in his alumni's eyes his own responsibility for the findings which were adverse to Mr. Cheung) is a far cry from a willingness to condemn an alumnus in order to demonstrate his impartiality. Why should his breach of his duty of confidentiality to his colleagues show that there was a real danger that he might break his much more important duty of impartiality to Mr. Cheung?

28. In any event, I have not been able to detect any sensible reason for concluding that Mr. Wu would think that the perception of his impartiality in the eyes of his colleagues on the Tribunal would be jeopardised if he expressed a dissenting view. They had known about his connection with Mr. Cheung, and there would have been no rational need for Mr. Wu to think that his colleagues would think that his connection with Mr. Cheung had influenced him if he concluded that the case against Mr. Cheung had not been proved. Accordingly, to use the language in Gough, having regard to the relevant circumstances, there was not, in my view, a real danger that Mr. Wu had regarded Mr. Cheung's case with disfavour.

Discretion

29. I should add that even if I had concluded that there was a real danger that Mr. Wu had regarded Mr. Cheung's case with disfavour, I doubt very much whether I would have quashed the Tribunal's findings. The fact is that the other two members of the Tribunal constituted a majority, and they were in favour of finding the Applicants guilty of insider dealing. No injustice would be done in upholding the Tribunal's findings unless the particular part which Mr. Wu played in the decision-making process had influenced the thinking of the majority.

30. But suppose that Mr. Wu's wish to appear to the other members of the Tribunal not to be influenced by his association with Mr. Cheung had made him a particularly powerful advocate in the Tribunal's deliberations in favour of making adverse findings against Mr. Cheung. Suppose also that that advocacy had had an influence on the ultimate thinking of at least one of the other members of the Tribunal. In those circumstances, it is, at the very least, arguable that it would not be possible for the court to take any course other than to quash the Tribunal's findings.

31. The conventional wisdom is that the way in which courts and tribunals reach their decisions, i.e. the course which their private discussions take, should not be open to public scrutiny. It is arguable, therefore, that it would not have been appropriate for members of the Tribunal to file evidence as to what was said in the course of their deliberations. As it is, there is evidence in this case about the Tribunal's deliberations. That evidence shows that Mr. Wu was not a particularly powerful advocate for adverse findings to be made against Mr. Cheung. It shows that Mr. Chan did an enormous amount of work analysing the evidence. But so far as Mr. Wu is concerned, the evidence is simply that he did not express any dissenting view which he may have had. If Mr. Wu had been a forceful advocate for adverse findings to be made, one would have expected Mr. Justice Burrell to have referred to that in his affidavit. After all, at that stage Mr. Justice Burrell was addressing the issue whether Mr. Wu had expressed any dissenting opinion. If Mr. Wu had been strongly expressing the opinion that adverse findings should be made, Mr. Justice Burrell would surely have said so.

Conclusion

32. For these reasons, this application for judicial review must be dismissed. In the normal course of events, costs would follow the event, but I am inclined to think that the unique circumstances of this case justify an exceptional order for costs. I do not wish to penalise the Financial Secretary, who, like the Applicants, was entirely blameless for Mr. Wu's misconduct, and who has successfully resisted this application. On the other hand, although the Applicants' challenge to the findings of the Tribunal has failed, the challenge has revealed conduct on the part of a Tribunal member for which the Applicants had justifiable grounds for concern. I simply do not think at present that it would be fair for the Applicants to be saddled with both his own costs and those of the Financial Secretary. Accordingly, the order nisi which I make is that there be no order as to the costs of the Applicants or the Financial Secretary.

The position of Leung Chee Hon

33. However, also to be considered are the costs of Leung Chee Hon. He was one of the six persons whose dealings in the Company's shares were investigated by the Tribunal. He was found not to have been guilty of insider dealing. However, he was concerned about what would happen if the Applicants' challenge succeeded, and the findings of the Tribunal against them had to be quashed. Would that result in the court quashing the findings in respect of him as well? He therefore appeared by counsel to argue that the quashing of the findings against the Applicants should not result in the quashing of the findings in respect of him - though in addition, his counsel, Mr. Daniel Marash S.C., adopted Mr. Thomas's arguments as to why the Applicants' challenge should fail and added a few of his own.

34. The order nisi which I propose to make in Mr. Leung's case is that there be no order for his costs. It would have been open to his solicitors simply to write to the court stating Mr. Leung's concern, and asking the court for a separate hearing for that concern to be addressed, in the event of the court quashing the findings against the Applicants. Since I have not quashed the findings against the Applicants, no costs would have been incurred.