OTIS ELEVATOR CO. (HK) LTD. v. DIRECTOR OF ELECTRICAL AND MECHANICAL SERVICES

IN THE COURT OF APPEAL

1994, No. 184
(Civil)

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H E A D N O T E

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Article 10 Bill of Rights - "fair and public hearing by a competent, independent and impartial tribunal" - whether a disciplinary board of six members including the Director of Electrical and Mechanical Services as chairman constituted under s11E(1) of the Lifts and Escalators (Safety) Ordinance Cap 327 complied with the minimum requirements of Article 10 - To give effect to a party's "rights and obligations in a suit at law" under Art.10 the court should consider the entire statutory scheme including the right of the aggrieved party to appeal to the High Court - Cases in the European Court of Human Rights in construing Article 6(1) of the European Covenant on Human Rights, in terms identical to Article 10 of the Bill of Rights, are useful in construing Article 10.

Held: (Court of Appeal): Director's appeal allowed; High Court Judge's decision declaring s11E(2)(d) of Cap 327 inconsistent with the Bill of Rights quashed.

Observations on :

(i) Relevance of common law cases on "bias" to a constitutional challenge to statutory provisions.

(ii) Whether the proceedings before the disciplinary board might in fact have been conducted in such a way as not to offend basic common law principles concerning "fairness" and "impartiality".

IN THE COURT OF APPEAL

1994, No. 184
(Civil)

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J U D G M E N T

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Litton, V.-P.:

1. This is an appeal against a judgment of Penlington, JA, sitting as an additional High Court Judge, given on 6 June 1994. The formal order as drawn up reads:

"It is ordered that there be an order of certiorari to remove into the High Court and quash the Decision of the Disciplinary Board delivered on 28 September 1993 and a declaration that the Board was invalidly appointed".

2. The Board referred to in the judgment is the disciplinary board appointed by the Director of Electrical and Mechanical Services under section 11E(1) of the Lifts and Escalators (Safety) Ordinance, Cap.327.

3. The "Decision" needs closer scrutiny later on. It is, in effect, a decision of the disciplinary board to proceed with the hearing of charges brought against the respondent to this appeal, Otis Elevator Company (HK) Limited, under s11G(1) of the Ordinance.

4. If one were to read the formal Order of 6 June 1994 alone, one would not know that what had been struck down was, in fact, a subsection in the statutory scheme for dealing with disciplinary charges brought against registered lift and escalator contractors: that is to say, s11E(2)(d) which says:

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

(d) the Director or his representative".

5. The judge held that this subsection was inconsistent with Article 10 of the Bill of Rights and has, under s3(2) of the Hong Kong Bill of Rights Ordinance, been repealed since 8 June 1991.

6. Section 11E reads as follows:-

"11E. Appointment of disciplinary board, etc.

(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 (Cap.123) and who is a member of the panel appointed under section 8A;

(c) 3 persons 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 adviser 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 in any particular case."

7. Article 10 of the Bill of Rights provides:

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

History

8. The matters which led to the present proceedings are as follows. On 14 March 1992, during maintenance work carried out by Otis on a lift in a building at the Mid-levels, a member of the public fell down the lift shaft and was killed. As a result, the Director appointed a disciplinary board under s11E(1) of the Ordinance and brought the matter to the notice of the board in the form of charges of negligence against Otis, pursuant to s11G(1) of the Ordinance.

9. The board as constituted consisted of Mr Hubert NH Poon as chairman and five other persons appointed in accordance with the provisions of s11E(2). Mr Hubert Poon was, at that time, an Assistant Director in a division of the Electrical and Mechanical Services Department which had no involvement with lift contractors.

10. The hearing of the charges was fixed for 9 March 1993. On 26 February 1993 Otis' solicitors wrote to Crown Counsel as follows:

"Dear Madam,

In the matter of Disciplinary Proceedings

against Otis Elevator Co. (HK) Ltd.

We refer to our previous correspondence.

On the advice of Counsel, we hereby notify you that on behalf of our client we take a fundamental point of objection to the jurisdiction of the Disciplinary Board appointed by the Director of Electrical and Mechanical Services ("the Director"). The objection is based on the Hong Kong Bill of Rights Ordinance 1991 ("the Bill of Rights").

The relevant part of Article 10 of the Bill of Rights provides as follows:-

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

Article 3(2) thereof reads:-

'(2) All pre-existing legislation that does not admit of a construction consistent with this Ordinance is, to the extent of the inconsistency, repealed.'

The combined effect of sections 11E and 11G of the Lifts and Escalators (Safety) Ordinance Cap.327 is that the Director is the prosecutor in proceedings before a disciplinary board appointed by himself and with himself or his representative forming part of the disciplinary board. In the circumstances, any disciplinary board appointed under section 11E for the purpose of proceedings under section 11G (including the present Disciplinary Board) cannot be an "independent and impartial tribunal" under Article 10. In any event, according to the rules of the natural justice, the Director should not be the judge of his own cause.

In taking such an objection there is absolutely no intention on the part of our client or those representing our client to be personal or critical of the Director, the Disciplinary Board or anybody in the Legal Department. The position is simply that pre-existing statutory provisions have been rendered null and void by the Bill of Rights.

Our client takes its safety responsibilities very seriously. The fatal accident and the disciplinary proceedings are of great concern. Senior local and regional management are involved at the highest level. They are not seeking 'an easy way out'. They have been advised that this is a valid and legitimate objection. The charges will be defended on the merits if necessary.

We look forward to receiving your response and proposal (if any) regarding our objection.

Yours faithfully,

WILKINSON & GRIST"

11. As a result of this, the hearing fixed for 9 March 1993 was adjourned. There then followed correspondence between the solicitors for Otis and Crown Counsel which led to an odd course being taken. Crown Counsel wanted the hearing of the charges adjourned sine die but the solicitors wanted the charges against Otis to be dismissed by the board: the same board which, by their letter of 26 February, had, they said, no "jurisdiction" to deal with the matter. This led to a hearing on 28 September 1993 following which the Board ruled in these terms:

"Sections 11E(1), (2) and (3) of the Lifts and Escalators (Safety) Ordinance admit of a construction consistent with the Hong Kong Bill of Rights... In the circumstances, this board will proceed to hear the charges against Otis."

12. The board's "ruling" was communicated to Otis' solicitors by letter dated 4 October 1993 and, in the same letter, the secretary to the board said he was arranging to proceed with the hearing of the charges in about two weeks' time. The matter was, however, pre-empted by Otis' application to the High Court for leave to issue proceedings for judicial review. The principal relief sought, as stated in the first ground filed pursuant to O.53 r.3, was a declaration in the following terms:

"(1) A declaration that s11E (in particular subsections (1), (2) & (3) thereof) and/or section 11G of Cap. 327 have been repealed by s3(2) of the Hong Kong Bill of Rights Ordinance since 6th [sic] June 1991".

13. Ex parte leave to issue the proceedings having been granted on 18 October 1993, it was this application which Penlington JA eventually heard, resulting in the order under appeal.

The judgment under appeal

14. As can be seen, the judge did not grant a declaration in the terms sought by Otis. What he said was this:

"I ... have no doubt that section 11E(2)(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 8 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 28 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".

15. His reasoning is set out in the following passages of his judgment:

"I am ... 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 Article 10 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 applicant 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 words 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 cause .... 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 unconscientiously be biased than 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".

16. As can be seen, the judge approached the matter from the point of view of the common law: citing and relying on the well-known statement by Lord Hewart CJ in R. v. Sussex Justices; exp. McCarthy [1924]1 KB 256 at 259: "justice must not only be done but be seen to be done". This was a case concerned with apparent bias: there, the solicitor who had acted as clerk to the magistrates was also the solicitor for the other driver in the collision which had led to the prosecution before the magistrates hearing the charge of dangerous driving; that solicitor actually retired with the magistrates when they considered their verdict. Penlington JA relying on Sussex Justices thought that the Director's dual capacity, being the "complainant" and a member of the disciplinary board (whether by himself or by his representative), was conclusive, and he did not subject Article 10 of the Bill of Rights to any close analysis.

17. Is this approach correct, particularly having regard to the fact that what is challenged in this case is not the manner of the exercise of power by the Director but rather the constitutional basis of those powers?

Real issue

18. It must be remembered that, at the end of the day, what we are concerned with is the constitutional validity of the statutory scheme for dealing with suspected negligence and misconduct on the part of registered contractors under the Ordinance: that is to say, whether that scheme meets the minimum requirements of "fairness" under Article 10. The rights protected by Article 10 are the "rights and obligations in a suit at law". The Article requires that those rights and obligations be judged by "a competent, independent and impartial tribunal established by law". These words, taken from the International Covenant on Civil and Political Rights, must be given a broad and generous interpretation. The expression "tribunal" is not, of course, confined to bodies such as the board established under s11E(1) of the Ordinance. They are broad enough to encompass courts of law, appellate courts, if those come within the scheme by which the individual's "rights and obligations" are ultimately to be judged.

19. Here, Otis' liability to be punished is not to be determined finally by the board. Otis, if aggrieved by any order of the board has, under s11I of the Ordinance, a general right of appeal to the High Court which may "confirm reverse or vary the order of the board". Such an appeal is governed by Order 55 of the Rules of the Supreme Court; r3(1) says that such an appeal shall be by way of rehearing. Rule 7(2) gives the court power to receive further evidence on questions of fact, orally or by affidavit.

20. Mr Dykes, counsel for the appellant, therefore says this: assuming, indeed conceding, that the board as constituted under s11E(1) is not "independent and impartial" as required by Article 10, nevertheless having regard to the entire regime for dealing with a suspect's rights and obligations ("rights and obligations in a suit at law" in the vocabulary of Article 10), a regime which includes an unlimited and unrestricted right to a rehearing on appeal under s11I, the scheme as a whole clearly meets the minimum requirements of Article 10.

Disciplinary proceedings under s11G

21. There is no doubt at all that if a statutory scheme were constituted in such a way that the same official investigates the complaint, appoints the disciplinary board, formulates charges, prosecutes those charges and finally sits in judgment to adjudicate on those charges that scheme offends Article 10. Nothing more needs to be said on this matter.

22. The problem with this case, making it difficult for the judge to analyse the constitutionality of the statutory scheme, is that operationally the scheme may well be defective: defective, that is to say, in the way it is actually operated by the Director. For instance, in the "General Notes on Disciplinary Procedure" made by the Director for disciplinary hearings, para 5 says:

"(5) If the plea is one of guilty, Counsel for the Director outlines the facts of the case for the Director". (Emphasis added).

23. The Notes go on to state that if the plea is one of not guilty, it is Counsel for the Director who prosecutes: he or she would then be prosecuting the charges "brought by the Director".

24. This clearly would make the Director both "prosecutor" and "judge". If a scheme is flawed operationally in this way, it may go a long way to showing that it is flawed constitutionally. But, at the end of the day, what has to be judged is not how it works in practice, but how the legislature has formulated the scheme.

Disciplinary proceedings

25. Section 11G provides:

"11G. Disciplinary proceedings

(1) Where it appears to the Director that a registered lift contractor or a registered escalator contractor has been convicted by any court of such an offence, or has in carrying out any lift works or escalator works, as the case may be, been guilty of such negligence or misconduct, as to -

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

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

(c) render the lift contractor or escalator contractor deserving of censure,

the Director may bring the matter to the notice of a disciplinary board appointed under section 11 E.

(2) Where, after due inquiry, the disciplinary board is satisfied that the registered lift contractor or the registered escalator contractor has been convicted of such an offence or has been guilty of such negligence or misconduct as is referred to in subsection (1), the board may-

(a) order-

(i) that the name of the lift contractor or escalator contractor be removed from the register of lift contractors or the register of escalator contractors or both registers, as the case may be, either permanently or for such period as the board directs; or

(ii) that the lift contractor or escalator contractor be fined a sum not exceeding $50,000, which sum may be recoverable as a civil debt; or

(iii) that the lift contractor or escalator contractor be reprimanded; and

(b) order that its findings and any order made under paragraph (a)(i), (ii) or (iii) be published in the Gazette.

(3) The disciplinary board may make such order as it thinks fit with regard to the payment of the costs of proceedings under this section and the costs of the Director or of the lift contractor or escalator contractor in respect of whom the proceedings are brought, and any costs so awarded shall be recoverable as a civil debt."

The Test

26. In the course of argument I put the following question to counsel: Does the statute in its wording impose on the Director a statutory duty to prosecute before the board, having regard to the fact that s11G(1) merely requires him to "bring the matter to the notice of a disciplinary board appointed under s11E"? Assuming that the Director, having reached the point where it appears to him that negligence or misconduct has occurred, should wash his hands of the matter and ask the Attorney-General to formulate charges, leaving the matter entirely to the professional judgment of the Attorney-General, would he be able to sit as chairman of the 6-person board to hear the charges - assuming charges were brought? If the answer is yes, and s11G can accommodate such a regime, how can it be said to be inconsistent with Article 10? I received no satisfactory answer to this question because Mr Dykes was prepared, forensically (and I mean no criticism) to abandon the point, relying as he does on s11I to say that, at the end, the statutory regime was consistent with the Bill of Rights.

27. For my part, I have considerable misgivings concerning Mr Dykes' "concession". It seems to me that the draftsman of s11G(1) has chosen his words carefully, and "bringing the matter to the notice of the board" is not necessarily the same thing as formulating charges and prosecuting them before the board. But nothing turns on this point on this appeal since it is common ground that the appeal can only be decided by looking at the wider canvas: S11I cannot be ignored. In this regard the judge has plainly erred in his approach: whilst he mentioned Crown Counsel's reference to s11I he seemed not to have considered the point any further. Mr Bleach, counsel for Otis in this court, did not seek to defend the judge's narrow approach.

"Fair hearing by independent and impartial tribunal"

28. Ultimately, what we have to do is to construe the expression "fair hearing by an independent and impartial tribunal" in Article 10, and see whether the statutory scheme meets those standards. That expression is taken from international law, and counsel have helpfully referred us to a number of cases in the European Court of Human Rights where Article 6(1) of the European Covenant on Human Rights - in terms almost identical to Article 10 - has been construed. The effect of these cases broadly is this. Where the contracting states have provided successive bodies to deal, for instance, with disciplinary complaints against professional persons, Article 6(1) of the European Covenant does not require that each of those bodies should meet the standard set in that Article. Le Compte, Van Leuven and De Meyere v. Belgium [1981]4 EHRR 1 is such a case. There, the court was concerned with the frame-work for dealing with disciplinary complaints. There were three: a Provincial Council, an Appeals Council and finally the Court of Cassation. The headnote of the case, where relevant, reads:

"Article 6(1) does not require each charge in the determination of 'civil rights and obligations' to be conducted before a tribunal meeting that Article's various provisions. The prior intervention of administrative, professional or judicial bodies not satisfying all of those requirements may be justified in the interests of flexibility and efficiency."

29. The point was further developed in Albert and Le Compte v. Belgium [1983]5 EHRR 533, again concerning doctors charged with misconduct. Considering the minimum requirements of Article 6(1) of the European Covenant, the Court said at p542:

"... the Covenant calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1)".

30. This clearly supports Mr Dykes' argument that even if the disciplinary tribunal established under s11E(1) of the Ordinance fails to meet the requirements of Article 10 by itself, s11I saves the scheme from Bill inconsistency; as the appeal is by way of re-hearing, the High Court has ample powers of control.

31. It is worth emphasizing at this point that we are concerned solely with the question of institutionalised fairness or unfairness: not with the question whether, operationally, there has been some breach of the rules of natural justice. Accordingly, the common law cases which have been cited to us - for instance, Calvin v. Carr [1980] AC 574 - have to be approached with some care. But, with that caveat in mind, the common law approach to natural justice deficiencies by tribunals low down in the hierarchy of appeals does lend some support to Mr Dyke's argument as well. There are undoubtedly cases where the courts have held that failure to observe natural justice by a domestic tribunal is fatal to the whole process and cannot be "cured" by the fact that there is a right of appeal: Leary v. National Union of Vehicle Builders [1971] Ch.34 is an example. On the other hand, where the structure for dealing with the particular issue - for instance, penalising local councillors personally for rates lost on account of wilful misconduct: Lloyd v. McMahon [1987] AC 625 - gives the aggrieved party a full right of re-hearing by a court of unlimited jurisdiction, it goes a long way to "curing" the injustice at the earlier stage. These are cases at opposite ends of the spectrum: see Calvin v. Carr at p592.

32. The present case clearly lies closer to the Lloyd v. McMahon end of the spectrum than the Leary v. National Union extremity.

33. Mr Bleach, counsel for Otis, in his able submissions, counters Mr Dykes' points by saying this: when the fundamental injustice is institutionalised in the first body - S11E(2)(d) requiring the Director, by himself or his representative, to be a judge in his own cause - no case has gone so far as to say that a full appellate procedure can save the scheme. He illustrates his point by reference to De Cubber v. Belgium [1984]7 EHRR 236 where the applicant was convicted by a criminal court of forgery offences. One of the judges of that court had acted as an investigating judge in the same case. The European Court in deciding that Article 6(1) had been violated held as follows (as summarised in the headnote):

"Although a higher court may in some circumstances make reparation for an initial violation of the Convention, the judgment of the Court of Appeal in the present case did not cure the defective composition of the trial court since it did not quash the first instance proceedings on that ground".

34. De Cubber was, however, a case of operational error only: there was no challenge to the constitution of the court as such; the challenge was simply to the manner in which its quorum was filled. This can be usefully contrasted with Nortier v. The Netherlands [1993]17 EHRR 273 where the challenge was to the provision of Dutch law, under which the Juvenile Judge had the double task of acting as an investigating judge and of subsequently ruling on the charge brought against the suspected young offender. The Court held that there had been no violation of Article 6(1). A passage in the concurring opinion of Judge Morevilla is worth noting:

"... the protection of children is a matter about which national authorities are better prepared to plan in accordance with the demands of their society. The Convention is meant to be interpreted in the sense of giving the member states a margin of appreciation as to the organisation of their system of penal justice to protect both the interests of the child and those of society."

35. The quotation from Judge Morevilla's judgment in Nortier v. The Netherlands under-pins Mr Dykes' riposte: it avails nothing in the long run to construe Article 10 too "strictly" and to use it too extravagantly to knock down statutory schemes; it is always within the power of the legislature to amend the Ordinance by doing away with disciplinary proceedings altogether; the Director can simply be empowered personally or by his representative to decide if there has been negligence or misconduct, after entertaining written representations, and to order that a contractor be struck off the register or suspended without any kind of hearing - leaving, of course, s11I intact. Would this be any fairer? Mr Dykes asks.

Conclusion

36. In my judgment the answers to Mr Bleach's arguments are as follows: (1) The "institutional vice" may not be as deep as Mr Bleach suggests. In my view, the disciplinary procedures might well, within the legislative frame-work, have been operated in this way: (a) the Director (meaning a senior member of his staff) investigates the complaint of negligence or misconduct and makes his recommendation to the Director; (b) the Director appoints the board and asks the Attorney-General to draw up charges and, if there are charges, to prosecute them before the board; (c) the conduct of the prosecution is left entirely to the Attorney-General who is not required to seek instructions of any kind from the Director.

37. We have not had the benefit of submissions as to whether the statutory scheme could have been operated in the way outlined, because Mr Dykes took the decision, forensically, to "concede" that the procedure under s11E failed to meet the requirements of Article 10, but is "saved" by s11I. For my part, I am not prepared to accept uncritically this "concession". As it seems to me, the words in s11G(1) "the Director may bring the matter to the notice of a disciplinary board" do not necessarily cast the Director in the role of prosecutor or complainant at the hearing: the point has simply been bedevilled by the fact that the procedures and rules as drawn up (not by statute) do cast the Director in that role.

38. Further, again because of the stance taken by Mr Dykes, we have not had the benefit of submissions as to why the legislature created a board as constituted under s11E(2) and, in particular, what public interest is thought to be served by a board composed in this way. There may well be reasons of good administration for such a board which we have not perceived.

(2) If the presence of the Director or his representative on the board, and acting as its chairman, renders the board defective in terms of Article 10 because of s11E(2)(d), it is at least tempered by this fact: s11E(2)(a) requires that one of the 6 members must be a registered lift or escalator contractor: someone who might be expected to be sympathetically inclined towards the suspect. Further, all the other persons on the board are in the private sector: professional people who can be expected to understand the problems and difficulties of the suspect. This is clearly a case where, in terms of the spectrum of instances referred to inCalvin v. Carr at p592 E-G, the defect, if there be any defect, would be "cured" by the full appellate process.

39. It follows from what is said above that the appeal succeeds and the order of the judge dated 6 June 1994 must be discharged. Clearly, the disciplinary proceedings should resume as soon as possible, perhaps with amendments to the procedures which have already been outlined.

40. There should be an order nisi that Otis pays the costs both here and below.

Nazareth, V.-P.:

41. I agree with Litton JA, and for the reasons he has given would also allow the appeal.

42. Because we disagree with the conclusion reached by the judge, I would add the following. It is of fundamental importance to bear in mind that what is challenged before us, is the striking-down of s.11E(2)(d) of the Lifts and Escalators (Safety) Ordinance under s.3(2) of the Hong Kong Bill of Rights Ordinance. The latter provides that:

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

43. The essential question before us is therefore whether s.11E(2)(d) admits of a construction consistent with Article 10 of the Bill of Rights, in practical terms whether the Disciplinary Board was an "independent and impartial tribunal".

44. What the judge did was to address the Common Law principle that "justice should not only be done, but should manifestly and undoubtedly be seen to be done" (per Lord Hewart CJ in Rex v Sussex Justices, Ex Parte McCarthy [1924] 1 KB 256, 259) and that no person should sit as judge in his own cause. He held in effect that the disciplinary proceedings against Otis failed in both respects. He concluded therefore that s.11E(2)(d), whereby the Director or his representative is required to be a member of the Disciplinary Board appointed under that provision, is inconsistent with the Bill of Rights and must be deemed to have been repealed.

45. Plainly, he did not address the essential question whether s.11E(2)(d) admitted of a construction consistent with Article 10. He seems simply to have assumed that breach of the Common Law principles that no one should be judged in his own cause, and that justice must be seen to be done, lead immediately or inexorably to a failure of the test in s.3(2).

46. The approach of the Common Law and of the two principles in question is directed to the particular trial concerned. Whereas s.3(2) of the Bill of Rights Ordinance is concerned with the inherent vice or deficiency of the statutory provisions in question and not of the possibly fortuitously defective way in which they may have been applied. Thus, that justice has not been manifestly seen to be done in a particular trial may in Common Law be fatal to a conviction; but plainly that does not necessarily mean that the statutory provisions which have allowed that to happen, could not have been operated in a way that would have avoided it. In broad terms, the relevant requirements of the Common Law, including those relating to the rules of natural justice, can be readily seen to have similar objectives to those of Article 10 of the Bill of Rights. Thus, it would not be surprising to find the treatment of the former in the courts to be of assistance in addressing the requirements of human rights like Article 10. But that quite obviously does not displace the necessity to meet the specific requirement of s.3(2), that a statutory provision does not admit of the requisite construction, before it can have its repealing effect. Moreover, even if justice is not manifestly seen to be done, it may be possible to establish that justice was actually done e.g. that despite appearances, the tribunal was in fact independent and impartial, so that the requirements of Article 10 were met.

47. However that may be, the failure of the judge to address the essential question or test in s.3(2) is fatal to his conclusion that by operation of s.3(2) of the Bill of Rights Ordinance, s.11E(2)(d) of the Lifts and Escalators (Safety) Ordinance has been repealed.

48. It therefore becomes necessary for this Court to perform that task. In that general context, decisions of the European Court of Human Rights can be of the greatest assistance and entitled to considerable weight, reflecting as they do the interpretation of the International Covenant on Civil and Political Rights (R v Sin Yau-ming [1992] 1 HKCLR 127, 141). In the present context, the European Human Rights Reports cited to us (and referred to by Litton JA) in particular Albert and Le Compte v Belgium [1983] 5 EHRR 533, are most helpful, being concerned with the specific question whether particular legislation meets the requirements of human rights, as opposed to those of the Common Law. The assistance they provide in conjunction with relevant decisions in Common Law jurisdictions has been admirably and concisely distilled by Litton JA, and I cannot do better than simply adopt his judgment, and his conclusion that any defect there was in the Disciplinary Board proceedings was "cured" by the full appellate process.

49. I concur in his conclusion and in the order he proposes.

Liu, J.A.:

50. I agree that the appeal should be allowed but within the narrow compass of Mr Dykes' contention that for the reasons given below the questioned statutory regime is not inconsistent with the Hong Kong Bill of Rights Ordinance.

51. In Le Compte, Van Leuven and De Meyere v. Belgium, (1981)4 EHRR1, at p.19, it was observed that the Contracting States of EHRC were not obliged to provide the procedural guarantees required by its Article 6(1) at each stage of a statutory scheme. Article 6(1) EHRC is equivalent to Article 10 of our Bill of Rights. The judgment continued: "Demands of flexibility and efficiency, which are fully compatible with the protection of human rights, may justify the prior intervention of administrative or professional bodies and, a fortiori, of judicial bodies which do not satisfy the said requirements in every respect". (Emphasis supplied). At first blush, it would seem that such "demands of flexibility and efficiency" would have to be "fully compatible with the protection of human rights". That would suggest that no flexible or efficient device within a statutory regime may completely ignore a fundamental human rights safeguard such as that provided by "nemo judex in causa sua" (no man should be a judge in his own case). Since the Director as an accuser sitting by his representative on the Disciplinary Board would infringe Article 10 of the Bill of Rights, in the context of what was said in Le Compte the Disciplinary Board might be impugned as an administrative body set up to meet the demands of flexibility and efficiency, "which are (not) fully compatible with the protection of human rights".

52. However, in De Cubber v. Belgium (1984)7 EHRR 236 at p.247, the above reasoning was said to have been further developed some 20 months later. See Albert and Le Compte v. Belgium, (1983)5 EHRR 553, pp.541-2, para. 29. It is now accepted as unobjectionable to have disciplinary offences adjudicated by professional bodies provided either these bodies observe human rights standard or if they do not, they are made "subject to subsequent control by a judicial body that has full jurisdiction (to) provide the guarantees of Article (10)". The reasoning so augmented makes good sense. What is generally frowned upon is the case of a lower court not providing "the required guarantees". In De Cubber, supra at p.248, it was said that "such a result would be at variance with the intention underlying the creation of several levels of courts, namely to reinforce the protection afforded to litigants". (Emphasis added.) "Courts", be it noted, not "Tribunals" were in issue. It is quite unnecessary for me to examine more closely European examples of curing human rights shortfalls in a lower court in a statutory scheme which provides a complete rehearing by a fully-fledged appeal court. See Nortier v. The Nethelands (1994)17 EHRR 273 at p.289, para. 36 and Poitrimol v. France (1994)18 EHRR 130 at p.145, para. 31. Moreover, the appeal stage in this case has yet to be reached. Clearly, the Hong Kong statutory regime for the control and supervision of lift contractors falls within the parameters recommended in Albert and Le Compte v. Belgium supra.

In this case, s.11G(1) of the Lifts and Escalators (Safety) Ordinance, Cap. 327 (requiring the Director to first form a view that a contractor "has been guilty" of negligence) and s.11G(2) (before due inquiry can be made by the Disciplinary Board with the Director or his representative sitting on it as Chairman) were in place before the Hong Kong Bill of Rights Ordinance. It does not seem to be disputed that the legislature may limit or exclude any right to the common law rules of natural justice. No one has suggested otherwise. The provisions under consideration were evidently measures introduced by the legislature to meet the demands of flexibility and efficiency for operating the statutory scheme under Cap. 327. They were workable before our Bill of Rights. Does the statutory scheme admit of a construction consistent with the Hong Kong Bill of Rights Ordinance or has it in part been repealed? See s.3 Cap. 383. Section 11I of the Lifts and Escalators (Safety) Ordinance provides an unrestricted right to a complete rehearing on appeal. See O.55 r3(1) RSC. The statutory scheme here enjoys an avenue to a fresh re-hearing on appeal, and the Disciplinary Board as constituted within it is therefore not inconsistent with Article 10.