XCHRX In Re THE LISTING COMMITTEE

1997 No. AL110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

------------------------

----------------------

D E C I S I O N

----------------------

1. Today's application arises from an application to quash a decision of the Listing Committee. The complaints arising in the application for judicial review, leave for which has been granted, are that the Chief Executive of the Stock Exchange sat and deliberated on the Listing Committee while at the same time in charge of the prosecutor, namely, the Listing Division.

2. One of the central complaints is that the members of the Listing Committee were not introduced to the representatives of the applicants, and had such an introduction been effected, it would have been realised that it was not appropriate for Mr Yeh to sit on the Committee, this being relevant to allegations of perceptions of potential bias. It is also alleged that there was error in certain findings of fact and that the Committee declined to permit the applicants to call certain relevant oral evidence.

3. This matter comes to me today in the context of an application for discovery. I am conscious of the fact that in judicial review, orders for discovery should be made sparingly, and the Court should be wary of fishing expeditions. The applicants must establish that the documents are necessary for disposing fairly of the case. Unless this approach is adopted, the otherwise swift remedy provided by judicial review would be negated.

4. The applicants in this case have been eager to obtain a copy of the tape of the disciplinary proceedings themselves but not, so far as I am today concerned, of any deliberations of the Committee. Correspondence prior to December 1997 and the attendance notes made by the solicitors, which were put before me on the previous hearing, reveal a full expectation for some weeks on the part of the applicants that they would be provided with a transcript of the proceedings and that the Stock Exchange had no objection to doing so. It is not disputed that a transcript was offered, and no objection was taken before me at the last hearing as to the provision of a transcript, nor was any suggestion made to me last time that the transcript did not bear the meaning that practitioners normally ascribe to that word in the context of hearings, nor was it suggested that it would be partly a minute.

5. My note of the proceedings is that Mr Morrison said "A transcript will be provided. It will be ready immediately after Christmas holidays and will be provided." Accordingly, I made an order for its provision no later than 7th January, and ordered other matters in relation to discovery to abide the filing of evidence by the parties, to be completed some time this month.

6. In the event, what was provided was not a transcript, as I understand that word, but partly a transcript and partly a minute. It is also now apparent from the evidence which has been put before me that the minute itself illustrates a factual dispute as between the parties as to whether the members were in fact introduced. That is an issue which will have to be decided.

7. Mr Morrison tells me today that the form of the record of proceedings which has been delivered accords with the normal practice of the Stock Exchange, and that it was understood that my Order was directed as to the timing for the delivery of that form of record rather than as to its content. He offers today to produce a verbatim transcript of the whole within 7 days from today.

8. He objects to the application today, or rather says that it is misconceived, in so far as my previous order clearly contemplated that issues of discovery would await determination until the filing of all the evidence. I do not agree. The matter comes before me today because my order of 18th December has not, in the event, been complied with, and furthermore because the minute which has been produced demonstrates an issue of fact which the applicants, with some justification in my view, say is a central issue of fact.

9. I shall order that the respondent provide a copy of the tape recording of the hearing itself no later than 5 p.m. on Monday, 19th January to the applicants.

10. I do so for the following reasons. First of all, no objection is taken to the provision of a full transcript. That being so, I fail to see what could possibly be the objection to the provision of a tape of the very same proceedings. Secondly, it seems to me now that there is revealed a central issue of fact, which is best determined by the provision of the tape.

11. It is said in the affirmation of Miss Bonnie Chan on behalf of the Stock Exchange, affirmed on 14th January, that the Exchange opposes an order for production of the tape because the order may be viewed as creating a legal obligation to record such proceedings and act as a precedent for production in other cases. The order I make in this case does no such thing. It is an order made which arises on the particular facts of this case, and because of the history of the matter as it has been placed before me.

12. In my judgment, it is now necessary for the tape to be produced in order to fairly dispose of this case.