XCHRX WONG SIN HUA FELIX v. THE INSIDER DEALING TRIBUNAL

HCAL 124/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 124 OF 1999

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J U D G M E N T

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Introduction

1. A few months ago, the Applicant was granted leave to apply for judicial review of a ruling made by the Insider Dealing Tribunal ("the Tribunal"). The ruling was made in connection with an application for the legal costs incurred by him in the course of an inquiry previously conducted by the Tribunal. The notice of motion by which the application for judicial review was made was served on the Tribunal in due course. The Financial Secretary was not served with the notice of motion, and he applied by summons for an order to be joined as the 2nd Respondent to the proceedings. On 7 January 2000, I gave directions on that summons, and on another summons filed by the Tribunal, but there was insufficient time for me to give my reasons, and I said that I would reduce them to writing. This I now do.

The position of the Financial Secretary

2. The Financial Secretary's summons recorded that the application was being made pursuant to Ord. 15 r. 6 of the Rules of the High Court and the court's inherent jurisdiction. In fact, Ord. 15 r. 6 does not apply to applications for judicial review. It applies only to actions begun by writ. The relevant rules are Ord. 53 r. 5(3) and Ord. 53 r. 9(1). Ord. 53 r. 5(3) governs who is to be served with a notice of motion for judicial review by requiring the notice of motion to be served on "all persons directly affected" by the application for judicial review. The Financial Secretary comes within that category because (a) he ordered the original inquiry conducted by the Tribunal, and (b) he was to all intents and purposes a party to the previous inquiry.

3. The fact that the Financial Secretary was not served with the notice of motion activated Ord. 53 r. 9(1), which provides:

"On the hearing of any motion or summons under rule 5, any person who desires to be heard in opposition to the motion or summons, and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with notice of the motion or the summons."

For the same reason as the Financial Secretary is directly affected by the application, he is also a proper person to be heard on the hearing of the application for judicial review.

4. Ord. 53 r. 9(1) does not contemplate an application made under it being made prior to the hearing of the application for judicial review, but it is sensible to make the application in advance, so that everyone knows where they stand and for consequential directions for the filing of evidence to be given. Accordingly, although I declined to make the orders sought in the Financial Secretary's summons, I nevertheless directed, pursuant to Ord. 53 r. 9(1), that the Financial Secretary may be heard on the application. The Financial Secretary is at liberty to file such evidence as he wishes, but since the hearing of the application is fixed for 29 February, it would not be appropriate for the Financial Secretary to have the full 56 days for the filing of his evidence as envisaged by Ord. 53 r. 6(4). I therefore directed that his evidence be filed in court and served on the Applicant's and the Tribunal's solicitors by 4.30 p.m. on 11 February.

The position of the Tribunal

5. By the second summons, the Tribunal sought a direction as to whether it or the Financial Secretary should conduct the opposition to the application for judicial review. The Tribunal also asked to be excused from attending the hearing of the application if the court directed that it was for the Financial Secretary to conduct the opposition to the application for judicial review. What prompted this summons were some remarks made by Sears J in Dato Tan Leong Min v. The Insider Dealing Tribunal [1998] 1 HKLRD 630, an application for judicial review relating to the previous inquiry. At p. 649C-D, he said:

"The more modern practice when various tribunals are subject to judicial review is for them to take a neutral role, and to provide the court with as much information as possible, so that a just result follows. Here the Tribunal has taken an aggressive attitude to justify the strange procedure it adopted. It might have been better had the financial secretary conducted the opposition to this challenge rather than the Tribunal itself."

This comment was picked up by Mortimer V-P, when the case went on appeal. The case in the Court of Appeal is reported at [1999] 2 HKC 83, and at p. 99H-I Mortimer V-P said:

"I accept .... that it is not wrong for the Tribunal to appear. It remains unusual. Sears J correctly described the normal practice."

These observations were all obiter dicta because there was in fact no challenge to the Tribunal conducting the opposition to the application for judicial review.

6. In my experience of judicial review both in Hong Kong and in England, it is much more usual for statutory tribunals whose decisions are being challenged by way of judicial review not to appear at the hearing of the application. They leave challenges to their decisions to be opposed by the successful parties before them. The occasions on which they have appeared have been so rare that it is not possible to say whether their normal stance when they do appear is (a) to play a neutral role and to provide the court with such assistance or information as the court requires or (b) to seek to defend their decisions.

7. But the question is not what usually happens, but what should happen in a particular case. I do not comment on Sears J's view as to what should have happened in the case he was hearing. But in the present case, it is, in my view, appropriate for the Tribunal, if it wishes, (a) to appear on the hearing of the application for judicial review, and (b) to seek to defend the ruling challenged. That is because the Financial Secretary did not take part in the argument before the Tribunal which resulted in the ruling which is being challenged.

8. However, I could not grant the Tribunal the precise relief which it sought in its summons. I could not direct that the Tribunal should appear at the hearing. I merely directed that counsel instructed on its behalf may appear at the hearing. Nor could I direct that it should conduct the opposition to the application. I merely directed that it may seek to defend the ruling, and counsel instructed on its behalf may make submissions in defence of the ruling, in addition to any submissions made on behalf of the Financial Secretary in defence of the ruling.