RE A COMMITTEE OF INQUIRY

Re: A Committee of Inquiry

ex parte a Barrister

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J U D G M E N T

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Silke, V.-P.:

1. This is an appeal from the judgment and order of Mayo J. refusing the applicant the order of prohibition he sought in the course of Judicial Review and, by leave, against the costs order made in those proceedings. The applicant is from here on referred to as "the Barrister".

The Statute

2. Part III of the Legal Practitioners Ordinance Cap.159 - "the Ordinance", containing sections 27 to 39, provides a code for the admission, the disciplining and the striking off of barristers.

3. While historically its origins are similar to that which resulted in the present code of conduct of the Bar of England and Wales, its present form and substance differs widely.

4. Section 27 empowers the High Court, as defined, to admit a personas a barrister of the Supreme Court in Hong Kong. The formalities are provided for by section 28 and the Chief Justice prescribes the manner by which such admissions take place. Under the provisions of section 30 the Registrar issues practising certificates.

5. Section 32 empowers the High Court, on reasonable cause being shown, to remove or strike off from the role of barristers, or to suspend, any barrister who has been guilty of misconduct such as to make him unfit to practise. Section 34 - with which we are directly concerned here - without derogating from the provisions of section 32, provides for the appointment of a Committee of Inquiry - "a Committee" - to investigate complaints against barristers. It will be necessary to consider in detail section 34 and 35 which deal with the appointment and functions of the Committee appointed, in a moment. The appointment of the Committee here and its members is challenged in various ways.

Historical background

6. Lord Denning in delivering the judgment of the Judicial Committee of the Privy Council in Attorney General of the Gambia v. Pierre Sarr N'jie [1961] AC 617 at p.630, gave a very useful, and helpful, exposition of the origins, in territories outside the ambit of the Courts of England and Wales, of the retention in the judges of the High Court and undelegated, the right to determine who shall be admitted to practise; in contrast with England where that power was, centuries ago, delegated to the Inns of Court. He cited the judgment of Lord Wynford in In re Justices of Court of Common Pleas of Antigua [1839] 1 Knapp 267, 268, where Lord Wynford had made reference to there being no Inns of Court outside London and its being essential for the due administration of justice that someone should have authority to determine who are fit and proper persons to practise as advocates and attorneys. The fact that advocates and attorneys have always been admitted in "Colonial" Courts by judges and judges only is, as we have indicated, enshrined in the Ordinance. Lord Denning then went on at page 631:

"When the judges exercise this power to suspend or expel, they do not decide a suit between parties. There is no prosecutor as in a criminal case, nor any plaintiff as in a civil suit. The judges usually act on their own initiative, ex mero motu, on information which has come to their notice, or to the notice of one or other of them in the course of their duties; ........".

This corresponds to the powers given to High Court judges in Hong Kong under the provisions of section 32 of the Ordinance. It does not relate to any Committee of Inquiry set up to investigate and then, if it thinks fit, report to the Registrar and or to the Chief Justice. The latter, if it is sent to him, sets the matter down for hearing before the Court of Appeal (s.37) which has the powers of punishment.

7. In England and Wales in the present day Disciplinary Tribunals are appointed by the Council of the Inns of Court and conduct their proceedings in accordance with the Constitution of the Inns Council. The President of the Inns' Council appoints the Disciplinary Tribunal - "the Tribunal" - to determine charges against barristers lodged by the Professional Conduct Committee - "PCC" - resulting from complaints made to the Bar Council. He selects from a panel of persons consisting of barristers nominated to it by the Treasurers of the Inns of Court; employed non-practising barristers appointed to it by the President; lay representatives appointed to it by the Lord Chancellor and such judges as the President may from time to time appoint. The Tribunal must consist of at least five persons: a judge as chairman, a lay representative and three practising barristers. If the barrister is an employed barrister then at least one of the three barrister members must normally be employed or non-practising.

8. While the PCC has power to deal with some complaints summarily and others in a more formal way it is when a prima facie case of a breach of proper professional standards is disclosed by the complaint that the PCC advances into more serious action analogous in some respects to a Committee in Hong Kong. If the PCC decides that a complaint should form the subject matter of charges before the Tribunal then it nominates one of its members, called the "PCC Representative", to take charge of the proceedings on its behalf. The Secretary to the PCC consults with the PCC Representative and he then appoints counsel to formulate tine charge or charges and to present the case before the Tribunal.

9. The appointed counsel is required to formulate such charges as he considers appropriate provided the charges are founded upon the same facts or evidence from which the complaint arises. It is the responsibility of the Secretary to forward charges so formulated to the Clerk to the Tribunal and to make the necessary administrative arrangements for the summoning of witnesses and the production of documents and, generally, for the proper presentation of the case before the Tribunal.

10. The PCC Representative must cause a copy of the charges to be served on the barrister and copies are also supplied to the President of the Inns' Council and to the Bar Council. When the President of the Inns Council receives a cony of the charges be issues a Convening Order specifying the date of the sitting of the Tribunal, the identities of the members of the panel whom it is proposed should constitute it and the identity of the Clerk. This Convening Order must be served upon the barrister. The barrister, by now termed "the defendant", has the right to give notice to the President objecting to any one or more of the proposed members of the Tribunal. Such notice must specify the grounds of his objection. If the President considers that objection is properly made he may substitute another member of the panel for the person objected to and he must notify the defendant of his action. It is not a valid objection to a member to say that he has or may have had knowledge of any previous charge or finding of professional misconduct or breach of proper professional standards made against the defendant.

11. The next step is notification to the defendant in writing of the date and place of the hearing; of his rights to be represented; of his right to inspect and to be given copies of documents; and of his right without prejudice to personal appearance, to deliver a written answer to the charge if he so thinks fit. The defendant must also be served with a copy of the statement of the evidence of each witness it is intended to call in support of the charge together with a list of documents intended to be relied upon. The President nominates a Directions Judge who can give general directions as to the steps necessary for the just and expeditious handling of the proceedings.

12. The procedure of the Tribunal is governed by the rules of natural justice. Special rules of evidence apply and the standard to which charges must be proved is the criminal standard. This last was as a result of a ruling by the Bar Council given in February 1988. (See: Halsbury: Laws of England 4th Edition Vol.3(1) (Re-Issue); Code of Conduct for the Bar of England and Wales 4th Edition 1989.)

13. We would interpolate that we are not, on the burden of proof, unmindful of the decision of this Court in Re a Doctor (Civil Appeal 116/87 - unreported) where it was held that, on appeals from the Medical Council of Hong Kong under s.26 Medical Registration Ordinance, Cap. 161, the Court of Appeal exercises its civil as opposed to criminal jurisdiction. Cited in support was Tarnesby v. General Medical Council (Privy Council Appeal No.21 of 1969 - unreported) where, in the course of his judgment, Lord Pearson said:

"These are not criminal proceedings, and the rules as to the burden of proof in criminal proceedings are not applicable. Nevertheless, the weight of the burden depends on the gravity of the issues."

14. While the provisions of sections 34 and 35 of the Ordinance bear some similarity to these formal, and indeed now formalised, provisions they are but a pale shadow of them.

Sections 34 and 35 read:

"34. (1) Without derogating from the right of the Court to act on its own motion under section 32, the Chief Justice, upon application being made in writing by the Attorney General or by the Bar Committee, may appoint a Committee of Inquiry to exercise the function set out in section 35.

(2)    A Committee of inquiry shall consist of -

(a)    one of Her Majesty's Counsel for Hong Kong, being a practising barrister, unless the Chief Justice is of the opinion that in the circumstances of the case such an appointment is impracticable or inadvisable; and

(b) not less than 2 nor more than 4, or in the event of no appointment being made under paragraph (a) not less than 3 nor more than 5, practising barristers of not less than 5 years standing.

(3) The Chairman of a Committee of Inquiry shall be appointed by the Chief Justice.

(4) A Committee of Inquiry shall sit in camera in such place and at such time as the Committee of Inquiry may direct.

35. (1) A Committee of Inquiry shall inquire into any complaint against a barrister laid before it by the Attorney General or by the Bar Committee and shall -

(a) submit its findings in the, form of a report to the Registrar, which report shall include its findings of fact and law and shall be open to the inspection of the barrister concerned, of his counsel and solicitor and of the Attorney General and of the Bar Committee when the complaint is laid by it, but shall not be open to public inspection, and

(b) where it is the opinion of the Committee of Inquiry that a prima facie case of misconduct has been made out, in addition to submitting its report to the Registrar, forward a signed copy of such report to the Chief Justice, together with a transcript of the evidence taken and copies of the documents put in evidence at the hearing.

(2) The laying of a complaint before a Committee of Inquiry shall be in the discretion of the Attorney General or of the Bar Committee, as the case may be:

    Provided that where a judge refers any complaint to the Attorney General or to the Bar Committee, the same shall be laid before a Committee of Inquiry."

15. While detailed rules have been made, under the provisions of paragraph (b) of section 72 of the ordinance, as to disciplinary proceedings concerning solicitors none have peen made with reference to barristers. Part of the difficulties which have been encountered in these proceedings stems from the absence of such rules.

16. The Bar here is, numerically, very much smaller than that of England. There is no equivalent of the Professional misconduct Committee within the Hong Kong Bar Association. The entity which deals with disciplinary matters is the Bar Committee.

17. The powers under section 32 have fallen into disuse. Matters where a complaint requires investigation fall to be considered by a Committee. The drafting of sections 34 and 35 leaves something to be desired for it is subsection (2) of section 35 which provides for the laying of a complaint before a Committee, and this at the discretion of the Attorney General or of the Bar Committee. That discretion is removed if the complaint comes from a judge for then the Bar Committee is required to lay such a complaint before a Committee. But before such Committee can be erected the Chief Justice must exercise his discretion to make the appointment. The Chairman must be appointed by the Chief Justice.

The history of these present proceedings

18. The Registrar of the Supreme Court laid a complaint before the Bar Committee in relation to the Barrister. On 4th November the Barrister was informed by the Bar Committee that it was making application to the Chief Justice for the appointment of a Committee. That letter set out the substance of the complaints as:

"(1) that you falsely represented to the Bar Committee on 21st July 1987 that you commenced your pupillage in the Attorney General's Chambers from 6th July 1987

(2) that you accepted instructions and practised as a barrister without a practising certificate and without having obtained the Bar's consent to limited practice in breach of paragraph 29 of the Code and of the statutory requirements."

19. No names of those who might constitute the Committee were mentioned.

20. On 13th November 1987 the then Chairman of the Bar did apply by letter to tae then Chief Justice to make an appointment, setting out the substance of the complaints in the same form as they were notified to the Barrister. The letter concluded with the statement that the Committee "suggests" three names of members with a further suggestion that one of them be Chairman. This was done by listing the names in order and placing the word "Chairman" in brackets after the senior member.

21. By letter dated the 16th November 1987 the Chief Justice wrote to the Barrister informing him that a Committee had been appointed and sending him a copy of the Instrument. The Instrument itself is dated the 17th November but nothing turns on this.

22. The Instrument set out in its paragraph (1) the fact of the application having made on 13th November; that the Chief Justice was exercising the powers conferred upon him by section 34 and that he had appointed a Committee to exercise the functions set out in section 35. Its paragraph (2) gave the names of the members of the Committee - the same as those, and in the same order, as suggested by the Bar Committee and with the same named Chairman. They will be referred to from hereon in this judgment as "the Chairman", "the 2nd silk" and "the other member".

Its paragraph (3) has particular moment. It reads:

''3. The function of the Committee of inquiry shall be to inquire into such complaints against ----------, a barrister of the Supreme Court, as may be laid before it by the Bar Committee." (Emphasis supplied)

23. It would seem that solicitors were appointed to act on behalf of the Bar Committee - "the solicitors". They sent a copy of the Instrument of appointment to the Chairman. He wrote to those solicitors on 24th November asking for details of the complaints.

24. On 7th December the barrister wrote direct to the Bar Committee asking for a copy of its letter of 13th November to the Chief Justice, which copy he received later that month. On 17th March 1988 the Chairman wrote to the solicitors expressing his concern about the lack of progress in "the Inquiry" and informed them that he thought that the interests of justice demanded that their enquiries cease and that the case for the Bar be presented on whatever evidence was then available. He asked the solicitors to arrange with his clerk for a meeting of only solicitors and counsel in his chambers.

25. In that letter he made reference to having had conversations with counsel instructed on behalf of the Bar Committee - "the counsel" - who had explained to him that the delay had arisen because of, as he set it out:

"The difficulties experienced by the 'prosecution' as to how many courts/times it is alleged that ----------- wrongly appeared."

26. None of this correspondence was, at the time, copied to the Barrister.

27. On 18th March the solicitors wrote to the Barrister informing him that a preliminary meeting was requested for 28th larch. That letter continued:

"Representatives from the Bar Committee have been requested to attend. In the circumstances, we suggest that you ascertain from the Chairman whether your attendance is required at the aforesaid meeting."

That letter was copied to the "Bar Association". On 28th March, the Barrister wrote - and when we say wrote in this judgment we have not distinguished between letters sent and fax communications - to the solicitors stating:

"As I have not been invited by the Chairman, I will not be attending."

On 24th March the Chairman wrote to the Barrister informing him that a short meeting had been held on the 28th, stated who had been present and accepted that the Barrister's absence seemed to be the result of "crossed wires". He informed the Barrister that nothing prejudicial to his case had occurred and, finally, that the preliminary hearing was adjourned to Wednesday, 30th march when the Barrister was invited to be present. That was intended to be a form of directions meeting.

28. It took place and subsequent to it, on 6th April, the solicitors sent to the Barrister a letter purporting to be their own letter setting out the minutes of that meeting. It began with the words "We write" and concluded that if there were any further points on which the Barrister wished to seek clarification would he please let the solicitors know. It also informed him that, while a hearing had been fixed for 29th April it had, subsequent to the meeting of 30th been discovered that the counsel was not available so that the hearing would begin on 30th April. That letter was copied to "client" and to the counsel.

29. It transpired, and only after a resumed hearing by the Committee on 2nd July 1988 had concluded, that the entirety of that letter had been drafted by the Chairman and that it had been sent out by the solicitors with but two minor amendments. The Chairman had forwarded his draft under a covering note to the solicitors firm on his personal "notepaper, the letter commencing: "Dear Dorothy" - an appellation by which the issue came to be known in the course of these proceedings. It had been "inadvertently" left out when the Barrister was sent copies of other previous correspondence.

30. Going back: the Barrister replied to the solicitors on the same day disputing one item in those minutes, asking to be informed of the names of the witnesses to be called and for copies of their statements. He reminded the solicitors that at the directions meeting he had asked for his wife to be present in tree course of the hearing.

31. On 7th April there was an exchange of letters between the Barrister, the solicitors and vice versa the Chairman and the Barrister. First, the Barrister wrote to the solicitors accepting that he had not asked for documents at the meeting of 30th March but that he now requested a full supply of all documents. To that the solicitors replied that they were obtaining copies of certain correspondence and would send their to him shortly and, in respect of others were obtaining the instructions of their client and would "come back to him on it". They informed the Barrister that they had written to the Chairman for clarification of the agreement to supply the copies of documents.

32. At the same time they wrote to the Chairman, with copies to the members of the Committee, the Bar Association - who was not their client - and to the counsel. This letter was not copied to the Barrister. With that letter they enclosed copies of the Barrister's letters to them and informed the Chairman that they had sought the instructions of their client, who had informed theirs that it was necessary to discuss it at one of their scheduled meetings. The solicitors also informed the Chairman that their client considered that, even if the letters were not privileged, they might have to seek approval from "the relevant party" before releasing copies. They asked the Chairman to clarify whether he had given a direction as to disclosure. They asked for directions from the Committee as to the presence of the Barrister's wife and as to the time of sittings it the hearing.

33. The Chairman then wrote a letter direct to the Barrister, copied to the solicitors and to the counsel, dealing with the time table to be observed in respect of any request for further and better particulars, the supply of documents, the framing of issues and the time and dates of the hearing. It contained this paragraph:

"(vii) that your wife may be present throughout, subject to any untoward occurences."

34. On 21st April the Barrister, who had by then instructed his own solicitors, wrote through them to the solicitors informing them that he would take objection to the jurisdiction of the Committee. This challenge first came on for hearing on 21st May when the Barrister was represented by Mr. Keane, as he has been throughout the rest of these proceedings.

35. When the hearing commenced, the Committee was not aware of the reasons for the attack upon its jurisdiction. A letter sent by the Barrister's solicitors to the solicitors setting out those complaints had not been brought to its attention. The hearing was adjourned and recommenced, and concluded, on 2nd July.

36. It gave its ruling, rejecting the challenge, to proceed with the hearing which ruling contained an order nisi as to costs, on 12th July 1988. On 27th September 1988 the Barrister applied for leave to move for Judicial Review which leave was granted on 29th September. On 5th October, a Notice of Motion, supported by an affidavit from the Barrister, seeking orders of prohibition and certiorari was filed and this motion was heard before Mayo J. between the 5th and the 9th of December 1988. On 23rd December Mayo J. delivered his judgment refusing prohibition but granting certiorari - this in respect of the Committee's order nisi as to costs - and made an order that the Barrister pay the costs of both the Committee and of the Bar Committee.

37. Notice of Appeal was filed on 26th January 1989 and a Supplemental Notice on 19th September. There was an application on 2nd October to add another ground of appeal. The amended Notice of Appeal, dated 10th October, and containing all these matters, seeks to set aside the order refusing prohibition and asks that an order of prohibition be granted preventing the Committee from proceeding with its inquiry and for a costs order in favour of the Barrister.

38. In the course of the hearing we gave leave to amend the original Notice of Application for Leave to Apply for Judicial Review by the addition of two further paragraphs, the seeking of:

"3A a declaration that on the true construction of section 34 of the Legal Practitioners Ordinance Cap.159 the application by the 2nd Respondent dated 13th November 1987 to the former Chief Justice was unlawful;

3B a declaration that the appointment of a Committee of inquiry by instrument dated 17th November 1987 by the former Chief Justice was unlawful."

We dispensed with service on the Committee who were neither represented at the hearing of the application for judicial review, until delivery of Mayo J.'s judgment, nor upon this appeal.

39. The Barrister's complaints, as set cut in the Committee's ruling were as follows:

(1)    that the method by which the particular members of the Committee of Enquiry came tone appointed was unfair to the barrister;

(2)    that certain 'secret communications' between persons conncected with the Enquiry should not have taken place without the barrister's knowledge and were therefore unfair;

(3)    that bias was shown to him by the Committee over his request for an adjournment at an early stage;

(4)    that the reference in the Chairman's letter of 7th April to the attendance of the barrister's wife was offensive and intended to show bias towards the barrister or his wife; and

(5) that having seen the Chairman who was leading the prosecutor in a matter before the Courts sitting with her in the lawyers' canteen in the Supreme Court tended to show a likelihood of bias or unfairness against the barrister.

40. There were other complaints which we do not think it necessary to set out as they were not pressed at the hearing.

41. It was the thrust of the barrister's case that, taking all five matters cumulatively, they gave rise to a reasonable suspicion of bias on the part of the Committee. The Barrister was suspicious of the impartiality of the Committee and those five matters formed a reasonable ground for that suspicion.

42. As we have said the Committee rejected the complaints and made the costs order complained of.

43. The matter of costs had not been referred to in the course of the hearing by the Committee and no application had been made for costs.

That costs order read as follows:

"We make an order nisi for costs against the Respondent but will hear the parties further on the question of costs if they so wish. Otherwise, we so hereby order."

44. The judge found that there was no jurisdiction in the Committee to make any such order. That finding is not the subject of a Respondent's Notice or of any cross appeal, out Mr. Keane now seeks to rely on it as yet another indication of bias by the Committee.

45. The grounds for Judicial Review, and the necessary affidavit supporting them, went much further than the complaints which had been mace directly to the Committee. In his judgment, Mayo J. set them out in detail and we think it useful, so far as they are relevant, to take the same course here:

"GROUNDS ON WHICH RELIEF IS SOUGHT

A.    GROUNDS FOR PROHIBITION

1. The Chairman and Members of the Committee of Inquiry were secretly and successfully nominated ex-parte by the Hong Kong Bar Association (The Prosecutor) to the former Chief Justice without disclosure to the Applicant prior to their appointment. The said nomination was without statutory authority, unlawful, and reasonably suggestive to the Applicant of bias, per se, and, a fortiori, having regard to the following circumstances:

(a) Prior to such nominations, the Prosecutor by its then Hon. Secretary, had given an interview to a journalist employed by the South China Morning Post published therein, discussing proposed allegations against the Applicant, despite the statutory provision that any such allegations are to be determined in camera.

(b) Thereafter the Chairman and Members secretly agreed with the Prosecutor to act as such on the suggested Committee of Inquiry, prior to any decision by the former Chief Justice either to appoint such Committee or to determine its composition.

(c) The Committee of Inquiry was appointed ex-parte without any evidence having been tendered to the former Chief Justice for his determination as to whether a Committee of Inquiry should be appointed, or as to the criteria for its composition.

(d) If consulted, the Applicant would have objected, and does object to the appointment of the Chairman on personal and professional grounds, having prior personal dispute between the Chairman and himself and because of prior conduct by the Chairman, unbecoming a barrister, in relation to other Hong Kong Counsel; and to [the 2nd silk] on professional grounds, namely that he had been regularly and recently appointed by the Prosecutor as Counsel for the Prosecutor, in matters arising under the Legal Practitioners Ordinance.

2.The Committee of Inquiry has misconducted itself by acting unlawfully, unjudicially, contrary to natural justice and fairness, and in a manner displaying bias against the Applicant, or alternatively giving him reasonable suspicion thereof, in that:

(a) The Chairman of the Committee of Inquiry has on 3 or 4 occasions, without the prior knowledge or consent ''of the Applicant, privately discussed the proceedings, including the collation of evidence, with Counsel for the Prosecutor.

(b) The Committee of Inquiry has employed the services of the Prosecutor's solicitors to act on its behalf, as if they were its own Solicitiors, Registrar or Clerk,

(c) The Committee of Inquiry has privately communicated in writing and/or orally with the Prosecutor's Solicitors, (including drafting a document on behalf of the Prosecutor) in relation to the proceedings and, when challenged, failed to make full timeous disclosure of such communications.

(d) The Committee of Inquiry has received and granted without notice to the Applicant, adjournment applications by the Prosecutor for the convenience of its Counsel but, indicated unwillingness to adjourn to enable the Applicant to retain the Solicitor of his choice.

(e) ........

(f) The Chairman of the Committee has permitted the Applicant's wife to attend its hearings 'subject to any untoward occurrences.'

(g) When its jurisdiction to proceed was challenged, the Committee ruled presumed for the purposes of argument, that the Applicant held an honest but unreasonable suspicion of its being biased and without application by the Prosecutor, and without jurisdiction, purported to make an order Nisi for costs against the Applicant.

(h) Unless restrained, the Committee of Inquiry intends to proceed further on 30 September 1988.

(i) The Committee, presented with unchallenged affidavit evidence from the Applicant that he suspected that it was biased wrongfully declined to accept such unchallenged evidence and to find that the Applicant honestly suspected such bias."

46. The Barrister's affidavit contained a great deal of argument and clear allegations of actual bias against the Chairman. These may well, and understandably, have coloured Mayo J.'s view of the whole matter. It also contained an attack upon the 2nd silk of which it is only necessary for us to say that it was without foundation.

47. Before us any suggestion of actual bias has been disclaimed and we are no longer concerned with anything of that kind. Mr. Keane has now reduced it to something to be used as a makeweight for his point that the Barrister should have been consulted before the members of the Committee were appointed - on the basis that, had he been aware of the name of the Chairman, he would have indicated "Well, for various personal reasons I would prefer if he were not a member".

48. He does not now press paragraph (d) of paragraph 2 of the Grounds for Relief.

49. Below, and before us though to a lesser extent, a good deal of play was made of the report contained in the South China Morning Post making reference to matters connected with the inquiry into the barrister's conduct which by statute is an "in camera" matter. This was suggested as evidencing an antipathy as between the Bar Committee and the Barrister.

50. We do not think that any reasonable person could read it in that light. From its format it clearly was not, as was suggested, an interview given by the Hon. Secretary of the Bar Committee. It is indicative more of the manner in which these Courts, and other institutions in Hong Kong, leak like sieves. The Barrister countered it with a further newspaper interview. We do not think it necessary to further consider it.

51. As to the implication of offensiveness and bias which the Barrister seeks to draw from the reference by the Chairman, in his letter of 7th April, to the attendance of the Barrister's then pregnant wife as being "subject to any untoward occurrences" - a comment which clearly upset the barrister. There was evidence, and this is uncontradicated, that the Chairman had been informed that, because of her pregnancy, the barrister's wife was "in an emotional state".

52. We accept that the paragraph complained of could, and should, have been couched in more courteous terms but we do not think it to be indicative of bias.

53. That having been said, we are particularly concerned about four matters contained in the grounds as they were before Mayo J. and as they are now amended:

(1)    the communications between the Chairman and the counsel - though we do not stigmatize them by the pejorative word "secret" -;

(2)what clearly appears to have been treatment by the Chairman of the solicitors as if they were his own;

(3)    the failure to formulate charges to be placed before the Chief Justice at the time of the application for the appointment of the Committee;

and (4) the wording of paragraph (3) of the Instrument.

54. But before dealing with those issues it is necessary for us to consider some other of the complaints by Mr. Keane as to the manner in which the Committee was appointed. Then to go on to the substantive issue as to whether the trial judge applied the correct test of bias and, further in this connection, to consider his reference to the informality of the proceedings and to the application of the rules of natural justice.

55. As to the first; the Bar in Hong Kong is, as we have said, numerically very much smaller than that of England. The Ordinance requires that at least one of the members of the Committee be a silk so, inevitably, the chore of membership, and that of Chairman, must be shared around. The members of the Committee are not remunerated and no clerical or administrative assistance is provided. It can well be an onerous task and it would be unfair if these duties were to continuously revolve around an even smaller group of persons. There was evidence that here the approach to those persons whose names were suggested by the Bar Committee was on a somewhat casual basis. None of the subsequently appointed members, or for that matter the Chairman, was fully appraised of the nature of the complaints and, in at least one case, even of the name of the Barrister, before they agreed to allow their names to go forward. While there is no body other than the Bar Committee to do the job, this is not a very satisfactory method. Of necessity, and to a great extent because of the lack of any rules made governing the appointment of the Committee, or its operation of its functions, proceedings in Hong Kong are on a less formal basis than they are in England.

56. In England because of the General Council of the Bar - now the Council of the Inns of Court being treated as an autonomous body and because of the existence of regulations which ensure that those who are responsible for investigating and prosecuting complaints of misconduct do not adjudicate on the hearing of the complaint, there is no question of those who prosecute being judges in the cause [In Re S. (a Barrister) [1981] 1 QB 683].

57. In Hong Kong there is no such clearcut demarcation though clearly, and this is not the case here, a member of the Bar Committee would not be acceptable as a member of a Committee. But that does not mean, in our judgment, that the suggesting of names of members in the letter to the Chief Justice requesting the appointment of a Committee is the equivalent of the prosecutor selecting the adjudicators. It is completely within the discretion of the Chief Justice as to whether or not he accepts the suggested names and it is open to him to consider other persons on the Roll of Barristers for appointment as members should he so desire. It is of course of assistance to him to be furnished with suggested names but his discretion remains.

58. As things now stand, if a barrister wants to object to any person appointed it is open to him to do so. If his objection is considered a valid one then its cogency is not lessened by being raised after the Chief Justice has appointed. A fresh Instrument is easily accomplished. If regulations or rules permitted information to, and objection by, a barrister before the Instrument is signed that would probably be the better practice but none exist. We do not consider that which occurred here was, in the circumstances, inimical to the interests of the Barrister.

59. We find it difficult to accept Mayo J, 's comment that:

"I think that it would be accurate to summarise the procedure in England as being essentially of a fairly informal nature."

That which we have set out earlier rakes it, in our judgment, abundantly clear that the creation and the activities of the Tribunal are matters of considerable formality and rightly so for, as indeed in Hong Kong as the result of a Committee investigation, the end result may be to destroy a barrister professionally and personally; though there is the major difference that a Committee does not punish while the Tribunal does.

60. While, as we have indicated, the procedures applicable to the appointment of a Committee are less formal than they are in England, this is not to be taken as indicating that its investigation should be treated by it as being informal or summary in nature. If a prima facie case of misconduct is found, then the Committee refers its Report to the Chief Justice who in turn refers the matter to the Court of Appeal. The end result of this may also be to deprive a man of his livelihood and of his professional honour. That is not a matter which can be taken lightly. The Committee investigates and makes findings of fact. These, being made by a professional body desirous of maintaining proper standards and maintaining the internal discipline of the profession, are unlikely to be derogated from except in exceptional circumstances.

61. The trial judge at one point in his judgment stated that it was clear that the process is undoubtedly "subject to the rules of natural justice". However it appears from the quotation he made from Administrative Law, 6th Edition, by Professor wade on "flexibility" that he may have diluted the rule. Further in making reference to various Australian authorities, which were canvassed before hint by Mr. Keane, the judge expressed the view that their facts were very different from those here; he particularised that most of them referred to "more formal proceedings" where clearly it was essential that the rules of natural justice be strictly, adhered to. We view his first thoughts to be the correct ones and that the rules of natural justice are fully applicable. If he were to be taken as accepting a watering down of their application, then we would not agree.

62. It is essential that the Committee is seen to operate as separate from a prosecutor. This impinges on the communication aspect to which we shall come.

The test

63. It is now clear beyond peradventure in the United Kingdom, in Australia and in Hong Kong that the test as to bias is that of the reasonably well informed man, be he hypothetical or not, appraised of all the circumstances who, having given consideration to the suspicions of the person alleging bias, says to himself "Yes, I think he has a case. This man is not getting a fair trial". Metropolitan Properties Co. Ltd. v. Lannon [1969] 1 QB 577, which developed that which was said in R. v. Barnsley Licencing Justices [1960] 2 QB 167 and per Ackner, L.J. (as he then was) in R. v. Liverpool Justices ex parte Topping [1983] 1 WLR 119. In a decision delivered subsequent to this hearing: The Queen v. Lo Kwok Hung, Criminal Appeal No.137 of 1989 (as yet unreported): the Chief Justice usefully encapsulated the test as being "would a reasonable and fairminded person sitting in Court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible?".

64. An applicant's own suspicions, save in so far as he brings them to the attention of the hypothetical reasonable can, are of no relevance.

65. The trial judge made reference to R. v. Watson ex parte Armstrong [1976] 136 CLR 248, in which the majority judgment was written by Barwick, C.J., Gibbs, Stephen and Mason, JJ. The passages he cited from that judgment, which he stated to find of "considerable assistance", stop short in the course of that court's examination of a series of Australian and English cases. The ratio of Watson emerges from a passage at page 263 which ends by repeating the already cited words of Lord Denning M.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [1969] 1 QB 577 at 599:

" Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: 'The judge was biased.'"

66. Watson had earlier considered the judgments delivered by Danckwerts and Edmund Davies L.JJ. in that same authority and also certain apparently conflicting Australian authorities. They resolved, the difficulties cowing to the conclusion, in the context of the matter before them, that:

" If fair winded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision."

67. It is clear that Watson, on a true reading, applied the same test as that which we have accepted to be correct.

68. In setting out the principles he found applicable, Mayo J. said:

"4. The test for bias is as laid down by Barwick C.J., Gibbs, Stephen and Mason JJ. in R. v. Watson. However this must be read in the context that the bias complained of must be real.

69. Thereafter in the judgment there are a number of references to real bias and to the reasonableness of the Barrister's state of mind, these more frequent than are the references to the objective standard of the reasonable suspicion of the reasonable man.

70. We are, therefore, not satisfied that the trial judge did apply the right test. In those circumstances, we feel ourselves at large and enabled to come to our own conclusions on the evidence before him as to bias in relation to the communications with the prosecutor, the drafting of a letter on behalf of the Bar Committee's solicitors and now, before us, the costs order.

71. With respect to the Chairman, and we have no doubt that he had no intention of in any way dealing with this matter to the prejudice of the Barrister, those communications should not have happened and the "Dear Dorothy" letter should never have been sent. We are fully aware that in the "village style" community of Hong Kong, members of the Bar are of necessity in much closer proximity one to the other than members of tire Liar of England and Wales - this both professionally and socially. Casual meetings are inevitable and there can be nothing wrong with purely social intercourse. It is not necessary for members of the Bar, whatever their capacity in respect of a committee may be, to go around in disguise or to avoid each other's company in or out of Court. But, that having been said, it is very necessary to ensure that under no circumstances is there any communication as to matters concerning an Inquiry other than by formal means and of which the barrister is timeously made aware.

72. The Bar Committee's solicitors are solicitors for a party, they are not, and cannot be, solicitors acting on behalf of a Committee. The appearance must not be given that they are so doing. The failure, inadvertent though it may have been, to disclose the "Dear Dorothy" letter until after the hearing before the Committee had taken place was unfortunate. That this communication took place at all is clearly wrong.

73. Now, added to those, is the matter of the costs order. It is not contested that that order was made without jurisdiction. It is an order which, with respect, simply did not make sense. There could be no "nisi" and the Barrister, taking the view that the order was ultra vires, was not bound to come before the Committee itself to contest it. Mr. Keane has suggested that it is indicative of a punishment imposed upon the Barrister for having the temerity to question the integrity of the members of the Committee. We do not go that far. But if such an order were in contemplation then both parties to the proceedings before the Committee should have been given an opportunity to make addresses in respect of it. The lack of jurisdiction might well have become apparent. We view this as a factor, and only that, in our considerations of whether there was bias within the meaning of the test which we have adumbrated.

74. But our main consideration is, first, the lack of any charges being placed before the Chief Justice at the time of the application. In the context of the scheme in Hong Kong the appointing officer, if we may so style the Chief Justice, must and should be aware, not merely of the substance of the complaints to be made against a barrister, but also of the actual charges to be laid. Then the Chief Justice can make such enquiry as he considers justified and will manifestly be seen to have exercised his discretion. They should make their appearance in tire Instrument of appointment. While his function is quasi-administrative, nevertheless, given that it is the courts which have the power to discipline and to punish the misconduct of members of the Bar, he must also be taken to act in a semi-judicial capacity.

75. We are not unmindful that the wording of section 35(1) of the Ordinance directs the Committee of Inquiry to enquire:

"into any complaint against a barrister laid before it by the Attorney General or by the Ear Committee." (Emphasis supplied)

and that in this Instrument the Chief Justice states that he was appointing a Committee to exercise tire functions set out in section 35. Nevertheless, the precise charges should be formulated by counsel appointed by the Bar Committee before such application is made.

76. We do not think, as Mr. Keane suggests, that it is incumbent upon the Bar Committee to seek the views of the barrister on those complaints or the charges before they are laid - this is so even where the original complaint may have been wade by a judge. There is however nothing to inhibit them front doing so and, if his views were sought, there could be a saving of time and expense. Also his comments could condesend the mind of the Bar Committee upon the gravity, or lack of it, of the initial complaint. If this were done then any comments made or views expressed should be forwarded to the Chief Justice together with the complaints, the charges arming out of them and, if it is thought fit, the names of those it is suggested should be members of a Committee. It remains within the discretion of the Chief Justice as to whether a Committee should or should not be appointed and its constitution and ire requires to be properly informed.

77. This leads in to the second area of concern in relation to the Instrument in this case. It is a matter which we brought to the notice of counsel ourselves in the course of this hearing. That resulted in the amendments to the Notice of Application for Leave to Apply for Judicial Review to which we have referred. It seems clear that the form of Instrument is one which has been used for some considerable time though we do not know its provenance. It also seem clear that tine expression in its paragraph 3:

"as may be laid before it by the Bar Committee" (Emphasis supplied)

stems from the opening words of section 35(1). But, with respect, this cannot be right for its effect is not in any way to limit a Committee to dealing with the actual complaints, tae substanca of which have been drawn to the attention of the Chief Justice. Were charges formulated and made to appear in the Instrument this would have removed all anomalies and the "blank cheque" would have had its details filled in and have become something of value. On the face of it now the Committee is not confined to even tine substance of tine complaints brought to tine notice of the Chief Justice and that must be wrong.

78. We are of the view Mat the defects in the Instrument removed from tine Committee their cloak of jurisdiction. That being so in our judgment this Instrument is had on its fact and the Committee appointed under it has been improperly constituted.

79. This has a point taken for the first time in this Court, and indeed by it. We are of the view that it determines this appeal. It is therefore unnecessary to go on to decide whether bias did exist although there was, in our judgment, a strong case to say that it did which could have led to the issue of prohibition. We would, in this connection, re-emphasise that we speak not of actual bias but of the "reasonable suspicion" of the "reasonably well informed man".

80. In those circumstances, we would allow the appeal and grant the declaration sought in 3B of the amended Notice of application to apply for Judicial Review.

81. We shall hear the parties as to costs, including the Mayo J. costs order, and as to the publication of this judgment.

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82. On 9th December 1989 Silke V.P. made the following statement in open court.

83. The full title of these proceedings is:

"A Barrister (Appellant) v. A Committee of inquiry appointed pursuant to the Legal Practitioners Ordinance (Cap.159 section 34) - 1st Respondent: the Committee of the Hong Kong Bar Association - 2nd Respondent."

84. It has until now been listed as In 'Re a Barrister'.

85. The members of the Court concerned are Hunter J.A., Bewley J. and myself. Neither Hunter J.A. nor Bewley J. are able to be present this morning. They have however taken part in the debate which has resulted in this statement, are aware of its contents and are in agreement with it.

86. Under the provisions of the Legal Practitioners Ordinance the hearings of a Committee of inquiry, appointed by the Chief Justice to investigate complaints made against a barrister, are held in camera. If a Committee then forwards its report to the Chief Justice he causes the matter to be set down before the Court of Appeal. That hearing is also in camera unless the Court of Appeal otherwise directs. (Section 37 subsection (4)).

87. The proceedings culminating in the delivery of the judgment before Mayo J all took place in camera. At the opening of this appeal we hard argument and ruled that this hearing should also be in camera. The reason for this was that we were dealing with matters ancillary to those which may be considered by an appointed Committee of Inquiry at another time and other place in relation to the Barrister.

88. We felt that, because of the general scheme of the Ordinance that all such matters are required to be heard in camera, the general rule that the Court shall conduct its proceedings in public, which is but an aid, albeit a very important aid to the achievement of the paramount object of the Court, to do justice in accordance with the law, could be abrogated. There can exist wholly exceptional circumstances where the presence of the public and public knowledge of the proceedings is likely to defeat that paramount object. Only then are Courts justified in proceeding in camera. In our judgment the matters here came within such "wholly exceptional circumstances".

89. Having delivered judgment yesterday morning we then heard submissions from counsel as to its publication. We expressed the view that in the interest of justice the decision of this Court, concerning, as it does the methods by which the discipline of the Bar is maintained, and which is clearly a matter of public importance, should be published.

90. It was agreed that this should be so and we indicated that we intended to direct, by reference to the powers in subsection (4) of section 37, that we would sit in open Court on a date to be fixed and that we would, on that occasion, give copies of our judgment to the press. We further indicated that we would, at the same time, give directions as to the publication of the names of the individuals concerned which it will be seen, do not appear in the body of the judgment.

91. We have, in considering the course that we should follow, taken great assistance from that which was said by Donaldson M.R., and from the course that the Court over which he presided took, in R. v. Chief Registrar of Friendly Societies, Ex Parte New Cross Building Society [1984] QB 227 at 232. An authority to which we had drawn the attention of counsel.

92. As has been said, it will be seen from the format of the judgment that we have avoided the use of individual names. This, it is our view, should remain so. If a Committee is reappointed to consider the complaints made against the Barrister, and we would emphasise that the merits or demerits of those complaints are not matters which have been for our consideration in these proceedings, then it still lies within the province of the Court of Appeal under the provisions of section 37 subsection (7) of the Ordinance to give such directions as to publication of its determination as it sees fit. We consider that it would not be right for us to pre-empt the views of any Court which may be seized of the matter and, further, it is not desirable in all the circumstances that any individuals should be named. It would be invidious if some names were published and some not.

93. There is now made available to the public and the press and, if it is considered fit for publication in the Law Reports, to the Editor of the Hong Kong Law Reports, the judgment delivered on 8th December 1989. It is further directed that the manner by which we have referred to the parties should not be derograted from; that is that the names of individuals should not be published.

94. This statement will be attached to the judgment.

95. The attendance today of the counsel concerned has, to avoid further costs, been dispensed with though I am obliged to those counsel who have attended. They have been fully apprised of that which have just said and have seen this statement in draft.