LEE MING TEE v. THE STOCK EXCHANGE OF HONG KONG LIMITED

IN THE COURT OF APPEAL

1996, No. 72
(Civil)

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J U D G M E N T

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Mortimer, J.A.:

1. In these proceedings, the applicant seeks judicial review of decisions of the Stock Exchange Listing Committee and the Listing Appeals Committee.

2. Last December, the hearing for this application was fixed before Sears, J. for 24 April, i.e. next Wednesday.

3. A short time ago, the applicant sought an adjournment of that hearing. The reasons do not matter for the purposes of our decision save to say that they did not commend themselves to the judge. The judge refused the application. However, the applicant also applied for discovery. This came before Sears J on 10 April. He made an order that certain documents be disclosed by the Stock Exchange. It followed an amendment which the applicant had been allowed to make to raise the point, that the legal advice provided by Allen & Overy to the committees had not been disclosed to the applicant. He alleges that this is unlawful and constitutes a breach of natural justice.

4. An affidavit from the Stock Exchange makes reference to written legal advice which had been received from their solicitors. Consequent upon that, Sears J ordered discovery of that advice. The Stock Exchange resisted but the judge found that the advice was not covered by professional privilege. Even if it was, the privilege had been waived. The judge's order was that the documents should be disclosed by close of business on Tuesday, 16 April. On the day before that, the 15 April, the Stock Exchange filed a notice of appeal against the discovery order. That was an appeal as of right for in this jurisdiction although it is an interlocutory matter, leave to appeal is not required.

5. The Stock Exchange did nothing - so far as the court was concerned - about the order. No stay pending appeal was sought either from the judge or from the Court of Appeal within the time limit. However, on 16 April, a document came into existence - a "consent summons". In that document, the parties agreed that there should be a stay of the discovery order pending appeal. That suited both parties because an adjournment of the substantive application would be almost inevitable.

6. On the consent summons, it is submitted by Mr Geoffrey Ma QC that the rules provide for an extension of time by agreement between the parties (O.3 r5(3)). For my part, I cannot agree. This was not an extension of time intending that the order should be enforced a few days later without coming back to the court. This was a stay pending appeal. The parties simply cannot agree to bypass an order of the court by means of this procedure. There is a misunderstanding, probably, as the effect of a document called "the consent summons". A consent summons cannot abrogate an order of the court. If a stay pending appeal is required, the court must be approached.

7. Be that as it may, on 17 April, Sears J considered the consent summons. He refused a stay save one to enable the parties to come before the Court of Appeal. Indeed, a member of this Court granted an extension of the stay so that we could hear this matter today. The stay expires at 1 o'clock this afternoon.

8. I turn to the questions we have to consider. The orders asked for by the Stock Exchange are: that the judge's order refusing a stay should be set aside; that there should be a stay pending appeal; and consequently, that the fixture of the hearing on 24 April - next Wednesday - should be vacated.

9. We are faced with two alternatives. We can grant the stay which will involve the vacation of the hearing. The matter will come before the Court of Appeal to decide questions of professional privilege and whether that privilege, if it exists, has been waived. The decision of the Court of Appeal then may be the subject of further appeal to the Privy Council because we are told by both parties that the point on professional privilege is one not yet decided in this jurisdiction or by the Privy Council and that it is of great importance. Of course one must envisage that the application for judicial review would then be delayed for an unknown time.

10. On the other hand, if we refuse a stay, the chances are that the applicant will seek to enforce the discovery order, that the application for judicial review will take place on 24 April and will be decided. That does not mean to say that this point of great importance will not be decided. If the Stock Exchange loses these proceedings, perhaps they will appeal and seek a decision. On the other hand, if they win, the matter will not arise.

11. Face with those decisions, it seems to me that we must seek insofar as we can, to maintain the integrity of our system. We cannot allow public law matters to be delayed - unless it is unavoidable. Judicial review is meant to involve speedy consideration of administrative decisions and orders. It makes a mockery of that principle if parties are allowed to come to the Court of Appeal on each interlocutory application which goes against them for a hearing in the Court of Appeal and so delay the substantive hearing. That happens in this jurisdiction too often. Insofar as is reasonable, it ought to be stopped.

12. In these circumstances, for my part, I have no hesitation whatsoever in saying that this Court ought to exercise its discretion against ordering a stay. The result of that is, perhaps, obvious. I would, for my part, make no further order. I add that insofar as the judge refused a stay, I agree with his decision also.

Godfrey, J.A.:

I entirely agree with my Lord, Mortimer, J.A.

13. There is some merit in the suggestion that this point, said to be of general public importance, concerning legal professional privilege, ought to be decided before the documents to which it relates are in fact disclosed. But, as my Lord points out, we have to balance that consideration against all other relevant considerations affecting our own consideration of the matter, including the integrity of our system to which he has referred. Endeavouring to strike that balance, I find that it comes down in favour of refusing the stay asked for and allowing these proceedings for judicial review to go on before the judge without the lengthy adjournment which a stay to enable this court (and perhaps the Privy Council) to consider the legal professional privilege point would inevitably entail.

14. In deference to an argument addressed to us by Mr. Geoffrey Ma, Q.C. for the Stock Exchange of Hong Kong (based on Order 3 rule 5 of the Rules of the Supreme Court) to which my Lord, Mortimer, J.A. briefly alluded, I would add this.

15. I can find no warrant anywhere in the Rules of the Supreme Court for the apparent assumption of the parties that they can, by consent, and so of their own motion, stay the operation of the judge's order pending an appeal from it, (although of course a consent to a stay given by the party entitled to the benefit of the order under appeal is naturally a material factor for this court to take into consideration on an application for a stay when such an application is made to it). O.3 r.5 does not justify the assumption. By sub-rule 1, it is provided that the court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required to authorise by the rules or by any order to do any act in any proceedings. By sub-rule 3, it is provided that the period within which a person is required by the rules or by any order to serve, file or amend any pleading or other document may be extended by consent given in writing without an order of the court being made for that purpose; but there is, in my judgment, a world of difference between a consent, say, to an extra seven days being given for the filing of an affidavit, on the one hand, and a consent to a stay of an order pending an appeal, on the other hand, with which, as I see it, O.3 r.5, has nothing whatever to do.

16. I, too, would refuse this application for a stay, for the reasons given by my Lord, Mortimer, J.A.

Liu, J.A.:

I wish to state briefly my view which is unfortunately different from that expressed by my Lords who have unrivalled experience in judicial review and case management.

17. The parties consented to a stay which by necessary implication extended, under Order 3 rule 5(3) RSC, the time for the formal compliance with the judge's order for discovery until at least the time when the Consent Summons was returned before Sears, J. There was no contempt.

18. The respondent in the judicial review application is appealing against the order for discovery of Sears, J., which is exceedingly rare in judicial review applications. Moreover, it is common ground that the matter sought to be appealed against is one of great public importance, namely whether a statutory body is entitled to take legal advice and if so, whether it would enjoy legal professional privilege. This is a new point which has not been previously entertained. The respondent has a right to appeal. We are told that the appeal would be nugatory if a stay of the very order against which the appeal lies were refused.

19. Legal professional privilege has recently been re-affirmed in the United Kingdom as a pillar of our common law. In Re L (a Minor) (Police Investigation: Privilege), Times Law Reports 22 March, 1996. A determination of this question must be as important as an expeditious hearing of a judicial review application. The application for a stay is not being resisted by the applicant in the judicial review application, albeit for personal reasons. There is also much to be said for the submission made on behalf of the applicant that a fair hearing may not be had next Wednesday without an adjournment, consequential upon the granting of the instant application for a stay.

20. I would, for these reasons, be prepared to grant the stay sought by the respondent.